Navickas & Fried
[2024] FedCFamC1A 248
•18 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Navickas & Fried [2024] FedCFamC1A 248
Appeal from: Navickas & Fried (No 3) [2024] FedCFamC2F 1779 Appeal number: NAA 343 of 2024 File number: LEC 175 of 2021 Judgment of: AUSTIN J Date of judgment: 18 December 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Stay – Expedition – Where the mother appeals from final parenting orders – Where the primary judge made supplementary orders dismissing the mother’s Application in an Appeal to stay the final orders – Where the primary judge did not have jurisdiction or power to hear and determine an application filed in the appellate jurisdiction – Supplementary orders set aside – Where neither party will be personally prejudiced by the refusal of the stay application – Where the mother’s belief the refusal of the stay application will be detrimental to the children is not objective proof of the fact – Where the mother did not pursue her expedition application – Where the parties are mutually satisfied if appeal is heard by April 2025 as anticipated – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 38, 138
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.03, 13.05, 13.08, 13.09, 13.12, 13.14, 15.06
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
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
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: 31 Date of hearing: 18 December 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Mr Alexander and Ms Karaman Solicitor for the Appellant: Paddingtons Legal Group Counsel for the Respondent: Ms Decle Solicitor for the Respondent: Parker & Kissane Solicitors Counsel for the Independent Children's Lawyer: Ms Smith Solicitor for the Independent Children's Lawyer: McVitte Legal ORDERS
NAA 343 of 2024
LEC 175 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NAVICKAS
Appellant
AND: MR FRIED
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
18 DECEMBER 2024
THE COURT ORDERS THAT:
1.Supplementary Orders 1, 2 and 3 made by the Federal Circuit and Family Court of Australia (Division 2) on 12 December 2024 are set aside.
2.The Amended Application in an Appeal filed on 16 December 2024 is dismissed.
3.The Response to an Application in an Appeal filed on 17 December 2024 is dismissed.
4.With the consent of the parties and the Independent Children’s Lawyer, the costs of this interlocutory dispute will be costs in 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 Navickas & Fried has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons determine the appellant mother’s dual applications to, first, stay appealed parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 12 December 2024 pending the determination of her appeal, and secondly, to expedite the hearing of the appeal.
Background
Proceedings between the parties in respect of their two children under Pt VII of the Family Law Act 1975 (Cth) began in 2021.
The trial of the proceedings started in September 2023 and occupied 18 days over the next year. The trial concluded in September 2024, submissions were filed in November 2024, and judgment was delivered on 12 December 2024.
Essentially, the primary judge ordered the reversal of the children’s residence so that they live with the father instead of the mother (Order 7). He will have “sole parental and decision-making responsibility” for the children (Order 9). They will spend professionally supervised time with the mother four times per year and communicate with her in writing (Order 10). The mother is otherwise restrained from communicating with or being near the children (Order 14).
According to the evidence adduced in this hearing, immediately after the judgment was pronounced and the mother’s counsel informed the primary judge an appeal would be imminently filed, her Honour told the mother’s counsel that, even if an appeal was filed, no stay application could be entertained before the Christmas break.
As forecast, the mother appealed from the judgment on the same day it was pronounced.
Later that same afternoon or evening, the primary judge made these additional orders (“the supplementary orders”):
1.That the changeover time of 4:00pm 12 December 2024 as set out in the final parenting orders made on 12 December 2024 is hereby stayed.
2.That the changeover time, to give effect to Order 7 of the final parenting orders made on 12 December 2024 for [the children], to live with the father is now by way of this order to occur at 8:30pm on 12 December 2024 at [McDonalds].
3.That the Application in an Appeal filed by the mother on 12 December 2024 seeking that the final parenting orders made by [the primary judge] on 12 December 2024 be stayed pending determination of the Appeal, is hereby dismissed.
(Emphasis added to Order 3)
Having pronounced the final parenting orders to determine the cause of action and exhaust jurisdiction early on 12 December 2024, in the absence of any stay application brought before her Honour, it is quite unclear how the primary judge then concluded jurisdiction existed to make the supplementary orders.
Stay applications must be filed in the registry where the appealed orders were made and be determined by the primary judge when possible (s 38(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”); r 13.12(3) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), but the Court record does not reveal any stay application being filed within the original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) at any registry at any time on 12 December 2024.
However, on the afternoon of 12 December 2024, the mother did file a stay application in the form of an Application in an Appeal within the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1), which was listed for hearing and determination by this Court several days ahead on Wednesday 18 December 2024. The supplementary orders purport to dispose of that stay application because, allowing for supplementary Orders 1 and 2 pushing back the time for the mother’s delivery of the children to the father on 12 December 2024 by several hours, supplementary Order 3 otherwise dismisses the application.
The supplementary orders are curious for two reasons: first, the Division 2 judge had neither jurisdiction nor power to hear and determine an application filed in the appellate jurisdiction of Division 1; and secondly, the primary judge told the mother’s counsel earlier that morning her Honour had no time to entertain any stay application until early 2025, which was why the mother filed the stay application in Division 1.
The supplementary orders are defective for the first reason and should be set aside, as they would otherwise remain efficacious whilst they remain on the Court record (s 138 of the FCFCA Act).
The application now requiring determination is the Amended Application in an Appeal filed by the mother on 16 December 2024. It seeks relief in two respects: first, the stay of the appealed orders; and secondly the expedition of the appeal hearing.
In support of the application, the mother relies upon her affidavit filed on 16 December 2024 and the affidavit of her solicitor filed on 12 December 2024.
By a Response filed on 17 December 2024, the father opposed both the stay and the expedition applications and relied upon the affidavits of himself and his solicitor, also filed on 17 December 2024.
Legal principles – stay of appealed orders
The power of the appeal court to stay the orders the subject of the appeal is found in s 38(1)(b) of the FCFCA Act.
The discretion to stay the operation of appealed 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 the litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered 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). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685).
Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (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]). In relation to the proposed stay of appealed parenting orders, the welfare of the children is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. The Court should also consider whether the children’s present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.
Disposition of the stay application
The substantive parenting orders which are the subject of the appeal can be stayed. The question is whether they should be.
The mother deposed to having complied with the appealed orders and the supplementary orders by delivering the children to the father at 8.30 pm on 12 December 2024.
The object of the appeal is the mother’s recovery of the children from the father’s residential care, so the denial of the stay application will not render her appeal nugatory. The mother can be restored to her role as the children’s primary carer without difficulty if the appeal succeeds.
It may be accepted for present purposes the mother’s appeal is bona fides, but it does not patently evince the promising prospects for which she contended, particularly when this Court is obliged to strongly assume the discretionary judgment is correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627).
What were originally Grounds 4 and 5 in the Notice of Appeal filed on 12 December 2024 have now been intentionally struck through in the Amended Notice of Appeal filed on 16 December 2024. The amended grounds of appeal now complain of:
(a)apprehended bias (Grounds 1 and 2), but the mother did not appeal from the dismissal of her disqualification application on 15 May 2024, which application was made while the trial was adjourned part-heard, and the time to appeal from that dismissal order has long since expired (r 13.03(2)(a) of the Rules);
(b)the denial of procedural fairness (Ground 3), many of the particulars of which seem to relate to the conduct of the trial during its earlier stages in April and May 2024, noting that the trial continued for another 10 days in July and September 2024, leaving plenty of time to air grievances about and to rectify any procedural unfairness;
(c)errors of law (Ground 6), which complaints seem confined to the manner in which her Honour declined to find the father had sexually abused the mother and declined to find he posed a risk of harm to the children;
(d)errors of fact (Grounds 7(a) and 8), which complaints relate to the findings the mother posed a risk of harm to the children, but the father did not;
(e)discretionary errors (Grounds 7(b), 7(c), 7(d), 9 and 11); and
(f)the judgment being wholly unreasonable (Ground 10), though the result was consistent with the proposal of the ICL and apparently not inconsistent with expert evidence.
That is not to say the appeal has no reasonable prospects – only that there is nothing to presently suggest it will likely succeed.
Neither party will be personally prejudiced by the refusal of the stay application.
The mother claims the refusal of the stay application will be prejudicial to the children because it is not in their best interests to remain in the primary care of the father, but that submission is just the embodiment of her bare belief, contrary to the cases advanced by the father and the Independent Children’s Lawyer. The mother’s belief stems from an underlying belief that she is better equipped to cater to the children’s medical and emotional needs. That her belief about detriment to the children is genuine is not objective proof of the fact.
The primary judge contrarily found the children’s best interests were promoted by instead living with the father, which finding must be treated as binding until shown to be wrong upon the substantive hearing of the appeal. Her Honour found the children were at risk of harm in the mother’s care, so staying the appealed orders to ensure the children’s temporary return to the mother’s care would be profoundly incongruent with the primary judge’s findings.
Recognising that residential changes for the children should be minimised, the stay of the appealed orders would be repugnant to that objective by requiring the children to now return to the mother’s residential care. If the stay is granted, the children return to the mother, and her appeal ultimately fails, there will be another residential change when the children revert to the father’s residence. If the stay is refused, the children remain with the father, and the appeal succeeds, only one change of residence back to the mother from the father will be required.
On balance, the stay application is dismissed.
Expedition of the appeal
The Rules prescribe time periods for the orderly conduct of appeals (rr 13.03, 13.05, 13.08, 13.09 and 13.14), though provision is made for time periods to be extended or shortened as necessary (r 15.06).
In the ordinary course of this Court acquitting its business with due despatch, the appeal would likely be heard within the first few months of 2025. It is doubtful the hearing would be fixed any later than in April 2025 and more likely in March 2025. The parties were mutually satisfied with the appeal being heard with that timeliness and so the expedition application was not pursued.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 19 December 2024
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