Cottey and Backe - [2020] FamCAFC 177

FAMILY COURT OF AUSTRALIA

COTTEY & BACKE

[2020] FamCAFC 177

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Parenting proceedings between father and step-father – Interim orders changed child’s living arrangements – Where the child’s stepfather seeks to expedite his appeal – Father opposes expedition– Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justifies priority – Application granted.

Family Law Act 1975 (Cth) ss 60CC, 94(2D)(j)
Family Law Rules 2004 (Cth) r 10.12A

APPELLANT:

Mr Cottey

RESPONDENT:

Mr Backe

FILE NUMBER:

DUC

217

2020

APPEAL NUMBER:

2020

DATE DELIVERED:

24 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

15 July 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 June 2020

LOWER COURT MNC:

[2020] FCCA 1558

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Webb

SOLICITOR FOR THE APPELLANT:

DLH Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Swami

SOLICITOR FOR THE RESPONDENT:

Flynns Solicitors

Orders made on 15 July 2020

That the hearing of appeal EA 84 of 2020 be expedited.
The Appeals Registry is directed to list the appeal for hearing at 10:00 am on 14 August 2020 before the Honourable Justice Ryan.
That the electronic appeal book for Appeal EA 84 of 2020 comprise each of the following documents arranged in the following order:
(a)       Notice of Appeal filed 25 June 2020;
(b)       Orders of Judge Newbrun made on 19 June 2020;
(c)       Reasons for Judgment of Judge Newbrun delivered 19 June 2020;
(d)       Initiating Application filed by Mr Cottey on 26 May 2020;
(e)       Response to Initiating Application filed by Mr Backe on 4 June 2020;
(f)        Affidavit of Mr Cottey dated 26 May 2020;
(g)       Affidavit of Ms H dated 3 June 2020;
(h)       Affidavit of Mr Backe dated 4 June 2020;
(i)        Notice of Risk by Mr Cottey dated 26 May 2020; and
(j)        Notice of Risk filed by Mr Backe on 4 June 2020.
That on or before 29 July 2020 the appellant obtain the digital transcript of the hearing before Judge Newbrun on 5 June 2020 (“digital transcript”) and email copies of such digital transcript to the respondent and to the Court using the email address …
It is noted that the Eastern Appeals Registry is to prepare the digital appeal book in accordance with these orders and will make same available to the lawyers for each party for download from the Commonwealth Courts Portal.
That the appellant file and serve a written Summary of Argument and List of Authorities (if any) on or before 29 July 2020.
That the respondent file and serve a written Summary of Argument and a List of Authorities (if any) on or before 5 August 2020.
That the parties have photocopy access to the documents that became exhibits in the trial.
That any party who seeks to rely on an exhibit is to provide a digital copy of the exhibit to all other parties and to the Court no later than seventy-two (72) hours prior to the commencement of the appeal hearing.
That each party be at liberty to apply for any further directions to Justice Ryan (or if not reasonably available to another member of the Appeal Division) upon seven (7) days’ notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
Any party who intends to seek costs at the conclusion of the hearing of the appeal, subject to the outcome of the appeal, must file and serve, no later than seven (7) days prior to the first day of the sittings in which the appeal is listed for hearing, a schedule of the costs to be sought at the scale prescribed by the Family Law Rules 2004, and be in a position to address the Court as to costs (including quantum), whether sought by or against that party, at the conclusion of the hearing.
Failure to comply with the above order will prevent an application for costs being made to the Court without the leave of the Court. In the event of leave being sought it may result in the hearing of the application for costs being adjourned, the appeal thereby not being concluded, and/or leave being granted on terms, including as to the payment of costs by a defaulting party or that party’s legal representative.
It is noted that Practice Direction 1 of 2017 applies to this matter and it is ordered that, to the extent to which the Practice Direction may be inconsistent with the relevant Family Law Rules, the Practice Direction is to prevail to the extent of the inconsistency.
That the costs of this application to be costs in the 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 Cottey & Backe 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 84 of 2020
File Number: DUC 217 of 2020

Mr Cottey

Appellant

And

Mr Backe

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed 26 June 2020, Mr Cottey (“the stepfather”) seeks to expedite his appeal against certain interim parenting orders made on 19 June 2020. The proceedings relate to his stepson, X, born 2012 (“the child”). The child’s parents are Mr Backe (“the father”) and Ms Cottey (“the mother”). The mother passed away in August 2019. Until this time, the child had lived with his mother and the stepfather.
Relevantly, the orders under appeal dismissed the stepfather’s application for the child to be returned to his care and for the child to live with him (Order 1); and inter alia, provide for:
·    the child to live with the father (Order 2);
·    the child to spend alternate weekends and school holiday time with the stepfather (Order 3) and;
·    the child’s time with the stepfather to be suspended on Father’s Day (Order 4).
Orders were also made for the appointment of an Independent Children’s Lawyer (“ICL”) (Order 7) to represent the interests of the child and; for the preparation of a Family Report (Order 9). The proceedings were adjourned to a date to be advised in March 2021 following the release of the Family Report (Order 13).
By a Response to an Application in an Appeal filed 13 July 2020, the father opposes expedition and says that the application should be dismissed. However, during oral submissions, counsel for the father clarified that the father did not oppose the appeal being brought on for hearing expeditiously but opposed it being heard inside of a couple months to give him time to save for the costs of legal representation.
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 this application.
The child’s parents separated in early 2013 and the child remained living with the mother.
In 2013, the stepfather commenced a relationship with the mother. From about August 2013, the mother, stepfather and child lived together in Town C, near Town D NSW. The mother and stepfather were married in 2017. The stepfather and the mother have one child together, E, born 2014.
The father lives in Town A with his wife, Ms B.
From about early 2015, by agreement, the child commenced spending regular time with the father on alternate weekends and half of school holidays, albeit there were no parenting orders in place [13].
Following the mother’s death in August 2019, the parties, through their solicitors, agreed that the child should see a psychologist. It was said that one reason for this was to allow the child to “talk about where he would like to live” [17]. It was the father’s case that a report could be prepared on the best way for the child to transition from living with the stepfather to living with him and his partner [17]. However, the parties were advised by the psychology practices they contacted that they would not be able to prepare a report on family law issues or in relation to where the child should live [18].
The child continued to spend time with the father. It seems to be uncontroversial that by agreement, the child spent time with the father at the end of the term 1, 2020 school holidays. On about 12 April 2020, the father told the stepfather that he would not be returning the child and that henceforth the child would live with him [22]. The child has lived with the father since that time.
The father enrolled the child at Town A School [37]. Prior to this, he was attending Town D School with his half-brother, E [14].
On 26 May 2020, the stepfather filed an Initiating Application in the Federal Circuit Court of Australia seeking interim and final orders and for the matter to be listed urgently. The matter was listed on short notice and the primary judge heard the application on 5 June 2020.
The stepfather sought orders for the father to return the child to his care, for the child to live with him and spend regular time with the father. The father sought orders for the child to live with him and spend regular time with the stepfather.
Both parties assert that the child wants to live with them [20].
The stepfather is employed as a labourer. He works a rotating shift that includes blocks of night shifts and does not work 14 to 16 days every month [28]. At the hearing, he gave evidence that he receives assistance to help care for the child and E at times, mainly from Mr J, who is the child’s godfather, and his sister. Mr J moved into the stepfather’s home when the mother passed away [27]. It was the father’s case that if the stepfather is not available or able to care for the child due to his work schedule then the child should live with him [26].
In considering the best interests of the child pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”), the primary judge determined that the Court should give significant weight to the meaningful relationship that has developed between the father and the child [52]. His Honour said, “it would appear that the child would benefit from a continuance of that relationship” [49].
In relation to risk, the stepfather made allegations of the child being exposed to family violence when spending time with the father. Those allegations were disputed by the father [53]. The primary judge did not make findings on this issue but considered that the “mother, when alive, and the stepfather, have facilitated the child spending regular overnight time with the father for about seven years” [71].
The stepfather also contended that there is an unacceptable risk of psychological harm posed to the child living in the father’s primary care, as a result of being deprived of his sibling relationship with E. His Honour determined that the child spending alternate weekends with the stepfather (and thereby E) could mitigate a risk of this nature as it would facilitate a “real prospect” that the child’s relationship with his stepfather and E could be maintained [60].
His Honour ultimately determined that it would be in the best interests of the child for the child to live with the father and spend time with the stepfather and made the interim orders proposed by the father [78].

The expedition application

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 Family Law Rules 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Rules deals with applications for an expedited trial, and it provides a useful guide to the approach to be adopted to the question of expedition of 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 an appeal hearing will be deprived of that opportunity in what would otherwise be 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 stepfather has lodged his appeal in a timely manner, along with his application for expedition. This suggests that whatever is required of the applicant to bring an appeal on for an urgent hearing will 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 needs to be said about this.
The next factor which requires consideration is prejudice to the respondent. As mentioned earlier, the father outlines in his affidavit filed in support of his Response to this Application that he is worried that an expedited hearing could mean that he has insufficient time to afford legal representation (father’s affidavit filed 13 July 2020, p.9 paragraph 49). An expedited hearing would place the father under some financial pressure, which weighs against a hearing being listed in a few weeks. However, this is a situation of the father’s own making. He knew that the stepfather did not agree that the child should leave his primary care to live with the father, yet, without court sanction, he retained the child. It is not accepted that the father having acted in this peremptory fashion, the stepfather should be denied an expedited appeal if it is otherwise warranted.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a)–(g). Of these, the stepfather focuses on subparagraph (d), which is concerned with hardship to the child caused by the continuation of interim orders. The submissions made counsel for the stepfather focus on the impact of the changed living arrangements on the child who, it was emphasised, is young and has experienced significant loss; namely his mother, home, family unit and school. The risk of consequential emotional and psychological trauma on the child is said to be such that the appeal should be considered as soon as possible. There is some force in that.
It is necessary to consider the grounds of appeal. The stepfather asserts that his Honour:
·failed to provide adequate reasons for his findings concerning the child’s living arrangements in circumstances where the child had previously been in the stepfather’s primary care (Ground 1);
·failed to consider the risk of emotional and psychological harm to the child in changing the child’s circumstances (Grounds 2, 3 and 4); and
·failed to give weight to the child’s relationship with him and his half‑brother (Ground 5).
All that needs to be said at this point is that there are matters of substance raised in the Notice of Appeal and it could not be said that this appeal is so lacking in merit that an otherwise strong application for expedition would be denied on this basis. On balance, it is the welfare of a young child and the substantial change in his living arrangements, which tips the balance in favour of expedition.
Orders were made on 15 July 2020 to this effect.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 July 2020.

Associate:

Date: 24 July 2020