Scafides & Petrakou (No 5)
[2023] FedCFamC1F 88
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scafides & Petrakou (No 5) [2023] FedCFamC1F 88
File number: SYC 1814 of 2020 Judgment of: CAMPTON J Date of judgment: 20 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Leave to withdraw an Application in a Proceeding seeking a stay of orders – Where on the first day of a five-day trial event the mother sought to adjourn or vacate the trial – Where the mother’s application to adjourn the trial was dismissed – Where the mother subsequently sought to appeal from the refusal of her application to adjourn or vacate the trial – Appeal from orders refusing to adjourn or vacate a trial incompetent by operation of s 26 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Leave to withdraw permitted. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26 Cases cited: Scafides & Petrakou (No 3) [2023] FedCFamC1F 76 Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 20 February 2023 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Sexton Family Law Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: O’Sullivan Legal Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
SYC 1814 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCAFIDES
Applicant
AND: MS PETRAKOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
20 February 2023
THE COURT ORDERS THAT:
1.The mother’s Application in a Proceeding filed 20 February 2023 seeking a stay of Order 1 made 16 February 2023 and the order made today refusing the application of an adjournment be withdrawn and dismissed.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).
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 the pseudonym Scafides & Petrakou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
This morning, being the first day of the five-day final hearing of the parties’ parenting and property dispute, the mother was granted leave to make an oral application to vacate the trial. For reasons delivered, that application was dismissed (see Scafides & Petrakou (No 3) [2023] FedCFamC1F 76).
The mother by way of her senior counsel, in a respectful and appropriate way, confirmed that she would seek leave to appeal and to appeal if leave was granted from the dismissal of her oral application to vacate and adjourn the trial. Over the course of this morning, I am told and accept that the mother caused a Notice of Appeal to be filed with the Appeals Registry. She has filed today in support of that Notice of Appeal an Application in a Proceeding seeking the following:
1. That this Application be heard immediately.
2. That short service of this Application to the parties (ICL and Applicant Father) be allowed.
3. That the requirement for an affidavit in support of this Application pursuant to Rule 5.04 of the Federal Circuit and Family Court (Family Law) Rules 2021 be dispensed with.
4. That short oral submissions be allowed.
5. That the Order 1 of the Orders of 16 February 2023 be stayed until further Order.
6. That the Orders of 20 February 2023 refusing the application for adjournment made by the [mother] be stayed until further Order.
7. That the final hearing listed for five days between 20 February 2023 and 24 February 2023 be adjourned until after the updated report of [Dr G] pursuant to the immediately following Order, is received by the parties.
8. That the Court appointed expert, [Dr G], is to prepare an updating report to her report of 26 April 2021 with the costs of such report to be shared equally between the parties, and for the purposes of this updating report is to enquire into matters relating to the care and welfare of [X] born […] 2016, with such report to address;
a. Whether [X] is at risk of physical, emotional or sexual abuse, family violence and/or neglect when in the care of each party;
b. Any views expressed by [X] and any factors (such as [X’s] maturity or level of understanding) that the expert thinks are relevant to the weight to be given to [X’s] views;
c. The likely effect of any changes in [X’s] circumstances, including the likely effect on [X] of any separation from each of the parties;
d. The capacity of each party to provide for the needs of [X], including emotional and intellectual needs;
e.The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of [X] and of each of the parties, and any other characteristics of [X] that the expert thinks are relevant;
f.The attitude to [X], and to the responsibilities of parenthood, demonstrated by each of the parties;
g.Any family violence involving [X] or a member of [X’s] family;
h.The emotional and mental health of each party insofar as it relates to the issues of with whom [X] should live and what time [X] should spend with each party;
i.The nature of the relationship of [X] with each of the parties and other persons;
j.The effect on [X] of any family violence to which [X] may have been exposed to;
k.The nature of the parties’ relationship and the impact of this relationship on [X]; and
l.Any other fact or circumstance that the expert thinks is relevant.
It was foreshadowed that the application seeking a stay of the orders dismissing the mother’s application for an adjournment of the trial would be the subject of submissions after morning tea. The mother has now sought leave to withdraw her Application in a Proceeding. She has reserved her position in relation to her Notice of Appeal.
It is implicitly accepted by the mother that her Notice of Appeal would be determined pursuant to the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). The mother’s appeal from my determination made this morning would appear to be inconsistent with the reasoning identified by the Full Court in Hernandez & Cranage (No 2) [2022] FedCFamC1A 103 (“Hernandez & Cranage”), that is, to devise an appeal from which the provisions of s 26(2) of the FCFCOA Act applies.
Section 26 of the FCFCOA is cast in mandatory language, as follows:
(2)An appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:
…
(b) a decision to do, or not to do, any of the following:
(i) join or remove a party;
(ii) adjourn or expedite a hearing;
(iii) vacate a hearing date.
(Emphasis added)
Consistent with the Full Court’s determination in Hernandez & Cranage the appeal purportedly brought by the mother is prohibited by way of operation of s 26(b)(ii) and/or (iii) of the FCFCOA Act. In the circumstances it would be dismissed as being incompetent at law.
The mother has not been asked to make a concession as to the competency of her appeal as attempted to be lodged today. She has quite properly sought leave to discontinue her Application in a Proceeding filed this morning. Leave for the mother to so discontinue and withdraw will be granted.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 22 February 2023
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