Hulce and Chorley
[2020] FamCAFC 178
•24 July 2020
FAMILY COURT OF AUSTRALIA
| HULCE & CHORLEY | [2020] FamCAFC 178 |
| FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against interim parenting orders that substantially changed parenting arrangements – Where the mother does not oppose expedition – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justifies priority – Application granted. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Public Health Act 2010 (NSW) s 7 Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Mr Hulce |
| RESPONDENT: | Ms Chorley |
| FILE NUMBER: | SYC | 1539 | of | 2020 |
| APPEAL NUMBER: | EA | 79 | of | 2020 |
| DATE DELIVERED: | 24 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 15 July 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2020 |
| LOWER COURT MNC: | [2020] FCCA 1568 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Doolan Callaghan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | BJT Legal |
Orders
That the hearing of appeal EA 79 of 2020 be expedited.
The Appeals Registry is directed to list the appeal for hearing at 10:00 am on 10 August 2020 before the Honourable Justice Ryan.
That the electronic appeal book for Appeal EA 79 of 2020 comprise each of the following documents arranged in the following order:
(a) Notice of Appeal filed 15 June 2020;
(b) Orders of Judge Smith made on 18 May 2020;
(c) Reasons for Judgment of Judge Smith delivered 12 June 2020;
(d) Initiating Application filed by Mr Hulce on 6 March 2020;
(e) Response to Initiating Application filed by Ms Chorley on 8 April 2020;
(f)Reply to Response to Initiating Application filed by Mr Hulce on 6 May 2020;
(g) Affidavit of Mr Hulce filed 6 March 2020;
(h) Affidavit of Mr Hulce filed 6 May 2020;
(i) Affidavit of Ms Chorley (Parenting) filed 8 April 2020;
(j) Affidavit of Ms Chorley (Financial) filed 8 April 2020;
(k) Affidavit of Ms B Hulce filed 6 May 2020;
(l) Affidavit of Ms D Chorley filed 13 May 2020;
(m) Notice of Risk filed by Mr Hulce on 6 March 2020;
(n) Notice of Risk filed by Ms Chorley on 8 April 2020;
(o) Financial Statement of Mr Hulce filed on 6 May 2020;
(p) Financial Statement of Ms Chorley filed on 8 April 2020;
(q) Case Outline of Mr Hulce filed 13 May 2020;
(r) Case Outline of Ms Chorley filed 13 May 2020; and
(s) List of exhibits.
That on or before 29 July 2020 the appellant obtain the digital transcript of the hearing before Judge Smith on 18 May 2020 (“digital transcript”) and email copies of such digital transcript to the respondent and to the Court using the email address …
It is noted that the Eastern Appeals Registry is to prepare the digital appeal book in accordance with these orders and will make same available to the lawyers for each party for download from the Commonwealth Courts Portal.
That the appellant file and serve a written Summary of Argument and List of Authorities (if any) on or before 29 July 2020.
That the respondent file and serve a written Summary of Argument and a List of Authorities (if any) on or before 5 August 2020.
That any application to adduce further evidence in the appeal is to be filed and served within seven (7) days.
That the parties have photocopy access to the documents that became exhibits in the trial.
That any party who seeks to rely on an exhibit is to provide a digital copy of the exhibit to all other parties and to the Court no later than seventy-two (72) hours prior to the commencement of the appeal hearing.
That each party be at liberty to apply for any further directions to the Honourable Justice Ryan (or if not reasonably available to another member of the Appeal Division) upon seven (7) days’ notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
Any party who intends to seek costs at the conclusion of the hearing of the appeal, subject to the outcome of the appeal, must file and serve, no later than seven (7) days prior to the first day of the sittings in which the appeal is listed for hearing, a schedule of the costs to be sought at the scale prescribed by the Family Law Rules 2004, and be in a position to address the Court as to costs (including quantum), whether sought by or against that party, at the conclusion of the hearing.
Failure to comply with the above order will prevent an application for costs being made to the Court without the leave of the Court. In the event of leave being sought it may result in the hearing of the application for costs being adjourned, the appeal thereby not being concluded, and/or leave being granted on terms, including as to the payment of costs by a defaulting party or that party’s legal representative.
It is noted that Practice Direction 1 of 2017 applies to this matter and it is ordered that, to the extent to which the Practice Direction may be inconsistent with the relevant Family Law Rules, the Practice Direction is to prevail to the extent of the inconsistency.
That the costs of this application to be costs in the appeal.
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 Hulce & Chorley 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: EA 79 of 2020
File Number: SYC 1539 of 2020
| Mr Hulce |
Applicant
And
| Ms Chorley |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 18 June 2020, Mr Hulce (“the father”) seeks to expedite his appeal against certain interim parenting orders made on 18 May 2020 in proceedings between him and Ms Chorley (“the mother”). The parenting orders relate to the parties’ children, Y, born 2012 and Z, born 2013 (“the children”).
Inter alia, the orders under appeal provide for:
·the parties to have equal shared parental responsibility for the children (Order 4);
·the children to live with the mother and be permitted to live in Victoria (Orders 5 and 6);
·the children spend time with the father during the middle weekend of the school term and for half school holidays (Order 8);
·ancillary orders to facilitate interstate changeover (Orders 11 and 12) and;
·the matter to be transferred to the Federal Circuit Court of Australia (Order 1).
The mother does not support or oppose expedition.
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed by the father in this application.
The father and the mother are both 48 years old. The parties were in a de facto relationship. They commenced cohabitation in 2010 and separated on a final basis in early 2020.
The parties have two children together.
The father runs a business and the mother has always been the children’s primary carer [30]. The mother is not in paid employment.
In January this year, the mother left the family residence in the northern suburbs of Sydney and took the children to C Town, Victoria, where her extended family live [6].
On 6 March 2020, the father filed an Initiating Application seeking interim and final orders and for his application to be listed on an urgent basis. Inter alia, he sought a recovery order for the children to be returned to the northern suburbs of Sydney and; for the children to either live with him or, live with their mother if she is also willing to return to Sydney.
The primary judge heard the application for interim orders on 15 May 2020.
The mother sought to relocate to Victoria but agreed that if the Court determined that it was is in the children’s best interests to return to their former local area and to attend their former school, then she would return [8]. Both parties sought an order for equal shared parental responsibility.
Despite limited evidence before the primary judge, his Honour noted that that the issue of family violence “loomed large” [12]. It was the mother’s case at the hearing that the father had committed acts of family violence, including physical violence, bullying and verbal violence [5]. She obtained an AVO against the father in Victoria [12]. In relation to allegations of family violence and risk to the children, his Honour took a “very cautious approach” and said:
22.…[D]espite the allegations of family violence, the parties have managed to arrange for the children to spend time with the father in Melbourne, and the mother has said to the family consultant and elsewhere that it was never her intention to sever their ties with the father. She does not say he needs supervision. She does not say that he would intentionally harm the children, so this is not one of those cases where the family violence is of the type where someone says this person is unsafe and an unacceptable risk. Rather, if the physical violence is held to be true, then that is of grave concern, but nevertheless, the parties have focused, to that extent, on the children.
As to the where the children should live on an interim basis, the mother said she could not afford to return to the northern suburbs of Sydney [32]. She pays $300 per week in rent to live in Victoria, which, it is said, is considerably less than the cost of rent in Sydney. She also said that it would be difficult for her to secure employment in Sydney. His Honour agreed, and considered the current impact of COVID-19 on limited employment opportunities generally [33].
His Honour determined that it was not a question of whether the children would not be well cared for in one location or the other, but on balance, it is in the children’s best interests to live with the mother, as their primary carer, and for them to spend time with the father [40]–[42].
The expedition application
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 of the Rules deals with applications for an expedited trial, and it provides a useful guide to the approach to be adopted to the question of expedition of an appeal. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be order of priority. The potentially relevant factors referred to in the rules which should be taken into account in an appeal setting will be discussed.
Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case. The father lodged his appeal in a timely manner, along with his application for expedition. There is no reason to doubt that whatever is required of the applicant to bring an appeal on for an urgent hearing will be done. This subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay. I do not have more to say about this.
The next factor which requires consideration is prejudice to the respondent. The mother has not filed any documents in this application. Counsel for the mother said that an order for expedition was not opposed. It was not suggested that the mother would be prejudiced if expedition were granted and it is accepted she would not.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a)–(g). Of these, the father focuses on subparagraph (d), which is concerned with hardship to the children caused by the continuation of interim orders. In support of expedition, the father’s solicitor tendered the Public Health (COVID-19 Border Control) Order (“the Public Health Order”) dated 7 July 2020, issued under s 7 of the Public Health Act2010 (NSW). The purpose of the Public Health Order is to restrict entry into New South Wales of persons who have been in Victoria within the previous 14 days before entry. The Public Health Order requires people travelling to New South Wales to self-isolate for 14 days and imposes significant difficulties on the father visiting the children in Victoria or the children travelling to Sydney pursuant to the interim orders.
Further, the submissions made on behalf of the father focus on the impact of the living arrangements on the children who, it was emphasised, are young and have experienced significant change. While the children have always been in the mother’s primary care, the children have always lived with both of their parents in Sydney, which is where they attended school. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the children. There is some force in that.
Further, subparagraph (f) concerns whether the case involves allegations of child abuse. At the hearing before the primary judge, the mother raised concerns of family violence perpetrated by the father. The evidence was somewhat limited and, as no submissions were made on the relevance of this issue to the question of expedition, this is not a factor that will influence the outcome.
It is necessary to consider the grounds of appeal. The father outlines four grounds of appeal in his Notice of Appeal filed 15 June 2020. Stated broadly, it is contended that that the primary judge failed to consider the best interests of the children in permitting them to relocate to Victoria with the mother. It is noted that some of the grounds lack the type of detail needed to establish error on the part of the primary judge. It is understood that those grounds will be refined to make the asserted errors much clearer.
All that needs to be said at this point is that there are matters of substance raised in the Notice of Appeal and it could not be said that this appeal is so lacking in merit that an otherwise strong application for expedition would be denied on this basis. On balance, it is the welfare of young children and the substantial change in their living arrangements, which tips the balance in favour of expedition.
Orders were made on 15 July 2020 to this effect.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 July 2020.
Associate:
Date: 24 July 2020
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