Paterson & Hamdy (No 4)
[2023] FedCFamC1F 888
•16 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Paterson & Hamdy (No 4) [2023] FedCFamC1F 888
File number(s): SYC 1229 of 2018 Judgment of: ALDRIDGE J Date of judgment: 16 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant seeks a stay of orders pending the appeal – Delay between Notice of Appeal and application for stay – Futility in staying some orders – Short time until hearing of appeal – Lack of evidence as to necessity of stay – Application dismissed – Costs reserved to appeal hearing Cases cited: Aldridge v Keaton (Stay Application) [2009] FamCAFC 106
Gronow v Gronow (1979) 144 CLR 513
House v the King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 16 October 2023 Place: Sydney Counsel for the Applicant: Mr Duc Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Ms Conte-Mills Solicitor for the Respondent: Chidiac Legal ORDERS
SYC 1229 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PATERSON
Applicant
AND: MS HAMDY
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 4 October 2023 is dismissed.
2.The costs of the Application in a Proceeding 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J
On an Application in a Proceeding filed 4 October 2023, Mr Paterson seeks a stay of orders made by Brasch J on 31 July 2023 in proceedings between him and Ms Hamdy. The orders concern the parties two children; one born in 2005 and one in 2010. The orders provide for the children to live with the respondent who is to have sole parental responsibility for them. Orders were made for the children to have no contact with the applicant and a number of injunctions were made restraining the applicant from approaching the home, school and work of the respondent or the children until the youngest turned 18. Orders were made that permitted the respondent to travel overseas with the children.
A Notice of Appeal was filed on 23 August 2023. Nearly all of the orders made by Brasch J were the subject of appeal with the exception of the orders for the children to live with the respondent and orders in relation to each party being restrained from denigrating the other.
It has to be said that many of the grounds raise questions of weight, which are difficult grounds to make good on appeal having regard to the principles set out in House v The King (1936) 55 CLR 499, Gronow v Gronow (1979) 144 CLR 513 and Norbis v Norbis (1986) 161 CLR 513.
However, there are also grounds directed towards the power to make and the form of the injunctions against the applicant.
A Summary of Argument was filed on 13 October 2023 and, whilst it deals with questions of weight, it focusses largely on what are said to be the difficulties with the injunctions.
The applicant filed an affidavit in support of the application. It is some 48 paragraphs long. Counsel for the applicant identified paragraphs 43 to 48 as being relevant to the application for the stay of the orders. It is unfortunate that the other paragraphs are in the affidavit since there seems to be no point to them.
The appeal is listed for hearing on 21 November 2023, approximately five weeks from now.
The principles that apply to stays have been conveniently summarised in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18].
One of the matters not directly referred to by the court was the relevance of the delay in bringing the application for the stay. As I have said, the Notice of Appeal was filed on 23 August 2023 but the present application was not filed until 4 October 2023. Thus, nearly three months passed from the time the orders came into force until the application was filed, and there now remain only five weeks that the orders will operate until the appeal.
This is a significant factor to take into account in this case not just because stays should be sought promptly, but because the appeal concerns orders that, in all probability, have already been complied with, although a stay is still sought in respect of them. The obvious examples are the orders that permit the respondent to give copies of the orders to the children’s school and extra-curricular activities providers and the orders permitting the respondent to explain the outcome of the proceedings to the children. Although there is no evidence to this effect, it would be highly surprising if they had not occurred at all, so the stay becomes futile in relation to them.
Secondly the delay has this effect. In his affidavit the applicant is concerned about the respondent removing the children from the country prior to the appeal being heard. In paragraph 43 of his affidavit, he said “I verily believe she will leave the country with the children as soon as practicable”. Yet there is no suggestion that the respondent and the children have left Australia in the three months between the making of the orders and today. They seem to have returned to school after the last school holidays, thus suggesting that the view that the respondent would leave as soon as practicable is perhaps not quite correct.
It is true, as counsel for the applicant said, that the respondent could take steps to leave in the next five weeks but given that she has not done so in the three months, that seems less than likely to occur.
These reasons, coupled with the general proposition that stay orders ought to be sought properly, are significant considerations that play into making the orders.
It is for the applicant to persuade the court that there is a proper basis for the stay. One of the matters to which he deposes is as to the injunctions restraining him from approaching places of work, school, et cetera, of the respondent and children. In his affidavit he deposes that these orders do not permit him to enter into the Suburb G Local Government Area, which causes him difficulties because he says that is where his general practitioner and psychologist are located. He also says that he has community connections to the area including a church. His affidavit goes into no further detail than that. He does not depose to having to see his general practitioner or psychologist at any particular time, that there is any need to do so, or, indeed, their particular address.
The orders made by Brasch J do not prevent the applicant from entering the Suburb G Local Government Area. Rather, they restrain him from approaching within 200 metres of a number of specified places. Given that he says he does not know where the respondent lives, it is difficult for him to come to a conclusion that the orders do not allow him to enter the Suburb G Local Government Area.
His counsel informed me from the bar table that the applicant believes the respondent lives in that area because he has seen her at restaurants twice there. I am not persuaded that the orders do in fact restrain the applicant from entering the Suburb G Local Government Area, and even if they do, that will cause him any inconvenience let alone difficulties within the next five weeks.
I place little weight on the fact that the order for sole parental responsibility means that the applicant is not entitled to receive information about the children. It is extremely unlikely that there will be a life altering event involving the children in the next five weeks.
A judgment is presumed to be correct until an appeal court comes to a different view. I therefore have to proceed on the basis that there was a proper basis for restraining the applicant from approaching the respondent or the children. In the absence of a good reason as to why those orders should be lifted for the next five weeks, it seems that it is appropriate that the protection remain in place. It may be that the orders will be set aside or altered on appeal, but the mere fact that there is a possibility of success on appeal, in all of the circumstances, is insufficient to persuade me that they ought not remain in place. The children will remain in the care of the respondent whatever the outcome of this application.
It was not suggested that the application was not brought bona fide or that the appeal does not lack reasonable prospects of success. However, taking those matters into account, the onus remains on the applicant to persuade the court that there should be a stay.
I take into account the fact that the applicant genuinely believes that he should have a relationship with the younger child and that the orders therefore are quite wrong, but his subjective belief is insufficient to demonstrate error on the part of the trial judge.
Given what I perceive to be the futility of staying a number of the orders, the delay in bringing the application, the very short time that will elapse between today and the hearing of the appeal, and the lack of evidence as to why a stay is necessary, I am not persuaded that the orders should be stayed. The application is dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 19 October 2023
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