JESSUP & HILDER - [2015] FamCAFC 218

FAMILY COURT OF AUSTRALIA

JESSUP & HILDER

[2015] FamCAFC 218

FAMILY LAW – APPEAL – Application for expedition of appeal – Where the father seeks to expedite an appeal against interim parenting orders – Where the mother alleges that the father was psychologically abusive to her and threatened the children during the relationship – Where the trial judge was not satisfied, based on the evidence available in the interim proceedings, that supervision would adequately protect the children from a risk of harm – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed.

Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules (2004) r 12.10A

Moxon & Moxon [2010] FamCAFC 67

APPLICANT:

Mr Jessup

RESPONDENT:	Ms Hilder
INDEPENDENT CHILDREN’S LAWYER:	Ms Collis

FILE NUMBER:

WOC

575

2014

APPEAL NUMBER:

157

2015

DATE DELIVERED:

17 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

3 November 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

28 August 2015

LOWER COURT MNC:

[2015] FCCA 2283

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Miller
SOLICITOR FOR THE APPLICANT:	Hilton King Lawyers

SOLICITOR FOR THE RESPONDENT:	Rossi Simicic Lawyers
SOLICITOR FOR THE ICL:	Carter Ferguson Solicitors

Orders

The application for expedition of the appeal against the orders of Judge Altobelli made on 28 August 2015 is dismissed.
The costs of the respondents to the application are reserved for consideration on the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jessup & Hilder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 157 of 2015
File Number: WOC 575 of 2015

Mr Jessup

Applicant

and

Ms Hilder

Respondent

and

Ms Collis
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Jessup (“the father”) seeks expedition of an appeal lodged by him against interim parenting orders made by Judge Altobelli on 28 August 2015.

Ms Hilder (“the mother”) opposes the application. The proceedings relate to the three children of the marriage: X, born in 2000, Y, born in 2006 and Z, born in 2007. The children were represented by an Independent Children’s Lawyer (“the ICL”) in the proceedings before Judge Altobelli.
His Honour’s orders concern the time that the children spend with the father.
The father appeals Order 2 made on 28 August 2015, which provides that:
2. Pending further Order, the Children spend no time with and have no communication with the Father.

Background

Some brief background to the matter is useful to give context to the application and is taken from his Honour’s reasons.
The mother is currently 41 years of age and is employed as a teacher in the Illawarra area. The father is also 41 and works as an IT specialist in the Illawarra area, having moved to Australia from a country in Asia in 1995. The parties began living together in 1997 and separated on a final basis in mid-2014, though they had separated several times throughout the relationship.
The father had spent time with and communicated with the children, both supervised and unsupervised, until January 2015. Thereafter he spent no time with the children.
In the proceedings before Judge Altobelli, the mother sought orders for sole parental responsibility, that the children continue living with her and that they have no contact or communication with the father.
The father and the ICL agreed that the children should remain living with the mother and that, pending the outcome of an expert report, the children should spend supervised time with the father [3].
His Honour had the benefit of a report from a family consultant who conducted a Child Inclusive Conference in July 2015. The family consultant noted that the mother made numerous serious allegations that the father was controlling and abusive to her and had made threats to harm the children. For example, the mother alleged that the father had sent her newspaper articles about fathers who kill their children and had threatened to kill himself with a knife in front of the children. The father conceded that he had sent such articles but denied that he intended to hurt his children. He however accepted that the mother would perceive that kind of behaviour as threatening and expressed that he regretted emailing them to her [17].
The family consultant also recorded that the father believes the mother is an excellent parent. She further observed that the two boys are very close to their mother but have a distant relationship with the father and that X “described ambivalent feelings about whether or not she wants to spend time with her father” [19]. The children had both positive and negative memories of the father and a sense that their mother needed to “protect” them from him.
The evidence of the father’s treating psychologist was that the father posed a low risk to the children [22], although he “made poor decisions and demonstrated impulsivity and emotional regulation problems” in the past [23].
On the basis of this evidence, the family consultant recommended that the risk raised by the mother be given priority until the nature of any risk is clarified [20].
The ICL submitted that the father’s threats ought to be taken seriously and argued that the father’s evidence demonstrated that he lacked insight into the effect of his behaviour on the mother and the children. The ICL was also concerned that the assessment of the father’s psychologist of the father being “low risk” was inaccurate [25] contending to his Honour that the father’s psychologist was not impartial but rather acting as an advocate for the father.
Counsel for the father contended that the children could not have a meaningful relationship with the father unless the orders provided for some time to be spent with him [26] and observed that it had been, at that time, seven months since the children had seen the father.
Further, his Honour noted that counsel for the father observed that the mother had agreed to the children spending time with the father while supervised and argued that this was inconsistent with her expressed concerns.
Counsel for the mother submitted that the father has a clear pattern of “acknowledging his bizarre behaviour, but then advancing an otherwise benign explanation” [29]. She contended that where the children are, as suggested in this case, at risk of psychological abuse, supervision would not be adequately protective.
His Honour summarised the difficulty in balancing the evidence as follows:
32. This is a complex case, particularly in the context of having to make Interim Orders. The evidence is untested. Counsel for the Mother is quite correct in submitting that the Father has made a number of admissions, particularly in the Child Inclusive Conference, but also in his own Affidavit of evidence. The focus will be on this in order to attempt to assess the risk to the children of even having supervised contact with him.
His Honour made reference to several incidents including one in which the father had threatened to hurt himself with a knife [38], threatened to set himself on fire [36] and installed surveillance equipment in the mother’s home [41] and [43]. The father sought to downplay the seriousness of each incident. In relation to these examples, his Honour found:
49. … It is quite possible that any one of the examples of communication and the events referred to above would not raise any risk issues so far as the children are concerned. When all of these events are put together, the Mother’s concern about the Father’s behaviour becomes more understandable. One event might be excused as being odd, perhaps extravagant. A number of similar events start to raise serious issues not just about the Father’s mental health, but personality and insight. Even on the Father’s own benign interpretation of these events, it may be possible to discern manipulation or control.
Ultimately, his Honour found that any risk of psychological harm the father poses to the children cannot be ameliorated by supervision. Though the case involves “a difficult balancing exercise” [52], his Honour found that “the Father does not appear to have gained any insight about the inappropriateness of his actions, or their potential impact on the Mother or the children indirectly.” His Honour went on to say:
53. When all the factors are taken into account the least risk to the children is if, for the time being and pending an expert assessment, they have no contact or communication with their father at all. The Court acknowledges it is a finely balanced case. It is often impossible to completely eliminate risk, but for the limited period until an Expert’s Report is available, that is what the Court will do. Orders will be made in terms of those sought by the Mother, but the Court declines to deal with the issue of parental responsibility, at an interim stage of the proceedings.
Since the orders were made, the parties have agreed between themselves that the father may send each child a monthly letter and a Christmas card and gift.

Relevant Principles

Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals although no criteria or considerations for making that determination are provided. Recourse is often had to rule 12.10A of the Family Law Rules (2004) which address applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought on expeditiously;
·Whether there is any prejudice to the respondent; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
Rule 12.10A(4) provides a definition of a “relevant circumstance”, one of which is:
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed); …
There is no doubt that the appeal was lodged in a timely way as was the application for expedition.
Principally it was argued that if the appeal was not expedited then it was likely that the appeal would not be heard before the final hearing of the parenting proceedings in the Federal Circuit Court with the result that the father and the children would not spend time together until then.
It is to be noted that the final hearing of the parenting proceedings is listed in the Federal Circuit Court in August 2016. However, the solicitor for the mother indicated that the appointments between the parties and the single expert appointed in the matter had been brought forward to April and suggested that it was likely that the final hearing of the matter would, similarly, be brought forward.
It was argued that if the appeal was not expedited and the consequence was that the final hearing was conducted before the date of hearing of the appeal, the father’s right to appeal would be lost. While that may be correct, the interposition of the final hearing of the parenting issues will address the matters sought to be raised on the appeal.
The basis for the father’s argument rested on an assertion that this appeal, being from a judge of the Federal Circuit Court, would be of a nature that would be heard by a single judge of appeal pursuant to a direction from the Chief Justice. It was submitted that the single judge would hear and determine the appeal almost immediately, that the appeal would be successful and the single judge would re-exercise the discretion of the Federal Circuit Court judge. This scenario also assumes that no party would wish to file any material updating the circumstances of the parties and children.
It is unnecessary to engage with the wholly speculative basis for the submission because, in my view, nothing in the evidence or in the submissions made on behalf of the father persuades me that there is any fact or circumstance that should cause it to have priority over other cases listed for appeal.
The application will thus be dismissed.

Costs

The parties agreed that the costs of the application should be reserved to be considered on the hearing of the appeal.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

1 October 2015.

Associate:

Date: 17 November 2015