SANDEX & BONDIR
[2017] FamCAFC 45
•3 March 2017
FAMILY COURT OF AUSTRALIA
| SANDEX & BONDIR | [2017] FamCAFC 45 |
| FAMILY LAW – APPEAL – EXPEDITION – Where the wife seeks that the hearing of her appeal be expedited – Where it has not been demonstrated to this Court that this case should be given priority over any case already listed, or waiting to be listed – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent and the Independent Children’s Lawyer make oral applications for their costs – Where it is sought that the respective applications for costs be reserved – Costs reserved. |
| Family Law Act 1975 (Cth) – s 94(2D)(j) Family Law Rules 2004 (Cth) – r 12.10A |
| APPLICANT: | Ms Sandex |
| RESPONDENT: | Mr Bondir |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hession |
| APPEAL NUMBER: | SOA | 9 | of | 2017 |
| FILE NUMBER: | MLC | 1139 | of | 2008 |
| DATE DELIVERED: | 3 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 24 January 2017 |
| LOWER COURT MNC: | [2017] FCCA 79 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Allen |
| SOLICITOR FOR THE RESPONDENT: | Macgregor Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Hession |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
The application in an appeal filed on 2 February 2017 be dismissed.
The oral applications for costs made on behalf of the respondent and the Independent Children’s Lawyer be reserved to a date to be fixed following the conclusion of the appeal filed by the appellant on 2 February 2017.
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 Sandex & Bondir 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).
|
File Number: MLC 1139 of 2008
Appeal Number: SOA 9 of 2017
| Ms Sandex |
Applicant
And
| Mr Bondir |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the Court today is an application in an appeal filed by Ms Sandex (“the wife”) on 2 February 2017 seeking that the hearing of the appeal filed on 2 February 2017 against orders made by Judge Bender on 24 January 2017 be expedited.
There is an affidavit filed in support of that application. However, as I have explained to the wife, who appears without legal representation, I am not able to take into account much of that affidavit, because what is contained therein is, as I see it, the wife re-arguing her case before the trial Judge, making the same allegations that she made during the trial, renewing those allegations, and making further, similar allegations on topics which were dealt with by the trial Judge, and dealt with on the basis of findings against the wife’s case.
As I have explained to the wife, I have to start from the premise that the trial Judge’s findings are correct. What happens at the appeal is another matter. That is the opportunity for the wife to pursue a challenge against the orders made by the trial Judge. But as I have emphasised to the wife, what she has to establish to be successful is appellable error or errors made by the trial Judge. It is not, as it seems she thinks, that she can simply re-argue her case, put the same matters before the appeal court and expect the appeal court to say, “Well, yes, the trial Judge got it wrong, because we now accept what the wife says.” That is not how appeals operate. The wife needs to take that on board as the hearing of the appeal, which it seems will inevitably occur, approaches.
Insofar as expedition is concerned, s 94(2D)(j) of the Family Law Act1975 (Cth) (“the Act”) provides that the Court may make an order to expedite the hearing of an appeal. There is no provision, though, in the Act or in the Family Law Rules 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied. Some assistance, though, can be gleaned from r 12.10A of the Rules, which is a rule that deals with applications for expediting the first day of a trial before a first instance Judge. Now of course, that is far different from an appeal, but as I say, some assistance in terms of the appropriate criteria can be gleaned from that rule, because in short, expedition is the same, whether we are talking about an appeal or a trial, and the issue is whether the trial or the appeal should be heard earlier than otherwise might be the case.
In terms of the hearing of this appeal in the normal course of events, I have explained to the wife that the next appeal sittings in Melbourne are in May 2017, but that list is full; then there are sittings in July 2017 and that list is not yet full, but I will come back to that; and the final sittings for the year are in October 2017. Accordingly the best that the wife could expect, if I did expedite this, would be to expedite it such that it would be heard in July 2017. However, the problem with that, as I have also explained to the wife, is that there are a number of appeals filed last year against orders made by trial Judges which either have already been allocated to July or are waiting to be listed, and many of those appeals, of which I have knowledge because I am the appeal division Judge responsible for appeals in Melbourne, have similar or greater elements of urgency compared with this matter.
Here, in summary, the wife’s case is that she is not happy with the orders made by the trial Judge. They were orders sought by Mr Bondir (“the husband”), and supported by the Independent Children’s Lawyer and the experts in the case. Thus understandably the wife is unhappy with the outcome of the trial. She says the children, because the orders were not made as she sought, are suffering and continue to suffer, and it is in their best interests that the appeal be heard as soon as possible. In support of that she raises in her affidavit and in her submissions today, and to repeat, many if not all of the matters that she argued before the trial Judge, and to also repeat, her Honour made findings otherwise.
Thus there is no basis demonstrated to this Court for this matter to take priority over appeals that are either listed already for hearing or are waiting for a listing. Obviously some matters are in a different category. For example, this is a parenting case, and the policy of the court is to give priority to parenting cases over, for example, property cases. And there of course are property cases waiting to be listed, but I am not referring to them. I am referring to parenting appeals that are either listed or waiting to be listed, and it has not been demonstrated to this Court that this appeal should be given priority over any of those cases.
In terms of other factors that I should have regard to, there is no question that the wife has acted reasonably and without delay in the conduct of the application; by that, I mean she has filed it at the earliest opportunity and she has pursued it. The issue is whether there is any relevant circumstance on the basis of which this case should be given priority to the possible detriment of other cases, and I take that principle directly from r 12.10A.
Just to pause for a moment, in terms then of when this appeal might be listed in the normal course of events, I have indicated that I would anticipate it being listed in the October 2017 listings of this Court. There is a possibility that it might be listed in July 2017; unlikely, but I cannot exclude that possibility. And I repeat that it has not been demonstrated to this Court that this case should be given priority over any case already listed in May or July 2017 or waiting to be listed in those two months in the Melbourne Registry.
I pick up here on some submissions made on behalf of the respondent in opposing the application for expedition. Quite appropriately, Mr Allen has highlighted the recent history of this case and asked me to take into account the amount of judicial time that has already been spent on this case, and the involvement of counsellors and social scientists and an Independent Children’s Lawyer in the most recent trial before Judge Bender. To highlight that point, final orders were made by Judge Bender after a lengthy trial on 24 January 2017. That trial comprised the wife’s attempt to change earlier final parenting orders made by Judge Baker on 5 March 2015. It is also noteworthy that the wife appealed those orders, but that appeal was dismissed on 29 October 2015. Yet not a month after that, namely on 19 November 2015, the wife filed her initiating application which eventually came before Judge Bender on 12 September 2016.
In effect, Judge Bender’s orders maintained the orders made by Judge Baker, save and except there were – and I am mentioning this in a summary fashion without being specific – there were changes to the spend-time orders with the wife. There is no change to the circumstance that the children were to continue to live with the husband.
From that snapshot, it is quite apparent that the Federal Circuit Court has devoted significant judicial resources to determining the best interests of these children, and two judges have determined that it is in the best interests of the children to live with the husband. And to repeat, it is not only judicial resources, there have been other resources, including that of an Independent Children’s Lawyer who was appointed for the purposes of the trial before Judge Bender and, the Independent Children’s Lawyer supported the orders sought by the husband, and which orders were ultimately made by Judge Bender.
Today, counsel for the Independent Children’s Lawyer has quite properly indicated that they take no position in relation to the application for expedition, but counsel will not mind me saying that she took me to some matters which, in my assessment, militate against the granting of the expedition application and, indeed, a matter that I highlighted. In paragraph 50 of the wife’s affidavit in support of the application she points to the stress that the child X will suffer in an important year in her education, and which she says results from the orders made by Judge Bender. However, I suggest that that stress can also be a result of the continuation of these proceedings. Anyway, that is a comment that should only be treated as based on a very preliminary view. Ultimately, those matters will be determined by the appeal court when, of course, the appeal court will have the full range of documentation before it, including transcript and summaries of argument, none of which I have. All I can do is look at what is before me and, specifically, the reasons for judgment of Judge Bender and the affidavit filed on behalf of the wife, and it is from those documents that my comments obviously come.
On the basis that I propose to dismiss the application, I now have oral applications for costs on behalf of the respondent and the Independent Children’s Lawyer, but it is sought that those applications be reserved. I note that the amount that the respondent seeks is $1,150 and that the Independent Children’s Lawyer seeks $565, but of course, if I am reserving those costs, as I will, both whether costs are ordered, and the amount of those costs, will need to be the subject of argument and submissions when and if those applications are pursued.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 3 March 2017.
Associate:
Date: 27 March 2017
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