Markov & Neville
[2023] FedCFamC1A 143
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’ already settled by the Appeal Registrar;
(c)the appellant is relieved of the obligation to file Transcript and the Appeal Registrar shall forthwith furnish the parties in digital format the Transcript of the Proceedings before the Primary Judge on 16 August 2023;
(d)the appellant shall file and serve her Summary of Argument and List of Authorities by close of business on Wednesday, 23 August 2023; and
(e)the respondent shall file and serve his Summary of Argument and List of Authorities by close of business on Friday, 25 August 2023.
4.Otherwise, save as to costs:
(a)the Application in an Appeal filed on 21 August 2023 is dismissed; and
(b)the Response to an Application in an Appeal filed on 22 August 2023 is dismissed.
5.The costs of the interlocutory appeal proceedings are reserved to the hearing of the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Markov & Neville has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal by the mother springs from orders made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 16 August 2023.
The orders permit the father to take the elder of the parties’ two children out of Australia to Country B and Country C to attend a paternal family wedding between 24 August 2023 and 11 September 2023.
The appeal was brought by the mother on 18 August 2023. She simultaneously brought an application to stay the appealed orders pending the determination of the appeal and has since filed an application for the hearing of the appeal to be expedited.
For unknown reasons, even though the appealed orders allow the father to depart the country with the elder child on Thursday 24 August 2023, the stay application is not listed before the primary judge until Wednesday 23 August 2023 – and only then for mention; not for hearing.
Self-evidently, if the stay application is neither heard nor granted by Wednesday 23 August 2023, the appeal will be rendered entirely nugatory unless it can be substantively heard and determined by that date. In the circumstances, the mother’s application to expedite the appeal hearing was urgently listed for hearing today (Tuesday 22 August 2023).
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).
Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments pertaining to parenting orders (see JRN & IEG (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]–[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No.2) [2008] FamCAFC 194 at [38]).
The father could not sensibly rebut the proposition that the appeal would be nugatory if he departs Australia with the elder child two days hence.
On the other hand, the stay of the appealed orders would certainly disturb his plans and cause some inconvenience and expense. The wedding he wishes to attend will be held on 31 August 2023 and he has already booked to travel by 24 August 2023, though the circumstances of urgency are of his own making. He knew by 3 August 2023 that the mother opposed the children travelling overseas with him, but did not bring his application for another week. There is nothing to stop him from attending the wedding as planned, but without the elder child accompanying him.
The father could not persuasively complain of the temporary stay of the appealed orders, with the appeal to be heard next Monday 28 August 2023. If the appeal is dismissed, then he still has time to travel to Country D with the elder child. Alternatively, if the appeal succeeds he loses nothing. He can still travel overseas without the elder child.
Since the Court can accommodate the parties in that way, there is no need to now consider, as factors which influence the discretionary decision of whether or not the stay should be granted, the prospects of the appeal and where the balance of convenience lies (Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685).
With the appeal stayed temporarily it is only then necessary to settle procedural directions to ensure the appeal is ready for hearing next Monday, to which suggested procedural directions the parties agreed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 August 2023
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