Zyma & Begum

Case [2025] FedCFamC1A 11

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Zyma & Begum [2025] FedCFamC1A 11

Appeal from: Begum & Zyma [2025] FedCFamC2F 5
Appeal number: NAA 34 of 2025
File number: BRC 11144 of 2023
Judgment of: AUSTIN J
Date of judgment: 3 February 2025
Catchwords: FAMILY LAW – APPEAL – Oral interlocutory application – Recovery – Stay – Where the mother seeks an order for the recovery of the child from the father – Where the mother conceded the Court had no power to summarily grant the relief she sought – Where the mother seeks to stay the operation of the appealed orders pending the determination of her appeal – No circumstances to depart from ordinary rule – Father entitled to fruits of litigation – Application dismissed – Costs.  
Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 38

Cases cited:

Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84

JRN & IEG (1998) 72 ALJR 1329; [1998] HCATrans 263

Mallory & Mallory [2020] FamCAFC 62

Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

Sheldon & Weir (Stay Application) [2011] FamCAFC 5

Tame v NSW (2002) 211 CLR 317; [2002] HCA 35

Trahn & Long (No 2) [2008] FamCAFC 194
Number of paragraphs: 27
Date of hearing: 3 February 2025
Place: Newcastle (MS Teams)
Counsel for the Appellant: Ms Jardine
Solicitor for the Appellant: Barker & Associates
Solicitor Advocate for the Respondent: Ms Jurgensen
Solicitor for the Respondent: Jurgensen Horne Lawyers
Counsel for the Independent Children’s Lawyer: Ms Yellowlees
Solicitor for the Independent Children’s Lawyer: ELR Law

ORDERS

NAA 34 of 2025
BRC 11144 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS ZYMA

Appellant
AND:

MR BEGUM

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

3 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The appellant’s oral application to stay the appealed orders and re-instate the subject child’s residence with her pending determination of the appeal is dismissed.

2.The appellant shall pay the respondent’s costs of and incidental to the failed application fixed in the sum of $2,850.00.

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…

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AGLC
Zyma & Begum [2025] FedCFamC1A 11
Case
[2025] FedCFamC1A 11
Decision Date

CaseChat Overview and Summary

The case of Zyma & Begum involves the parents of a five-year-old child, Ms Zyma and Mr Begum, who are engaged in a family law dispute. The primary judge issued orders regarding the child's residence and parental responsibility, which were subsequently appealed by Ms Zyma. In response, Ms Zyma filed a stay application to prevent the orders from being enforced pending the appeal, which was dismissed by the primary judge. Ms Zyma then filed a further appeal against the dismissal of the stay application. In this appeal, Ms Zyma sought to stay the operation of the primary judge's orders and to issue a recovery order to retrieve the child from Mr Begum. The court was tasked with determining whether the stay application should be granted and whether a recovery order should be issued to return the child to Ms Zyma.

The legal issues before the court involved the discretionary power to stay the operation of orders pending the outcome of an appeal and the issuance of a recovery order to retrieve a child from a parent. The court considered whether there were exceptional circumstances warranting a departure from the ordinary rule that the party who loses at first instance must bear the consequences of that loss. The court also assessed whether a recovery order could be issued to retrieve the child from the father, despite Ms Zyma's concession that the court lacked the power to summarily grant such relief.

The court found that there were no exceptional circumstances to justify staying the operation of the orders pending the appeal. It held that the ordinary rule applied, and Mr Begum was entitled to the fruits of his litigation victory. The court dismissed Ms Zyma's application for a stay and rejected the request for a recovery order. The court emphasised that the primary judge's orders had already been implemented, and the child was now in Mr Begum's care. The court also noted that Ms Zyma had conceded that the court had no power to summarily grant the relief she sought, further supporting the dismissal of her application.

The court dismissed Ms Zyma's oral application and ordered that she pay Mr Begum's costs of and incidental to the failed application in the sum of $2,850.00. This decision reinforces the principle that, in the absence of exceptional circumstances, the losing party in family law proceedings must bear the consequences of their loss pending the outcome of an appeal.

Orders

Orders of the court

NAA 34 of 2025

BRC 11144 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS ZYMA

Appellant

AND:

MR BEGUM

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

3 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The appellant’s oral application to stay the appealed orders and re-instate the subject child’s residence with her pending determination of the appeal is dismissed.

2. The appellant shall pay the respondent’s costs of and incidental to the failed application fixed in the sum of $2,850.00.

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).

Background

Background to the litigation

These reasons explain the dismissal of the mother’s oral application to, first, issue an order authorising the subject child’s recovery from the father and his return to her, and secondly, to stay the operation of the appealed orders pending the determination of her appeal.Background The parties to these proceedings are the parents of a child, now aged five years. The respondent began proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the child in 2023, the trial of which proceedings was heard by the primary judge between August 2024 and October 2024. Judgment was reserved and later pronounced on 20 January 2025. The orders provide the parties must share parental responsibility for the child (Order 1) and immediately ensure the child’s residence is established within a radial distance of a nominated school in Queensland (Order 2). If the mother complies with that residential injunction, the child will live with the parties for equal time (Order 3) but, if the mother fails to comply with the injunction, the child will live with the father and spend time with the mother during school holiday periods (Order 4). The mother appealed from those orders on 23 January 2025 (“the substantive appeal”). The mother also filed a stay application, which was heard and dismissed by the primary judge on 30 January 2025. In addition to dismissing the stay application, the primary judge ordered a recovery order to issue and lie in the registry pending the father filing an affidavit confirming the mother’s refusal to relinquish the child to him by noon on 31 January 2025. The mother failed to deliver the child. The recovery order was executed and so the child is now in the father’s residential care. The orders of 20 January 2025 have been implemented. The mother then appealed from the orders made on 30 January 2025 (“the stay appeal”). Simultaneously, the mother filed an Application in an Appeal within the stay appeal seeking these orders:1.That the orders of 20 January 2025 and 30 January 2025 of [the primary judge] be stayed pending the appeal of this matter.2. Such further or other orders as this Honourable Court deems appropriate. The application was promptly listed for hearing today but, in the meantime, the mother filed an Amended Application in an Appeal on 2 February 2025 seeking these orders instead:1. The order of [the primary judge] made 30 January 2025 that (a) the stay application be refused and (b)the Recovery Order be made in relation to the child [name] born [2020]be dismissed; 2.The stay application be granted until the appeal in relation to the Orders made 20 January 2025 has been heard and determined by the Court; and 3.That a Recovery Order do issue authorising /directing the Marshall of the Federal Circuit Court of Australia, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force(a)To find and recover the child [name] born [2020] and to deliver the said child to such place as the mother and the person effecting the recovery agree to be appropriate;(b)and to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.4. Such further and other order/s that this Honourable court deems appropriate.(As per the original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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