Grier & Grier

Case [2021] FamCAFC 83

FAMILY COURT OF AUSTRALIA

Grier & Grier [2021] FamCAFC 83

Appeal from: Grier & Grier [2021] FCCA 804

Appeal number(s):

NOA 18 of 2021

File number(s):

BRC 11873 of 2018

Judgment of:

TREE J

Date of judgment:

31 May 2021

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the parties consented to the application for expedition – Where the applicant has not acted unreasonably or without delay – Where any prejudice to the respondent has been obviated by her consent to expedition – Circumstances justifying the expedition of the appeal – Application granted – No order as to costs.

Legislation:

 Family Law Act 1975 (Cth) s 94(2D)

Family Law Rules 2004 (Cth) r 12.10A

Cases cited:

Sorbo & Soulos (2015) FLC 93-652

Division:

Appeal Division

Number of paragraphs:

18

Date of hearing:

In Chambers

Place:

Cairns

Solicitor for the Applicant:

Wilsons The Family Lawyers

Solicitor for the Respondent:

Alroe Somers & O’Sullivan Solicitors

ORDERS

NOA 18 of 2021
BRC 11873 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR GRIER

Applicant
AND:

MS GRIER

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

27 APRIL 2021

BY CONSENT THE COURT ORDERED ON 27 APRIL 2021:

1.That the hearing of the appeal filed on 29 March 2021 (as amended on 13 April 2021) be expedited.

2.That there be no order as to costs.

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 Grier & Grier has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

  1. By Application in an Appeal filed on 13 April 2021, Mr Grier (“the father”) seeks to expedite his appeal against certain interim orders made by the primary judge on 17 March 2021. Those orders appointed a new family report writer for the purposes of completing a family report for the impending final hearing of the parties’ parenting proceedings.

  2. Ms Grier (“the mother”) conceded the application for expedition, albeit says that she opposes the appeal itself. In light of that, and the matters I shall shortly detail, on 27 April 2021, I made an order in chambers for expedition, but reserved my reasons. These are my reasons.

    BACKGROUND

  3. So as to give context to this application, it is necessary to recite some brief background facts in these parenting proceedings which have a quite unfortunate history.

  4. The proceedings were commenced on 15 October 2018 by application of the father, who seeks a change in the primary care of the two children of the parties, X born in 2014, currently…

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AGLC
Grier & Grier [2021] FamCAFC 83
Case
[2021] FamCAFC 83
Decision Date

CaseChat Overview and Summary

In the matter of MR GRIER & MS GRIER, the father, as the applicant, appealed the orders made by the Family Court of Australia on 17 March 2021, which included the appointment of a new family report writer. The mother, as the respondent, conceded the application for expedition but opposed the appeal itself. The matter was heard by Tree J who, on 27 April 2021, granted the application for expedition and reserved his reasons. The court considered whether the application for expedition was justified under the circumstances, taking into account factors such as the applicant's conduct, the delay in making the application, any prejudice to the respondent, and the presence of relevant circumstances that warranted priority for the case.

The court noted that the parties had consented to the application for expedition, and the applicant had not acted unreasonably or without delay. Furthermore, the mother had consented to the expedition, thereby obviating any prejudice to her. The court also considered the significant delay in the proceedings, which had been ongoing for over two and a half years, and the need to resolve the matter as expeditiously as possible. The court found that the circumstances justified the expedition of the appeal, and therefore, granted the application.

In conclusion, the Family Court of Australia, in the matter of MR GRIER & MS GRIER, granted the application for expedition of the appeal filed by the father. The court found that the circumstances justified the expedition, taking into account the parties' consent, the applicant's conduct, and the need to resolve the matter expeditiously. The court made no order as to costs. The form of the order is subject to review and variation in accordance with the Family Law Rules 2004 (Cth).

Orders

Orders of the court

NOA 18 of 2021

BRC 11873 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR GRIER

Applicant

AND:

MS GRIER

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

27 APRIL 2021

BY CONSENT THE COURT ORDERED ON 27 APRIL 2021:

1. That the hearing of the appeal filed on 29 March 2021 (as amended on 13 April 2021) be expedited.

2. That there be no order as to costs.

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).

Background

Background to the litigation

Ms Grier (“the mother”) conceded the application for expedition, albeit says that she opposes the appeal itself. In light of that, and the matters I shall shortly detail, on 27 April 2021, I made an order in chambers for expedition, but reserved my reasons. These are my reasons.BACKGROUND So as to give context to this application, it is necessary to recite some brief background facts in these parenting proceedings which have a quite unfortunate history. The proceedings were commenced on 15 October 2018 by application of the father, who seeks a change in the primary care of the two children of the parties, X born in 2014, currently aged six years and Y born in 2016, currently aged four years (“the children”), from the mother to himself. Both children are therefore quite young, and the litigation over them has been on foot for some two and a half years. The matter proceeded to a final hearing before the late Judge Andrew on 10 and 11 October 2019, albeit went part heard, and was listed to conclude on 1 and 2 April 2020. As a result of the Covid-19 pandemic, the resumption of the trial was adjourned to a further two days of hearing on 21 and 22 September 2020. On 22 September 2020, the hearing of the trial was completed and the decision reserved, subject to further written submissions from the parties. However, before that decision was delivered, his Honour passed away, and a rehearing was ordered. That rehearing was listed for four days to commence on 4 May 2021 before the primary judge. However it has now been adjourned, given that the primary judge stayed her orders of 17 March 2021, pending the appeal from them being determined, which made a trial in May practically impossible. During the proceedings, Mr C, a family report writer, prepared a family report dated 26 February 2019 and he attended and gave evidence in the 2020 trial. On 8 February 2021, the mother filed an application in the proceedings seeking that another family report writer, namely Ms B, be retained to prepare an updated family report for the upcoming trial. That application was resisted by the father. On 25 February 2021, the contested interim application was heard by the primary judge, and on 17 March 2021, her Honour made a raft of orders which included appointing Ms B to prepare an updated family report for the trial. On 29 March 2021, the father filed a Notice of Appeal against all of the orders made by the primary judge on 17 March 2021, which included procedural trial directions. On 13 April 2021, the father filed an Amended Notice of Appeal which sought to appeal only those orders relating to the appointment of the new family report writer. On the same day, the father also filed this application for expedition.THE EXPEDITION APPLICATION Whilst the power to expedite an appeal is found in s 94(2D) of the Family Law Act 1975 (Cth), there is no statutory or regulatory articulation of the relevant considerations for expedition, such as is provided by r 12.10A of the Family Law Rules 2004 (Cth) in relation to trials in the Family Court. However the matters articulated in that rule may be relevant, and certainly inform the sorts of matters which the court may consider (Sorbo & Soulos (2015) FLC 93-652). Those matters include:(a)whether the applicant has acted reasonably and without delay in the conduct of the case; (b)whether the application has been made without delay;(c)any prejudice to the respondent; (d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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