SANDS & RALSTON
[2015] FamCAFC 204
•25 September 2015
FAMILY COURT OF AUSTRALIA
| SANDS & RALSTON | [2015] FamCAFC 204 |
| FAMILY LAW – APPEAL – Application for expedition of appeal – Where the mother seeks to expedite an appeal of a decision dismissing an application to vary existing parenting arrangements – Where the mother alleges that the children do not want to spend overnight time with the father – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Whether the children are potentially at risk in current situation – Application allowed. |
Family Law Rules 2004 r 12.10A
| APPELLANT: | Ms Sands |
| RESPONDENT: | Mr Ralston |
| FILE NUMBER: | PAC | 4699 | of | 2008 |
| APPEAL NUMBER: | EA | 135 | of | 2015 |
| DATE DELIVERED: | 25 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 25 September 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 July 2015 |
| LOWER COURT MNC: | [2015] FCCA 1873 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Blackah |
| SOLICITOR FOR THE APPELLANT: | Godden Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Smythe Wozniak Lawyers |
Orders
That I make Order 2 in the Application in an Appeal filed by the Appellant Mother on 9 September 2015 and that the Application in an Appeal is otherwise stood over until 10.00 am on 28 October 2015 before the Full Court.
That, subject to any further order of the Full Court and subject to the appeal books being filed in time, the hearing of the appeal will be heard by the Full Court sitting in Sydney on 28 October 2015 at 10.00 am.
That the appeal books for the appeal comprise each of the following documents arranged in the following order:
Notice of Appeal filed 12 August 2015;
Order of Judge Dunkley made on 15 July 2015;
Reasons for Judgment of Judge Dunkley delivered 15 July 2015;
Consent order dated 17 July 2009;
Amended Initiating Application of the mother filed 27 March 2015;
Amended Response of the father filed 22 April 2015;
Affidavit of [Mr Ralston] filed 19 August 2014;
Affidavit of [Ms Sands] filed 27 March 2015;
Affidavit of [Mr Ralston] filed 16 April 2015;
Affidavit of [Ms Sands] filed 8 September 2015;
Mother’s case outline dated 5 May 2015;
Father’s case outline dated 5 May 2015;
Family Consultant’s memorandum dated 4 November 2014;
Transcript of Proceedings before Judge Dunkley on 6 May 2015;
List of Exhibits; and
Exhibit A and B.
That the Appellant Mother be responsible for the preparation of the appeal books.
That the Appellant Mother prepare a total of eight (8) copies of the appeal books, and file in the Sydney Registry of the Court on or before 2 October 2015, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules 2004, and serve on or before 2 October 2015, two (2) copies of the appeal books on the Respondent Father, together with a copy of the certificate.
That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date. If the appellant seeks an extension of time for filing of the appeal books, such extension should be sought with the written consent of the other party, or if such consent is not forthcoming, by filing an application in an appeal, with supporting affidavit, seeking such extension of time, prior to the close of business on the due date for filing of the appeal books being 2 October 2015.
That the Appellant Mother file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 2 October 2015.
That the Respondent Father file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 21 October 2015.
That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar, and regarding any other issue, to a judicial member of the Appeal Division, upon five (5) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
10. That the costs of and incidental to this hearing be reserved to the Full Court.
11. To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
IT IS NOTED THAT
The estimated hearing time of the appeal is 2-3 hours.
Mr Blackah is briefed to appear as counsel for the Appellant.
Ms De Vere is briefed to appear as counsel for the Respondent.
In the event either party seeks to rely on an exhibit in the proceedings he or she shall provide photocopies of such exhibit for members of the Full Court.
The Appellant or Legal Representative for the Appellant is to contact the Appeal Registry on 9217 7206 before 4.00 pm on the due date, in order to make arrangements to file the Appeal Books.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sands & Ralston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 135 of 2015
File Number: PAC 4699 of 2008
| MS SANDS |
Appellant
And
| MR RALSTON |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is the hearing of an Application in an Appeal filed by Ms Sands (“the appellant”) on 9 September 2015. The application is in respect of a Notice of Appeal filed on 12 August 2015, which appeals a decision given by Judge Dunkley on 15 July 2015.
His Honour, in hearing a threshold application as to whether there was a sufficient change in circumstances relating to the parenting of the children since consent orders were made between the parties on 17 July 2009, found that there was not such a sufficient change of circumstances and dismissed the appellant’s Initiating Application.
The orders that were made in July 2009 provided for the parents to have equal shared parental responsibility and for the two children, who are now aged nine and 12, to live week about with each parent. There was evidence before the trial judge of a deterioration in the parenting arrangement, which his Honour found was insufficient. In an affidavit in support of the application, the appellant gave evidence which she would seek to adduce on the appeal. The evidence, if accepted establishes that things have continued to deteriorate with the children, in effect, just turning up frequently at the appellant’s house and not wanting to return to Mr Ralston (“the respondent”).
This morning I am informed from the bar table, without opposition, that the present position is that the children are now living with the appellant, spending no nights at all with the respondent, but seeing him during the day. Also, since the orders were made by Judge Dunkley, the respondent has filed a contravention application.
This appeal has been administratively expedited by the Registrar and would be likely to get a hearing date in December, or possibly February of next year depending on the exigencies in the list. The Court is available to hear this matter on the week commencing 26 October this year.
In considering whether to expedite a matter it is useful to have regard to rule 12.10A of the Family Law Rules 2004, which deals with expedition, but not in relation to appeals. Nonetheless, it provides a useful guide to the considerations that the Court will undertake. Here the appellant has acted reasonably and without delay in bringing her appeal and this application.
The issues relating to the children clearly ought to be brought on quickly as the current situation can be seen as potentially causing them serious emotional and physical trauma.
One of the relevant matters to be taken into account in expediting the matter is any prejudice to the respondent. Ms Kyle, who appears for the respondent, is a sole practitioner. She has an eight-day trial commencing on 26 October 2015, which will see her otherwise engaged. Also, the proposed senior counsel to appear on the appeal is engaged by her in that very trial. Thus, if the matter is fixed for hearing that week it will place her in some difficulties. The fact that other counsel may need to be briefed on an appeal is not, in my opinion, a significant factor.
Ms Kyle’s attendance at court is, however, a significant matter. And if this were a trial as opposed to an appeal, that would be likely to carry determinative weight. However, in all of the circumstances, and given the more reduced role that a solicitor plays at the actual hearing of an appeal, and given that Ms Kyle will be able to participate completely in the preparation of the written submissions, on balance I am satisfied that the circumstances justify expediting this matter and that the matter should be listed in the week commencing 26 October 2015.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 25 September 2015.
Associate:
Date: 28 October 2015
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