ADAMI & ADAMI
[2015] FamCAFC 102
•25 May 2015
FAMILY COURT OF AUSTRALIA
| ADAMI & ADAMI | [2015] FamCAFC 102 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite both the substantive appeal against interim parenting orders and orders dismissing her stay application – Where the efficient use of the court’s and parties’ resources requires that the two appeals be consolidated – Whether the matter should be afforded priority to the detriment of other cases – Where the appeal proceeding can be heard at a time where other appeals are unlikely to be dislocated – Appeals expedited. |
| Family Law Act 1975 (Cth): s 94(2D) |
| Family Law Rules 2004 (Cth): rr 10A, 12.10A |
| APPLICANT: | Ms Adami |
| RESPONDENT: | Mr Adami |
| FILE NUMBER: | PAC | 1110 | of | 2015 |
| APPEAL NUMBERS: | EA EA | 64 72 | of of | 2015 2015 |
| DATE DELIVERED: | 25 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 25 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 4 May 2015 15 May 2015 |
| LOWER COURT MNC: | [2015] FCCA 1256; [2015] FCCA 1365 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cummings SC |
| SOLICITOR FOR THE APPLICANT: | York Law |
| SOLICITOR FOR THE RESPONDENT: | Bennelong Legal |
Orders
Appeals EA 64 of 2015 and EA 72 of 2015 shall be heard together.
That those appeals be expedited.
Subject to any further direction by the Appeals Registrar, both appeals are listed for hearing before the Full Court to commence at 10.00 am on 16 June 2015.
The solicitors for the parties are directed to contact the Appeal Registrar forthwith for an urgent procedural hearing.
Costs of these applications to be costs in the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adami & Adami has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 64 of 2015; EA 72 of 2015
File Number: PAC 1110 of 2015
| Ms Adami |
Applicant
And
| Mr Adami |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an amended application in an appeal filed on 20 May 2015, Ms Adami (“the mother”) seeks an order to expedite two appeals against orders made by Judge Harman. The first is a Notice of Appeal filed 6 May 2015 (EA 64 of 2015) against interim parenting orders made on 4 May 2015. The second is a Notice of Appeal filed along with this application (EA 72 of 2015) against orders made on 15 May 2015 refusing a stay of those interim parenting orders.
The proceedings concern the parties’ daughter, X (“the child”) who was born in 2013. The interim orders provided that the child would live with the mother and spend time with the father from 9.00 am until 5.00 pm every Saturday at the home of the paternal grandparents and facilitated by their presence. This was in contrast to the mother’s application that the child’s time with the father be supervised by a person independent of the parties and occurs at a contact centre.
It was the mother’s case that the child is at risk while in the father’s care; that risk said to have emanated from a suite of circumstances. In particular, threats presented by the father’s dealings with a bikie group, statements attributed to the father from which it could be inferred that he would harm himself and/or the child, his drug misuse and gambling.
In addition, the mother seeks to consolidate the two appeals.
Mr Adami (“the father”) is the respondent to the appeals. He is the child’s father. Although he opposes the appeals and says nothing raised in them would attract appellate intervention, he does not oppose, nor does he support the applications for expedition. From his perspective, it is a matter for the court to determine whether the case for these appeals to be given priority over others is made out.
The proceedings in the Federal Circuit Court are listed for further mention in August 2015. As that date would suggest, it is quite likely that the interim orders will continue throughout 2015 and the prospect of a final hearing before 2016 would seem remote.
Background Facts
In order to give this application context, it is necessary to provide some brief and hopefully uncontroversial facts.
The parties met in 2010 and were married in July 2012. They separated in November 2014. The child was a little over 10 months when the parties separated. Since separation, the child has lived with the mother and has not spent time with the father.
The father commenced these proceedings by his Initiating Application, which was filed on 13 March 2015. He sought, amongst other things, orders which would enable him to spend time with the child.
The interim proceedings came before his Honour on the date already mentioned. The focus of those proceedings was whether or not the father’s time with the child needed to be supervised and who should supervise. As I have already mentioned, the mother’s insistence on supervision was founded on her submission that the child would be at risk while in the father’s care due to his suggested involvement with or threats from members of a bikie group, his drug use, gambling and threats of self-harm and/or harm to the child. If not individually then at least cumulatively, it was argued that there existed a serious risk of harm and that the mother could be accepted as legitimately concerned for the child if she spent time with the father other than in the circumstances proposed by her.
The mother’s evidence in relation to the father’s involvement with a bikie group derives from conversations she attributes to him to the effect that he owed members of the group some money. According to her, the father told her that he had at one stage had a gun put to his head. The father’s evidence on this point was that he had received threats from a bikie group as a result of a friend’s debt to members of that group and that this friend was now deceased. The demise of the friend was said to have alleviated the risk and it was his case that since his friend’s death, he had received no further threats and was of the view that there would be no further threats made from the bikie group.
His Honour found that the risk alleged by the mother was “…difficult to ascertain…” [55]. Despite accepting, at [53] and [64], that the father had raised with the mother his being threatened by bikies, his Honour viewed it as significant that the threats had not come to pass. He found:
60.…having regard to the evidence and its form and strength, I am not satisfied that there is anything which would warrant a finding or at least such caution as to suggest unacceptable risk from that factor…
On 4 May 2015, his Honour made the interim parenting orders and delivered ex tempore reasons in relation to the matters, the subject of the first appeal. Those reasons were published on 14 May 2015 and, as has already mentioned, provided for the father to have unsupervised time with the child at the paternal grandparents’ home, albeit in the presence of members of his family. That his Honour ordered what might be thought of as informal supervision rather than the stricter form of supervision proposed by the mother sits at the heart of the first appeal.
The mother filed her Notice of Appeal on 6 May 2015 (EA 64 of 2015). The same day, she also filed an application in an appeal and supporting affidavit seeking its expedition.
The mother then sought a stay of the interim parenting orders, proposing by way of a condition of her being granted a stay, orders along the lines that she sought to persuade his Honour to make in the interim parenting proceedings. Her application for a stay was dismissed on 15 May 2015. His Honour delivered an ex tempore judgment but the published reasons have not yet been made available. I saw no reason to await publication of those reasons, given that the court already had the reasons in relation to the primary appeal.
In any event, on 20 May 2015, the mother filed a Notice of Appeal against the refusal to grant the stay (EA 72 of 2015) and the same day she filed an application for consolidation of the appeals and their expedition.
Consolidation
As I understand it, it is accepted that consolidation would be the most efficient method of consideration of the two appeals.
In order to determine the stay appeal, it is clear that some time will need to be spent in examination of his Honour’s reasons for the substantive orders. The issues are obviously related. The arguments in favour of consolidation are persuasive and I will make that order.
Discussion – Stay appeal
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that the Full Court of the Family Court or 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 (Cth) (“the rules”) which specifically deals with the criteria to be applied on expedition of an appeal. Rule 12.10A deals with applications for an expedited trial. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The considerations set out in the rule are apt in an appeal setting.
Turning then to the factors set out in r 12.10A.
Subparagraph (a) is concerned with whether the applicant has acted reasonably and without delay. There is no doubt that in relation to the two appeals and the applications the mother has moved promptly and done all that is required to prosecute her case for expedition. I am informed that in the event this court was to list the appeals for hearing on 16 June 2015, the mother is in a position to meet that timeframe which would enable the appeals to be dealt with on that day. The application of this subsection weighs in favour of orders for expedition.
Subparagraph (b) is concerned with delay. Unless the appeals are expedited it is unlikely that they would be determined within the next few months. Given the age of the child, and the nature of the matters in issue, this weighs in favour of expedition.
Subparagraph (c) concerns prejudice to the respondent. The only point made by the respondent is that appellate intervention is unlikely in relation to either of the appeals. Otherwise, nothing is said to support an argument of prejudice, it being the respondent’s position that if he must meet the appeals, he can do so at a timing of the court’s choosing. The application of subsection (c) is moot.
The real issue in this application requires consideration of the circumstances which would justify this case being given priority to the detriment of other cases. At first blush it would be difficult to conclude that this is a case that would be given expedition if that meant dislocating other appeals regularly filed and awaiting a hearing. However, serendipitously for the appellant, time has become available on 16 June 2015 in circumstances where it is unlikely that other appeals could be brought on. It is reasonable to conclude that an order for expedition of these appeals would not dislocate other appeals. That matter considered in combination with the matters mentioned is persuasive of expedition.
It is incumbent on the court to consider albeit briefly the strength of the appeal, the point being a demonstrably unmeritorious appeal would be unlikely to persuade the court to grant an indulgence. At this stage the grounds of appeal are fluid. This is because his Honour’s reasons in relation to the first Notice of Appeal have only recently been provided, and his Honour’s reasons in relation to the second appeal have not yet been settled.
Suffice to say, at this point it is understood the grounds of appeal for the first appeal will include challenges which assert an error of principle in terms of the test to be applied in an interim hearing where it is asserted there is an unacceptable risk of harm, and the correct approach to the circumstances under which lay supervision as compared to supervision by an independent and/or skilled supervisor might be appropriate. Otherwise, the grounds appear to assert errors of fact and what might be thought of as weight challenges. The latter are, of course, quite difficult for an appellant, but on balance it can be seen that at this stage the primary appeal would appear to be presented on substantive grounds.
Conclusion and Costs
Thus, expedition will be granted, the appeals will be consolidated, and they will be brought on for hearing on 16 June 2015, subject to any further direction by the Appeals Registrar. Provision will also be made for the parties to attend upon the Appeals Registrar, as soon as possible, with a view to settling the directions for the appeal.
The costs of this application should be costs in the appeal.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 25 May 2015.
Associate:
Date: 3 June 2015
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