Arndale and Kingley (No 2)
[2011] FamCAFC 28
•20 January 2011
FAMILY COURT OF AUSTRALIA
| ARNDALE & KINGLEY (NO 2) | [2011] FamCAFC 28 |
| FAMILY LAW - APPEAL – Application for expedition filed by the Independent Children’s Lawyer – Where should the appeal not be expedited the matter will not be able to proceed to trial before the end of the year – Where the father supports the application for expedition – Where the mother was not served with the application and the accompanying affidavit – Where the extraordinary weather conditions prevented the mother from being at her usual address – Where the self represented mother expressed some reservations about her ability to prepare for an expedited appeal – Where support will be given, as far as possible, to the mother to assist her preparation for the hearing of the appeal – Where the best interests of the child require expedition –Application allowed. FAMILY LAW - COSTS – The costs of the application of the father reserved to the Full Court. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Arndale |
| RESPONDENT: | Mr Kingley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| APPEAL NUMBER: | NA | 117 | of | 2010 |
| DATE DELIVERED: | 20 January 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 20 January 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 October 2010 |
| LOWER COURT MNC: | [2010] FamCA 968 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Smith & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The hearing of the appeal filed 4 November 2010 be expedited. The appeal, if possible, be listed for hearing in the week commencing 28 March 2011, in the Brisbane sittings.
The costs of the respondent father of this application be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 117 of 2010
File Number: BRC 1363 of 2008
| Ms Arndale |
Appellant
And
| Mr Kingley |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings between the parties concerns parenting orders for the child C Arndale-Kingley, born December 2006.
An application was filed on 24 December 2010 by Ms Dart, the Independent Children’s Lawyer, seeking that the appeal filed by the mother on 4 November 2010 be expedited.
The mother is appealing order 5 of the orders made by Justice O’Reilly on 8 October 2010. That order is in the following terms:
(5)The independent children’s lawyer not be discharged and a new independent children’s lawyer not be appointed.
There is one ground of appeal: that the trial judge failed to provide any or any adequate reasons for her decision. Should her appeal be allowed the mother asks that the Independent Children’s Lawyer be discharged, and that the father and Independent Children’s Lawyer pay her costs of and incidental to the appeal.
Submissions in relation to expedition
In the affidavit Ms Dart explains that she believes that it is in the child’s best interests for the substantive applications which are currently before the court to be determined as soon as possible. Ms Dart is concerned that should the hearing of the mother’s appeal not be expedited that the notional trial dates in March, which have been allocated to this matter, may be lost, causing further delay.
In support of the application, Ms Dart filed an accompanying affidavit. Annexed to the affidavit is a useful chronology of the major court events commencing with 14 February 2008, when the father filed an Initiating Application in the Federal Magistrates Court. The matter was initially allocated to Barry J for hearing on 28 May 2010, but for reasons well known to the parties, that hearing did not take place.
On 8 October 2010, O’Reilly J ordered that if possible trial dates be allocated in this matter no later than early 2011 for approximately 15 days.
Ms Dart explains that the mother’s appeal relates to a discrete issue and that “[i]t would be unusual for a Judge to proceed with a trial on the substantive applications in this matter prior to [the mother’s] Appeal being determined”.
The Independent Children’s Lawyer also correctly says:
20.When this matter was before the Honourable Justice May on 10 September 2010 (for Judgment in relation to Ms [Arndale’s] application for leave to proceed out of time with an appeal on another matter), Her Honour informed the parties that she had spoken with the Chief Justice about her concerns about the delays in relation to this matter and that the Chief Justice had asked her to convey to the parties that everything would be done to expedite it.
21.On or about 9 December 2010 I spoke with Registrar Spink in relation to this matter. Registrar Spink informed me and I verily believed that if this appeal proceeds through the normal course, it is possible that the appeal may not be heard until August/September 2011. As a result, this would most likely result in the trial of the substantive applications not proceeding in March 2011 as currently planned. I am concerned that if the trial does not proceed in March 2011 there will be a significant delay before the Honourable Justice O’Reilly or another Judge has 15 days available, after determination of the appeal, for them to hear and determine the substantive applications in this matter.
Ms Dart concludes her affidavit by stating that the child is now 4 years of age and that “[t]his litigation has been on foot since February 2008, which is almost half of this child’s life”. She believes it is in the child’s best interests to have the substantive application proceed to final hearing as soon as possible.
Mr Smith, who today appears for the respondent father supports the application for expedition.
Ms Arndale appears by telephone. Unfortunately due to the extraordinary weather circumstances in Queensland in recent times, she has not received a copy of the application or the affidavit. Ms Arndale does not particularly complain about that, having explained to me herself, that it has been necessary for her not to be at her usual address.
Ms Arndale is not opposed to the order for expedition as such, but I should say that she expressed considerable concern about how she can prepare for this appeal within a short space of time. I should mention that Ms Arndale explained to me that she has various other matters before the court, including apparently an application before Registrar Filippello and she is seeking legal advice. Her advisor, Mr Baston of counsel has indicated to her that he will not be available until 16 May 2011.
It is apparent that if this matter waited until then it would be impossible to expect that the trial would take place much before the end of the year. Justice demands that the trial takes place as soon as possible and that can not happen until the appeal is heard. It does involve a very important matter obviously to the mother, but also to all the parties in these proceedings. It is vital that the appeal is heard as soon as possible.
Bearing in mind the mother’s difficulties I have indicated to her that to the extent possible the Appeal Registrar will assist her.
It seems to me that the hearing of the appeal should be expedited.
Costs
In this case it is appropriate that the costs of the father for this application to be reserved to the Full Court.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 20 January 2011.
Associate:
Date: 23 February 2011
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