APPLICANT SEEKS FOR STAY ORDER FOR PARENTING ORDERS MADE BY THE COURT REGARDING HIS BROTHER’S CHILDREN
Marino & Bello & Anor (No.3) [2020] FCCA 2865 (9 October 2020)
This is a stay order application made by the respondent’s brother regarding the parenting order involving his children.
Facts:
This is judgment in the Application in a case in relation to Mr Marino (“the applicant”) and Mr Bello (“the first respondent”) and Ms Bello (“the second respondent”).
The applicant has made an Application in a Case for the staying of two orders that the Court made on 15 September 2020 regarding an application involving the parenting orders of the respondent’s two children. Those orders were that the applicant’s application for parenting orders be summarily dismissed and that he pay $24,200.00 in costs.
The applicant submits to the Court, that the summary dismissal hearing should not have occurred and therefore the orders should not exist. The applicant again repeats the fact that there is a bias issue and as a result of that, no summary dismissal hearing should have taken place, until he had the opportunity of appealing the original decision in which the court decided not to recuse itself from. The applicant submits the strength of the appeal is arguable. The applicant says that the costs order should not exist and it is an issue in other proceedings, in that there are apparently District Court proceedings in relation to other matters, involving tort which involve the applicant and the parties and the existence of the costs order is being used as a basis to seek an adjournment of those proceedings, until such a time as the current matter is dealt with by the Family Court on appeal.
The respondent says there is no basis upon which it can be apprehended, the appeals will be rendered nugatory if the stay were granted and indeed, the granting of a stay or otherwise would have no bearing on the appeal or the living arrangements for the subject children of the substantive proceedings.
Issue: Should the court grant the stay order?
Law:
Analysis:
The Court is not satisfied that it should grant a stay, in relation to order, being the dismissal of the application, which was the subject of the hearing on 15 September 2020. In the Court’s view, that matter is subject to an appeal, there are no practical difficulties occasioned to the applicant and he is not occasioning any detriment, as a result of those orders, in that he was not seeing the children prior to the hearing and he has not lost any rights.
In relation to Order 2 of orders dated 15 September 2020, the consideration is somewhat more finely balanced. On the one hand, the Court has made a costs order against the applicant. It appears that the existence of that costs order, is being used in collateral proceedings however, the fact is the respondents have obtained a judgment, they are entitled to the benefit of that judgment and they are entitled to presume that the judgment is correct. Unless and until that judgment is overturned, the costs order remains and the Court does not believe it is a proper basis for a stay, in that the existence of the costs order is a matter of some agitation in other proceedings. The Court is only concerned with the current proceedings.
The Court notes that there is an undertaking from the respondents that they will not seek to enforce the costs order that has been made, until such a time as the appeal has been heard. In the Court’s view, bearing in mind the relative pros and cons and that it is a discretionary nature the Court does not see efficacy in staying order 2 and no practical reason to stay the order.
Conclusion: The Application for a Stay in relation to Orders 1 and 2 of orders dated 15 September 2020, is refused.
