PITMAN & HYNES
[2020] FamCAFC 259
•22 October 2020
FAMILY COURT OF AUSTRALIA
| PITMAN & HYNES | [2020] FamCAFC 259 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant mother seeks expedition of her appeal against procedural orders – Where the final hearing is listed in three months – Competence of the appeal – Service – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) ch 7, r 12.10A |
| APPLICANT: | Ms Pitman |
| RESPONDENT: | Mr Hynes |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | WOC | 772 | of | 2011 |
| APPEAL NUMBER: | EAA | 133 | of | 2020 |
| DATE DELIVERED: | 22 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 16 October 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 August 2020 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| THE APPLICANT: | Litigant in person |
| THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW |
Orders
The Application in an Appeal filed on 15 September 2020 is 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 Pitman & Hynes 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 Number: EAA 133 of 2020
File Number: WOC 772 of 2011
| Ms Pitman |
Applicant
And
| Mr Hynes |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ms Pitman (“the mother”) seeks that her appeal against procedural orders made by a Judge of the Family Court on 31 August 2020 be expedited.
At the outset, it would be helpful to give some background to these proceedings to give some context to this application.
The mother and Mr Hynes (“the father”) commenced their relationship in 1995, married in 1999 and separated in 2011. The parties’ two children were born in 2003 and 2004. When the parties first separated in 2011 the father filed an Initiating Application commencing parenting proceedings. However, the parties reconciled and those proceedings were discontinued by the father in 2012. The parties separated on a final basis in 2013 and in July 2014 the mother commenced proceedings for final parenting orders.
The parenting proceedings are listed for final hearing before the primary judge on 18 January 2021.
On 7 July 2020 the mother filed an Application in a Case seeking orders that the father be dealt with for contempt of a range of orders made in both the Federal Circuit Court and the Family Court dating back to 2016. On 9 July 2020 this application was rejected for filing by a Registrar because the Registrar was of the view that the mother ought to have filed an application seeking to have the father dealt with for contravening orders, rather than be dealt with in contempt. The mother did not re-file an application in contravention rather, she filed an Application to Review the Registrar’s decision. That application was listed for hearing before the primary judge on 31 August 2020. The primary judge stood over the Application to Review the Registrar’s decision to be dealt with at the commencement of the final hearing.
On 15 September 2020 the mother appealed his Honour’s decision to adjourn the application for review (rather than hear it sometime beforehand).
She raises eight grounds of appeal which I set out here in full:
1. His Hon. Justice Harper, ERRED in LAW by making NO Orders in matters that were before the Court - Monday, 31 August 2020, in realtion [sic] to the Application in a Case for Review of Registar’s [sic] Decision.
2.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: A.” the Application in a Case for Review of Registrar’s Decision as matters that were before the Court on 31 August, 2020 and making NO Order relating to the notation.
3. His Hon. Justice Harper, ERRED in LAW by making NO Order in realtion [sic] to the Application Contempt that was the subject in review of the Application in a Case for Review of Registar’s [sic] Decision matters before the Court - Monday, 31 August 2020.
4.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: B.” the Application Contempt as being the subject of matters that were before the Court on 31 August, 2020 and making NO Order relating to Application Contempt being a separate matter to the Application in a Case for Parenting Orders.
5.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: C.” the Application Contempt associated documentation contents of Letter of Urgency / Application Contemt [sic] (correspondence to the court provided by way of affidavit), and Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case) by identifying the content of the documents as being matters that “the Court is not satisfied they are sufficiently urgent to be dealt with prior to the final hearing listed to commence on 18 January 2021.”
6.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: D.” the Order 2. “The requirements of sub-section 102NA of the Family Law Act 1975 (Cthe) are to apply to cross-examination of both parties.” made on 10 July 2020 as being matters that are identified in the Application Contempt where the [father] is not a victim of domestic violence and therefore is not eligible to make application under s102NA.
7.His Hon. Justice Harper, ERRED in LAW where in Orders 2.-5. (inclusive) dated 22 April 2020 made reference to subpoena material where “The Independent Children’s Lawyer to have sole viewing access...”. Subsequent orders dated 10 July 2020 where item 7. identifies “All parties and legal representatives are directed to read all subpoena material prior to the final hearing; and”, where matters before the Court on 31 August 2020, identified His Hon. refused the [mother] and the [father] access to the referred subpoena materials.
8.His Hon. Justice Harper, ERRED in LAW commiting [sic] acts of judicial prejudice in clearly stating on multiple occassions [sic] that he did "NOT UNDERSTAND" the [mother] and not providing the [mother] the opportunity to be understood.
(Mother’s Notice of Appeal filed 15 September 2020) (As per the original)
On 15 September 2020 the mother also filed an Application in an Appeal that the hearing of that appeal be expedited.
The competence of the appeal
During the hearing of the application the Independent Children’s Lawyer raised the competence of the mother’s appeal against his Honour’s orders. On
12 October 2020 the Independent Children’s Lawyer wrote to both parties before the hearing of the application alerting them to his position and said:
I have formed the view that your appeal is not “competent”, which means that it does not contain an arguable ground of appeal, and that it should be dismissed for that reason…
(Independent Children’s Lawyer’s letter dated 12 October 2020, p. 1)
The Independent Children’s Lawyer continued and indicated that the order sought to be appealed was one which merely adjourned the mother’s application, in short, the primary judge had not determined the substance of the mother’s application and thus the appeal was, in effect, an appeal against a procedural order from which no competent appeal would lie.
The mother made some submissions on the competence of the appeal both orally and in her written submissions dated 15 October 2020. In essence she contended that, the application presently before the Full Court was in relation to expedition and not in relation to the competence or otherwise of the appeal. She argued that in that event, the Court had no “jurisdiction” to hear arguments about whether the appeal was competent (mother’s written submissions filed 15 October 2020, p.2).
The mother further argued that there were other challenges to his Honour’s decision which went beyond that to adjourn her Application for a Review of the Registrar’s decision and thus the appeal raised more than a challenge to a procedural order.
There is considerable force in the Independent Children’s Lawyer’s arguments about the appeal’s competence and this Court is indeed able to consider whether an appeal is competent in the context of considering whether or not a filed appeal should be expedited. However given that there is no application before me for summary dismissal of the appeal, and given that the mother is not represented I will do no more than note the argument raised by the Independent Children’s Lawyer.
Expedition
Section 94(2D)(j) of the Family Law Act 1975 (Cth) provides for the expedition of appeals, although no criteria or considerations for making that determination are provided. Recourse is often had to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which addresses applications for expedition of hearings before a judge.
The considerations thus are:
·whether the applicant has acted reasonably and without delay;
·whether the application has been brought expeditiously;
·whether there is any prejudice to the respondent; and
·whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
Of these considerations, the only matter for consideration is the last, whether this case should be given priority over other, similar cases.
The mother argues that the appeal against the adjournment of the application for review must be expedited so that it can be heard and determined before the final hearing. She argued that if it was not so, and if the review is heard at the same time as the final hearing and the primary judge accepts the application for filing, it is inevitable that, because the father had not been served with the application according to ch 7 of the Rules, then the contravention application will be dismissed.
It was agreed that the father had received a copy of the mother’s proposed application and is thus aware of the claims she makes against him in the application, nevertheless, the mother argued that his Honour might conclude that the application had not been properly served and dismiss it.
The question then is, whether there is any circumstance of this matter which would cause it to take priority over other cases to their possible detriment. I am not persuaded that there is.
The application for expedition will thus be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 22 October 2020.
Associate:
Date: 22 October 2020
0
2