DICKENS & CAREY
[2018] FamCAFC 135
•25 July 2018
FAMILY COURT OF AUSTRALIA
| DICKENS & CAREY | [2018] FamCAFC 135 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Where the father sought to expedite an appeal against parenting orders – Where the matter is listed for trial – Where the utility of the appeal was called into question – Where the circumstances of this particular case do not suggest that it should be given priority over other appeals involving children and awaiting determination – Where the application is dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) rr 12.10A(2), 12.10A(4) |
| C & S [1998] FamCA 66 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Keehan & Keehan [2018] FamCAFC 79 |
| APPLICANT: | Mr Dickens |
| RESPONDENT: | Ms Carey |
| FILE NUMBER: | BRC | 8345 | of | 2013 |
| APPEAL NUMBER: | NOA | 57 | of | 2018 |
| DATE DELIVERED: | 25 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 20 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 June 2018 |
| LOWER COURT MNC: | [2018] FCCA 1819 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cameron |
| SOLICITOR FOR THE APPLICANT: | Whitehead Crowther Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Crowley Greenhalgh Solicitors |
Orders
The Application in an Appeal filed by the father on 9 July 2018 be dismissed.
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 Dickens & Carey 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 BRISBANE |
Appeal Number: NOA 57 of 2018
File Number: BRC 8345 of 2013
| Mr Dicksons |
Applicant
And
| Ms Carey |
Respondent
REASONS FOR JUDGMENT
These reasons seek to explain why an order will be made dismissing the father’s application to expedite an appeal by which he challenges interim parenting orders made by Judge Jarrett on 22 June 2018.[1]
[1] Subsequently on 19 July 2018 Judge Jarrett dismissed an application for stay those orders.
Final parenting orders were made by Judge Howard after a two day trial in respect of the parties’ child, X, who was born in 2007. X was aged eight at the time of the trial before Judge Howard and aged 11 at the time of the interim hearing before Judge Jarrett.
Those final orders saw X living nine nights per fortnight with her mother and five with her father and, apparently not long thereafter, eight nights and six nights respectively. Additionally, an order was made for equal shared parental responsibility and specific orders were made requiring each parent to advise the other of medical treatment and the like received by X.
Those orders pertained and governed X’s co-parenting arrangements until, during the December / January school holidays, the father retained X in his care and enrolled her in a new school local to him. He lives in Town F; the mother lives in Brisbane. Subsequent to those events, X did not spend time with her mother for six weeks.
Following the interim proceedings before Judge Jarrett, his Honour summarised in two separate paragraphs of the reasons two central issues which confronted him at the interim hearing:
6. [The father’s] case is that there is reason to be concerned that in the mother’s care [X] is at an unacceptable risk of physical, psychological or emotional harm because she is the subject of physical and emotional abuse in her mother’s household. He says that until there can be a trial of these proceedings, the Court ought to make some orders which are reflective of an opinion by a family consultant, [Mr D].
…
11.The mother’s case is relatively straightforward. She suggests that the actions of the father are designed simply to undermine [X]’s relationship with her.
As can be seen, his Honour had before him a comprehensive family report from a family consultant, Mr D. Importantly, the trial of the proceedings to which his Honour refers will be heard on 4 December 2018.
The Notice of Appeal
There are eight grounds of appeal as follows:
1. The learned Judge failed to follow the statutory pathway mandated under Pt. VII of the Family Law Act 1975 in respect of interim parenting orders.
2.The learned Judge erred in failing to consider, or to properly consider, the matters contained in s.60CC of the Family Law Act 1975 when determining what parenting orders should be made in the best interests of the child pending the trial of the proceeding.
3.The learned Judge impermissibly took into account irrelevant considerations; namely, the father’s move to [Town F] and his subsequent conduct in retaining the child in his care when determining what interim orders should be made in the best interests of the child pending a trial of the proceeding.
4.The learned Judge erred in making findings adverse to the father that could only be properly made at trial.
5.The learned Judge failed to consider or to properly consider the evidence from the Family Report Writer regarding the child’s wishes as expressed to, and the child’s statements made to, the report writer during his interview with the child.
6.The learned Judge failed to take into account as a relevant consideration the recommendation made by the Family Report Writer as to the interim parenting arrangements for the child pending a trial of the proceeding and failed to explain why such recommendation should not be adopted.
7.The learned Judge failed to consider, or to properly consider, the impact upon the child of a return to the parenting arrangements provided for in the Order made on 6 October 2015.
8.The learned Judge failed to give adequate reasons for his decision.
The Interim Hearing
His Honour’s first task was to identify the competing proposals of the parties. His Honour plainly did so and it is not suggested to the contrary.
Within the context of “an abridged process where the scope of the enquiry is ‘significantly curtailed’”,[2] it was necessary for his Honour to identify the agreed or non-contentious facts because the court “cannot make findings of fact [and] should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible”.[3] Again, his Honour did so.
[2] Goode and Goode (2006) FLC 93-286 at [68].
[3] Goode and Goode (2006) FLC 93-286 at [68].
As counsel for the father conceded in the hearing before me, those central uncontentious facts can be summarised as including:
·Existing parenting orders had regulated the co-parenting of X for approximately two and a quarter years until January 2018;
·Contrary to those orders, in January 2018 the father held X over;
·X did not see her mother for a period of approximately six weeks thereafter despite those existing orders;
·X had attended the same school for two and a quarter years prior to January 2018 and, it seems uncontroversial, for the whole of her school life prior to the orders being made;
·Despite assertions of increasing concern by the father during that two and a quarter year period and, it seems, increasingly so for about 15 months after October 2016, no application had been made by him to vary the existing orders;
·No application to vary the existing orders had, during that time, been mooted by the father;
·Contrary to the existing orders X had been taken to a counsellor by the father without the knowledge or consent of the mother; and
·Contrary to the existing orders, the father had not notified the mother of X’s treatment by the counsellor.
Importantly, competing assertions by each of the mother and father, referred to and reflected in concerns in the family report by Mr D, could not be tested in the context of an interim hearing but needed to await a trial. That circumstance had an important consequence for the interim proceedings as his Honour clearly, and with respect correctly, found:
20.By the orders that each of the parties seek before me now, they each contend for one case or another which must depend upon a resolution of the factual matters that [Mr D] has referred to in his report and which I have just extracted. That is to say, if the father’s orders are to be made, it presupposes that the factual matters upon which he relies and which have been identified by [Mr D] would be resolved in his favour and the suggestion that he is an insightless father who has done nothing but empower this child to make her own decisions in circumstances where she is not emotionally or intellectually equipped to make them should be rejected. On the other hand, if I was to make the orders that the mother seeks, she would ask me to make those findings and reject any findings supportive of [X]’s complaints about her experiences in her mother’s household.
The Case for Expedition
Principles
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a single judge of the Full Court may hear an application for the expedition of an appeal.
Neither the Act, nor the Family Law Rules 2004 (Cth) (“the Rules”), contain specific provisions with respect to the expedition of appeal hearings.
Sub-rules 12.10A(2) and (4) make reference to principles which guide applications for the expedition of trials and, it has been held, it is appropriate to consider those principles in the context of an application for the expedition of an appeal.[4]
[4] See, for example, Nimmo & Bush [2016] FamCAFC 274; Renald & Renald [2017] FamCAFC 92; Wilmer & Golding [2017] FamCAFC 203; Ardagh & Ardagh [2018] FamCAFC 102.
However there are differences that should be recognised and all the more so when the application for expedition is in respect of an appeal from interim parenting orders where the issues on appeal are to be the subject of an imminent trial and when, axiomatically, contentious facts have not been, or should not have been, determined in interim proceedings.
With that caveat, r 12.10A provides:
12.10A Expedition
...
(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.
Relevant to the instant case are subparagraphs (d) and (e). Subparagraph (g) is an example of how the principles relevant to an appeal from an interim parenting order are not perfectly analogous. Whilst failure to expedite an appeal might be said to cause “serious emotional or psychological trauma to a party or a child who is the subject of, or affected by” the case, that same party or child will, absent agreement, be exposed to a trial whether or not the appeal is expedited.
Hardship to the Applicant or Child
It is submitted in the written outline of argument on behalf of the appellant that:
12.Given that [X] will soon resume school and that the trial of the proceedings is listed to commence on 4 December 2018, it is contended that the hearing of the appeal should be given priority over other cases. The actual hearing ought not take more than a ½ to 1 day and is a matter that could be heard by a single Judge of the Appeal Division.
13.From [X]’s standpoint the effect of His Honour’s decision and order is to see her again change schools, returning to a school, which if the Appellant’s evidence is ultimately accepted she has had problems at and does not want to attend. Moreover, the practical effect for [X] is that she is required to travel to school from [Town F] to the [Suburb A] area (a distance of something in the vicinity of 100 kilometres each way) on those days that she is attending school when in the Appellant’s care.
It can be seen that the effect of his Honour’s order is postulated as the catalyst for X “again” changing schools. Of course, that submission ignores the non‑contentious fact that the change of school pursuant to his Honour’s order arose because of the father’s holding over of her contrary to an existing order, pursuant to a unilateral decision (contrary to an existing order for equal shared parental responsibility) to change her school without notice to the mother.
It can be accepted that changes to a child’s routine should be kept to a minimum but that is a reason, absent genuinely urgent circumstances, for awaiting a trial. Here it seems that “live with” arrangements and schooling arrangements for X will very much be a live issue at the trial.
I said in Keehan & Keehan:[5]
…by its nature, an application for expedition of an appeal seeks to place this appeal in priority to other appeals waiting to be heard. Participants in every case awaiting hearing have a right to have their case heard as quickly as an extremely stretched court can reasonably permit. It is reasonable that parties should expect the Court not to delay their matter by prioritising a later-filed matter, unless the circumstances of the later‑filed matter require that it should take precedence over their matter.
(Emphasis added)
[5] [2018] FamCAFC 79 at [14].
The significant majority of the appeals awaiting hearing involve children. Almost always, those appeals involve issues that, in turn, raise issues of genuine concern about the best interests of the children, the subject of them. Those appeals, like this one, cry out to be heard as soon as possible. The issues raised in this case are not of themselves any more or less urgent or pressing than the issues in the vast majority of appeals involving children awaiting hearing.
That is in no way, shape or form to be taken as suggesting that the issues for X are anything less than of great significance. Rather, it is to place the court’s concerns about X in the context of the court’s concerns about other children reporting the same conflictual parental environment in which she finds herself and with the same problems for her as are created for other children experiencing similar dysfunction.
I am unable to see the identification by the appellant of any issues marking this case as needing to be heard in priority to other appeals involving children, all of whom, as I have previously said, have a right to have their case heard as quickly as an extremely stretched court can reasonably permit.
Purpose of the case lost and utility in the Appeal
The written submissions on behalf of the appellant appear to suggest that the appeal could be heard by a single judge and suggest, implicitly at least, an earlier hearing as a result. The appeal might be heard by a single judge, but equally it might not. In either event, that is a decision dependent upon the Chief Justice certifying relevantly (s 94AAA(3)).
Whether that occurs or not, the hearing by a single judge depends upon available dates, just like the hearing by a Full Bench, albeit that there may be a wider range of dates available to the former. There is a concern on the part of both parties and the court to provide such dates as soon as possible but any such date competes with other cases, with equally important issues, clamouring to be heard. It is unlikely that any such date could be provided for a single judge hearing until late September. If the appeal was to be heard by a Bench of three, the next sittings in Brisbane is currently listed to take place in October. There is the possibility of another sittings that might accommodate this appeal in the last week of September.
However, and crucially, in either case the hearing and determination of an appeal heard either in late September, or by a Full Bench a couple of weeks later in October, will precede the hearing of a trial by a matter of weeks.
A central question which arises and which, with respect, could not be answered on behalf of the father, is what utility there is in a successful appeal against the interim parenting orders when a final trial of those issues will occur some weeks after the determination of the appeal. Counsel for the mother argues the appeal has no utility at all.
No argument raised by the father persuades me of any real utility of the appeal in the circumstances of this case.
Merits of the Appeal
The utility of the appeal and its possible success must be balanced against the merits of the appeal apparent from the grounds.
As has frequently been said, on an application for expedition significant circumspection should attend comments about prospects of pleaded appeal grounds. However, in this case, it is in my view possible to say that at least two of the grounds, as expressed, have no merit. Each of Grounds 5 and 6 assert a premise which cannot be sustained.
Ground 5 asserts a failure to consider or properly consider the evidence from the family report writer regarding the child’s wishes. His Honour’s judgment (given, it should be noted, in the “significantly curtailed” context earlier described) records, and in parts relies upon, the family report by Mr D.
As regards X’s views specifically, a determination at trial about what X has said – but, more importantly, why she has said it, and how what she has said and to whom should be interpreted – are central to the central trial questions identified by his Honour at [20] earlier quoted. That could not be determined by his Honour for the reasons which his Honour gave.
Ground 6 assumes that weight should axiomatically have been given to the recommendations by a report writer. It is the judge who determines a case, not a report writer. The opinions, and ultimate recommendations, of the report writer are to be assessed, just like all of the other evidence, after it is tested, analysed and explored at a trial. A fair reading of Mr D’s report sees him, in effect, making that very point.
Equally, I have some concerns about the premise for Ground 3, which suggests, in terms, that the father’s move to Town F and his subsequent conduct are an entirely irrelevant consideration. Again, the place of findings about each of those matters is for trial. However, neither is it, in my view, an irrelevant consideration in the sense of being a premise for discretionary error in the interim determination which his Honour faced.
In that respect, Warnick J said, in a statement with which the other members of the Full Court agreed:[6]
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
[6] C & S [1998] FamCA 66 per Warnick J; Ellis and Lindenmayer JJ agreeing.
I am not persuaded that the appeal’s asserted merit should weigh heavily in the exercise of my discretion.
Conclusion
By reference to the non-exhaustive considerations referred to in r 12.10A to which I have earlier referred and which I consider to be relevant to the instant application, in my judgment:
·The circumstances of this particular case do not suggest that it should be given priority over other appeals involving children awaiting determination;
·Particularly given the imminence of a final trial after the earliest prospective dates for the hearing and determination of the appeal against interim orders, I am unable to see any real utility in the appeal;
·A trial might seek to resolve issues involving assertions of emotional or psychological harm to X, but it is not established that an expedited appeal would have any impact upon the same;
·There are assertions that the continuation of the interim orders are causing hardship for X but, as his Honour made clear, that is an issue dependent upon the answers to issues central to the trial;
·The same is true in respect of assertions of abuse in the broad sense described by Mr D and referred to by his Honour; and
·I am not persuaded that merits of the appeal point to the need for a prioritised hearing.
The father’s application will be dismissed.
Costs
Prior to reserving my decision in this case, I sought submissions in respect of costs.
The circumstances earlier referred to suggest that the conduct of the parties may very well be a relevant consideration in respect of the costs of and incidental to the application (s 117(2A)(c)). Determinations at trial might have a significant bearing upon how that conduct should be viewed.
It was suggested that the question of costs should be reserved until after the trial findings, but upon reflection I don’t consider that appropriate. Despite the fact that it can be said that the applicant father has been wholly unsuccessful, I am unwilling to conclude that there are circumstances justifying an order for costs, with the consequence that s 117(1) remains applicable.
Findings made about conduct may (or may not) have an impact on any application for costs in respect of the trial to occur in December.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 25 July 2018.
Associate:
Date: 25 July 2018
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