Gladwell and Gladwell
[2020] FamCAFC 16
•29 January 2020
FAMILY COURT OF AUSTRALIA
| GLADWELL & GLADWELL | [2020] FamCAFC 16 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Final parenting orders change child’s living arrangements in significant fashion – Where orders implemented – Appellant has health issues and stress of litigation is unhelpful – Respondent supports expedition – Balance of factors do not justify this appeal being given priority over other appeals – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Judiciary Act 1903 (Cth) s 78B Family Law Rules 2004 (Cth) r 12.10A and r 24.05(3) |
| APPLICANT: | Ms Gladwell |
| RESPONDENT: | Mr Gladwell |
| FILE NUMBER: | SYC | 2527 | of | 2015 |
| APPEAL NUMBER: | EA | 121 | of | 2019 |
| DATE DELIVERED: | 29 January 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 29 January 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 731 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Duane |
| SOLICITOR FOR THE APPLICANT: | NLS Law |
| SOLICITOR FOR THE RESPONDENT: | Jacqui Griffin |
| SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: | Legal Aid NSW |
Orders
That the Application in an Appeal filed on 20 December 2019 be dismissed.
That the costs of the application be costs in the appeal.
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 Gladwell & Gladwell 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 SYDNEY |
Appeal Number: EA 121 of 2019
File Number: SYC 2527 of 2015
| Ms Gladwell |
Applicant
And
| Mr Gladwell |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
By an Application in an Appeal filed on 20 December 2019, Ms Gladwell (“the mother”) seeks to expedite her appeal against final parenting orders, initiated by a Notice of Appeal filed on 8 November 2019. Mr Gladwell (“the father”) is the respondent. He supports the application. The Independent Children’s Lawyer (“ICL”) is neutral on the point.
The parenting orders concern the parties’ child, who is currently seven years of age (“the child”). The orders provide for the child to live with the father and for the father to have sole parental responsibility for him. It is further provided that the child spend five nights per fortnight during school term with the mother and half of all school holidays. Prior to the making of these orders, the child lived with the mother and spent time with the father.
BACKGROUND
In order to understand the context within which the mother makes this application, it is necessary to refer to some brief background facts. These facts have been taken from the trial reasons and the material filed by the parties, albeit very late and contrary to r 24.05(3) of the Family Law Rules 2004 (“the Rules”), in this application.
The parties married in early 2011 and the child was born in late 2012. The parties separated in 2014. The trial was heard by the primary judge over five days in October 2018. However, the matter was reopened upon the application of both parties, resulting in a further hearing in September 2019, for some three days.
As the trial reasons demonstrate, the mother was unrepresented on the last day of the hearing, on which occasion, as I understand it, submissions were made and there was an apparently unsuccessful attempt by the mother to adduce further medical evidence.
The orders sought by each of the parties changed significantly between the two phases of the hearing. During the initial phase, the father raised no issue in relation to the child living with the mother, but rather the focus of the trial was on the child’s time with the father. At the second phase of the hearing, the mother made plain her willingness to increase the child’s time with the father whereas the father now sought sole parental responsibility and for the child to live with him [4]. At the second phase, the ICL sought orders for the child live with the father and that there be a moratorium on the child spending time with the mother, followed by supervised time with her, transitioning to unsupervised time. Self‑evidently, the issues at trial were very serious.
At trial, the mother made allegations of family violence, including that the father was coercive and controlling toward her through stalking, financial control and by undermining her to health professionals and teachers involved with the child’s care. The mother also said that the father intentionally “copycatted” the activities she enjoyed with the child as a means of intimidating her and sent her unsolicited gifts, which the father said were gifts to her from the child. The mother made reports to the police and involved the child in interviews with police regarding the father’s conduct.
The primary judge found that the father had not engaged in family violence. His Honour found that the mother’s evidence in support of some of the allegations was “strongly misleading” [71] and “highly inconsistent” [87]. His Honour also found that the mother “demonstrated a troubling lack of insight (or lack of candour)… as to the consequences of taking [the child] to the police in this manner” [114].
Whilst judgment was reserved, as I have already mentioned, both of the parties applied for the final hearing to be reopened, which it was. That further hearing took place in September 2019. This second phase concerned events that occurred after the first phase had completed, predominately relating to the mother’s involvement of the child in further interviews with police and disputation between the parties concerning the child’s health, a matter which is a recurrent theme in the trial reasons and in the affidavit evidence adduced in the application for expedition.
It is said that the mother failed to adhere to orders requiring her to inform the father about matters relating to the child’s health and to obtain his consent before making medical appointments. The frequency and nature of the child’s attendances at hospitals and upon medical practitioners is a significant area of disagreement between the parties and was an important issue at trial. In any event, the mother alleged that some of the father’s communication with her during this time constituted harassment. There was an incident at the offices of a medical specialist whom the mother had taken the child to see, where, amazingly, police attended having been contacted by the mother’s support worker because she said that the father appeared “agitated or angry” [118].
Orders were made in July 2019 to govern arrangements for the child to see a different medical specialist. Unfortunately, despite these orders, the parties faced many issues in their joint handling of the child’s medical care and apparently failed to successfully keep one another on the same page with matters such as medical appointments or administering medication to the child. These are also recurrent themes of the affidavit evidence adduced by the mother in support of expedition.
The appeal and expedition application
On 8 November 2019, the mother filed a Notice of Appeal against all the final orders. The Notice of Appeal presents four grounds of appeal. Properly understood, these challenge the adequacy of the trial reasons concerning the application of s 60CC(3)(d), which is a matter of real significance in this case. Next, that his Honour erred in law by ordering that the child live with the father and that the father have sole parental responsibility, as both decisions are said to be based on insufficient evidence. The final ground concerns Orders 30 and 31, which operate to restrain the mother from presenting the child to the police, other than in case of an emergency. The mother contends that these orders are in conflict with various state legislative provisions.
Ultimately, the mother’s primary concern is that the child returns to her care. In the face of submissions by the ICL that the challenge to Orders 30 and 31 may require Notices being given to the various State and Territory Attorneys pursuant to s 78B of the Judiciary Act 1903 (Cth), the mother indicated that if the price for expedition is that this ground be abandoned, she would accordingly abandon the ground. The point being that the provision of Notices and procedural fairness to those on the receiving end may require additional time before the appeal could be called on for hearing and make expedition somewhat illusory.
At this point, one must take a cautious approach to the assessment of merits of an appeal, and it is sufficient to observe that the grounds raise significant issues concerning the welfare of a child and are not on the face of it, doomed to failure. These matters weigh in favour of expedition. But that of course is not the end of the matter.
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that an order may be made to expedite an appeal by a Full Court of the Family Court, or a judge of the Appeal Division, or any other judge if a judge of the Appeal division is not available.
Whilst there is no provision in the Act or the Rules which specifically sets out the criteria for deciding expedition of an appeal, r 12.10A of the Rules deals with expedition applications in relation to trials. The criteria contained in that rule provides useful guidance for the approach to be adopted when determining expedition of an appeal, over and above consideration of the merits of the proposed appeal.
In support of the mother’s application for expedition, she cites her concerns about the child’s emotional and psychological health in being separated from her, in circumstances where she had been the child’s primary carer from his birth. The mother says that the child is not coping with being separated from her. She provided a detailed, and in my view unnecessarily prolix, affidavit about this issue. Some of the evidence relied upon by her was plainly irrelevant. What the mother has been unable to do though, and perhaps it cannot be done, is identify that the child’s behaviours as recounted by her, are more than one might anticipate where a child has been removed by order from his primary carer and is now seeing less of his primary carer. I accept the mother’s evidence that the child’s behaviours that she attributes to separation from her create genuine concern for her. However, it is reasonably likely that the behaviours reflect transition and no more than that. If they are more profound as the mother fears, they may be, the question to be answered is whether bringing the appeal on a couple of months earlier than in the ordinary course is likely to result in a material change in the child’s emotional welfare in that period. I cannot see that it would.
The health of a party may constitute a relevant circumstance pursuant to r 12.10A(4)(a). The mother has been undergoing treatment for cancer since early 2017, which she was advised in December 2018 had metastasised. The mother continues to undergo oral chemotherapy and on present indications, will need to do so for the rest of her life. While the mother was recently advised that her cancer appears to be in remission, she believes that the ongoing court proceedings impact on her ability to cope with her oral chemotherapy and she wishes to bring the proceedings on for hearing sooner rather than later (Mother’s Affidavit filed 20 December 2019, paragraph 15). In support of this proposition, the mother relies on a letter of her treating oncologist, who supports her application for expedition and expresses the opinion that any delays in the proceedings could adversely impact on the mother’s health. Although what that medical evidence does not address, is what a difference of a couple of months between an appeal that is brought on in the ordinary course and an expedited hearing might mean in terms of the mother’s health and prognosis.
I understand that prolonged litigation is stressful for all involved, and that the mother of course is facing additional stressors in relation to serious health issues which may be conflated by the ongoing litigation in this matter. However, although the prolonged litigation is undoubtedly a source of stress, the question for me is whether there is any real difference in terms of that stress and its impact on, in this instance, the mother, if the matter is expedited. My understanding is that the difference between an expedited appeal, unless for example if the appeal was to be brought on next week which would not be possible, and an appeal brought on in the ordinary course, is probably no more than a few months. There is insufficient evidence before me that that difference of a couple of months will make any difference to the mother’s diagnosis or her ability to deal with it.
One cannot fail to appreciate that the evidence adduced in the mother’s affidavit is of significant ongoing disputation between the parties in relation to the child’s care, particularly his medical treatment, and there is nothing that suggests that that stressor is going to abate irrespective of whether this appeal is brought on sooner than the ordinary course.
The effect of this is that although the mother’s health issues weigh in favour of expedition, they are not so persuasive that they outweigh other matters which do not support it.
Notwithstanding that the father supports expedition, because he too would like to be freed from the strains and stressors and, he accepts that the mother has serious health issues, I am not persuaded that the facts of this appeal justify it, in effect, jumping the queue of other appeals that have already been filed and which would come on ahead of this appeal in the ordinary course. Expedition is ultimately a comparative exercise involving cases already filed compared to the urgency of the case under consideration. There will be other appeals that have been filed where children’s living arrangements are in issue and have involved a change in residence for the subject child. On balance I am not persuaded that I should disturb the cases that are awaiting an appeal hearing so as to prioritise this one.
Conclusion and Costs
The application for expedition will be dismissed.
The costs of the application will be costs in the appeal.
I certify that the twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 January 2020.
Associate:
Date: 30 January 2020
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