BADRICK & GERSAM
[2020] FamCAFC 164
•10 July 2020
FAMILY COURT OF AUSTRALIA
| BADRICK & GERSAM | [2020] FamCAFC 164 |
| FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against interim parenting orders that substantially changed parenting arrangements – Where the mother opposes expedition – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority – Application granted. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPLICANT: | Mr Badrick |
| RESPONDENT: | Ms Gersam |
| FILE NUMBER: | SYC | 2912 | of | 2020 |
| APPEAL NUMBER: | EA | 74 | of | 2020 |
| DATE DELIVERED: | 10 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 1 July 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2020 |
| LOWER COURT MNC: | [2020] FCCA 1567 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Roberts |
| SOLICITOR FOR THE APPLICANT: | Shipton & Associates |
| THE RESPONDENT: | In person |
Orders made 1 July 2020
That the hearing of appeal EA 74 of 2020 be expedited.
The Appeals Registry is directed to list the appeal for hearing at 10:00am on 5 August 2020 before the Honourable Justice Ryan.
That the electronic appeal book for Appeal EA 74 of 2020 comprise each of the following documents arranged in the following order:
(a) Amended Notice of Appeal filed 22 June 2020;
(b) Orders of Judge Smith made on 15 May 2020;
(c) Reasons for Judgment of Judge Smith delivered 15 May 2020;
(d) Initiating Application filed by Mr Badrick on 12 May 2020;
(e) Response to Initiating Application filed by Ms Gersam on 21 May 2020;
(f) Affidavit of Mr Badrick dated 12 May 2020;
(g) Affidavit of Ms Gersam dated 21 May 2020;
(h) Notice of Risk filed by Mr Badrick on 12 May 2020;
(i) Notice of Risk filed by Ms Gersam on 21 May 2020;
(j) Case Outline of Mr Badrick dated 14 May 2020; and
(k) List of exhibits.
That on or before 15 July 2020 the appellant obtain the digital transcript of the hearings before Judge Smith on 15 May 2020 and 29 May 2020 (“consolidated digital transcript”) and email copies of such consolidated digital transcript to the respondent and to the Court using the email address …
It is noted that the Eastern Appeals Registry is to prepare the digital appeal book in accordance with these orders and will make the same available to the lawyers for each party for download from the Commonwealth Courts Portal.
That any application to adduce further evidence in the appeal by the appellant is to be filed and served by 15 July 2020.
That any application to adduce further evidence in the appeal and/or in reply to the above order (Order 4) by the respondent is to be filed and served by 29 July 2020.
That the appellant file and serve a written Summary of Argument and List of Authorities (if any) by 15 July 2020.
That the respondent file and serve a written Summary of Argument and a List of Authorities (if any) by 29 July 2020.
That the parties have photocopy access to the documents that became exhibits in the trial.
That any party who seeks to rely on an exhibit is to provide a digital copy of the exhibit to all other parties and to the Court no later than seventy-two (72) hours prior to the commencement of the appeal hearing.
That each party be at liberty to apply for any further directions to the Honourable Justice Ryan (or if not reasonably available to another member of the Appeal Division) upon seven (7) days’ notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
Any party who intends to seek costs at the conclusion of the hearing of the appeal, subject to the outcome of the appeal, must file and serve, no later than seven (7) days prior to the first day of the sittings in which the appeal is listed for hearing, a schedule of the costs to be sought at the scale prescribed by the Family Law Rules 2004, and be in a position to address the Court as to costs (including quantum), whether sought by or against that party, at the conclusion of the hearing.
Failure to comply with the above order will prevent an application for costs being made to the Court without the leave of the Court. In the event of leave being sought it may result in the hearing of the application for costs being adjourned, the appeal thereby not being concluded, and/or leave being granted on terms, including as to the payment of costs by a defaulting party or that party’s legal representative.
It is noted that Practice Direction 1 of 2017 applies to this matter and it is ordered that, to the extent to which the Practice Direction may be inconsistent with the relevant Family Law Rules, the Practice Direction is to prevail to the extent of the inconsistency.
That the costs of today’s proceedings are to be costs in the appeal.
Orders made 6 July 2020
Leave is granted to the appellant’s legal representatives and to the respondent to photocopy material produced in relation to the subpoenas to the NSW Police Force, the Department of Family and Community Services and the Department of Justice on the following conditions:
(a)any copies remain in the possession and control of the appellant’s solicitor and/or counsel briefed and, the respondent in the matter; and
(b)any copies are to be destroyed by the appellant’s solicitor and/or counsel and the respondent at the conclusion of the final hearing or when final orders are made by the Court.
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 Badrick & Gersam 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 74 of 2020
File Number: SYC 2912 of 2020
| Mr Badrick |
Applicant
And
| Ms Gersam |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 11 June 2020, Mr Badrick (“the father”) seeks to expedite his appeal against certain interim parenting orders made on 15 May 2020 in proceedings between him and Ms Gersam (“the mother”). The parenting orders relate to the parties’ son, Z born in 2017 (“the child”).
The orders under appeal are contained within the ‘Minutes of Orders’ dated 15 May 2020. Relevantly Orders 4 and 5 provide that pending further order, the child will live with each of his parents on a weekabout arrangement.
The mother opposes expedition.
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed by the father in this application.
The parties have one child together. The father asserts that at no point were the parties in a relationship with each other. They have not lived together (father’s affidavit filed 11 June 2020, p.3 paragraph 8).
The father lives with his partner, Ms B, who has two children from another relationship.
The mother has a child, Y, from another relationship who is four years old. It is the father’s belief that the mother shares care of Y with his father on an equal time basis. The mother’s current living arrangements are unclear but the father asserts that she is living with her partner, Mr C, and his daughter along with the mother’s sister (father’s affidavit filed 11 June 2020, p.3 paragraph 11).
The father says that he first met the child on 26 January 2018.
On 28 June 2018 the father commenced proceedings in the Federal Circuit Court of Australia seeking orders for the child to live with him.
On 23 October 2018 the parties entered into consent orders for the child to live with the mother and spend time with the father from 3.00 pm Friday until 4.00 pm Sunday, on each alternate weekend and on special occasions [7]. It was the father’s case that in about June 2019 the mother experienced a decline in her mental health and had difficulties with housing which impacted on her parenting capacity (father’s affidavit filed 11 June 2020, p.4 paragraph 19). As a result and by agreement, the parties changed the arrangements so that the child would live with the father and spend time with the mother [8]–[10].
On 1 May 2020 the child spent time with the mother. The father asserts that the parties agreed that the mother would return the child on 5 May 2020 but this did not happen and the mother retained the child (father’s affidavit filed 11 June 2020, p.4 paras 22-23).
On 12 May 2020 the father filed an Initiating Application in the Federal Circuit Court for interim and final parenting orders. Inter alia, he sought a recovery order for the mother to return the child to him and for the matter to be listed on an urgent basis.
The matter was listed on short notice and the primary judge heard the application on 15 May 2020. Orders were made that day and judgment delivered ex tempore.
His Honour stated that “it’s a [Rice & Asplund (1979) FLC 90-725] question given the existing orders, however, I am not going to go into that issue in great detail on this first return” [5]. His Honour treated the 23 October 2018 consent orders as the “starting point” [7], noting that the parties had changed the arrangement in June 2019. His Honour found that the child was settled with the father [21]. Nonetheless, the mother did not intend for the departure from the orders to be permanent [13] and the existing orders “are what they are” [22].
The primary judge determined the child was not at risk in either of the parties’ care and that a weekabout arrangement would provide “some comfort” to each party and also make it “very apparent if a risk arises” [23].
The father asserts that at the hearing the primary judge asked the parties to prepare a minute of order reflecting his decision and that, while the document was being prepared the parties agreed that the child would return to the father’s care for two weeks prior to the orders commencing (father’s affidavit filed 11 June 2020, p. 4 paragraph 29). The minute of orders is attached to the orders dated 15 May 2020 and requires:
·that the orders dated 23 October 2018 be suspended (Order 2);
·that the child live with the father from 12.00 pm Sunday, 17 May to 12 pm Sunday, 31 May 2020 (Order 3);
·that the child live with the mother from 12.00 pm Sunday, 31 May to 12.00 pm the following Sunday and each alternate week thereafter (Order 4);
·that the child live with the father from 12.00 pm Sunday, 7 June 2020 to 12.00 pm the following Sunday and each alternate week thereafter (Order 5); and
·that the mother provide the father with a list of medical professionals that she has attended upon since 2017 (Order 8).
The mother was directed to file an affidavit in support of the orders she sought and the matter was adjourned for mention on 29 May 2020. When the matter next came before his Honour, counsel for the father sought to have the 15 May 2020 orders varied on the basis that the evidence filed by the mother raised concerns about the effect of her mental health on her parenting capacity. Further, the mother’s representative informed the Court that the mother’s partner had been charged with family violence related offences against his former partner. His Honour refused vary the orders and the proceedings were adjourned for further mention on 4 September 2020.
The expedition application
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 (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Rules deals with applications for an expedited trial, and it provides a useful guide to the approach to be adopted to the question of expedition of an appeal. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be order of priority. The potentially relevant factors referred to in the rules which should be taken into account in an appeal setting will be discussed.
Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case. I accept that the father has lodged his appeal in a timely manner, along with his application for expedition. I have no doubt that whatever is required of the applicant to bring an appeal on for an urgent hearing would be done. This subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay. I do not have more to say about this.
The next factor which requires consideration is prejudice to the respondent. The mother has not filed any documents in this application to support or oppose expedition. However, in oral addresses she advised that she has applied for a grant of legal aid and is worried that an expedited hearing could mean that she has insufficient time to deal with that issue and arrange representation. An expedited hearing would place the mother and legal aid authority under some time pressure which weighs against a hearing being listed in a few weeks. An appeal hearing listed in five weeks or so should permit those issues to be addressed. In short, I am not persuaded that these considerations should stand in the way of expedition if it was otherwise warranted.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a) – (g). Of these, the father focuses on subparagraph (d), which is concerned with hardship to the child caused by the continuation of interim orders. The submissions made counsel for the father focus on the impact of the living arrangements on the child who, it was emphasised, is very young, has experienced significant change, and was previously in the father’s primary care. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the child. There is some force in that.
Further, subparagraph (f) concerns whether the case involves allegations of child abuse for example. In the father’s affidavit in support of this application, he raised concerns, but did not provide any detail, about family violence perpetrated by the mother’s partner (father’s affidavit filed 11 June 2020 p. 3 paragraph 12). Without more information this is not a factor that will influence the outcome.
On balance, it is the matters that go to the welfare of a young child and the substantial change in his living arrangements which tips the balance in favour of expedition.
It is necessary to consider the grounds of appeal. The father asserts that he was denied procedural fairness by reason of not being heard in relation to the parenting orders. It is asserted that neither party sought orders for equal time and that the primary judge did not invite submissions in relation to those orders (Ground 1). Further, the father asserts that the primary judge made findings contrary to the weight of evidence concerning risk to the child in the mother’s care (Grounds 3 and 7); made errors of law (Ground 2) and; failed to give adequate reasons in making the orders under appeal (Ground 6). All that needs to be said at this point is that there are matters of substance raised in the Amended Notice of Appeal and it could not be said that this appeal is so lacking in merit that an otherwise strong application for expedition would be denied on this basis. I will order accordingly.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 July 2020.
Associate:
Date: 10 July 2020
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