Garraghan and Westerfield - [2014] FamCAFC 38

FAMILY COURT OF AUSTRALIA

GARRAGHAN & WESTERFIELD

[2014] FamCAFC 38

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of an appeal in relation to interim parenting orders – Whether a case should be given priority to the detriment of other cases – Where the subject matter of the appeal does not warrant priority to the detriment of other cases – HELD – Application dismissed.

Family Law Act 1975 (Cth): s 94(2D)(j)

Family Law Rules 2004 (Cth) 2004: r 12.10A

APPLICANT:

Mr Garraghan

RESPONDENT:

Ms Westerfield

INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid

FILE NUMBER:

SYC

4582

2013

APPEAL NUMBER:

171

2013

DATE DELIVERED::

27 February 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

27 February 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

25 October 2014

LOWER COURT MNC:

[2013] FCCA 1840

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Blanchfield Nicholls Partners

FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid

Orders

That the application for expedition filed by the appellant on 17 December 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garraghan & Westerfield 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 171 of 2013
File Number: SYC 4582 of 2013

Mr Garraghan

Applicant

And

Ms Westerfield

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
This is an application by Mr Garraghan (“the father”) for expedition of an appeal in relation to interim parenting orders made by Judge Monahan on 25 October 2013.
The parenting proceedings concern the parties’ only child M (“the child”). She was very young when her parents separated in May 2011. Since then, the child has lived with her mother, Ms Westerfield (“the mother”).
The mother is the respondent to the appeal and seeks to uphold the orders under appeal. It is her submission that the father’s appeal should not be expedited.
An Independent Children’s Lawyer (“ICL”) has been appointed. His appointment commenced after the orders under appeal were made. As a consequence of other court commitments, the ICL is unable to appear today. However, he provided written submissions which, in summary, contend that it is in the child’s interests that the father’s appeal be expedited. The rationale for this is that unless the appeal is expedited, the probability is that it will be heard at about the same time as the final parenting proceedings now underway in the Federal Circuit Court. It is difficult to see why that is persuasive of expedition.
In any event, the interim orders provide for the father to spend time with the child under supervision, each Saturday and Wednesday for four hours. Earlier interim orders made by consent on 21 October 2013 make provision for the father to spend time with the child each alternate Saturday at a contact centre. The orders under appeal incorporate those orders and relevantly address the conditions under which the father will spend time with the child on the alternate Saturday and Wednesday evenings. By the orders under appeal, supervision on the alternate Saturdays is to be undertaken by either a professionally accredited supervisor, the paternal grandmother or, if she is unavailable, a person agreed by the parties and failing agreement, the mother or her nominee.
As to Wednesday afternoons, the orders provide for a professionally accredited supervisor, retained at the expense of the father and failing that, the mother or one of her parents is to supervise, again, absent agreement that another person may do so. The father has not retained a professionally accredited supervisor and has nominated his mother as the supervisor for Wednesday afternoons. Notwithstanding that his Honour was satisfied that the paternal grandmother could supervise on alternate Saturdays, the mother has withheld her consent to the paternal grandmother being able to supervise on Wednesdays.
As a consequence of that decision, if the father wishes to spend time with the child on Wednesday, he must do so under supervision by the mother or one of her parents. Absent agreement as to the location, Wednesday afternoon time is to take place at the home of the maternal grandparents.
It is the father’s evidence that he is unwilling to spend time with the child at the maternal grandparents’ home “…if [the mother] or either of her parents are present and are the supervisors”. It is uncontroversial that from separation until June 2013, by agreement, the father regularly spent time with the child at the maternal grandparents’ home which is where she and the mother lived. However, the mother stopped contact, as a consequence of which the father commenced proceedings on 12 August 2013 for interim and final parenting orders with respect to parenting arrangements for the child. It would appear common ground that there is a history of family violence, evidenced at least by the father being charged, and I apprehend convicted of assaulting the mother. It is the father's evidence “… against the background of the history of conflict between me and [the mother] their presence as supervisors in effect, compounds an already difficult situation”.
Although the mother disputes that the situation is difficult, the tenor of the submissions made in relation to this application demonstrates that the situation is difficult.
In the event his appeal is allowed, the father proposes that in lieu of spending time with the child at the home of the maternal grandparents, it would take place at his workplace which is where changeover would also occur. In lieu of the mother or her parents, his mother would supervise.
Unless the orders are amended along the lines proposed by the father, he will continue to decline to spend time with the child on Wednesday. In other words, he will forego four hours of contact each week and only see her on Saturday. As was pointed out, the rationale for twice weekly contact would appear to be a desire by his Honour to develop the child’s relationship with her father. A reduction of four hours of contact a week would, logically, slow the pace at which the relationship is built. However, a reduction of four hours of contact each week would not, on the evidence available today, cause irreparable damage to their relationship.
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 (“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 will be discussed below.
Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case. I accept the submission made by the father’s solicitor that the father’s appeal was lodged in a timely away as was his application for expedition. The application of the subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay.That matter has already been addressed. And as I have earlier found, weighs in favour of expedition.
The next factor (c) concerns prejudice to the respondent. The mother made no submissions to the effect that she would be prejudiced if the appeal was expedited. I agree she would not be prejudiced if an order for expedition were made.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
Relevant circumstance is defined in rule 12.10A(2)(d). The submissions made by the solicitor for the father focused on the notion that the interim orders cause the father and child hardship in the sense that the interim orders have resulted in the father deciding not to spend time with the child on Wednesdays. That submission is accepted. It is also accepted that there would appear to be a logical inconsistency between the paternal grandmother being able to supervise on Saturday but not be the appropriate supervisor for Wednesday. These factors weigh in favour of expedition.
Subsection (f) concerns whether the case involves allegations of child, sexual or other abuse. This case concerns allegations of family violence which, given the amended definition of abuse now contained in the Act, triggers the application of the subsection. However, the interim orders provide for supervision, which the appeal does not seek to alter. As a consequence, the application of the subsection is moot.
Against these factors which would weigh in favour of expedition is the magnitude of the dispute and the orders which, if the father succeeded, would be sought in lieu of those made by his Honour. The difference is the identity of the supervisor and where the supervision would take place. There is presently a standoff between the parties, as a consequence of which the child is unable to see her father four hours each week. However, he sees her every Saturday, as a consequence of which I am not persuaded that the subject matter of the appeal is so significant that this appeal should be given priority to the detriment of other cases regularly listed and awaiting allocation in the normal course.
In a finely balanced decision, the application for expedition should be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on

27 February 2014.

Associate:

Date: 17 March 2014