NAPARUS & FRANKHAM

[2018] FamCAFC 190

FAMILY COURT OF AUSTRALIA

NAPARUS & FRANKHAM [2018] FamCAFC 190

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appeal cannot be heard and determined prior to the final hearing set for October 2018 – Where the mother has not complied with the interim orders made for the father to spend time with the child and it appears that she has no intention of complying with those orders – Where the father has not filed a Notice of Contravention and there is now no time to do so given the listing of the final hearing – Where Counsel for the Independent Children’s Lawyer urges dismissal of the appeal given its lack of utility – Where the appeal should be dismissed for lack of utility – Appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT: Ms Napars

RESPONDENT: Mr Frankham

INDEPENDENT CHILDREN’S LAWYER: Sonia Dosanjh

FILE NUMBER: MLC 1462 of 2016

APPEAL NUMBER: SOA 34 of 2018

DATE DELIVERED: 21 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 21 September 2018

LOWER COURT JURISDICTION: Federal Circuit Court

LOWER COURT JUDGMENT DATE: 30 April 2018

LOWER COURT MNC: [2018] FCCA 1384

REPRESENTATION

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr E. Taghdir

SOLICITOR FOR THE RESPONDENT: Nick Graham Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Lovering

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Hartleys Lawyers

Order

1. The Notice of Appeal filed on 28 May 2018 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 Naparus & Frankham 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 MELBOURNE

Appeal Number: MLC 1462 of 2016
File Number: SOA 34 of 2018

Ms Naparus

Appellant

And

Mr Frankham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court today is the Notice of Appeal filed by Ms Naparus (“the mother”) on 28 May 2018, appealing orders made by Judge Mercuri on 30 April 2018.

2. The mother appears without legal representation, Mr Frankham (“the father”) appears with counsel, Mr Taghdir, and the Independent Children’s Lawyer appears through counsel, Mr Lovering.

3. The orders appealed against are orders addressing interim parenting matters, and provide specifically for the one child of the relationship to spend time and communicate with the father. The orders further provide for the matter to be adjourned to 15 October 2018 for final hearing with a time estimate of two days. I am told today though that that final hearing has been rescheduled to 22 October 2018, but still with an estimated hearing time of two days.

4. When the matter first came before this Court on a directions hearing on 7 August 2018, I raised with the parties, and principally with the mother, the utility of the appeal, given the closeness of the date for the final hearing. Despite raising that matter with the mother, she indicated that she still wished to proceed with the appeal, and it was hoped, with the best will in the world, that the appeal might be able to be heard and determined prior to the final hearing. Accordingly, the appeal was set down for hearing today and orders were made to prepare it for that hearing.

5. Today, I raised with the parties a number of matters as to the state of the case below, but particularly with the mother. 

6. I am told that the mother has not complied with the orders the subject of the appeal. Given that circumstance, I enquired of the mother on what basis I should continue to hear the appeal, given that she had not complied with the orders. I should mention here that the mother filed an application for a stay but that application was dismissed. The mother’s response was that the appeal should proceed, that it should not be dismissed, that the trial judge got it wrong, errors were made and they need to be corrected. That of course is not responsive to the question.

7. The mother’s position in relation to not complying with the orders is, she says, that the child would be at risk, and serious risk, if those orders were complied with.

8. In that context, I was told by counsel for the father that no application alleging contravention has been filed, although it was foreshadowed that one may be filed and listed at the same time as the final hearing. 

9. Thus, on the one hand I am presented with the situation of interim orders having been made on 30 April 2018, an appeal being filed on 28 May 2018, the appeal being listed for hearing today, namely, 21 September 2018, with the final hearing of the matter now being listed for 22 and 23 October 2018, and a mother who has failed to comply with the orders and, from what she has told me today, I fully expect her to continue to fail to comply with those orders, at least up until the final hearing. What happens thereafter will of course be subject to what occurs in the final hearing.

10. On the other side of the coin, as I have explained, there has been no application alleging contravention, and there would be no time now to file an application and have it heard before the final hearing.

11. Those circumstances plainly raise, once again, the utility of this appeal.

12. Counsel for the Independent Children’s Lawyer has urged me to dismiss the appeal because of its lack of utility in the circumstances that I have just outlined. 

13. The question must be asked why this Court would go to the time, trouble and expense of hearing an appeal, reserving the decision, considering the decision and ultimately, producing reasons for judgment and orders in relation to the appeal, when none of that, save and except for the hearing today, could occur and be completed prior to 22 October 2018. And when, to be perfectly frank, whatever the result of this appeal, as I understand the mother’s position, she would still not comply with the orders made by the trial judge.

14. I do not know what the position would be in terms of the father taking contravention proceedings, but as I say, I am faced with the position where he has not done so to date.

15. It appears that the energies of the father and the Independent Children’s Lawyer are being put into the final hearing, and I can certainly understand that sentiment in these circumstances.

16. At the final hearing all the issues that both parties wish to raise but, particularly from the mother’s point of view, her allegation of risk, depending on what orders might be made for the child to spend time and communicate with the father, would be the subject of evidence and, ultimately, a final decision by the trial judge. 

17. Thus, in my view, I agree with the Independent Children’s Lawyer that there is no utility in this appeal proceeding, and I propose to dismiss it for that reason. 

18. I stress though, that that says nothing about the merits of the appeal. I am not proposing to dismiss the appeal because it lacks merit. It is purely in the circumstances as I have outlined above, that it is plain that this appeal is futile, and everyone’s energy, the mother, the father, and the Independent Children’s Lawyer, should be put into the final hearing.

19. Thus for those reasons the Notice of Appeal filed on 28 May 2018 will be dismissed

I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 21 September 2018

Associate: 

Date:  25 September 2018