Bangi and Belov

[2015] FamCAFC 183

FAMILY COURT OF AUSTRALIA

BANGI & BELOV [2015] FamCAFC 183

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks to expedite an appeal against final parenting orders – Whether a case should be given priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules 2004 r 12.10A

APPELLANT: Mr Bangi

RESPONDENT:		Ms Belov
INDEPENDENT CHILDREN’S LAWYER:		Legal Aid NSW
FILE NUMBER:	SYC 850		of	2012

APPEAL NUMBER: EA 56 of 2015

DATE DELIVERED: 13 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 13 August 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 March 2015

LOWER COURT MNC: [2015] FamCA 206

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Givney

SOLICITOR FOR THE APPELLANT: Adams & Partners Lawyers

SOLICITOR FOR THE RESPONDENT: Respondent in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW

Orders

1. That the Application in an Appeal filed 20 July 2015 seeking expedition is dismissed.

2. That by consent  I make order 1 in the Minute of Orders initialled by me and dated today, set out herein:

   1.   That the filing and serving of the parties’ Summary of Argument and List of Authorities referred in Orders 5, 6 and 7 of the Orders made by Registrar Halbert on 16 June 2015 be amended as follows:

   (a) That the Appellant Father file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 10 September 2015.

   (b)  That the Respondent Mother file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 10 October 2015.

(c)  That the Independent Children’s Lawyer file and serve her Summary of Argument and List of Authorities, if any, with the Appeals Registrar on or before 21 November 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bangi & Belov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 56 of 2015
File Number: SYC 850 of 2012

Mr Bangi

Appellant

And

Ms Belov

Respondent

And
Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 20 July 2015, Mr Bangi (“the father”) seeks an order that his appeal against parenting orders made by Hannam J on 27 March 2015 be expedited.  The proceedings concern the parties’ child, C (“the child”) born in 2006.  In the proceedings before the trial judge, the father sought orders that he have sole parental responsibility for the child, that the child live with him and spend defined time with Ms Belov (“the mother”). 

2. The mother did not attend the final days of the hearing and did not make any final submissions. An Independent Children’s Lawyer (“ICL”) participated in the final hearing before the trial judge and sought orders that the child remain living with the mother and spend regular but increasing time with the father.

3. The trial judge ordered that the parents have equal shared parental responsibility for the child and for the child to live with the mother.  The orders provide for the child to spend time with the father each alternate weekend from after school Thursday to before school Monday, and overnight each other Thursday.  The orders provide for the child to be with each parent for half the school holidays.

4. By a Notice of Appeal filed on 24 April 2015, the father challenges the orders made by the trial judge, and in the event the appeal is successful, seeks orders which would see the child live with the father and spend time with the mother. The father also seeks an order restraining the mother from bringing the child into contact with Mr GG, the mother’s former partner.  

5. The mother has filed a response to the father’s Application in an Appeal which opposes the expedition application. The ICL has appeared today and indicated to the court that he neither concedes to, nor opposes, the application for expedition.  

6. Section 94(2D) of the Family Law Act1975 (Cth) (“the Act’) provides for an order to be made expediting an appeal. Rule 12.10A of the Family Law Rules 2004 provides that when considering an application for expedition of a trial, the court may consider: whether the applicant has acted reasonably and without delay in bringing the application for expedition; prejudice to the respondent; and whether there is a “relevant circumstance in which the case should be given priority to the possible detriment of other cases”. This rule does not apply to an appeal, but the same considerations are relevant to an application for expedition of an appeal.

7. The father gives three reasons for seeking expedition of the appeal.  The first is that the mother is not an appropriate caregiver of the child. The father claims that the mother is unable to maintain stable accommodation for the child and that the father has been made aware of some criminal charges that the mother may be subject to, although he did not specify what these charges may be. These issues were largely agitated in the court below and will be again agitated on the hearing of the appeal.

8. The second reason the husband gives in support of his application for expedition is that he believes the child is at risk in the mother’s household as the mother has alcohol abuse issues which could lead to family violence. The father claims that unless the mother is treated for alcohol abuse issues, the mother has a “potential to cause family violence”. The trial judge considered, at some length, this issue in her reasons and was not satisfied on the balance of probabilities that the mother misuses alcohol to a significant degree or that alcohol use has a negative impact upon her parenting. That finding is the subject of challenge in the appeal.

9. The third reason is that the current orders are not in the child’s best interests as the child is happier when living with the father. The father also claims that the child needs “developmental assistance” with his schooling and that the child needs to be asked “[to do] something several times” before he will do it. In support of this aspect of the claim, the father provided a letter from the child’s teacher and a school report which indicates the child has “difficulty maintaining focus during written tasks”. 

10. Although the father has acted properly in bringing this application, I am not persuaded that the reasons provided in support of his application justify giving this appeal priority over other appeals.  In those circumstances, the Application in an Appeal on 20 July 2015 is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 13 August 2015.

Associate: 

Date:  21 September 2015