Alexander v Cambridge Credit Corporation Ltd

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Hronn & Torleif has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 14 November 2025, the Court made final parenting orders which involved changing the primary care of the child the subject of the application. The orders required the applicant to deliver the child to the second respondent within 21 days of the final order having been made. It is common ground that the applicant has not complied with the order.
2. On 4 December 2025, the applicant filed an appeal from the primary orders. After that date, the applicant filed an Application in a Proceeding which by its form was incompetent in that it sought orders for the child to live with her in circumstances where the Court had already made a final parenting order. The applicant filed in support three affidavits on 5 December 2025, 10 December 2025 and 15 December 2025. Notwithstanding the incompetence of the application, it is clear from the terms of at least the affidavit filed 10 December 2025 that the applicant seeks a stay of the orders.
3. The applicant's stay application was opposed by the third respondent who sought a Recovery Order. Counsel who appeared for the respondent agreed that the Court should first determine the stay application and, depending on its fate, then determine the recovery application. The Independent Children's Lawyer ("the ICL") supported the granting of a stay.
4. The power to grant a stay pending an appeal is discretionary and is embodied in part in r 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). A stay is not ordered as a matter of right. The power to order a stay is incidental to the right of appeal.
5. The principles applicable to a stay are well settled (Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106). In order to justify a stay, the party seeking the stay bears the onus of establishing circumstances warranting a departure from the general rule that a judgment is presumed to be correct and liable to be enforced (Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693-694) and a court should not deprive a successful litigant of the fruits of litigation without just cause (Kelly and Kelly [1980] FamCA 88; (1981) FLC 91-007).
6. Thus, to succeed the applicant must establish the stay application is brought bona fide and that she has an arguable case. The Court may in certain circumstances weigh the balance of convenience and the competing rights of the parties.
7. In circumstances where the appeal is from a parenting order, a relevant consideration is the desirability of limiting the frequency of any change to a child's living arrangements.

1. The child the subject of the stay application has been living in the applicant's care since at least April 2022. In the reasons for judgment recorded as Hronn & Torleif (No 2) [2025] FedCFamC1F 821, I concluded that it was in the child's best interests to commence living in the care of the third respondent. In that respect, I noted that whilst the child's views were to remain living in the care of the applicant, I was satisfied that little weight should be given to the child's views in light of his age.
2. In the reasons for judgment, I recorded the following matters:
   1. For the reasons given above I am satisfied that [X's] developmental, psychological and emotional needs can be met by Ms [Hronn] in [Town C] and Ms [Tracey] in [Town N]. I accept the evidence of Mr [H] that [X] will find a separation from Ms [Hronn] traumatic and he will be very distressed if he does not see her and have contact with her.
   2. I am for the reasons given above satisfied that both Ms [Hronn] and Ms [Tracey] have the capacity to provide for [X's] developmental, psychological, and emotional needs. I am not persuaded that Ms [Hronn], other than at a very superficial level, has the capacity to provide for his cultural needs.
   3. I am satisfied for the reasons given above that his cultural needs can only be provided by him being on country in [Town N]. I am satisfied that Ms [Tracey] is able to provide for his cultural needs.

...

1. Given the distance the parties are apart and their limited financial means, on Ms [Hronn's] case if [X] lives in [Town C], he will not visit his community or his country. If he lives with Ms [Tracey] on country, he will not see Ms [Hronn]. Ms [Hronn] says she cannot afford to travel and that she is fearful of going to [Town N]. She puts forward no proposal to go there.

...

1. In view of my earlier findings as to risk, I am satisfied that [X] would be safe living in either [Town C] or [Town N]. I am satisfied that if [X] remained living with Ms [Hronn] in [Town C], then he would be living in a household where his carer loves him and will attend to his educational and therapeutic needs. I accept that if he were to leave her primary care and move to live with Ms [Tracey] it would be distressing for him, and he would find it traumatic. I accept the evidence of Mr [H] that trauma would have long-term consequences for him as he progressed into adulthood.

2. Whilst Ms [Hronn] believes that she will be able to provide and meet his cultural needs, I am not satisfied that she can, as those needs can only be met on country. I am satisfied in accordance with s 60CC(3)(b) of the Act that the orders she seeks would impact negatively on [X's] right to enjoy his culture and to connect with his community, culture and country and to explore the full extent of that culture. An order giving sole decision-making responsibility to Ms [Hronn] where she cannot be a [O kin] to [X] as she is no longer on country and not a part of the community would be inconsistent with the kinship obligations and child-rearing practices of [X's] culture.

...

1. Whilst [X] would find the loss of his relationship with Ms [Hronn] traumatic, that trauma must be measured against what I am satisfied would be the long-term effect of his disconnection from his country, community, and kin. His identity as an Aboriginal person is linked to his connection to his country.

...

1. A return to [Town N] for [X] is not a return to some alien location. He is returning to a place where he has lived most of his life. With a return to [Town N], in the primary care of Ms [Tracey], and through being on country, [X] can learn about his culture through the stories and rituals that can only be taught on country. He will be able to take part in Men's Business which the elder men in [Town N], including Mr [G], can teach him. He can become a [traditional healer] like his grandfather. He will be able to assume the cultural responsibilities of his community. This cannot occur in [Town C].
2. I am satisfied that the impact of the orders proposed by Ms [Tracey] are such as to enable [X] to enjoy the rights identified in s 60CC(3) of the Act and that Ms [Tracey] and Mr [G] can support and provide [X] with the opportunity and encouragement necessary to connect and maintain his connection with members of his family, community, culture, country and language; explore the full extent of his culture; and develop a positive appreciation of his culture.

1. The applicant relied upon her various affidavits and submitted that as a consequence of interim orders, the parties had agreed that the child should remain in her care pending the Court making final orders. She said that in circumstances where she had lodged an appeal, the Court had not as yet made final orders. I pay no regard to this submission which, as a matter of law, is clearly incorrect.
2. The third respondent submitted that the applicant's stay application was clearly deficient in that it did not seek a stay, that the grounds of appeal show no more than dissatisfaction with the result rather than error, and that the appeal as drafted 'cherry-picks' various findings without the full context being identified. Counsel for the third respondent also contends that the Court should view the appeal as absent bona fides in circumstances where there appears to have been a re-opening by the applicant of investigations that have been closed and that the appeal would not be rendered nugatory in circumstances where if the Full Court made orders setting aside the orders the subject of the appeal, then the child could return to the applicant's care without any harm being occasioned to him.
3. The ICL submitted that the Court should grant a stay as it would only be for a short period of time.
4. I accept as submitted by the third respondent that the judgement is presumed to be correct and liable to be enforced and the third respondent is entitled to the benefit of the judgment. Whilst I am satisfied that the applicant has been dilatory in bringing this application, I am persuaded that it is brought bona fide. The grounds as framed are prolix and poorly drawn and contend for matters which are inconsistent with the case conducted by the applicant at trial. In that respect, I note that counsel for the third respondent draws the Court's attention to an annexure to the applicant's affidavit from Northern Territory Legal Aid which contends that they are not satisfied the proposed appeal has reasonable prospects of success and is more likely than not to fail. The applicant submits that this is not in response to the appeal as filed.
5. I am prepared on this application to give the applicant the benefit of the doubt that the appeal may ultimately, albeit perhaps not entirely in the form in which it is currently framed, be arguable. I am persuaded that the single factor that warrants the granting of a stay is the consequence of any disruption to the child which may arise in circumstances where the Full Court might find error.
6. In circumstances where the appeal will be heard before March 2026 and in circumstances where the expert's evidence was that a change of residence for the child would be distressing, then I am persuaded his best interests require that any additional distress be avoided where possible. Whilst the third respondent is entitled to the benefit of her judgment, there are greater considerations at play in the case of a child and in circumstances where the Court is cognisant of the fact of distress being occasioned then it is consistent with the child's best interests to avoid where possible such distress.
7. Accordingly, I propose to make orders granting the stay pending determination by the Full Court.
8. The consequence will be that the recovery application will be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.