KOHL & RENNIE

[2019] FamCAFC 13

FAMILY COURT OF AUSTRALIA

KOHL & RENNIE [2019] FamCAFC 13

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks expedition of his appeal against final parenting/relocation orders – Where the father sought to relocate to the country of his birth with the two children – Where the parties have equal shared parental responsibility – Where the children live with the father – Whether there is a relevant circumstances 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(2)(d)
Family Law Rules (2004) r 12.10A

APPELLANT: Mr Kohl

RESPONDENT: Ms Rennie

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel

FILE NUMBER: SYC 984 of 2016

APPEAL NUMBER: EA 1 of 2019

DATE DELIVERED: 29 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 29 January 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 28 November 2018

LOWER COURT MNC: [2018] FamCA 1003

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Richardson SC

SOLICITOR FOR THE APPELLANT: Mills Oakley Sydney

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel

Orders

1. The application in an appeal filed on 21 December 2018 seeking expedition of Appeal EAA 1/2019 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 Kohl & Rennie 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: EA 1 of 2019
File Number: SYC 984 of 2016

Mr Kohl

Appellant

and

Ms Rennie

Respondent

and

Brian Samuel
The Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Kohl to whom I shall refer as “the father” for convenience, seeks expedition of his appeal against final parenting and relocation orders, made by Stevenson J on 28 November 2018.  Ms Rennie who I shall refer to as “the mother” opposes the application for expedition.  The independent children’s lawyer, whilst fundamentally submitting that it was a matter for the court, said that there were some features of the matter which might, if the court was minded to expedite, be relevant, that is the father’s desire to relocate the residence of the children to the country of his birth.

2. The parenting proceedings between the parties concern their two children aged nine and eight years.  The father sought orders that the children live with him, that he have sole parental responsibility, and that he be permitted to relocate overseas.  The mother opposed the father’s application to relocate and sought orders that the children primarily live with her.

3. On 28 November 2018, Stevenson J made orders giving the parties equal shared parental responsibility for the children and the children to live with the father in Australia and spend time with the mother.  The father has appealed these orders.

4. Section 94(2)(d) of the Family Law Act 1975 (Cth) provides for expedition of appeals. Although no criteria are provided within the section, generally speaking recourse is often had to rule 12.10A of Family Law Rules (2004) (“the rules), which addresses applications for expedition before a trial judge. Those considerations are whether:

   ·    the applicant has acted reasonably and without delay;

   ·    the application has been brought expeditiously;

   ·    there is any prejudice to the respondent; and

   ·    there is a relevant circumstance which would cause the case to be given priority over other cases to their possible detriment. 

5. It seems to me that the only relevant issue here is whether there is a reason why this case should receive priority over other appeals waiting to be heard.  The father, in his application for expedition, says that he wishes to return to the country of his birth to be a greater part of his family and own ethnic community.  He says he does not work, he is unhappy with his present living arrangements.  He and the children are living with his brother in a large house and he says the children have warm relationships with his brother, nonetheless he is unhappy.  He says he struggles financially.  It is worth noting, according to the primary judge’s reasons that following an injury the father has been out of employment since 2015 and at least from April 2016 the children have lived predominantly with him, spending weekends with the mother.

6. In submissions this morning, Mr Richardson for the father said that  and this was echoed by the mother, these proceedings have been attenuated through one way or another having been the subject of litigation since 2016, and it is stressful.  That is also apparent from the mother’s submissions.  Mr Richardson submits that it needs to come to an end and no one would argue to the contrary, although he argues that if the appeal is successful it will need to be remitted for further hearing but that is a matter for the Full Court that hears the appeal.

7. Mr Richardson submitted that the father, although unemployed, has been promised employment by his father upon his return, through his father’s position as head of a trust.  The mother wants it to end, although I detect from her submissions that she wants the appeal not to come on for hearing.  Appeals presently are coming on relatively quickly and, in my view, it will be heard quite soon.

8. I am of the view that nothing in the father’s affidavit and nothing put to me today indicates a circumstance which would cause this case to be given priority over other similar appeals waiting to be heard.  In my view, there is no reason to give this matter priority over other appeals, and the application will be dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 29 January 2019.

Associate:     

Date:  29 January 2019