JABBAR & GADE
[2016] FamCAFC 71
•20 April 2016
FAMILY COURT OF AUSTRALIA
| JABBAR & GADE | [2016] FamCAFC 71 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting and procedural orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed. |
| Family Law Act 1975 (Cth): s 94(2D)(j) Family Law Rules 2004 (Cth): r 12.10A |
| APPLICANT: | Ms Jabbar |
| RESPONDENT: | Mr Gade |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2265 | of | 2015 |
| APPEAL NUMBER: | EA | 46 | of | 2016 |
| DATE DELIVERED: | 20 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 April 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 11 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| FOR THE APPLICANT: | Ms Jabbar in person |
| FOR THE RESPONDENT: | Mr Gade in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Presker (via telephone link) Legal Aid NSW Newcastle |
By consent
It is ordered:
That the applicant mother have leave to withdraw that part of her appeal (EA 46/2016) which relates to Orders 1 and 2, 4 to 9 inclusive made on 11 March 2016.
The appeal against the orders referred to in Order 1 be dismissed.
It is further ordered:
That the Application in an Appeal filed 1 April 2016 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabbar & Gade 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 46 of 2016
File Number: NCC 2265 of 2015
| Ms Jabbar |
Applicant
And
| Mr Gade |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
By an Application in an Appeal filed on 1 April 2016, Ms Jabbar (“the mother”) seeks an expedited hearing of her appeal against various interim procedural orders and the dismissal of a contravention application and an application for interim parenting orders on 11 March 2016. Judge Terry dealt with the applications in the duty list and made the orders under appeal.
At the commencement of the proceedings today, the mother sought and was given leave to withdraw that part of her appeal which related to Orders 1 and 2 and 4 to 9 inclusive of the Orders made on 11 March 2016. On the strength of the application, the appeal having been withdrawn by consent, the appeal insofar as it related to those orders will be dismissed. The effect of that is that the appeal now concerns Order 3 of 11 March 2016, that being the dismissal of the contravention application and the application for interim orders.
I proceed on the basis that both Mr Gade (“the father”) and the Independent Children’s Lawyer (“ICL”) are content for the appeal to be expedited, but as was made plain today, whether or not an order for expedition is made is ultimately a question for the Court.
Relevant background
In order to give this application context, it is necessary to refer to some brief background facts. These are largely taken from the documents filed in support of this application and the transcript of the proceedings on 11 March 2016 which constitute his Honour’s reasons for making the subject orders.
The parties have been involved in ongoing parenting proceedings since August 2015. Within those proceedings, each of the mother and the father raises allegations of family violence against the other. The father also raises concerns about the mother’s mental health. It appears that the father currently has a provisional Apprehended Domestic Violence Order against the mother. It is not clear to me, but it may be the same applies for her.
In any event, on 31 August 2015, the primary judge made interim parenting orders. The effect of those orders is that the children live with the father and spend supervised time with the mother at a contact centre. The orders do not specify how much time the children are to spend with the mother as that ultimately is an issue which requires input from the contact centre and considerations of their availability.
The matter came before the primary judge on 11 March 2016 during a busy duty list, it would seem as a result of the Application in a Case to which reference has already been made. The proceedings were conducted on the basis of the contravention application which the mother filed the day before was also listed.
By the contravention application, the mother alleged that on 28 February 2016 the father failed to facilitate time between the children and the mother at the contact centre.
It became apparent during the course of the hearing that this was the only instance that the father had not facilitated contact and it seems from the exchanges that it was common ground this was due to a scheduling issue. As I understand it, the mother says the father was less than frank in the information he provided to the contact centre about his availability on that day and it is that lack of frankness that lies at the heart of the contravention application. In any event, the transcript of the proceedings suggests that the children are otherwise spending regular time with the mother at the contact centre along the lines provided for in the 31 August 2015 orders. The primary judge seemed to have come to the view that there was thus no utility in the contravention application and it was dismissed.
By her Application in a Case, the mother sought orders that the children live with her. It appears the mother’s reason for filing this application is her belief that the children are not being adequately cared for by the father and are in significant emotional distress as they do not want to live with him. In support of this allegation the mother referred to an incident which occurred in February 2016, where the eldest child refused to return to the father’s care and which would seem to have resulted in a return order being made on 11 February 2016. Shortly thereafter, it appears the child ran away from the father to a police station.
During the course of the hearing, the primary judge made multiple attempts to explain to the mother that the interim orders which provided for the children to live with the father are just that, temporary orders, which are intended to operate until a family report or the report of an expert is completed. At that stage, the report interviews were scheduled to occur in November 2016, but the family is also on the cancellation list should an appointment become available sooner. I pause to observe that I have been informed today that it is likely that the interviews will now take place in October 2016. Be that as it may, it is a very long time between the interim orders and when the consultations with the expert will commence. Why that is so is not a matter that I have any information about.
Returning then to the mother’s application, she also raised concerns that the children were being excessively disciplined by the father and the paternal family. In response to those concerns, the ICL appointed to represent the interests of the children, handed up a minute of order which provided a restriction on the use of physical discipline on the children and a restriction on denigration. The primary judge made those orders on a without admissions basis.
Toward the conclusion of the hearing, the mother made an oral application that the children not be left in the care of the paternal grandmother or paternal aunt. The father also made an oral application to vary the current orders which restrained him from removing the children from the Newcastle area.
As a result, orders were made for each of the mother and the father to file and serve an Application in a Case with supporting evidence and which, if filed, will be dealt with by her Honour on the 5 May 2016. The proceedings were otherwise adjourned to that date.
The mother filed her Notice of Appeal on 30 March 2016 and filed her application for expedition and supporting affidavit on 1 April 2016.
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 rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial and provides a useful guide to the approach that might be taken in relation to 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 potentially relevant factors referred to in the rule which the Court may take into account and which are also relevant to appeals will be discussed.
As I move through the relevant provisions I do so on the basis that an order which granted expedition of this appeal would be to the detriment of other cases, including other cases concerned with children who are said to be at risk of harm.
Sub-paragraph (2)(a) is concerned with whether the mother has acted reasonably and without delay in the conduct of her case. There is no doubt that in relation to the appeal and this application that the mother has moved promptly and done all that is required to prosecute her appeal and her case for expedition. The application of the sub-paragraph weighs in favour of an order for expedition.
Sub-paragraph (2)(b) is concerned with whether the application has been made without delay. That matter has already been addressed and need not be considered further. Suffice to note that unless the appeal is expedited, it is likely that the proceedings at first instance will be finalised earlier than the appeal. Although that might be said to weigh in favour of the mother’s application for expedition, greater weight should be given to the fact that there will be a full hearing and the matters that are contentious in the interim application will be able to be conclusively determined.
Sub-paragraph (2)(c) concerns prejudice to the respondent in this case, the father. There was nothing said by the father which would suggest that expedition would occasion disadvantage or prejudice. The application of
sub-paragraph (c) is moot.
Sub-paragraph (2)(d) requires consideration of relevant circumstances which would justify this case being given priority to the detriment of other appeals. This is a particularly important factor in this appeal given, as I have said earlier, is in relation to the dismissal of interlocutory orders. When I say the detriment of other cases, I mean to other cases that have been filed earlier and which will be called on for hearing in the ordinary course, but not if this appeal was expedited.
Examples of what constitutes a “relevant circumstance” are set out in r 12.10A(4)(a)–(g). Of particular relevance to this case is
sub-paragraph (4)(f) which provides that a relevant circumstance includes allegations of abuse which, of course, this case does. Also relevant to this case is sub-paragraph (4)(d). That is whether the continuation of interim orders is causing the applicant or a child hardship. Here, it is the mother’s case that is doing precisely that to, relevantly, the children.
The focus of the mother’s evidence is the children are at risk of harm in the father’s care and cannot remain with him until the report interviews late this year. Thus, it is in their best interests that the appeal be expedited.
In support of her assertions, the mother makes reference to a complaint that was made by a supervisor at a contact centre to the Department of Family and Community Services concerning the father’s “hitting and pulling behaviour towards the children”. The mother also refers to the incident in February 2016 to which I have already referred when the eldest child ran away from the father’s care. As earlier noted at the hearing on 11 March 2016, the primary judge made orders on a without admissions basis that the parties be restrained from physically disciplining their children and denigrating the other parent in the children’s presence. The restraint on physical discipline requires the parties to do their best to ensure that other people are similarly constrained.
Conclusion
It is noteworthy that by the earlier orders of 31 August 2015, there is liberty to the ICL to re-list the proceedings if ICL considers that it is necessary in the interests of the children to do so. Thus, there are safeguards in place to address many aspects of the mother’s concerns. Further, the mother has leave to file another Application in a Case which concerns the children’s treatment whilst in the care of the father’s mother and, I gather, an aunt. That application, I am informed, is listed on 5 May 2016.
On balance, these factors do not weigh in favour of this case being expedited over all the other cases that are awaiting a hearing. Thus, notwithstanding the matters that weigh in favour of expedition, the case for this appeal to be given priority has not been made out and the application for expedition should be dismissed.
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 20 April 2016.
Associate:
Date: 6 May 2016
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