GARNETT & BECKWORTH

[2017] FamCAFC 160

FAMILY COURT OF AUSTRALIA

GARNETT & BECKWORTH [2017] FamCAFC 160

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Grounds of appeal contained in Notice of Appeal incompetent – Leave given to file and serve an Amended Notice of Appeal.

Family Law Act 1975 (Cth)

APPELLANT: Ms Garnett

RESPONDENT: Mr Beckworth

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Campbelltown Family Law

FILE NUMBER: SYC 6947 of 2012

APPEAL NUMBER: EA 61 of 2017

DATE DELIVERED: 16 August 2017 in chambers

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 15 August 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 9 May 2017

LOWER COURT MNC: [2017] FCCA 733

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Thomas

SOLICITOR FOR THE APPELLANT: A R Connolly & Company Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Kuemmel of Rossi Simicic Lawyers (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Maitland of Legal Aid NSW

Orders

1. The appellant file and serve an Amended Notice of Appeal on or before 4.00 pm on 30 August 2017.

2. In the event that the Amended Notice of Appeal is filed in accordance with Order 1 the matter be listed for a procedural hearing before me at 10:00 am on Tuesday 26 September 2017.

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 Garnett & Beckworth 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number:  EA 61 of 2017
File Number:  SYC 6947 of 2012

Ms Garnett

Appellant

and

Mr Beckworth

Respondent

REASONS FOR JUDGMENT

1. This is an appeal filed by Ms Garnett (“the mother”) against interim parenting orders made in the Federal Circuit Court on 9 May 2017 relating to Z (“the child”), who is a child of her relationship with Mr Beckworth (“the father”).  The child was born in 2005.

2. There are two other children of the parties’ relationship; X who was born in 2000, and Y who was born in 2003.

3. Parenting orders were made by consent in December 2012 which provided that the three children live with the father and spend time with the mother. 

4. In November 2016, the child and X spent time with the mother and were not returned to live with the father.  It is sufficient for these purposes to observe that there appear to be competing arguments about why this situation came about.  The father filed an application seeking that X and the child be returned to his care.

5. Interim orders were made that the child be returned to her father’s care, and the orders in relation to X were suspended. It appears that X has lived with the mother since this time.

6. The mother then filed an Application in a Case which was heard by the primary judge on 22 March 2017. The mother sought orders that X and the child live with her. On 9 May 2017 orders were made dismissing that application and orders were made that X spend time with her parents in accordance with her wishes, and that the child live with the father.

7. The primary judge’s reasons reflect his concern that the hearing of the parenting issues be the subject of a final hearing, and, further, that the apparent complexity of the case warranted the appointment of a single expert to see the relevant parties and report to the court.  Indeed, the primary judge said at [82] that, such was the urgency of the matter, he would try to allocate an early hearing date.

8. It is further uncontentious that in July 2017 the primary judge offered the parties a hearing date in November this year.  That date was refused by the parties and, as a result, the primary judge has listed the parenting matter for mention on 31 July 2018.

9. An appeal against the orders of 9 May 2017 was filed on 6 June 2017.  The grounds as asserted in the Notice of Appeal are incompetent; they do no more than assert bald, unparticularised complaints and do not properly engage the appellate process. 

10. The matter was listed on 15 August 2017.  At that time, apart from consideration of the grounds of appeal, counsel for the mother was asked to identify the utility of the appeal given the refusal to accept the early hearing dates and the possibility that an appeal, even if successful, may result in the matter being referred to the Federal Circuit Court for another interim hearing.

11. In the course of those submissions, it was said that at about the time that the primary judge’s orders were made, the mother sought his Honour’s recusal.  That application has not been determined and it too has been stood over until July 2018 for mention along with the parenting matter.  His Honour’s refusal to list the application that he recuse himself with the requisite urgency has undoubtedly influenced the bringing of the appeal.

12. In the result, I extended time in which to file an Amended Notice of Appeal in which the grounds are properly articulated by 30 August 2017.  However, if the essence of the appeal goes to his Honour’s refusal to consider the application for recusal, it may be that an appeal should be brought against that refusal, rather than the orders of 9 May 2017. Such an appeal may be out of time, but the mother could, of course, apply for an extension of time to file the appeal.

13. If the current appeal is continued and the Amended Notice of Appeal is filed in accordance with the order made, the matter will be listed for procedural hearing on 26 September 2017.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered in chambers on 16 August 2017.

Associate: 

Date:  16 August 2017