Abramsson & Abramsson
[2024] FedCFamC1A 182
•14 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abramsson & Abramsson [2024] FedCFamC1A 182
Appeal from: Abramsson & Abramsson [2024] FedCFamC1F 658 Appeal number: NAA 260 of 2024 File number: BRC 5917 of 2022 Judgment of: AUSTIN J Date of judgment: 14 October 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought an expedited hearing of her appeal from interim parenting orders – Where the matter is listed for trial commencing on 25 November 2024 – Where the appealed orders have been implemented and there is no evidence the children have not managed with the change of residence from the appellant to the respondent – Where the appellant may apply for variation of the interim orders at trial – Where expedition of the appeal would cause prejudice to the respondent and the Independent Children’s Lawyer – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, s 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.14
Cases cited: Gallea & Gallea [2020] FamCAFC 322 Number of paragraphs: 22 Date of hearing: 14 October 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Mr Gordon Solicitor for the Appellant: Neilsen Law Solicitor Advocate for the Respondent: Ms Smith Solicitor for the Respondent: Finnigan Smith Solicitor Advocate for the Independent Children's Lawyer: Ms Lilley Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
NAA 260 of 2024
BRC 5917 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ABRAMSSON
Appellant
AND: MR ABRAMSSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 9 October 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abramsson & Abramsson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the dismissal of the appellant’s application to expedite the hearing of her appeal.
Background
The parties are engaged in underlying proceedings in respect of their two children and the division of their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively. The proceedings are already fixed for trial before the primary judge, due to start in six weeks’ time on 25 November 2024.
In respect of the parenting proceedings under Pt VII of the Act, a court child expert has prepared two family reports – the first in October 2022 and the second in September 2024. Contemporaneously with the release of the second family report, the proceeding was listed before the primary judge to assess its readiness for trial in November 2024.
At the Court event on 11 September 2024, the Independent Children’s Lawyer (“the ICL”) orally applied for the primary judge to vary existing interim parenting orders by ordering the children to live with the respondent instead of with the appellant. She made the application pursuant to leave granted by orders made by the primary judge in June, which orders were amended in July 2024.
The ICL’s application was based on the untested opinion evidence of the court child expert within the second family report that such an order was warranted. The respondent supported the ICL’s application, but the appellant resisted it. The primary judge entertained the ICL’s oral application, granted it, made fresh interim orders, and confirmed the trial dates in November 2024. His Honour delivered ex tempore reasons for the orders.
Relevantly, the orders provided for: the discharge of prior orders (Order 1); the father to immediately collect the children from school and pre-school, after which time they would live with him (Order 2); the appellant’s restraint from arranging the collection of the children from school and pre-school (Order 3); the appellant’s restraint from attending the respondent’s home, the school, the pre-school, and the children’s treating practitioners (Order 6); and the suspension of any contact between the children and the mother until the trial in November 2024 (Order 8).
The orders were duly implemented.
The appellant filed her appeal from all orders on 8 October 2024.
She filed her interlocutory application for expedition of the appeal on 9 October 2024, in support of which she read her affidavit of the same date.
Legal principles
Unlike the predecessor Court Rules, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) do not purport to dictate the considerations which are material to expedition applications.
In Gallea & Gallea [2020] FamCAFC 322, Aldridge J said this about the determination of applications to expedite appeal hearings:
6.Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that an order can be made to expedite an appeal. Whilst there are no rules that govern the expedition of appeals, commonly a Court considering such an application will look to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) as a helpful list of the factors to be considered. The factors to be taken into account include: whether the applicant has acted reasonably and without delay in the conduct of the case, whether the application has been made without delay, whether expedition will cause any prejudice to the respondent, and whether there are any other relevant circumstances which suggest that the matter should be given priority to the possible detriment of other cases. The ultimate task for the Court to decide is whether the appeal the subject of the application should be heard before and in priority to other appeals which have already been filed and await hearing.
(Emphasis added)
That statement is presently adopted and applied as a correct statement of legal principle.
Disposition
The reasons given by the appellant in her affidavit for the need for expedition of the appeal hearing were these:
5.The children are very young, being aged 3 and 6 years of age. The children had not spent any time with the [respondent] since August 2023 and had spent very little time with the [respondent] prior to that.
6.[The primary judge] listed the matter for a 3-day trial commencing from 25 November 2024.
7.Based upon the fact that the matter is both parenting and property/financial, and has a significant volume of Court documents, subpoenas and is inherently complex, I am confident the matter cannot be litigated in three (3) days only.
8.It is very likely, as I understand it, that the final hearing of the substantive matter will be part-heard which could occur over several months (even into 2025 consideration to the Christmas closures)
9.It is even more likely that the decision will take a significant time for the Reasons to be delivered once the trial is completed.
10.The Orders made by [the primary judge], if not discharged, will most likely remain in force for a significant period of time, having a profound impact on these young children. The Orders fail to provide for sufficient safeguards for the children in the [respondent’s] care. I say this is not in the children’s best interests and it needs to be urgently addressed.
11. The outcome of this appeal is a critical issue for the final hearing of this matter.
12.I am seeking that the appeal be heard on an expedited basis so that it is dealt with prior to the commencement of the trial. For this to occur, this application in a proceeding must be heard urgently and the appeal of this decision must be heard on an expedited basis.
Evidently, three reasons are advanced: first, the children are unfamiliar with the respondent and the appealed orders are not in their best interests; secondly, the appealed orders are likely to operate for “a significant period of time” due to her assumptions the trial will not be completed within the allocated time in November 2024, it will be adjourned part-heard into 2025, and there will then be more delay until the reserved judgment is pronounced; and thirdly, the outcome of the appeal is said to be a “critical issue” for the upcoming trial.
As to the first reason, the children are not as familiar with the respondent as they are with the appellant, but that is apparently due to the appellant’s disinclination to maintain the children’s relationships with the respondent. The primary judge observed the appellant had not complied with former orders requiring the children to spend time with the respondent (at [13]), she admitted she was genuinely unable to support the children’s relationships with him (at [14] and [21]), and she did not think it was viable for them to spend any unsupervised time with him (at [32]–[33]).
Despite the appellant’s apparently honest belief to the contrary, the court child expert opined the respondent poses no risk of harm to the children (at [24] and [26]) but, conversely, the children are exposed to the risk of emotional harm in the appellant’s care (at [29]). The court child expert believed the respondent could manage the children (at [37]). Of course, the appellant contests the reliability of such evidence, but her mere belief the appealed orders do not promote the children’s best interests did not foreclose the primary judge’s rational and provisional acceptance of the expert opinion evidence.
The appellant waited nearly a full month before filing her appeal. The trial is less than six weeks away. If the children have coped with the change of residence so far, and there is no evidence they have not, then they will likely be able to cope for another six weeks. As the appealed orders are interim in nature, the appellant will be able to apply for their variation at the trial.
As to the second reason, the appellant’s assumptions about future delay are unfounded. The primary judge has already foreshadowed bifurcating the parenting and property causes and prioritising the parenting cause if both cannot be contained to the three days allocated for the trial (at [10]). It is therefore likely the trial of the parenting cause will be complete by November 2024. Even if judgment is to then be reserved, the appellant may then apply for variation of the interim orders pending the pronouncement of final judgment.
As to the third reason, it remains quite unclear how the result of the appeal is liable to bear upon the decision about final parenting orders following the upcoming trial. His Honour stated expressly many times in the reasons for judgment that the conclusions which influenced the appealed orders were only formed tentatively on untested evidence and would be revised on tested evidence at the trial. His Honour’s reasons were succinct, as was acknowledged (at [11]), but that was all they needed to be (s 69ZL of the Act).
Returning to the observations of Aldridge J in Gallea & Gallea, the appellant delayed by a month in filing her appeal and requesting its expedited hearing, expedition of the appeal would cause prejudice to the respondent and the ICL in having to deal contemporaneously with the original and appellate proceedings, the appellant’s subjective belief about the prejudice suffered by the children is not probative of the fact, and the appellant does not complain of any prejudice she personally suffers by waiting for the appeal to assume its usual priority against other appeals. The appellant is not entitled to expedition of the appeal just because she would like it.
In the normal course of events, the appeal will not be heard before the trial commences on 25 November 2024. The appellant is not due to file the draft appeal book index until 5 November 2024 (r 13.14 of the Rules). Once the trial starts on 25 November 2024, following which the appellant will be able to petition the primary judge for variation of the interim orders, the appeal from the orders made on 11 September 2024 is liable to be rendered futile. If for some reason the trial dates are vacated, this appeal is likely to be heard very early in 2025.
The Application in an Appeal is dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 14 October 2024
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