Jopson and Lilwall
[2016] FamCAFC 220
•3 November 2016
FAMILY COURT OF AUSTRALIA
| JOPSON & LILWALL | [2016] FamCAFC 220 |
| FAMILY LAW – APPEAL – Application for expedition of hearing the appeal – Where the mother seeks to expedite her appeal against interim orders of the primary judge which afforded the father time with the child unsupervised – Where the father neither consents nor opposes to the application for expedition – Where the matter is clearly in the category of cases requiring expedition – Application allowed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Ms Jopson |
| RESPONDENT: | Mr Lilwall |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid QLD |
| FILE NUMBER: | CSC | 243 | of | 2016 |
| APPEAL NUMBER: | NA | 68 | of | 2016 |
| DATE DELIVERED: | 3 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 3 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Othen (via telephone) |
| SOLICITOR FOR THE APPELLANT: | Tiyce & Lawyers (via telephone) |
| SOLICITOR FOR THE RESPONDENT: | Newman Family Law (via telephone) |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | No Appearance |
Orders
The hearing of the appeal NA68 of 2016 be expedited.
Appeal NA80 of 2016 be consolidated with NA68 of 2016 and heard together.
The applicant have leave to file an amended Notice of Appeal within 14 days of today.
The appeals be heard on 9 December 2016.
Costs be reserved to the Full Court.
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 Jopson & Lilwall 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA68 of 2016
File Number: CSC243 of 2014
| Ms Jopson |
Applicant
And
| Mr Lilwall |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 27 September 2016 Ms Jopson (“the mother”) filed an Application in an Appeal seeking to expedite the hearing of her Appeal NA68 of 2016 and to adduce further evidence. The Notice of Appeal, also filed on the same date, is an appeal from interim orders of Judge Willis made on 1 September 2016.
Those orders, of significant length and complexity required the child, aged two, to live with the mother conditional upon her mental health remaining stable, and spend time with Mr Lilwall (“the father”), but most significantly in the context of the appeal, not at a contact centre or supervised.
The father had applied to the Court for orders which would gradually increase his time with the child, in locations other than a contact centre and unsupervised. The issue of supervision was central to the interim hearing.
After the interim hearing, on 4 October 2016, the mother filed an application seeking that Judge Willis recuse herself, for the matter to be transferred to the Family Court of Australia and for a stay of the Orders made on 1 September 2016. On 13 October 2016 the mother’s applications were dismissed by the judge.
On 27 October 2016 the mother filed a second Notice of Appeal (NA80 of 2016) from the orders, and in the summary of argument filed in relation to NA68 of 2016, counsel suggests that if the appeal is expedited then both appeals could be consolidated and heard together.
The Independent Children’s Lawyer, appointed after the orders were made on 1 September 2016, does not seek to be heard in relation to this Application.
Background and Reasons of the Primary Judge
There are no published reasons for judgment. A transcript of the hearing is relied upon as reasons for the Orders made.
The mother and father have one child together, who was born in 2014. The parties commenced cohabitation at the end of 2010 and separated on a final basis in February 2015. Since separation, the mother and the child live in Far North Queensland and the father lives in Central Queensland.
Proceedings were commenced by the father by way of initiating application filed 29 April 2016, where he sought interim and final orders. On an interim basis, the father sought shared parental responsibility, with the child to spend time with him unsupervised on a gradual and increasing basis. The father explained in his affidavit in support that the current regime was difficult, and the mother often frustrated his attempts to spend time with the child. The father also raised serious concerns about the mother’s mental health.
The mother, in response, sought orders that she have sole parental responsibility for the child. On both an interim and final basis the mother asked for orders which limited the father’s time with the child and that it be supervised for brief periods every five weeks. Allegations of family violence and the father’s alleged unsuitable parenting skills were made throughout the mother’s affidavit material.
The parties came before Judge Willis on 1 September 2016. Her Honour at first adjourned the matter so the parties could discuss the interim arrangements until the matter could progress to a final trial. The parties were unable to agree on interim arrangements. Although the transcript reveals (Transcript, 1 September 2016, p. 12) that the mother was no longer seeking that the time be supervised, her position on appeal is that based on the conduct of the judge she thought that it was not possible to maintain her position in this respect. Certainly there was no agreement about the place the parties could meet as a changeover location, nor the length of time the child should spend with the father. After discussions between the judge and the solicitors for each party, which could not be described as submissions, the judge made the orders.
In the mother’s affidavit filed 27 September 2016 she says that the judge’s conduct of the matter led her to conclude that Judge Willis had already decided what orders should be made. Despite the concession made by her solicitor that she was not asking for supervision, the mother is firmly of the view that time with the father should be supervised and is very concerned about unsupervised time with the father, which commenced on 14 October 2016. It should also be noted that the solicitor for the mother did not ask the judge to recuse herself at the hearing.
Application
The mother, in her affidavit, explains that the hearing before Judge Willis on 1 September 2016 was listed only as a mention, and as such her solicitor had not prepared substantive material. The mother states that the interim arrangements in place prior to the 1 September 2016 hearing were that the child would spend time with the father supervised at a contact centre in North Queensland.
In her summary of argument, the mother complains that her Honour “made a series of determinations/findings without a hearing or in the alternative prejudgments which had the effect of determining the mother’s risk case without a hearing, thus denying the [mother] procedural fairness and natural justice.”
The mother argues that in circumstances where the allegations of violence have not been considered, the child should not be spending unsupervised time with the father.
A complicating factor in this matter is that the mother’s stay application has been heard and refused. There are no reasons currently available for this refusal, but as previously noted the mother also appeals from this decision.
There are some aspects of the mother’s second appeal which have doubtful merit, although there is no doubt that the appeals should be heard together.
The solicitor for the respondent father explained that he neither supports nor opposes the application.
Conclusion
A single judge of the Full Court may hear an application to expedite the hearing of an appeal pursuant to s 94(2D)(j) of the Act. There is no further guidance in the Act or the Family Law Rules 2004 (Cth) (“the Rules”) regarding expedition of appeal hearings. However, useful reference can be made to the factors contained in r 12.10A of the Rules which relates to expedition of trials:
(2) The court may take into account:
(a)whether the applicant has acted reasonably and without delay in the conduct of the case;
(b) whether the application has been made without delay;
(c) any prejudice to the respondent; and
(d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
…
(4) For paragraph (2)(d), a relevant circumstance includes:
(a)whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b)whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c) whether the applicant is suffering financial hardship that:
(i) is not caused by the applicant; and
(ii) cannot be rectified by an interim order;
(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 (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f)whether the case involves allegations of child sexual, or other, abuse; and
(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.
This matter does fall into the category of cases where expedition should be granted. There is at least the appearance of a failure to accord procedural fairness and comprehensive orders have been made in the absence of a proper hearing including consideration of all the evidence. In particular, the mother makes serious allegations of family violence and also suffers from a mental illness. The appeal can be heard by a single judge.
It was agreed that the costs should be reserved.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 3 November 2016.
Associate:
Date: 3 November 2016
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