Cummings and Baxter

[2016] FamCAFC 251

FAMILY COURT OF AUSTRALIA

CUMMINGS & BAXTER [2016] FamCAFC 251

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks expedition of his appeal against interim parenting orders which provide for the children to live with the mother – Where the parties were able to reach consent orders pending the final hearing of the proceedings at first instance – Application and appeal discontinued.

Family Law Act 1975 (Cth)

APPLICANT: Mr Cummings

RESPONDENT: Ms Baxter

FILE NUMBER: WOC 938 of 2016

APPEAL NUMBER: EA 172 of 2016

DATE DELIVERED: 24 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 24 November 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 22 September 2016

LOWER COURT MNC: [2016] FCCA 2488

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gilbert

SOLICITOR FOR THE APPLICANT: Neil Jamieson & Associates

SOLICITOR FOR THE RESPONDENT: DGB Lawyers

Orders

THE COURT NOTES:

1. That the Notice of Appeal filed by the father on 12 October 2016 is discontinued.

2. That the Application in an Appeal filed by the father on 12 October 2016 is discontinued.

IT IS ORDERED:

1. There be no order as to costs.

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  Cummings & Baxter 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 172 of 2016
File Number: WOC 938 of 2016

Mr Cummings

Applicant

And

Ms Baxter

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This morning I have before me an Application in an Appeal filed on 12 October 2016 by Mr Cummings (“the father”) seeking an expedited hearing of his appeal against interim parenting orders made by Judge Altobelli on 22 September 2016.

2. The appeal and proceedings at first instance concern the parties’ two children X who is currently three years of age and Y who is currently two years of age (“the children”).

3. The effect of the orders under appeal is that the children live with the mother and spend time with the father on two occasions each week for approximately two hours on each occasion, with changeovers to be supervised at a contact centre or some similar place.

4. The mother, Ms Baxter, is the respondent to the appeal and this application (“the mother”).

5. One of the unusual features of this case is that the children were fortunate to have both of their parents actively involved in their lives from when the children were born until separation.  For one reason or another, neither parent had, as I understood it, paid employment and hence were very actively involved in the children’s lives.  If there are points of difference about who was primarily responsible for the care of the children, those issues have not been resolved, but the fact of involvement is, as I understand it, not contentious. 

6. It is also not contentious that the parties lived substantially, and thus did the children, with the father’s family.  Thus, at separation, when the mother returned to her family, not only were the children separated from their father but also separated from other adults keenly interested in the children’s welfare. 

7. The effect of his Honour’s orders was to dramatically restrict the amount of time the children were used to spending with their father and the consequential effect of reducing the children’s time with their paternal relatives. 

8. The hearing of the interim issues before his Honour was unusually complicated.  This is because both parties have made serious allegations about the parenting capacity of the other.  For example, allegations that the mother had used ICE as recently as May 2016.  It also involved allegations that the father was violent to the mother and had assaulted her as recently as August 2016.  It was on any view a very difficult hearing, and his Honour’s judgment treads a careful line between trying to come to grips with the risk assessment component of the proceedings whilst not stepping over into determining facts which could not be determined when the evidence had not been tested.  The net effect of this, though, is that there are very serious issues which are germane to the welfare of the children which require determination. 

9. Of course, this is a process that could not be undertaken in an appeal.  As I understand it, the parties share the view that I expressed earlier this morning that the proper course in this case was for there to be an expedited final hearing rather than an expedited appeal.  With those views expressed, the parties, very ably assisted by their legal representatives today, turned their minds to what arrangements might be put in place to take the next step in terms of adjusting to the reality of separation and how the children’s living arrangements might be organised in their best interests.  

10. I was presented with consent orders which would see the children’s time with their father increase to two nights each week, albeit on slightly different nights each alternate week.  Their agreement is reflected in terms which have become Exhibit A in the application. 

11. The orders are not able to be made by me, but based on what I have read and heard today, I would have no difficulty making them.  Whether or not they should be made, of course, is ultimately a matter for the presiding judge in the Federal Circuit Court.  The orders will be forwarded to the Federal Circuit Court for consideration. 

12. All that, then, is required for me is to note that, on the basis of the agreement, the appeal and the application for expedition have been discontinued.  I will formally record my remarks made earlier today that, in my view, this is an appropriate case for an expedited trial.  Of course, whether that can be accommodated having regard to the totality of that Court’s work is a matter for the primary judge.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 November 2016.

Associate:

Date:  1 December 2016