Felwood & Clarkson
[2008] FamCAFC 125
•2 August 2008
FAMILY COURT OF AUSTRALIA
| FELWOOD & CLARKSON | [2008] FamCAFC 125 |
| FAMILY LAW – APPLICATION IN A CASE – EXTENSION OF TIME – Extension of time to file a notice of appeal – Absence of procedural fairness and inadequate reasons where application was adjourned “sine die” - Application adjourned until the hearing and determination of application COSTS - Reserved |
| Rice & Asplund [1979] FLC 90-725 |
| APPLICANT: | MS FELWOOD |
| RESPONDENT: | MR CLARKSON |
| INDEPENDENT CHILDREN’S LAWYER: | BEVAN & GRIFFIN SOLICITORS |
| APPEAL NUMBER: | NA | 68L | of | 2008 |
| FILE NUMBER: | TVC | 1547 | of | 2007 |
| DATE DELIVERED: | 12 August 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 12 August 2008 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Journey Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rod Madsen Solicitors |
Orders
That the appellant mother’s application in a case for an extension of time to file a notice of appeal in relation to the orders made 22 February 2008, 28 April 2008 and 24 June 2008 be adjourned until the hearing and determination of her application filed 28 May 2008.
That the application filed by the mother on 28 May 2008 to set aside the orders made 22 February 2008 and the application in relation to where the children live and time with the parents be heard as a matter of urgency by a Judge other than Justice Montieth.
That the costs of the appellant and respondent of this application be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Felwood & Clarkson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: NA 68L of 2008
| MS FELWOOD |
Applicant
And
| MR CLARKSON |
Respondent
Ex Tempore
REASONS FOR JUDGMENT
In an application filed on 21 July 2008, Ms Felwood, the mother applied for an extension of time to appeal against various orders made by the Family Court of Australia at Townsville on 22 February 2008, 28 April 2008 and 24 June 2008.
The grounds of appeal as proposed by the application deal separately with each of the orders made but complain in each case of an absence of procedural fairness and inadequate reasons.
The mother, in her supporting affidavit explains that she has two children, A born March 1997 who is 11, and G born December 1998 who is nine. She has not seen them since April of this year.
In summary, the orders made by Monteith J on those three dates were these: on 22 February 2008 his Honour ordered that the children live with the father. That order was made in the mother's absence and appears to be a final order. There were no orders made that the mother spend any time with the children. This is somewhat remarkable because it is common ground that the children, after the parties’ separation in September 2003, for more than four years until these orders were made, lived with the mother and had very little contact with the father.
The father complains that this was largely due to the mother failing to comply with various orders and there is considerable controversy about this including allegations made by each party about domestic violence.
The second order made by his Honour on 28 April 2008 included recovery orders and that the mother's brother and his wife care for the children. Orders were made on 24 June 2008 adjourning the matter to a joint conference with the Registrar and the manager of the Child Dispute Services.
The mother in her affidavit in support of this application attempts to explain the delay in filing a notice to appeal including that she had filed an application to set aside the orders on 28 May 2008. On 10 June 2008 Monteith J ordered that the applications be adjourned “sine die”.
Of significance there is some real controversy about the mother's failure to appear on 22 February but for the purposes of this judgment it is not appropriate for me to comment on that issue.
I have the response to this application filed by the solicitors for the father who resist an order being made allowing the notice of appeal to be filed. In the lengthy affidavit provided by them there is a very helpful explanation of the history of the matter and the events that have taken place, even in recent times.
It seems that by no means has the matter come to an end by the orders made on 22 February 2008. In fact it seems that Monteith J seemed to have been of the view, expressed to the parties, that further applications could be made. As Mr Page, who appears for the father, has correctly observed, the great difficulty for the mother is that she could be faced with a suggestion that they were final orders and she ought to appeal or alternately a Rice & Asplund argument. However, Mr Page urges upon me that the better course is that directions be made so that the issues including the children proceed in an orderly fashion as there seems to have been many events since the making of the orders that might qualify as a change of circumstances.
However, I am somewhat concerned that the mother in these very unfortunate circumstances does not face, eventually, some suggestion that the appropriate method for her was to appeal.
The solicitors for the father explain in the affidavit that there have been four family reports. The summary of them contained in the affidavit of the solicitor for the father reveals that in the first three reports in which the mother participated it was not suggested that the children live other than with the mother but that arrangements be made including “reunification counselling” so the children could spend time with the father. In the most recent report it was recommended that the children live with the paternal grandmother and spend time with the mother to allow such reunification counselling with the father to occur.
It seems there have been numerous appearances before the Court and as at 12 August the matter remains unresolved and appears to be in a very uncertain and unattractive position for both parties including that the mother has still not seen her two very young children.
After submissions made by each side it seems obvious that the most appropriate course to take is that the outstanding applications be heard in the Court and that orders be made about the children in their best interests. Therefore, the only possible orders that can be made, it seems to me, are to make directions in relation to the applications that are still outstanding whilst preserving the opportunity for the application for leave to appeal to be heard if necessary at some future time.
I have been provided by each side with the various applications that are before the Court. It seems that the mother's application which was described as an application to suspend the orders, really must be heard prior to any other. I intend to order that that application which was filed on 28 May be heard as a matter of urgency.
Because Monteith J might be considered to have heard this matter and because of his dealings with the matter it is appropriate, in my view, that another Judge hear it. However, as it is to be heard urgently it seems that all that can be done is to hear that application, understanding that it must be an application to set aside the order of 22 February 2008. On the same occasion it is necessary for a judge to hear the mother's applications to spend time with the children or alternately that the children live with her.
Apparently orders have been made for a case conference on 18 August 2008 which relates to a different application of the father filed on 16 April and the mother's response filed on 30 May. It is my intention by making these directions that urgently there be a hearing of the mother's application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May
Associate:
Date: 15.08.08
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