Findley and Vitez and Ors
[2016] FamCAFC 219
•3 November 2016
FAMILY COURT OF AUSTRALIA
| FINDLEY & VITEZ AND ORS | [2016] FamCAFC 219 |
| FAMILY LAW – APPEAL – Application for expedition of hearing the appeal – Where the mother seeks to expedite her appeal against orders of the primary judge which changed the primary residence and parental responsibility of the child – Where the child has now moved from living with the mother in South Australia to live on the Gold Coast with the father – Where the father and paternal grandparents oppose the application – Where the circumstances do not justify priority being given to the appeal – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Ms Findley | |
| FIRST RESPONDENT: | Mr Vitez |
| SECOND RESPONDENTS: | Mr Vitez and Mrs Vitez |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 2858 | of | 2014 |
| APPEAL NUMBER: | NA | 61 | of | 2016 |
| DATE DELIVERED: | 3 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 3 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 2304 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade (via telephone) |
| SOLICITOR FOR THE APPLICANT: | All Family Law (via telephone) |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Page QC |
| SOLICITOR FOR THE FIRST RESPONDENT: | Michael Dwyer Solicitor |
| COUNSEL FOR THE SECOND RESPONDENTS: | Mr Page QC |
| SOLICITOR FOR THE SECOND RESPONDENTS: | Michael Dwyer Solicitor |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | No Appearance |
Orders
The Application in an Appeal filed by the mother on 27 September 2016 to expedite the hearing of her Notice of Appeal NA61 of 2016 is dismissed.
The costs of this Application be reserved to the Full Court of the Family Court of Australia.
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 Findley & Vitez and Ors 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA61 of 2016
File Number: BRC2858 of 2014
| Ms Findley |
Applicant
And
| Mr Vitez |
First Respondent
And
| Mr Vitez and Mrs Vitez |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
An Application in an Appeal was filed on 27 September 2016 by Ms Findley (“the mother”). The Application seeks the expedition of the hearing of Appeal NA61 of 2016, which was also filed on 27 September 2016, from the final parenting Orders of Judge Coates made on 5 September 2016. Those orders, inter alia, reversed the primary residence and parental responsibility of the child from the mother to Mr Vitez (“the father”) and had the effect of the child moving from South Australia to Queensland to live.
The orders provided that the child was to move from the mother’s care to the father, the day after the orders were delivered. Prior to the orders being made, the child had spent limited time with the father: the boy last saw his father when he was three years old, and he is now seven.
In her Summary of Argument filed on 28 October 2016, the mother states the appeal should be given priority because the orders would cause the child to move a significant distance, change schools and that “such a radical change would result in significant difficulties for the child”. The mother seeks the hearing of her appeal be expedited to the earliest date possible. The significance of an appeal being heard with expedition has been somewhat diluted as the child has now moved and on 25 October 2016 the mother’s application for a stay of the orders was refused.
On 21 October 2016, the father, and Mr and Mrs Vitez (“the paternal grandparents”) filed a response, seeking that the mother’s application be dismissed, and that the mother pay their costs. Accompanying the response were three affidavits, one of the father, one of the paternal grandmother and one from Ms B, who was engaged to assist the child with his literacy skills.
The Independent Children’s Lawyer did not seek to be heard in relation to this Application.
Background and Reasons of the Primary Judge
The mother and father have one child together, who is currently seven years old. The family were living in Queensland, until the parties finally separated on 30 August 2010. After the separation, the mother moved with the child to live in South Australia.
Consent orders made on 28 June 2011, provided that the child live with the mother and spend time with the father by agreement. The father continued to live in Queensland and the mother in South Australia. The father and his family were afforded very little contact with the child by the mother.
The proceedings before Judge Coates were commenced by the father on 31 March 2014. At that time he had only seen the child approximately six times since separation.
The trial judge concluded, pursuant to the relevant sections of the Family Law Act 1975 (Cth) (“the Act”), that it was in the best interests of the child to live with the father, and that the child spend structured time with the mother – with alternatives afforded if the mother chose to move to Queensland to be closer to the child. Within the limited confines of this hearing, it is convenient to set out the significant findings of the trial judge:
a)Initially, the father did not seek a change of the child’s residence, and instead sought the child spend more time with him. The paternal grandparents also sought orders for time. The mother, in response, sought orders that the child spend no time at all with the father and the paternal grandparents. The mother stated that Christmas gifts could be sent to the child (at [29]);
b)The father ultimately sought a change of residence, as all orders for the child to spend time with him had been previously “flouted and breached” by the mother (at [27]);
c)Interim orders were made during the progression of the father’s application for the father and child to spend time together. The mother “refused to comply with all orders, including presenting the child for further family reports when the father was present.” (at [38]).
d)The mother was strongly opposed to the child spending any time with the father, based on allegations by her of family violence, her belief he would kidnap the child or deny the child time with the mother. The trial judge found there was no evidence to support these claims;
e)The mother was found to have “a dependency on the child, and the child [was] being denied his right to have a relationship with his father because of her dependency and that is unacceptable risk to the child.” (at [228]).
Consequent upon this finding, the trial judge made orders for the father to have sole parental responsibility of the child, and for the child to live with the father in Queensland.
An Application for a Stay of the orders together with the Notice of Appeal was filed on 5 September 2016, the day judgment was delivered by the trial judge. The hearing of the stay was on 8 September 2016.
On 25 October 2016 the application for a stay was dismissed, and it is instructive to have regard to some of the reasons of the trial judge:
a)No new evidence was put before the trial judge to demonstrate the orders were contrary to the child’s best interests.
b)The orders the mother sought in her Notice of Appeal NA61 of 2016 were “radically different from the no contact orders she sought at trial between the child and the father…In fact, originally the father would have been satisfied with such time.” No explanation was provided by the mother for this change in position.
c)The trial judge criticised the proposed grounds of appeal. A number related to the issues of family violence raised in the trial. The trial judge repeated his findings that while such incidences of family violence did occur, they were before the child was born or in circumstances where notwithstanding, the mother consented to the father spending time with the child. Taking into account her dramatic change in stance about the new orders for time, the trial judge regarded these grounds as doomed to fail.
Application
The hearing of the appeal may be expedited and pursuant to s 94(2D)(j) of the Act, a single judge of the Appeal Division may hear applications for expedition. While there is no further guidance in the Act or the Family Law Rules 2004 (Cth) (“the Rules”) regarding expedition of appeal hearings, reference can be made to the factors contained in r 12.10A of the Rules which relates to expedition of trials:
(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.
In her summary of argument filed on 28 October 2016, counsel for the mother argues:
13. …
·This is a matter involving the welfare of a child who up until judgment had not spent time with the father since February 2012 and who had lived with his mother since separation.
·It not only involved relocation from [South Australia] to Queensland it involved a change of residence from the mother to the father of a seven year old boy.
·It is inherent in His Honour’s orders that he accepted that such a radical change would result in significant difficulties for the child necessitating the intervention and assistance of therapeutic counselling.
·To a large extent the nature of such counselling and even the need for such counselling must remain uncertain until the finalisation of these proceedings. An order for expedition, whatever the outcome of the appeal, will mean that the period of such uncertainty will be significantly reduced. This is a weighty factor weighing heavily in favour of expedition.
The mother has not adduced any evidence of the child suffering as a result of the orders, or demonstrated that an expedited hearing would avoid serious emotional trauma to the child or that it would otherwise be in the child’s best interests, other than the obvious, that the sooner the matter is heard the better for all concerned.
Response
The father opposes the mother’s application. In his affidavit filed on 21 October 2016, the father provides up to date information about the child since the making of the final orders. The father says that the child is coping extremely well with the move, and has settled into his new room at home. The child was immediately enrolled in primary school, where it was identified he has below average literacy skills. The father has arranged for private tutoring to assist the child.
The father explains that the mother initially did not take up her opportunities to spend time with the child. The father states that just prior to the date of the affidavit; the mother did contact his solicitors to facilitate the first handover. The mother and child have had telephone contact, but the mother had to be reminded by the father’s solicitors to only raise child-focussed topics of conversation.
The father opposes the application, as he does the appeal, and does not want the child returned to South Australia. The father says the child is becoming settled in his new environment.
The paternal grandmother’s affidavit sets out the time she spends with the child, which includes helping him get to and from school, and assisting with family meals. The grandmother explains that the child has adjusted well to his new living arrangement.
Ms B, the child’s literacy tutor, in her affidavit filed on 24 October 2016 explains that the child’s reading age is less than a five year old and that the child has a limited vocabulary. Overall, Ms B concluded that the child’s literacy level was well below his age group, and twice-weekly tutoring is required to assist the child.
Conclusion and Costs
Apart from the radical change caused by the orders of the trial judge, which have been effected as the child has moved, there are no features of this case that would attract an order for expedition. The circumstances of this case are similar to many others to be heard and should not be considered in the category of cases which can ‘jump the queue’ causing other cases to be further delayed.
In reaching such conclusion, I make no comment about the prospects or otherwise of the success of the appeal. The appeal most likely will be heard in the second sittings in Brisbane next year in July. I am informed that the procedural hearing is on the 14th of November 2016, so there are some prospects the appeal could be listed in the first sittings but more likely the second.
Both parties have gone to considerable expense in dealing with this Application, and will no doubt expend further costs in pursuit of the appeal. It is appropriate that the costs of the application be reserved, to be heard together with the hearing of the appeal by the Full Court.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 3 November 2016.
Associate:
Date: 3 November 2016
0
0
2