Jasapas and Johns
[2020] FamCAFC 130
•28 May 2020
FAMILY COURT OF AUSTRALIA
| JASAPAS & JOHNS | [2020] FamCAFC 130 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks the expedition of her appeal from final parenting orders – Where those orders provide for the children to live with the father and for there to be a moratorium on the mother’s time with the children for six months – Where prior to the orders being made, the children lived with the mother and spent only supervised time with the father – Where this was the second final hearing in these proceedings – Where the mother’s case at both trials was that the father had physically and sexually abused the children – Where the trial judge found there to be no substance in those allegations and that the children were at an unacceptable risk of psychological harm in the mother’s care – Where neither the father nor the Independent Children’s Lawyer oppose the application – Where the history of this litigation and the nature of the allegations underlying the litigation carries the risk of hardship to both the parents and in particular the children – Where the expedition of the hearing of the appeal may avoid further emotional or psychological harm – Application granted – Costs reserved. |
| Family Law Act 1975 (Cth) ss 68L, 94(2D) Family Law Rules 2004 (Cth) r 12.10A |
| Ardagh & Ardagh [2018] FamCAFC 102 Cavey & Aoki [2017] FamCAFC 211 Johns & Jasapas [2016] FamCA 471 Nimmo & Bush [2016] FamCAFC 274 |
| APPLICANT: | Ms Jasapas |
| RESPONDENT: | Mr Johns |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
| FILE NUMBER: | BRC | 5081 | of | 2014 |
| APPEAL NUMBER: | NOA | 22 | of | 2020 |
| DATE DELIVERED: | 28 May 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 28 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 February 2020 |
| LOWER COURT MNC: | [2020] FamCA 214 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Mitchell via telephone, Mitchell Lawyers |
| THE RESPONDENT: | In person via telephone |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hodges via telephone |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
Orders
That the hearing of this appeal be expedited.
That the proceedings be adjourned to the Appeal Registrar for the making of directions with a view to the appeal being made ready for hearing in the sittings of the Full Court in the week commencing 27 July 2020.
Each party’s costs of and incidental to this application be reserved 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 Jasapas & Johns 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 BRISBANE |
Appeal Number: NOA 22 of 2020
File Number: BRC 5081 of 2014
| Ms Jasapas |
Applicant
And
| Mr Johns |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed on 12 May 2020, Ms Jasapas (“the mother”) seeks an order pursuant to s 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) to expedite the hearing of her appeal from final parenting orders made by Forrest J on 24 February 2020 concerning two children, namely B aged nine years and C aged six years, following a five day trial.
Neither Mr Johns (“the father”) nor the Independent Children’s Lawyer (“the ICL”) appointed pursuant to s 68L of the Act to represent the interests of the children in the proceedings oppose the current application, indeed the father supports an order for expedition of the hearing of the appeal for the reasons outlined in his affidavit filed on 25 May 2020.
The parenting orders made effected profound changes to the children’s existing parenting arrangements and living circumstances. From living primarily with the mother and experiencing, from late November 2016 (when they were aged only six years and three years respectively) spending only limited supervised time with the father, the orders provide for:
a)The children to live with the father;
b)The father to have sole parental responsibility; and
c)A moratorium of six (6) months on the children spending any time or communicating with the mother and thereafter supervised time, with any recommencement of the children’s communication, and spending unsupervised time, with the mother to be as agreed upon by the parents.
An important consequential change for the children was that from soon after the orders were made and the children moved into the father’s care the father, in the exercise of his sole parental responsibility, moved the children from the school they had been attending to a school located closer to his home.
On 17 March 2020, the mother filed a Notice of Appeal from all of the orders made by Forrest J on 24 February 2020 and seeking that orders be made by the Full Court for, inter alia, the children to live with the mother; the mother to have sole parental responsibility; and for the children to not spend any time with the father. On the hearing of this appeal, the solicitor for the mother indicated that there may be some variation made to the orders sought on appeal.
The mother’s appeal is opposed by both the father and the ICL. Both of those parties indicated at this hearing that in the event the mother’s appeal were to succeed then depending on when that occurred and the events that may have transpired in relation to the children’s living arrangements, they may join in seeking an order for the Full Court to re-exercise the discretion rather than for the proceedings to be remitted for yet another trial.
On 1 April 2020, the mother filed an Application in a Case seeking a stay of the parenting orders made on 24 February 2020. On 18 May 2020, Forrest J dismissed the mother’s application for a stay of the orders for reasons then given by his Honour.
It was only several days after the hearing of her stay application that on 12 May 2020 the mother filed this application for expedition of her appeal.
As was indicated to the parties at the hearing of this application, in the event that the hearing of the appeal was expedited it is likely that the appeal could be heard in the sittings of the Full Court in the week commencing 27 July 2020. Otherwise, if not expedited, in the normal course of listing of appeals the appeal would possibly be heard in the sittings of the Full Court in the week commencing 21 September 2020 and if not that week, in the week commencing 7 December 2020.
Each of the parties confirmed at the hearing of this application, that in the event the hearing of the appeal was expedited they would be in a position to ready the appeal for hearing in the July 2020 Full Court sittings. The solicitor for the mother advised that the transcript of the trial has already been obtained by the mother.
Resolution
Whilst s 94(2D)(j) provides for an order to be made to expedite the hearing of an appeal, neither that section nor the Family Law Rules 2004 (Cth) (“the Rules”) specify any considerations the Court ought apply in exercising the discretion to expedite the hearing of an appeal. However, given that expedition of the hearing of an appeal has the likely consequence of displacing another appeal waiting to be heard and earlier in time, the central question is whether there is some feature or circumstance of this case warranting that result.
In an effort to exercise the discretion judicially, regard is often had to r 12.10A governing the expedition of trials for the kinds of considerations or “relevant circumstance” that may justify the positive exercise of discretion.[1]
Considerations
[1] See Nimmo & Bush [2016] FamCAFC 274; Cavey & Aoki [2017] FamCAFC 211 and Ardagh & Ardagh [2018] FamCAFC 102.
History of litigation
In my judgment a relevant factor in this case is the history of the litigation.
Parenting proceedings between the parties first commenced on 11 June 2014 and those proceedings were heard at a trial over three days in May 2016 by Tree J.
A central issue in that case were allegations, based upon alleged disclosures from the children, that the father had sexually and physically abused the children. Tree J was not satisfied of the veracity of the allegations nor that the father was an unacceptable risk of harm to the children despite these allegations and his Honour made final parenting orders on 13 June 2016[2] which orders provided for:
a)The parties to have equal shared parental responsibility;
b)The children to live with the mother; and
c)The children to spend time with the father gradually increasing to being from Thursday to Monday in week one and overnight Thursday to Friday in week two of a cycle.
[2]Johns & Jasapas [2016] FamCA 471.
A central feature of the case before Forrest J were continued allegations, based upon alleged disclosures from the children, that the father sexually and physically abuses them regularly. Forrest J found there to be no substance to these allegations and determined that the children would be at an unacceptable risk of further psychological harm if they continued to live in the mother’s primary care.
Plainly then, there is a significant historical background of litigation underlying the current appeal, that litigation centred upon serious allegations of abuse perpetrated by the father, on the one hand, and emotional abuse of the children by the mother on the other hand.
That feature speaks in favour of an end to this litigation, to the extent that is possible, as soon as possible in the children’s best interests.
No observation I make on this application can legitimately be interpreted as my having made any assessment of the merits of the appeal, as I have made no such assessment as it is not necessary on the hearing and determination of the current application. Nor of course is any observation I make in any way binding or even influential upon the Full Court which hears the mother’s appeal. With those important caveats, it appears to me that if the mother’s appeal is heard in July 2020 and the appeal enjoys some measure of success, there may exist some prospect of the Full Court re-exercising the discretion rather than remitting these proceedings for what would be a third trial between these parties of parenting proceedings. Any such prospect diminishes as further time elapses.
Conduct of the case
From the foregoing chronology it can be seen that the mother has acted reasonably and without delay in bringing this application. In circumstances where neither the father nor the ICL oppose the application, and indeed the father supports it, self-evidently there would be no prejudice to either of those parties if the hearing of the appeal were expedited.
Hardship
Notably, the mother’s grounds of appeal do not contain any challenge to Forrest J’s findings rejecting the case advanced as to sexual abuse of the children by the father, nor in respect of the associated finding that the father presented no unacceptable risk to the children. It would appear that the mother intends to pursue a case on appeal to the effect that notwithstanding that the father did not abuse the children and presents no unacceptable risk of harm to them, his Honour was in error in failing to find that it would be in the children’s best interests to continue living primarily in their mother’s care.
As it seems to me the history of this litigation and the nature of the allegations underlying the litigation from time to time over several years, carries the risk of hardship to both the parents and in particular the children while the litigation subsists. In short, the expedition of the hearing of the appeal may avoid further emotional or psychological harm as compared with the hearing of this appeal running its normal course which may involve it not being heard until December of this year, with the potential of a retrial of the proceedings thereafter with all of the consequences of costs and emotional burdens such a trial would involve.
I am satisfied that in the circumstances of this case the discretion should be exercised in favour of an order for an expedited hearing of the appeal and I so order.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 28 May 2020, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 28 May 2020
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