Withers and Russell

[2018] FamCA 87

FAMILY COURT OF AUSTRALIA

WITHERS & RUSSELL [2018] FamCA 87

FAMILY LAW – ORDERS – Contravention – Where the mother failed to comply with Orders made 23 November 2017 by failing to enter into a good behaviour bond – Where the Court directed the proceedings be relisted – Where the mother advised she has attempted to file a Notice of Appeal against the Orders – Where the mother has attempted to file an Application in a Case seeking to stay the Orders made 23 November 2017 – Where the father opposed adjourning the proceedings – Ordered the proceedings be adjourned to allow the mother sufficient time to file her appeal and stay application

APPLICANT: Mr Withers

RESPONDENT: Ms Russell

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 29 January 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 29 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. These proceedings, in so far as they relate to enforcement of the Orders made by Justice Austin on 23 November 2017, are adjourned for hearing until 10am (AEDST) on Thursday 8 February, 2018.

2. The parties are granted leave to attend the next court event by telephone link.

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 Withers & Russell 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)..

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: CAC 223 of 2015

Mr Withers

Applicant

And

Ms Russell

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 23 November 2017, I determined contravention proceedings between the parties, finding that the mother contravened parenting orders without reasonable excuse. In respect of that contravention, I ordered that the mother enter into a good behaviour bond within 28 days thereof. I was subsequently notified by the Registrar of the Newcastle registry of the Court that, despite numerous efforts in late November 2017 and during December 2017, the mother failed to enter into the good behaviour bond as ordered. As a consequence, I directed that the proceedings be relisted before me today (Monday 29 January 2018) for consideration as to what action, if any, ought be taken in respect of that failure or refusal.

2. Both parties appeared before the Court by telephone link. For clarity, I repeat that the proceedings were relisted at my instigation, not on the application of the father. Today, the mother informed the Court that in late December 2017 she attempted to file a Notice of Appeal against the orders made by me on 23 November 2017. She furnished a copy of the Notice of Appeal, which she executed on 19 December 2017, to vindicate her submission. It is common ground the Notice of Appeal has not yet been filed, despite the mother’s efforts to file it. The reasons why the document is not yet filed have not been revealed to the Court. One possibility is that she attempted to file the appeal outside the limitation period and, as a consequence, she will need to seek leave to file the appeal late. That is a matter for the mother to pursue with the Appeals Registrar.

3. Regardless, the mother also provided to the Court a copy of an Application in a Case, executed by her on 20 December 2017, through which she seeks to stay the operation of the orders made by me on 23 November 2017, which orders she intends to appeal. Although she forwarded the stay application to the Canberra registry of the Court on or about 21 December 2017, by reason of the intervening Christmas holidays, the application has not been processed in the Canberra registry. It is abundantly clear that the mother intends and has acted upon her intention to appeal against the orders made by me on 23 November 2017 and to consequentially make an application to me, as the primary judge, to stay the orders pending the hearing of her appeal.

4. Although the father invited me to ignore the mother’s intentions and proceed in ignorance of her attempts to appeal and stay the primary order, I reject his offer or invitation. It would be churlish to precipitously determine what enforcement action I should take in respect of the mother’s failure to comply with the order I made on 23 November 2017 until such time as there is clarification about the filing of her appeal and her application for stay of the order. I can see no prejudice to the father, given he did not agitate for the proceedings to be re-listed before me, in adjourning these proceedings for about 10 days so as to afford the mother sufficient time within which to file her appeal (and/or her application for leave to file the appeal out of time) and her stay application.

5. For those reasons, I intend to adjourn today’s proceedings until Thursday 8 February 2018, at which Court event both parties will again be permitted to appear by telephone link.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 January 2018.

Associate: 

Date:  22 February 2018