Cavey and Aoki
[2017] FamCAFC 211
•9 October 2017
FAMILY COURT OF AUSTRALIA
| CAVEY & AOKI | [2017] FamCAFC 211 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – where the mother unilaterally relocated with the child – where the Registrar made orders for the return of the child – where the matter was transferred to the Federal Circuit Court of Australia – where the Registrar’s decision did not finally determine the issue of family violence – where a further interim hearing on the issue of relocation was warranted – where the primary judge did not order the return of the child on an interim basis – where the primary judge found that a meaningful relationship could be maintained between the father and child – where the trial is listed for early next year – where if expedited the appeal would not be heard by the Full Court before November this year – where the primary judge had in mind the impact of the geographical divide on the relationship between the father and child – where it was conceded that there would be real difficulties in the Full Court re-exercising – where a family report was ordered by the primary judge which would assist any interim case and the final trial – application in an appeal dismissed. |
| Family Law Act 1975 (Cth) ss 94(2D)(j), 117(1), 117(2A) Family Law Rules 2004 (Cth) rr 12.10A |
| Nimmo & Bush [2016] FamCAFC 274 |
| APPLICANT: | Mr CAVEY |
| RESPONDENT: | Ms AOKI |
| FILE NUMBER: | BRC | 121 | of | 2017 |
| APPEAL NUMBER: | NA | 46 | of | 2017 |
| DATE DELIVERED: | 9 October 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 9 October 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 2045 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| SOLICITOR FOR THE APPLICANT: | Damien Greer Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Baston |
| SOLICITOR FOR THE RESPONDENT: | Lynn & Rowland Lawyers |
Orders
The Application in an Appeal filed on 15 September 2017 be dismissed.
The parties bear their own costs of and incidental to the hearing of the Application in an Appeal.
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 Cavey & Aoki 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 46 of 2017
File Number: BRC 121 of 2017
| Mr CAVEY |
Applicant
And
| Ms AOKI |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
Murphy J
[1]As was stated would occur when this judgment was delivered orally, citations quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons. Headings have also been added to the settled reasons for ease of reference.
This is an application by the father of a three and a-half year old child to expedite the hearing of an appeal against parenting orders made by Judge Turner on 29 August 2017. The orders appealed are, it should be noted, interim orders.
The Notice of Appeal encompasses 13 grounds which include weight challenges; failure to give due consideration to orders of the court and legal principles; errors in the application of legal principles; failure to give adequate reasons; findings asserted to be not open on the evidence, and failure to consider relevant considerations.
Notably, in light of the argument on behalf of the father, no ground of appeal asserts prejudgment of the issues of family violence by her Honour. Further, no application for stay has been brought, nor, as I understand it, has any application for recusal of her Honour been flagged before her Honour or subsequently in any application.
It is an important contextual matter in this application that the trial is listed to be heard before her Honour in March 2018. No doubt for the parties, and particularly perhaps for the father, that seems to be a long way away, but it is in fact earlier than trials might otherwise have been afforded if this matter was in other dockets.
Relevant Background
The parties separated in June 2015, following an approximate three year relationship. At the time of separation, the child the subject of the proceedings was less than a year old. After separation, the child lived with the mother and spent time with the father. That time included two afternoons a week and one day on the weekend. No parenting orders were in place at this time.
At about Christmastime 2016, the mother unilaterally relocated to South East Queensland with the child. Her Honour found that “since then the father has been spending some weekend time with the child often at the paternal grandparent’s home”.[2]
[2][2017] FCCA 2045 at [2](i).
The mother commenced parenting proceedings the following month. Interim proceedings were heard before Registrar Spink in March 2017 to determine an application by the father to have the child returned to North Queensland. Notably, these proceedings included evidence of what might be described as serious family violence allegedly perpetrated by the father.
On 28 April 2017, Registrar Spink made orders to the following effect:
a)The parties have equal shared parental responsibility;
b)The child live with the mother;
c)The mother return the child to live in North Queensland by 31 May 2017; and
d)Upon that occurring, the child spends time with the father each Tuesday afternoon, each Wednesday night and each alternate weekend from Saturday morning to Sunday morning.
By consent, the matter was transferred from the Family Court to the Federal Circuit Court of Australia.
On the first return date in the Federal Circuit Court, an application that had been filed by the mother to review Registrar Spink’s decision was withdrawn.
The matter was subsequently listed for a further interim hearing in relation to the mother’s relocation. The father contended that in order for that hearing to be warranted, there had to be “new evidence before the Court in respect of family violence.”[3]
[3][2017] FCCA 2045 at [2](p).
In reasons given on 29 August 2017, her Honour found that the circumstances justified a further interim hearing. In particular her Honour found at [13]:
a)There was limited information as to family violence before the Family Court in March of 2017.
b)Registrar Spink made it very clear to the parties and practitioners during the course of the interim hearing in the Family Court that he would not be making findings as to family violence.
c)Registrar Spink made it clear in his written reasons for interim judgment that whilst the issue of family violence had been considered, there were no findings on the issue.
d)The father changed his evidence as to his involvement in family violence stating in his affidavit before the March 2017 interim hearing that there was no domestic violence and then in subsequent affidavits confirmed there had been verbal altercations, he had hit and pinched the mother on the bottom as a sign of affection that he had sent inappropriate text messages but were taken out of context given the strains on their relationship.
e)There was significantly more information before the court in respect to family violence in July 2017 than what was before the Family Court in March 2017.
On that basis, her Honour proceeded to consider the evidence relevant to the mother’s relocation, and found that “on an interim basis … it is in the child’s best interest to remain living [in South East Queensland]”.[4]
[4][2017] FCCA 2045 at [81].
During the course of her Honour’s reasons, particular weight appears to have been given to the following:
a)Family violence has occurred and given the child is in the mother’s primary care it is likely that he has been exposed to that violence (at [34]);
b)Family violence has impacted the mother and “as such may impact on the mother’s ability to parent [the child]” (at [35]).
c)“Whether [the child] is located [in South East Queensland] or in [North Queensland] … a meaningful relationship can be established and maintained between the child and the father” (at [50] and [62]);
d)If the child is returned to North Queensland, he will likely be exposed to family violence. Her Honour was “not convinced that … a further undertaking by the father to be of good behaviour would necessarily be enough protection for [the child] from that exposure” [at 58];
e)Although time with the father “may not be as frequent … [it] may be for longer blocks of time” (at [63]);
As I have earlier indicated, it is important to note that some at least, and perhaps all of the findings to which I have referred, and other findings made by her Honour, are subject to challenge on the appeal as not being open to her Honour on the evidence before her. It is also important to note that the issue of, as it were, her Honour prejudging the issue of family violence is at the centre of oral submissions made on behalf of the father before me this morning.
In the ultimate, her Honour made the following interim orders:
a)The child to live with the mother (Order 2);
b)The child spend time with the father “each alternate weekend from 10 am Saturday to 12 noon Sunday, with such time to occur in [North Queensland]” (Order 3);
c)The mother bear the sole costs and responsibility of transporting the child to and from North Queensland (Order 3);
d)Changeover occur at a place to be agreed, or otherwise the Railway Station entrance (Order 4);
e)The preparation of the family report and provision of notification to various government authorities (Orders 5 to 12); and
f)Her Honour listed the matter for, I gather, a mention on 20 March 2018.
It is important to note in respect of those orders, by reference to arguments addressed on behalf of the father both in his written outline of argument and in oral submissions made on his behalf this morning that her Honour contemplated the preparation of a family report in respect of this still young child.
Secondly, in light of those same arguments, it is, important to note that, notwithstanding what her Honour may have said about the issue of family violence on an interim basis, (when allegations in respect of same and indeed in respect of all other issues relevant to the proceedings have not been tested by cross-examination), her Honour nevertheless ordered time between the child and the father and ordered that time to occur in North Queensland and at the mother’s cost.
Legal Principles
A single judge can hear applications to expedite the hearing of an appeal.[5] Neither the Act nor the Family Law Rules 2004 (Cth) contain specific provisions in respect of expedition of appeal hearings. However, r 12.10A(2) and (4) make reference to principles which guide applications for the expedition of trials.
[5]Family Law Act 1975 (Cth) (“the Act”) s 94(2D)(j).
As I have said on other occasions, and as other judges of appeal have said, it seems to me that precisely the same sorts of considerations relevant to applications for expedition of trials are directly relevant to applications to expedite appeals.[6]
[6]See also, Nimmo & Bush [2016] FamCAFC 274, [5]–[6].
Rule 12.10A(2) provides that, in considering an application for expedition, the court may take into account:
(a) whether the applicant has acted reasonably and without delay in the conduct of the case;
(b) whether the application has been made without delay;
(c) any prejudice to the respondent; and
(d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
What is meant by “relevant circumstance” in rule 12.10A(2)(d) is elaborated at subparagraph (4) of that rule, and includes, relevantly:
…
(b)whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
…
(d) whether the continuation of interim orders is causing the applicant or a child hardship;
(e)whether the purpose of the case will be lost if it is not heard quickly …
…
(g)whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
As r 12.10A(2) contemplates in terms, a relevant circumstance in all applications for expedition is that by its nature it seeks to place this case ahead of other cases waiting to be heard. All cases waiting to be heard are important to those involved in them, and the participants have a right to have their case heard as quickly as an extremely stretched court can reasonably permit.
Those same parties should expect that the court will not delay their matter by the insertion into the list of a later-filed matter, unless the circumstances – particularly those relating to the safety and best interests of children – otherwise dictate that the later-filed matter should take precedence over their matter.
It is also relevant that the application for expedition is in respect of an appeal from interim orders, that is, it is an appeal brought against orders made in proceedings in which allegations have not been, and almost always cannot be, tested by cross-examination. Importantly, an appeal against interim orders is also brought when the trial at which both parties’ cases can be tested is yet to occur.
As I have said, notwithstanding that it may seem a long time to the parties in this case, the delay between the hearing of this application for expedition and the trial dates set by her Honour is some four months.
Dealing, then, with the matters to which reference should be had as detailed in r 12.10A(2), it is accepted by both parties, as it seems to me, that the application was filed “without delay”. As such, r 12.10A(2)(a) and (b) do not require any further consideration.
Counsel for the mother contends that there is an “implicit prejudice” to her in this appeal, given that she must prepare for the “imminent final trial” and “meet the costs of simultaneous proceedings”.[7]
[7]Respondent’s Submissions filed 6 October 2017, paragraph 10.
There may well be prejudice to the mother in the manner asserted, but it is a prejudice arising from the exercise of a democratic right. Where, as here, the appeal is brought bona fides and appropriate prima facie foundations are made out in the grounds such that it cannot be said that the appeal is fanciful or brought only to delay proceedings otherwise, then in my view that particular prejudice may need to give way to other considerations.
As to subparagraph (4)(b), family violence, as will be clear from what I have already said, is at the centre of this case, but the evidence does not suggest that intimidation or violence, as contemplated by subparagraph (4)(b) of the rule, is a factor here, and I say no more about it.
The focus of this application, insofar as the relevant circumstances are concerned, is, in my view, centred on subparagraphs (4)(d), (4)(e) and (4)(g) of the rule. In that respect, I should note that her Honour said:
43.It is difficult, despite the many many affidavits filed to ascertain exactly the amount of time with father has spent with the child between January 2015 and December 2016 when the mother relocated to [North Queensland], although it appears to be day time only when the child was alone with the father and up to three times a week.
44.It is unclear when [the child] was with the father whether it was the father or the nanny meeting the child’s needs.
45.Since the mother has relocated to [South East Queensland] there has been time spend [sic] by the father with the child on many weekends including overnight time at the paternal grandparents residence, although the future of that as a venue may be in doubt due to health issues for the paternal grandfather.
46.At no time has it been suggested by the mother or father that [the child] does not know the father or that he doesn’t have a meaningful relationship with the father.
47.The father however is concerned that the relationship will be curtailed if the mother remains living [in South East Queensland].
The father’s case is, in essence, that the relationship between him and his still young child will be lost as a result of the interim orders made by her Honour and that, consequently, it is important that his appeal against those orders is heard urgently.
In that respect, the father asserts that the relationship with his son is in danger of being lost in respect of family violence allegations which he effectively denies but about which there has been prejudgment by her Honour. In that respect, I have already referred to the fact that no ground of appeal refers specifically to that assertion and that no application for stay has been brought.
I also note that if the assertions about prejudgment are to found an application, for example for her Honour to recuse herself, that the delay to which the application for expedition is directed is likely, if the application is successful, to be all the greater and, it might be anticipated, very much significantly greater than the five months between now and the mooted trial dates.
The father also asserts that the geographical divide between North Queensland and South East Queensland is impacting on his relationship with the child. That much could hardly be denied, but her Honour, as it seems to me, has that very much in mind in making the interim orders for time to which I have earlier referred.
The father also asserts, essentially, that his case will be lost, in the sense that if time runs while the mother and child are in South East Queensland, his case for the child to live with him or to spend substantial and significant time with him, as the case may be will, in effect, be lost.
If the application is expedited, the earliest possible date that it could be heard by the Full Court is in November. A decision would need to be given. Even if extemporised, the decision would precede the final trial by only four months. It is effectively conceded that there would be real difficulties in the Full Court re-exercising such that the case for an interim order for the return of the child to North Queensland could be determined by the Full Court.
In that respect, the order for a family report made by her Honour should be noted. The information contained within that family report is likely to provide significant data, as it were, that might assist in informing the decision to be made not only in respect of any interim case but in respect of the final trial.
There is nothing to preclude an application being made for further interim time, for example, in respect of the Christmas period or the like.
In all of the circumstances to which I have referred, I am not persuaded that the court should grant expedition, and I would dismiss the application.
RECORDED: NOT TRANSCRIBED
Consequent upon the delivery of reasons and the mooted orders in this matter, submissions were received from each of the parties in respect of costs.
Section 117(1) of the Act applies just as much to applications in an appeal as it does to any other application before the court. It is said on behalf of the successful mother that the application brought by the father has been wholly unsuccessful within the meaning of section 117(2A) of the Act.
In response, counsel for the father says that until written submissions were received by counsel on behalf of the mother, correspondence from the mother’s solicitors had earlier indicated that the application was neither consented to nor opposed.
In circumstances where the substantive application relates to a unilateral relocation to South East Queensland and the circumstances in which those central issues were litigated before the court, and given that the application is, in fact, for expedition, which, if I can put it in these terms, is somewhat understandable given the delays inherent in proceedings in this Court, I consider that in all the circumstances, no order for costs should be made.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 October 2017.
Associate:
Date: 18 October 2017
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