Mankiewicz & Anor & Swallow

[2014] FamCAFC 193

FAMILY COURT OF AUSTRALIA

MANKIEWICZ AND ANOR & SWALLOW AND ANOR [2014] FamCAFC 193

FAMILY LAW – APPEAL – Application in an appeal for expedition – Where the application is made by great grandparents – Whether the age of the applicants warrants expedition – Where the age of the applicants does not warrant expedition.

FAMILY LAW – APPEAL – Where the appellants seek an order that the court supply the transcript –– Where the circumstances do not warrant a provision of transcript.

Family Law Act 1975 (Cth): ss 102, 118

FIRST APPELLANT: Mr Mankiewicz

SECOND APPELLANT: Mrs Mankiewicz

FIRST RESPONDENT: Mr Swallow

SECOND RESPONDENT: Ms Swallow

FILE NUMBER: SYC 6256 of 2013

APPEAL NUMBER: EA 112 of 2014

DATE DELIVERED: 2 October 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 23 September 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 July 2014

LOWER COURT MNC: [2014] FamCA 579

REPRESENTATION

THE APPELLANTS: Mrs Mankiewicz on behalf of the First and Second Appellants

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. The application filed on 11 September 2014 be dismissed.

2. The application filed on 17 September 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mankiewicz & Swallow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number:  EA 112 of 2014
File Number:  SYC 6256 of 2013

Mr Mankiewicz

First Appellant

and

Mrs Mankiewicz

Second Appellant

and

Mr Swallow

First Respondent

and

Ms Swallow

Second Respondent

REASONS FOR JUDGMENT

1. The appellants are the great grandparents of four children currently aged 16, 14, 10 and seven years.  They are the children of their granddaughter, Ms Swallow and her husband. Mr Bemert, their son, is the father of Ms Swallow.  He lives with the appellants.

2. On 25 October 2013 the appellants applied for orders that their four great grandchildren spend time with them. On 25 July 2014 Watts J dismissed their application and further made orders pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting either of them from bringing parenting proceedings in relation to the four children without first seeking leave from the Court.

3. On 21 August 2014 the appellants filed a notice of appeal against his Honour’s orders.

4. By an application in an appeal filed on 1 September 2014, the appellants sought expedition of the appeal.  In an affidavit filed on 17 September 2014, the appellants also sought that the Court provide them with the transcript of the proceedings before Watts J for the purposes of preparing the appeal books.

5. Both applications were refused.  I indicated that I would provide brief reasons.  These are the reasons.

6. Some background to these proceedings is of assistance in understanding the disposition of the applications.

7. In his reasons of 25 July 2014, Watts J observed that there had been previous proceedings between the appellants, the maternal grandfather, Mr Bemert and the children’s parents and in those proceedings identical orders were sought by the appellants.  The proceedings were also heard by Watts J.

8. His Honour noted that the children’s parents vigorously opposed any orders that the children spend time with either the great grandparents or Mr Bemert.

9. After hearing those proceedings, on 15 January 2009, his Honour summarily dismissed Mr Bemert’s application that the children spend time with him. His Honour further made an order that Mr Bemert not institute proceedings under the Family Law Act without first obtaining leave of the court (s 118(1)(c ) of the Act).

10. His Honour also dismissed the appellants’ application.

11. His Honour, in the reasons delivered on 25 July 2014, said:

    32. At the time of the original decision the children had spent no meaningful time with their maternal great grandparents for approximately ten years, and no time at all with three of the four children ([219] of the 2009 reasons).  There is nothing in the material filed by the maternal grandparents, or their submissions, that would indicate how allowing the children to have time with their maternal grandparents would promote the interests of the children. The only change is that it is now 15 years and not 10 years since one out of the four children had contact with their maternal grandparents.

Application for expedition

1. Before the hearing of the application in an appeal, Mr Mankiewicz was excused from attending court because he is in poor health.  Mrs Mankiewicz appeared.  The basis for seeking expedition is set out in a submission of both of the appellants.  It says:

   1. The First Appellant is 94 years of age, and the Second Appellant is 91 years of age. In view of ages, expedition of this appeal ought to be granted.

   2. It is to the advantage of the great-grandchildren that they observe on access the uniqueness of their great-grandparents to be both alive and living together as a couple for the last 69 years, an extraordinary occurrence in our present day society.

   3. There is an urgency for the Appellants to be granted expedition of the proceedings before the Court of Appeal on the basis that it is in the interests of our great grand-children to see and interact with us while we are still alive as a couple.

   4. The respective ages of the Appellants, coupled with the frailty of the First Appellant, seen in light of their original application lodged in 2008, necessitates the granting of expedition.

2. In the circumstances of this case, and especially in light of the accepted fact that neither of the appellants has a relationship with the three younger children and have not seen the eldest for 15 years and, although the ages of the appellants might seem to dictate an expedited hearing, there is nothing which would persuade me that this appeal ought be given priority over others.  Thus I dismissed the application for expedition.

Provision of transcript

1. The basis for the application that the court provide transcript to the appellants is their claim to their being in straitened financial circumstances.  Although the Court may provide transcript to parties for the purpose of an appeal, it is only provided in limited circumstances.  Many litigants seeking to appeal orders are in difficult financial circumstances, some of them in extremely difficult circumstances.  The costs to the public purse in obtaining transcript is high, thus the test for that assistance is set high.  This is not a circumstance in which it is appropriate that the court provide transcript to the appellants.

2. It is possible to conduct and appeal without having the transcript in which event, if the Full Court was of the view that transcript or a part of it was required to determine the issue, the court can, itself order the transcript.

3. For these reasons I dismissed the applications.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 2 October 2014.

Associate:     

Date:  2 October 2014