Baukham and Pitresso - [2020] FamCAFC 3

FAMILY COURT OF AUSTRALIA

BAUKHAM & PITRESSO

[2020] FamCAFC 3

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Mother seeks expedition of her appeal against final orders relating to the father’s time with the parties’ child – Where the orders are stayed pending appeal – Allegations of family violence – Father supports expedition – The inability of the parties’ young child to spend time with the father in accordance with orders determined to be in her best interests at trial favours expedition – Application granted.

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

APPLICANT:

Ms Baukham

RESPONDENT:

Mr Pitresso

FILE NUMBER:

PAC

3597

2016

APPEAL NUMBER:

100

2019

DATE DELIVERED:

9 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

19 December 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 September 2019

LOWER COURT MNC:

[2019] FCCA 2529

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Rebehy

SOLICITOR FOR THE APPELLANT:

Johnson Horsley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Lama Family Lawyers

Orders dated 19 December 2019

That the hearing of appeal EA 100 of 2019 be expedited.
That appeal EA 100 of 2019 be listed for hearing before the Full Court at 10.00 am on 12 February 2020.
That Order 7 of the Orders dated 27 November 2019 be varied so that the appellant file and serve a Summary of Argument and List of Authorities on or before 28 January 2020.
That Order 8 of the Orders dated 27 November 2019 be varied so that the respondent file and serve a Summary of Argument and List of Authorities on or before 5 February 2020.

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 Baukham & Pitresso 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 100 of 2019
File Number: PAC 3597 of 2016

Ms Baukham

Applicant

And

Mr Pitresso

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By an Application in an Appeal filed on 5 December 2019, Ms Baukham (“the mother”) seeks to expedite her appeal against certain final parenting orders made in the Federal Circuit Court on 13 September 2019. Mr Pitresso (“the father”) is the respondent to this application. He supports the application for expedition. The application for expedition was granted on the understanding that reasons would be given shortly after. These are those reasons.
The parenting orders concern the parties’ daughter, X, who was born in 2013 (“the child”). Inter alia, the orders provide that the mother have sole parental responsibility for the child (Order 1), for the child to live with her (Order 3) and spend time with the father on alternate weekends, school holidays and on special occasions (Order 4). The mother seeks to appeal the orders and ancillary orders allowing the father to spend time with the child (Orders 4, 5, 6 and 18).
On 26 November 2019, on the application of the mother, the orders providing for the father to spend time with the child (Orders 4 and 5) were stayed pending the outcome of the appeal. It is a condition of the stay that the mother prosecutes her appeal diligently and seeks that it be expedited.

BACKGROUND

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 mother in this application.
The parties commenced living together in 2009. The child was born in 2013. The parties separated in February 2015. In August 2016 the father filed an Application for Final Orders and in September 2016, interim orders were made by consent for the child to live with the mother and spend one afternoon each week and alternate weekends with the father.
In May 2018, the child told her mother that “she takes her father’s clothes off” [10]. The mother reported this to Family & Community Services (“FACS”). FACS conducted an interview which was followed by interim orders made on 28 May 2018, requiring the father’s time with the child to be supervised.
The hearing before the primary judge initially occurred over three days in September and October 2018.
There were several issues to be determined at trial, including at [2]:
·Whether there is an unacceptable risk arising for [the child] if she spends time with her father?
·If not, then the time [the child] spends with her father?
·What order for parental responsibility is made?
·Ancillary orders including overseas travel, obtaining passports, extra‑curricular activities, the child’s surname.
The father sought orders for equal shared parental responsibility, for the child to live with the mother and spend time with him. The mother sought orders for sole parental responsibility, for the child to live with her and spend time with the father on alternate weekends or by agreement. Judgment was reserved.
On 6 March 2019, before judgment had been delivered, the mother filed an application seeking leave to reopen the case.
On 25 June 2019, NSW Police applied for a provisional Apprehended Violence Order (“AVO”) on the mother’s behalf. On 10 July 2019, the Suburb B Local Court granted an interim AVO for the mother’s protection. Subsequently, the mother withheld the child from the father.
The mother’s application to reopen the case was granted and there was a further hearing on 5 August 2019. Upon the reopening of the case, the mother amended her proposed orders so that the child would spend no time with the father, unless agreed to in writing by the parties.
Reasons for judgment were delivered on 13 September 2019.
In relation to the conduct of the hearing, the primary judge commented that “this case is mostly about [the parents] each having control relevant to [the child’s] life and day to day events” [6] and “[i]t is clear both parents are “heavily invested” in this case and took many opportunities to criticise the other” [12] (emphasis as per the original). However, his Honour also recorded that both parties were “devoted parents to [the child]” [13].
The family consultant engaged in the matter prepared a Family Report dated 2 June 2017. The report contained the following recommendations [41]:
·[The child] live with her mother and spend time with her father as is presently ordered.
·When she starts school she might spend time with her father on alternate weekends from after school on Friday to before school on Monday, plus on one evening during the intervening week from after school to before school the next day.
·[The child] might spend half the school holidays with each parent.
Under cross-examination, the family consultant expressed the view that the child “would benefit from spending 4 nights per fortnight with her father and otherwise live with her mother” [42] and; time with the father could increase to five nights per fortnight after a couple of years. The mother contended that the Family Report was out of date and she made several applications for the appointment of a single expert to prepare a new report and assess the father’s mental health. Her applications were rejected. His Honour recorded that while the report was dated 2017, it was still reliable evidence and he gave “significant weight” to the family consultant’s opinion [64].
The primary judge made several findings in relation to family violence, including:
·“The father during the time the parents lived together was very controlling of the mother” [22];
·“[The father] is prone to stressful and anxious reactions… He demonstrates limited capacity to restrain his denigrative behaviour of the mother” [23];
·“In the past [the father] has physically assaulted [the mother] on occasions” [25]; and
·“The mother has also perpetrated family violence on one occasion by grabbing the father’s testicles” [30].
His Honour determined at [59] that there was mutual family violence during the parties’ relationship and that the existing AVO “might help” to moderate the father’s behaviour.
His Honour found that the father did not pose an unacceptable risk of sexual harm to the child and was satisfied that the father is now circumspect about bathing and toileting arrangements for the child [61] – [62]. Restraining orders were made to “serve as a useful reminder to him” [62].
Further, his Honour found no risk of emotional or psychological harm to the child in spending time with her father [63]. He found that any possible harm arising from conflicted behaviours between the parents could be mitigated by arranging changeovers at school without both parents being involved [63].
His Honour ultimately determined that it was in the child’s best interests for her to spend time with the father and orders were made to that effect [72].
The mother filed her Notice of Appeal on 2 October 2019, seeking to have the 13 September 2019 orders set aside.
In stating the mother’s grounds of appeal in very broad terms, she argues that the primary judge erred by failing to give sufficient weight to the concerns and risk factors identified by the mother and by relying on an outdated Family Report.
It is my understanding that the hearing of the appeal, unless expedited, would be quite a few months away. The point being that the sittings for February and March 2020 (locally and interstate) are fully listed and there is a significant number of appeals filed ahead of this appeal that have not yet been listed for hearing.
The father has had no contact with the child since the stay order was made, and further disruptions to his contact with the child will deny the child the opportunity to benefit from his active involvement in her life. There is no doubt that the stay operates as a serious impediment to the type of contact that the primary judge was satisfied is in the best interests of the child.

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 which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial. It provides a useful guide for the approach to be adopted when determining the question of expediting 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 for an appeal hearing will be deprived of that opportunity in what would otherwise be the 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 mother has lodged her application for expedition in a timely manner. The appeal is instituted by the mother, and I have no doubt that whatever is required of the parties to bring the 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. Nothing more need be said about this issue.
The next factor, subparagraph (c) requires consideration of any prejudice to the respondent. The father supports expedition and has not deposed to matters that would support a submission concerning prejudice to him if an order for expedition were made.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a) – (g). Of these, subparagraph (d) is most relevant to the father, which is concerned with hardship caused to a child by the continuation of the stay order. The submissions made by the father focussed on the impact of the cessation of the current arrangements relating to his time with the child. An expedited appeal is said to have the effect of reducing the potential for emotional upset for the child by virtue of arrangements stopping and starting. There is some force in that.
Subparagraph (f) concerns whether the case involves allegations of child sexual abuse, or other abuse. As the primary judge indicated at [59], this case involves mutual family violence. However, his Honour was satisfied that any risk associated with family violence could be mitigated by the current AVO [59], restraining orders [62] and changeover arrangements [63].
On balance, it is the matters that go to the welfare of a young child and her ability to spend time with her father in accordance with orders which the primary judge was satisfied are in her best interests, and which are presently stayed, which tips the balance in favour of expedition.
In relation to the grounds of appeal, it could not be said that this appeal is so devoid in merit or that the grounds are so compelling that this should influence the question of whether or not an order for expedition should be made.
Thus, the factors justify expedition and I will order accordingly. The directions already made in relation to the preparation of the appeal will be varied so as to accommodate an earlier hearing date.
Costs will be determined as a question of costs in the appeal.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Ryan J delivered on 9 January 2020.

Associate:

Date: 9 January 2020