Markwell and Ranwick & Anor (No.2)
[2020] FamCAFC 232
•18 September 2020
FAMILY COURT OF AUSTRALIA
| MARKWELL & RANWICK AND ANOR (NO.2) | [2020] FamCAFC 232 |
| FAMILY LAW – APPEAL – APPLICATION IN APPEAL – REINSTATEMENT – Appeal deemed abandoned – Proposed appeal concerns welfare of children - Failure to comply with timeframe for filing Draft Appeal Index – Application opposed by all other parties – Where some but not all proposed grounds of appeal doomed to fail – Where reinstatement of the appeal would not be unjust to the respondents – Application to reinstate granted. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Applications to expedite two appeals – Efficient use of court resources – Application granted. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) rr 12.10A, 22.13, 22.44 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Markwell & Solberg and Anor (No.2) [2020] FCCA 2462 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Markwell |
| FIRST RESPONDENT: | Mr Ranwick |
| SECOND RESPONDENT: | Mr Solberg |
| INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker |
| FILE NUMBER: | CAC | 1533 | of | 2014 |
| APPEAL NUMBERS: | EAA | 104 | of | 2020 |
| EAA | 125 | of | 2020 |
| DATE DELIVERED: | 18 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 9 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2020 & 3 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 1751 & [2020] FCCA 2462 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE FIRST RESPONDENT: | Evans Family Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Christie SC |
| SOLICITOR FOR THE SECOND RESPONDENT: | Chamberlains Law Firm |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker |
Orders made 9 September 2020
That appeal EA 104 of 2020 be reinstated.
That appeals EA 104 of 2020 and EA 125 of 2020 be consolidated.
That the appeals be listed for hearing in December 2020 or as otherwise notified by the Eastern Appeals Registry.
That within fourteen (14) days the appellant file and serve an Amended Notice of Appeal in each of the appeals with properly articulated grounds of appeal.
If the appellant fails to file the appeal transcript and the appeal book as directed by the Eastern Appeals Registrar, the appeal date may be vacated.
That the costs of the applications will be costs in the appeal.
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 Markwell & Ranwick and Anor 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 SYDNEY |
Appeal Numbers: EAA 104 of 2020 and EAA 125 of 2020
File Number: CAC 1533 of 2014
| Ms Markwell |
Applicant
And
| Mr Ranwick |
First Respondent
And
| Mr Solberg |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are three applications filed by Ms Markwell (“the mother”) in parenting proceedings between her, Mr Ranwick and Mr Solberg. The proceedings relate to B, born in 2010 and D, born in 2017 (together “the children”). Mr Solberg is B’s father and Mr Ranwick is D’s father.
The first application seeks to reinstate Appeal EA 104 of 2020 against parenting orders made on 30 June 2020 (“30 June orders”). The second application seeks to expedite the hearing of that appeal. The third application, also for expedition, is in Appeal EA 125 of 2020, against orders made on 7 August 2020 (“interim orders”), which effectively dismissed the mother’s stay application pending the outcome of her appeal against the 30 June orders.
At the commencement of the hearing the mother informed the Court that she wished to seek the assistance of a McKenzie Friend. There was no objection to this and the request was granted.
The solicitor appearing on behalf of Mr Ranwick indicated that all applications were opposed.
Senior counsel for Mr Solberg indicated that the reinstatement application was opposed and handed up a tender bundle in support of opposition, which included: the primary judge’s reasons for judgment dated 3 September 2020 (Markwell & Solberg and Anor (No.2) [2020] FCCA 2462 (“Markwell & Solberg (No.2)”), a report of Dr EEE dated 15 July 2020, and an email from the Eastern Appeals Registry to the parties dated 27 July 2020. If the application for reinstatement was successful, senior counsel did not wish to be heard on the applications for expedition.
The Independent Children’s Lawyer (“ICL”) did not support or oppose reinstatement but indicated that if the application was successful, then the question of expedition was not opposed. It was submitted that if the reinstatement application was successful, that the appeals should be consolidated. However, it was observed that if the reinstatement application failed then the second appeal and the question of hearing it expeditiously would fall away.
Background
It is helpful to set out some brief background facts so as to understand the context within which the orders of the primary judge were made and the circumstances under which the mother seeks reinstatement and expedition.
The mother and Mr Solberg met in 2009, they commenced living together in Town F in about late 2009 or early 2010. In 2010 their daughter B was born. The mother and Mr Solberg separated in September 2014.
On 31 October 2014, Mr Solberg filed an application for parenting orders in the Family Court of Australia. On 11 April 2017, the parties entered into final consent orders which provided for the mother to have sole parental responsibility for B and for B to live with the mother and spend time with her father.
In January 2016 the mother commenced a relationship with Mr Ranwick. They began living together in Town E in about June 2016. In 2017, their daughter D was born. The mother and Mr Ranwick separated on 10 June 2018. The next day, the mother moved to City J with both children without notice to either of the children’s fathers, approximately 700 kilometres from both Town E and Town F where the children’s fathers live.
On 25 June 2018 the mother obtained an interim family violence order against Mr Ranwick in the Magistrates Court at City J. On 10 October 2018 a final family violence order was made by consent without admissions for a period of 12 months.
On 26 June 2018 Mr Solberg commenced proceedings seeking the return of B to the Town E/Town F district.
On 30 July 2018 Mr Ranwick commenced proceedings seeking the return of D to Town E.
The two applications were listed together on 1 August 2018 and on 5 September 2018 the proceedings were consolidated.
There were multiple interim hearings prior to the trial, which ran over eight days commencing 8 October 2019. The mother sought to relocate, however her application was ultimately refused. The reasons for that decision were set out by the primary judge in the reasons for judgment delivered on 30 June 2020 and are summarised in the stay reasons delivered on 3 September 2020 (Markwell & Solberg (No.2)) as follows:
3.…In summary, I was satisfied on the evidence that there were problems with the mother’s mental health and personality functioning and that she could not be trusted to facilitate a healthy and meaningful relationship between each child and her father. I was satisfied that it was essential for the wellbeing of the children that they live close enough to their respective fathers to spend either equal time or significant and substantial time with them. This was not only because the children have a right to a meaningful relationship with both parents, but also because it was a means of reducing the risks to which the children would be exposed if they lived primarily with their mother and had limited time with their fathers. I ordered that, if the mother lived anywhere that made a shared arrangement impracticable, each child was to live with her father.
Inter alia, the 30 June orders provide for:
·the mother and Mr Solberg to have equal shared parental responsibility for B (Order 2);
·B to be enrolled into a school in Canberra (Order 4);
·B to spend equal time with her parents on a week about basis during school terms if both parents are living in the Canberra district, otherwise, for B to live with the father and spend time with the mother as agreed between the parents, until she moves to the Canberra district (Orders 6- 7);
·the mother and Mr Ranwick to have equal shared parental responsibility for D (Order 11);
·D to live with the mother, if the mother lives within 200 km of Town E, and spend time with Mr Ranwick, with time to coincide with B being in the care of her father; otherwise, if the mother lives more than 200 km from Town E, then D will live with her father and spend time with the mother during school term as agreed between the parents (Orders 12 and 14);
·the mother to take reasonable steps to engage with a psychiatrist and clinical psychologist for the purpose of her mental health treatment and therapy (Order 27);
·the ICL to be discharged in six months, being December 2020 (Order 28); and
·the Applications in a Case filed by the mother on 23 April 2020, 9 June 2020 and 10 June 2020 to be listed on 20 July 2020 (Order 30).
On 27 July 2020 the mother filed a Notice of Appeal (EA 104 of 2020) against those orders. She seeks to set aside the 30 June orders and for the Full Court to re‑exercise discretion to permit her to relocate to City J with the children, to give her sole parental responsibility and for the fathers to have supervised time with their daughters at a contact centre in City J. In the alternative, she seeks orders for her relocation application to be remitted and heard by a different judge.
The mother failed to file a Draft Appeal Index in time and by operation of r 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal was deemed abandoned. By her Application in an Appeal filed on 25 August 2020, the mother seeks to have this appeal reinstated.
By an Application in an Appeal filed on 2 September 2020, the mother seeks for the hearing of this appeal to be heard expeditiously.
On 7 August 2020, the primary judge heard the mother’s application for a stay of the parenting orders made on 30 June 2020, pending the mother’s appeal from those orders. Counsel for each of the fathers as well as the ICL opposed the stay application. Ultimately, the primary judge was not persuaded there were any compelling reasons to justify a stay of those order and the application was dismissed. Her Honour’s reasons were published on 3 September 2020.
The second appeal, EA 125 of 2020 is against the orders made on 7 August 2020. Those orders provide for:
·the mother’s application to stay the 30 June orders pending appeal to be dismissed (Order 1);
·until the mother relocates to Canberra, B to spend time with the mother every second weekend and half of school holidays commencing 7 August 2020 (Order 2); and
·D’s time with Mr Ranwick to commence on 12 August 2020 (Order 4).
By an Application in an Appeal filed on 28 August 2020, the mother also seeks to have the hearing of this appeal expedited.
applications in appeal ea 104 of 2020 (30 June orders)
The reinstatement application
Rule 22.44 provides that a party may apply to have reinstated an appeal taken to be abandoned under Chapter 22 of the Rules.
The principles to be considered when deciding an application for reinstatement of an appeal are traversed in Gallo v Dawson (1990) 93 ALR 479. Despite the fact that the High Court in that case was concerned with an application for an extension of time to appeal, the principles are applicable to an application for reinstatement (Rand & Rand [2009] FamCAFC 88). The relevant principles were discussed by the High Court at page 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.
The decision of the High Court in Jackamarra v Krakouer (1998) 195 CLR 516 is also particularly relevant; Gummow and Hayne JJ at [33] said:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Delay
As was mentioned earlier, the mother’s Notice of Appeal was filed in time but her Draft Appeal Index was not. The mother’s Draft Appeal Index was due by 4.30 pm on 24 August 2020. On 25 August 2020 the Eastern Appeals Registry communicated to the parties that the appeal had been deemed abandoned. The mother’s application to reinstate the appeal was filed later that day.
The mother is self-represented. According to her, she “inadvertently missed the deadline” for several reasons, including:
·that by the time the Draft Appeal Index was due, she had commenced prosecuting a second appeal (EA 125 of 2020) against the orders of 7 August 2020 (mother’s affidavit filed 25 August 2020, paragraphs 3 and 43);
·she had also commenced property proceedings and says she experienced “some difficulty with filing” (mother’s affidavit filed 25 August 2020, paragraph 14); and
·on 5 August 2020 the mother took D to a general practitioner for an injury sustained to her foot, which she describes as “very overwhelming” (mother’s affidavit filed 25 August 2020, paragraph 43).
The mother also deposes to issues concerning her difficulty obtaining housing and employment, having D in her care during a time when Mr Ranwick was supposed to have her in his care, as well as the impact of state border closures that have resulted from the COVD-19 pandemic. She says dealing with the issues outlined above, amongst other things, has been “very stressful, exhausting and very time consuming leaving me little time to have the [Draft Appeal Index] filed on time” (mother’s affidavit filed 25 August 2020, paragraph 42).
This explanation is not particularly compelling, however the mother acted promptly in bringing the present application and the delay itself was very short. She has also prepared a Draft Appeal Index which was attached to her affidavit filed with this application.
When the mother’s presentation of this Application is considered, it is accepted that she will present the documents required to prosecute the appeal in a timely fashion. In the circumstances the delay is adequately explained.
Merits of the appeal
The mother asserts 26 grounds of appeal. Stated broadly, it is her contention that the primary judge made factual errors (Ground 1), made jurisdictional errors (Ground 7), was prejudiced against the mother (Ground 3), made findings contrary to the evidence (Ground 8), made orders that were not reasonably practicable (Order 9) or in the best interests of the child (Order 12). The mother complains of actual bias and apprehended bias (Grounds 4 and 5) and claims that she was denied procedural fairness (Ground 6). The remaining grounds appear to assert that the primary judge made errors of law.
There are some difficulties in assessing the prospects of success of the proposed appeal and some grounds are plainly incapable of establishing error. All that needs to be said at this point is that there are matters of substance raised in the Notice of Appeal and it could not be said that this appeal is so lacking in merit that an otherwise strong application for reinstatement of an appeal in relation to the welfare of children would be denied on this basis.
However, the respondents should not be put to the expense of answering incompetent grounds and it is appropriate that the mother files and serves an Amended Notice of Appeal in within 14 days.
Prejudice
It is accepted that the effect of refusing the mother’s application is that she would not be able to pursue her appeal.
On the other hand, it can be said that Mr Ranwick and Mr Solberg are prejudiced by the delay in bringing on the appeal. Further litigation, delay and expense could have a worrisome effect on them and the children. Dr EEE’s evidence is on point. It follows that aspects of the effect of an order for reinstatement of the appeal cannot be addressed by an order for costs. These are significant matters that weigh against an order for reinstatement.
It should be determined that the mother has provided sufficient explanation for the delay and that her proposed grounds of appeal provide a basis upon which one might conclude that her appeal is not doomed to fail. Further, she has established that the refusal of her application for reinstatement of her appeal would be unjust. The subject matter of the appeal concerns the welfare of the children. It follows that the application for reinstatement will be granted. However, the mother needs to understand that she must comply with the Court’s directions in order to prosecute her appeal.
The expedition application
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the Appeal Division or another judge if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A(2) of the Rules deals with applications for an expedited trial, and it provides a useful guide to the approach to be adopted to the question of expedition of an appeal. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be order of priority. The potentially relevant factors referred to in the rules which should be taken into account in an appeal setting will be discussed.
Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case. As mentioned above, there has been a delay, albeit a very short delay. I accept that the mother lodged her appeal in a timely manner, along with her application for expedition. However, in the circumstances where the mother is seeking for her appeal to be reinstated after it was deemed abandoned, I am not satisfied that she can be relied on to do whatever is required of her to bring on the appeal for an urgent hearing. Relevantly, the mother has some but not all of the trial transcript. This subsection weighs against of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay. I do not have more to say about this.
The next factor which requires consideration is prejudice to the respondents. Mr Ranwick, Mr Solberg and the ICL opposed the application to reinstate the appeal and Mr Ranwick opposed expedition. An expedited hearing would place the parties under some time pressure which weighs against a hearing being listed in a few weeks’ time, which given the lack of transcript and the steps which need to be taken to prepare the appeal, the mother acknowledged she could not meet. I am not persuaded that these considerations should stand in the way of expedition if it was otherwise warranted.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a) – (g). Of these, the mother focussed on subparagraph (f), which concerns whether the case involves allegations of child abuse for example. In the mother’s affidavit in support of this application, she raised concerns about family violence perpetrated by Mr Ranwick following the 30 June orders (mother’s affidavit filed 2 September 2020, paragraph 22). Annexed to her affidavit is a series of text messages between the parties in support of her allegations. On 7 August 2020 the mother filed a Notice of Risk in which she alleged both children were at risk in the care of their respective fathers. Oddly, she proposes unsupervised time as an interim order in the stay appeal and supervised time in the event of a re- exercise. Without more information these are not a factors that will influence the outcome.
Subparagraph (f) concerns whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case. The mother states in her affidavit that if the appeal is not expedited, B’s mental health “will suffer” and “may lead to an exacerbation of her diagnosis of Adjustment Disorder with Anxious Mood” (mother’s affidavit filed 2 September 2020, paragraph 27). However, she does not provide any evidence to support this statement. Again, without more information this is not a factor that will influence the outcome.
The grounds of appeal have already been considered and nothing further needs to be said on this.
The mother has not presented a strong application for expedition but that is not the end of the matter because there is a second application for expedition to be considered.
application in appeal ea 125 of 2020 (7 August orders)
By an Application in an Appeal filed on 28 August 2020, the mother seeks to have the hearing of her appeal against the dismissal of her stay application expedited.
The expedition application
The principles relating to an expedited appeal hearing have been set out above and need not be repeated.
As mentioned earlier, this appeal seeks to challenge the dismissal of the mother’s stay application. The effect of her Honour’s orders made on 30 June is that if the mother wishes to continue her role as the primary carer of the children she must move back to Canberra. To date, she has not done so and remains living in Town R with her other daughter.
In relation to this appeal and with respect to r 12.10A(2)(a) of the Rules, it is accepted that the mother has acted reasonably and without delay in the conduct of this appeal. The mother has previously failed to comply with orders to file documents in time. As such I am not satisfied that she will do whatever is required to bring on appeal for an urgent hearing. Ordinarily an appeal against the refusal to give a stay of orders such as these would be heard in a matter of weeks. However, as I mentioned earlier, there is still much to be done and following discussion with the mother, I was satisfied she could not be ready to argue her appeal as quickly as that.
Nevertheless, I accept that the mother has lodged her appeal in a timely manner, along with this application for expedition and has established grounds to have her appeals consolidated and brought on a few months hence. This subsection weighs in favour of expedition.
As to the question of any prejudice to the respondents, an expedited hearing would place the parties under some time pressure which weighs against a hearing being listed in a few weeks. Albeit, I am not persuaded that this consideration should stand in the way of expedition if it was otherwise warranted.
The mother’s case for expedition is outlined in her affidavit filed 28 August 2020. The mother reiterates her concerns for B’s wellbeing, which she considers to be at risk of harm by Mr Solberg (mother’s affidavit filed 28 August 2020, paragraph 13). This appears to be her primary reason for seeking an expedited hearing.
It is necessary to consider the grounds of appeal. The mother asserts 35 grounds of appeal, many of which overlap and could be consolidated. The mother repeats many of the grounds outlined in her Notice of Appeal filed on 27 July 2020, in Appeal EA 104 of 2020, including a number of grounds that are plainly incompetent. Generally, it is asserted that the primary judge made findings contrary to the weight of evidence concerning risk to the children in their father’s care. All that needs to be said at this point is that there are matters of substance raised in the Notice of Appeal and it could not be said that this appeal is so lacking in merit that an otherwise strong application for expedition would be denied on this basis. I will order accordingly.
Again, it is appropriate that the mother files and serves an Amended Notice of Appeal in within 14 days.
On balance, it is the matters that go to the welfare of young children which tips the balance in favour of expedition.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 18 September 2020.
Associate:
Date: 18 September 2020
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