SULLIVAN & TYLER (NO. 3) - [2013] FamCAFC 144

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 3)

[2013] FamCAFC 144

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Whether appeals against interim parenting orders and listing of trial date orders should be expedited so to be heard before the date of final hearing– Where the gravity of the issues in the appeal are such that it should displace other matters awaiting trial dates – Whether appeals against publication orders should be expedited – Where there is no obvious nexus between the disposition of those orders and the capacity of the court to determine the living arrangements of the child, the appeal is not to be expedited

Family Law Act 1975 (Cth): ss 118, 94

British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718
Sullivan & Tyler (No. 2) [2013] FCAFC 136

APPELLANT:

Ms Sullivan

FIRST RESPONDENT:

Mr Tyler

SECOND RESPONDENT:

(in EA22, 62 and 128 of 2013)

Legal Aid NSW

SECOND RESPONDENT:

(in EA51/2013)

Ms B

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:	EA	22	of	2013
APPEAL NUMBER:	EA	51	of	2013
APPEAL NUMBER:	EA	62	of	2013
APPEAL NUMBER:	EA	128	of	2013

DATE DELIVERED:

16 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

16 September 2013

REPRESENTATION

FOR THE APPELLANT:

Ms Sullivan appeared in Person

SOLICITOR FOR THE FIRST RESPONDENT:

KDB Holmes Solicitors

SOLICITOR FOR THE SECOND RESPONDENT:

(in EA22, 62 and 128 of 2013)

Legal Aid NSW

SOLICITOR FOR THE RESPONDENT:

(in EA51/2013)

No appearance

Orders

That the hearing of Notices of Appeal EA 22 of 2013 and EA 128 of 2013 be expedited.
The appeals referred to in Order 1 are listed for hearing to commence at 2.00 pm on 23 September 2013.
IT IS NOTED that the Appeals Bench is likely to be constituted by Ainslie-Wallace, Ryan and Fowler JJ.
To the extent that Order 1 dated 25 July 2013 consolidated Appeal No EA 22 of 2013 with Appeals No EA 51 of 2013 and EA 62 of 2013, the order is discharged.
That in relation to Appeal EA 22 of 2013, Orders 9, 10, 11, 12 and 14 dated 25 July 2013 are varied so that:
(a)the appellant mother shall file and serve the Appeal Books, Summary of Argument and List of Authorities on or before 10.00 am on 19 September 2013;
(b)the respondent father shall file and serve a Summary of Argument and List of Authorities on or before 4.00 pm on 20 September 2013; and
(c)the Independent Children’s Lawyer shall file and serve a Summary of Argument and List of Authorities by 10.00 am on 23 September 2013.
That in relation to Appeal EA 128 of 2013 the following orders and directions are made:
1.   That the appeal books for the appeal comprise each of the following documents arranged in the following order:
(1)Notice of Appeal filed 3 September 2013;
(2)Order of the Honourable Justice Watts made on 15 August 2013;
(3)Transcript of Proceedings before the Honourable Justice Watts on 15 August 2013;
(4)List of Exhibits.
2.   That the Appellant Mother be responsible for the preparation of the appeal books.
3. That the Appellant Mother prepare a total of ten (10) copies of the appeal books, and file in the Sydney Registry of the Court on or before 10.00 am on 20 September 2013, 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 10.00 am on 20 September 2013 two (2) copies of the appeal books on the Respondent Father and Independent Children’s Lawyer, together with a copy of the certificate, and serve on or before 10.00 am on 20 September 2013 two (2) copies of the appeal books on the Independent Children’s Lawyer, together with a copy of the certificate.
4.   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 10.00 am on 20 September 2013.
5.   That the Appellant Mother file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 10.00 am on 20 September 2013.
6.   That the Respondent Father file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 10.00 am on 23 September 2013.
7.   That the Independent Children’s Lawyer file and serve his Summary of Argument and List of Authorities, if any, with the Appeal Registrar on or before 10.00 am on 23 September 2013.
8.   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 two (2) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
9.   To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
10. IT IS NOTED that 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.
That the appellant mother’s Amended Application in an Appeal filed on 6 September 2013 is otherwise dismissed.
That the costs of and incidental to this hearing be reserved to the Full Court.

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 Numbers: EA 22 of 2013; EA 51 of 2013; EA 62 of 2013; EA 128 of 2013
File Number: SYC 889 of 2008

Ms Sullivan

Applicant

And

Mr Tyler

First Respondent

And

Legal Aid NSW

Second Respondent (in EA22, 62 and 128 of 2013)

And

Ms B

Second Respondent (in EA51/2013)

REASONS FOR JUDGMENT

These reasons were delivered orally.
Before the Court are two Applications in an Appeal by Ms Sullivan (“the mother”) in which she seeks expedition of four Notices of Appeal which she says must be heard before the final hearing, which is due to commence before Watts J on 9 December 2013.
Both applications in an Appeal were filed on 6 September 2013. The first is an Amended Application which replace the mother’s Application in an Appeal filed on 5 August 2013. This Amended Application relates to her appeals against interim parenting orders made by Watts J on

30 January 2013 [EA 22 of 2013] and on 19 April 2013 [EA 62 of 2013]. It also relates to injunctions and an order made pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) again made by Watts J on

19 April 2013, as well as the mother’s appeal against orders made by Loughnan J on 12 April 2013. The 12 April 2013 orders concern publication of a book by Ms B [EA 51 of 2013]. The orders sought by the mother in the amended application are:
(1)That appeal EA 22 of 2013 will be expedited and heard this year at the earliest opportunity following the16 September 2013.
(2)That appeal EA 51 of 2013 and EA 62 of 2013 be heard prior to a final hearing.
Although the orders sought by her are phrased differently, the mother confirmed that by proposed order 2, she wants each of the three appeals referred to in the amended application determined before the final hearing and, to the extent necessary, expedited [EA 22, 51 and 62 of 2013]. Her preferred position is that the final hearing is vacated and if that takes place, expedition will become unnecessary. But, of course, these applications come before the Court in the context of the final hearing being listed on the dates already mentioned.
The significance of the amendment to the Amended Notice of Appeal is that the mother added an additional ground and order sought in the appeal, namely, that Watts J be disqualified from these proceedings. The final hearing to which reference has been made is scheduled to be determined by Watts J. Although the mother failed to identify any order by his Honour which dealt with the issue of disqualification, it is common ground that the only order made in relation to this issue was on 2 September 2011. As will be discussed, this is a matter of some significance.
The other Application in an Appeal relates to EA 128 of 2013 and concerns orders made by Watts J on 15 August 2013 to list the proceedings for final hearing to commence on 9 December 2013 and consequential orders.
In summary, the Applications in an Appeal concern the following:
·   interim parenting orders made by Watts J on 30 January 2013 [EA 22 of 2013] which was filed on 27 February 2013 and is now contained in the mother’s Amended Notice of Appeal filed on 2 September 2013;
·   orders made by Loughnan J on 12 April 2013 which dismissed the mother’s application for various injunctions against the father and Ms B [EA 51 of 2013] being her Amended Notice of Appeal filed on 2 September 2013;
·
orders made by Watts J on 19 April 2013 whereby the mother’s application for interim parenting orders was dismissed and, pursuant to s 118 (and other provisions), she is required to obtain leave prior to filing any further application for orders in relation to the parties’ son D, [EA 62 of 2013] being her Amended Notice of Appeal filed on

17 May 2013; and
·   trial directions and consequential orders made by Watts J on 15 August 2013 [EA 128 of 2013] being her Notice of Appeal filed on 3 September 2013.
I pause to record that in relation to the orders made by Watts J on

19 April 2013, although they relate to interim parenting orders, they do not concern where child should live or the amount of time he should spend with either of his parents. Those interim parenting orders concerned matters of communication between child and the mother. The significance of that is that the later interim parenting orders (19 April 2013) do not have the effect of rendering the earlier interim parenting orders (30 January 2013) nugatory so that it would no longer be necessary to pursue an appeal against those earlier orders.
By order of the Eastern Appeals Registrar dated 25 July 2013, appeals EA 51 of 2013 and EA 62 of 2013 were consolidated with EA 22 of 2013. In relation to each of those appeals, comprehensive directions for the preparation of appeal books and the conduct of the appeals were made. In short, the mother is required to file the appeal books, her summaries of argument and lists of authorities in relation to each of the three appeals referred to on or before 29 November 2013. Mr Tyler, who is the subject child’s father (“the father”) and Ms B are to file their appeal documents on or before 20 December 2013. The Independent Children’s Lawyer (“ICL”) is to file his appeal documents on or before 1 February 2014.
As the directions would suggest, unless expedited, the mother’s appeals would not come on for hearing before early 2014 and, therefore, they would be heard after completion of the final hearing presently listed to commence in early December 2013.

Background Facts

So as to give context to these applications, it is useful to record some of the background facts helpfully set out in Sullivan & Tyler (No 2) [2013] FCAFC 136, which is a recent decision by the Full Court. As was explained by the Full Court, these are complex parenting proceedings which concern the parties’ son, D. It would appear uncontroversial that when these proceedings commenced, child was young and he is now significantly older. I agree with the ICL that this is also a matter of some significance.
In any event, in that judgment the Full Court said:
2.On 24 April 2008 the mother removed [the child] from Australia without the father’s knowledge or consent. In May 2008 an order was made in this Court, ex parte the mother, that the child live with the father. In December 2010 the mother and child were located in Europe and in December 2010 the child was placed in the care of the father. In January 2011 the father and child returned to Australia. The child is living with the father and spends time with the mother under supervision.
3.There are parenting proceedings on foot between the mother and father…
4.In November 2011 Loughnan J ordered that [Dr Q] be appointed to prepare an expert report in the matter. A consequential order made by Loughnan J required a report earlier prepared by [Dr W] be given to [Dr Q] for her consideration.
5.The mother appealed that consequential order.
6.In February 2012 the father sought an order revoking the appointment of [Dr Q]. That application was dismissed and the father appealed the dismissal. The operation of the order appointing [Dr Q] was stayed pending determination of the appeal.
7.In June 2012 the Full Court dismissed both appeals.
8.Because of the appeals, the appointments with [Dr Q] for interviews with the parties, in preparation of her report, were cancelled. Further tentative appointment dates and times were given by [Dr Q].
9.Before any of the scheduled appointments took place, on 21 September 2012 [Dr Q] wrote to the Court advising that she wished to withdraw her consent to act as the single expert in the matter.
10.As a consequence, Watts J discharged the order appointing [Dr Q] as Single Expert Witness and, on 22 October 2012, made orders appointing [Dr R] in her stead. He also made consequential orders as to payment of the costs of [Dr R] and ordered that the parties attend on [Dr R] and arrange for the child to attend on her.
In the meantime, on 22 August 2012, the mother filed an application for interim orders, which relevantly included the following parenting orders:
…
6.Pursuant to s60CA: Child’s best interests paramount consideration in making a parenting order and s60CC (2) (b), the order is made for the child [D] to live with the mother pending a final hearing.
7.In the event that Order 6 is not accepted by the Court then pursuant to s60CA: Child’s best interests paramount consideration in making a parenting order and s60CC (2) (b), the order is made for the child [D] to spend half of each week with the mother pending a final hearing.
8.Leave at short notice.
On 10 October 2012, the mother filed an amended application for interim orders which included the following order:
…
7.That, if the Court wishes, an independent psychologist/social worker with specialised knowledge of child abuse and domestic violence be appointed to monitor [the child] during this period and report on [the child’s] welfare. The independent psychologist is permitted to view subpoenaed records, affidavits and to visit the home of either parent. The independent psychologist/social worker is not to be associated with [child and adolescent mental health services AC or NS] or any other service that has had extensive inaccurate communication from [Mr Tyler].
…
Returning to the judgment of the Full Court, their Honours said:
11.The mother, by notice of appeal filed on 8 November 2012, appealed the order appointing Dr [R]. On 15 November 2012 the mother sought a stay of those orders. His Honour refused to grant a stay. The mother appealed the refusal to grant a stay.
On 15 November 2012, the mother filed another application for interim orders which included the following orders:
…
7.Pursuant to s60CA: Child’s best interests paramount consideration in making a parenting order and s60CC (2) (b), the order is made for the child [D] to live with the mother pending a final hearing.
8.In the event that Order 6 is not accepted by the Court then pursuant to s60CA: Child’s best interests paramount consideration in making a parenting order and s60CC (2) (b), the order is made for the child [D] to spend half of each week with the mother pending a final hearing.
It can be seen that this application contained proposed orders that mirrored the orders which the mother sought in her application filed on 22 August 2012.
The mother’s applications for interim parenting orders came before Watts J on 22 November 2012. Judgment was reserved until 30 January 2013.
Turning again to the judgment of the Full Court, their Honours said:
12.The appeal against the trial judge’s refusal to stay the operation of his orders was heard by the Full Court on 7 December 2012 and on 14 December 2012 the appeal was upheld and a stay of the operation of the orders appointing Dr [R] was granted pending the hearing of the appeal against her appointment to act as single expert in the case.
On 30 January 2013, Watts J dismissed the mother’s application for interim parenting orders. An interim order was made in the father’s favour that in respect of long term issues he has sole parental responsibility in relation to which there is a mechanism for consultation with the mother. It should be noted here that there had been earlier consideration given to the child’s interim living arrangements and the effect of dismissal of the mother’s application was to leave those arrangements in place, in at least so far as they concerned where the child would live.
Returning to the Full Court’s judgment, their Honours said:
13.On 20 March 2013 the mother’s appeal against the orders appointing Dr [R] was heard and dismissed in reasons delivered on 25 March 2013. Thus his Honour’s orders of 22 October 2012 remain in force. Appointments have been made for the parties to be interviewed by Dr [R] on 10 and 11 September 2013 in preparation of her report.
14.It seems that on 17 April 2013 the mother applied for special leave to appeal to the High Court from the Full Court’s order of 25 March 2013 dismissing the appeal in relation to the appointment of Dr [R] as single expert. We use the expression “it seems” because although it is apparently uncontroversial that such an application has been filed, no material in respect of it was before Watts J or is before us on this appeal.
15.On 24 May 2013 the mother applied to Watts J for a stay of his orders of 22 October 2012 pending her appeal to the High Court. On 19 June 2013 his Honour dismissed her application for a stay of those orders.
16.By amended notice of appeal filed on 5 August 2013, the mother appeals from his Honour’s refusal to stay his orders of 22 October 2012.
In the meantime, on 19 April 2013, further orders were made by Watts J:
1.The mother’s Application in a Case filed 8 February 2013 be dismissed.
2.Pursuant to s 118(1)(c) Family Law Act 1975 (Cth) or alternatively Rule 11.04(1) Family Law Rules 2004 (Cth), the mother shall not institute any further interim proceedings under the Family Law Act for parenting orders or any other orders in relation to [the child] without leave of the Family Court of Australia.
3.Pursuant to s 114(3) Family Law Act 1975 (Cth), subject to any further order of the Court granting permission, the mother shall be restrained from serving upon the father and the Independent Children’s Lawyer any application for leave to institute any further proceedings under the Family Law Act1975 (Cth) for parenting orders and/or any other orders in relation to [child D].
4.Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to [child D] (and in particular, any application for leave by the mother pursuant to order 3 or for permission to serve any such application upon the father and Independent Children’s Lawyer pursuant to order 4) and that until further order that Judge be Justice Watts, if he is reasonably available.

So that it is clear, these are the orders which dismissed the mother’s application for her to be able to communicate with the child.
On 15 August 2013, Watts J listed the proceedings for final hearing before him for 10 days commencing 9 December 2013. A series of consequential orders in relation to the filing of affidavits, chronologies and the like were also made.
In September 2013, the mother’s applications for special leave (S36/2013 and S80/2013) which respectively concerned dismissal of an appeal in relation to the appointment of a single expert made by Loughnan J on 21 December 2011 and her unsuccessful appeal against orders made by Watts J appointing Dr R the single expert for the final hearing, were refused by the High Court.
On 5 September 2013, the mother’s appeal against the order by Watts J, made on 24 May 2013, to dismiss her application for a stay of his orders dated 22 October 2012 pending her appeal to the High Court, was dismissed.
On 6 September 2013, the mother filed the Amended Application in an Appeal, and the Application in an Appeal, which comes before the Court today.
The father’s position in relation to the various applications under consideration, is that he does not seek to be heard in relation to appeals EA 22, 62 and 128 of 2013 and, in effect, submits that if the Court is satisfied that it is in the overall interests of justice that those appeals are expedited, he could meet an expedited hearing as at next Monday.
The father, however, opposes expedition being given in relation to appeal EA 51 of 2013. That is, the appeal involving the publication order, and to which Ms B is a party. It is submitted by him that there is no obvious nexus between disposition of that appeal, and the Court’s capacity to finalise the parenting proceedings. In circumstances where he would seek to pursue an application for security for costs of that appeal, he opposes expedition.
The ICL opposes expedition in relation to each of the four appeals. In essence, it was submitted that the Court should do nothing which may compromise the ability of the trial judge to complete the hearing scheduled to commence in December. Various permutations of what might unfold, if the mother were to secure a measure of success, for example, in relation to the interim parenting orders of 30 January 2013, were explored, with the ICL ultimately maintaining the submission that it is in the child’s best interests that the issues which have so concerned his parents and the Court, are able to be ventilated as listed.
The ICL indicated there would be some difficulty in meeting an expedited appeal on Monday next.

Does the mother require leave to appeal the refusal to disqualify order?

I now turn briefly to the issue raised by presentation of a notice of appeal which contains an order sought that Watts J be disqualified. An appeal lies from a decree or order. The only order, or decree, made in relation to disqualification was made on 2 September 2011 at which time his Honour dismissed the mother’s application that he disqualify himself. It is common ground that she did not appeal against that order. As I understood the submission made this morning, nor does she seek to do so in this appeal. One might say, somewhat sensibly.
An order made two years ago, without an appeal, in relation to this type of order, would almost certainly mean that delay of that magnitude would weigh heavily against leave being given at this juncture. However, after hearing the mother’s submissions, it is now clear that that is not what she seeks, hence there is no need to explore that issue any further. As I understand the gravamen of the application, the mother says that Watts J should be disqualified as a result of remarks made by his Honour on 30 January 2013. There was no application by her to his Honour then, or subsequently, that as a consequence of whatever those remarks might be, he should disqualify himself.
As I understand it, the approach that the mother will seek to take on the appeal, is that the Full Court would intervene, without an application having been made by her, to his Honour, for him to disqualify himself. It will be a difficult argument to advance, and it is something upon which the mother should reflect before, as it will be seen, the matter is listed for hearing before us next Monday.

The applications for expedition

Section 94(2D)(j) of the Act provides that the Full Court of the Family Court, a judge of the Appeal Division, or another judge if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act, or the Family Law Rules 2004 (“the rules”) that specifically deals with the criteria to be applied on the hearing of an application for expedition of an appeal.
Rule 12.10A deals with expedition on the first day of a hearing before a trial judge. It provides some guidance as to the type of considerations which this Court should consider on an application to expedite an appeal. The factors which are relevant here are these:
(a) whether the appellant has acted reasonably and without delay in the conduct of the case;
(b) whether the application has been made without delay;
(c) any prejudice to the respondent and in this case the ICL; and
(d) whether there is a relevant circumstance which means that the case should be given priority to the possible detriment of other cases.
It can be seen that (d) captures the sentiments referred to in British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718.

Expedition of the interim parenting appeals

I now turn to EA 22 of 2013. This is the interim parenting appeal. In brief, the mother points to the long and difficult history of litigation in relation to the child. She says that there are serious child at risk issues, and that she can make out a compelling case on appeal that the orders of 30 January 2013 were made in error and place the child at risk.
She filed her appeal promptly.
She submits, correctly in my view, that there is no prejudice to the other parties if the appeal is expedited and, in effect, argues that the gravity of the issues in the appeal are such that it should displace other matters that are awaiting trial dates. I agree and EA 22 of 2013 will be expedited.

Expedition of the trial directions appeal

EA 128 of 2013 is the appeal which concerns the final hearing listing (and consequential orders) made on 15 August 2013. Again, the mother has applied promptly, and it is her argument that there is no prejudice to the respondent or the ICL if that appeal is expedited. She argues that the directions, including the listing of the final hearing, at a time when she faces a two week criminal trial in which she will appear on her own behalf in October 2013, has resulted in a set of directions, and potentially a final hearing, which is procedurally unfair. She referred to the complex litigation, which is a descriptor, seemingly embraced by those appearing today. It is her argument that unless expedition of this appeal is granted, the appeal will be rendered nugatory. I agree and this appeal will be expedited.

Expedition of the s 118 and other orders appeal and appeal in relation to the publication orders

The remaining appeals, EA 51 of 2013 and EA 62 of 2013, will not be expedited.
Dealing with EA 51 of 2013, that is, the publication order appeal, I agree with the submission made by the solicitor appearing for the father, that there is no obvious nexus between the disposition of that appeal and the capacity of the Court at first instance, whenever it may occur, to determine the child’s living arrangements. Although I understand that the mother argues that this application raises issues of credit, as I explain during the hearing, at this stage I am unable to agree with her. For completeness, I will incorporate into this judgment the oral submissions made by the mother to the following effect:
[The mother] – I need to have that resolved prior to the final hearing because that publication is, as Justice Loughnan mentioned in his judgment, dissemination of material, and from my words, in an illegal manner, and the entire court judgment which reveals sensitive information about [the child]. [The child] has now on the internet a book that he can look up and explains his father’s sexual abuse allegations. It explains him trying to harm himself. I want that urgently removed. I certainly want that acknowledged that that is totally inappropriate, more so than --- In Justice Loughnan’s judgment he said, yes it’s not in the child’s best interests. There are elements of breach of s 121 but in my view he failed to then go ahead and make the correct finding, in my argument. I think I would like that argument because it puts credit into my concerns for the final hearing.
This is not a matter which could justify expedition ahead of other appeals regularly filed and awaiting determination.
I make similar observations in relation to EA 62 of 2013. As the mother said during her submissions, the effect of the s 118 and other orders is not so severe (my words, not hers) that with a timely final hearing there is much utility, one way or the other, to that order. I would observe that that is an order which provides a mechanism for the mother to present applications in relation to the child and with permission to proceed. The mother conceded, as I understood it, that to the extent that appeal EA 62 of 2013 dealt with issues of her ability to communicate with the child, it could properly await completion of appeal EA 22 of 2013. The logic for that approach is obvious.
I therefore make the orders appearing at the beginning of the judgment.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 16 September 2013.

Associate: K. McCarthy

Date: 20 September 2013