YARGIS & YARGIS
[2016] FamCAFC 235
•25 November 2016
FAMILY COURT OF AUSTRALIA
| YARGIS & YARGIS | [2016] FamCAFC 235 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where there was an adequate reason for the delay – Appeal reinstated. FAMILY LAW – APPEAL – APPLICATION FOR EXPEDITION OF APPEAL – Where the father seeks that his appeal against interim parenting orders be expedited – Where the orders on appeal make no provision for the father to spend time with the child – Where the mother indicated she was willing to agree to an arrangement of supervised time every weekend – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Where there is no such circumstance – Application dismissed. |
| Family Law Act 1975 (Cth) ss 94(2D)(j), 94AAA(3) Family Law Rules 2004 (Cth) rr 12.10A, 22.13 |
| APPLICANT: | Mr Yargis |
| RESPONDENT: | Ms Yargis |
| FILE NUMBER: | SYC | 5221 | of | 2016 |
| APPEAL NUMBER: | EA | 148 | of | 2016 |
| DATE DELIVERED: | 25 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 15 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 August 2016 |
| LOWER COURT MNC: | No reasons delivered |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Wimalaratne |
Orders
The appeal EA 148 of 2016 filed on 7 September 2016 be reinstated.
The application for expedition of the appeal EA 148 of 2016 be dismissed.
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 Yargis & Yargis 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 148 of 2016
File Number: SYC 5221 of 2016
| Mr Yargis |
Applicant
and
| Ms Yargis |
Respondent
REASONS FOR JUDGMENT
Mr Yargis (“the applicant”) seeks reinstatement and expedition of his appeal against interim parenting orders made by Judge Henderson on 25 August 2016. The orders concern the child E, born in 2014, who is the only child of his marriage with Ms Yargis (“the mother”).
It appears the parties separated earlier this year amid allegations of family violence, and the mother and the child subsequently spent some time living at a refuge. On 17 August 2016 the mother facilitated time to be spent between the father and the child, however the father retained the child in his care, refusing to return her to the mother. On the same day the father commenced proceedings in the Federal Circuit Court, seeking that the child live with him.
The mother filed an Application in a Case on 22 August 2016 for the child to be returned to her care and for interim orders to be made.
The matter came before the trial judge on 25 August 2016 and her Honour ordered that the father return the child to the mother’s care and that the child live with the mother. The orders further provided that the parties do all acts and things to enrol at a contact centre. However, the orders made no provision for the time the father was to spend with the child subsequent to the enrolment.
The father filed a Notice of Appeal against these orders on 7 September 2016. On the same day he filed an Application in an Appeal seeking that the appeal be expedited. That application came before me on 20 September 2016. As the matter was due back before her Honour on 13 October 2016, at which time the court would have the benefit of a Child Dispute Conference memorandum and an Independent Children’s Lawyer being appointed, I made the following orders on that day:
1.The application in an appeal filed by the applicant on 7 September 2016 is dismissed.
2.The applicant is given leave to remake the application for expedition following the hearing before Judge Henderson on 13 October 2016 without the necessity of filing a further application in an appeal.
It appears that the listing of 13 October 2016 was adjourned and the matter was to be next before the trial judge on 24 November 2016. There was some dispute between the parties as to whether this was for a directions hearing or an interim hearing. However, the parties agree that there is no indication as to when the matter will be listed for final hearing.
There is an Independent Children’s Lawyer now acting in the matter though the Independent Children’s Lawyer has had no involvement in the appeal thus far.
The appeal was deemed abandoned by the Appeal Registrar upon the father failing to file a draft index to the appeal book within the requisite time. The father now seeks for the appeal to be reinstated and to remake his application for expedition of the appeal.
Clearly, if the appeal is not reinstated then it will be unnecessary to consider the application for expedition. Thus I deal with the issue of reinstatement first.
Reinstatement of the appeal
By letter dated 7 September 2016 the Assistant to the Appeal Registrar informed the father that he was to prepare a draft index to the appeal book and:
ensure that a draft index to the appeal books is filed with the Appeals Registry, and served on all other parties to the appeal, by no later than 4.30 pm on 5 October 2016 or within 28 days of the relevant judgment being issued (being the date of the certificate of the associate to the Judicial Officer that appears on the published reasons for judgment).
(Original emphasis)
The letter further said:
Failure to file the draft index by 4.30 pm on the due date will result in the appeal being deemed abandoned pursuant to Rule 22.13(3).
(Original emphasis)
The father was then referred to r 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”).
On 13 October 2016 the Appeal Registrar wrote to the parties informing them that the appeal had been taken to be abandoned from the close of business on 5 October 2016 as the draft index had not been filed by this date.
Though the father was referred to r 22.13 of the Rules in the letter of
7 September 2016 which explains that the reference to “within 28 days” relates to the reasons for judgment pertaining to the orders sought to be appealed, the father asserts that he thought this reference was to the orders that I made in regards to expedition on 20 September 2016. Thus the father states he was under the mistaken impression that he had 28 days after the orders of
20 September 2016 in which to file the draft index.
Upon receiving notice that the appeal was taken to be abandoned on
13 October 2016, the father acted promptly in filing his application for reinstatement the next business day. The father further advised the Court on the hearing of the application that the draft appeal index has been lodged with the Registry.
Given the father’s prompt response in applying for the appeal to be reinstated, and the fact that he is self-represented in these proceedings, I am satisfied that his failure to file the draft appeal index was an act of inadvertence and that this is an adequate reason for the delay. I am further satisfied that the father has taken all appropriate steps since this time to allow for the appeal to progress in a timely manner. I will thus make an order that the appeal be reinstated.
Application for expedition
Section 94(2D)(j) of the Family Law Act 1975 (Cth) provides for the expedition of appeals, although no criteria or considerations for making that determination are provided. Recourse is often had to r 12.10A of the Rules which addresses applications for expedition of hearings before a judge.
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
The father has acted without delay in prosecuting the appeal thus far, with the exception of the filing of the draft appeal index which I have dealt with above. His application has been brought expeditiously, and the mother raised no issue of prejudice to her if the appeal is to be expedited.
The matter then turns on whether there is any reason that this case should be afforded priority over other cases awaiting a hearing.
The gravamen of the father’s argument for expedition is that he has not seen the child since the orders were made on 25 August 2016, as the orders do not currently provide for the father to spend any time with the child.
However, counsel for the mother indicated at the hearing that the mother had complied with the order to enrol at the contact centre and would be amenable to the father spending time with the child at the contact centre for the maximum number of hours that the contact centre would allow on one day each weekend.
Given this indication by the mother and the willingness of the parties to discuss the matter, I am satisfied that some appropriate arrangement can be agreed upon by the parties until further orders are made.
That being so, I am not convinced that there is any relevant circumstance which would cause this case to be given priority to other cases currently awaiting appeal, many of which involve serious allegations of risk to children or relate to final orders.
I am also mindful of the fact that appeals against orders of a judge of the Federal Circuit Court can be heard by a single judge, pending a s 94AAA(3) single judge direction being issued by the Chief Justice. I believe this is a suitable matter and have made arrangements for such a direction.
The result of this will be that the matter will be heard in a shorter time frame than if it were it to remain in the list of appeals awaiting hearing before the Full Court, and is a measure of expedition in itself.
For the above reasons the application for expedition will be dismissed.
As there was no application for costs by the mother on the application, no order for costs will be made.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 25 November 2016.
Associate:
Date: 25 November 2016
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