Wray & Wray (No 2)
[2022] FedCFamC1F 432
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wray & Wray (No 2) [2022] FedCFamC1F 432
File number: SYC 7692 of 2012 Judgment of: HENDERSON J Date of judgment: 27 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where an application by the father for stay of final parenting orders – Where the father has not filed an appeal – Where the father says he intends to file an appeal – Where there is no proper basis for the application – Where the application had no prospect of success – Where the application was doomed to fail – Application dismissed.
FAMILY LAW – COSTS – Circumstances justifying order – Where the mother sought costs against the father – Where the application by the father had no prospect of success – Where the application was doomed to fail – Where the father was wholly unsuccessful – Where it is appropriate the mother be awarded costs in accordance with scale – Costs ordered.
Legislation: Family Law Act 1975 (Cth) s 117(2). Cases cited: Aldridge & Keaton [2009] FamCAFC 106. Division: Division 1 First Instance Number of paragraphs: 23 Date of last submission/s: 27 May 2022 Date of hearing: 27 May 2022 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Ms Swan Solicitor for the Respondent: Swan Lawyers Counsel for the Independent Children's Lawyer: Ms Abdelraheem Solicitor for the Independent Children's Lawyer: Claremont Legal ORDERS
SYC 7692 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WRAY
Applicant
AND: MS WRAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
1.The Application in Proceedings filed by the father and sealed on 24 May 2022 be dismissed.
2.Within 28 days, the father pay the mothers costs of this application fixed in the sum of $660.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Wray & Wray has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
HENDERSON J
This is an application by Mr Wray, the father of a child, X.
On 17 May 2022, I delivered a judgement and final orders in relation to this long-running parenting dispute. I continued the orders made by Altobelli J on 10 December 2020 and 12 March 2021, being interim orders, that the father was injuncted and restrained from approaching the child or communicating with her and the child was to spend no time with the father and that the mother was to have sole parental responsibility.
I made several and many more additional orders consistent with the evidence of Dr C both in his report and particularly in his oral evidence that:
[X], the young person, had lost faith in the capacity of the police to be protective of her and also of the integrity of mental health professionals to provide an independent support sphere around her. She has lost faith in all those features.
This is found at paragraph 183 of my judgment. Dr C was clear as can be that it was an imperative that this Court do all it could to endeavour to restore X's faith in authorities including the police, the courts, psychologists and others. In those circumstances, I made a raft of what might be regarded, and I think I used the word "draconian" in my judgment, injunctions and restraints preventing the father from communicating with and being able to access any information concerning his daughter, being: school records, medical records, police records, department records, places of extracurricular activity, and her school records.
Those orders were made by me as orders I regarded in the child's best interest and were consistent with Ms Abdelraheem the ICL's counsel's submissions today, based upon the evidence of Dr C who was very clear on this issue. X is virtually 15 and had expressed a clear strong wish to spend no time or communicate with her father using the words, "I am sick of all this craziness. I am sick of his crazy behaviour."
The father has now brought a stay of these orders. He has the onus to establish a proper basis for this stay consistent with the decision of Aldridge & Keaton.[1] A stay application is a discretionary decision.
[1] Aldridge & Keaton [2009] FamCAFC 106.
The only evidence before me is a letter the father wrote to the Court on 20 May, his application and affidavit filed around the same date.
The application seeks a stay of the orders and the affidavit sets out the basis of the stay being:
[The father’s name] I seek an urgent stay for all orders. I seek leave to put a prima facie evidence of actual harm to the child from these proceedings and these orders. I note the orders of 16 May are not signed. There is a distinct lack of procedural fairness in orders requiring response in seven days that bypasses the due process for an appeal. Apologies to the court, this affidavit is currently unwitnessed. I’m self-representing and this is urgent, hence I swear the contents of the court.
The father has not filed an appeal, tells me he is going to file an appeal but he has not filed an appeal. This morning, the father endeavoured to have me read additional documents, reports and the like that he has commissioned, which he says in some way, shows that the child is at risk of harm from these orders. I refused to read those reports or admit them into evidence. They were filed by him the very morning of this matter being listed for hearing. He accepted this return date for his stay application and I do not believe it is appropriate that he should now file additional material in an application he brings on the very morning of the hearing and I will not read that material.
The father has failed at every level to establish a proper basis for the stay. He has not filed an appeal. There is not one basis at law to support the stay or that would ground granting a stay. The orders I made confirmed the care arrangements for this child which have now been in existence for well over two years, namely, she lives with her mother, spends no time with or communicates with her father, and her father was injuncted and restrained from communicating with her, approaching her, or otherwise interfering with her day-to-day activities.
The mother is entitled to the benefit of the judgment I delivered and to accept that my judgment is correct.
There is no bona fides that I can see in Mr Wray’s application or affidavit to support his application and this is a continuation of his behaviour at the trial, namely to simply extend the matter and continue the proceedings to continue to have some input into his daughter’s life. Perhaps there are other reasons of which I am unaware. He sought at the final hearing at least three adjournments all of which were refused. He did not attend court on the last day of the final hearing to make his submissions to the Court and again via email sought an adjournment. The behaviour he engaged in at the trial is somewhat consistent with his application today.
There is no risk that any appeal Mr Wray files will be rendered nugatory by my failure to grant a stay. I have merely confirmed the living arrangements for this child which have now been in existence for over two years.
I do not see that there is any strength in any appeal as proposed by the father. It would appear he seeks to tender fresh evidence, evidence that was not before me at the trial. That is a matter to be determined when he puts on a proper application seeking to adduce further evidence to support his appeal. At this stage, there is no appeal filed or application.
There will be no change in X’s living arrangements by not staying my orders.
I have no idea when any appeal can be heard as Mr Wray has not filed an appeal.
For all those reasons, the stay application filed by Mr Wray on or about 20 May 2022 noted as sealed at 24 May 2022 is dismissed.
An application has been made by Ms Swan on behalf of the mother for her costs of this unsuccessful stay application. The costs are $660 which is less than scale and Ms Swan correctly points out she had to read the father’s material, refresh her memory in relation to the decision I made, and appear in court today. The mother has been represented throughout these proceedings and has expended considerable money in pursuing her application that her daughter live with her and spend no time with the father.
The mother was entirely successful in her hearing and I made a costs order in the mother’s favour for what I regarded as a waste of time by Mr Wray’s behaviour at the final hearing. Therefore, there are already costs orders in existence.
In any costs application, I must have regard to matters under section 117(2) of the Act.[2] Although mere impecuniosity, as Mr Wray pleads he is impecunious, is not a sufficient reason that stops a court from making a costs order.
[2] Family Law Act 1975 (Cth) (“the Act”).
The matters under 117(2) of the Act are: the conduct of parties to the proceedings, whether a party has been wholly successful or unsuccessful, the nature of the proceedings, the decision ultimately made by the court, the length of time the court has taken, and any other factor the court may deem as is relevant. In these circumstances, the father tells me he is impecunious but his evidence at the trial did not satisfy me that he was being entirely open with the court about his financial position given the income he said he earned and the rent he paid created a difficulty for me to reconcile with the facts and I made the cost orders I did on that basis.
The father has been wholly unsuccessful in this application. It was doomed to failure at the outset. It had no prospect of success. He did not establish any proper basis for a stay, having not even filed an appeal of the decision I made. This date was given to him by my chambers. He accepted that date as appropriate. He had not even read the most basic decision, which I have referred him to, of Aldridge & Keaton,[3] in relation to stay applications and it very important that he reads that decision now as he tells the Court he is to file an appeal.
[3] Aldridge & Keaton [2009] FamCAFC 106.
In circumstances where the mother was: successful at the trial, has the benefit of the orders, is entitled to the benefit of the orders, the father was wholly successful in this application, it being absolutely without merit, not based upon any fact or evidence at law that this Court could entertain a stay application, I find it is proper I award the mother’s costs in the sum of $660 to be paid to Ms Swan by the husband within 28 days of today’s date.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 27 May 2022. Associate:
Dated: 16 June 2022
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