Secretary, Department of Families, Fairness and Housing & Whiting (No 2)

[2025] FedCFamC1F 25

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Secretary, Department of Families, Fairness and Housing & Whiting (No 2) [2025] FedCFamC1F 25

File number(s):

MLC 2577 of 2024

Judgment of:

CARTER J

Date of judgment:

15 January 2025

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant mother seeks urgent orders to stay the enforcement of final orders made in the matter – Where the applicant mother failed to attend the hearing of her stay application – Where the applicant mother has not yet filed an Application for Special Leave in the High Court nor a Notice of Appeal in this court – Application dismissed.

Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13

Hague Convention on the Civil Aspects of International Child Abduction 1980

Division:

Division 1 First Instance

Number of paragraphs:

12

Date of hearing:

15 January 2025

Place:

Melbourne

Counsel for the Applicant:

Litigant in person

Solicitor for the Respondent:

Ms Kanapathy

ORDERS

MLC 2577 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WHITING

Applicant

AND:

SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Respondent

ORDER MADE BY:	CARTER J
DATE OF ORDER:	15 JANUARY 2025

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 13 January 2025 be dismissed.

2.The applicant mother notify the State Central Authority by 4.00 pm this day, 15 January 2025, whether or not she will accompany the child X born in 2021 to Belgium.

AND THE COURT NOTES THAT:

A.In the event that the applicant mother fails to notify the State Central Authority as to her intention to accompany the child to Belgium by 4.00 pm this day, the State Central Authority will assume that the applicant mother will not accompany the child.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CARTER J

1. This is a stay application brought by the mother filed on 13 January 2025. The mother was the respondent in the substantive proceedings but is the applicant with respect to the application now before the Court. I will refer to the mother as the applicant in this judgment. Briefly, the background to the application is as follows:

   (a)there is one child who is the subject of proceedings.  The applicant, who is the child’s mother, had brought the child to Australia in mid-2023;

   (b)the father, who resided in Belgium, sought an order for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980;

   (c)that application was successful and orders were made by this Court on 19 July 2024 for the child’s return to Belgium;

   (d)the applicant appealed that order and that appeal was dismissed by the Full Court on 18 December 2024; and

   (e)the State Central Authority then sought enforcement of the return order. That application was heard and determined on 8 January 2025 and orders were made at that time for the enforcement of the return order.

2. On 13 January 2025, the applicant communicated with the Court and filed a stay application that is before the Court today, together with an affidavit in support. She included with those documents a cover letter in which she said it was urgent for the stay application to be heard. She also wrote in that letter that she would be filing an appeal to the High Court before 15 January 2025.

3. In her Application in a Proceeding the applicant has not appropriately articulated the orders sought. On the cover sheet she has noted she seeks to stay the enforcement of orders made on 8 January 2025. In the document where the applicant is directed to state the orders sought, she has set out a narrative commencing with the words “To stay the enforcement of orders made on 8 January 2025 as well as the initial orders”.

4. Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the applicant has 28 days to file a Notice of Appeal in relation to the enforcement decision. That time will expire on 5 February 2025. If she wishes to file an application after that date, she requires leave. In relation to any appeal she might file against the determination of the Full Court to dismiss her appeal, with such application to be heard and determined by the High Court, she has 28 days within which to make an application for special leave without having to seek an extension of time. That 28 days expires today.

5. The applicant has filed neither a Notice of Appeal with respect to the enforcement orders, nor has she advised the Court that she has in fact made an application for special leave to the High Court as she alluded to wanting to do in her letter that accompanied the Application in a Proceeding.

6. Moreover, the applicant is not present at Court today to agitate for the orders sought in her Application in a Proceeding. She was advised of the urgent listing yesterday afternoon and later provided with a Microsoft Teams link for the hearing by email at 5.09 pm yesterday.

7. A representative from the State Central Authority has been able to attend today.

8. I am satisfied that the applicant was well aware that the matter was to be listed this morning. She had the ability to attend as she was provided with a Teams link.  However, she has not joined the link.  Rather, she communicated with my chambers by email late last night saying it was not possible for her to attend. I note that this is her application which the Court has, as requested by her, listed urgently. It is in my view insufficient for her to send an email to chambers and say that she cannot attend.  I further note that in that email sent last night, the applicant did not advise that she had filed an application for special leave to appeal to the High Court.

9. Whilst not present at Court to agitate her application, it is evident from the documents filed that it is the applicant’s contention that the stay of the enforcement order should be granted, notwithstanding that no Notice of Appeal has been filed nor any application for special leave has been made. It is her assertion that she has not been able to obtain legal assistance to enable her to make such applications as it is currently the summer holiday period in Australia. She says that many legal firms are on holiday until “minimum 13^th January”. That was three days ago. It is now 15 January and still no such notice or application has been filed. This Court shut down until 7 January, and there was no administrative impediment to the applicant having filed a Notice of Appeal immediately after the enforcement determination was made. She could have done that on her own behalf.

10. In the narrative contained in her Application in a Proceeding, and indeed in the email that she sent last night, the applicant refers to there being an Australian basic right to have legal representation. That is not correct. Many people appear before this Court, and indeed the High Court, without representation. She could have filed such notice or application on her own behalf.

11. I note further that according to r 13.12 of the Rules, a party may apply for an order staying the operation or enforcement of all or part of the orders to which the appeal relates if an appeal has been started. Rule 13.02 of the Rules provides that a person may start an appeal by filing a Notice of Appeal. As no Notice of Appeal has been filed, the appeal has not been commenced. Accordingly, under the Rules, there is no basis upon which a stay order can be granted. Of course, the Rules can be dispensed with. However, I am not satisfied that the fact that the applicant says she has been unable to secure a lawyer would make it appropriate to dispense with the Rules. As set out, many parties act on their own behalf in this Court.

12. Absent either a Notice of Appeal or an application for special leave having been made, there is, in my view, no proper basis to grant a stay. The applicant’s failure to attend Court today and press her application further supports its dismissal, and I accordingly dismiss the application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.

Associate:

Dated:       15 January 2025