JEBBETT & COREY - [2018] FamCAFC 129

FAMILY COURT OF AUSTRALIA

JEBBETT & COREY

[2018] FamCAFC 129

FAMILY LAW – APPEAL – REFUSAL OF STAY OF INTERIM PARENTING ORDERS – where the mother appealed from the refusal of a stay of interim parenting orders providing for the child to spend limited, supervised time with the father – where further interim parenting orders had since been made – where such further orders would not be disturbed if the appeal succeeded – where the mother sought, via her appeal, to challenge prior interim parenting orders which were not the subject of an appeal – where there was no utility in the appeal – where the matter has sufficient complexity as to meet any test for complexity requisite to a transfer of proceedings from the Federal Circuit Court to the Family Court of Australia – where the parties consented to an undertaking to apply to the Federal Circuit Court for a transfer of the parenting proceedings to the Family Court of Australia – appeal dismissed – parties to each bear their own costs of and incidental to the appeal.

Family Law Act 1975 (Cth) ss 68L, 94AAA(7)

APPELLANT:

Ms Jebbett

RESPONDENT:

Mr Corey

INDEPENDENT CHILDREN’S LAWYER:

Anthony Kingston, Norman & Kingston

FILE NUMBER:

BRC

9223

2017

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

11 July 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy, Kent & Hogan JJ

HEARING DATE:

11 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 February 2018

LOWER COURT MNC:

[2018] FCCA 457

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Moses

SOLICITOR FOR THE RESPONDENT:

Landmark Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Oakley
INDEPENDENT CHILDREN’S LAWYER:	Anthony Kingston, Norman & Kingston

UPON the undertaking of counsel for the father and counsel for the Independent Children’s Lawyer and noting the consent of the mother, that the parties will each and all use their respective best endeavours so as to agree within seven (7) days to a minute of consent to the proceedings being transferred from the Federal Circuit Court of Australia to the Family Court of Australia and to apply thereafter to the Federal Circuit Court of Australia for an order to that effect

Upon those undertakings and the notation of that consent

it is ordered:

The mother’s appeal from the orders made 6 February 2018 be dismissed.
That each party bear their own costs of and incidental to the appeal.
Consequent upon any transfer of the proceedings to the Family Court of Australia pursuant to the process contemplated by the undertaking and consent recorded in these orders, the matter be mentioned before the Honourable Justice Kent with a view to the making of directions for trial in the Family Court of Australia.

it is noted:

A.The Independent Children’s Lawyer assumes responsibility for the preparation of a minute of consent earlier referred to.

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 Jebbett & Corey & ICL 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 15 of 2018
File Number: BRC 9223 of 2017

Ms Jebbett

Appellant

And

Mr Corey

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Kent J

Ms Jebbett (“the mother”) appeals from interim orders made by Judge Howard in the Federal Circuit Court of Australia on 6 February 2018.
Judge Howard dismissed the mother’s application for a stay of earlier interim parenting orders made by his Honour on 7 December 2017[1] concerning the child, D (born in 2012), including an order that the child spend supervised time with his father Mr Corey (“the father”). Whilst his Honour dismissed the stay application his Honour, with the consent of the father and the Independent Children’s Lawyer appointed to independently represent the child’s interests in the proceedings (“the ICL”),[2] ordered that the weekly (Saturday) period of the child’s supervised time with the father from 10:00 am until 4:00 pm (as ordered on 7 December 2017) be reduced to 10:00 am until 1:00 pm, a reduction from six hours to three hours.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[2] Pursuant to s 68L of the Act.
In my opinion this appeal ought be dismissed and as it does not raise any question of general principle, reasons for its dismissal in short form may be given.[3] The chronology and nature of relevant events, shortly to be outlined, makes it readily apparent that this appeal lacks any utility, such that reasons in short form are all that is necessary.
[3] Pursuant to s 94AAA(7) of the Act.
As already noted, on 7 December 2017 Judge Howard made interim parenting orders. In short, the mother alleged, and the father denied, that the child would be at risk of harm in the father’s unsupervised care; and that the effects upon the child of his autism would be aggravated by the child spending time in the father’s care. Given the circumscribed nature of interim hearings his Honour could not resolve those disputed issues of fact. However, pending a necessary trial of those issues, his Honour imposed a requirement that the child’s time with the father be limited and supervised. Unusually in the context of the demands of interim hearings, his Honour heard oral evidence from the father’s proposed supervisor, Ms T, and satisfied himself that Ms T could satisfactorily undertake supervision of the ordered time the child was to spend with the father, being from 10:00 am until 4:00 pm each Saturday. As noted, that weekly period of time was reduced by the orders made on 6 February 2018.
On 9 January 2018 the mother filed her application for, inter alia, a stay of the 7 December 2017 orders. However, the mother had not at that time filed any appeal from those orders. On 2 February 2018 the mother filed an application for leave to extend time to file an appeal from the orders made on 7 December 2017. However, in the event, Murphy J exercising the appellate jurisdiction under the Act, made orders on 13 March 2018 dismissing the mother’s application for an extension of time to appeal.[4] However that was in circumstances where the mother had already appealed the orders made on 6 February 2018 which were orders, it can be seen, to be in two parts; one was the refusal of the stay application and the second part being the making of further parenting orders.
[4] See Orders made 13 March 2018 per Murphy J in appeal number NOA 13 of 2018.
The point of emphasis for present purposes is that when, on 6 February 2018, Judge Howard heard the mother’s application for a stay of the orders made on 7 December 2017 there was, as his Honour correctly identified, no extant appeal by the mother from those orders. The mother’s application for a stay was predicated upon the mother being granted leave to appeal from the orders made on 7 December 2017. However, that foundation was removed by the orders made by Murphy J on 13 March 2018.
There being no appeal from the orders made on 7 December 2017 there was no basis for Judge Howard to grant a stay of those orders pending appeal, nor is there any utility now in an appeal from his Honour’s determination to refuse a stay of those orders.
Importantly, further interim parenting orders have been made by Judge Jarrett in the Federal Circuit Court on each of 16 April 2018 and 21 May 2018. There has been no appeal by the mother from either of those orders. Those respective orders supersede the orders made by Judge Howard on 6 February 2018 in respect of interim parenting arrangements for the child, irrespective of the references in those latter orders to the orders made on 6 February 2018. As each of counsel for the father and counsel for the ICL correctly point out,[5] even if this appeal were allowed and the orders made on 6 February 2018 were to be set aside, the currently operative interim parenting orders made by Judge Jarrett on 21 May 2018 would not be disturbed.
[5] Paragraph 6 of ICL’s Summary of Argument filed on 6 July 2018 and paragraph 13 of father’s Summary of Argument filed on 29 June 2018.
It is to be noted in passing that the orders made by Judge Jarrett on 21 May 2018 include an order (Order 9) for the parenting proceedings to be listed on 8 August 2018 for directions including, it may be inferred, the listing of the proceedings for trial about which I will say something more in a moment. However that feature of the orders serves to emphasise the lack of any utility in this appeal.
For these reasons, the appeal ought be dismissed.
At the conclusion of the oral argument, we invited the parties to consider the question of the further progress of these proceedings and particularly the question of whether these proceedings ought properly be transferred to the Family Court of Australia. We obtained from each of the parties confirmation of their willingness to undertake to make an application to the Federal Circuit Court for that Court to transfer the parenting proceedings to the Family Court of Australia. That was so in the context that this is an obviously complex case as in fact was noted by Judge Howard in his initial reasons. The matter has been before two different Federal Circuit Court judges on four occasions. The complexity of it can be identified in any number of respects from the material identified on the record before us, but all that needs to be referred to is the Memorandum to Court from the Child Inclusive Conference of Ms N dated 21 December 2017.
Ms N identified the issues that present in the parenting proceedings relating to the child’s special needs and how they may shape the future parenting arrangements. Ms N also referred to the father’s special needs and the question of what affect they may have on his functioning, and more importantly, his parenting capacity and his capacity to co-parent cooperatively with the mother. Ms N also identified as an issue the mother’s capacity to promote and facilitate the child’s relationship with his father and whether the mother is adequately and suitably meeting the developmental needs of the child.
The question of the father’s autism was identified by Ms N as an issue that may impact upon his parenting capacity given his own reports of experiencing previously clinical depression and the then current experience of suicidal ideation on a regular basis. Ms N was concerned about how the father’s mental health, to the extent that autism can be identified as a mental health issue, would impact upon his capacity to be appropriately responsive to the child.
Ms N identified the need to obtain psychological assessments of the parents to ascertain any cognitive, emotional or neurological issues that may impair upon their parenting capacity. Ms N also recommended, in effect, that it might be helpful to obtain a psychological assessment of the father’s current partner in circumstances where the father was reporting his partner was suffering from clinical depression and anxiety.
For all of these reasons, we engaged with the parties in terms of seeking their attitude to an undertaking to apply to the Federal Circuit Court for a transfer of the parenting proceedings to this Court with a view to a judge of this Court bringing the matter to an early trial given the issues in the case.
For myself, if this Court had jurisdiction to transfer the proceedings from the Federal Circuit Court to the Family Court, I would have no hesitation in making that order. But the fact is, this Court does not have that jurisdiction. Such an order must be made by the Federal Circuit Court. All that I would record is that, on any view of this matter, it has sufficient complexity as to meet any test for complexity requisite to a transfer of proceedings from the Federal Circuit Court to the Family Court of Australia.
As to costs of the appeal, no application for costs was advanced by either the ICL or by the father so there should be no order for costs of the appeal proceedings.

Hogan J

I agree with the reasons delivered by Kent J and the orders that his Honour proposes.
I have nothing further to add other than to remark that in my view, the ICL should ensure that the supervisor currently engaged in providing supervision of the child’s time with the father is made aware of all matters relevant to the continuation of the provision by her of that service including that which is found at pages 337 to 340 of the appeal book.

Murphy J

I too agree with the reasons outlined by Kent J and the orders which those reasons moot. I too, if I had power, would order that these proceedings be transferred from the Federal Circuit Court to the Family Court but otherwise agree with what his Honour says about that topic.
The orders of the Court then will be these: [Orders delivered].

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Kent & Hogan JJ) delivered on 11 July 2018.

Associate:

Date: 11 July 2018