Boyle and Zahur
[2017] FamCAFC 154
•2 August 2017
FAMILY COURT OF AUSTRALIA
| BOYLE & ZAHUR | [2017] FamCAFC 154 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother filed an application to adduce further evidence – Where the mother seeks to expedite her appeal against an order dismissing her relocation application – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A, 22.39(4) |
| APPLICANT: | Ms Boyle |
| RESPONDENT: | Mr Zahur |
| INDEPENDENT CHILDREN’S LAWYER: | Claire Naidu & Co |
| FILE NUMBER: | CAC | 429 | of | 2014 |
| APPEAL NUMBER: | EA | 62 | of | 2017 |
| DATE DELIVERED: | 2 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 2 August 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 May 2017 |
| LOWER COURT MNC: | [2017] FamCA 295 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Claire Naidu & Co |
Orders
That the hearing of appeal EA 62 of 2017 be expedited.
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 Boyle & Zahur 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).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 62 of 2017
File Number: CAC 429 of 2014
| Ms Boyle |
Appellant
And
| Mr Zahur |
Respondent
And
Ms Naidu
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today were two applications seeking an expedited hearing of an appeal (filed 17 July 2017) and to adduce further evidence in that appeal (25 July 2017). Both applications were filed by Ms Boyle (“the mother”). The appeal relates to final parenting orders made by Gill J on 11 May 2017.
The parenting proceedings concern the parties’ two children (“the children”).
On 22 September 2016, the mother filed an application seeking final parenting orders and permission to relocate the children to the Country H. On 11 May 2017, Gill J dismissed the mother’s relocation application and made orders to the effect that the children live with the mother in Canberra and spend time with their father.
Mr Zahur (“the father”) is the children’s father and the respondent to this application. He opposed the relocation of the children to the Country H and sought that the children continue to live in Canberra and spend week about-time between his home and the mothers’.
In relation to the appeal, the father does not oppose an order for expedition.
The independent children’s lawyer’s (“ICL”) position is that the application for expedition should be granted and I intend to make an order for expedition.
Relevant 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 in support of this application.
The father was born in 1969 and the mother in 1973.
The parties were married in January 2002 and moved from Sydney to Country I in 2004. The children were born in Country I.
The parties returned to live in Canberra and ultimately separated in August 2013. They divorced in October 2014.
On 23 May 2014 the parties entered into final orders which provided that the children live with the mother and spend time with the father.
In the meantime the mother commenced a relationship with her now partner, Mr D. He obtained a posting to European Country H and left to take up his post in January 2017.
On 22 September 2016 the mother filed an application in a case seeking final parenting orders and permission to relocate the children to the Country H. On the same day the mother filed a Notice of Risk alleging that the father denigrated her and her extended family in the presence of the children.
On 14 October 2016 the father filed a Notice of Risk alleging that the mother involved the children in the conflict between the parties. That there is conflict between the parties is evident not only by the litigation but was apparent in the proceedings as they unfolded before me today.
On 24 October 2016 an ICL was appointed to represent the interests of the children. At the time of trial the children were 11 and 12 years old.
By application of the husband, directions were made on 16 December 2016 providing for the mother to be examined by a psychiatrist so as to assess the impact of the mother’s mental health upon the welfare of the children. The primary judge found that there was no particular adverse impact on the mother’s ability to parent or in the children’s experience of their mother’s parenting by virtue of her depression. I mention this purely to highlight the point made by the mother in her affidavit in support that she has a depressive illness, is not new and was considered quite recently by his Honour.
In any event the family consultant was of the view that granting the relocation would provide the best opportunity to improve the relationships between the father and the children. However, as this was reliant on a reduction in the conflict between the parties and the mother maintaining a positive attitude to the children’s relationship with the father the primary judge did not accept the recommendation.
Discussion
Section 94(2D)(j) of 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 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. 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 and which are also relevant to appeals will be discussed.
I note that the draft appeal index was filed on 3 July 2017. The Appeals Registrar has informed the court that without an order for expedition the appeal is likely to be heard in about December 2017. This is on the basis that the standard appeal directions would be made and complied with without difficulty. It is appropriate to proceed on that basis.
Subparagraph (a) is concerned with whether the applicant has acted reasonably and without delay. The expedition application was filed some five weeks after the notice of appeal. The explanation for the delay is contained in the affidavit of the mother filed 17 July 2017. She says that she was in Country I from 12 May until 6 July 2017 and that during this time her father was hospitalised. The mother states that on her return to Canberra she sought independent legal advice and filed her expedition application. It is accepted that this period was an anxious and worrying time for the mother and her family and I am of the opinion that the mother has provided an adequate explanation for what was a nominal delay.
Subparagraph (2)(b) is concerned with whether the application has been made without delay. That matter has already been addressed and need not be considered further.
Subparagraph (c) concerns prejudice to the respondent, in this case the father. There can be no concerns as to prejudice provided there is no undue hardship caused to him in preparing his case for appeal within a truncated timeframe. The father’s neutral stance in relation to whether or not an order for expedition should be made makes it plain that he is not complaining of prejudice or that he would be unable to meet the appeal if it is brought on earlier than December.
Subparagraph (d) requires consideration of circumstances which justify this case being given priority to the possible detriment of other cases. When I say the detriment of other cases I mean to other cases that have been filed earlier and which would be called on for hearing in the ordinary course but not if this appeal was expedited.
The affidavit of the mother states that she suffers from depression and anxiety due to what she describes as the belittling and psychological behaviour of the father. She attends counselling and has increased the doses of medication taken to deal with her depression. The mother submits that Mr D now lives in the Country H and she has no family support in Canberra. Further, she does not have full time employment. She is unable to secure rental accommodation and is currently living with the children in a motel. It seems apparent that she is experiencing considerable financial hardship.
It is the mother’s case that relocation to the Country H will allow her to seek employment, live with and receive financial support from Mr D. That would seem to be quite logical.
The mother further submits that an order for expedition would be in the best interests of the children. She states that the children have been experiencing anxiety and distress and are saddened by the father’s behaviour and him not allowing them to relocate to the Country H. The children are currently, according to the mother, refusing to see their father. It’s difficult to see how the latter stance is in support of expedition and the only aspect of the submissions relating to the children that is persuasive is that the children are indeed caught between their parents and the longer that conflict goes on unresolved the more difficult it will be for the children.
The father’s affidavit adds little to the relevant information concerning this application. He is critical of the mother’s parenting capacity and alleges that she has contravened orders. He deposes to his concern for the children’s wellbeing, particularly in relation to their involvement and exposure to the litigation between the parties. He is very unhappy that this appeal is now to be prosecuted and concerned about the ongoing expenses associated with litigation. No doubt both parties share that concern.
The mother’s application to adduce further evidence is an application that would be considered by the Full Court and is not an application that could be determined by me now. In accordance with r 22.39(4) this application will be heard on the same date as the hearing of the appeal.
Finally, it is necessary to consider the grounds of appeal. All that needs to be said at this point is that the mother raises a number of challenges to his Honour’s reasons and appears to raise matters of substance for consideration by the Full Court.
On balance I am persuaded that the application for expedition should be granted and will order accordingly.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 2 August 2017.
Associate:
Date: 9 August 2017
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