Sullivan and Tyler - [2015] FamCAFC 6

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER

[2015] FamCAFC 6

FAMILY LAW – APPEAL – Application in an Appeal – Where the court has before it an application to reinstate an appeal – Where the appellant indicated that she wished to adjourn the hearing of her application – Where the respondent only provided qualified consent to the adjournment on the ground that a medical certificate needed to be provided to show why the appellant could not prosecute her appeal and application – Where the appellant has in the past failed to appear at scheduled hearings – Where the gravity of the subject matter of the hearing requires that the adjournment be granted – Application adjourned.

APPLICANT:

Ms Sullivan

RESPONDENT:

Mr Tyler

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

2014

DATE DELIVERED::

20 January 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

20 January 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 March 2014

LOWER COURT MNC:

[2014] FamCA 178

REPRESENTATION

FOR THE APPLICANT:

No appearance for or on behalf of the applicant

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Christakis
Legal Aid NSW

Orders

That the Application in an Appeal filed by Ms Sullivan on 30 October 2014 is adjourned to the Full Court at 10.00 am on 5 February 2015 for hearing.
No later than 3 February 2015 the applicant shall file and serve evidence from her treating medical practitioner which deals with the matters contained in the applicant’s email correspondence dated 18 January 2015 and 19 January 2015, being correspondence addressed to the Associate to Justice Ryan, the solicitor for the respondent and the Eastern Appeals Registrar.
The respondent’s costs of today are reserved to 5 February 2015.

THE COURT NOTES

In the event Appeal EA 47/2014 is reinstated consideration will need to be given to the orders made by Justice Ainslie-Wallace of 24 June 2014, in particular, the further participation by the Independent Children’s Lawyer in the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: EA 47 of 2014
File Number: SYC 889 of 2008

Ms Sullivan

Applicant

And

Mr Tyler

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
Before the court is an application in an appeal filed on 30 October 2014 by Ms Sullivan (“the applicant”) in appeal EA47 of 2014 seeking to reinstate this appeal. That application is listed for hearing today and is supported by the applicant’s affidavit affirmed and filed on 30 October 2014. This is but one of a series of appeals initiated by the applicant, the details of which are set out in Sullivan & Tyler (No. 2) [2014] FamCAFC 151, published by me on 11 August 2004. It is sufficient, for present purposes, to record that it is this appeal which seeks to challenge final parenting orders made by Watts J on 26 March 2014. The gravamen of those orders is that the parties’ only child, D, who was born in 2004, was ordered to live with his father, Mr Tyler (“the respondent”), that he have sole parental responsibility and, as far as time with the mother is concerned, this is very limited.
A procedural hearing in EA47 of 2014 was undertaken by the Appeals Registrar on 24 June 2014. Directions for the preparation of appeal books and necessary procedural orders for the conduct of that appeal were made.
On the same day an application in this appeal came before Ainslie-Wallace J, on which occasion her Honour made an order that the appeal be expedited.
A number of applications in an appeal in this and other appeals came before me on 11 August 2014. By Order 1 of the orders made that day, the order for expedition made by Ainslie-Wallace J on 24 June 2014 was discharged. By Order 2 of the orders dated 11 August 2014, the hearing of this and the other appeals listed to commence on 14 October 2014 was vacated. Otherwise, by Order 9 of the orders dated 11 August 2014 the applicant was ordered to file and serve her summaries of argument and lists of authorities in respect of all appeals on or before 27 October 2014. The applicant did not file her summary of argument and list of authorities in relation to this appeal by the due date, as a consequence of which this appeal was deemed abandoned.
At [51] and [52] of her affidavit filed on 30 October 2014, the applicant explained her failure to file her summary of argument as follows:
51.Orders made by Ryan J on 11 August 2014 discharge orders made on 24 June 2014. The 24 June 2014 orders are the only orders referring to preparation of appeal books or summary of argument for EA 47 of 2014. In orders made on 11 August 2014, the only mention of appeal EA 47 of 2014 is to state that it will be heard at the same time as the other appeals. That time has not yet been determined.
52.At Order 9 of 11 August 2014 that (sic) Ryan J refers to ‘all appeals’ meaning all appeals being addressed with regard to preparation of appeal books. Those appeals are EA 90 of 2014 and EA 91 of 2014. Appeal EA 47 of 2014 could not be included in the order to file summary of argument as an appeal book index had not even been settled – orders defining the appeal book index, preparation of books and filing of books were discharged on 24 June 2014 (as per order 1 of 11 August 2014).
It is my preliminary view that the applicant in those paragraphs misstates the effect of the orders of 24 June 2014 and 11 August 2014. On my reading of the orders, the orders of 11 August 2014 did not discharge the orders made by the Appeals Registrar on 24 June 2014 concerning the preparation of this appeal. It follows that as presently advised, I do not agree with the essential point made by the applicant that the Appeals Registrar was wrong to proceed on the basis that the applicant’s failure to comply with Order 9 of the orders of 11 August 2014 has resulted in her appeal being deemed abandoned.
That, however, is not the end of the matter.
On Sunday, 18 January 2015 the applicant wrote to the court and the solicitor for the respondent seeking an adjournment of this hearing because:
…I am very unwell and my doctor has not yet been able to establish the problem. My sincere apologies for the short notice however I will not be well enough to attend Court on Monday. I will provide a report from my GP as soon as we know what the problem is. I would like to seek to adjourn the re-instatement hearing. I have prepared submissions and all other documentation is filed. I am very keen to re-instate the appeal and have nearly finished preparation of my Summary of Argument but will need to wait until I have resolved this medical issue.
The Appeals Registrar responded the following morning and informed the applicant that unless she secured the written consent of the respondent to that adjournment she would need to file an application in an appeal for an adjournment of this application.
The respondent, through his solicitor, in essence, advised he would consent to an adjournment on condition that an appropriate medical report was provided by the applicant to explain her inability to prosecute her application today. Armed with that response, the applicant wrote to the Appeals Registrar and indicated she had agreement in principle to an adjournment of this application but cavilled with the idea that any medical report would be given to the respondent or his solicitor. In that email the applicant indicated she may make an application for the medical material to not be given to the respondent or his solicitor.
The effect of the email exchanges is that the respondent did not give unqualified consent to the applicant’s request for an adjournment. The respondent has today appeared, through his solicitor, and indicated that in light of the most recent email correspondence from the applicant referred to above her application for an adjournment is opposed.
In advancing the case in opposition to an adjournment, the solicitor for the respondent drew my attention to [49] through to [52] of the reasons for judgment published by Watts J on 26 March 2014. His Honour there said:
49.The mother failed to attend court on the morning of 17 December (the 7^th scheduled day of the final phase of the hearing). Although an indication had been given to the mother that there would be a discussion during the week about an opportunity for her to give a Christmas present to [the child], the mother decided to go to [the child’s] school on that morning to provide him with a present. She was due to cross examine Dr [W] on that day. She did not appear. Nobody knew where she was. She did not inform the court until later in the afternoon that she was not attending and that she was seeing a doctor. She saw a doctor on the following day and obtained a medical certificate in basic terms saying that she was suffering from stress and exhaustion and it covered the period from 17 December for one week. She emailed the certificate to the court on 18 December 2013.
50.On 17 December 2013 my associate forwarded an email to the mother informing her that the matter had been listed at 10am on 18 December 2013 and indicating that she should telephone the court room at 9.55am on that day. She failed to do so.
51. On 18 December I made the following order:
3.By 23 December 2013 the mother file and serve an affidavit explaining what she did on 17 December 2013 and on the morning of 18 December 2013 and an affidavit from any doctor upon whom she has attended on or after 17 December 2013 in which the doctor is to state:
3.1The history given by the mother;
3.2Details of the consultation and any examination of the mother;
3.3 Any opinion in relation to the mother’s health as at the time and date of the examination and/or consultation as to whether it would have been possible for the mother to:
3.1.1 Physically attend the court on 17 December 2013;
3.1.2 Make a telephone call to the court at 9.55am on 18 December 2013;
3.1.3 To participate in proceedings in court on 17 December 2013 and 18 December 2013;
3.1.4 The mother’s future ability to attend court and any opinion as to her prognosis generally;
3.1.5Details of any prescription or treatment provided to the mother and the purpose for which that prescription or treatment was given.
52.When I raised with the mother the fact that she had not complied with that order, the mother responded, “If you mean I should ask a doctor to write an affidavit, that’s your order, you ask him. I can’t ask my doctor to write something”.
The gravamen of the submission advanced for the respondent is that the approach taken by the applicant to this hearing resonates with the approach taken by her to her obligations as a litigant in the hearing undertaken by Watts J. There does appear to be at least some correlation between what occurred before Watts J and the situation, as it presently appears on the evidence before me today. The submission continued reliance on [41] of the applicant’s affidavit filed on 30 October 2014 where she said:
41.Having filed an appeal against the District Court conviction and sentence I realised that I could not seek custody of [the child] until this appeal has been heard. I therefore sought to have the appeal in the NSW Criminal Court of Appeal expedited. That has been granted. I therefore prepared extensive submissions for that matter.
The submission developed was along the lines that the applicant has a clearly articulated strategy to conduct the various pieces of appellate litigation in which she is engaged in a time, manner and priority of her choosing rather than consistent with, at least as far as this court is concerned, the court’s directions and attempts to bring the family law component of the litigation to as timely a conclusion as possible.
The terms of [41] of the applicant’s affidavit filed on 30 October 2014 do seem to lend support for the submission made by the solicitor for the respondent.
Balanced against these matters which would be persuasive of the application for an adjournment being dismissed, is the gravity of the subject matter of the proposed appeal and the clear representation by the applicant that she is so unwell she cannot participate in this hearing today. Of course, one would have expected to have received a report from at least her general practitioner providing some overview of the type of health issues which she says are being investigated and the nature of those investigations. There is no explanation from the applicant for her failure to provide at least that information.
But for the gravity of the subject matter of the proposed appeal, I would dismiss the application for reinstatement. However, it is appropriate and in the interests of the child and justice, that this application is adjourned for a short period so that the application can be considered with the participation of the applicant.
On 5 February 2015, there is listed before the Full Court an application by Ms B, in EA 51 of 2013, that the applicant provide security for costs in that appeal. The respondent father in this appeal quite reasonably did not propose to participate in the hearing on 5 February 2015. In the event the court was minded to adjourn the application for reinstatement, the solicitor for the respondent helpfully acknowledged the logic in having as many of the appeal applications dealt with simultaneously as possible and indicated that an adjournment of this application to that date could be accommodated. That is the order that will be made. The applicant will also be ordered to provide medical evidence concerning the matters raised in her email correspondence referred to earlier.
I agree with the sentiments contained in the correspondence passing from the solicitor for the respondent to the applicant that a report along the lines of an “unfit for work” because the applicant is “ill” would not amount to compliance with the order. The point being the applicant needs to provide proper medical evidence about her health investigations and why it is that those health issues have impeded her ability to appear today.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 January 2015.

Associate:

Date: 22 January 2015