Bartz and Manthey

[2018] FamCAFC 109

FAMILY COURT OF AUSTRALIA

BARTZ & MANTHEY [2018] FamCAFC 109

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against interim parenting orders – Where the matter is not one  which might ordinarily attract an order for expedition – Unusual circumstances – Where final hearing dates should not be jeopardised – Where there is no obvious nexus between the appeal and the matters to be determined on a final basis – Where it was in the interests of the child and justice that the appeal be determined expeditiously – Application granted.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Ms Bartz

RESPONDENT: Mr Manthey

FILE NUMBER: CAC 609 of 2016

APPEAL NUMBER: EA 57 of 2018

DATE DELIVERED: 13 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 13 June 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 12 April 2018

LOWER COURT MNC: [2018] FCCA 1305

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Barnett

SOLICITOR FOR THE APPLICANT: Campbell Paton & Taylor

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Walsh & Blair

Orders

1. The appeal be expedited.

2. That the documents to be relied on at the appeal shall comprise the following documents arranged in the following order:

   1.Notice of Appeal filed 1 May 2018;

   2.Orders of Judge Neville dated 12 April 2018;

   3.Reasons for Judgment of Judge Neville released 12 June 2018;

   4.Initiating Application filed by the respondent father on 18 April 2016;

   5.Amended Response to Initiating Application filed by the appellant mother on  14 September 2016;

   6.Application in a case filed by the respondent father on 7 September 2017;

   7.Response to an Application in a Case filed by the appellant mother on 24 November 2017;

   8.Affidavit of Ms Bartz filed 3 July 2017;

   9.Affidavit of Mr Manthey filed 11 July 2017;

   10.Affidavit of Mr Manthey filed 7 September 2017;

   11.Affidavit of Ms Bartz filed 24 November 2017;

   12.Affidavit of Ms Brown filed 24 November 2017;

   13.Orders of Judge Neville dated 21 December 2016;

   14.Orders of Judge Neville dated 14 July 2017;

   15.Orders of Judge Neville dated 16 May 2018;

   16.Written submissions filed by the respondent father on 22 December 2017;

   17.Written submissions filed by the appellant mother on 12 January 2018; and

   18.Family Report prepared by Ms Connor dated 5 December 2016.

3. That on or before 20 June 2018 the appellant obtain the transcript of evidence of the hearing before Judge Neville including the transcript of 12 April 2018 and email copies of such transcript to the respondent and to the Court using the email address ….

4. That the appellant file and serve a written summary of argument and list of authorities (if any) on or before 10:00am on 18 June 2018.

5. That the respondent file and serve a list of any further documents that were before Judge Neville, not included in the appellant's list, upon which he seeks to rely, together with a written summary of argument and a list of authorities (if any) on or before 4:00pm on 20 June 2018.

6. That each party be at liberty to apply for any further directions to the Honourable Justice Ryan (or if not reasonably available to another member of the Appeal Division) upon seven (7) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.

7. Any application to adduce further evidence in the appeal is to be filed and served by 10:00am on 18 June 2018 and any affidavit in reply is to be filed and served by 4:00pm on 20 June 2018.

8. That the appeal be listed for hearing before the Honourable Justice Ryan (or if not reasonably available then such other judge as may be nominated by the Honourable Deputy Chief Justice Alstergren) at noon on 25 June 2018.

9. That the costs of today’s proceedings be reserved.

It is noted that

1. The estimated hearing time of the appeal is 2 hours.

2. Mr Coleman/Ms Barnett is briefed to appear as counsel for the Appellant.

3. Mr Givney is briefed to appear as counsel for the Respondent.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 57 of 2018
File Number: CAC 609 of 2016

Ms Bartz

Applicant

And

Mr Manthey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed 6 June 2018, Ms Bartz (“the mother”) seeks an order for an expedited hearing of her appeal (EA 57 of 2018).  The appeal relates to Orders 4 and 6 of interim parenting orders made by Judge Neville on 12 April 2018.

2. The parenting proceedings concern the parties’ child, X, born in December 2012 (“the child”).

3. Mr Manthey (“the father”) is the child’s father and the respondent to this application and to the appeal.

4. The orders under appeal provide that the child spend time with the father every third weekend from Friday at 5:00pm to Sunday at 4:30pm during school term and otherwise from Saturday at 9:30am to Monday at 4:30pm week about, alternating between time being spent in Town A and in Town B (Order 4).  Further, the orders provide that changeover is to occur at the mother’s residence and otherwise at McDonalds (Order 6).

5. The father supports the application for expedition.  

6. This is not a matter which, notwithstanding the submissions made by counsel for the mother, might ordinarily have attracted an order for expedition.  However, there are some unusual circumstances in this case which, as I will explain, justify such an order.

Relevant background

1. So as to give this application context, it is necessary to refer to some brief background facts.  These are taken from documents filed in support of this application and the father’s submissions received 12 June 2018.

2. The parties commenced cohabitation in October 2011 and separated in October 2014.

3. There is one child of the relationship to whom reference has already been made. The child was 5 years of age at the time of hearing.

4. Since separation the child has lived with his mother in Town B.

5. On 18 April 2016 the father filed an initiating application in the Federal Circuit Court seeking time with the child.  The father lives in Town A, approximately 300 kilometres from the mother’s residence in Town B.

6. On 16 September 2016 interim orders were made by consent for the child to spend time with the father every second weekend from 9:00am on Sunday to 4:00pm on Monday in Town B.

7. On 22 September 2016 orders were made for a family report.  Following the release of the family report on 15 December 2016, the primary judge varied the orders of 16 September 2016 and made further interim orders.  These orders, made on 21 December 2016, provide for the child to spend time with the father every second weekend from 9:00am on Saturday until noon on Monday in Town B.

8. Trial directions were issued on 14 July 2017 and the matter was listed for final hearing before Judge Neville on 12 September 2018.

9. At some stage the parties agreed to instruct the family report writer to prepare an updated family report for that September 2018 hearing.  Interviews for the updated report are scheduled for June 2018.

10. Trial directions provided for the parties to notify the primary judge’s associate by 31 August 2017 whether the matter was required to be listed for a further interim hearing. 

11. On 7 September 2017, the father filed an application seeking further interim parenting orders and a variation of the orders dated 21 December 2016.

12. The mother’s response was filed on 24 November 2017 following which the father’s application was dealt with by way of written submissions.

13. On 12 April 2018 the primary judge made orders in accordance along the lines of those sought by the father and made some brief remarks for so doing.  His Honour indicated at the time that the parties could request written reasons.

14. On 19 April 2018 the mother contacted the chambers of the primary judge requesting written reasons for judgment.  Those written reasons and/or settled reasons were not received and on 1 May 2018 the mother filed her notice of appeal.

15. The mother filed an application for a stay of the orders on 4 May 2018 which was made returnable before his Honour on 16 May 2018.  On that occasion the parties were informed that the stay application would not be heard until November 2018.  To give a hearing date for a stay of interim parenting orders six months hence was tantamount to a refusal of the application for the stay.  In any event, the parties were given the opportunity in the alternative, for the determination of the stay application to be dealt with by way of written submissions.  The opportunity was taken and written submissions were filed as directed.   

16. Judgment on the stay has not been delivered.

17. On 29 May 2018 the parties’ received an email from his Honour’s chambers as follows:

    The parties and their legal advisers are aware that his Honour is currently preparing written reasons following the oral judgment delivered on 12 April 2018, and pursuant to a Notice of Appeal filed on 1 May 2016.

    Everyone is also aware that the matter is currently listed for Final Hearing in September 2018, and that the matter has Family Report interview dates in June 2018.

    Given the relative proximity of the Final Hearing and the possible/likely Appeal dates, his Honour has requested the following matters be raised with the parties, especially in the light of the prominent High Court discussion/instruction in cases like AON v ANU regarding the efficient use of scarce public court resources. The Court is currently minded to vacate the Final Hearing in this Court should the Appeal be pressed. This is to ensure that valuable Court resources are not allocated to matters that are being run, in essence, in two Courts concurrently, and to ensure that currently scheduled final hearing time is not rendered superfluous.

    In these circumstances, would the solicitor for the Mother please indicate by close of business on 1 June 2018, whether the Appeal will be pressed (and the Final Hearing dates vacated), or (b) whether the Appeal will be withdrawn (and the Final Hearing dates retained). If the Father has any relevant comment, he should feel free to do so within the same time-frame.

    Thank you for your assistance in this matter. We look forward to hearing from you as to whether we shall be vacating the currently listed trial dates, should the appeal regarding the interim Orders be pressed. For completeness and general information, we should also note that new final hearing dates are now well in to 2019.

    Yours sincerely,

    Chambers of Judge Neville.

    (As per original)

18. The solicitors for the mother responded as follows:

    On behalf of our client, we respectfully, but vigorously, oppose the adjournment of the Final Hearing of these proceedings in September of this year.

    The parties have been litigating in the Court since early 2016. To deny the parties the opportunity of a final hearing after all that time, and in circumstances where future dates for trials are said to be “well into 2019”, we respectfully submit, is procedurally unfair and contrary to the interests of justice.

    We respectfully disagree with your suggestion that there is a logical or legal nexus between the final hearing of the proceedings and a pending Appeal against an interlocutory order, particularly in circumstances where reasons for judgment with respect to the interlocutory decision which gives rise to the Appeal have not been delivered, and judgment on an application to stay the Orders is reserved.

    We would appreciate an early response to our client’s submissions, in order for us to advise our client as to her options in consultation with senior counsel.

    Yours faithfully

    Campbell Paton & Taylor

    (As per original)

19. As will be apparent, the gravamen of the correspondence from his Honour’s chambers was to the effect that if the mother chose to proceed with her appeal in relation to the interim parenting orders, his Honour was “minded to vacate the final hearing date in this court”.  No doubt aware that the father, who after all is the moving party in the court below, would be affected if the hearing date was vacated, he was invited to comment on this proposal.  He did and by letter of 4 June 2018 the father joined in with the submission of the mother, that the final hearing date should not be vacated. 

20. Correspondence with his Honour’s chambers continued and on 7 June 2018 a further email was received from the chambers as follows:

    I refer to the above matter and the respective e-mails from both sides, which have been brought to the attention of HH.

    In HH’s view, the Mother had not provided a direct response to the propositions put by the Court.

    I confirm that a decision in relation to whether the Final Hearing will be vacated, shall be made after the Family Court’s directions hearing, which is to occur on 13 June 2018. Subject to what Justice Ryan’s directions are in relation to the Appeal, Judge Neville is minded to vacate the Final Hearing in this Court notwithstanding the difficulties that may create.

    Pressing such an Application remains antithetical to the efficient use of public resources, by running the same matter in two different Courts, at the same time.    

    Yours sincerely,

    Chambers of Judge Neville.

    (As per original)

21. As it transpired and following requests from this court, the primary judge’s written reasons were received after the close of business last night and were forwarded by this court to the solicitors for the parties shortly after.  Counsel who have appeared on the application today received the written reasons this morning.

Discussion

1. Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the appeal division, or another judge if there is no judge of the appeal division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the rules which specifically deals with the criteria to be applied on expedition of an appeal.

2. However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the Court may take into account and which are also relevant to appeals will be discussed.

3. Subparagraph (a) is concerned with whether the applicant, in this case the mother, has acted reasonably and without delay.  The Notice of Appeal was filed on 1 May 2018 and the application was filed on 6 June 2018.  The mother has acted promptly, indeed expeditiously.

4. Subparagraph (c) concerns prejudice to the respondent, in this case the father.  There is no assertion on the father’s behalf that he would be prejudiced if the appeal was brought on quickly, indeed the court has been met with nothing but cooperation by counsel for the father, no doubt driven by the father’s fear that his Honour will make good on what is perceived to be an unjustified proposal to vacate the final hearing.  The point being as, was made clear by both counsel today, and, contrary to the material contained in the judge’s correspondence that has issued from the chambers, there is no relevant nexus between the matters to be determined on the appeal and the matters which require consideration at a final hearing. 

5. Subparagraph (d) is addressed in counsel for the mother’s written submissions and it is appropriate to record paragraphs 19-21 of the submissions below:

   19. Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases. In this matter the orders are with respect to a young child, five years of age, who according to the mother is having significant difficulty in coping with the orders made. However, it is the other circumstances of this matter which lend weight to the matter being heard with expedition those being:

   (a)   Notwithstanding almost nine weeks have passed since orders were made no judgment has been provided;

   (b)  Similarly, the mother has sought a stay to the interim orders but no determination has been made with respect to that Application; and

   (c)  The Court has indicated that “running the same matter in two different Courts, at the same time” is antithetical to efficient use of public resources (email dated 7/6/2018 from the chambers of Neville J – to be tendered). This communication appears to press the mother to abandon her appeal or risk losing the Final Hearing dates in circumstances where a judgment has not been received nor a decision regarding her application for a stay has been made.

   20. It is submitted that the Court ought to take into account consideration of the merits of the appeal (see Gorman v Huffman [2015] FamCAFC 127 at [22]). At this stage there is no judgment which provides a strong basis for an error to be found. Should judgment be delivered the Appellant will be in a better position to make submissions regarding the strength of the other grounds of appeal. However, the delay in delivery of reasons raises serious concerns regarding the delay. As the Full Court of the Family Court said in Macris & Galanis [2015] FamCAFC 234 at [33]

   A significant delay puts a litigant in an untenable position of not knowing, other than by conjecture, why the orders were made.  There is also the quandary of whether there is a justifiable basis to appeal.  The appeal consideration is not merely based on the outcome so much as on whether there is a justifiable ground to assert error either as to law or as to the determination of the facts.  It is for this reason that a failure to give reasons simpliciter has long been held to be an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376). Hence, the delivery of subsequent reasons both inside and outside of a designated appeal period may not cure the injustice caused by the failure to publish reasons contemporaneously with, or very soon after, the pronouncement of orders. Of course, each case has to be determined by reference to its own facts and in one case a gap may create injustice whereas in another case a similar gap may be inconsequential.

   21. Furthermore, on the Face of the Orders there appears to be an error of fact given the Child did not commence school in 2018 but will do so in 2019.

   (As per original)

6. Further submissions were made today, the gravamen of which is that the sentiments contained in the correspondence from his Honour’s chambers are “deeply troubling”.  Rightly or wrongly, the mother’s perception is that his Honour has placed her in a very difficult position and she has a sense of being placed under pressure to abandon the appeal.  Parties are faced with making difficult decisions in litigation and the fact that they must do so is not, in itself, remarkable.  However, what has unfolded here is unusual and troubling.  Difficult as it is to accommodate an expedited hearing, it is appropriate that this court does whatever is can to enable the parties to argue to his Honour that the dates allocated to their final hearing should not be vacated and, if in order to do so, this appeal has to be determined extremely quickly, that’s what will be done.

1. I would not want the parties and this court to be placed in this difficult situation too often.  It is one thing when there is an obvious nexus between the appeal and the matters to be determined on a final basis for a trial judge to be concerned about when an appeal from interlocutory orders could be dealt with, it is another thing when there is no nexus as I am satisfied is the case here.  Accordingly, I am satisfied that it is in the interests of the child and justice that the appeal is expedited.

2. I am grateful to counsel that they are able to ensure that the matter is ready to be heard within the fortnight.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 June 2018.

Associate: 

Date:  14 June 2018