Kai and Gant (No. 2)
[2018] FamCAFC 107
•5 June 2018
FAMILY COURT OF AUSTRALIA
| KAI & GANT (NO. 2) | [2018] FamCAFC 107 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal listed for directions – Where the orders appealed make the stay at first instance conditional on the recommendation of the single expert witness – Parties to attend a Late Intervention Alternative Dispute Resolution conference – Appeal to be dismissed in six months if not re-listed. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Kai |
| RESPONDENT: | Mr Gant |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Burra-Robinson |
| FILE NUMBER: | PTW | 5925 | of | 2006 |
| APPEAL NUMBER: | WA | 39 | of | 2017 |
| DATE DELIVERED: | 5 June 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 5 June 2018 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 13 October 2017 |
| LOWER COURT MNC: | NA – Transcript of hearing |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Tovey |
| SOLICITOR FOR THE APPELLANT: | Dwyer Durack |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Burra-Robinson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | HBR Family Lawyers |
Orders
NOTING the intention of the parties to attend a Late Intervention Alternative Dispute Resolution conference.
IT IS ORDERED:
The appeal be adjourned.
In the event the appeal is not re-listed within 6 months, the matter be referred to Justice Thackray in chambers for an order to be made that the appeal 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 Kai & Gant (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 PERTH |
Appeal Number: WA 39 of 2017
File Number: PTW 5925 of 2006
| Ms Kai |
Appellant
And
| Mr Gant |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Before the Court is the Notice of Appeal filed by the appellant mother on 1 November 2017, in which she seeks to challenge orders made by Family Law Magistrate Martino on 13 October 2017. The matter comes before the Court today only for directions in relation to the conduct of the appeal.
On 22 December 2017, the matter was before the Magistrate, who made orders in terms of a minute which required the mother to attend on the single expert witness and to follow his recommendations. The orders made that day also directed the Independent Children’s Lawyer to request from the expert a preliminary view as to whether it would be in the best interests of the child who is the subject of the proceedings to dissolve the stay his Honour had granted.
Paragraph 5 of the orders provided that “in the event the Single Expert Witness so recommends, the stay be dissolved”. As I have said to the respondent father this morning, that is a rather unusual order, but I will return to that in a moment.
Counsel for the mother has acknowledged, both orally today and in a letter to the Court dated 1 June 2018, that, in many respects, time has moved on in relation to the appeal and, on the face of things, there is now not much utility in the appeal. It had been hoped by the mother that the parties might attend some form of mediation with a view to coming to an overall agreement in relation to the child and there was a break in the proceedings this morning to allow for negotiations between the parties and the ICL.
Unfortunately agreement was not reached, but there is agreement that the parties will attend a Late Intervention Alternative Dispute Resolution conference organised by Legal Aid. The question then arises as to what should happen to the appeal. Counsel for the mother wishes me to program the appeal, however, with respect, I do not think that is appropriate because it will simply run up costs in relation to what is a futile appeal.
The father asks me to dismiss the appeal because it does not have any utility, and he argues in any event that the mother needs to demonstrate that the Magistrate erred. I would normally accept that submission, but the difficulty in this case is that time has moved along since the order was made and when I read the Magistrate’s order I see that the Magistrate is looking for advice from the single expert witness as to what is to happen to the substantive interlocutory orders.
I have not seen what the single expert witness has said in the report, but hearing from the father today, it appears this issue has not been directly addressed, and everyone is now left somewhat in the dark as to what ought now to happen. In those circumstances, it would be inappropriate for me to dismiss the appeal, because that then is going to lead to potential argument immediately about the current arrangements for the child. I say this because ordinarily the dismissal of the appeal would result in the discharge of the stay, which would then lead to the result that the father wants: namely to reactivate the orders that were in place immediately before the stay was granted. But the mother will argue that those orders should be reactivated only in the event that the single expert witness has so recommended, and he has not so recommended.
In order to avoid another argument between the mother and the father, the better course is to adjourn the appeal (not to program it and run up unnecessary costs), and direct that it will be dismissed in six months if nobody has relisted the appeal. I have chosen six months on the suggestion of the ICL because it will take some time for the parties to attend the Late Intervention Alternative Dispute Resolution conference and, if they are not able to resolve matters there, it will take some further time to bring the matter back before the Magistrate for a decision to be made about the future arrangements.
I note that the statistics coming out of those conferences are extremely encouraging, with very high rates of settlement, even of very complex matters. I therefore consider that the proposal I have foreshadowed is the safest and the cheapest course for all involved.
On that basis, therefore, the following orders will be made:
Noting the intention of the parties to attend a Late Intervention Alternative Dispute Resolution conference.
(1) The appeal be adjourned.
(2)In the event the appeal is not re-listed within 6 months, the matter be referred to Justice Thackray in chambers for an order to be made that the appeal be dismissed.
This is not to be noted on the order, but simply to repeat that these orders mean that the stay remains in place on the conditions that the Magistrate has laid down, and the parties or the ICL can relist the matter before the Magistrate to obtain directions about the future conduct of the matter.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 5 June 2018.
Associate:
Date: 22 June 2018
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