Barone and Barone

[2011] FamCAFC 249

FAMILY COURT OF AUSTRALIA

BARONE & BARONE [2011] FamCAFC 249

FAMILY LAW ─ APPEAL ─ Application to expedite the hearing of an appeal ─ The Court was persuaded that a measure of expedition was warranted

Family Law Act 1975 (Cth)

APPELLANT: Mr Barone

RESPONDENT: Ms Barone

INDEPENDENT CHILDREN’S LAWYER: Ms Baker

FILE NUMBER: SYC 6392 of 2009

APPEAL NUMBER: EA 108 of 2011

DATE DELIVERED: 23 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman J

HEARING DATE: 23 December 2011

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 1 September 2011

LOWER COURT MNC: [2011] FMCAfam 902

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Batey

SOLICITOR FOR THE APPELLANT: Parry Carroll Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Brischetto  & Ford Solicitors

COUNSEL FOR THE ICL: N/A

SOLICITOR FOR THE ICL: Peter Baker Solicitors

Orders

1. That the matter be referred for hearing before a bench of three Judges.

2. That the Appeals Registrar be requested to list the appeal for hearing at the first available Sydney sittings of the Full Court after 1 May 2012.

3. That the costs of and incidental to these proceedings be reserved to the Full Court.

4. That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.

5. That each party have liberty to apply for any further directions to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon four (4) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.

IT IS NOTED that the estimated time for the hearing of the appeal is 1 day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barone & Barone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 108 of 2011

File Number: SYC 6392 of 2009

Mr Barone

Appellant

And

Ms Barone

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application to expedite the hearing of an appeal against orders made by Chief Federal Magistrate Pascoe in parenting proceedings between the parties.

2. The appellant in the proceedings is the father. Broadly speaking it can be said, that he was awarded significantly less time with the two children of the former marriage of the appellant father and respondent mother who are now aged five years and four years, than he sought. The time during which the father could permit the children to be in the company of his parents was also constrained by the orders of the learned Chief Federal Magistrate.

3. The notice of appeal raises a number of challenges, the most numerous, extensive and concentrated of which appear to be what the law describes as, “adequacy of reasons challenges”. The notice of appeal seeks that the Full Court re-exercise the learned Chief Federal Magistrate’s discretion if the appeal is upheld. Without having heard counsel for the appellant on this topic, or needing to because it would ultimately be a matter for the Full Court which hears the appeal, it is difficult, if not impossible, to imagine how, if the current reasons challenges succeeded, or any of them succeeded, there could be any outcome other than a new trial.

4. As is not in doubt, and the learned Chief Federal Magistrate recounted some of these matters in his reasons for judgment of 1 September 2011, the parties have had what might be described as a tortured path of litigation already, particularly when regard is had to how young their children are.

5. As suggested to Mr Ford, solicitor appearing for the respondent, who has, with respect, raised everything that reasonably could be raised in opposition to the granting of expedition, whilst every case which comes before the Full Court is urgent for the parties who have the misfortune to be involved in them, the Full Court can only accommodate so many cases in a way that accords with due process and the proper administration of the business of an intermediate Appeal Court.

6. There is, as suggested to Mr Ford, a spectrum of urgency. Some cases, and this is not one of them, are obviously of such urgency as to warrant all possible expedition. They include, most obviously, Hague Convention cases, whether there is an order for repatriation of a child or children or not, international relocation cases, and cases where the Court has declined to find abuse or unacceptable risk, and the party asserting that issue has challenged that outcome, and property and financial cases where failure to expeditiously hear an appeal and determine an appeal could irreparably damage the property rights of a party. At the other end of the spectrum there are cases, most usually property cases involving litigants with abundant resources, and no urgency, which take their turn in the usual course.

7. In the Court’s view this case falls somewhere between the extremities. That is because, if the appellant’s contentions are correct and the learned Chief Federal Magistrate’s judgment is held to be erroneous in law, two things would appear inevitably to follow. The first is that there would need to be a new trial. The second is that the Full Court would be in no position to            re-exercise, even on an interim basis, the discretion of the subordinate court to make orders other than those successfully challenged by the father, albeit they would be in the nature of interim orders.

8. It is appropriate to have regard to the consequences of an appeal being successful, if it is. In terms of prejudice to the respondent, the Court does not understand Mr Ford to assert any particular prejudice other than that which inevitably occurs for a respondent to an appeal, in that until the appeal is heard and determined in favour of the respondent, if that be the outcome, the respondent is denied unconditional enjoyment of the fruits of success at trial. Only so much weight can be given to that however, a party to litigation such as this, has a right to challenge the decision of the subordinate court without the requirement of leave. In those circumstances, only so much significance can attach to that issue. Moreover, it could be argued that it is as much in the interest of the respondent mother to know whether she can retain the benefits of the orders made by the learned Chief Federal Magistrate or not, than to remain in suspense, as it were, for a longer period.

9. As conceded in discussions with Mr Ford, the decision of the Court is necessarily significantly and substantially arbitrary, and is based on the Court placing this appeal in the spectrum in a way which the Court concludes to be fair to these parties and their children, and the interests of their children, and to other litigants who are awaiting a date for the hearing of their appeals.

10. On balance, the Court is persuaded that a measure of expedition is warranted and that a direction that the Appeals Registrar list the appeal for hearing before the Full Court sitting in Sydney at the first sittings after 1 May 2012 would, in the circumstances, be appropriate.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 23 December 2011.

Associate:

Date: 19.03.2012