CIMORELLI & WENLACK
[2019] FamCAFC 212
•8 November 2019
FAMILY COURT OF AUSTRALIA
| CIMORELLI & WENLACK | [2019] FamCAFC 212 |
| FAMILY LAW – APPLICATION IN AN APPEAL FOR EXPEDITION – Parenting – Where the mother filed three separate appeals that all concern an order made by the primary Judge on the first hearing date in October – Where there is nothing to persuade the Court that these appeals should be expedited to the possible determinant of other appeals – Where the application for expedition is untimely – Where the parties are still awaiting the primary judges reasons from the interim parenting matter recently heard which may render the appeals pointless – Application dismissed – All three appeals ordered to be consolidated into one. |
| Family Law Act 1975 (Cth) s 94(2D) Family Law Rules (2004) r 12.10A |
| Moxon & Moxon [2010] FamCAFC 67 |
| APPELLANT: | Ms Cimorelli |
| RESPONDENT: | Mr Wenlack |
| INDEPENDENT CHILDREN’S LAWYER: | Donna Smith |
| FILE NUMBER: | SYC | 2881 | of | 2913 |
| FIRST APPEAL NUMBER: | EA | 107 | of | 2019 |
| SECOND APPEAL NUMBER: | EA | 109 | of | 2019 |
| THIRD APPEAL NUMBER: | EA | 110 | of | 2019 |
| DATE DELIVERED: | 8 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 5 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 October 2019 14 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 755 [2019] FamCA 790 [2019] FamCA 791 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Reeve |
| THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW (Family Law) |
Orders
Appeals EA 107 of 2019, EA 109 of 2019 and EA 110 of 2019 be consolidated.
The Applications in an Appeal for expedition in Appeals EA 107 of 2019,
EA 109 of 2019 and EA 110 of 2019 from the orders of Hannam J made
4 October, 14 October and 16 October 2019 filed by the applicant on 23 October 2019 be dismissed.
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 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; EA 109 of 2019; EA 110 of 2019
File Number: SYC 2881 of 2013
| Ms Cimorelli |
Appellant
and
| Mr Wenlack |
Respondent
and
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ms Cimorelli (“the mother”) filed three Notices of Appeal from orders made by a Judge of the Family Court in parenting proceedings between her and Mr Wenlack (“the father”). The appealed orders were made on 4 October 2019 (Appeal EA 107 of 2019); 14 October 2019 (Appeal EA 109 of 2019) and on 16 October 2019 (Appeal EA 110 of 2019).
The mother by Application in an Appeal sought that the hearing of each of the appeals be expedited.
Although three separate appeals have been filed in relation to the primary judge’s three orders, the essence of the application concerns the order made on 4 October 2019 from which the other impugned orders flowed.
The orders appealed arises from parenting proceedings made in relation to the three children of the parties. The three children are presently aged 11, nine and seven.
It is helpful to give context to these applications to refer to the factual background of the dispute.
In August 2015 parenting orders were made by consent which provided for the children to live in an equal shared arrangement between the parents.
According to the reasons of the primary judge of 4 October 2019, in April 2019 there was a series of events the result of which was that the children did not spend as much time with the father as previously and were in fact spending quite limited time with him.
The father brought proceedings to review the parenting orders.
It appears that as part of pre-trial directions, an order was made that an expert report be prepared and with the consent of both parties an expert practising in Melbourne was appointed. Other orders were made to facilitate the attendance of the parties and the children on the single expert at the appointed time. Apparently that appointment time was changed to 2 October 2019.
On 17 September 2019, before the next appointed time, the mother brought an application seeking to review the order appointing the expert from Melbourne.
The mother and the children did not attend the appointment with the expert.
In the afternoon of 2 October 2019, the Independent Children's Lawyer by email to the primary judge’s associate and copied to all parties, sought an urgent re-listing of the matter.
Accordingly the parties were notified by the primary judge’s associate that the matter had been listed on 4 October. The email continued:
All parties and their legal representative are to attend court in person.
The mother is directed to attend court with the children who are to be placed in the child dispute service child minding facility located at the court by 9.30am.
(As per the original)
The mother responded to this email noting that her legal representative would not be available on 4 October and she sought a short adjournment.
4 October 2019
The mother attended court on 4 October she did not, however, bring the children in accordance with the direction. The mother said that one of the children was unwell and thus she did not bring them to court. The mother told her Honour that she was feeling unwell. She sought and was refused an adjournment. Shortly after the matter commenced, the mother left the Court room and apparently went into the toilets. The services of a duty solicitor were obtained and she passed a message to the mother while she was still in the bathroom that she should return to the Court room and if she did not, the matter would proceed in her absence. The mother did not return and the application was determined.
Before the mother left the court room her Honour informed her that the order that she bring the children to court would be complied with; “Otherwise, I will have to consider a recovery order”.
Thus on the father’s oral application on 4 October the primary judge made a recovery order in relation to the children and ordered that they be delivered to the father and live with him. Her Honour suspended all other parenting orders which necessarily suspended the mother’s time with the children. Her Honour’s orders were expressed to be made until the matter was relisted.
The mother appeals this order.
14 October 2019
The matter was next before her Honour on 14 October 2019. On that day the mother’s application to set aside the order appointing the single expert was heard and dismissed. Her Honour ordered the parties and the children to attend interviews with the expert which were to be conducted in Sydney on 13 November 2019.
In making that order her Honour took into account that the parties had nominated and consented to the appointment of the particular single expert and her Honour further noted that at the time when the consent order was made, the mother was represented by counsel. Her Honour also took into account that the mother made no challenge to the expert’s qualifications or necessary expertise and she further observed that he had been selected because of his availability and the cost of his report.
The mother appeals her Honour’s dismissal of that application.
16 October 2019
The matter was again before the primary judge on 16 October 2019 and the issue before her concerned the children’s education pending the next hearing of the matter which was to take place on 1 November 2019.
At that time the children were living with the father pursuant to the recovery order made on 4 October but were not attending their previous school.
The father proposed that the children undertake distance education rather than returning to their previous schools. The Independent Children's Lawyer supported that position.
Thus her Honour’s concern was to make arrangements for the children’s education for a couple of weeks.
The primary judge considered the arguments of both parties and concluded that the greater concern was to ensure stability for the children in the short period before the interim hearing. She considered that in the short term the father could provide the support necessary to the children to participate in distance education and further expressed concern for the children’s welfare because of reports through their previous school principal that they are the subject of gossip within the school community.
Her Honour ordered the children to undertake distance education.
This order was expressed to continue until 1 November 2019 on which date there was to be an interim hearing of the parenting issues.
Thus, when the applications for expedition came on for hearing, an interim hearing of the parenting issues between the parties had been completed and the primary judge had reserved her decision in relation to it. It was conceded that the issues presently reserved by her Honour are the same as those sought to be agitated in the three appeals. Nevertheless the mother argued that the appeals should be listed for hearing and listed expeditiously.
The application for expedition
Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals although no criteria or considerations for making that order are provided within the section. Recourse is often had to r 12.10A of the Family Law Rules (2004) (“the Rules”) which addresses applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
The considerations are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent to the application; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases to its possible detriment.
The issue here is whether there is a relevant circumstance which would cause this matter to be given priority over other matters listed for appeal and which may cause other similar matters to be displaced in the hearing list.
It was argued for the mother that her Honour’s orders of the 4 October 2019 effected a “radical” change in the circumstances of the children such that they are now living with the father and not spending time with the mother. It was conceded in argument that at least up until early 2019 the children and the parties appeared to be managing the orders for equal shared parental responsibility and equal time with relative ease, and thus at least until April 2019 the children were spending significant time with the father. This somewhat tempers the “radical” change asserted on behalf of the mother but nonetheless it is apparent that her Honour’s order did effect a significant change in the children’s arrangements not the least of which is that they were not spending time with the mother.
However, notwithstanding that effect of her Honour’s orders, I am not persuaded that this appeal should be expedited to the possible detriment of other, similar appeals.
In any event, in my view the application for expedition is untimely. Her Honour’s decision in relation to the interim parenting matter may render the appeal and the application for expedition pointless, or, if the mother wishes to challenge her Honour’s order made in relation to that hearing, she may wish to appeal that order, in either event, it would be untimely to expedite these appeals.
The applications will therefore be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
8 November 2019.
Associate:
Date: 8 November 2019
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