Appellant Opposes Return Orders Relating to Child
Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76 (20 May 2022)
An appeal from an order that the child be returned to Hong Kong (“the return order”) was dismissed by the Full Court. The applicant filed an application in the Family Court of Western Australia seeking a stay of the original return order pending the finalisation of her application to the High Court of Australia for special leave to appeal from the Full Court’s decision. The primary judge dismissed the application, from which order the proposed appeal lies.
Facts:
On 19 November 2021, a judge of the Family Court of Western Australia made orders for the child’s return to Hong Kong. On 28 April 2022, although beyond the time period allowing her to do so, the applicant filed an application in the High Court of Australia (“the High Court”) seeking special leave to appeal from the Full Court’s decision. She now needs permission from the High Court to bring the application for special leave to appeal out of time before the application is even substantively considered, but neither application has yet been determined. On 5 May 2022, the applicant filed an application in the Family Court of Western Australia seeking orders to stay the original return orders made on 19 November 2021 until after the matter is finalised in the High Court of Australia.
On 11 May 2022, that application was entertained and dismissed by the same primary judge. Without deciding whether her Honour was even seized of power to grant the relief sought by the applicant, the primary judge decided the application upon the presumption that such power existed. On 13 May 2022, the applicant filed a Notice of Appeal, wherein she applied for leave to appeal from the orders made by the primary judge on 11 May 2022 dismissing her stay application. On 16 May 2022, the applicant filed an Application in an Appeal and supporting affidavit (together with exhibits, marked as Exhibit A on the application).
The applicant seeks: that the appeal for a stay be expedited; that interim orders be made preventing [the child] from being removed from Australia on the 22nd May 2022 until after this appeal is decided; and that the mother not be held responsible for costs lost by the father due to the stay application being refused by [the primary judge].
Issue:
Whether or not the appeal should be granted.
Applicable law:
Family Law Act 1975 (Cth) - relied upon in holding that there are no proceedings presently pending before any court seized of original jurisdiction.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 - provides that the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is to be exercised by a Full Court in relation to a judgment of any other court.
Analysis:
This expedition application is being heard today (Friday 20 May 2022). The child is being flown to Hong Kong on Monday 23 May 2022. It would be exceedingly difficult to convene a Full Court to hear the application for leave and the appeal tomorrow (Saturday 21 May 2022) or the day after (Sunday 22 May 2022), as would be necessary since the prospective appeal lies from the judgment of a judge of the Family Court of Western Australia and cannot be heard by a single judge. Even if a Full Court could be convened as soon as tomorrow or the day after, the prospects of success of the application for leave to appeal and the appeal do not appear sufficiently strong to warrant expedition of such velocity.
The primary judge’s power was exhausted once the return orders were made under the Regulations on 19 November 2021, disposing of all outstanding applications. Her Honour had power to stay those orders pending the determination of the appeal to the Full Court, but that power evaporated when the appeal was dismissed on 3 March 2022. In all probability, the primary judge was functus officio thereafter, absent some new application being brought by the applicant within the primary judge’s original jurisdiction – and there was none. Even if persuaded to exercise the sparingly-used power, the stay of the order dismissing the appeal would leave the underlying return orders made by the primary judge in November 2021 intact and operable, so serving no useful purpose.
The evidence led and the submissions made by the applicant in support of this expedition application do not evince any basis upon which to conclude there is an arguable case to be made in the prospective appeal from the dismissal order.
Conclusion:
The Application in an Appeal filed on 16 May 2022 is dismissed.