Napleton and Napleton
[2019] FamCAFC 249
•6 December 2019
FAMILY COURT OF AUSTRALIA
| NAPLETON & NAPLETON | [2019] FamCAFC 249 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW DECISION OF APPEAL REGISTRAR – Where it is appropriate to proceed in the absence of the applicant – Where the Independent Children’s Lawyer and the respondent say that given the nature and history of the matter it is in the best interests of the children for the Independent Children’s Lawyer to be involved in the appeal - Where the orders made by the appeal registrar should remain – Whether referencing Sargent & Selwyn [2019] FamCAFC 232 the Independent Children’s Lawyer should make application to the appeal registrar to again be appointed as the ICL in the appeal – Application dismissed. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Napleton |
| RESPONDENT: | Ms Napleton |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Bannerman |
| FILE NUMBER: | PTW | 2128 | of | 2011 |
| APPEAL NUMBER: | WEA | 29 | of | 2019 |
| DATE DELIVERED: | 6 December 2019 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 December 2019 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT ORDER DATE: | 3 September 2019 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| THE APPLICANT: | No appearance |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bannerman |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bannerman Solicitors |
Orders
The Application in an Appeal filed on 17 September 2019 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 Napleton & Napleton 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
APPEAL NUMBER: WEA 29 of 2019
FILE NUMBER: PTW 2128 of 2011
| Mr Napleton |
Applicant
And
| Ms Napleton |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Before the Court today is an Application in an Appeal filed on 17 September 2019 by Mr Napleton (“the husband”). In that application, he seeks that orders 1 and 3 made by the appeal registrar on 3 September 2019 be set aside. In effect, that is an application to review the decision by the registrar to make orders 1 and 3.
Orders 1 and 3 relate to the Independent Children's Lawyer (“ICL”). Order 1 provides that:
The Independent Children's Lawyer be named in the appeal proceedings and henceforth be known as the Second Respondent.
And order 3 provides that:
By no later than 10 September 2019 the Appellant provide to the Second Respondent a copy of his Form 20 Notice of Appeal filed 22 July 2019 together with a copy of the Appeal Book Index, filed 19 August 2019.
To put that into context, there were final orders made by the primary judge on 2 July 2019, and on 22 July 2019 the husband filed a Notice of Appeal against those orders. It was as a result of that that the matter came before the appeal registrar on 3 September 2019, when he made the orders I have just referred to.
The appeal registrar also made two other orders, namely, in summary, that the husband file and serve an amended appeal book index, and the appeal be adjourned for a further directions hearing on a date to be advised.
The application before the court today is supported by an affidavit filed on 8 October 2019 and, without repeating all that is in that affidavit, in summary, the husband complains about the ICL, about the appeal registrar not assisting him as a self-represented litigant and, in short, he says that the ICL should not be a party to the appeal. Interestingly, he points to the fact that, as is usually the case, the primary judge as part of the final orders, made an order discharging the ICL.
I interpolate to note that sometimes, and, indeed, in my view, this would be a better practice to avoid a problem which might have arisen in this case, instead of a trial judge making an order discharging the appointment of an ICL, that order be made subject to any appeal. However, the primary judge did not do that in this case, and I will come back to the effect of that later in these reasons.
A review application is a hearing de novo and, in effect, that means that it is not for me to consider whether the appeal registrar was right or wrong, rather I am looking at the application afresh, and determining whether the orders challenged should remain.
The next matter to note is that the husband has not appeared today, albeit he has been called a number of times. Ms Napleton (“the wife”) appears in person, and Mr Bannerman appears as ICL. Neither of them know of any reason why the husband is not here today, and he has not informed them, or the court, of anything that is occurring which would prevent him from attending.
I note that the advice as to this listing was provided to the husband, the wife and the ICL, by letter dated 19 November 2019. That letter was sent by post, and it was sent to the address for service of the husband as nominated in his Notice of Appeal and, as I understand it, that is also his Notice of Address in the proceedings below. There has been nothing received subsequent to that to indicate that that letter has not been received by the husband, and there is nothing received from him to indicate he would not be attending today. Thus, I am satisfied that the husband has been advised of the hearing today, and I am satisfied to proceed in his absence.
I have heard submissions from the ICL, including as to some of the history of this matter and, importantly, his submission is that, it is necessary for the ICL to be involved in the appeal, given the nature of it, and the history of the matter. The wife supports that position, and says it is in the best interests of the children for the ICL to be involved in the appeal, and I accept that.
Thus, in terms of the application before me today, I propose to dismiss it and leave in place the orders made by the appeal registrar.
However, I have alerted the ICL and the wife to a recent decision of the Full Court, namely Sargent & Selwyn [2019] FamCAFC 232, wherein the Full Court, admittedly without the benefit of detailed argument, in effect, found that if an ICL is discharged by a trial judge, then the role and duty of the ICL is exhausted. Thus, although the ICL can be treated as a person affected by the proceedings, and has to be served with any Notice of Appeal, the ICL would need to obtain a new order for appointment in the appeal, and that can be sought from the appeal registrar.
I have expressed my concern about that finding. As I stressed though, it was made without the benefit of detailed argument and, indeed, the Full Court said it was a “preliminary thought” (at [9]). Thus, it is an interesting point and, in my view, clearly would need to be the subject of further argument, but that cannot happen today.
I leave it to the ICL, when he comes before the appeal registrar at the directions hearing, whenever that is listed, to make an application, if he considers it appropriate in light of that Full Court decision, to be appointed again as the ICL in the appeal.
Given that the husband has not appeared today, and I have still heard the matter, I propose to require that the court provide a transcript of the hearing today to all parties.
I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 6 December 2019
Associate:
Date: 13 December 2019
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