Grier & Grier

[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 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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

13. 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.

14. A "relevant circumstance" includes:

    (a)whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

    (b)whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

    (c)whether the applicant is suffering financial hardship that;

    (i)is not caused by the applicant; and

    (ii)cannot be rectified by an interim order;

    (d)whether the continuation of interim orders is causing the applicant or a child hardship;

    (e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

    (f)whether the case involves allegations of child sexual, or other, abuse; and

    (g)whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

15. Here there is no suggestion that the father has not acted reasonably and without delay either in the litigation or in the bringing of this application, and any prejudice to the mother has been obviated by her consent to expedition.

16. As to the relevant circumstances, few if any of the matters identified in [14] above are established here, however there is the overwhelming fact that the appealed order is now stayed, and so long as it remains so, precludes the parties even embarking upon a trial. Given that the final hearing – which has now been adjourned – first commenced on 10 October 2019, some one and a half years ago, and through no fault of the parties, has been unable to be concluded, but rather has needed to be re-heard, I am well satisfied that special circumstances exist. Moreover, those circumstances demand that this case be given priority to the possible detriment of other cases. In saying that I am particularly mindful of the young age of the children, and that the litigation, which seeks a change in primary care of the two young children, has been on foot for something in the order of two and a half years.

17. For those reasons I made the order for expedition which I did on 27 April 2021.

18. I also made an order that there be no order as to costs which was sought by consent by the parties.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:           31 May 2021