STAPLETON & HAYES

[2015] FCCA 2955

FEDERAL CIRCUIT COURT OF AUSTRALIA

STAPLETON & HAYES [2015] FCCA 2955

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – where Applicant placed on bond.

PRACTICE AND PROCEDURE – Stay – application for stay – application for stay pending Appeal – principles considered – whether Appeal would be rendered nugatory if stay not granted.

Legislation:

Family Law Act 1975 (Cth), s.70NEC

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Hayes & Stapleton [2015] FCCA 1948

Applicant: MS STAPLETON

Respondent: MR HAYES

File Number: SYC 2750 of 2007

Judgment of: Judge Scarlett

Hearing date: 2 November 2015

Date of Last Submission: 2 November 2015

Delivered at: Sydney

Delivered on: 2 November 2015

REPRESENTATION

Applicant: In person

Respondent: No appearance

ORDERS

1. Order 16 made on 17 August 2015 is stayed pending the hearing of the Appeal filed on 14 September 2015.

IT IS NOTED that publication of this judgment under the pseudonym Stapleton & Hayes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2750 of 2007

MS STAPLETON

Applicant

And

MR HAYES

Respondent

REASONS FOR JUDGMENT

1. There is an Application before the Court for a stay of Order 16 made by the Court on 17 August 2015.  The orders, which have been conveniently attached to the Application, relate to some contravention proceedings which were quite lengthy and took place over a considerable period of time[1].

   [1] Hayes & Stapleton [2015] FCCA 1948

2. The order which is the subject of the Application for a stay is Order 16, which requires the Respondent to the substantive proceedings, who is the Applicant today, to enter into a bond, in accordance with section 70NEC of the Family Law Act 1975 (Cth), for a period of 18 months.

3. The Applicant, as she now is, has appealed against the Court’s decision and filed a Notice of Appeal on 14 September this year.  She has attended Court today and advised the Court that she has obtained advice about filing an Amended Notice of Appeal containing amended Grounds of Appeal, and that may well be filed today.  At this stage, she has not been given any indication as to when the Appeal, or the amended Appeal, is to be heard.

4. I have read through the material contained in the affidavit which relates to the Applicant’s complaints of the effect on her of the bond, possibly matters that are more appropriate to be dealt with by the Full Court during the hearing of the Appeal, but nevertheless set out the Applicant’s views.

Factors to be considered

1. When dealing with a stay, a Court must consider a variety of matters, and the decision of the Full Court of the Family Court in Aldridge & Keaton (Stay Appeal)[2] is particularly important, particularly at paragraph 18.

   [2] [2009] FamCAFC 106

2. In paragraph 18, their Honours set out a number of matters for a court considering an application for a stay to take into account, and they are:

   (1) The onus to establish a proper basis for the stay is on the applicant for the stay.  However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances.

   (2) A person who has obtained a judgment is entitled to the benefit of that judgment.

   (3) A person who has obtained a judgment is entitled to presume the judgment is correct.

   (4) The mere filing of an appeal is insufficient to grant a stay;

   (5) the bona fides of the applicant.

   (6) A stay may be granted on terms that are fair to all parties.  This may involve a court weighing the balance of convenience and the competing rights of the parties;

   (7) a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted.  This will be a substantial factor in determining whether it will be appropriate to grant a stay;

   (8) some preliminary assessment of the strength of the proposed appeal, whether the appellant has an arguable case;

   (9) the desirability of limiting the frequency of any change in a  child’s living arrangements;

   (10) the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time, and finally, the best interests of the child the subject of the proceedings are a significant consideration.

Conclusions

1. Not all of those matters are going to be relevant to this Application for a Stay. I note that the substantive Applicant has not attended Court today, nor sent any message to indicate that he has been hindered or delayed. It would appear to me that he proposes not to participate in this matter.

2. The matter that seems to me to be particularly important is the date when the Appeal can be heard.  The Applicant today, who is the Appellant, has not, at this stage, received any indication from the Full Court as to when this Appeal may be heard.

3. The fact that the Appellant proposes to file an Amended Notice of Appeal with amended grounds is relevant, which means that I need not consider the grounds of appeal as set out in the Notice of Appeal, but it seems to me that there is one matter that is of particular importance, and indeed, it is, in this case, a deciding factor; that is, the risk that the Appeal may be rendered nugatory if a stay is not granted.

4. The point is that there is an order requiring the Appellant in these proceedings to enter into a bond for 18 months.  It may well be many months before the Appeal is heard.  If the stay is not granted, she will be required to enter into the bond, and if the Appeal is not heard for a period of anything up to 18 months, there will be little point to the Appeal, as the penalty will have already applied.

5. This, to my mind, is a factor of such importance that the interests of the administration of justice require that a stay should be granted.  I make the following order:

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  3 November 2015