Heaton and Heaton
[2014] FamCAFC 248
•21 November 2014
FAMILY COURT OF AUSTRALIA
| HEATON & HEATON | [2014] FamCAFC 248 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition – Where the father seeks to appeal an order allowing the mother to relocate the children – Where the children have been subject to extensive litigation – Where the mother opposes expedition – Whether the factors referred to in r12.10A of the Family Law Rules 2004 would support an application to expedite in this instance – Where the father filed his application without delay – Where any financial prejudice to the mother is outweighed by other factors – Where the advantage of an order for expedition is that it will allow the children to live in permanently settled living arrangements – Application for expedition granted. |
| Family Law Act 1975 (Cth): s 94(2D) Family Law Rules 2004 (Cth): r 12.10A |
| APPLICANT: | Mr Heaton |
| RESPONDENT: | Ms Heaton |
| FILE NUMBER: | NCC | 1835 | of | 2010 |
| APPEAL NUMBER: | EA | 130 | of | 2014 |
| DATE DELIVERED: | 21 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 November 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2014 |
| LOWER COURT MNC: | [2014] FamCA 761 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Tony Cox Lawyers |
Orders
That Appeal EA 130 of 2014 be expedited.
Subject to further direction by the Eastern Appeals Registrar Appeal EA 130 of 2014 be listed for hearing before the Full Court on 19 March 2015.
That costs of this application will be costs in the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaton & Heaton 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 130 of 2014
File Number: NCC 1835 of 2010
| Mr Heaton |
Applicant
And
| Ms Heaton |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
This is an application by Mr Heaton (“the father”) for expedition of an appeal in relation to final parenting orders made by Hannam J on
5 September 2014.
Her Honour’s orders allowed the mother to relocate the parties’ children from Sydney to Town P on the mid north coast. They provide for the children to live with the mother and to spend time with the father in Sydney two weekends each school term and on other occasions in Town P, the precise details of which are set out in the orders. The orders also address the children’s arrangements during the school holidays.
The respondent to the application is Ms Heaton (“the mother”). She opposes the application for expedition.
Background facts
So as to give this application context it is necessary to record a few seemingly uncontroversial facts. These are generally taken from her Honour’s reasons and otherwise from the affidavits filed by the parties in this application.
They met in Town P in 1997 and were married in Sydney in 2000. They have lived in Sydney since that time.
The two children, who are the subject of the appeal, are E who was born in 2004 and J who was born in 2005. Throughout the marriage, the mother was the primary caregiver with the father employed full time.
When the parties separated in 2009, they continued to live in their family home with the children.
In July 2010, the mother filed an Initiating Application in which she sought both parenting and property settlement orders.
It would seem there was a dispute over Christmas 2010, which had its genesis in the mother taking the children to Town P, where she has family, but without the father’s consent. At some stage, and it is not entirely clear to me when, the mother formed the view that she wanted to return to live in Town P with the children.
Some months later, that is, later than Christmas 2010, the mother commenced a relationship with Mr T, who is her partner.
In 2011, interim orders were made in the Federal Magistrates Court (now Federal Circuit Court) which provided for the children to reside in what is described in the reasons for those orders as a “nesting order” whereby the children lived in the family home and the parties moved in and out of the home on a weekly basis to care for them separately.
Final parenting orders were made in March 2012. The orders required that the mother move out of the family home and provided she resided within a 15 kilometre radius of where the children attended school in Sydney they would live with their parents on a week about basis. The mother remained within the defined radius and the week about arrangement continued, the only change being that, during the weeks the children lived with the mother, they lived in a serviced apartment. When the children were with the father in the family home, the mother returned to Town P.
The mother appealed those orders, which appeal was heard in August 2012. The appeal was successful and the parenting orders were set aside but continued, pending the matter being re-determined. The Full Court remitted the matter to the Federal Magistrates Court, who subsequently transferred the proceedings to the Family Court.
The remitted and transferred proceedings came before Hannam J for hearing in June 2014. Before her Honour, the father sought to continue the week about arrangement, predicated on the children residing in Sydney. The mother maintained her stance that it was in the children’s best interests that she be permitted to relocate them to Town P and that the children spend time with the father during school term for two weekends and at any time that the father is able to be in Town P and for half the school holidays. The orders ultimately made by her Honour on 5 September 2014 largely accord with the proposals advanced by the mother.
The father filed a Notice of Appeal on 11 September 2014. He seeks that the appeal be allowed and that Orders 1, 3 and 4 made by Her Honour be set aside and the matter remitted for a rehearing.
On 24 October 2014, the father filed this application for expedition and an affidavit in support.
The mother filed her Response on 20 November 2014 and her affidavit in support of the response. As was indicated earlier, it is the mother’s position that the father’s application for expedition should be dismissed.
Discussion
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the Appeal Division or another judge if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Family Law Rules 2004 (Cth) (“the rules”) which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A deals with applications for an expedited trial. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. It is obviously apposite to an application such as this. The potentially relevant factors referred to in the rule which in my view are relevant for this application will be discussed seriatim.
Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of their case. The appeal was lodged in a timely way, as was the application for expedition. The application of the subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay. That issue has already been addressed and, to the extent there are any aspects of it not already covered, this subparagraph also weighs in favour of expedition.
The next factor, sub-paragraph (c), concerns prejudice to the respondent. The father’s evidence is to the effect that the mother would not be prejudiced if the appeal was expedited. It is his position that it would be to the mother’s advantage to have the proceedings regarding the children resolved as quickly as possible. He adduces evidence that she is able to financially meet the probable costs associated with her role as a respondent in an appeal, including one that is expedited.
In submissions by counsel for the mother, it was argued that financial prejudice that would be visited upon the mother if she needed to meet necessary legal expenses sooner than the probable nine or 10 months extra time she might have if an order for expedition was not made. However, the mother has filed an affidavit in support of her opposition to the application for expedition and does not there depose to matters which would support the submission concerning financial prejudice to her if an order for expedition was made. Reference was also made by counsel for the mother to [57] and [58] of the primary judge’s reasons. Those paragraphs deal with the children’s views concerning the week about living arrangement imposed by the interim parenting orders. It is fair to say that, if her Honour’s findings concerning [57] and [58] withstand challenge on appeal, they would weigh in favour of the appeal not necessarily being brought on expeditiously because, as counsel for the mother submits, the children are now relieved of a living in an arrangement of which they have wearied.
But the submissions made by counsel for the mother also highlighted, by reference to those paragraphs and the judgment generally, the strain the children have lived under because of what must seem to them as pervasive and relentless litigation about them. The obvious advantage of an order for expedition is that, whatever the outcome of the appeal, the period of time in which the children live in the shadow of litigation is significantly reduced. This is a weighty factor and weighs heavily in favour of expedition.
As to the other matters identified in the mother’s affidavit, they are not of anything more than merely passing relevance to the application under consideration.
The evidence adduced by the mother does not weigh in favour of an order that the application be dismissed. Standing back and considering the matters to which reference has just been made, the weight of the evidence supports an order for expedition, and that order will be made.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 November 2014
Associate:
Date: 21 January 2015
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