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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

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ORDERS

 NAA 34 of 2025
BRC 11144 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:MS ZYMAAppellant
AND:MR BEGUMRespondent
 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 by this Court under the pseudonym Zyma & Begum has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. 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
  2. The parties to these proceedings are the parents of a child, now aged five years.
  3. 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.
  4. 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).
  5. The mother appealed from those orders on 23 January 2025 (“the substantive appeal”).
  6. 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.
  7. The mother then appealed from the orders made on 30 January 2025 (“the stay appeal”).
  8. 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.
  9. 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; and3.           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)
  10. In effect, the mother was proposing the grant of interlocutory relief, summarily allowing the stay appeal, by inviting this Court to supplant its own decision for the decision made by the primary judge on 30 January 2025.
  11. The mother’s application was confused for these reasons:(a)          the orders which are the subject of the substantive appeal cannot be stayed by an interlocutory appellate order made within the stay appeal;(b)          the orders which are the subject of the substantive appeal cannot be stayed by interlocutory appellate order made within that appeal either, at least while the stay appeal is pending, because any interlocutory stay order would subvert the stay appeal;(c)          in her supporting affidavit filed on 30 January 2025 at [13], the mother sought the expedition of the hearing of the stay appeal – not a stay of orders in either appeal – which is a quite different form of relief from that sought in her original and amended applications; and(d)          given the execution of the orders made on 30 January 2025 and the child’s current residence with the father pursuant to the substantive orders made on 20 January 2025, the stay appeal appeared superfluous.
  12. The mother’s revised application was opposed by both the father and the Independent Children’s Lawyer (“the ICL”).
  13. During her submissions, the mother conceded the Court had no power to summarily grant the relief she sought while simultaneously maintaining the stay appeal and therefore consented to the dismissal of both her interlocutory application and the whole of the stay appeal. Those orders were consensually made within the stay appeal and were the necessary pre-cursor to what she proposed next.
  14. With the consent of the father and the ICL, the mother was then permitted to freshly make an oral application within the confines of the residual substantive appeal to stay the parenting orders made by the primary judge on 20 January 2025, pursuant to the power reposing in s 38(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).Legal principles for stay applications
  15. The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685).
  16. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (JRN & IEG (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]–[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No 2) [2008] FamCAFC 194 at [38]). In relation to the proposed stay of appealed parenting orders, the welfare of the child is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. The Court should also consider whether the child’s present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.Disposition
  17. It may be accepted the mother’s appeal is bona fides, but it does not patently evince the promising prospects for which she contended, particularly when this Court is obliged to strongly assume the discretionary judgment is correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627).
  18. Despite the multiplicity of grounds inviting an assumption none has merit (Tame v NSW (2002) 211 CLR 317 at 345; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]), the mother’s counsel asserted the essential strength of the appeal lay in the complaint of “judicial bullying” by the primary judge, but that complaint does not allow much scope for confidence. The mother’s counsel said she mooted making a disqualification application to the primary judge in early 2024 before the trial started, but she conceded no disqualification application was ever made thereafter. The mother will need to meet the proposition in the appeal that she waived any opportunity to apply for the primary judge’s disqualification, which waiver tends to block the maintenance of any complaint about the primary judge’s conduct of the trial.
  19. The mother’s main point was that the child’s best interests demand his immediate return to her residential care, but the shortcomings of the proposition are obvious. The primary judge found the child’s best interests were served living in Queensland close to the father, or alternatively, with the father if the mother refused to return from Victoria to Queensland. To now accept the proposition that the child’s best interests would be served by living with the mother in Victoria would absurdly contradict the primary judge’s findings when they are yet to be shown to be wrong.
  20. The mother wisely withdrew her submission that the present failure to grant her application would render the appeal nugatory. The child’s residence with her could easily be restored, either upon re-exercise of discretion in the appeal or upon remitter for re-hearing, if the appeal proves successful.
  21. As the authorities stipulate, a significant feature of stay applications in parenting appeals is the desirability of limiting residential changes for the child, as far as reasonably possible. The child is already now living with the father. The grant of the mother’s application would require the child’s recovery from the father and return to her in Victoria. It was submitted she either could not or would not move back to Queensland. If the child is now returned to the mother and her appeal later fails, the result would entail another recovery of the child from her and return to the father. The mother said that could be easily done, but the proposition flies in the face of the exhortation to minimise residential changes pending disposition of the appeal.
  22. The mother’s counsel was impelled to concede that, in cross-examination at trial, the mother conceded the child lived with the father for nearly equal time before she unilaterally relocated with the child to Victoria, the father did not pose any risk of harm to the child, she was willing to share parental responsibility for the child with him, and the child could return to spending substantial amounts of time with him. In the face of such sworn concessions, it is difficult for the mother to maintain the child’s best interests demand his immediate return to her in Victoria.
  23. The mother’s oral application is dismissed.COSTS
  24. Upon dismissal of her application, the father sought his costs of the application, which he quantified at $2,850. Coincidentally, the mother’s counsel charged her exactly the same fees.
  25. The mother opposed the costs application, both in entirety and as to the amount sought.
  26. The objection as to the quantum is rejected, given the equivalent amount of costs borne by the parties in these proceedings.
  27. The mother’s opposition to the costs order is also rejected. Her application was wholly unsuccessful and, in fact, was misconceived. That she may not enjoy favourable financial circumstances is a consideration of much less weight in the circumstances (Mallory & Mallory [2020] FamCAFC 62 at [9]).
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       4 February 2025

Article source: Federal Circuit and Family Court of Australia – Division 1 Appellate Jurisdiction

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