Navickas & Fried

The appeal arose from final parenting orders made by the Federal Circuit and Family Court of Australia (Division 2) in proceedings between Ms Navickas (the appellant) and Mr Fried (the respondent) under Part VII of the Family Law Act 1975 (Cth). The appeal was heard in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction. Ms Navickas sought a stay of the final parenting orders pending the determination of her appeal, and to expedite the hearing of the appeal. The primary judge dismissed her application in an appeal to stay the orders and her application to expedite the appeal.

The court was required to determine whether the primary judge had jurisdiction to make the supplementary orders dismissing the mother’s Application in an Appeal to stay the final orders. The court also considered whether the refusal of the stay application would be detrimental to the children, whether the mother had pursued her expedition application, and whether the parties were mutually satisfied with the anticipated timeline for hearing the appeal. The court found that the primary judge did not have jurisdiction or power to make the supplementary orders, as stay applications must be filed in the registry where the appealed orders were made and be determined by the primary judge when possible. The court also found that neither party would be personally prejudiced by the refusal of the stay application, and that the mother’s belief that the refusal would be detrimental to the children was not objective proof of the fact. The court further found that the mother had not pursued her expedition application, and that the parties were mutually satisfied if the appeal was heard by April 2025 as anticipated.

The court set aside the supplementary orders made by the primary judge, dismissed the mother’s Amended Application in an Appeal filed on 16 December 2024, and dismissed the respondent’s Response to an Application in an Appeal filed on 17 December 2024. The court ordered that the costs of the interlocutory dispute would be costs in the appeal, with the consent of the parties and the Independent Children’s Lawyer. The form of the order was subject to the entry in the Court’s records, and the court may review the reasons for judgment to remedy minor typographical or grammatical errors, or to record a variation to the order.