Gallea & Gallea
[2020] FamCAFC 322
•17 December 2020
FAMILY COURT OF AUSTRALIA
Gallea & Gallea [2020] FamCAFC 322
Appeal from: Gallea & Gallea [2020] FCCA 2602 Appeal number(s): EAA 147 of 2020 File number(s): CAC 265 of 2018 Judgment of: ALDRIDGE J Date of judgment: 17 December 2020 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Appeal from final parenting orders – No risk of harm to the child identified to justify the appeal being expedited – Unusual way the applicant father conducted his case at trial will likely adversely affect his prospects of success in the appeal – No circumstances to justify expedition – Application dismissed – Applicant father to pay the respondent mother’s costs. Legislation: Family Law Act1975 (Cth) ss 94(2D), 117(2A)
Family Law Rules 2004 (Cth) Sch 3, r 12.10A
Division: Appeal Division Number of paragraphs: 18 Date of hearing: 17 December 2020 Place: Sydney (via video link) The Applicant: Self-represented litigant Solicitor for the Respondent: Dimocks Family Lawyers The Independent Children’s Lawyer: No appearance ORDERS
EAA 147 of 2020
CAC 265 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR GALLEA
Applicant
AND: MS GALLEA
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
17 DECEMBER 2020
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 December 2020 is dismissed.
2.The applicant father pay the respondent mother’s costs of and incidental to this application fixed in the sum of $546.88.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallea & Gallea has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
By an Application in an Appeal filed on 8 December 2020, Mr Gallea (“the father”) seeks expedition of his appeal against final parenting orders made by a judge of the Federal Circuit Court of Australia on 18 September 2020.
Parenting proceedings between the father and Ms Gallea (“the mother”) were commenced by the father in February 2018 in regards to the parties’ only child, X (“the child”) born in 2016. As the primary judge noted in his Honour’s reasons, the proceedings were “unusual” (at [1]) as the father, although legally represented, sought no particular or specific orders in relation to the child, but instead consistently confirmed that he would leave the orders to the Court to determine what was in the child’s best interests. His Honour noted that while this might be taken to constitute an undefended hearing, it was the father’s conduct both prior to and during the trial that suggested otherwise. The father had withheld the child from the mother following visits in June 2019 and January 2020, expressing concern as to the child’s welfare in the mother’s care. This resulted in the mother having to seek recovery orders on each occasion. At trial, the father was also described as being “distraught”, “extremely emotional” (at [2]) and having made frequent outbursts during his evidence. The father became very emotional and upset during the hearing of this application.
In January 2020, the Independent Children’s Lawyer sought that the father’s time with the child be suspended in the light of the repeated incidents of the father withholding the child. At that time, orders were made for the father to file an affidavit as to his mental health as to his capacity to engage with the proceedings. The father in his affidavit of 28 February 2020 however did not comply and gave no evidence as to his mental state. This lack of compliance was not explained by his lawyers during the proceedings before the primary judge.
At trial, the mother, with the support of the Independent Children’s Lawyer, sought orders that she have sole parental responsibility for the child, that he live with her, and that for a period of time, the father have only supervised time with the child. Those orders were made and are now the subject of the father’s appeal filed on 15 October 2020.
The application for expedition is opposed by the mother, and the Independent Children’s Lawyer did not appear at the hearing of this application. I am informed by the parties that the Independent Children’s Lawyer has in fact lodged consent orders in the Federal Circuit Court of Australia for her discharge from that position.
APPLICATION FOR EXPEDITION
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that an order can be made to expedite an appeal. Whilst there are no rules that govern the expedition of appeals, commonly a Court considering such an application will look to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) as a helpful list of the factors to be considered. The factors to be taken into account include: whether the applicant has acted reasonably and without delay in the conduct of the case, whether the application has been made without delay, whether expedition will cause any prejudice to the respondent, and whether there are any other relevant circumstances which suggest that the matter should be given priority to the possible detriment of other cases. The ultimate task for the Court to decide is whether the appeal the subject of the application should be heard before and in priority to other appeals which have already been filed and await hearing.
The father filed his Notice of Appeal 27 days after the delivery of the primary judge’s reasons for judgment and his Application in an Appeal seeking expedition some 54 days after that. Whilst, I accept that such an application need not be filed at the same time as the filing of the Notice of Appeal, ordinarily it should be filed shortly thereafter. If an appellant seeks priority in having his or her appeal heard, it is not unreasonable to expect them to act promptly as well.
The evidence of the father in support of his application is brief. The only basis for expedition raised in it is the following statement from his affidavit filed on 8 December 2020:
1.5We have, for a very long time, relied upon the legal process when our safety, health and welfare were at risk and are at risk and we desperately request your intervention.
The father does not identify the risk to the child’s safety, health and welfare.
In his Honour's reasons, the primary judge said:
3.In January 2020 the Father again retained the child. He expressed concerns about the welfare of [the child] in the Mother’s care due to the constant smoke haze that enveloped Canberra due to surrounding bush-fires. The Father provided no evidence otherwise to support his assertions against the Mother.
…
19.When asked to explain what his concerns for the child were, all he could say was something to the effect that he “did not know what to expect” and did not know what the Mother’s actions would be in the light of the Court’s Orders. He claimed that the Mother was “unpredictable”, based particularly on various incidents during the relationship. He said, for example, that he was worried the Mother would throw things and hurt things, as she did during the relationship. Relevant details were not readily forthcoming.
20.The Father said that he tried always to be protective of [the child]. When asked if he had a view as to what Orders were in [the child’s] best interests, he said he did not have such a “view.” This included appropriate Orders regarding “time with” arrangements, and the residence of the child.
21.He said that he provide [sic] the most important material in his Affidavit. It was not possible, in his view, to put all relevant material before the Court.
22.The Father confirmed that he was aware that the Mother was seeking sole parental responsibility. He said that he had no “view” about this Order sought by the Mother.
…
29.The Father confirmed that he retained the child because of the risk to [the child] of bushfire smoke. Unsurprisingly, he was unable to explain how the Mother could be responsible for such smoke. The Father confirmed that he kept the child (in January 2020) contrary to the Orders at the time. He said at the time that he was “very scared” because he was hearing from the police and from the Mother’s lawyers about him keeping [the child]. He said that his action in retaining [the child] was “reasonable action” and was protective of [the child]. He was not able to explain how or why it was protective of the child. He contended that [the child] was not upset at this time being absent from his Mother.
Again, there is no identification of any risk of harm to the child which would justify the appeal being expedited. Although the father today said that he had years of experience which showed that the child was unsafe, he could not provide any details because he said that years of experience could not be summarised.
However, if a risk cannot be identified, it cannot be taken into account.
As can be seen, the hearing was conducted in an unusual way by the father, in that he did not propose any orders for consideration by the primary judge. That must adversely affect his prospects of success in the appeal. It therefore cannot be said that the appeal has strong prospects of success.
Ultimately, the task before the Court is to determine whether circumstances exists which justify this appeal being given priority over others. On the material before the Court, I am not satisfied that it does and accordingly, the application is dismissed.
COSTS
An application has been made by the mother for her costs to be paid by the father. She seeks the sum of $546.88 which has been, I am informed, assessed in accordance with Sch 3 of the Rules.
The father’s application for expedition was wholly unsuccessful (s 117(2A)(e) of the Act).
Quite properly and frankly, both the lawyer for the mother and the father said that the parties were in full employment. Ultimately, as I understood it, the father did not oppose the application for costs and said that he could afford it.
Taking these matters into account, there will be an order that the father pay the mother’s costs of and incidental to this application fixed in the sum of $546.88.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 18 December 2020
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