Sarti & Anor and Sarti (No 2)
[2020] FamCAFC 261
•21 October 2020
FAMILY COURT OF AUSTRALIA
| SARTI AND ANOR & SARTI (NO. 2) | [2020] FamCAFC 261 |
| APPEAL – APPLICATION IN AN APPEAL – Application for a stay of a number of orders made by the primary judge sitting in parenting proceedings – Where the primary judge refused to grant a stay – Whether a judge of the Appeal Division of the Family Court of Australia has the power to hear an application for a stay of orders –A refusal to grant a stay would not render every aspect of the appeal nugatory – Application dismissed. |
| Family Law Act 1975 (Cth) ss 94(2D)(d), 94AAA(10)(d) Family Law Rules 2004 (Cth) rr 1.04, 1.12, 22.11 |
| Cantrell & North (2019) FLC 93-931; [2019] FamCAFC 127 Sarti and Anor & Sarti [2020] FamCAFC 253 |
| FIRST APPLICANT: | Mr B Sarti |
| SECOND APPLICANT: | Ms Sarti |
| RESPONDENT: | Mr Sarti |
| FILE NUMBER: | CAC | 1154 | of | 2020 |
| FIRST APPEAL NUMBER: | EAA | 113 | of | 2020 |
| SECOND APPEAL NUMBER: | EAA | 137 | of | 2020 |
| DATE DELIVERED: | 21 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | By written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 31 July 2020 17 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 2101 [2020] FCCA 2595 |
REPRESENTATION
| COUNSEL FOR THE FIRST AND SECOND APPLICANTS: | Ms Tabbernor |
| SOLICITOR FOR THE FIRST AND SECOND APPLICANTS: | Farrar Gesini Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr Clynes |
| SOLICITOR FOR THE RESPONDENT: | Kennedy & Cooke |
Orders
That pursuant to r 1.12(2) of the Family Law Rules 2004 (Cth), r 22.11(3) be dispensed with.
That the application for a stay be dismissed.
That the costs of the application for a stay be costs in the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sarti and Anor & Sarti (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 113 of 2020; EAA 137 of 2020
File Number: CAC 1154 of 2020
| Mr B Sarti |
First Applicant
And
| Ms Sarti |
Second Applicant
And
| Mr Sarti |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr B Sarti (“the father”) and Ms Sarti (“the mother”) (together “the parents”) to stay interim parenting orders made on 31 July 2020 in favour of Mr Sarti (“the grandfather”). The orders provide for the grandfather to spend time with the parents’ son, X (“the child”), who is five years of age. The parents have appealed from those orders. They have also appealed from orders dated 17 September 2020, dismissing their application to stay the orders.
The parents successfully applied to consolidate the appeals and for an expedited hearing. The appeals are listed for hearing before me on 30 November 2020. As part of those applications, the parents sought a further stay of the 31 July 2020 orders pending the appeal hearing. The grandfather supported consolidation of the appeals and an expedited hearing. However, he opposes a stay and, in circumstances where the parents’ applications had been listed urgently, the grandfather was given a short adjournment so as to answer the case for a stay raised against him.
With the parties’ agreement, directions were made on 8 October 2020 as to filing further documents and, for the application for a stay to be determined in chambers. The background to the appeals and those directions is set out in my reasons for judgment published the same day and these reasons should be read in conjunction with those earlier reasons (Sarti and Anor & Sarti [2020] FamCAFC 253).
In support of the grandfather’s opposition to this application for a stay, it is submitted that the effect of r 22.11(3) of the Family Law Rules 2004 (Cth) (“the Rules”) is that I do not have the power or jurisdiction to grant the relief. The point being, that the rule requires an application for a stay to be made to the judge who made the order under appeal. The rationale for the rule is to ensure that the judge most familiar with the case determines issues arising from the decision. However, like other rules, compliance with the rules may be dispensed with (r 1.12(2)). Provided I have the necessary power to grant a stay, and as the main purpose of the Rules (r 1.04) would be achieved if r 22.11(3) is dispensed with, this is the appropriate course.
The parents rely on a decision by Aldridge J where his Honour considered whether a single judge exercising power pursuant to s 94(2D)(d) of the Family Law Act 1975 (Cth) (“the Act”) may, prior to an appeal being filed, grant a stay (Cantrell & North (2019) FLC 93-931) (“Cantrell”). Section 94(2D)(d) is identical to s 94AAA(10)(d), which is the provision which governs appeals to the Family Court from the Federal Circuit Court.
I respectfully agree with his Honour’s decision in Cantrell that:
22.….[A] court charged with hearing and determining appeals has the incidental power to preserve the subject matter of the appeal, whether by a stay or by way of an injunction. It was explained by McColl JA in Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 as follows:
43.The power of this court to grant a stay of proceedings over a court over which it exercises supervisory jurisdiction pending appeal is incidental to the existence of a right of appeal to the court and derives from the inherent power of the court.
23.Although this Court does not have inherent power, no violence is done to her Honour’s reasons if the word “inherent” is replaced with “implied” from the right of appeal itself.
24.The rationale behind this was explained in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 (“Alexander”) at 692 (the rationale remains the same despite the references to the rules and statutory provisions in that discussion). A stay may be necessary to preserve the subject matter of an appeal and thereby give effect to the right of appeal which otherwise might be lost.
25.At least in the case where no stay has been granted by the trial judge, a stay may be granted by a single judge pursuant to s 94(2D)(d) of the Family Law Act because a stay is a matter of practice (Alexander at 692).
Turning then to the parents’ application, it is uncontroversial that they are resolutely opposed to their son resuming contact with his grandfather. The speed, content and determination within which they have prosecuted their appeals amply demonstrates their bona fides. The more difficult question is whether, as the parents contend, a refusal to grant a stay would render their appeals nugatory and how that factor should be balanced against the decision of the primary judge that it is in the best interests of the child to have, albeit limited, contact with the grandfather.
It is accepted that the parents’ opposition to contact between the child and the grandfather would be defeated if a stay is refused. Furthermore, that consistency in living arrangements is generally advantageous to children and that chaotic arrangements can be disadvantageous. As to the latter, this is a question of degree. In circumstances where the child had reasonably regular contact with the grandfather last year and was excited to see him on 14 June 2020 (affidavit of the grandfather filed 14 October 2020, paragraph 9.5), it is not accepted he would be unsettled if he had short periods with the grandfather between now and the hearing for which the orders provide. Even if the orders are set aside and the visits cease.
The fact that the orders could be set aside and the visits thus cease, demonstrates that a refusal to grant a stay would not render every aspect of the appeal nugatory.
Otherwise, it is one thing to establish that an appeal raises interesting legal questions, and another to demonstrate its prospects of success. Some caution is appropriate in the assessment of the merits of the appeal, and at this stage, all that needs to be said is that there is a presumption in favour of the correctness of the decisions under appeal, the fate of the appeals is uncertain and the parents have not established that the orders will almost certainly be set aside.
The application for a stay will be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 October 2020.
Associate:
Date: 21 October 2020
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