Martin & Commissioner of Police (No 2)
[2022] FedCFamC1A 76
•20 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76
Appeal from: Commissioner of Police & Martin [2022] FCWA 104 Appeal number(s): NAA 108 of 2022 File number(s): PTW 4659 of 2021 Judgment of: AUSTIN J Date of judgment: 20 May 2022 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Application in an Appeal – Expedition – Where an appeal from an order that the child be returned to Hong Kong (“the return order”) was dismissed by the Full Court – Where the applicant filed an application in the Family Court of Western Australia seeking a stay of the original return order pending the finalisation of her application to the High Court of Australia for special leave to appeal from the Full Court’s decision – Where the primary judge dismissed the application, from which order the proposed appeal lies – Where the applicant seeks that her appeal be expedited – Where in all probability the primary judge had no power to grant such a stay – Where it is far from settled law that, pending determination of a special leave application, the Full Court would have as an adjunct the implied power to stay the primary judge’s valid orders – Where there is no basis upon which to conclude there is an arguable case to be made in the prospective appeal – Where the applicant proposes interim orders – Where only appellate and not original jurisdiction is being exercised – Application in an Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Cases cited: Commissioner of Police & Martin [2021] FCWA 211
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681; [1986] HCA 84
Langley & Tarelli (No.3) (2021) FLC 94-060; [2021] FedCFamC1A 67
Martin & Commissioner of Police [2022] FedCFamC1A 29
Number of paragraphs: 26 Date of hearing: 20 May 2022 Place: Newcastle (via video link) The Applicant: Litigant in person Counsel for the Respondent: Mr Sefton SC Solicitor for the Respondent: State Solicitor’s Office (WA) ORDERS
NAA 108 of 2022
PTW 4659 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MARTIN
Applicant
AND: COMISSIONER OF POLICE
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 16 May 2022 is dismissed.
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 Martin & Commissioner of Police (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Orders are in place under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the subject child to be returned to Hong Kong from Australia.
According to the applicant, the child will be removed from Australia at 10.00 am on Monday 23 May 2022.
In an attempt to avert the child’s removal, the applicant applied on 16 May 2022 for orders to effectively stop it, which is the application now being considered urgently.
To understand how this asserted need for urgency arose, it is necessary to recount some history.
Background
On 19 November 2021, a judge of the Family Court of Western Australia made orders for the child’s return to Hong Kong (Commissioner of Police & Martin [2021] FCWA 211).
On 3 March 2022, the applicant’s appeal from those orders was dismissed by the Full Court (Martin & Commissioner of Police [2022] FedCFamC1A 29).
On 28 April 2022, although beyond the time period allowing her to do so, the applicant filed an application in the High Court of Australia (“the High Court”) seeking special leave to appeal from the Full Court’s decision. She now needs permission from the High Court to bring the application for special leave to appeal out of time before the application is even substantively considered, but neither application has yet been determined.
On 5 May 2022, the applicant filed an application in the Family Court of Western Australia seeking orders to stay the original return orders made on 19 November 2021:
…until after the matter is finalised in the High Court of Australia.
On 11 May 2022, that application was entertained and dismissed by the same primary judge. Without deciding whether her Honour was even seized of power to grant the relief sought by the applicant, the primary judge decided the application upon the presumption that such power existed (at [8]–[9]).
On 13 May 2022, the applicant filed a Notice of Appeal, wherein she applies for leave to appeal from the orders made by the primary judge on 11 May 2022 dismissing her stay application.
On 16 May 2022, the applicant filed an Application in an Appeal and supporting affidavit (together with exhibits, marked as Exhibit A on the application). The relief sought by the applicant comprises these orders:
1.That the appeal for a stay be expedited
2.Interim orders be made preventing [the child] from being removed from Australia on the 22nd May 2022 until after this appeal is decided..
3.That the mother not be held responsible for costs lost by the father due to the stay application being refused by [the primary judge].
(As per the original)
Proposed Order 1
Theoretically, an order can be made to expedite the hearing of the applicant’s application for leave to appeal and (if granted) the appeal from the orders made on 11 May 2022, but there is no scope to pragmatically do so.
This expedition application is being heard today (Friday 20 May 2022). The child is being flown to Hong Kong on Monday 23 May 2022. It would be exceedingly difficult to convene a Full Court to hear the application for leave and the appeal tomorrow (Saturday 21 May 2022) or the day after (Sunday 22 May 2022), as would be necessary since the prospective appeal lies from the judgment of a judge of the Family Court of Western Australia and cannot be heard by a single judge (s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
Even if a Full Court could be convened as soon as tomorrow or the day after, the prospects of success of the application for leave to appeal and the appeal do not appear sufficiently strong to warrant expedition of such velocity.
The proposed appeal lies from the primary judge’s dismissal of the applicant’s stay application. There is very good reason to think the primary judge had no power to grant such a stay. The primary judge’s power was exhausted once the return orders were made under the Regulations on 19 November 2021, disposing of all outstanding applications. Her Honour had power to stay those orders pending the determination of the appeal to the Full Court, but that power evaporated when the appeal was dismissed on 3 March 2022. In all probability, the primary judge was functus officio thereafter, absent some new application being brought by the applicant within the primary judge’s original jurisdiction – and there was none.
The Full Court would have the power to stay the orders it made on 3 March 2022 dismissing the applicant’s appeal, pending the determination by the High Court of her application for special leave to appeal, though compelling circumstances are needed to justify the use of such power (Langley & Tarelli (No.3) (2021) FLC 94-060 at [15]). However, even if persuaded to exercise the sparingly-used power, the stay of the order dismissing the appeal would leave the underlying return orders made by the primary judge in November 2021 intact and operable, so serving no useful purpose.
It is far from settled law that, having dismissed the appeal from the primary judge’s orders and exhausted its own appellate power, the Full Court (or any single judge exercising appellate jurisdiction) would have, as an adjunct, implied power to stay the primary judge’s valid orders pending the determination of the application to the High Court for special leave to appeal from the Full Court’s orders. It is always open to the applicant to make an application to the High Court for an order staying the primary judge’s return orders, though the exercise of that power too is “seldom invoked and rarely exercised” (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 683).
Even if the primary judge was seized of power to grant the stay order sought by the applicant, that is not to say her Honour was in error by refusing to exercise it, which must be the implicit premise for the proposed appeal. The evidence led and the submissions made by the applicant in support of this expedition application do not evince any basis upon which to conclude there is an arguable case to be made in the prospective appeal from the dismissal order. The applicant tends to merely repeat the arguments she advanced to the primary judge about why the stay should be granted, but does not explain why the primary judge’s decision to dismiss the stay application was wrong.
The applicant has not made out her case for the appeal hearing to be expedited to tomorrow or the day after. The need for expedition entirely abates upon the child’s removal from Australia on Monday. Indeed, the proposed appeal is rendered futile once the child departs for Hong Kong. However, the applicant may still pursue her application for special leave to appeal to the High Court. The father of the child has given formal undertakings to the Family Court of Western Australia that he will abide the decision of the High Court.
Proposed Order 2
There are several reasons why this proposed interim order cannot be made.
First, even if it could be made, it would entail an exercise of power within original jurisdiction but, presently, only appellate and not original jurisdiction is being exercised by the Federal Circuit and Family Court of Australia (Division 1).
Secondly, there are no proceedings presently pending before any court seized of original jurisdiction under either the Family Law Act 1975 (Cth) or the Regulations. No interim order can be made without a covering substantive application.
Thirdly, even if there were proceedings pending before a court seized of original jurisdiction, the applicant would need to satisfy that court that discretionary power should be exercised to grant such an interim order. This would be an exceedingly difficult task as the proposed order would directly contradict the existing order requiring the child to be returned to Hong Kong, which order withstood appellate scrutiny by the Full Court and from which no appeal lies to the High Court without the grant of special leave.
Proposed Order 3
The primary judge made no order as to costs in respect of the stay application heard on 11 May 2022. Consequently, there is neither need nor power to make this proposed order.
Disposition
The Application in an Appeal must be dismissed.
The respondent did not seek costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 24 May 2022
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