EDDY & BERRY
[2015] FamCAFC 105
•29 May 2015
FAMILY COURT OF AUSTRALIA
| EDDY & BERRY | [2015] FamCAFC 105 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to appeal interim orders that she must return children to live in Sydney – Where the substantive proceedings have been expedited – Application dismissed. |
| Family Law Act 1975 (Cth): s 94(2D) |
| Family Law Rules 2004 (Cth): r 12.10A |
| APPLICANT: | Ms Eddy |
| RESPONDENT: | Mr Berry |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYC | 4998 | of | 2009 |
| APPEAL NUMBER: | EA | 52 | of | 2015 |
| DATE DELIVERED: | 29 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 29 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 April 2015 |
| LOWER COURT MNC: | [2015] FamCA 280 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Linden Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW |
Orders
The mother’s Application in an Appeal filed 17 April 2015 be dismissed.
Costs of the application for expedition be costs of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eddy & Berry 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 SYDNEY |
Appeal Number: EA 52 of 2015
File Number: SYC 4998 of 2009
| Ms Eddy |
Applicant
And
| Mr Berry |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
By an application in an appeal filed on 17 April 2015, Ms Eddy (“the mother”) seeks an expedited hearing of her appeal against interim parenting orders made by Rees J on 10 April 2015.
The proceedings concern the parties’ two children, B, who was born in 2003 and C who was born in 2006.
The effect of her Honour’s orders is to require the mother to relocate the children from Newcastle to Sydney where, until earlier this year, they lived.
Mr Berry (“the father”) is the children’s father and the respondent to this application. He seeks to uphold the orders made by Rees J in the appeal, but says it is a matter for the court whether this appeal should be expedited ahead of other cases. A similar position is adopted by the Independent Children’s Lawyer (“ICL”), albeit the ICL emphasises that the most efficient use of everybody’s time, including the court’s, is for the proceedings at first instance to be determined.
Rees J dismissed an application by the mother to stay her orders on
22 April 2015.
Background Facts
In order to give this application context, it is necessary to refer to some brief background facts.
The parties were married in 2000 and separated in 2009. They divorced in 2013.
They have the two children to whom reference has already been made.
From when the parties separated, the children have lived with the mother. The parties and children have, at all relevant times, lived in Sydney.
Property and parenting matters were dealt with by way of consent orders made on 13 April 2013. Those orders provided that the children continue to live with the mother and for them to spend time with the father essentially each alternate weekend and for half of the school holidays and on special occasions identified in the orders.
On 31 March 2014, the mother filed an Initiating Application which she amended on 10 April 2014 to include orders which would permit her to relocate the children from Sydney to Newcastle. In essence, this was so that she could join her then partner who she married in June 2014. The mother’s husband has, at all relevant times, resided in Newcastle. As I understand the gravamen of the mother’s case, it is in essence that she ought be able to establish her life with her husband in Newcastle and when regard is had to the terms of the orders of
13 April 2013, it can be seen that the children living in Newcastle would not significantly affect the amount of time they spend with their father.
In any event, and without the father’s consent, in January 2015 the mother moved the children to live in Newcastle. It would seem that she did not pursue an application for interim orders which would enable her to do so, but rather in November 2014 she applied for an order to expedite the final hearing. An order for expedition was made and the proceedings are currently listed on 5 June 2015 for the first day of a less adversarial trial. The parties and ICL all say that based on their knowledge of the docket judge’s availability, this means that the matter would not come on for a final hearing this year. That is a matter to which I will return.
As soon as the father learned that the mother had moved the children to Newcastle, he filed an application for orders that she return the children to live in Sydney and to vary their living arrangements. That application came before a registrar on 25 February 2015 who, in essence, granted the relief sought by the father and ordered that the mother return the children to Sydney to live by no later than 20 March 2015.
She failed to do so, and filed an application to review the orders made on 25 February 2015. In the meantime, those orders were stayed and the review application was heard and determined by Rees J on 10 April 2015. As I have already mentioned, Rees J dismissed the mother’s application and ordered that the children be returned to Sydney to live by 18 April 2015. These are the orders which are the subject of the appeal.
Discussion
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“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.
Rule 12.10A deals with applications for an expedited trial. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the court may take into account and which are also relevant to appeals will be discussed.
Sub-paragraph (a) is concerned with whether the mother has acted reasonably and without delay. There is no doubt that in relation to the appeal and this application, the mother has moved promptly and done all that is required to prosecute her appeal and case for expedition. The application of the sub-section weighs in favour of an order for expedition.
Sub-paragraph (b) is concerned with delay. Unless the appeal is expedited, it is likely that the proceedings at first instance will be finalised earlier than the appeal. Although that might be said to weigh in favour of the mother’s application for expedition, greater weight should be given to the fact that there is to be a full hearing in the not too distant future. I accept the parties’ information provided from the bar table that in the ordinary course, the matter would not be called on for a final hearing this year. There is no information that I have that would suggest that information is incorrect.
However, what the parties do not know and nor do I, is how the docket judge would determine the priority of proceedings in which an order for expedition has already been made. It would seem incongruous that if the parties do what is required of them in a timely way that a final hearing could not be completed within a year of the order for expedition. I would anticipate that the docket judge would take that into account. Of course, not knowing the competing demands of the judge’s docket, it might be that with the best will in the world he cannot himself make time available to this hearing without unfairly, perhaps, dealing with other cases already listed.
Serendipitously, the other factor that can be taken into account is that yesterday, the Attorney General for the Commonwealth announced a new appointment to this registry. It seems likely that the docket judge would speak to the case management judge to make arrangements to either free up the docket judge or arrange for this case to be listed to the new judge. With those options available, I propose to proceed on the basis that this case can be called on for final hearing this year.
Sub-paragraph (c) concerns prejudice to the father. Nothing was said by the father which suggests that an order to expedite the appeal would impose any disadvantage or prejudice him in some way. The application of sub-section (c) is moot.
Sub-paragraph (d) requires consideration of circumstances which would justify this case being given priority to the possible detriment of other cases. Relevant circumstances are defined in r 12.10A(4)(a). In her affidavit, the mother said she is concerned the appeal proceedings would delay the hearing of the substantive proceedings. When I read that statement in the mother’s affidavit, I could not understand what she meant. And as senior counsel who appeared for the mother today acknowledged, there is no reason to be concerned that the existence of the appeal would interfere with the disposition of the case at first instance.
The mother is also concerned about the impact on the children of relocating them on an interim basis, particularly where, as she said in her affidavit, they had settled into their new living arrangements in Newcastle. Her argument in favour of stability is something of a two edged sword and is inconsistent with her decision to move the children in January 2015 and not to comply with the orders made on 25 February 2015. I accept the submissions made by the father that most of the matters raised in the mother’s affidavit have been dealt with simply as a consequence of the orders and the mother’s decision to comply with the orders made by Rees J.
That said, there is no doubt that the mother has legitimate reasons for wanting to move to Newcastle and join her husband there, particularly in circumstances where if the evidence contained in her affidavit is correct, he is not in a position to move to Sydney for at least the foreseeable future. Otherwise, in relation to the merits of the appeal, on the basis of the submissions made by senior counsel for the mother I accept that the grounds of appeal raise matters of some substance and it is bona fide.
Conclusion & Costs
However, notwithstanding the matters that weigh in favour of expedition, in my view, the case for this appeal to be given priority over other appeals regularly filed and awaiting a hearing has not been made out. This is particularly so in circumstances where the orders under appeal are interim orders and I am confident that there will be a final hearing at first instance this year. Accordingly, the application for expedition should be dismissed and I order accordingly.
Costs of the application for expedition to be costs of the appeal.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 May 2015.
Associate:
Date: 12 June 2015
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