BABEU & AAMOT
[2015] FamCAFC 8
•29 January 2015 3 February 2015
FAMILY COURT OF AUSTRALIA
| BABEU & AAMOT | [2015] FamCAFC 8 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite an appeal against interim parenting orders – Whether a case should be given priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed. |
| Family Law Act 1975 (Cth): s 92(2D) Family Law Rules 2004: r 12.10A |
| APPLICANT: | Ms Babeu |
| RESPONDENT: | Mr Aamot |
| FILE NUMBER: | NCC | 2104 | of | 2014 |
| APPEAL NUMBER: | EA | 2 | of | 2015 |
ORDERS MADE: DATE DELIVERED: | 29 January 2015 3 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 29 January 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 22 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 3066 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page QC by telephone |
| SOLICITOR FOR THE APPLICANT: | Burke & Mead Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Dowd Watts McCray Lawyers |
Orders made 29 january 2015
That the Application in an Appeal filed 20 January 2015 be dismissed.
The costs of this application to be the costs in the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Babeu & Aamot 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 Number: EA 2 of 2015
File Number: NCC 2104 of 2014
| Ms Babeu |
Applicant
And
| Mr Aamot |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 20 January 2015, Ms Babeu (“the mother”) seeks an expedited hearing of her appeal against interim parenting orders made by Judge Myers on 22 December 2014.
The parenting proceedings concern the parties’ three children, M who was born in 2006, A who was born in 2010 and J who was born in 2012.
In summary, the interim orders provide that J lives primarily with the mother and on four occasions each fortnight spends time during the day with her father and that the two eldest children’s time is divided equally between their parents.
Mr Aamot (“the father”) is the children’s father and the respondent to this application. Although he seeks to uphold the interim orders he supports the mother’s application for expedition.
I heard and dismissed the application for expedition on 29 January 2015. With the concurrence of the parties’ representatives I indicated I would provide my reasons at a later date. These are the reasons.
Background facts
In order to give this application context it is necessary to provide some background facts.
The parties married in 2002 and separated in 2014.
The mother is a professional who works approximately 12 hours per week. The father holds a full time academic post at a University and is also undertaking a PhD in his professional field.
The parties have three children, whose details have been set out earlier.
His Honour was presented with a large volume of affidavit evidence, the contents of which meant there were relatively few uncontentious facts, concerning the parties’ roles in the children’s care. For present purposes, it is sufficient to record that both parties assert a significant role in the children’s care, as well as busy professional careers. It is common ground that nannies were employed to assist in the children’s care and that at different times the mother was more substantially involved in the children’s care than the father. For her part, the mother does not concede the father’s contention that at least during a period when the parties lived overseas so that she could pursue her career, that he was primarily responsible for their elder daughter’s care.
It would appear to be common ground and accepted by the primary judge, that in early 2014 the father became more actively involved in the children’s care; which included his taking the children to and from school and generally spending more time with them.
The parties having separated under the one roof, tensions continued to grow and, on 13 August 2014, culminated in the mother taking the children and moving to her parents’ home. This was done without the father’s consent and, it would seem, once he discovered that the children had been removed, he physically attempted to retrieve the child J. Both parties described this event as distressing and it was the catalyst for the mother’s application filed in the Federal Circuit Court on 15 August 2014 for urgent parenting orders.
Urgent interim orders were made on 8 September 2014. Those orders provided that the children would live primarily with the mother and that J would see the father during the day and her elder sisters would spend time with him on Wednesday night and alternate weekends.
A further interim hearing took place on 12 December 2014 following which, on 22 December 2014, an oral judgment was delivered and orders made by the primary judge. As I mentioned earlier, it is against those orders that the mother appeals.
The mother filed her Notice of Appeal on 24 December 2014.
On 8 January 2015, his Honour granted a stay of the orders pending determination of the mother’s appeal. It was a condition of the stay that the mother promptly applied for an expedited hearing of her appeal. The effect of the stay is that the father presently spends time with the children in accordance with the interim orders dated 8 September 2014.
Discussion
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a 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 (“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 potentially relevant factors referred to in the rule which the court may take into account will be discussed below.
Sub-paragraph (a) is concerned with whether the applicant has acted reasonably and without delay. There is no doubt that in relation to the appeal and this application the mother has moved promptly and done all that is required to prosecute both her appeal and case for expedition. The application of the sub-section weighs in favour of an order for expedition.
Sub-paragraph (b) is also concerned with delay. That matter has already been addressed and need not be considered further.
Sub-paragraph (c) concerns prejudice to the respondent. It was submitted for the father that the effect of the stay is such that unless the appeal is expedited there is the potential for him to be denied the opportunity to spend more extensive time with the children in accordance with the orders dated 22 December 2014 for more than a year. His point being, that he and the children should be given the opportunity as soon as possible to enjoy the benefits of orders which the primary judge determined to be in the best interests of the children. I agree that this is a factor which weighs in favour of an order for expedition.
Sub-paragraph (d) requires consideration of circumstances which would justify this case being given priority to the possible detriment of other cases. Relevant circumstance is defined in r 12.10A(4)(a). The submissions made on behalf of the mother focused on the notion that it would be in the best interests of the children for the interim dispute to be resolved at the earliest opportunity and to thus minimise any further disruption to their living arrangements. Counsel for the mother acknowledged that this might be said of all appeals in which a child’s living arrangements are at issue.
It is common ground that the final hearing of the parties’ parenting applications, as his Honour informed the parties, will not take place this year. Given that the orders under consideration in the appeal are interim orders, and ordinarily there would be an opportunity within a reasonable timeframe to address in a more fulsome fashion the arrangements that would be in the children’s long-term interests, it is accepted that the fact that the parties will wait at least another year before that hearing might take place also weighs in favour of expedition.
However, weighing against these factors is the magnitude of the dispute and the orders, which if the mother succeeded on appeal, she says should be made in lieu of those made by his Honour. Stated simply, the difference is a matter of the days that the two oldest children spend time with the father.
Of even greater significance, is the availability if the proceedings were transferred to the Family Court in Newcastle, of a final hearing much earlier than his Honour has indicated can be offered if the proceedings remain where they are. Lest it be misunderstood, this implies no criticism of the Federal Circuit Court but recognises that the delay which is of such significant concern to the parties can be alleviated without it being necessary for this court to prioritise this appeal to the detriment of other cases regularly listed and awaiting allocation of a hearing before the Full Court in the normal course.
When I raised the possibility of an earlier final hearing in the Family Court, those appearing for the parties agreed that the complexion of the litigation had changed and that with the inclusion of objectively complex property proceedings, the subject matter of the litigation meant that the proceedings ought to be transferred to the Family Court. Although I was enjoined to make such an order, to do so would be in excess of power and thus, an application will be made when the matter returns to his Honour in early March 2015. It is the parties’ hope and expectation that the proceedings would be transferred.
Finally, it is necessary to consider the grounds of appeal. All that need be said is that the mother raises a number of challenges to his Honour’s reasons, relevantly including a failure to give adequate reasons for rejecting expert evidence. That being said, there is nothing apparent from the grounds of appeal which would impel this court to expedite the appeal.
Conclusion
Although finely balanced, I am persuaded that the application for expedition should be dismissed.
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 3 February 2015.
Associate:
Date: 3 February 2015
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