Naczek and Dowler
[2009] FamCAFC 69
•4 May 2009
FAMILY COURT OF AUSTRALIA
| NACZEK & DOWLER | [2009] FamCAFC 69 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL - grounds contended for in the Notice of Appeal do not raise an appellable ground of appeal - outstanding issues trial judge has yet to resolve - appeal should be expedited – amended Notice of Appeal to be filed |
| Family Law Act 1975 (Cth) |
| Halsbury’s Laws of Australia, Vol 20 |
| APPELLANT: | Mr Naczek |
| RESPONDENT: | Ms Dowler |
| FILE NUMBER: | MLF | 1222 | of | 2006 |
| APPEAL NUMBER: | SA | 7 | of | 2009 |
| DATE DELIVERED: | 4 May 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 24 March 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 April and 17 August 2007, 23 June 2008 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr St John of senior counsel |
| SOLICITOR FOR THE APPELLANT: | Westminster Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Henderson |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
Orders
Leave be granted to the Appellant Father to file and serve by 4:00 pm on 22 April 2009 an amended Notice of Appeal.
The costs of the Respondent Mother of and incidental to the proceedings before me today are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Naczek & Dowler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 9 of 2009
File Number: MLC 1222 of 2006
| MR NACZEK |
Appellant
And
| MS DOWLER |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing was an application in an appeal filed on behalf of Mr Naczek (“the Father”) in which he sought the following:
1.That the Husband be granted leave to file within 7 days a Notice of Appeal against the Orders of the Honourable Justice Cronin made 11 April 2007.
2.That the Husband be granted leave to file within 7 days a Notice of Appeal against the Orders of the Honourable Justice Cronin made 23 June 2008.
3.That the Husband be granted leave to file within 7 days a Notice of Appeal against the Orders of the Honourable Justice Cronin made 11 April 2007.
4.That the Notices of Appeal filed pursuant to these Orders be consolidated and heard together with Appeal No. SA 109 of 2009.
The Respondent is Ms Dowler (“the Mother”).
In support of the application an affidavit was sworn on 9 February 2009 by the solicitor for the Father. No material was filed on behalf of the Mother.
There was also filed a draft Notice of Appeal in respect to each of the orders of 11 April 2007, 17 August 2007 and 23 June 2008.
The application in an appeal was listed before me on 24 March 2009 where I made the following orders:
1.Leave be granted to the Appellant Father to file and serve by 4:00 pm on 22 April 2009 an amended Notice of Appeal.
2.The costs of the Respondent Mother of and incidental to the proceedings before me today are reserved.
These are my reasons.
BACKGROUND
The solicitor for the Father testified that at the time of separation of the Father and the Mother they were residing in the United Kingdom. There were subsequently contested proceedings in the United Kingdom in relation to financial matters and the two children of the marriage.
On 21 November 2005 orders were made by consent in the United Kingdom permitting the Mother to return to Australia subject to orders and undertakings given by her “designed to safeguard the welfare of the children”. It is contended that there were “mirror orders” made on 10 April 2006 by consent in the Family Court of Australia in almost identical terms with the orders made in the United Kingdom.
On 14 August 2006 proceedings were commenced in the Family Court when an application was filed by the Father in which he sought that the two children live with him and that he be permitted to take the children from Australia on a permanent basis. The application was opposed by the Mother and subsequently an Independent Children’s Lawyer was ordered to represent the children.
The hearing of the applications for final orders commenced before Cronin J on 11 April 2007.
On 11 April 2007 his Honour made the following orders:
1.The substantive issue remain listed before Justice Cronin on 16 April 2007 at 10.00am.
2.Leave is granted to the Independent Children’s Lawyer to file the report of Dr [M].
3.For the purposes of Division 12A of the Family Law Act, the provisions of the Evidence Act (Commonwealth) will not apply in respect of all witness other than the husband and the wife and that the said provisions of the Evidence Act will apply in respect of the husband and the wife.
4.Subject to the production by Jetset Travel, the material produced by them under subpoena is released for inspection and copying by all parties.
5.Pursuant to Rule 16.08 of the Family Law Rules 2004, the husband is given leave to adduce evidence from Dr [SS] in the United States of America and the provisions of Rule 16.08(2) are shortened for the purposes of compliance with this Order.
6.The said electronic communication shall be by video link at the expense of the husband initially and otherwise the costs to be determined at the hearing.
Thereafter the hearing continued for a total of 15 days over a period of approximately 11 months “with substantial breaks required because of the time required to conclude evidence, the availability of the trial judge and” because on 17 August 2007 the Mother made an application seeking an adjournment of the hearing to enable her to pursue therapeutic psychotherapy following upon a diagnosis by a single expert psychiatrist that the Mother suffers from borderline personality disorder.
On 17 August 2007 the following orders were made by his Honour:
(1)That the further hearing of all outstanding applications be adjourned to 17 December 2007 at 10.00am before Justice Cronin for final determination.
(2)That the matter be fixed for mention on a date to be fixed before the said adjourned date and the parties have liberty to apply in respect of any other interim application in the meantime.
(3)That the husband and the wife attend upon a mediator to be agreed between themselves. The mediator’s fees shall be paid as a joint expense of the husband and the wife. The means by which the mediation shall be conducted shall be determined between the parties and the mediator.
(4)In default of agreement by 4.00pm on 14 September 2007 about either the appointment of a mediator or the means by which it shall be conducted, then pursuant to s 13C(1) of the Act the parties attend family dispute resolution with a family dispute resolution practitioner as described in s 10G of the Act, such practitioner or organisation to be nominated by the Independent Children’s Lawyer.
(5)For the purposes of paragraph 4 of these orders, the husband is required to encourage the participation of Ms [G] in any part of the family dispute resolution should the family dispute resolution practitioner consider it may be helpful.
(6)In the event that either party fails to comply with paragraphs 4 or 5 (should they apply) then pursuant to s 13D(1), the family dispute resolution practitioner must report the failure to the Court in writing.
(7)That the wife attend upon and undergo therapeutic counselling with a therapist of her choice to address the matters of concern as articulated by Dr [M] in his report and in the evidence he gave between 17-19 April 2007.
(8)That the wife:
(a) notify the Independent Children’s Lawyer and the solicitors for the husband of the name, address and qualifications of the appointed therapist;
(b) provide the therapist with a copy of these orders and a copy of the report of Dr [M];
(c) advise the therapist in writing that the progress, attendances and prognosis of the wife during and arising out of the therapy may be the subject of evidence including cross-examination and that the therapist may need to be a witness in the proceedings;
(d) authorise and direct the therapist to discuss matters arising out of the therapy with Dr [M] noting that such communications are not to be understood by the therapist to be confidential; and
(e) authorise and direct the therapist to advise the Independent Children’s Lawyer;
(i)that the wife has complied with paragraph 8(b) to (d) and that the therapist agrees to be so involved in the therapy; and
(ii)should there be a breakdown in communication between the wife and a therapist to such an extent that the therapist declines to continue to be involved, such decision.
(9)Should the wife fail to comply with paragraph 8(a) to (e) or the therapist advises of a complete breakdown of the therapy, then the husband or the Independent Children’s Lawyer has liberty to apply to have the matter relisted for trial before the return date.
(10)That by 4.00pm on 14 September 2007, the wife provide any written submission she may be so advised as to why she should not pay $2886.50 being one half of the expenses and professional costs of Dr [M] for his appearances on 17 to 19 April 2007 and failing the provision of such submission, the wife pay such costs and expenses forthwith thereafter with the ultimate determination of the responsibility for such costs and expenses being a matter for final hearing.
The hearing concluded on 20 February 2008 and I was informed that on that day the trial Judge made directions for the filing of written submissions.
On 13 May 2008 an application was filed by the Father in which he sought permission to reopen his case to call evidence as to a change in his living arrangements and his proposals for the care of the children. He also sought to adduce further evidence as to the behaviour of the Mother subsequent “to the closure of evidence”. The application was opposed by both the Mother and the Independent Children’s Lawyer.
On 23 June 2008 Cronin J made the following orders:
IT IS ORDERED
1.That the application in a case filed 30 May 2008 and the response thereto filed on 13 June 2008 be dismissed.
2.That the husband file and serve the written submissions in respect of the final hearing by no later than 4.00pm on 22 August 2008.
3.That the costs of these interim applications be reserved to be determined as part of any application for costs in the overall trial.
IT IS CERTIFIED:
4.That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel, to attend.
The Father was ordered to submit further written submissions for final orders by 22 August 2008.
On 28 November 2008 the following final orders were made by Cronin J and reasons were given:
1.That all previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children of the marriage [N] born […] March 1998 and [L] born […] February 2001.
3.That the children live with the wife.
4.That pending further and final submissions based upon the findings and other orders made this day, if the husband is living outside of the [south west Victoria] environs, the children spend time with him as follows:
(a) On no less than two occasions and up to a maximum of four occasions per annum for up to three weeks on each occasion and the details of such times shall be agreed at least two months in advance and in accordance with paragraph (11).
(b) Each alternate Christmas commencing in 2009 and each alternate year thereafter to be included in one of the three week periods the children are with the husband;
(c) The husband shall collect the children from and return the children to, the wife’s usual place of residence in Australia;
(d) On any weekend the husband is in Australia from after school Friday to before school Monday, and as otherwise agreed between the parties, upon the husband giving the wife 21 days notice of his intended travel to Australia
5.That pending further and final submissions based upon the findings and other orders made this day, the husband otherwise communicate with the children as follows:
(a) During school terms by telephone to them at school by arrangement with the school’s principal and upon being so advised of such arrangement, the wife do all things necessary to facilitate the attendance of the children at the appointed time and place;
(b) During school holidays when not with the husband, by the wife organizing the children to telephone the husband at the expense of the husband each Wednesday and Sunday between 5.30pm and 6.30pm Australian time and during such telephone calls, the wife be restrained by inunction from being in the immediate presence of the children or commenting to them whilst they are communicating with their father.
6.The wife continue to attend upon her psychotherapist Ms [W] or such other psychotherapist as recommended by Ms [W] as frequently and for as long as Ms [W] or her nominee shall direct.
7.The wife authorise her treating psychotherapist to advise the husband in writing of her failure to comply with paragraph (6).
8.When the children are spending time with the husband for periods longer than a weekend, the husband shall each Wednesday and Sunday organise the children to telephone the wife between 5.30pm and 6.30pm (Australian time) on the numbers nominated by the wife for such calls.
9.Whilst the children are in their care, both parents shall facilitate the children telephoning the other parent upon the children’s reasonable request to do so.
10.The wife shall authorise all schools attended by the children to provide to the husband at his expense, the school calendar, the children’s reports, school photograph order forms, newsletters, notices and all other information provided to parents and the husband shall be able to attend the children’s speech nights, concerts, sports events, parent/teacher interviews and all such other events usually attended by parents.
11.The husband shall no less than 2 months prior to his intended time with the children pursuant to paragraph (4a) provide the wife by e-mail with the following:
i. The intended dates of that time;
ii. A full itinerary setting out where he and the children are travelling including accommodation and contact details; and
iii. If travelling out of Australia, details of the flights upon which the children will be travelling to and from Australia.
12.If the wife is planning an extended holiday period with the children she shall advise the husband by e-mail of that intention no less than 2 months prior to such planned holiday and of the similar details required of the husband in paragraph (11).
13.The wife shall keep the husband advised at all times of her permanent residential address, contact telephone numbers and e-mail and that of the children.
14.That for the minimum purposes of compliance with paragraphs (4d), (11), (12), (13) and (16) to (18), all such communications shall be by email.
15.The husband shall retain the children’s US passports and the wife shall retain the children’s Australian passports and each shall complete and return all necessary renewal documentation immediately upon receipt of same from the other party.
16.The wife shall keep the husband advised of all medical, psychological or therapeutic professionals who see the children and shall authorise such professionals to speak to and provide the husband with copies of any reports, letters and any other documents in relation to the children’s treatment, progress or prognosis.
17.Each party shall immediately advise the other of any serious illness, accident or injury suffered by the children or either of them whilst they are in their care.
18.Each party shall immediately advise the other of any serious illness, accident or injury suffered by either of them that impacts on their ability to care for the children.
19.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
20.That save as to any application to determine the precise times and conditions of the husband’s time with the children as set out in paragraphs (4) and (5) which shall be by agreement between all parties and made through my Associate, and any application as to costs, all extant proceedings are otherwise dismissed.
IT IS CERTIFIED:
21.That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend, including senior counsel.
On 30 December 2008 a Notice of Appeal was filed by the Father seeking to appeal against the orders of 28 November 2008
The Notice of Appeal contains 52 grounds of appeal which I do not propose to repeat in these short reasons. As I indicated in discussion in my view a number of the grounds contended for in the Notice of Appeal do not raise an appellable ground of appeal and the probabilities are that it will be necessary for the Notice of Appeal to be amended.
In her affidavit sworn on 9 February 2009 having set out a history of the proceedings, the solicitor for the Husband then purported to give reasons why the trial Judge was in error in relation to the orders he made on 11 April 2007, 17 August 2007 and 23 June 2008 and why leave should be granted to file a Notice of Appeal in respect of the orders made on these occasions.
During the hearing no application was made by the Husband by way of prerogative writ or by way of leave to appeal for relief against any of the orders of 1 April 2007, 17 August 2007 and 23 June 2008.
CONCLUSION
In discussion with senior counsel for the Father I indicated that I saw no reason why the matters complained of with respect to the orders of 11 April 2007, 17 August 2007 and 23 June 2008 could not be included in the Notice of Appeal that had originally been filed. Senior counsel said that had been considered and that the reason why the current application was filed was words to the effect, “for abundant caution”. For a discussion of a judgment or order from which an appeal lies as opposed to a ruling made in the course of a hearing which relates to the conduct of the hearing see Halsbury’s Laws of Australia, Vol 20 at [325-11060], Butterworths.
So far as the Mother is concerned, no submissions were made in relation to the orders sought in the application in an appeal and none were made in the event that I found that the matters complained of should be included in the Notice of Appeal against the final orders of 28 November 2008. The application was neither opposed nor consented to and nothing was put as to why the relief sought should not be granted.
During discussion I was also informed that there are outstanding issues that Cronin J has yet to resolve. I understand that his Honour has yet to determine issues in relation to the amount of time that the Father is to spend with the children. As well his Honour has yet to determine applications for costs of and incidental to proceedings before his Honour. I indicated in discussion that in my opinion the proceedings before his Honour should be completed before the current appeal is fixed for hearing because there maybe a complaint about what his Honour does with respect to the current outstanding proceedings.
I also said that in my opinion, although I did not propose to make any order in relation to the hearing of the appeal, the hearing should ultimately be expedited. My impression was that the litigation has been protracted and expensive. I was informed by the Mother’s counsel that the Mother proposes to make an application for security for costs of the appeal. I was informed that the Mother is in a very difficult financial position.
I also said that I was of the view that if I was in error in relation to the amendment of the Notice of Appeal there was no prejudice to the Husband as leave could be sought to file further Notices of Appeal out of time and the Wife could hardly complain given that she made no submissions in relation to the current application and was on notice of what the Husband complains of.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 4 May 2009
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