JOLAHA & HANAS
[2019] FamCAFC 81
•13 May 2019
FAMILY COURT OF AUSTRALIA
| JOLAHA & HANAS | [2019] FamCAFC 81 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Where the appellant seeks expedition for the hearing of an appeal of interim parenting orders in respect of a child who is less than two years of age – Where in the ordinary course, if the parties prepare the appeal in a timely way there is currently no delay in having an appeal heard – Where there are no relevant significant circumstances in this case that would justify the displacement of other appeals – Where the Application in an Appeal seeking expedition is dismissed – Where procedural orders shall be made to enable the appeal to be heard in the sittings commencing 12 August 2019. |
| Family Law Act 1975 (Cth) s 94(2)(d) Family Law Rules (2004) r12.10A |
| APPELLANT: | Mr Jolaha |
| RESPONDENT: | Ms Hanas |
| FILE NUMBER: | SYC | 113 | of | 2019 |
| APPEAL NUMBER: | EAA | 40 | of | 2019 |
| DATE DELIVERED: | 13 May 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 13 May 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 April 2019 |
| LOWER COURT MNC: | [2019] FamCA 291 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Richardson SC |
| SOLICITOR FOR THE APPELLANT: | York Law Family Law Specialists |
| COUNSEL FOR THE RESPONDENT: | Mr Quinn, Solicitor Advocate |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co |
Orders
The Application in an Appeal filed 24 April 2019 seeking expedition be dismissed.
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 Jolaha & Hermes 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: EAA 40 of 2019
File Number: SYC 113 of 2019
| Mr Jolaha |
Appellant
And
| Ms Hanas |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Mr Jolaha (“the appellant”), by way of an Application in an Appeal filed 24 April 2019, seeks expedition of his appeal against interim parenting orders made by the primary judge on 12 April 2019. I took it from what fell from solicitor for the respondent that Ms Hanas (“the respondent”) opposes the appellant’s application for expedition.
The appellant supports the Application in an Appeal by way of an affidavit filed 24 April 2019 and makes reference to a Notice of Appeal filed on the same day. Senior counsel for the appellant made clear that the application for leave to appeal was misconceived and he abandoned it. Relevantly, senior counsel for the appellant indicated that the appellant intends to file an Amended Notice of Appeal, adding an extra ground complaining of the absence of procedural fairness and that he intends to seek leave to adduce further evidence being a Child Inclusive Conference Memorandum dated 9 May 2019.
The appellant indicated today that a draft appeal index has been prepared and served. It has not yet been filed.
Background
The appellant was born in 1975 in Country C. The respondent was born on in 1988 in Country B. The parties met in Australia in early March 2009 and married in 2010. The parties separated on 31 August 2018.
The parenting proceedings concern the parties’ child, born in 2017 who is currently 1 year and 9 months of age (“the child”). By way of minute of order, the appellant sought an order from the primary judge for immediate overnight time with the child for four nights a fortnight (In week 1, Tuesday 6pm to Wednesday 8am and Friday 6pm to Saturday 6pm; In week 2, Tuesday 6pm to Wednesday 8am and Saturday 6pm to Sunday 6pm). The respondent resisted overnight time.
On 12 April 2019, after hearing the competing applications for interim parenting orders, the primary judge gave reasons and made the following orders:
(1)The parents have equal shared parental responsibility for the child.
(2) The child live with the [respondent].
(3) The child spend time with the [appellant] as follows:
(a) On alternate Saturdays and Sundays from 9am to 6pm;
(b)Each Tuesday and Thursday from 3 to 6:45pm with the paternal grandparents to collect the child from the [respondent] and the [appellant] to return the child fed, bathed and ready for bed.
(c)From 3pm Christmas Day to 12 noon the following day in 2019;
(d)On the last Tuesday in January from 3pm to 12 noon the next day;
(e) At Easter 2020 from 3pm Thursday to 4pm Good Friday;
(4)Upon the child reaching age 3, the child to spend each alternate weekend from 9am Saturday to 4pm Sunday, with the alternate Saturday and Sunday daytime to cease forthwith.
(5)Upon the child reaching 3 years and 6 months of age, the [appellant]’s Tuesday time to extend from 3pm until 3pm Wednesday each week, and the Thursday time to cease forthwith.
(i)The parties may vary the dates and times of the [appellant]’s time with the child as agreed.
(As per original)
The appellant, by way of his Notice of Appeal filed 24 April 2019, appeals orders 3(a) and 3(b) made by the primary judge on 12 April 2019. I understood that the Amended Notice of Appeal will add the additional ground previously referred to and remove the order seeking remittance to the Federal Circuit Court of Australia, which was sought by the appellant in error.
The purpose of the Application in an Appeal is to shorten the time it takes for the Full Court to hear the appellant’s arguments that the primary judge erred in not ordering any overnight time prior to the child’s third birthday and not ordering an immediate regime of four nights a fortnight as sought by the appellant.
Discussion
In respect of the further evidence which the appellant seeks to adduce, I have been provided with a copy of the Child Inclusive Conference Memorandum dated 9 May 2019 in which the family consultant opined that:
From individual observations of [the child] with her mother and father, it is suggested that, although still a toddler, she would likely manage one overnight per week at an earlier date, perhaps after she turns two years of age. The [appellant] suggested that, when he has completed his work probation, he would be able to obtain some flexibility with his work hours on Tuesday and this would enable his time with [the child] to more naturally extend into an overnight until Wednesday morning at that time.
The appellant indicated to the family consultant that he will complete his work probation in three and a half months and anticipates that he will then be able to leave work earlier on Tuesday and start work later on Wednesday.
As discussed during submissions, in the ordinary course, if the parties are able to get an appeal ready for hearing in a timely way, there is currently no delay in this Registry in having an appeal heard.
I intend to make procedural directions today. It is open for an order to be made for the filing of an appeal book in electronic form. As I understand it, there is no controversy in respect of the appeal index, although, as I have said, it has not yet been filed. Ordinarily, the appellant is afforded four weeks to file a Summary of Argument. Senior counsel for the appellant has indicated that they will be able to do that on a shorter compass depending upon the outcome of this application. Whether or not that is necessary, is dependent on the result of this application. The respondent is normally afforded four weeks to reply but the solicitor for the respondent has indicated that their counsel is not available until 20 May 2019. It is possible, at this stage, for a timeframe to be structured for the appeal to be heard in the Full Court sitting week commencing on 12 August 2019 without an order for expedition.
Pursuant to s 94(2)(d) of the Family Law Act 1975 (Cth) (“the Act”), the Court may make an order expediting the hearing of an appeal. Whilst the Act and the Family Law Rules (2004) (“the Rules”) do not outline any specific considerations to be applied on the expedition of an appeal, r 12.10A of the Rules addresses the criteria for expedition before a primary judge.
Relevantly, r 12.10A(2) of the Rules provides the court may take into account:
d) whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
Examples of what constitutes a “relevant circumstance” are set out at r 12.10A(4) of the Rules and include:
(d)whether the continuation of interim orders is causing the applicant or a child hardship;
(e) whether the purpose of the case will be lost if it is not heard quickly …
…
(g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
The most significant relevant circumstance in this case is whether this appeal should be heard before and in priority to, other appeals which have already been the subject of procedural directions and await hearing. The argument here is, in all practical terms, whether or not a matter which ordinarily would be heard in the July sittings is displaced by this matter and that this matter would then be heard about a month earlier than when it would have otherwise been heard in the usual course.
I have regard to the age of the child, the ambit of the dispute, the contents of the Child Inclusive Conference Memorandum dated 9 May 2019 and that the interim order provides that the child is to spend regular time with the appellant.
Given the issues central to this appeal and the timeframe in which this appeal could be made ready for hearing, there is no basis to potentially displace other matters awaiting a hearing. There is no basis for making an order for expedition and consequently, I dismiss the application for expedition.
I stand the matter in the list for the parties to prepare a minute for procedural directions for the matter to be placed in the Sydney sittings commencing 12 August 2019. The minute should cover the following matters with timeframes included:
a)Filing the Amended Notice of Appeal;
b)Filing the Application in a Case to adduce further evidence and supporting evidence;
c)The preparation of an electronic appeal book and the obtaining of a consolidated electronic transcript;
d)Filing of the appellant’s Summary of Argument and List of Authorities; and
e)Filing of the respondent’s Summary of Argument and List of Authorities.
When making those orders, I shall otherwise make the usual directions and notations.
I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court delivered on 14 May 2019.
Associate:
Date: 14 May 2019
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