Hakimi & Nasser
[2021] FamCAFC 40
•31 March 2021
FAMILY COURT OF AUSTRALIA
Hakimi & Nasser [2021] FamCAFC 40
Appeal from: Nasser & Hakimi [2021] FamCA 5 Appeal number(s): EAA 11 of 2021 File number(s): SYC 5345 of 2018 Judgment of: ALDRIDGE J Date of judgment: 31 March 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Appeal from final parenting orders – Where the applicant mother acted promptly in filing an application for expedition – Where there are serious issues of international relocation and whether the father should spend any time with the children – Where the nature of proceedings justify the appeal being expedited – Application granted. Legislation: Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules 2004 (Cth) Sch 3, r 12.10A
Division: Appeal Division Number of paragraphs: 18 Date of hearing: 16 March 2021 Place: Sydney Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Ryan & Seton Lawyers The First Respondent: Litigant in person The Second Respondent: The first respondent appeared on behalf of the second respondent Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
EAA 11 of 2021
SYC 5345 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS HAKIMI
Applicant
AND: MR NASSER
First Respondent
MS NASSER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
16 MARCH 2021
ORDERS MADE ON 16 MARCH 2021:
1.The first respondent is granted leave to file and rely on the affidavit dated 15 March 2021.
2.Appeal No. EAA 11 of 2021 be expedited.
3.Appeal No. EAA 11 of 2021 be listed for hearing in the Full Court sitting in Sydney commencing 24 May 2021.
4.Paragraph 1 of the first respondent’s Response to an Application in an Appeal, dated 16 March 2021, is to be heard with Appeal No. EAA 11 of 2021.
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 Hakimi & Nasser has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
On 16 March 2021, I made orders expediting the appeal in this matter. These are the reasons why I made that order.
The parties have three children who are presently aged, 5, 9 and 11. Their mother, who is applying for expedition, sought to have the children live with her in Country B. Further, whether the children were to live with her in Country B or in Australia, she sought orders that would provide for the children to have little or no contact with the father or the paternal grandmother.
On 19 January 2021, a judge of the Family Court of Australia made orders refusing the mother’s application to relocate with the children to reside in Country B, and instead made orders that the children live with the mother in Australia. By a series of cascading orders, the children were to commence seeing the father, who they had not seen for some three and a half years, first for short periods of supervised time, then to unsupervised time which gradually increased.
By the Notice of Appeal filed 16 February 2021, the mother has appealed against all final parenting orders made by the primary judge. The mother’s Application in an Appeal seeking expedition was filed on 8 March 2021, and the hearing listed on 16 March 2021.
I was informed by counsel for the mother that the second respondent, who is the paternal grandmother, had not been served with the Application in an Appeal and the supporting affidavits. The father explained that this was because the paternal grandmother had become very ill, and until recently, was in hospital in intensive care. The paternal grandmother remains very ill. In those circumstances, and given that the application before the Court is procedural in nature only, I determined that it was in the interests of justice for the matter to proceed in her absence. There is no way of knowing when the paternal grandmother will be in a position to deal with this application. Applications for expedition, by their very nature, must be heard and determined as quickly as possible.
APPLICATION FOR EXPEDITION
Section 94(2D)(j) of the Family Law Act 1975 (Cth) provides that an order can be made to expedite an appeal. Whilst r 12.10A of the Family Law Rules 2004 (Cth) does not apply to appeals, it none the less provides some useful guidance as to the matters that the Court should take into account. In this matter, the mother has acted promptly in bringing the application and submits that given the nature of the proceedings, which involved serious issues of relocation and whether the children should spend any time with the father at all, the appeal should be heard as quickly as possible so as to try and return some certainty to the children’s lives. There is much force in such a submission.
The mother also submits that the orders currently in force pose a risk of harm to the children. The primary judge did not accept the mother’s allegations that the father posed a risk. However, that finding is the subject of one of the grounds of appeal.
The Independent Children’s Lawyer did not oppose the application.
The father opposed any expedition of the appeal. The father said that he would be prejudiced if the appeal is expedited because he does not presently have the funds available to him to pay for legal representation at the appeal. The father also stated that if the appeal is expedited, the orders which require the children to spend time with him will no longer be complied with, thereby depriving him of the opportunity to build or rebuild a relationship with them.
As to the first, it is true that there are property settlement proceedings between the mother and the father which are yet to be finalised. A hearing has been listed for late March to determine whether there should be an interim distribution of property pending a final hearing. I infer therefore, that the conclusion of the property proceedings remains someway off, and that it is more likely that the appeal would come on for hearing, even if not expedited, before their conclusion.
As to the father’s second point, the fact that an appeal is on foot, or that an appeal has been expedited, does not stay the orders under appeal and, in the absence of a stay, the parties remain obliged to comply with the orders. An application for a stay of the orders has been listed for hearing by the primary judge on 23 April 2021.
Finally, the father submitted that the appeal should not be expedited because the orders, which provide for the children to spend time with the father, are working in that the children are warming to him. The father went on to say that the orders remaining in place will improve the chances of the children becoming well-adjusted, because it is normalising their relationship with both parents.
For the mother’s part, her evidence is to the contrary, in that the children do not wish to spend time with the father and it causes them unhappiness.
I am not in a position to determine which of these is in fact the case, although it is entirely possible that both parents are correct in what they observe in the children. The disagreement does however point to the appeal being heard sooner rather than later as being in everyone’s, but particularly the children’s, best interests.
However, if the father’s point is that the orders were correctly made by the primary judge, and that not expediting the appeal would improve his relationship with the children, is not something that can be taken into account on this application or indeed at the hearing of the appeal. The hearing of the appeal will focus on whether, having regard to the matters raised in the grounds of appeal, the primary judge made an error of fact or law, of a degree that requires the proceedings to be reheard.
I take into account the ages of the children. The youngest has just started school and the eldest will go to high school next year. The issue of whether they should see the father at all is something that should be determined as quickly as possible. Further, applications for international relocation of children should, generally speaking, be determined sooner rather than later because such applications by their very nature involve very substantial changes to the children’s lives, and delay of itself may have an effect on the outcome. In this case the outcome will directly affect the schools the children will attend.
Taking these matters into account, I was of the opinion that the interests of justice required expedition of the appeal. I made an order to that effect and directed that the appeal be listed in the Full Court sitting in Sydney commencing 24 May 2021.
In the father’s Response to the Application in an Appeal filed on 16 March 2021, he sought an order that the appeal be dismissed. He explained to me that he sought that order because it was in the best interests of the children that the appeal be dismissed at this stage. Therefore, I took it to be an application for summary dismissal of the appeal. That aspect of the father’s response will be listed for hearing at the same time as the appeal.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 31 March 2021
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