GOULDER & JESSETT
[2019] FamCAFC 158
•17 September 2019
FAMILY COURT OF AUSTRALIA
| GOULDER & JESSETT | [2019] FamCAFC 158 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR EXPEDITION – Where the mother seeks expedition of his appeal against interim parenting orders – Where the substantive proceedings are listed for final hearing on 18 December 2019 – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D) Family Law Rules (2004) r 12.10A |
| Moxon & Moxon [2010] FamCAFC 67 |
| APPELLANT: | Ms Goulder |
| RESPONDENT: | Ms Jessett |
| THE INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi |
| FILE NUMBER: | NCC | 179 | of | 2018 |
| APPEAL NUMBER: | EAA | 86 | of | 2018 |
| DATE DELIVERED: | 17 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 17 September 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 August 2019 |
| LOWER COURT MNC: | [2019] FCCA 2440 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr P Williams |
| SOLICITOR FOR THE APPELLANT: | Harris Kelly & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Bithrey |
| SOLICITOR FOR THE RESPONDENT: | Warwick Hill Lawyer by telephone |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Adam Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi |
Orders
The application for expedition filed on 11 September 2019 is dismissed.
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 Goulder & Jessett 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: EAA 86 of 2018
File Number: NCC 179 of 2018
| Ms Goulder |
Appellant
and
| Mr Jessett |
Respondent
and
| The Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Ms Goulder (“the mother”) seeks expedition of the hearing of her appeal against interim parenting orders made by Judge Costigan on 30 August 2019.
Mr Jessett (“the father”) opposes the mother’s application for expedition as does the Independent Children's Lawyer.
The parties are in dispute as to appropriate parenting orders, specifically overnight contact with the father, in relation to their two children who are aged four and three years (“the children”).
The parties separated in June 2016 and the children remained living with the mother. The mother makes allegations of serious family violence and other allegations against the father and in 2017 an ADVO was made in protection of the mother and the children. That order was expressed to expire early in 2020.
In March 2018 orders were made for the children to spend time with the father for two hours each week, with the time being supervised. Further orders were made in May 2018 which increased the time that the children spent with the father and the time remained subject to supervision. In December 2018 following an interim hearing, the orders were again varied with the children spending unsupervised time with the father from 10 am until 2 pm each Sunday. The children have spent time with the father in accordance with these orders made from time to time.
The primary judge had the assistance of a Family Report which was released to the Court and the parties in January 2019, an Independent Children's Lawyer was appointed shortly afterwards and a final hearing of the parenting disputes between the parties set down for three days commencing on 18 December 2019.
In June 2019 the father filed an application seeking interim orders including an order that the children spend each alternate weekend with him from 9am Saturday until 5 pm on Sunday. That application was heard by the primary judge on 10 July 2019 who made orders and delivered reasons on 30 August 2019.
Her Honour ordered that from 3 November 2019 the children spend time with the father each alternate weekend from 9 am Saturday until 12 noon on Sunday and, it appears that in the alternate weeks, the children spend time with the father each alternate Sunday from 10 am to 2 pm. Her Honour’s intention as reflected in her reasons is that she intended the children to have two periods of overnight time with the father prior to the final hearing.
It is against these and the balance of the orders that the mother appeals.
Expedition
Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals although no criteria or considerations for making that order are provided within the section. Recourse is often had to r 12.10A of the Family Law Rules (2004) (“the Rules”) which addresses applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
The considerations are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent to the application; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases to its possible detriment.
The issue here is whether there is a relevant circumstance which would cause this matter to be given priority over other matters listed for appeal and which may cause other similar matters to be displaced in the hearing list.
The mother’s affidavit filed 11 September 2019 in support of her application for expedition speaks strongly of her emotional distress about the orders which provide for overnight time. There seems no dispute that the mother has emotional difficulties and suffers from chronic PTSD for which she is receiving treatment and support. For the purposes of this application I accept that the provision overnight orders and, perhaps the balance of them have caused her significant distress from which she has been unable to shield the children. It was submitted that the prospect of facilitating overnight time with the children even on two occasions would was sufficiently distressing for her that it may have an impact on her mental health and thereby an impact on her capacity to look after the children.
It was contended for the mother that there was evidence before the primary judge that ought to have caused her to hesitate before ordering overnight time and rather wait for a full hearing in which the issues as to the mother’s response to any overnight time with the father against the backdrop of her emotional issues could be properly assessed. The mother said and it was adverted to in the reports before her Honour that overnight time may indeed cause such distress that it would impact on her capacity.
Finally it was said that the mother’s own evidence of how she reacted to the orders made is a demonstration in part of the potential impact of overnight time between the children and the father.
The Respondent in opposing the application argued that the evidence does not enable this court to extract the level of distress which is obviously experienced by the mother from the prospect of overnight time with the father from her general distress arising from the history of the relationship and her other emotional difficulties. It was further argued that it is not the operation of the orders per se but the mother’s anticipation of complying with the orders which provide for overnight time which is causing her distress and it was argued with some cogency in my view that the distress will not abate because the father is asking, whether or not the appeal is expedited, for overnight time to be considered at the final hearing.
It is not without importance that the order in respect of which the appeal is focused and which has brought about this application for expedition is one which is of limited duration and which is expressed to expire before the final hearing.
Finally the Independent Children’s lawyer argues in opposition to the application that these children need a final hearing and that final hearing should not be jeopardised by allowing the expedition to possibly displace that hearing date.
I am unpersuaded that this is a case in which the appeal should be given priority of hearing, not only because it would displace other similar matters which are waiting to be heard, but even if this matter was to be expedited, it is unlikely to be heard and determined before 18 December 2019 which is when the parenting issues will be finally heard and it would be not in these children’s interests as submitted by the Independent Children’s Lawyer to have that final hearing displaced and thus the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered ex
tempore on 17 September 2019.
Associate:
Date: 17 September 2019
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