Siya and Indra

[2020] FamCAFC 196

FAMILY COURT OF AUSTRALIA

SIYA & INDRA [2020] FamCAFC 196

FAMILY LAW – APPEAL – PARENTING – Where there now is no utility in the appeal proceeding – Where the dates provided for in the order under appeal have passed – Where the appellant seeks that the appeal be dismissed with no order as to costs – Where the effect of dismissing the appeal is that it would be dismissed on its lack of utility and not on its merits – Appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT: Mr Siya

RESPONDENT: Ms Indra

FILE NUMBER: MLC 1750 of 2019

APPEAL NUMBER: SOA 16 of 2020

DATE DELIVERED: 3 August 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 3 August 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 20 February 2020

LOWER COURT MNC: [2020] FCCA 611

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Thomas

SOLICITOR FOR THE APPELLANT: Verduci Lawyers

THE RESPONDENT: In Person

Orders

1. The Notice of Appeal filed on 2 March 2020 be dismissed.

2. There be no order as to costs.

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 Siya & Indra 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
 ADELAIDE

Appeal Number: SOA 16 of 2020
File Number:  MLC 1750 of 2019

Mr Siya

Appellant

And

Ms Indra

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of a Notice of Appeal filed by Mr Siya (“the father”) on 2 March 2020. In that Notice of Appeal, the father appealed against four orders made by a Judge of the Federal Circuit Court of Australia on 20 February 2020.

2. The orders the subject of the appeal provided for Ms Indra (“the mother”) to deposit $10,000 into the father’s solicitor’s trust account within 72 hours of that order being made and, upon that happening, the airport watchlist order made on 2 July 2019, in relation to the child the subject of the proceedings, be suspended from 11 March 2020 to 16 April 2020. The order also provided for the mother to be permitted to remove the child from the Commonwealth of Australia for the purposes of visiting family overseas from 11 March 2020 to 16 April 2020, and the final orders made on 2 July 2019, were otherwise to remain in full force and effect, save that there was, in summary, make-up time to take account of the time that the child would have been overseas …. Finally, the matter was adjourned for mention to 24 April 2020. 

3. Pausing there, I am not entirely sure why the order adjourning the matter for mention to 24 April 2020 was the subject of the appeal, because it was merely an adjournment of the matter, but I will put that aside.

4. On 2 March 2020, as recorded above, the father filed his Notice of Appeal against the orders that I have just identified.

5. In addition, on 3 March 2020, the father filed an Application in a Case seeking a stay of the relevant orders made on 20 February 2020, and on 10 March 2020, that application was heard and determined by the primary judge, and his Honour made orders that, subject to the return of the $10,000 to the mother, orders 2–5 of the orders made on 20 February 2020 be stayed. And that was the state of the matter when the appeal was set down for hearing today.

6. There was a directions hearing on 7 April 2020 before this Court, when the mother’s Application in an Appeal filed on 16 March 2020, seeking expedition of the hearing of the appeal was heard, and on that day, that application was adjourned.

7. Then on 14 May 2020, a directions hearing was held and orders were made listing the appeal for hearing, and providing for the preparation of the appeal for that hearing.

8. Thus, when the appeal was called on today, I raised with the father’s counsel the utility of the appeal in these circumstances. 

9. As can be seen, the orders made by the primary judge, which were the subject of the appeal, provided specific dates between which the mother was permitted to take the child out of the Commonwealth of Australia and travel overseas. Those dates are now long past and that, as I say, raised the question of the utility of the appeal.

10. For example, if the appeal was dismissed and the stay was lifted, the orders would come into force, but given the dates during which travel could occur, the mother could no longer take advantage of those orders, and she would have to make another application to the Federal Circuit Court of Australia seeking, perhaps, a variation of those orders in terms of the dates that she was permitted to take the child overseas. Of course, that application would be listed again, presumably before the same judge, and he would have to consider the matter, consider the evidence that both parties presented on the changed circumstances that would have arisen, and reach a decision about whether the mother would be permitted to take the child overseas on further dates identified by her. 

11. Similarly, if the appeal was allowed and the orders were set aside, what would then follow is that the mother would need to bring a fresh application to the Federal Circuit Court of Australia, presumably before the same judge, seeking orders permitting her to take the child overseas on new dates identified in those proceedings. 

12. Plainly, whatever the result of this appeal, there would need to be further proceedings instituted by the mother, and a further hearing take place in relation to the application the mother then wished to make.  That is assuming, of course, that with the new dates the mother sought to take the child overseas, there was no consent for her to do that by the father.

13. As a result of the utility of the appeal being raised, the father instructed his counsel to seek that the appeal be dismissed with no orders as to costs.  

14. The effect of me doing what the father’s counsel now asks, namely dismissing the appeal, is that the appeal would be dismissed on the ground that it lacks utility. The dismissal would not, and cannot, be on the basis of the merits of the appeal. Therefore, that leaves open the possibility for both parties to raise the same arguments before the primary judge as were put before, if there is a subsequent application made by the mother as referred to above. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Strickland J delivered on 3 August 2020.

Associate: 

Date:  12 August 2020