FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Markov & Neville [2023] FedCFamC1A 143
Appeal from: Neville & Markov [2023] FedCFamC2F 1049 Appeal number: NAA 220 of 2023 File number: BRC 10472 of 2023 Judgment of: AUSTIN J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Expedition – Where the mother appeals from orders permitting the father to travel overseas with the parties’ elder child – Where the orders provide for the father to depart with the child in two days – Where the mother filed an application to stay the appealed orders pending the determination of the appeal – Where the stay application is listed before the primary judge tomorrow for mention only – Where if the stay application is not determined by tomorrow the appeal will be rendered nugatory – Where the mother filed an application to expedite the appeal hearing – Where the mother made an oral application to stay the appealed order in reliance on s 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the appeal can be heard next week – Where the father could not persuasively complain of the temporary stay of the appealed orders – Orders made – Where the primary judge’s orders are stayed pending the determination of the appeal – Where the hearing of the appeal is expedited. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 38
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220; [1986] HCA 13
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681; [1986] HCA 84
JRN & IEG (1998) 72 ALJR 1329; [1998] 16 Leg Rep 16
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No.2) [2008] FamCAFC 194
Number of paragraphs: 25 Date of hearing: 22 August 2023 Place: Sydney Counsel for the Applicant: Mr Jordon Solicitor for the Applicant: Barry Nilsson Lawyers Counsel for the Respondent: Ms Martinovic Solicitor for the Respondent: Fairlight Legal Services ORDERS
NAA 220 of 2023
BRC 10472 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MARKOV
Applicant
AND: MR NEVILLE
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
22 august 2023
THE COURT ORDERS THAT:
1.The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 16 August 2023 are stayed pending the determination of this appeal.
2.The hearing of the appeal is expedited.
3.The appeal is listed for hearing before the Honourable Justice Campton at 10.00 am on Monday 28 August 2023, for which purpose:
(a)the hearing will be conducted electronically by Microsoft Teams;
(b)the Appeal Registrar shall forthwith settle and distribute to the parties the appeal book in digital format comprising those documents in the ‘Index to Appeal Book’…
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- AGLC
- Markov & Neville [2023] FedCFamC1A 143
- Case
- [2023] FedCFamC1A 143
- Decision Date
CaseChat Overview and Summary
The case of Markov & Neville involved the mother, who sought to stay the interim orders made by the primary judge and expedite the hearing of the appeal. The primary judge had granted the father’s application for urgent interim orders to take the elder child overseas for a family wedding, but denied the application in respect of the younger child. The mother filed an appeal against the orders, seeking an expedited hearing and a stay of the interim orders pending the appeal. The legal issues before the court were whether the appellate power to stay the appealed orders should be exercised and whether the appeal should be expedited.
The court considered the arguments of both parties and determined that the circumstances justified exercising the appellate power to stay the appealed orders. The court found that if the stay was not granted, the appeal would be rendered nugatory, and the mother would not be able to restore the status quo if the appeal was successful. The court also noted that it was possible to hear the appeal on the proposed date of 28 August 2023, which was acceptable to both parties. Therefore, the court granted the mother’s oral application to stay the appealed orders and her application for an expedited hearing of the appeal.
The stay application pending before the primary judge was now superfluous, and the court noted that the discretion to stay the operation of orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. The court found that such circumstances existed in this case, and therefore, the appellate power to stay the appealed orders should be exercised.
The final orders of the court were that the mother’s oral application to stay the appealed orders was granted, as was her application for an expedited hearing of the appeal. The stay application pending before the primary judge was now superfluous. The appeal would be heard on 28 August 2023.
The court considered the arguments of both parties and determined that the circumstances justified exercising the appellate power to stay the appealed orders. The court found that if the stay was not granted, the appeal would be rendered nugatory, and the mother would not be able to restore the status quo if the appeal was successful. The court also noted that it was possible to hear the appeal on the proposed date of 28 August 2023, which was acceptable to both parties. Therefore, the court granted the mother’s oral application to stay the appealed orders and her application for an expedited hearing of the appeal.
The stay application pending before the primary judge was now superfluous, and the court noted that the discretion to stay the operation of orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. The court found that such circumstances existed in this case, and therefore, the appellate power to stay the appealed orders should be exercised.
The final orders of the court were that the mother’s oral application to stay the appealed orders was granted, as was her application for an expedited hearing of the appeal. The stay application pending before the primary judge was now superfluous. The appeal would be heard on 28 August 2023.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the mother’s oral application to stay the appealed orders is granted, as is her application for an expedited hearing of the appeal. The stay application pending before the primary judge is now superfluous.Background The parties commenced cohabitation in 2011 and separated in September 2022. They never married. Both were born overseas but, in September 2017, they were granted permission for permanent residence in Australia. Their two children were born in 2017 and 2021. The elder is now six years old and the younger two years old. Proceedings between the parties under Pt VII of the Act were commenced by the father filing an Initiating Application as recently as 11 August 2023. Relevantly, by that application, the father sought urgent interim orders enabling him to take both children to Country B and Country C to attend a family wedding between 24 August 2023 and 11 September 2023. By her Response filed on 15 August 2023, the mother opposed the urgent interim relief sought by the father. The interim dispute was listed before the primary judge for urgent hearing on 16 August 2023. His Honour granted the father’s application in respect of the elder child, but refused it in respect of the younger child. At this point in time, there are no interim parenting orders allocating parental responsibility for the children, establishing the children’s residence, or otherwise regulating their care.Expedition and/or stay? By an Application in an Appeal filed on 21 August 2023, the mother sought an expedited hearing of the appeal by tomorrow (23 August 2023). The expedition application was listed for urgent hearing today (22 August 2023). The father filed a Response to an Application in an Appeal on 22 August 2023, proposing that the appealed orders remain operable. Although not impossible, it would be difficult and highly inconvenient for the appeal to be ready, heard and determined within the next 24 hours. It can, however, be heard next Monday 28 August 2023 and both parties were content to accept that date. The mother moved with commendable speed by applying to the primary judge to stay the appealed orders pending the hearing of the appeal, but the somnolent response was to list the stay application for mention (not hearing) the day before the appealed orders take effect. If neither the stay application nor the substantive appeal are heard and determined by Wednesday 23 August 2023, the father and the elder child will depart Australia on Thursday 24 August 2023 and the mother’s appeal from the orders will be rendered nugatory. Such considerations engendered consideration of whether the appellate power to stay the appealed orders should be exercised, as permitted by s 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), thereby allowing for the appeal to be heard speedily, but not recklessly fast. The mother then made an oral application to stay the appealed orders in reliance upon that head of power. The discretion to stay the operation of orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222–223).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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