Withers & Russell

[2022] FedCFamC1A 108

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Withers & Russell [2022] FedCFamC1A 108   

Appeal from:

Withers & Russell (No 2) [2022] FedCFamC1F 488

Appeal number(s):

NAA 154 of 2022

File number(s):

CAC 223 of 2015

Judgment of:

AUSTIN J

Date of judgment:

14 July 2022

Catchwords:

 FAMILY LAW – APPEAL – Application in an Appeal –Stay – Where the father appeals from the dismissal of his application to stay final orders enabling the children to live with the mother overseas pending his appeal from those same orders – Where the father filed an application in the stay appeal seeking a stay of the final orders of the primary judge pending the disposition of the stay appeal – Where a single judge exercising appellate jurisdiction does not have express or implied power to stay orders the subject of another appeal – Where any such stay would countermand the primary judge’s decision to dismiss the stay application – Where any such order would pre-empt the judgment of the Full Court in the stay appeal – Expedition – Where the appeal should be expedited – Application otherwise dismissed – Order made.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 70M, 70N

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 38

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12

Family Law Regulations 1984 (Cth) regs 14, 24, Sch 1A

Cases cited:

Cantrell & North (2019) FLC 93-921; [2019] FamCAFC 127

Number of paragraphs:

21

Date of hearing:

14 July 2022

Place:

Newcastle (via video link)

Counsel for the Appellant:

Ms Lawson

Solicitor for the Appellant:

Unified Lawyers

Counsel for the First Respondent:

Mr Harper

Solicitor for the Respondents:

Parker Coles Curtis Lawyers

The Second Respondent:

Self-represented litigant

Counsel for the Independent Children's Lawyer:

Ms Curran

Solicitor for the Independent Children's Lawyer:

Jeanine Lloyd & Associates

ORDERS

NAA 154 of 2022
CAC 223 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WITHERS

Appellant

AND:

MS RUSSELL

First Respondent

MS RUSSELL SNR

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	14 JULY 2022

THE COURT ORDERS THAT:

1.This appeal is listed for hearing before the Full Court in Sydney at 10.00 am on Monday 8 August 2022.

2.The Application in an Appeal filed on 13 July 2022 is otherwise dismissed.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 26 May 2022, the primary judge made parenting orders between the parties under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) directing that the subject children live with the mother and enabling them to return with her to live in the Unites States of America (“the USA”). The father’s first appeal lies from those orders (“the principal appeal”).

2. Following the lodgement of his appeal, on 1 July 2022, the father applied to the primary judge to stay the appealed orders pending determination of the principal appeal. The stay application was heard and dismissed by the primary judge on 11 July 2022. The father’s second appeal lies from the dismissal order (“the stay appeal”).

3. Within the stay appeal, on 13 July 2022, the father filed an Application in an Appeal seeking orders in these terms:

   1.That this Application in an Appeal be expedited and given an urgent listing at 14th July 2022 at 3.30pm.

   2.That the Appeal against the Orders of [the primary judge] of 11 July 2022 (“the Stay appeal”) be expedited and heard no later than 5 August 2022.

   3.That pending the hearing of Stay Appeal, the Orders of [the primary judge] of 26 May 2022 be stayed pursuant to the Appellate Jurisdiction’s incidental power to preserve the subject matter of the appeal.

   4.That the respondents pay the applicant costs in the appeal on a party-party basis.

4. In support of the application, the father relied upon his affidavit filed on 13 July 2022.

5. The perceived need for urgency in the appeals arises because the parenting orders enable the mother to return to the USA with the children at any time from Sunday 17 July 2022, it being an agreed fact that is presently planned.

   Proposed Order 1

6. The Appeal Registrar gave effect to proposed Order 1 by listing the application before me at 3.30 pm today (14 July 2022) – the day after it was filed.

   Proposed Order 2

7. This order proposes that the stay appeal be listed for hearing on or before 5 August 2022 – that is, within the next three weeks.

8. The primary judge sits in the Federal Circuit and Family Court of Australia (Division 1) and so both appeals from his Honour’s orders must be heard by the Full Court (s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). When necessary, the Full Court can be hastily convened to deal with genuinely urgent appeals, subject to the parties being able to ready themselves for an expedited hearing. In this instance, they assured they could.

9. In an attempt to meet both the convenience of the parties and the administrative demands of the Court, the stay appeal will be listed for hearing before the Full Court in Sydney at 10.00 am on Monday 8 August 2022. The Appeal Registrar will separately hold an urgent hearing to make the necessary procedural orders to ensure the readiness of the stay appeal for hearing on that date.

10. The father belatedly amended his proposal by requesting that both appeals be listed for hearing on a consolidated basis but, having heard from all parties, I am not satisfied they can all be ready to deal with the principal appeal so quickly. In the ordinary course of events, the principal appeal will be listed for hearing perhaps by late September 2022, but almost certainly by late October 2022.

    Proposed Order 3

11. This order proposes that the substantive orders which are the subject of the principal appeal be stayed pending the hearing of the stay appeal.

12. The father could not identify the source of power to make such an order.

13. The father’s contention that the Court has “implied” or “incidental” power to grant the stay to “preserve the subject matter of the [principal] appeal” is rejected.

14. The Court has always had power within its appellate jurisdiction to stay appealed orders so as to preserve the subject matter of the appeal in which the stay application is actually made (Cantrell & North (2019) FLC 93-921 at [21]–[25]), the existence of which power is now the subject of statutory entrenchment (s 38 of the FCFCA Act), but that is not the situation at hand.

15. The initial stay application was made to the primary judge, which r 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) stipulates to be the preferred course. The primary judge refused to stay the substantive parenting orders pending the determination of the principal appeal, so to now make an order staying the substantive orders would impermissibly countermand the primary judge’s decision to dismiss the stay application, the separate appeal from which must now be determined by the Full Court.

16. Single judges exercising appellate jurisdiction have confined power to hear and determine stay applications in respect of “any proceedings under the judgment appealed from”, but no single judge exercising appellate jurisdiction under the FCFCA Act has express or implied power to stay the substantive orders in the principal appeal and thereby pre-empt the judgment of the Full Court in the stay appeal.

17. If and only if the stay appeal succeeds, the Full Court may set aside the primary judge’s order dismissing the father’s stay application and then, in the re-exercise of discretion, make an order staying the substantive orders pending determination of the principal appeal.

18. The father asserts his principal appeal will be rendered nugatory if an order is not now made to override the decision of the primary judge and stay the substantive parenting orders, but that proposition is unpersuasive even if there was power to grant the stay he seeks.

19. First, making such a stay order would conversely render the stay appeal nugatory, depriving the mother of the chance to defend the result attained from the primary judge.

20. Secondly, contrary to the father’s apparent belief, if the mother and children depart for the USA before the principal appeal is heard then, consequent upon his success in that appeal, there are mechanisms available to procure her return to Australia with the children. Most (if not all) American States are “prescribed overseas jurisdictions” within which Australian parenting orders may be registered and subsequently enforced pursuant to the Act (ss 70M and 70N) and the Family Law Regulations 1984 (Cth) (regs 14 and 24; Sch 1A).

    Proposed Order 4

21. The father abandoned his application for costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       15 July 2022