Valdez and Frazier (No. 3)

[2016] FamCAFC 126

FAMILY COURT OF AUSTRALIA

VALDEZ & FRAZIER (NO. 3) [2016] FamCAFC 126

FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where the application was heard in the absence of the parties – Where the appellant has filed two separate applications for special leave to the High Court of Australia – Where the appellant seeks a stay of orders in relation to costs made in two separate appeal judgments pending determination of the special leave applications – Where the respondent does not wish to be heard on the appellant’s application – Where ultimate success in the High Court proceedings would result in the setting aside of the orders as to costs – Where there is no utility in the parties’ filing submissions on costs as previously ordered or seeking to enforce or pursue costs orders previously made pending the determination of the special leave applications – Application allowed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Valdez

RESPONDENT: Ms Frazier

FILE NUMBER: SYC 2226 of 2013

APPEAL NUMBERS:	EA	111	of	2014
EA	114	of	2014

DATE DELIVERED:

PLACE DELIVERED:

PLACE HEARD: In Chambers

JUDGMENT OF:	Strickland & Kent JJ
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 23 July 2014
24 July 2014
24 July 2014

LOWER COURT MNC: [2014] FCCA 1917
[2014] FCCA 1918
[2014] FCCA 1639

REPRESENTATION

THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Mr Longworth

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

1. Pending the determination of the father’s applications for special leave to appeal (Nos. S …/2016 and S …/2016) filed in the High Court of Australia on 10 May 2016, the following orders be stayed:

   (a)      Order (2) of the orders made by Strickland J on 15 April 2016; and

   (b)Orders (6) and (10) of the orders made by the Full Court (Finn, Strickland and Kent JJ) on 15 April 2016.

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 Valdez & Frazier (No. 3) 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EA 111 of 2014; EA 114 of 2014
File Number: SYC 2226 of 2013

Mr Valdez

Applicant

And

Ms Frazier

Respondent

REASONS FOR JUDGMENT

1. On 15 April 2016 Strickland J delivered judgment ([2016] FamCAFC 55) dismissing the further application of Mr Valdez (“the father”) that Strickland J disqualify himself from the Full Court (Finn, Strickland and Kent JJ) hearing and determining these appeals. By order (2) of the orders his Honour made, the father was ordered to pay the costs of the respondent, Ms Frazier (“the mother”) of that application.

2. Also on 15 April 2016 the Full Court (Finn, Strickland and Kent JJ) delivered judgment ([2016] FamCAFC 54) dismissing the father’s appeals and certain of the father’s applications filed in those appeals. Relevantly for present purposes, orders (6) and (10) of the orders made by the Full Court were orders relating to the costs of the appeals and/or to the costs of the father’s applications in those appeals.

3. On 10 May 2016 the father filed in the High Court of Australia applications for special leave to appeal each of the judgment of Strickland J referred to and the judgment of the Full Court referred to (Nos. S …/2016 and S …/2016).

4. By an amended application in an appeal filed in these appeals on 27 June 2016 the father seeks orders that, pending the outcome of his applications for special leave to appeal filed in the High Court of Australia, order (2) made by Strickland J on 15 April 2016 and orders (6) and (10) of the Full Court made on 15 April 2016, be stayed.

5. As Finn J has ceased to be a member of this Full Court by reason that the term of her appointment as a judge expired on 4 July 2016, the hearing and determination of these proceedings is to be completed by us (s 28(4)(a) of the Family Law Act 1975 (Cth) (“the Act”)).

6. The Appeals Registrar has, via correspondence, ascertained that the mother, who is named as the respondent to this application, does not wish to be heard on any of the orders sought within it. Order (1) sought in the father’s application is that the application be heard in the absence of the parties. 

7. If the father succeeds in his ultimate applications to have the High Court of Australia set aside the orders made by the Full Court on 15 April 2016 and/or by Strickland J on 15 April 2016, then that will obviously include the orders referred to as to costs.

8. In these circumstances there is no utility in the parties filing submissions on costs as previously ordered or for the orders previously made for costs, either by the Full Court or by Strickland J, being pursued or enforced, pending the determination of the father’s applications for special leave.  Thus we propose to make the following order:

   (1)     Pending the determination of the father’s applications for special         leave to appeal (Nos. S …/2016 and S …/2016) filed in the        High Court of Australia on 10 May 2016, the following orders be   stayed:

   (a)      Order (2) of the orders made by Strickland J on 15 April   2016; and

   (b)      Orders (6) and (10) of the orders made by the Full Court   (Finn, Strickland and Kent JJ) on 15 April 2016.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland Kent JJ) delivered on 18 July 2016.

Associate: 

Date: