Sacco & Allan (No 3)
[2024] FedCFamC1A 189
•14 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sacco & Allan (No 3) [2024] FedCFamC1A 189
Appeal from: Allan & Sacco (No 2) [2024] FedCFamC1F 15 Appeal number: NAA 31 of 2024 File number: BRC 15354 of 2020 Judgment of: ALDRIDGE J Date of judgment: 14 October 2024 Catchwords: FAMILY LAW – APPEAL – STAY – Application for a stay of Full Court orders pending application for special leave to appeal to the High Court of Australia – Subject order remitted the matter back for rehearing – Applicant asserts the Full Court failed to clarify the law in allowing her appeal – Where remitted rehearing is likely to take place next year – The applicant’s prejudice is preparing for the rehearing – Where it likely the High Court would remit any rehearing to the Full Court or a trial judge – Application dismissed. Cases cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Number of paragraphs: 14 Date of hearing: 14 October 2024 Place: Sydney (via video link) Counsel for the Applicant: Self-represented litigant Counsel for the Respondent: Self-represented litigant The Independent Children’s Lawyer: No appearance ORDERS
NAA 31 of 2024
BRC 15354 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SACCO
Applicant
AND: MR ALLAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 3 October 2024 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Sacco & Allan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
This is an Application in a Proceeding by, oddly enough, the successful appellant who seeks an order staying the order made by the Full Court when it allowed an appeal in a parenting matter.
The parties have one child who was born in 2015. Parenting orders were made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 30 January 2024 after a hearing that spanned four years. The orders made by his Honour provided for the parties to have equal shared parental responsibility for the child who is to live with the applicant and commence spending time with the respondent increasing ultimately to overnight time.
The hearing and the reasons were beset with some difficulties which required the appeal to be allowed. The orders that were made set aside the orders of the primary judge. Order 4 remitted the matter for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge. It is that order, and that order alone that is the subject of the application of special leave to the High Court of Australia.
The matter was remitted for rehearing as opposed to the Full Court re-exercising the discretion itself because more than two years had passed since the last evidence had been adduced in the matter and consequently, it was well out of date. Further evidence would need to be obtained which is likely to be controversial and that, accordingly, is not an exercise for a Full Court.
In her application for special leave, the applicant identifies her proposed ground of appeal as being:
1.The Full Court failed to provide clarity and authority regarding the inconsistencies within the Family Court’s interpretation of the law and legal principles when determining whether the child is at risk of sexual abuse. These inconsistencies resulted in prolonged delays and decisions that further exposed the child and applicant to trauma and harm.
(Annexure 1 of the applicant’s affidavit filed 3 October 2024)
In the event that leave is granted and the appeal is ultimately allowed, the applicant seeks that Order 4, which was the order remitting the matter for rehearing, be set aside and replaced by an order to the following effect:
4.Order 1 of the orders made by the Family Court dated 21 February 2021 is made on a final basis.
(Annexure 1 of the applicant’s affidavit filed 3 October 2024)
Order 1 of the orders dated 21 February 2021 was an interim order providing for the child to live with the mother.
The jurisdiction to grant a stay pending an application for special leave to appeal has been described as one that is exercised only in extraordinary circumstances (see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 68). Ordinarily it is exercised only where it is clear that if a stay was not granted, any appeal to the High Court would be rendered nugatory.
Here, as I understand it, the matter is listed before a judge of the Court for directions tomorrow where it is possible, but not at all certain, that the matter would be fixed for hearing. Any such hearing, if it is fixed tomorrow, is likely to take place next year. It is likely, although it is difficult to be certain, that the application for special leave will be determined by the High Court either late this year or early next year.
The prejudice suffered by the applicant would therefore be preparing for the hearing. If, of course, special leave is granted, the issue of a further stay can then be considered. However, the applicant accepts that a court must conduct a final hearing to determine whether or not the interim orders of 21 February 2021 should be made permanent or not. That is, in effect, a hearing of a parenting trial.
Whilst it is ultimately a matter for the High Court as to whether or not it would embark on such a hearing, that would require the Court to sit and take evidence in a parenting matter which would be entirely unprecedented. Much more likely, even if the appeal is successful, is that any rehearing would be remitted either to the Full Court or to a trial judge.
As I have said, the applicant was successful in her appeal, however she is unsatisfied that the Full Court did not, in its reasons, take the opportunity to clarify the law and to state it along the lines that she says it ought to have been stated. Again, that is a matter for the High Cout as to whether it would wish to do so at the request of a successful appellant, but it does not seem likely or probable to me.
It is notorious that very few applications for special leave are actually successful. The difficulties I have just identified make it harder to accept that the application will be successful.
Taking these matters into account, I am not persuaded that there should be a stay and the Application in an Appeal is dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 16 October 2024
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