Cimorelli and Wenlack (No 2)
[2019] FamCAFC 255
•18 December 2019
FAMILY COURT OF AUSTRALIA
| CIMORELLI & WENLACK (NO. 2) | [2019] FamCAFC 255 |
| FAMILY LAW – APPEAL – APPLICATION IN APPEAL – REINSTATEMENT – Multiple appeals deemed abandoned – Failure to comply with time‑frame for filing Draft Appeal Index – Non‑compliance based on genuine mistake – Where the orders sought to be challenged on appeal are no longer the operative orders in the proceedings – Reinstatement of the Notice of Appeal would be futile – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Oral application for expedition of additional appeal – Respondent not present – Efficient use of court resources – Where denial of procedural fairness to the respondent is justified –Application granted. |
| Family Law Rules 2004 (Cth) r 22.13(2) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra (an infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Cimorelli |
| RESPONDENT: | Mr Wenlack |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2881 | of | 2013 |
| APPEAL NUMBER: | EA | 107 | of | 2019 |
| DATE DELIVERED: | 18 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 18 December 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 755 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Cotter-Moroz |
| SOLICITOR FOR THE APPLICANT: | NA |
| COUNSEL FOR THE RESPONDENT: | NA |
| SOLICITOR FOR THE RESPONDENT: | NA |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | NA |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the Application in an Appeal to reinstate Appeal EA 107 of 2019 filed 29 November 2019 be dismissed.
That the applicant mother have leave to make an oral application to expedite hearing of Appeal EA 135 of 2019.
That Appeal EA 135 of 2019 be expedited and listed for hearing on the week commencing 2 March 2020.
IT IS NOTED THAT
Appeal EA 128 of 2019 has been withdrawn.
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 Cimorelli & Wenlack (No. 2) 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 107 of 2019
File Number: SYC 2881 of 2013
| Ms Cimorelli |
Applicant
And
| Mr Wenlack |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 29 November 2019, Ms Cimorelli (“the mother”) seeks to reinstate her Notice of Appeal filed 15 October 2019 (Appeal EA 107 of 2019). The appeal was deemed abandoned after the mother failed to file a Draft Appeal Index in accordance with the time‑frame required by r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”).
The orders that the mother seeks to challenge on appeal were made by the primary judge on 4 October 2019 and relate to interim parenting matters. The orders provided for the parties’ three children, then aged 11, 9 and 7, to be recovered from the mother and placed in the care of Mr Wenlack (“the father”).
The father has not participated today and the Court received an email (Exhibit A) which indicated he had a surgical list of some type which he could not reasonably rearrange. It is his position that the application for reinstatement should be refused on the basis that the orders are “no longer relevant” (Exhibit A).
An Independent Children’s Lawyer (“ICL”) has been appointed to represent the children’s interests and the ICL’s position is more or less that reinstatement is a matter for the Court, albeit submissions were made in support of reinstatement.
Background Facts
It is helpful to set out some brief background facts so as to understand the context within which the orders of the primary judge were made and the circumstances under which the mother seeks reinstatement.
In August 2015, orders were made by consent providing for the parties’ children to have what would become, an equal shared time arrangement with their parents. This arrangement continued, apparently, until early 2019, when the children began spending less time with the father. In April 2019, “a crisis” occurred in relation to the children passing from the mother’s care into the father’s care, which the primary judge found significantly impacted on the father’s relationship with the children [4]. This was the catalyst for the father’s application to reconsider the parenting orders, apparently presented in late April 2019.
Orders were made by consent, it would seem, for the appointment of Mr Y to prepare a report in relation to the parties’ disagreement concerning the best interests of their children. Provision was made in the orders for the ICL to inform the Court if difficulties arose in relation to the consultation with Mr Y. Difficulties did arise and, as I understand it, there were appointments for the children in early October 2019, which were not kept. The ICL informed the Court of that fact and on 2 October 2019, as I understand it, the matter was re‑listed for 4 October 2019. The email from the Court notifying the parties that the matter had been re‑listed, included a direction to the mother to deliver the children to the Court on the morning of 4 October 2019. The mother responded by email on 3 October 2019, seeking an adjournment of the hearing as she did not have legal representation available for 4 October 2019.
In the event, the mother attended Court on 4 October 2019 without legal representation as foreshadowed in her earlier email, but without the children. The mother sought an adjournment, which was refused. The transcript, which is provided in support of this Application, shows that the primary judge indicated to the mother that she was minded to provide her with an opportunity to arrange for the children to travel to the Court that day. The transcript shows that her Honour also indicated that if the children did not attend, she would “consider a recovery order” (Transcript 4 October 2019, p.3 line 6).
Shortly after this exchange, the mother left the courtroom and entered the women’s bathroom. The mother had earlier informed her Honour that she was not well. The transcript shows that the primary judge asked those present in the courtroom to ensure that the duty solicitor was informed that the mother may be in need of legal assistance. A short adjournment was taken and upon the hearing resuming, the Court was informed that the father’s legal representative had told the duty solicitor of the mother’s situation. The father then advanced an oral application seeking a recovery order and for the children to be placed in his care. There is information in the transcript which probably is not necessary to explore in detail, about how information was purportedly being relayed to the mother in the bathroom. I am sure more will be said about this on another occasion. In any event, what is germane is that the primary judge made the orders sought by the father and suspended all prior parenting orders.
The mother’s Notice of Appeal filed 15 October 2019 appeals some of the orders made on 4 October 2019 (Appeal EA 107 of 2019), and if permitted to proceed, it would be prosecuted on four primary grounds of appeal. In short, the mother contends that she was denied procedural fairness and the orders were made ultra vires, that the approach adopted by her Honour gives rise to a reasonable apprehension of bias, that the orders made were in contravention of the children’s best interests and rights and that the reasons are inadequate.
Less than one week later, on 21 October 2019, the mother filed a Notice of Appeal against orders made by the primary judge on 14 October 2019 (Appeal EA 109 of 2019). The orders challenged on this appeal include an order dismissing the mother’s application to discharge the expert appointed by consent, Mr Y, and the allied orders to give effect to that primary order.
The mother filed another appeal on 21 October 2019, against an order made by the primary judge on 16 October 2019 (EA 110 of 2019). The order provided for the father to enrol the children in distance education until 1 November 2019. The significance of 1 November 2019 is that the proceedings were adjourned to that day for a further hearing of the interim parenting arrangements.
All three of the abovementioned appeals were deemed abandoned by reason of the mother’s failure to file a Draft Appeal Index. The mother was clear today that she does not and will not seek reinstatement of Appeals EA 109 of 2019 and EA 110 of 2019. The focus of her application is thus reinstatement of Appeal EA 107 of 2019.
Applicable law
The relevant principles that ought to be considered when deciding an application for reinstatement of an appeal are traversed in Gallo v Dawson (1990) 93 ALR 479. Despite the fact that the High Court in that case was concerned with an application for an extension of time to appeal, the principles are applicable to an application for reinstatement (Rand & Rand [2009] FamCAFC 88). The relevant principles were discussed by the High Court at page 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.
The decision of the High Court in Jackamarra (an infant) v Krakouer (1998) 195 CLR 516 (“Jackamarra”) is also particularly relevant; Gummow and Hayne JJ at [33] said:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Non-compliance with the Rules
According to the mother, she believed that the Draft Appeal Index was filed on 5 November 2019. Her reason for that belief is attributed to words spoken by her solicitor when prosecuting an earlier application for consolidation and expedition of the three appeals that were then on foot. The mother deposes to her observation of this event as follows:
In court on 5 Nov 2019, I saw [my solicitor] hold up the draft appeal index and state words to the effect “I have this draft appeal index for your honour to show that my client is ready to proceed immediately if this appeal is expedited”.
(Mother’s Affidavit filed 29 November 2019, p.3, paragraph 8) (As per the original)
The mother’s solicitor did not tender the Draft Appeal Index and on the mother’s version of events, made no attempt to do so. There was no proper basis for the mother to contemplate from the words used concerning the Draft Appeal Index, meant that it had been filed as required. However, there can be no doubt that the mother wanted to prosecute the appeal. She had prepared the Draft Appeal Index, and although her conclusions based on her observations of the events of 5 November 2019 were unreasonably and incorrectly drawn, I accept that she was genuinely mistaken. Her failure to comply with the requirement to file the Draft Appeal Index in time is explained to my satisfaction.
Are all other things equal?
Since the mother lodged Appeal EA 107 of 2019, further interim parenting orders were made by the primary judge, relevantly on 1 November 2019 and 20 November 2019. The mother has filed two additional appeals, being EA 128 of 2019, which was filed on 29 November 2019 and EA 135 of 2019, which was filed on 16 December 2019. Appeal EA 128 of 2019 concerns orders for the production of documents from a child welfare agency in accordance with s 69ZW of the Family Law Act 1975 (Cth). That appeal was withdrawn this morning.
The question thus arises as to what extent the orders sought to be challenged by Appeal EA 107 of 2019 remain operative.
By the Notice of Appeal in Appeal EA 107 of 2019 as presently drafted, the orders under challenge are that the parties be restrained from removing the children from the Commonwealth of Australia (Order 1), an order that the final parenting orders made on 27 August 2015 be suspended (Order 3), an order that the children are to live with the father and he is to have sole parental responsibility for them (Order 4) and an injunction against the mother approaching the children (Order 6).
The orders dated 20 November 2019, which are made pending further order, establish that:
· Order 1 of the orders made on 4 October 2019 is expressly discharged by Order 5 of the orders made on 20 November 2019. So much was acknowledge by counsel who appeared for the mother today. If the appeal is reinstated, the mother does not propose that the appeal be prosecuted in relation to the challenge raised against Order 1;
· Order 3 of the orders made on 4 October 2019 is spent and the operative order is now Order 1 of the orders dated 20 November 2019, which expressly suspends the final orders made on 27 August 2015;
· Order 4 of the orders made on 4 October 2019 is also spent and the operative orders are now Orders 2 and 3 of the orders dated 20 November 2019, which provide that the children are to live with the father and that he shall have sole parental responsibility for them;
· Order 6 of the orders made on 4 October 2019 was varied by Order 7 of the orders dated 20 November 2019 and is continued by that Order. The order sought to be challenged therefore, is also spent.
There is no utility in reinstatement of an appeal against orders that are spent, or which have been replaced by subsequent orders that now constitute the operative orders. In support of the contrary position, counsel for the mother argued that the orders of 4 October 2019 taint what occurred on 20 November 2019. That is, they give what is said to be, important factual context to the subsequent orders. However, merely because an order may provide factual context, does not make it an appealable decree. Here the relevant fact, in my opinion, is that the orders no longer have any work to do.
Let us postulate for a moment what might happen if the appeal was to be reinstated and the Court was persuaded that there had been error. Theoretically one outcome might be that the orders are set aside. But given the orders of 20 November 2019, there is nothing operative to be set aside. I use this example to try and assist the mother to understand that the reinstatement of Appeal EA 107 of 2019 would be an exercise in futility and an abuse of the court’s process.
It follows that a refusal of the Application in an Appeal for reinstatement would not result in an injustice to the mother. Notwithstanding that she has presented an explanation for her failure to file a Draft Appeal Index in time, I am satisfied that the qualification, if all other things are equal, referred to in Jackamarra, applies and the application for reinstatement will be dismissed.
Application for Expedition of Appeal EA 135 of 2019
Counsel for the mother seeks leave to make an oral application for an expedited hearing of Appeal EA 135 of 2019. Yesterday, the mother presented an Application in an Appeal to that effect, which has not yet been filed. It would seem to be common ground that the unfiled Application in an Appeal and supporting affidavit were emailed to the ICL and the father yesterday. It was intimated on behalf of the mother that the application and affidavit might have been emailed late last week as well, but the mother has been unable to locate that email and in those circumstances, I proceed on the basis that the father received the unsealed and unsigned Application in an Appeal and affidavit yesterday. The significance of it being unfiled of course is that the application has not yet been given a return date, and as far as the father knows, that is probably something for the new year, and he will be informed in the usual way about when the matter is to be heard.
It is the mother’s case that it is in the interests of the children and justice, that this Court denies the father procedural fairness and proceeds with this application in his absence. I take her to be of the view that if the application is granted, she would not suggest that the order is made ultra vires, and plainly contemplates that it is a proper exercise of the Court’s power to make orders which promote the interests of the children, if necessary, in circumstances which may involve a denial of procedural fairness.
Procedural fairness is a hallmark of the justice system, but justice also contemplates that at times it can be necessary to make orders or take steps which deny a party procedural fairness in the sense of the right to be heard. Ex parte orders are an example of that situation. This appeal concerns three young children whose circumstances have been greatly affected by the orders of 20 November 2019. The fact that there have been five appeals in a matter of weeks filed by the mother evidences the distress that swirls around this family and suggests that an attempt to bring some order, at least to the appeals process, is desirable and in the interests of the children.
The Court is about to go into its Christmas break and if the Application for Expedition was filed today, it would be made returnable sometime after the middle of January 2020. The Full Court next sits in its regular sittings in Sydney in the week commencing 2 March 2020. It seems inevitable that if the Application for Expedition waits to be heard until mid or late January 2020, the sittings to commence on 2 March 2020 will be filled before the question of expedition in this case would be considered.
As the ICL indicated, there have been a number of orders at first instance made in the life of this case which had been made following an oral application. The significance of this is that it would be within the father’s contemplation that perhaps today, orders might be considered in relation to the management and conduct of the appeals. Although it is accepted that his reasons for not being here today are reasonable, I am concerned to keep a focus on the children and what I consider to be, the importance for them in allowing the appeal against the orders of 20 November 2019 to be heard in a reasonably prompt fashion. This is best achieved by allowing the Application for Expedition to proceed today and making the order for expedition.
I agree with the submission made on behalf of the ICL that the denial of procedural fairness to the father involved in proceeding in this fashion is moderated in its impact by the fact that an expedited appeal would be heard in the sittings some two and a half to three months hence. It gives the father and the lawyers who advise him in the substantive proceedings, ample time to make arrangements for the appeal.
The mother needs to understand that if she fails to comply with the Court’s directions again and fails to prosecute her appeal in a timely way, those dates will be lost. The prospect is that there would not be another order for expedition. I understand that as a litigant in person it can be difficult to manage this type of litigation. In order to hold on to these dates, the mother needs to do everything that is required of her in the time‑frame that will be imposed by the Appeals Registrar, otherwise she will be faced yet again with another abandoned appeal and the any consequential delay will be solely her responsibility.
That being said, as I have indicated, I will expedite the appeal and list it for hearing in the week commencing 2 March 2020.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Ryan J delivered ex tempore on 18 December 2019.
Associate:
Date: 15 January 2020
2
3
0