Blake & Blake
[2024] FedCFamC1A 244
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Blake & Blake [2024] FedCFamC1A 244
Appeal from: Blake & Blake (No 2) [2024] FedCFamC2F 1604 Appeal number: NAA 327 of 2024 File number: BRC 149 of 2023 Judgment of: AUSTIN J Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Where the father seeks expedition of his appeal from interim orders for the parties’ children to live with the mother from mid-January 2025 – Where the orders would require the children to relocate from Queensland to Western Australia – Where the matter is set down for final hearing in April 2025 – Where the father took one month to file his expedition application – Where the father’s argument that the appealed orders do not promote the children’s best interest is not convincing – Where the father will suffer no personal prejudice if the appeal takes its normal course – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.03, 13.05, 13.08, 13.09, 13.14, 15.06
Cases cited: Gallea & Gallea [2020] FamCAFC 322 Number of paragraphs: 25 Date of hearing: 16 December 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Mr Coe Solicitor for the Appellant: Emmerson Legal & Accounting Pty Ltd The Respondent: Litigant in person Solicitor Advocate for the Independent Children's Lawyer: Mr Kingston Solicitor for the Independent Children's Lawyer: Norman & Kingston ORDERS
NAA 327 of 2024
BRC 149 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BLAKE
Appellant
AND: MS BLAKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 4 December 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blake & Blake has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons determine the appellant’s application to expedite the appeal hearing.
Background
The parties have four children, aged between 17 and nearly nine years of age.
In March 2024, final parenting orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) were made between the parties in respect of the children. At that time, the parties both lived in Queensland. The orders provided for the children to live with the mother and for her to have sole parental responsibility for them. In respect of the two youngest children, provision was made for them to spend time with the father on alternate weekends, during school holidays and on other special occasions.
In late July 2024, the mother relocated with the children to live in Western Australia with barely any notice to the father.
Several days later, on 2 August 2024, the father commenced fresh proceedings seeking reversal of the children’s residence and sole parental responsibility for them if the mother refused to return with the children to a designated geographical area in Queensland. On an interim basis, he sought orders for the mother to return the two youngest children to “[Region B]” within 48 hours, failing which the children be recovered from the mother and to live with him instead.
On 30 August 2024, interim orders were made requiring the mother to return the two youngest children to “[Region B]” within 48 hours, in default of which they would instead live with the father and a recovery order would issue.
The mother failed to comply with those orders and so a recovery order issued in respect of the two youngest children, who were subsequently delivered into the father’s care in Western Australia on 20 September 2024. He returned to Queensland with them, where they have since lived without seeing the mother or their siblings. The mother and the two eldest children remain in Western Australia.
By a Response filed on 17 October 2024 and an Application in a Proceeding filed on 24 October 2024, the mother sought the discharge of the orders made on 30 August 2024 and the return of the two youngest children to her residential care in Western Australia, which the father resisted by his Response to an Application in a Proceeding filed on 4 November 2024. He intensified the dispute by seeking orders to consolidate the two youngest children’s residence with him and for them to only spend supervised time with the mother in the future, even if she did elect to relocate back to “[Region B]”.
The interim dispute was listed before the primary judge on 5 November 2024, but adjourned until the following day, after which judgment was delivered ex tempore. In summary, the primary judge ordered that the two youngest children live with the father until mid January 2025, from which date they will live with the mother (Orders 1–3), but that they communicate flexibly with each party and their siblings (Order 4). Otherwise, the new proceedings were fixed for trial in April 2025 (Order 14) and directions were made to ensure the parties’ readiness for hearing (Orders 5–13 and 15–31).
On 4 December 2024, the father appealed from Orders 2, 3 and 26.
The father simultaneously filed an Application in an Appeal seeking expedition of the appeal so it is heard no later than 31 January 2025. In support of that application the father relied upon his affidavit filed on the same date.
The mother opposed the expedition application and relied upon her affidavit filed on 13 December 2024.
The Independent Children’s Lawyer supported the father’s expedition application.
On 12 December 2024, the primary judge refused the father’s application to stay the operation of Orders 2 and 3 pending the disposition of the appeal. This dismissal order is not the subject of a separate appeal.
Legal principles
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) prescribe time periods for the orderly conduct of appeals (rr 13.03, 13.05, 13.08, 13.09 and 13.14), though provision is made for time periods to be extended or shortened (r 15.06).
Unlike the former Court Rules, the Rules do not dictate the considerations which influence the determination of expedition applications and the shortening of usual time periods, so the following statement of relevant principles by Aldridge J in Gallea & Gallea [2020] FamCAFC 322 is adopted and applied:
6.Section 94(2D)(j) of [the Act] provides that an order can be made to expedite an appeal. Whilst there are no rules that govern the expedition of appeals, commonly a Court considering such an application will look to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) as a helpful list of the factors to be considered. The factors to be taken into account include: whether the applicant has acted reasonably and without delay in the conduct of the case, whether the application has been made without delay, whether expedition will cause any prejudice to the respondent, and whether there are any other relevant circumstances which suggest that the matter should be given priority to the possible detriment of other cases. The ultimate task for the Court to decide is whether the appeal the subject of the application should be heard before and in priority to other appeals which have already been filed and await hearing.
(Emphasis added)
Disposition
The father cannot claim to have acted without delay. The appealed judgment was pronounced on 6 November 2024, at which time he became aware the two youngest children would need to be surrendered by him to the mother about two months ahead. Yet the father waited a full month before filing his appeal on the last day of the appeal limitation period, together with his expedition application. He therefore wasted a month, depriving the mother and the Court of valuable time to accommodate his request for expedition, which deprivation is now accentuated by the imminent Christmas shutdown period. He now wants the appeal heard (and presumably determined) within the next five weeks.
The expedition application has no utility at all unless the appeal can be both heard and determined before mid-January 2025, being the date upon which Orders 2 and 3 become operable. If the appeal cannot be heard and determined favourably to the father before that date, the two youngest children will pass into the temporary residential care of the mother. The father did not explain why he perceived the appeal needed to instead be determined by 31 January 2025, several weeks afterwards.
The solitary reason advanced by the father for the need for expedition is his own perception the appealed orders do not promote the two youngest children’s best interests. He deposed this in his affidavit:
19. The Orders do not contemplate the best interests of the children being:
(a)the impact to the children of being unenrolled from their school in Queensland and friends again to be enrolled for one term in Western Australia until final hearing where there is no certainty as to whether the children will remain living with the mother after final hearing;
(b)the impact of the children from not being able to spend any time and have a meaningful relationship with me, their sibling, or extended maternal or paternal family if they are removed from Queensland;
(c)the impact of the children not being able to connect with and maintain connection with their mob;
(d)that the Orders do not provide me the ability to make arrangements for children to attend upon a counsellor to address the impact of [the mother’s] unilateral relocation and the recovery of the children;
(e)the views expressed by the children to the Independent Childrens (sic) Lawyer that they do not want to return to Western Australia
20.As the children are to return to live with [the mother] from [mid-January] 2025 pursuant to the Orders of 6 November 2024, it is important for this matter to be determined urgently given the children commencement date of living with [the mother], where it is would not be in the children’s best interests for them to be uprooted from their home town to the other side of the country to live with [the mother].
(As per the original)
Without intending to be critical, almost every litigant who appeals from parenting orders harbours a belief the orders are inimical to the children’s best interests. If that were the only criterium by which appeals were expedited, almost every parenting appeal would be.
The appeal is likely to be heard as early as March 2025 in the ordinary course of this Court acquitting its business with due despatch.
The father will suffer no personal prejudice if the appeal takes its normal course. He complains of only his belief of prejudice the two youngest children will suffer by having to live with the mother and their two elder siblings for the next few months until the sooner of either the appeal being heard or the trial being heard in April 2025, though it is difficult to objectively perceive that outcome as being prejudicial when the father accepts the eldest two children should continue to live with the mother and, at least until very recently, he believed the youngest two children should spend significant amounts of time with her. Even if the father’s belief about the orders not being in the children’s best interests is correct and even if the appeal is ultimately successful, the appealed orders will likely only subsist for a short while.
The father asserted the exchange of the children on mid-January 2025 would entail another journey for them across Australia but, assuming the father’s recent proposal for the children to spend only supervised time with the mother does not find any traction at the trial, the parties must necessarily envisage the prospect of the children needing to periodically travel between Queensland and Western Australia to spend time with the non-residential parent in school holiday periods in any event.
The expedition application should be dismissed.
The appeal remains listed before the appeal registrar two days hence, on Wednesday 18 December 2024, for the purpose of procedural directions being made to ensure the appeal is heard promptly in early 2025.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 16 December 2024
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