Renald and Renald

[2017] FamCAFC 92

FAMILY COURT OF AUSTRALIA

RENALD & RENALD [2017] FamCAFC 92

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Mother seeks to expedite her appeal against refusal to issue a recovery order for two of the parties’ six children – Mother seeks to enforce very recent consent orders – Appeal to be heard by single judge – No detriment to other matters waiting to be heard – Application allowed.  

Family Law Rules 2004 (Cth) r 12.10A, 22.37

APPELLANT: Ms Renald

RESPONDENT: Mr Renald

FILE NUMBER: PTW 6955 of 2015

APPEAL NUMBER: WA 12L of 2017

DATE DELIVERED: 15 May 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: In chambers

JUDGMENT OF: Thackray J

HEARING DATE: In chambers

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:  10 March 2017

LOWER COURT MNC:

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Dimond Family Lawyers

SOLICITOR FOR THE RESPONDENT: O’Sullivan Davies

Orders

1. The hearing of the appeal filed on 7 April 2017 be expedited.

2. The hearing proceed without appeal books, and subject to further order, by reference to the documents in the Draft Appeal Index filed on 5 May 2017.

3. The appellant promptly obtain and provide to the respondent a transcript of the hearing before the Family Law Magistrate on 10 March 2017.  

4. The appellant file and serve a summary of argument and list of authorities (if any) on or before 26 May 2017.

5. The respondent file and serve a list of any further documents that were before the Family Law Magistrate, not included in the Draft Appeal Index, upon which he seeks to rely, together with a written summary of argument and a list of authorities (if any) on or before 9 June 2017.

6. Each party be at liberty to apply for any further directions to the Honourable Justice Thackray upon seven (7) days’ notice in writing to the other party and to the Appeals Registrar in the Perth Registry.

7. The appeal be listed for hearing before the Honourable Justice Thackray on 13 June 2017 at 10 am with an estimated hearing time of two hours.

8. The costs of the Application in an Appeal be reserved.

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 Renald & Renald 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 12L of 2017
File Number: PTW 6955 of 2015

Ms Renald

Appellant

And

Mr Renald

Respondent

REASONS FOR JUDGMENT

1. On 7 April 2017, the appellant mother filed an Application in an Appeal seeking expedition of the hearing of the appeal she filed on the same day.

2. The appeal challenges a decision of Family Law Magistrate Kaeser made on 10 March 2017 refusing to issue a recovery order for two of the parties’ six children who were retained by the respondent father following the last Christmas school holidays, notwithstanding the existence of a consent order made in April 2016 that all of the children were to live with the mother.

3. The Appeals Registrar referred the application for expedition to me pursuant to rule 22.37 of the Family Law Rules 2004 (Cth) (“the Rules”). I decided that the application should be heard in chambers and directed that if the father wished to make any submissions in opposition to the application, he should file and serve them within 14 days.

4. The parties were informed of my decision by letter dated 12 April 2017, but the correspondence was not received by the father’s solicitors until 20 April 2017.  The solicitors requested an extension of time in which to provide submissions, which were filed on 3 May 2017.  The submissions were not referred to me until 11 May 2017, after the mother had filed her Draft Appeal Index on 5 May 2017.  The submissions failed to deal with the question of whether the appeal should be expedited, but instead dealt with the merits of the appeal.

5. The Rules do not contain provisions dealing specifically with the expedition of appeal hearings. However, rule 12.10A sets out matters to be taken into account in dealing with the expedition of trials and similar considerations can be seen as applying to appeals. The overriding objective is to balance the interests of justice in the case under consideration against “the possible detriment” that might be suffered by other cases awaiting a hearing.

6. The application for expedition should be granted for the following reasons:

   a)The mother seeks to enforce a very recent consent order;

   b)When the children were not returned at the end of January 2017, the mother immediately filed an application for a recovery order, but the matter was not given a hearing until 10 March 2017;

   c)The effect of the order is that the two children are living apart not only from the mother but also from their siblings (and in one case from the child’s twin);

   d)No explanation was provided for why the mother waited until the expiration of the relevant time period to appeal, but otherwise the delay in the legal process has been outside her control;

   e)The Chief Justice has determined that the appeal may be heard by a single judge, and I have the capacity to hear the matter in the relatively near future without detriment to other matters waiting to be heard;

   f)The father has advanced no reason why the mother should be denied an urgent hearing of the appeal, save that his submissions claimed that the final hearing of the matter is “imminent”;

   g)The father’s submissions provide no information to indicate how “imminent” the trial might be.  I have caused enquiries to be made and have ascertained that the matter is in the Callover on 26 May 2017; however, it has an estimated hearing time of five days which would indicate that there is no prospect of the matter being listed any earlier than August 2017, with a likelihood of the decision then being reserved after the trial is completed;

   h)The father’s submissions indicate that a Court Expert’s report is required but there is no indication of when this might be obtained.  Experience dictates that obtaining the report may delay the listing of the trial;

   i)Although I am loathe to list any appeal against an interim order when there is a possibility the trial may follow soon after the hearing, I place weight on the fact that the mother was seeking to enforce a recent order; had to wait five weeks for her application to be heard; was then seemingly denied relief on the basis of affidavit evidence; and has no guarantee the matter will proceed to trial in the near future; and

   j)The imminence of the trial is a matter that can be taken into account on the re-exercise of the discretion if error is found in the decision.

7. Rather than delay matters further by conducting a directions hearing, I have made the directions set out at the commencement of this judgment with a view to the appeal being heard in about one month’s time.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 15 May 2017.

Associate: 

Date:  15 May 2017