REDMOND & STOLZ (STAY APPEAL)
[2015] FamCAFC 116
•19 June 2015
FAMILY COURT OF AUSTRALIA
| REDMOND & STOLZ (STAY APPEAL) | [2015] FamCAFC 116 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father seeks an adjournment of the hearing – Basis for application his mental health and desire to obtain legal advice – Where the Full Court was specially convened for the urgent hearing of the matter – Where the application is made in an attempt to frustrate the Court’s process – Application refused. FAMILY LAW – APPEAL – CHILDREN – Appeal from refusal of a stay – Where previous orders were made that permit the child to travel with the mother outside Australia and restrain the father from acting to cause the Australian Federal Police to place the child’s name on the family law watch list, pursuant to s 68B(2) of the Family Law Act 1975 (Cth) – Where the father appealed this decision and that appeal has been heard and dismissed by the Full Court of the Family Court of Australia – Where the father applied for a stay of the order restraining him from contacting the Australian Federal Police – Where that stay application was refused by the primary judge pending determination of the substantive appeal – Where the father appeals the decision to refuse the application for a stay of that order – Where the mother and the Independent Children’s Lawyer oppose the appeal – Where the father conceded the appeal was intended to frustrate previous orders – Where the primary judge properly considered the principles governing a stay application pending appeal per Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 – Where there is no merit in the appeal and it is vexatious – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father made an oral application for a stay pending a special leave application to the High Court of Australia – Where there is little merit in the father’s special leave application – Where there is no question of law or public importance per Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 – Application refused. FAMILY LAW – APPEAL – COSTS – The vexatious and unmeritorious nature of the appeal warrants an order that the father pay the mother’s costs on an indemnity basis. |
| Family Law Act 1975 (Cth) – ss 65X, 65Z, 121 Judiciary Act 1903 (Cth) – s 35A |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 68 Kohan and Kohan (1993) FLC 92-340 |
| APPELLANT: | Mr Redmond |
| RESPONDENT: | Ms Stolz |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 4493 | of | 2011 |
| APPEAL NUMBER: | NA | 41 | of | 2015 |
| DATE DELIVERED: | 19 June 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ryan and Kent JJ |
| HEARING DATE: | 18 June 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 May 2015 |
| LOWER COURT MNC: | [2015] FamCA 401 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
Orders
The appellant father have leave to file an application in an appeal and an affidavit in support of that application.
The respondent mother have leave to file an affidavit in response to the application in an appeal.
The application in an appeal be dismissed.
The appeal filed 15 June 2015 be dismissed.
The appellant father’s oral application that this Court grant a stay of Order 9 made by Forrest J on 19 May 2015 pending the determination of the appellant father’s application for special leave to appeal to the High Court of Australia filed on 17 June 2015 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to this appeal to be agreed or assessed on an indemnity basis.
The respondent mother and the Independent Children’s Lawyer be permitted to publish these orders and the reasons for judgment to the Australian Federal Police, the relevant airline carrier, the relevant airport authority and any person necessary, so as to ensure the travel of the respondent mother and the child, E born … 2005, in terms of the order made by Forrest J on 19 May 2015 allowing departure from Australia on 21 June 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Stolz (Stay Appeal) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: NA 41 of 2015
File Number: BRC 4493 of 2011
| Mr Redmond |
Appellant
And
| Ms Stolz |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 19 May 2015 Forrest J made orders including an order permitting Ms Stolz, the mother of E born IN 2005, to take E overseas for a short holiday (15 days) between departure on 21 June 2015 and return on 5 July 2015; as well as other interim orders conveniently described as consequential orders.
Mr Redmond, the father of E, had opposed all of those orders at the hearing (on 11 May 2015) and on 20 May 2015, the day following the orders being made, filed a Notice of Appeal against those orders (“the substantive appeal”).
In the face of an appeal by the father against all of the orders made on 19 May 2015, including an order permitting the subject travel to commence on 21 June 2015, urgent and special arrangements were made to convene a Full Court to accommodate the hearing and determination of the substantive appeal on 12 June 2015. Directions were made by the Appeals Registrar in advance of that date to facilitate the hearing of the appeal proceeding on that day.
On 12 June 2015 the Full Court delivered reasons for dismissing the father’s Application in an Appeal seeking, inter alia, an adjournment of the hearing of that appeal for many months. Further, the Full Court also delivered ex tempore reasons for dismissing the substantive appeal.
Without repeating them here, we adopt both of those ex tempore judgments delivered by that Full Court on 12 June 2015 as providing both important context to this current appeal as well as matters relevant to our determination of it.
One of the consequential orders made by Forrest J on 19 May 2015 was an interim injunction, Order 9, in these terms:
(9)Pursuant to s 68B(2) of the Family Law Act 1975 (Cth), until further order, the father is restrained and an injunction is hereby granted restraining him or any person acting as his agent from taking any steps to communicate with the Australian Federal Police so as to cause them to put the name of the child, [E] born … 2005, on the Family Law Watch List.
Each of the ex tempore judgments of the Full Court delivered on 12 June 2015 contain references to Order 9; its purpose; the context in which that order was made; and the father’s challenges to it; and again we adopt, without unnecessary repetition of them, those references in those judgments as part of these reasons.
This appeal concerns the father’s challenge to a further order made by Forrest J dismissing the father’s application for a stay of Order 9 pending determination of the substantive appeal. On 28 May 2015 Forrest J made an order in these terms:
(1)That the father’s application for a stay of Order 9 of the Orders of Justice Forrest dated 19 May 2015 pending the hearing of his appeal against those Orders is dismissed.
This appeal arises in circumstances where, the Full Court having made orders on 12 June 2015 dismissing the substantive appeal against the orders made on 19 May 2015, the father filed on 15 June 2015, three days after the dismissal by the Full Court of the substantive appeal, a Notice of Appeal against the above order.
That is, subsequent to the Full Court dismissing, on 12 June 2015, the substantive appeal, the father filed a Notice of Appeal against Forrest J’s order dismissing his application for a stay of Order 9, pending determination of the substantive appeal.
Again, a Full Court has been specially convened to determine this appeal in circumstances where the ordered travel is to commence three days hence, on 21 June 2015.
Prima facie, the substantive appeal having been heard, determined and dismissed on 12 June 2015, an appeal against the refusal of a stay of Order 9 pending that determination, has clearly been rendered nugatory. The appeal is opposed by the mother and the Independent Children’s Lawyer (“the ICL”) who independently represents E’s interests, and both of them contend this appeal is nugatory.
However, on 17 June 2015 the father filed an Application for Special Leave to Appeal to the High Court of Australia against the Full Court’s determinations on 12 June 2015.
We therefore sought to clarify with the father on the hearing of this appeal his purpose in prosecuting this appeal against the dismissal of his application for a stay of Order 9 pending determination of an appeal which has already been determined.
Importantly, we identified with the father two contrasting and conflictual reasons or purposes the father had for pursuing this appeal.
One purpose, in summary and paraphrased form, was that the father acknowledged that he had not filed this appeal, nor was he prosecuting it, for the usual purpose of having this Court adjudicate upon or determine the appeal. Rather, his purpose was an ulterior one. The father contended before us that if this appeal was pending the Australian Federal Police (“AFP”) might be activated to prevent what the father described as a “breach” by the mother of s 65Z of the Family Law Act 1975 (Cth) (“the Act”), by departing or attempting to depart Australia with E three days hence, on 21 June 2015.
The father made it clear that he had in mind the AFP being motivated so as to prevent the mother’s departure with E as ordered, which is only in three days’ time on 21 June 2015, or the AFP being interested in launching a criminal prosecution of the mother for the alleged breach of s 65Z referred to.
As the mother emphasised in argument, the father addressed his position in terms of the mother being guilty of criminal conduct and facing potential prosecution for that conduct if she proceeded with the departure on 21 June 2015.
We consider that in circumstances where this Court has made an order permitting the travel, this not only highlights the vexatious nature of this appeal and that it is in fact being pursued is an abuse of process; it demonstrates why the father’s application in an appeal to seek, inter alia, an adjournment of the hearing of the appeal, ought be rejected because it shares those unfortunate features.
The other reason or purpose we identified with the father was whether, by this appeal, the father was actually seeking that this Full Court order a stay of Order 9 pending the determination of his Application for Special Leave to Appeal to the High Court of Australia.
As the father adopted this suggestion from the Bench as one of his purposes we will deal with it.
In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 at 684 Brennan J (as he then was) said as follows:
When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court — the court in which the matter is pending and which is familiar with the matter — that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.
At page 685 Brennan J observed the following factors as material to the exercise of the discretion to stay:
… In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
We would commence with the observation that there cannot be any doubt that Forrest J properly considered the general principles governing the determination of a stay pending appeal, by reference to Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton”). In the context of this appeal, two paragraphs of Forrest J’s reasons in refusing to grant the stay should be repeated here:
11.Relevantly, the mother submits that the father’s appeal lacks bona fides. She points to the fact that the father has filed eighty-six applications against her in various courts in the space of just the last four years and, most particularly, she points out that he appeals or reviews every decision made against him. She also points out that a very large number of the applications commenced by the father have been ultimately dismissed by the courts. The mother also submits that the father makes the applications and lodges appeals as a means of harassing and intimidating the mother and to cause her inconvenience and financial loss.
12.I am satisfied that there is some merit in that submission. I said as much in my reasons given in support of the Orders that included the Order now sought to be stayed. I observed in those reasons for judgment that the father seemed intent on using the mechanism of appeal and notice to the Australian Federal Police, based on what I, at least, consider is a misinterpretation of s 65Z of the Family Law Act, to unreasonably prevent the mother from taking [E] on a short overseas holiday during her winter school holidays.
Nothing to which the father directed us in submissions persuaded us that in refusing a stay of Order 9 Forrest J’s discretion miscarried.
We observe at this point that whilst the father is self-representing he is a qualified lawyer and references are made in the judgments of the Full Court of 12 June 2015 as to the extraordinary number of legal proceedings the father has prosecuted in his own right in relatively recent times. Moreover, there is reference in the material to the father having unsuccessfully applied for a grant of special leave to appeal to the High Court on four occasions in recent times, so it may be inferred that the principles are familiar to him.
Section 35A of the Judiciary Act 1903 (Cth) sets out the criteria for the High Court granting special leave to appeal to that court in the following terms:
In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:
(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
(i) that is of public importance, whether because of its general application or otherwise; or
(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.
We sought to have the father identify for us how it could be said there was any reasonable prospect of the father demonstrating a case for the grant of special leave.
Nothing to which the father referred in argument to us demonstrated in any way that the subject proceedings involve a question of law of public importance; or any need of the High Court to resolve differences of opinions between different courts or within the one court as to the state of the law; or otherwise that it would be in the interests of the administration of justice, either generally or in this case, for the High Court to give consideration to the judgments of the Full Court on 12 June 2015. Having regard to the “grounds” set out in the father’s Application for Special Leave to Appeal to the High Court of Australia, we are likewise unpersuaded that there is any question of public importance involved in these proceedings nor that there is any reasonable, let alone significant, prospects of success as regards any of the stated grounds.
Obviously, on the question of loss to the respondent mother, there would be significant disruption to the mother and to E if the trip now planned to commence in three days hence were to be denied to them. The mother highlighted to us, and we accept, that in this instance the father is primarily motivated to cause her as much disruption and stress as he can by the use (and abuse) of legal proceedings such as these.
We are therefore not persuaded that there would be any legitimate basis for this Court to grant a stay of Order 9 pending the determination of the father’s Application for Special Leave to Appeal to the High Court of Australia.
Conclusion
We are satisfied that having regard to the father’s admission as to the first of his purposes for filing and prosecuting this appeal as we have discussed, it would only have served the father’s mischievous design, at significant prejudice to the mother, to have acceded to his Application in an Appeal for, inter alia, an adjournment of the hearing of this appeal. The Application in an Appeal which we granted the father leave to file will be dismissed.
The appeal itself should be dismissed as having no merit and as having been rendered nugatory.
To the extent that the father seeks that this Court grant a stay of Order 9 pending the hearing and determination of his Application for Special Leave to Appeal to the High Court of Australia from the determinations of the Full Court on 12 June 2015:
a)It has not been demonstrated that a stay of Order 9 is necessary to preserve the subject-matter of the litigation;
b)The father has not demonstrated any significant prospects of success as regards his grounds for special leave;
c)The father does not demonstrate a substantial prospect that special leave will be granted by the High Court;
d)The grant of a stay would cause loss to the mother;
e)The balance of convenience lies heavily against the grant of a stay.
The father’s oral application for a stay is dismissed.
We accept the mother’s submissions, in support of her application for indemnity costs, that this appeal is an abuse of the Court’s processes.
We are satisfied that the father ought be ordered to pay the mother’s costs of and incidental to this appeal and the application in the appeal on an indemnity basis, Kohan and Kohan (1993) FLC 92-340.
We observe in passing that the father did not seek to make any submissions in opposition to such an order in the event that this was the outcome we determined.
Likewise, the father raised no opposition, in the event of this outcome, to an order pursuant to s 121 of the Act allowing the mother and the ICL to publish these orders and reasons in terms the same as the order to this effect made by the Full Court on 12 June 2015 and we will so order.
For completeness, having regard to that permission to publish, we would observe that unless and until the father obtains from the High Court a grant of special leave, it could not be said that an appeal is pending within the meaning of s 65X(2) of the Act.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Kent JJ) delivered on 19 June 2015.
Associate:
Date: 19 June 2015
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