Australian Coal and Shale Employees' Federation v The Commonwealth

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).

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the dismissal of the mother's Application in a Proceeding filed on 12 May 2025 seeking an order for the stay of orders made by me on 1 May 2025 pending the determination of her appeal.

1. The parties to these proceedings are the parents of two children, now aged ten years and eight years.
2. The father commenced proceedings under Part VII of the Family Law Act 1975 (Cth) ("the Act") in respect of the children on 30 May 2023. A trial occurred on various dates between 10 March 2025 and 29 April 2025. At the conclusion of the trial, I reserved my judgment. On 1 May 2025, I delivered my decision and reasons.[1]
3. Among other things, the final parenting orders made by me include orders that:

(a) The father have sole parental responsibility and sole decision-making authority for the children;

(b) On the delivery up of the children to the Court Children's Service on 1 May 2025 the children not spend time with the mother for a period of six months ("the moratorium period"); and

(c) On completion of the moratorium period, the children spend time with the mother on one occasion in December 2025 and thereafter, on four occasions in each calendar year.

1. The mother appealed from those orders on 29 May 2025 ("the appeal"). Prior to the filing of the Notice of Appeal, and on 12 May 2025, the mother filed an Application in a Proceeding seeking a stay of my orders. Simultaneously, the mother sought an order that the children live with her and that orders made by a Senior Judicial Registrar on 1 August 2023 be reinstated. Those orders provide for the children to live with the mother and spend supervised time with the father on a fortnightly basis at a contact centre.
2. By his Response to an Application in a Proceeding filed on 19 May 2025, the father invites me to dismiss the mother's application.
3. The application was promptly listed for hearing on 21 May 2025. However, the Independent Children's Lawyer with the consent of the parties sought an adjournment of the hearing in circumstances where despite filing an application for a stay of my orders, the mother had not filed a Notice of Appeal. The application was re-listed for a hearing on 10 June 2025.

(a) An Application in a Proceeding filed on 12 May 2025; and

(b) Affidavits in the name of the mother filed on 12 May 2025 and 6 June 2025.

1. The affidavit filed on 6 June 2025 was filed without leave of the Court. However, neither the father nor the Independent Children's Lawyer opposed my receipt of that evidence.
2. The father relied on the following:

(a) A Response to an Application in a Proceeding filed on 19 May 2025;

(b) An affidavit in the name of the father filed on 19 May 2025; and

(c) An Outline of Case Document filed on 19 May 2025.

1. Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") provides parties with the opportunity to apply for a stay of an order of the Court pending the outcome of an appeal.
2. As the judge who made the order under appeal, I have jurisdiction to hear and determine the application for a stay of the final orders. The principles relating to applications for a stay of orders are those described by Austin J in Zyma & Begum [2025] FedCFamC1A 11 at [15] to [16], as follows:
   1. 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] HCA 13; (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] HCA 84; (1986) 161 CLR 681 at 685).
   2. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (JRN & IEG [1998] HCATrans 263; (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.
3. The Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 ("Aldridge & Keaton (Stay Appeal)") confirmed the discretionary nature of the determination of an application for a stay pending appeal and identified eleven principles applicable to a stay application.[2] Those principles were adopted and applied in another Full Court decision in Cantrell & North & Anor (2019) FLC 93-921; [2019] Fam CAFC 127 ("Cantrell').[3]
4. Recently, the principles applicable to an application for a stay were described by Austin J in Navickas & Fried [2024] FedCFamC1A 248 ("Navickas") as follows:
   1. The power of the appeal court to stay the orders the subject of the appeal is found in s 38(1)(b) of the FCFCA Act.
   2. 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] HCA 13; (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] HCA 84; (1986) 161 CLR 681 at 685).
   3. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (JRN & IEG [1998] HCATrans 263; (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]-[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; at ). In relation to the proposed stay of appealed parenting orders, the welfare of the children 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 children's present circumstances are satisfactory, the of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.
5. The Navickas exposition of principles applicable to a stay application demonstrates that it is not necessary to separately address every one of the eleven principles set out in Aldridge & Keaton (supra).

1. In support of her application for a stay of the final orders, the wife relied on an affidavit filed on 12 May 2025. The application was seven paragraphs in length and did not address any principles applicable to an application for a stay of appealed parenting orders. The wife simply said as follows:

I have sought legal advice and have instructed my solicitor to file a Notice of Appeal.[4]

1. As discussed, the mother filed a further affidavit in her name on 6 June 2025.
2. I accept the mother's appeal is bona fides. However, the father is equally entitled to presume that my discretionary judgment is correct.[5]
3. By her Notice of Appeal, the mother identifies four grounds of appeal. I set them out as follows:
   1. His Honour failed to afford the mother procedural fairness by denying her the opportunity to obtain new legal representation following the withdrawal of her legal representatives part-way through her cross-examination.
   2. His Honour failed to give adequate weight to:
      1. The mother's serious allegations of family violence perpetrated upon her by the father throughout their relationship; and
      2. The likely psychological and emotional impact upon the children as a result of a change in their primary residence; and
      3. The mother's role as primary carer and primary attachment figure to the children.
   3. His Honour failed to provide adequate reasons as to why:
      1. An immediate change to the children's residence was justified; and
      2. Indefinite supervision of the mother's time with the children is required.
   4. The Orders made by His Honour are unreasonable and so plainly unjust so as to suggest errors must have been committed though the error may not be apparent.
4. With respect to the first ground of appeal, the mother's counsel asserted that the mother was denied procedural fairness by requiring her to cross-examine the single expert prior to obtaining alternate legal representation and/or in circumstances where the mother "lacked the expertise" to deal with the material. Further, the mother's counsel complained that the mother could not be expected to cross-examine the single expert with respect to a report, which was 99 pages in length. This being so, the mother's counsel submitted that the mother's appeal had a reasonable prospect of success.
5. Whilst I accept that the mother has "an arguable case", I note the following:

(a) Save and except for the task of cross-examination of the single expert on 14 March 2025 and closing submissions on 27 March 2025, the mother was represented by counsel. The circumstances giving rise to the withdrawal of the mother's solicitor and the subsequent agreement of the mother's counsel to remain until the conclusion of the mother's cross-examination are referred to at paragraph 38 of my Reasons for Judgment ("Reasons");

(b) There is no rule or authority, which requires a cross-examiner of any expert to have a particular qualification or expertise as so asserted by the mother's counsel. In any event, and by the time that the mother had the opportunity to cross-examine the single expert, she had been in possession of the single expert report for a period of about four months.[6] As such, I consider that the mother had significant opportunity to analyse the content of the report. When the mother expressed reservation about her ability to cross-examine the single expert, I suggested to the mother that she prepare a list of questions for the single expert. At my direction, she then provided that list to counsel for the Independent Children's Lawyer who asked the questions on behalf of the mother. The list of questions was marked as an exhibit by me.[7] Further, and when given a second opportunity to do so, the mother herself asked some unscripted questions of the single expert; and

(c) I was confident in the skill of counsel for the Independent Children's Lawyer. He cross-examined the single expert extensively and ensured that the opinions and recommendations of the single expert were tested.

(a) The mother asserts that I failed to give adequate weight to her serious allegations of family violence. I consider that this ground is unlikely to succeed in circumstances where my Reasons reflect that across the course of sixty paragraphs, I carefully considered the evidence with respect to the mother's allegations that:

(i) The father had sexually abused and physically assaulted the female child;

(ii) The father was a member of a paedophile ring and/or trafficked the children to sexual predators;

(iii) The father had abused the male child;

(iv) The father had acted inappropriately by leaving "soiled condoms about the house" and/or exposed the children to sex toys;

(v) The father had sexually assaulted the mother;

(vi) The father had produced child pornography, viewed child pornography and/or disseminated child pornography;

(b) The mother asserts that I failed to give adequate weight to the "likely psychological and emotional impact upon the children" by changing their primary residence. I consider that this ground is unlikely to succeed given that I discussed this topic and the single expert's opinion as to the possible harm to the children at [156] to [162] of my Reasons;

(c) The mother asserts that I failed to give adequate weight to "the mother's role as primary carer and primary attachment figure for the children". There can be no doubt that the mother was the children's primary carer. However, and as set out in my Reasons, I formed a view that the mother had caused the children psychological harm and that the risk posed by her was unacceptable.

(a) I gave extensive reasons as to why an immediate change to the children's residence was justified; and

(b) At [163] to [167] of my Reasons, I carefully considered why indefinite supervision of the children's time with the mother is required.

1. Finally, the mother asserts that my judgment was wholly unreasonable and unjust. Despite this, my orders afford the children more time with the mother than promoted by the single expert[8] and the orders were consistent with the proposal of the Independent Children's Lawyer.[9]
2. For these reasons, I consider that there is a limited likelihood that the mother's appeal will succeed.
3. Even if this conclusion is erroneous, I find that neither party will be personally prejudiced by the refusal of the stay application.
4. The mother's counsel asserts that the refusal of the stay application will be prejudicial to the children because it is not in their best interests to remain in the primary care of the father. I consider that submission to be an embodiment of the mother's belief, contrary to the cases advanced by the father and the Independent Children's Lawyer and supported by the single expert. The mother believes that the father has physically and sexually abused the children and that otherwise, she is a better parent. Her belief is not objective proof of the fact.
5. I also found that the children were at risk of harm in the mother's care. If I accede to the mother's application, I would be implementing an outcome, which is profoundly incongruent with my findings as to the unacceptable risk presented by the mother.
6. I also recognise that changes in the children's primary living arrangements should be minimised.[10] A stay of my orders would be incompatible with that objective by requiring the children to now return to the mother's primary care. If the stay is granted, the children return to the mother and her appeal ultimately fails, there will be another change of the children's living arrangements when the children recommence living with the father. If the stay is refused and the mother's appeal succeeds, only one change of residence back to the mother from the father will be required.
7. I am advised by the mother's counsel that the Full Court is hearing and determining appeals with expedition. I am also satisfied that the appeal will be heard with expedition.
8. For these reasons, I dismiss the mother's application for a stay of my final orders. For the same reasons, I dismiss the mother's application for a reinstatement of the parenting orders made by a Senior Judicial Registrar on 1 August 2023.
9. The father and the Independent Children's Lawyer have made an application for costs. I will reserve the father's costs of the application. Similarly, I will reserve the costs of the Independent Children's Lawyer. I direct that any application and affidavit in support with respect to the question of costs be filed within twenty-eight (28) days of the determination, withdrawal or abandonment of the appeal in relation to my final orders.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Kerimowa & Chong [2025] FedCFamC1F 277.

[2] The eleven dot points have been described as 'the First XI' of stay principles.

[3] Cantrell & North & Anor (2019) FLC 93-921; [2019] Fam CAFC 127 at [33].

[4] Mother's affidavit filed 12 May 2025, paragraph 5.

[5] Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627.

[6] The single expert report was released to the parties pursuant to an Order made on 25 November 2024.

[8] Kerimowa & Chong [2025] FedCFamC1F 277 at [163].

[9] Kerimowa & Chong [2025] FedCFamC1F 277 at [36].

[10] Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013.