Ardagh and Ardagh
[2018] FamCAFC 102
•30 May 2018
FAMILY COURT OF AUSTRALIA
| ARDAGH & ARDAGH | [2018] FamCAFC 102 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – where the father sought to expedite the hearing of the appeal – where the orders under appeal enable the mother to take the parties’ child out of the Commonwealth of Australia as and from 30 June 2018 – where the father’s grounds of appeal asserted a risk that the mother may not return to Australia with the child – where r 12.10A of the Family Law Rules 2004 (Cth) can be applied in applications to expedite the hearing of an appeal – where the father acted reasonably and without delay in the conduct of his appeal – where if the appeal was not expedited at least one aspect of the father’s appeal may be rendered nugatory – where the mother raised no issue of prejudice to her if the appeal was expedited and did not oppose the father’s application – application for expedition of the appeal allowed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| Nimmo & Bush [2016] FamCAFC 274 Renald & Renald [2017] FamCAFC 92 Wilmer & Golding [2017] FamCAFC 203 |
| APPLICANT: | Mr Ardagh |
| RESPONDENT: | Ms Ardagh |
| FILE NUMBER: | BRC | 1708 | of | 2017 |
| APPEAL NUMBER: | NOA | 5 | of | 2018 |
| DATE DELIVERED: | 30 May 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 30 May 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3312 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPLICANT: | Barry.Nilsson. Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr McGregor |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
Leave be granted to the Father to file an Amended Notice of Appeal.
The Father’s Application in an Appeal for expedition of the appeal filed on 20 April 2018 be allowed and the matter be adjourned to a date to be fixed before the Appeals Registrar for the making of directions concerning the listing of the hearing of this appeal.
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 Ardagh & Ardagh 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 BRISBANE |
Appeal Number: NOA 5 of 2018
File Number: BRC 1708 of 2017
| Mr Ardagh |
Applicant
And
| Ms Ardagh |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 12 December 2017 Judge Cassidy made final parenting orders with respect to the child, G who was born in 2014 and is thus currently three years of age.
Mr Ardagh (“the father”) appeals as of right from the parenting orders having filed a Notice of Appeal on 8 January 2018. His appeal is opposed by the child’s mother, Ms Ardagh (“the mother”).
Before me today is an Application in an Appeal by the father and a supporting affidavit filed on 20 April 2018 seeking expedition of his appeal against the final parenting orders made by Judge Cassidy on 12 December 2017.
On this application it is unnecessary to descend into the merits of the appeal as such, the question is whether this appeal should be expedited and in effect be advanced over and above the claims of other litigants waiting for their appeals to be heard.
The parenting orders made by Judge Cassidy, in summary, permitted the mother to relocate from Central Queensland to Far North Queensland and for the child to live with the mother; provision for time was made for the child to spend with the father.
Whilst it is clear that the father agitates in the appeal complaints about ordered time and the practicability of that time taking place, given the geographical distance between the parties, the orders made also permitted the mother to take the child out of the Commonwealth of Australia on and from 30 June of this year.
Part of the father’s appeal, it seems, is to agitate that her Honour was in error in making such an order permitting the mother to leave the Commonwealth, on the father’s contention that the mother might leave the Commonwealth with the child and not return.
Again, just as with the merits of the appeal more generally, it is not my task today to make any assessment of the risk which the father agitates in that respect. The position is simply that he seeks to agitate on appeal error in that respect in the making of such an order presumably by reference to evidence that was before the trial judge.
Whilst s 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) contemplates a single judge hearing an application for expedition of an appeal, there is no specific provision either in the Act or in the Family Law Rules 2004 (Cth) dealing with the criteria to be applied on an application for expedition of an appeal. However, it has been recognised in a number of cases that r 12.10A dealing with applications to expedite the first day of trial before a judge provides a helpful list of factors to be taken into account which can usefully be applied in applications to expedite the hearing of an appeal (see Nimmo & Bush [2016] FamCAFC 274; Renald & Renald [2017] FamCAFC 92; Wilmer & Golding [2017] FamCAFC 203).
By reference to r 12.10A the following list is provided:
…
(2) The court may take into account:
(a)whether the applicant 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
(d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
(3) If the court is satisfied of the matters in subrule (2), the court may:
(a) set an early first day before the Judge; and
(b) make procedural orders for the further conduct of the case.
(4) For paragraph (2)(d), a relevant circumstance includes:
(a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b)whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c) whether the applicant is suffering financial hardship that:
(i) is not caused by the applicant; and
(ii) cannot be rectified by an interim order;
(d) whether the continuation of interim orders is causing the applicant or a child hardship;
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f)whether the case involves allegations of child sexual, or other, abuse; and
(g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
As it seems to me the applicant father on this application has acted reasonably and without delay in the conduct of his appeal and in bringing this application.
The respondent mother to this application raises no issue of any prejudice and indeed Mr McGregor of counsel for the mother suggests that the mother would welcome the expedition of the hearing of the appeal and obviously the finalisation of the proceedings.
The determinative factor on this application is whether there is any relevant circumstance in which this case should be given priority to the possible detriment of other cases. On the current listings the appeal has a prospect of being heard in the sittings commencing in late July of this year but of course the relevant order to which I refer, permitting the mother to leave the Commonwealth with the child, takes effect from 30 June of this year.
The respondent mother has in fact expressed her willingness to consent to the relevant orders being stayed on the condition that the appeal is determined before the mother proposes to travel to Country W on 1 October 2018 for a three week period.
There is currently before Judge Cassidy an application for a stay of the relevant orders as to the Watch List and the prospect of the child being removed from the jurisdiction.
As it seems to me, if Judge Cassidy were to grant that stay and the appeal can be listed in the July sittings in the normal course, there would perhaps be no need for a formal order expediting the hearing of the appeal but out of an abundance of caution I am satisfied that that order should be made in this case.
If in the event Judge Cassidy grants a stay of the relevant orders pending the appeal and the appeal is listed in the July sittings, then the issue will be solved, otherwise it will be necessary for steps to be taken for a Full Court to be constituted to hear this appeal prior to 30 June 2018.
I therefore make the usual order for the expedition of the appeal and otherwise adjourn the appeal proceedings to the Appeals Registrar for the making of directions concerning the listing of the hearing of this appeal.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 May 2018.
Associate:
Date: 31 May 2018
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