Federal Circuit and Family Court of Australia
(DIVISION 1)

Department of Communities and Justice & Hays (Stay Application) [2023] FedCFamC1F 82
File number(s):	SYC 2382 of 2022	
		
Judgment of:	STRUM J	
		
Date of judgment:	3 February 2023	
		
Catchwords:	FAMILY LAW – Orders made by Full Court dismissing appeal – Stay of first-instance final judgment sought pending application for special leave to appeal to High Court of Australia – Power of first-instance judge to grant stay of orders in such circumstances – First-instance judge functus officio - No power – Application dismissed.	
		
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12	
		
Cases cited:	Anderson & Senior (Stay Appeal) (2013) FLC 93-556; [2013] FamCAFC 152
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76
Molier & Van Wyk (No 2) (1981) FLC 91-001; [1981] FamCA 5
Stephens & Stephens (Stay Application) (2010) FLC 93 429; [2010] FamCAFC 20
Strahan & Strahan (Stay and Various Interim Orders) [2010] FamCA 708	
		
Division:	Division 1 First Instance	
		
Number of paragraphs:	39	
		
Date of hearing:	3 February 2023 	
		
Place:	Melbourne, via Microsoft Teams	
		
Solicitor for the Applicant:	The Applicant appeared in-person	
		
Counsel for the Respondent:	Mr Guterres	
		
Solicitor for the Respondent:	Department of Communities and Justice	
		
Solicitor-Advocate for the Independent Children's Lawyer:	Ms McMullen	
		
Solicitor for the Independent Children's Lawyer:	Legal Aid New South Wales	

ORDERS
	SYC 2382 of 2022	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)	
BETWEEN:	MR HAYS
Applicant
	
AND:	DEPARTMENT OF COMMUNITIES & JUSTICE
Respondent
	
	INDEPENDENT CHILDREN'S LAWYER

order made by:	STRUM J	
DATE OF ORDER:	3 FEBRUARY 2023	

THE COURT ORDERS THAT:

1.	By no later than 4.15pm this day, the Applicant father file and serve a notice of address for service.
2.	The father’s Application in a Proceeding filed 20 January 2023 seeking the discharge of the Independent Children’s Lawyer be adjourned to a date to be fixed after the conclusion of the High Court proceedings, if any.
3.	Liberty be reserved to all parties to apply to list the said application at an earlier date if so advised.
4.	The father have leave to rely upon his Response to an Application in a Proceeding filed out of time this day, notwithstanding paragraph 2 of the orders made by the Honourable Justice McNab on 25 January 2023 and that such so-called response stand in lieu of submissions in support of his Application in a Proceeding filed 23 January 2023 and in reply to the written submissions of the Department of Communities & Justice and the Independent Children’s Lawyer.
5.	The father’s Application in a Proceeding filed on 23 January 2023 seeking a stay of the final orders made by the Honourable Justice Strum on 30 September 2022 be dismissed. 
6.	Pursuant to rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court certifies that it was reasonable to engage counsel on behalf of the Department of Communities & Justice and solicitor advocate appearing for the Independent Children’s Lawyer. 

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 Department of Communities and Justice & Hays has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
STRUM J:
1	By Application in a Proceeding filed 23 January 2023, the father, Mr Hays (“father”), who is the applicant for the purpose of this hearing, but was the respondent at first instance and the unsuccessful appellant on appeal, seeks a stay of final orders made by me on 30 September 2022, pending determination of an application for special leave to appeal to the High Court of Australia and any consequent appeal thereto, should special leave be granted. The orders I made on 30 September 2022 were the subject of an appeal by the father to the Full Court of this Court, which appeal was dismissed by orders made on 16 January 2023. It is those orders of the Full Court, dismissing the father's appeal, which are the subject of the High Court proceedings.
2	In his Application in a Proceeding, the father seeks a stay of the orders made by me on 30 September 2022. The stay sought by the father is opposed by the relevant State Central Authority, namely, the Secretary of the Department of Communities and Justice of New South Wales, and by the Independent Children's Lawyer (“ICL”). At the commencement of the hearing, I raised with the father, who is self-represented today, but who was represented by senior counsel at trial and on appeal, whether he wished to tender a document provided by him to my chambers, as well as to the State Central Authority and the ICL which is styled a ‘Application for Special Leave to Appeal’. That application is unsealed, and there is no evidence before me that it has, in fact, been filed, although I was told by the father that he has lodged that application for filing and is awaiting receipt of a sealed copy, if it is accepted for filing. That point was not conceded by either counsel for the State Central Authority or for the ICL, but for the reasons which follow, it matters not.
3	There are two issues which were raised before me today. Firstly, I must determine whether I have the power to grant a stay of the orders made by me on 30 September 2022 or whether I am functus officio. Secondly, if I find I do have the power, whether I should exercise my discretion to stay those orders in the father's favour. It was sensibly (if not necessarily) conceded by all parties that, if I am functus officio, I have no power to grant the stay, and, therefore, my discretion is not enlivened. I have been assisted in my determination of this case by a detailed affidavit and brief written submissions filed by the father, as well as by detailed written submissions filed on behalf of the State Central Authority and the ICL. For the reasons which follow, I find that I am functus officio and have no power to grant the stay sought by the father. There is, therefore, no need to consider the discretionary factors.
4	The factual background of this case is set out in detail in my reasons for judgment delivered on 30 September 2022 and referred to in the reasons for judgment of the Full Court delivered on 16 January 2023.
5	At the outset, the father relied upon r 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Rules”). However, that rule is inapplicable, albeit that it refers to stays. This is because ch 13 of the Rules, within which r 13.12(2) is found, applies only to the appeals specified in r 13.01(1). The High Court of Australia is not one of the appellate courts referred to in that rule. 
6	The father relies upon the first instance decision of Dawes J in Strahan & Strahan (Stay and Various Interim Orders) [2010] FamCA 708. In that case, interim orders had been made by Strickland J, which the wife had unsuccessfully appealed to the Full Court. She then sought special leave to appeal to the High Court and, between the dismissal of her appeal in the Full Court and the hearing and determination of her special leave application and any consequent appeal therefrom, she sought a stay of the primary judge's orders. That application was opposed by the husband in that case, who submitted that the wife's application for a stay should have been sought from the Full Court.  
7	The father took me to several passages of the decision of Dawes J. At [30], her Honour said as follows:
Counsel for the wife conceded that there is no specific power granted by the Family Law Act or Rules, but maintained that a single Judge had inherent power and that it was a practical solution for a Judge at first instance to hear the application. On behalf of the wife it was also maintained that the application should be granted because it had merit.
8	Her Honour continued (at [31]):
It was emphasised by counsel for the wife that if the stay was not granted the appeal may be rendered nugatory and that there was a reasonable argument set out in the appeal documents filed with the High Court of Australia. 
9	Whether or not an appeal would be rendered nugatory is one of the discretionary factors to be considered if there is power to grant a stay; however, that factor, in and of itself, cannot found the power to grant a stay. At [34], her Honour said:
The wife is therefore not seeking to stay any orders of the Full Court, rather she is seeking to stay the order of Justice Strickland of 5 November 2009. 
10	Her Honour then said (at [35]):
Neither the Family Law Act nor the Family Law Rules deal specifically with any application for a stay of an order made by a Judge at first instance, pending an appeal from the Full Court of the Family Court of Australia to the High Court of Australia. Nor do they deal specifically with an application to the Full Court or any other Court to seek a stay of the orders of the Full Court pending an appeal to the High Court of Australia.
11	At [39], her Honour said:
There is no indication in this matter that the wife made any attempt to list the application for the stay before a Judge of the Appeal Division or by a Full Court of the Family Court. However, the order which is sought to be stayed is not the order of the Full Court (which dismissed the appeal from Justice Strickland’s order) but is an application to stay the order of the Judge at first instance pending the appeal from the Full Court to the High Court of Australia.
12	At [46] of her reasons for judgment, Dawes J referred to the decision of Elliott J in Molier & Van Wyk (No 2) (1981) FLC 91-001. Her Honour said that:
…Elliot J considered an application before him for a stay of execution of an order for sale of the former matrimonial home pending determination of an application to the High Court for special leave to appeal the decision of the Full Court of the Family Court of Australia. An order for sale of the property had been made by His Honour in his decision at first instance and an order for sale was also made by the Full Court. In his judgment His Honour said:
“I do not consider I have power, sitting as a single judge, to make the order sought. Section 28(3) of the Family Law Act provides that the jurisdiction of the Family Court in an appeal from a Judge shall be exercised by a Full Court. The Full Court in this case has assumed this jurisdiction and it is from the Full Court’s decision that the husband seeks the High Court’s leave to appeal. It is true that a court which makes an order or decree has an inherent power to stay the execution of those orders or decrees, and in this Court there is a general power given by reg. 16, but I consider that by virtue of sec. 28(3) the exercise of such power in the Family Court to stay orders made by a Full Court is part of the jurisdiction specifically limited in its exercise to a Full Court.” 
13	However, the salient matter to note that is that Molier & Van Wyk (No 2) involved final orders, unlike the decision of Dawes J in Strahan & Strahan (Stay and Various Interim Orders) but as in this case. At [48], her Honour referred to the decision of Brennan J in the High Court of Australia in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] 161 CLR 681 at [6], upon which the husband in his submissions, both written and oral to me, urged me to place considerable reliance and, indeed, went so far as to submit that I was bound by that decision. However, in my view, not only is the decision of Dawes J distinguishable from the present case, but so too is that of the High Court, for the following reason. 
14	At [6] Brennan J said as follows:
When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the Court below and it is to that Court – the Court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made. ...
15	The first matter to note is that, in this case, I am not sitting in the court below, which Brennan J described as the court which is familiar with the matter. Although I am clearly very familiar with the matter, the court below in this instance is the Full Court of this Court. The second matter to note is that his Honour, in referring to the court below, was referring being the court in which the matter is pending. There is no matter pending any longer in this Court. I heard the case, made orders and delivered reasons for judgment. The husband appealed, as was his right to do, and that appeal was dismissed. Whilst there are extant executory orders that remain to be carried out, there is no matter pending in this court, either in its first instance or appellate jurisdictions. That is by reason of my orders being final orders, as opposed to interim orders, which is what Dawes J was concerned with in Strahan & Strahan (Stay and Various Interim Orders).
16	I turn now to two other relevant passages in that decision of Dawes J’. At [50] her Honour said:
… counsel for the wife, submitted that the “Court below in which the matter is pending” in this instance is a Judge at first instance in the Family Court of Australia because the Full Court has dismissed the appeal and there is no matter pending before it. 
17	That highlights the distinction between interim and final orders. In cases where interim orders are made, clearly there are pending proceedings. Her Honour at [56] referred to [79] of the decision of the Full Court of the Family Court of Australia in Stephens & Stephens (Stay Application) (2010) FLC 93 429, where the Full Court said as follows:
The mere filing of an application for special leave to appeal to the High Court does not operate as a stay of execution of the orders in respect of which leave to appeal is sought. Further, there are no provisions in the Act or the Rules that directly address the question of a stay of orders of the Full Court pending the determination of an application for special leave. Nevertheless, it is well established that when an application for special leave to appeal is made to the High Court, the jurisdiction to grant a stay may be exercised by the court below and it is to that court (that is, the court in which the matter is pending and which is familiar with the matter) that an application to stay should be made: Fauna Holdings Pty Ltd and McGillivray v Mitchell [2000] FamCA 548; (2000) FLC 93-024; Tate and Tate (No 4) [2003] FamCA 113; (2003) FLC 93-139. As such, it is not controversial that this Court has the power to grant such a stay.”
18	Dawes J continued at [57]:
That was an appeal from a decision of the Full Court of the Family Court which dismissed the husband’s appeal, but allowed the cross-appeal of the wife and made further orders. 
19	At [58], her Honour said:
The decision of the Full Court in Stephens and Stephens (Supra) did not however discuss the capacity of a Judge at first instance to hear an application for a stay in a matter in which the Full Court had merely dismissed the applicant’s appeal. 
20	At [59], her Honour said:
Clearly, it is without doubt that a Full Court of the Family Court of Australia could grant a stay in this matter.
21	At [62], her Honour said:
The inherent jurisdiction of a Judge at first instance to hear the stay is not inconsistent with the authorities to which the Court has been referred because the Judge at first instance is in this case “the Court before which the matter is pending” and the Court which is familiar with the proceedings. 
22	That paragraph highlights the central distinction between her Honour's decision at first instance and the case before me. Her Honour said at [63] that:
… a Judge at first instance has inherent power to hear a stay of an order made in interim proceedings by a Judge at first instance if the Judge who made the interim order is not available. In this instance the orders of Justice Strickland made on 5 November 2009 were made before His Honour was disqualified from hearing the matter further. 
23	Her Honour, therefore, concluded that it was within her power or jurisdiction to make the orders sought. Accordingly, in my view, the father's reliance on the decision of Dawes J in Strahan & Strahan (Stay and Various Interim Orders) is misconceived; it is entirely distinguishable from the case presently before me, as is the decision of the High Court in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1). Insofar as the decision of Dawes J in Strahan is concerned, even if it were not distinguishable, it would only be persuasive upon me and not binding, as the father has incorrectly submitted.
24	The State Central Authority, supported by the ICL, submits as follows in its written submissions filed 25 January 2023 (at [20]):
… there is authority for the proposition that the Court is functus officio and does not have the power to grant the relief sought by [the father]. 
25	The State Central Authority relied on the decision of the Full Court in Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76 in which Austin J, hearing an application to expedite an appeal against a dismissal of a stay application, said as follows (at [15]):
The proposed appeal lies from the primary judge’s dismissal of the applicant’s stay application. There is very good reason to think the primary judge had no power to grant such a stay. 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. 
26	His Honour continued at [16]:
The Full Court would have the power to stay the orders it made on 3 March 2022 dismissing the applicant’s appeal, pending the determination by the High Court of her application for special leave to appeal, though compelling circumstances are needed to justify the use of such power (Langley & Tarelli (No.3) (2021) FLC 94-060 at [15]). However, 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. 
27	At [17], his Honour said:
It is far from settled law that, having dismissed the appeal from the primary judge’s orders and exhausted its own appellate power, the Full Court (or any single judge exercising appellate jurisdiction) would have, as an adjunct, implied power to stay the primary judge’s valid orders pending the determination of the application to the High Court for special leave to appeal from the Full Court’s orders. It is always open to the applicant to make an application to the High Court for an order staying the primary judge’s return orders, though the exercise of that power too is “seldom invoked and rarely exercised” (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 683). 
28	The circumstances of the matter that was before Austin J are identical to those presently before me. The State Central Authority, supported by the ICL, concedes that his Honour’s comments are strictly obiter and that his Honour was determining an application to expedite an appeal against the decision to dismiss a stay application. However, it is submitted, that his Honour's statements, sitting as the Full Court, are expressed in clear and unambiguous terms, and that they are at the very least highly persuasive for the reasons of comity, if not precedent, and should be applied in the present case. I agree. The State Central Authority also refers to and relies upon the similar view which was expressed by an earlier Full Court in Anderson & Senior (Stay Appeal) (2013) FLC 93-556, where the Full Court (Thackray, Ainslie-Wallace and Murphy JJ) stated as follows (at [21]):
The point of this discussion is to question whether the husband was entitled to approach a General Division judge to seek a stay of the primary orders in circumstances where his appeal against those orders had been dismissed by a Full Court. Certainly in cases such as Fauna Holdings Pty Ltd and McGillivray v Mitchell (supra) the application for a stay pending the hearing of the matter in the High Court was made to the Full Court even though the Full Court had merely dismissed the appeal, leaving the primary order in full force and effect.
29	At [22], their Honours continued:
Consideration of this topic requires understanding that the proceedings in the High Court are a challenge to the order of the Full Court and not the orders of the primary judge. In saying this we recognise that a challenge to the former necessarily involves a challenge to the latter, at least in cases where the appeal has been dismissed. But it must also be recognised that our system is based upon a hierarchy of courts. Once the orders of a primary judge have received the imprimatur of the appellate court, we question whether the primary judge (or, as here, another single judge) can stay the operation of the primary orders, absent specific legislative authorisation (see Molier and Van Wyk (No 2) (1981) FLC 91-001, although the facts can be distinguished). 
30	Their Honours further said (at [23]):
Absent specific legislative authorisation conferring power on a general division Judge to hear an application for a stay of orders that have been the subject of an unsuccessful appeal, arguably the first step for an appellant wishing to appeal to the High Court should be to apply for a stay of the order of the Full Court dismissing the appeal.  That was what occurred in Commissioner of Taxation & Multiflex Proprietary Limited [2012] 82 ATR 724, where Edmonds J stayed an order of the Full Court of the Federal Court dismissing such an appeal in such circumstances.
31	After considering the decision of Edmonds J at [24], their Honours said as follows (at [25]):
We acknowledge that if a Full Court stayed its order dismissing an appeal, the result would be that the primary Judge's orders would still remain in force.  This is perhaps why French CJ said during argument in the special leave application in Commissioner of Taxation & Multiflex Proprietary Limited that it "struck him as odd that you stay a dismissal of an appeal". 
32	The State Central Authority concedes that, as in Austin J’s more recent decision in Martin & Commissioner of Police (No.2), the statements of the Full Court in Anderson & Senior can be seen as obiter, as the Full Court proceeded to consider the matter on the basis that the primary Judge did have power, as this had not been contested by the parties at first instance.  However, the submission made by the State Central Authority, in its reliance upon Anderson & Senior, nevertheless remains apposite.  The weight of the obiter of the two decisions, it is submitted by counsel, should be decisive in the present application.  
33	I am faced, on the one hand, with a first instance decision relied upon by the applicant father, which, at best, would be persuasive. However, for the reasons above, I am of the view that it is entirely distinguishable, by reason of the fact that it concerned an interlocutory decision, in proceedings which remained pending, unlike in the present case.  On the other hand, I have obiter, but strongly expressed obiter, of two Full Courts of this Court: Austin J, sitting as a single Judge in the appellate division, in Martin & Commissioner of Police (No.2); and Thackray, Ainslie-Wallace and Murphy JJ in Anderson & Senior. For the reasons above, I respectfully concur with the views expressed in those two appellate cases.  
34	Turning to the facts of this case, the appeal from my final orders at first instance was resoundingly dismissed by the Full Court and, accordingly, I find that my power as a first instance Judge to stay the orders, using Austin J’s terminology, “evaporated” when the father's appeal was dismissed on 16 January 2023. Accordingly, I am functus officio. Absent any relevant legislation, to which I was not referred by any of the parties, I conclude that I have no alternative other than to dismiss the father's Application in a Proceeding filed on 23 January 2023, seeking a stay, and I shall make an order that it be dismissed.
35	Having found that I have no power to grant a stay, there is no reason to consider the discretionary factors in favour of or against the grant of the stay, and I will not do so. However, I note that the father conceded there is no immediate risk of the children being returned to the United Kingdom because my first instance orders, made on 30 September 2022, imposed certain preconditions to return, which were set out in [4] of those orders. In circumstances where the father has not availed himself of the opportunity, which I provided him in [3], of returning to the United Kingdom with the children, [4] is now operative. That order provides that the State Central Authority is at liberty to make arrangements for the return of the children to the United Kingdom, subject to the following conditions being met by the requesting parent.
36	First, the mother was to take steps to relist the matter before the Family Court at County C and is to take all necessary steps to finalise the arrangements for the children upon their return to the United Kingdom.  That has not yet been completed and there are proceedings pending in the United Kingdom Court.
37	Secondly, prior to the children being returned, the mother was required to provide a copy of the plan endorsed by the relevant court in the United Kingdom setting out the arrangements for the children upon their return and confirmation as to how such a plan will be funded.
38	In circumstances where neither of those preconditions have yet been met, and I am in no way critical of the State Central Authority or the requesting parent for those steps not having yet been completed, I agree that there is no immediate risk of the children being returned.  
39	I express no view as to whether the father can apply to the Full Court, other than to note what was said in Martin & Commissioner of Police (No.2) at [16] by Austin J, namely, that a stay of the orders of the Full Court dismissing the appeal from my orders may well be otiose; nor do I express any view regarding the ability of the father to apply to the High Court for a stay of the operation or execution of my orders, pending finalisation of the proceedings in that Court.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum.	

Associate: 

Dated:	21 February 2023