Sunderling and Rundle
[2012] FamCAFC 101
•12 July 2012
FAMILY COURT OF AUSTRALIA
| SUNDERLING & RUNDLE | [2012] FamCAFC 101 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the orders made by the Federal Magistrate reserving the issue of the children spending time with the appellant cannot constitute “final orders” – where the Federal Magistrate erred in not finalising the matters before him – where the parties and counsel for the Independent Children’s Lawyer agree that an error was made by the Federal Magistrate – where the appeal is allowed by consent – proceedings remitted to the Federal Magistrate to complete the hearing and make final orders in relation to the time the children are to spend with the appellant. |
| APPELLANT: | Mr Sunderling |
| RESPONDENT: | Ms Rundle |
| INDEPENDENT CHILDREN’S LAWYER: | Westminster Lawyers |
| APPEAL FILE NUMBER: | SOA | 32 | of | 2012 |
| FILE NUMBER: | MLC | 3795 | of | 2007 |
| DATE DELIVERED: | 12 July 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 July 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 10 May 2012 |
LOWER COURT MNC: | [2012] FMCAfam 423 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Chila (solicitor) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Westminster Lawyers |
Orders
IT IS ORDERED THAT:
By consent the appeal be allowed.
The proceedings be remitted to Federal Magistrate O’Dwyer to complete the hearing and the making of final orders in relation to the issue of the time to be spent by the children with their father.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sunderling & Rundle 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 MELBOURNE |
Appeal Number: SOA 32 of 2012
File Number: MLC 3795 of 2007
| Mr Sunderling |
Applicant
And
| Ms Rundle |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
Before me today is the Notice of Appeal filed by the father on 16 April 2012 seeking to appeal against orders made by Federal Magistrate O’Dwyer on
19 March 2012.This was to be a directions hearing in relation to this appeal to set it for hearing and to set up a regime for the filing of documents. However, at the commencement of the hearing I raised with the parties and counsel for the Independent Children’s Lawyer whether it was indeed appropriate today to truncate the matter, and to determine the appeal. That arose in this way. The orders that are sought to be appealed against were made on 19 March 2012. Those orders, of which there are four, provided that a contravention application filed by the father be dismissed, interim orders made on 2 September 2011 be discharged, and order number 3, which is the most relevant order from the point of view of the of the appeal, provided that:
The question of the father’s time with the children, [A] and [B] both born in October 1997 and [C] born in April 2001 is reserved.
The fourth order made was to vacate the hearing fixed for 30 April 2012.
What had happened was that interim orders, which provided for the children to spend time with their father, were made on 2 September 2011 by Federal Magistrate O’Dwyer, and he adjourned the matter to be further heard on 30 April 2012. In the meantime the father filed an application alleging contravention, and that application which was filed in December 2011 ultimately came on for hearing on 19 March 2012. The Independent Children’s Lawyer at that time, and I take this from his Honour’s reasons for judgment, in effect persuaded his Honour not just to deal with the contravention application, but to deal with the issue of the children continuing to spend time with their father. I note that there was a report which had been prepared by supervisors which was available to the Federal Magistrate on that day, and the Independent Children’s Lawyer had himself interviewed the children and he informed his Honour of their comments.
His Honour, it seems, was persuaded to deal with the issue of the time the children should spend with their father despite the father not having his lawyer there and expecting to address that matter on 30 April 2012. However all his Honour then did was say this, and I quote paragraph 13 of his Honour’s reasons for judgment:
I think that the question of the father’s time with the children just should be reserved. I intend to make that order. So I will discharge any other orders necessary to implement that new order.
The other orders his Honour made were to vacate the hearing of 30 April 2012 and he made the order that I referred to earlier which simply reserved the question of the time to be spent by the children with their father.
I also observe that in the formal order issued by the Federal Magistrate, those orders which I have referred to, were described as “final orders”. I have raised with the parties my concern about that given that a reservation of the issue of children spending time with their father could not under any circumstances constitute a final order.
In these circumstances, I have indicated to the parties, and to counsel for the Independent Children’s Lawyer, that it seems to me that his Honour has erred in not finalising the matter that was before him and just reserving the time to be spent by the children with their father. I concede that I have heard no argument about that from either party or counsel for the Independent Children’s Lawyer, but I needed to raise that with the parties, and indeed Mr Chila, counsel for the Independent Children’s Lawyer, has now agreed with me that that was an error made by the Federal Magistrate.
That raised the prospect of this appeal being able to be dealt with by consent if the parties agreed that that was an error by the Federal Magistrate.
Mr Sunderling has agreed and Ms Rundle the respondent has also agreed. I have given Ms Rundle the opportunity to indicate that she needs time to think about that issue and to speak to her legal adviser, but she has indicated to me that she is prepared to consent to an order allowing the appeal and remitting the matter to the Federal Magistrate for the Federal Magistrate to complete. Just like the father, the mother wants final orders put in place.I am always reluctant to take such a course when parties are in person, but given the presence of Mr Chila, and the obvious error that the Federal Magistrate has made, I am quite comfortable to allow the appeal and to remit the matter to the Federal Magistrate for him to complete the hearing in relation to the question of the time that the children are to spend with their father.
As I have said during the hearing, usually when an appeal is allowed and the matter is remitted it is remitted to a different Federal Magistrate, but given the unusual circumstances in this case where the error is the Federal Magistrate not completing the exercise, it seems to me that the matter has to go back to the same Federal Magistrate, and that is what I propose to do.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 July 2012.
Associate:
Date: 18 July 2012
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