Cox and Pedrana
[2012] FamCAFC 167
•17 October 2012
FAMILY COURT OF AUSTRALIA
| COX & PEDRANA | [2012] FamCAFC 167 |
| FAMILY LAW – APPEAL – EXPEDITION – Where the orders the subject of the appeal result in a radical change to the child’s living circumstances – Where a stay of the orders was refused – Where the application has been made without delay – Where expedition is not opposed by the Independent Children’s Lawyer and will not cause prejudice to the respondent father – Where the circumstances leading to expedition are marginal – Where expedition will not displace other appeals already listed for hearing – Application allowed. |
| Family Law Act 1975 (Cth) s94(2D)(j) Family Law Rules 2004 r 12.10A |
| APPELLANT: | Ms Cox |
| RESPONDENT: | Mr P Pedrana |
| INDEPENDENT CHILDREN’S LAWYER: | Schultz Toomey O'Brien |
| FILE NUMBER: | BRC 7647 of 2007 |
| APPEAL NUMBER: | NA 78 of 2012 |
| DATE DELIVERED: | 17 October 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 17 October 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 739 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Pendergast |
| SOLICITOR FOR THE APPELLANT: | D A Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Everingham Lawyers |
| INDEPENDENT CHILDREN’S LAWYER: | Schultz Toomey O'Brien |
Orders
The hearing of the mother’s Notice of Appeal filed 31 August 2012 against the orders of Bell J made 30 August 2012 be expedited.
The Regional Appeals Registrar is requested to list the expedited appeal for hearing before the Full Court in the February 2013 Brisbane sittings.
The matter be heard before the Appeals Registrar on 22 October 2012 for further directions.
The costs of this application be reserved to the Full Court.
IT IS NOTED that the estimated time for the hearing of the appeal is 1 day.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cox & Pedrana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 78 of 2012
File Number: BRC 7647 of 2007
| Ms Cox |
Appellant
And
| Mr P Pedrana |
Respondent
REASONS FOR JUDGMENT
This is an application to expedite the hearing of an appeal against final parenting orders made by Bell J on 30 August 2012. The orders were in relation to the parties’ only child, born in May 2005. The orders the subject of the appeal follow a lengthy and complex trial and effect significant change to the child’s living arrangements. The child had been living with the mother since separation in 2006, and at the time of the trial was spending only supervised time with the father.
The orders provide that the child live with the father, the father have sole parental responsibility, and the mother spend no time with the child for two months, communicating by telephone or electronic communication for that period. After expiration of the two months and for a period of three months, the mother may spend supervised time with the child each alternate Saturday and Sunday. After the expiration of that three month period, the orders provide for the mother to spend unsupervised time with the child each alternate weekend including overnight.
The trial was heard over eleven days commencing in July 2011 and concluding on 7 June 2012. The mother made very serious allegations against the father and asked that he have only supervised time with the child. The father denied the mother’s allegations. During the trial, on 4 June 2012, the mother completely altered her position and proposed that the father have unsupervised time with the child. Her evidence, that of the experts, and the decision of the judge in this respect appear to be crucial.
The appellant mother filed a notice of appeal on 31 August 2012. The mother applied for a stay of the orders. That application was refused by Bell J on
5 September 2012. On 11 September 2012 the mother filed an application in an appeal for expedition, specifically seeking that the matter be listed in the November 2012 Full Court sittings in Brisbane. A draft appeal index was filed in 19 September 2012, however no further material has been filed. The application is opposed by the respondent father. The Independent Children’s Lawyer does not oppose the expedition of the appeal.
The mother’s notice of appeal lists eighteen grounds of appeal. The complaints are clearly enunciated and include inadequacy of reasons, making findings against the weight of the evidence, and error in application of relevant legal principles and the legislation.
The orders sought by the mother should the appeal succeed are that the child live with her, the parents have equal shared parental responsibility, and the child spend time with the father on the third weekend of each month with such time to be spent on the Sunshine Coast where the mother resides.
Expedition Principles
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides for applications to expedite the hearing of an appeal. There is no specific provision in the Act or the Family Law Rules 2004 (“the Rules”) in relation to the criteria or considerations to be applied at the hearing of such an application.
Some reference can be made to r 12.10A which addresses the expedition of the first day before a trial Judge. While a number of factors contained therein are not directly relevant to the expedition of an appeal hearing, a number of the “relevant circumstances” and the underlying principles reflected are instructive (see Boland J’s approach in Moxon & Moxon [2010] FamCAFC 67 and unreported [2010] FamCAFC 176). The rule provides:
(2) 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.
…
(4) For paragraph (2) (d), a relevant circumstance includes:
(a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(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;
(c) whether the applicant is suffering financial hardship that:
(i) is not caused by the applicant; and
(ii) cannot be rectified by an interim order;
(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 (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f) whether the case involves allegations of child sexual, or other, abuse; and
(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.
Discussion
I have read the affidavits filed in support of the mother’s application. All are sworn by her solicitor, and annexe various orders and reasons, however provide little detail about the basis on which the mother seeks expedition. Considerable assistance was provided by the written and oral submissions of counsel for the mother, Ms Pendergast. In essence, she submitted that the important features of this case are that radically different arrangements are now in place for the child as a result of the Court’s orders, and that there are substantial errors made on the face of the reasons demanding the scrutiny of the Full Court sooner rather than later.
The Independent Children’s Lawyer who appeared by telephone confirmed that no objection was made to the expedition of the appeal, and that she could be ready in time for a hearing in February. Ms Toomey emphasised the need for the matter to be finally determined in the best interests of the child.
The respondent father filed an affidavit on 28 September 2012 objecting to the mother’s application. The basis of the father’s objection is that the mother’s appeal itself is unmeritorious. The affidavit focuses on certain findings of Bell J which the father says “fortify” this unmeritorious assertion about the prospects of the appeal. The father also states, “There is nothing in the nature and character of the Judgement [sic] and Orders to warrant any special treatment of it by the court in for instance the way of expedition”. Understandably, it was submitted by counsel that the father is both emotionally and financially exhausted by these proceedings.
Some guidance about the matters relevant to this application are those listed in s 2 of rule 12.10A.
Delay in application
The orders and reasons for judgment were delivered on 30 August 2012. The mother filed a notice of appeal and an application for a stay the following day on 31 August 2012.
At the stay hearing on 3 September 2012 the mother filed an undertaking, by leave of Bell J, to file an application for expedition of the appeal within seven days. The application to expedite was subsequently filed on 11 September 2012, one day late. The mother’s solicitor attributes the Registry’s delay in providing a sealed copy of the notice of appeal to the mother’s short delay in filing the expedition application. It is apparent from the correspondence on the Court file that the sealed notice of appeal was not returned to the mother’s solicitor until 13 September 2012.
Given the time necessitated by compliance with the Court’s internal procedures, I consider the mother’s application to expedite has been made without delay.
Prejudice to the respondent
The mother has complied with procedural requirements and appears ready and willing to prosecute her appeal. It is necessary, whether by expedition or otherwise, that the appeal be heard on its merits. Accordingly while the father argues that the mother’s appeal is unmeritorious as a basis to dismiss her application, it is inevitable that he will at some point be required to respond to her grounds of appeal.
Expedition of this appeal means expedited resolution of the dispute between these parties, which cannot be said to prejudice the respondent father. Furthermore there was no submission for the father that he could not be ready in time if the appeal is to be heard in February 2013.
Relevant Circumstances
I have read the reasons for judgment of Bell J in both the substantive and stay proceedings. There are circumstances in this matter which favour expedition of the hearing of the mother’s appeal. It is a matter which involves allegations of child abuse and issues relating to the health of the mother. The orders are not stayed and involve a graduated change to the mother’s time with the child. She presently has no physical contact with the child and is not permitted under the orders to have unsupervised time with the child for at least another three and a half months. After that time, the mother’s contact under the orders remains restricted to unsupervised alternate weekends.
As mentioned, the orders radically changed the child’s circumstances and no stay was granted. If the father is correct that there is no merit in the appeal then that is another reason to have the appeal disposed of as soon as reasonably possible.
In comparison with many appeals concerning children and the need for expedition, in this case the merits of expedition could be regarded as marginal, however an order for expedition should be made. Appreciating that this order may cause the hearing of this appeal to displace others waiting to be heard, it should be noted that there are some unusual features of the matter, to which I have referred, requiring such a step.
In any event, in making the order for expedition it is not intended that the matter be heard any earlier than February next year. The appeal hearing will therefore be approximately six months after the making of the orders, which cannot be said to constitute a significant expedition of the matter. The matters arranged to be heard before then will not be displaced and it will also allow a reasonable time for the preparation of the appeal.
Costs
The parties agreed the costs of the mother’s application ought be adjourned to the hearing before the Full Court.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 17 October 2012.
Associate:
Date: 17 October 2012
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