Independent Children’s Lawyer and Denny and Anor
[2014] FamCAFC 221
•18 November 2014
FAMILY COURT OF AUSTRALIA
| INDEPENDENT CHILDREN’S LAWYER & DENNY AND ANOR | [2014] FamCAFC 221 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the parties seeks that by consent the appeal be allowed and the order appealed be set aside – appeal allowed – order appealed set aside. |
Family Law Act 1975 (Cth)
| APPELLANT: | Independent Children’s Lawyer |
| FIRST RESPONDENT: | Ms Denny |
| SECOND RESPONDENT | Mr Denny |
| FILE NUMBER: | MLC | 11984 | of | 2007 |
| APPEAL NUMBER: | SOA | 60 | of | 2014 |
| DATE DELIVERED: | 18 November 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| EX TEMPORE JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2014 |
| LOWER COURT MNC: | NA – transcript only |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Treyvaud |
| SOLICITORS FOR THE APPELLANT: | Glezer Lanteri & Associates Pty Ltd |
| THE FIRST RESPONDENT: | In person |
| THE SECOND RESPONDENT: | In person |
Orders
The appeal be allowed.
Paragraph 4 of the order made by Judge Curtain on 12 August 2014 be set aside.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Independent Children’s Lawyer & Denny has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 60 of 2014
File Number: MLC 11984 of 2007
| Independent Children’s Lawyer |
Appellant
And
| Ms Denny |
First Respondent
And
| Mr Denny |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a directions hearing in relation to this appeal. It is an appeal brought by the Independent Children’s Lawyer (“ICL”) by Notice of Appeal filed on
9 September 2014.
The order appealed against is an order made by Judge Curtain on 12 August 2014 which provided as follows:
…
4.The Independent Children’s Lawyer make, file and serve an affidavit regarding her meeting with the child and with the Mother no later than fourteen (14) days before the Final Hearing.
…
At the hearing today the ICL was represented by counsel, Ms Treyvaud.
Ms Denny (“the mother”), and Mr Denny (“the father”) both appeared without legal representation.
As I understand it, tomorrow (19 November 2014), is the date set for the commencement of the final hearing of the parenting issues in this matter, and two days have been set aside. A concern about this appeal has been the effect it might have on the finalisation of the parenting issues as between the parties. The mother today has expressed concern about the length of time the proceedings below have been taking, and she expressed the understandable sentiment that they need to be dealt with as expeditiously as possible. I am sure that the father and the ICL would agree with that sentiment.
It was on that basis that Ms Treyvaud proposed to this court that by consent the appeal be allowed, and the order made by the trial judge be set aside, to then enable the final hearing to proceed, hopefully tomorrow, but if not tomorrow, then at the earliest opportunity.
The father consented to that course but the mother initially indicated that she did not consent. Given that, I attempted to commence the directions hearing with the view to setting the appeal down for hearing, with that hearing likely to be in February 2015. However, as matters transpired, the mother then said that she misunderstood what was being put, and indicated clearly to the court that she would consent to the orders proposed by Ms Treyvaud.
One issue that was the subject of discussion though was, on the basis of the appeal being allowed and the order being set aside, what should then happen. I was concerned that in the normal course of events the proceedings the subject of the appeal would be remitted for rehearing by the lower court. However, as Ms Treyvaud has reminded me, what occurred in this case was that there was no formal application to his Honour, for his Honour to make the order that he did. In other words, there was no written or oral application; it was an order made by his Honour of his own motion during the course of the hearing on
12 August 2014.
Thus, on that basis, it seems to me that there are no “proceedings” to be remitted to the Federal Circuit Court of Australia.
That said, and whilst the mother was present in the courtroom, and I say that because as I recorded earlier, the mother left the courtroom, what I indicated was that if I allowed the appeal, and set the order aside by consent, that would not prevent the trial judge revisiting the issue if he was so disposed, and/or either of the parties, or indeed the ICL raising the issue again with his Honour when the matter next came on before him. It would be a matter entirely for his Honour given the appeal is not being allowed on the merits.
My task, as I have stressed earlier, is to determine the appeal, and of course if everyone consents to how that should be undertaken, then I certainly have no difficulty with that, given that I can see the benefit of the parenting proceedings being finalised as soon as possible.
I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
18 November 2014.
Associate:
Date: 18 November 2014
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