GORMAN & HUFFMAN - [2015] FamCAFC 127

FAMILY COURT OF AUSTRALIA

GORMAN & HUFFMAN

[2015] FamCAFC 127

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite an appeal against final parenting and property orders – Whether a case should be given priority to the detriment of other cases – Where the nature of the appeal justified priority to this matter – Application granted – Where the appeal is to be heard together with an appeal of an earlier costs order.

Family Law Act 1975 (Cth) s 75(2), s 94(2D)(J)

APPELLANT:

Ms Gorman

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Mr Huffman

Legal Aid NSW

FILE NUMBER:

PAC 3882

2011

APPEAL NUMBER:

2015

DATE DELIVERED:

3 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

3 June 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 April 2015

LOWER COURT MNC:

[2015] FamCA 317

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Connor

SOLICITOR FOR THE APPELLANT:

Martin Street Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maddox

SOLICITOR FOR THE RESPONDENT:

Caldwell Martin Cox Solicitors

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The appeals EA 61/2015 and EA 71/2014 be heard together.
Those appeals be expedited.
Subject to any further direction by the Appeals Registrar both appeals are listed for hearing before the Full Court on 17 August 2015.
The solicitors for the parties are directed to contact the Appeals Registrar for an urgent procedural hearing.
Costs of the application to be costs in the appeals.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gorman & Huffman 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 61 of 2015
File Number: PAC 3882 of 2011

MS GORMAN

Appellant

And

MR HUFFMAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 14 May 2015, Ms Gorman (“the mother”) seeks an order that her appeal against parenting orders made by Hannam J on 29 April 2015 be expedited. The proceedings concern the parties’ three children: the child L born in 2006, the child S born in 2008 and the child Z born in 2010. Their father, Mr Huffman (“the father”), sought orders that the children live with him and spend limited time with the mother.
The mother contended for orders that the children live with her and spend specified time with the father. The trial judge ordered that the father have sole parental responsibility for the children, that they live with him and spend no time at all with the mother for 12 months from the date of the orders. Thereafter, the children are to spend time with their mother, each second month, at a supervised contact centre.
On 29 May 2015 the trial judge heard an application that the orders made on 29 April 2015 be stayed pending determination of any appeal. On 2 June 2015 Hannam J refused that application.
By Notice of Appeal filed on 1 May 2015 the mother seeks to overturn the findings made by the trial judge and seeks that the matter be remitted to another judge for rehearing.
Property proceedings between the parties were heard at the same time as the parenting proceedings. The mother was ordered to pay $424 613 to the father within six weeks of the orders. On 12 May 2015 the trial judge stayed the operation of the property orders on the condition that the mother pay to the father $250 000 within 12 weeks of the making of that order.
In default, the parties were required to take all steps necessary to sell the former matrimonial home at O Road, Suburb P (“the P property”) and after payment of costs associated with the sale, pay $250 000 to the father, $174 613 to a controlled monies account, discharge the mortgage and then the balance, if any, is to go to the mother. The mother has also appealed against the property orders.
The father consents to the appeal being expedited. The Independent Children’s Lawyer, who had been appointed to represent the children’s interests before the trial judge, has appeared today and does not oppose expedition. She has, however, helpfully pointed out that the draft appeal index appears to go beyond the documents that were before the trial judge and would need some consideration.
It is helpful to provide some brief facts taken from the trial judge’s reasons. The mother was 42 at the time of trial and the father was 43. They commenced a relationship in 1999 and married in 2005. They were divorced in March 2012. For the duration of the relationship the parents and the children lived in the P property. It had been purchased by the mother in January 1998 using her own funds for some of the purchase and borrowing the rest. The father moved out of the P property in December 2010 shortly after Z was born.
Notwithstanding this, the parties each describe separation as having occurred in early 2009. The circumstances leading to the conception of Z were controversial. The father commenced proceedings on 22 August 2011. On 5 October 2011 the parties agreed on interim parenting orders. L and S were to live with the mother and were to spend alternate weekends, including Saturday night, with the father as well as spending two hours with him each Wednesday. On 22 August 2012 the final hearing of the parenting proceedings was due to commence in the Federal Magistrates Court.
In his affidavit evidence filed in those proceedings the father had made serious allegations of violence against the mother. The mother had not made any allegations of violence against the father. The parties agreed on the outcome and asked the Federal Magistrate to make consent orders for the children to live with the mother and spend alternate weekends with the father. Having regard to the allegations made by the father, however, the Federal Magistrate declined to make the consent orders.
In accordance with the then current orders, the children spent the next usual Wednesday time with the father. The mother alleges, and the father denies, that on that occasion there was an incident at changeover during which the father harmed L. Thereafter, further difficulties arose between the parties which escalated, and L’s behaviour at school deteriorated. The hearing before Hannam J commenced in October 2014 and lasted for 12 days in October and December 2014 and January 2015.
The father contended that throughout the relationship he had been the victim of serious domestic violence marked not only by threats against him but by threats, he said, that the mother would kill or harm the children if he did not do as she wished. He also alleged that the mother had a significant personality disorder with prominent narcissistic, anti-social and borderline personality traits. These factors led to his contention that the children should live with him and only spend limited time with the mother. The Independent Children’s Lawyer generally supported the father’s contentions.
The mother disputed the father’s case. She alleged that the father was in fact violent to her and that any violence on her part was simply in response to his. She also alleged that the father and his new wife, who he had married in May 2012, had abused the children when they were spending time with them and that the father and his new wife were accordingly a risk to the children.
From late 2006 to mid-2008 the father recorded conversations between him and the mother. He tendered transcripts which he asserted demonstrated the mother’s violent, coercive and threatening behaviour.
The trial judge found difficulties in the mother’s explanation of the recordings and aspects of her evidence. Regard was also had to the matters that the parties had told the expert psychiatrist in the case and the expert’s opinion. Essentially, the trial judge preferred the evidence of the father and found the mother to be violent as alleged. The trial judge then went on to consider and to accept the opinion of the psychiatrist that the mother suffered from a significant personality disorder. These two findings led to a finding that there would be an unacceptable risk of harm to the children if they were to remain living with the mother. As I have said, the mother appeals against these findings.
As to property, the significant dispute between the parties was the financial contribution made by the father. The mother asserts that they only commenced to cohabit at the start of the marriage and that the father made no financial contributions before that date. Again the trial judge preferred the father’s evidence to the contrary. This led to a finding that the mother’s contribution to the property was 55 per cent and the father’s was 45 per cent. Having regard to the parenting orders that were to be made giving the father the care of the children, an adjustment under section 75(2) of the Family Law Act1975 (Cth) (“the Act”) was made in his favour giving him a distribution of 55 per cent of the parties’ net assets and the mother 45 per cent. The mother appeals against these orders. It can easily be seen that the issues as to property are closely connected with the parenting issues.
Section 94(2D)(j) of the Act provides, inter alia, that a judge of the appeal division may make an order to expedite the hearing of an appeal. The essential issue is whether the hearing of this appeal should be given priority over the hearing of other appeals including other appeals involving parenting matters. The mother has acted promptly in lodging her appeal and bringing this application. The father consents to the application and the Independent Children’s Lawyer does not oppose it.
This case concerns the living arrangements of three young children where serious allegations as to their safety have been made by each of the parties. There has been a finding that the children, who had been living with the mother until the date of the orders of Hannam J, are at a serious risk of harm in her care and that the children should live with their father and not see their mother for at least 12 months. This is a very significant finding with serious consequences.
The refusal of the stay does not remove the urgency from the appeal. Whilst it was true that the parenting orders of the trial judge are based on the children’s best interests as determined by the trial judge, and that those orders are now in place, it is desirable that any reconsideration of those orders that might take place should do so sooner, rather than later. Significant delay before another possible significant change in the parenting arrangements is not in the children’s best interests.
The Notice of Appeal, though apparently drafted by the mother herself, appears to raise substantial issues for consideration. They cannot be said at this stage to be entirely without merit. Counsel for the wife who appeared on this application, but who did not appear at the hearing at first instance, foreshadowed an application for substantial amendments to be made to the Notice of Appeal. Counsel for the wife handed up a proposed draft which was incomplete due to him and his solicitors not yet having access to all relevant documents.
The proposed Amended Notice of Appeal would raise a number of other grounds not raised by the original Notice of Appeal including, critically, the admissibility of the recordings which played a critical part in the trial judge’s findings. It is important to record that there may be an issue as to whether or not an appeal against the decision to admit those documents is out of time and whether or not an extension of time to appeal against that decision would be required, given that the foreshadowed Amended Notice of Appeal was only provided to the father and the Independent Children’s Lawyer shortly prior to this hearing. No final view was expressed by either of the parties as to whether any such appeal would require leave.
It is necessary to take into account consideration of the merits of the appeal, although that is always a difficult thing to do at an early stage of an appeal. The trial judge on the stay application conducted a considerable analysis of the grounds of appeal in the Notice of Appeal and considered that the prospects of success on any appeal were poor. Her Honour was not taken to the foreshadowed Amended Notice of Appeal. As I have said, the Notice of Appeal raises substantial issues. Having regard to the foreshadowed Amended Notice of Appeal, it cannot be said that the appeal is entirely without merit. Taking into account all those matters, it is appropriate that the hearing of the appeal be expedited.
On 20 May 2014 Foster J made costs orders against the father who has appealed against those orders. The appeal is ready for hearing and awaits a date. It is sensible and convenient for both appeals to be heard together. The parties agree that that is an appropriate course and orders will be made for that to occur.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 3 June 2015.

Associate:

Date: 30 June 2015