Kovac & Hurst
[2021] FamCAFC 14
•19 February 2021
FAMILY COURT OF AUSTRALIA
Kovac & Hurst [2021] FamCAFC 14
Appeal from: Kovac & Hurst [2020] FamCA 1033 Appeal number(s): EAA 171 of 2020 File number(s): SYC 2405 of 2016 Judgment of: RYAN J Date of judgment: 19 February 2021 Catchwords: APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Mother seeks expedition of her appeal against final orders relating to the father’s time with the parties’ children – Where the orders are stayed pending appeal – Expedition not opposed – Appeal raises child welfare and abuse issues – Factors justify this appeal being given priority over other appeals – Application granted. Legislation: Family Law Act 1975 (Cth) ss 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A
Division: Appeal Division Number of paragraphs: 45 Date of hearing: 10 February 2021 Place: Sydney Solicitor for the Applicant: Walter & Elliott Family Lawyers Solicitor for the Respondent: Lama Family Lawyers Counsel for the Respondent: Mr Givney Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates Counsel for the Independent Children's Lawyer: Mr Fermanis ORDERS
EAA 171 of 2020
SYC 2405 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS KOVAC
Applicant
AND: MR HURST
Respondent
ORDER MADE BY:
RYAN J
DATE OF ORDER:
10 FEBRUARY 2021
THE COURT ORDERS:
(1)That the solicitor for the respondent file a Notice of Address for Service in the appeal within seven (7) days of the date of these orders.
(2)That the hearing of appeal EAA 171 of 2020 be expedited.
(3)That the costs of this application will be costs in the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kovac & Hurst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RYAN J:
INTRODUCTION
By an Application in an Appeal filed on 6 January 2021, Ms Kovac (“the mother”) seeks to expedite her appeal against certain final parenting orders made on 3 December 2020 (“the orders”) in proceedings between her and Mr Hurst (“the father”). The orders concern the parties’ children, X born in 2011 and Y born in 2014 (“the children”).
The mother’s application is supported by the father and the Independent Children’s Lawyer (“ICL”), who was appointed to represent the best interests of the children.
Inter alia, the orders provide for:
·the mother to have sole parental responsibility for the children, provided she consults with the father and keeps him informed of all major long-term decisions that she makes in relation to the children (Order 2);
·the children to live with the mother (Order 3); and
·the children to spend supervised time with the father for four Sundays and, immediately thereafter, for the requirement for supervision to cease and the children’s time with the father to commence 3.00 pm Wednesdays to 9.00 am Fridays in each alternate week, from 9.00 am on Saturday to 9.00 am on Monday in every other week during school term and, for half of all school holidays (Order 4).
By her Notice of Appeal filed on 22 December 2020, the mother appeals the orders and ancillary orders allowing the father unsupervised time with the children (Orders 4 to 9).
On 21 January 2021, on the application of the mother, the orders providing for the father to spend unsupervised time with the children (Orders 4, 5, 6 and 9) were stayed pending the outcome of the appeal. It is a condition of the stay that the mother prosecutes her appeal expeditiously.
BACKGROUND
So as to give this application context, it is necessary to refer to some brief background facts. These facts have been taken from the trial reasons and the documents filed by the mother in this application.
The father is 64 years of age. He has three adult children from a previous relationship.
The mother is 46 years of age. She has one adult child from a previous relationship.
The parties met in early 2010 and commenced a relationship shortly thereafter. Their children were born on the dates indicated.
On 20 April 2016, the mother commenced property and parenting proceedings in the Federal Circuit Court of Australia. Property orders were later entered into by consent and, on 27 July 2017, the mother filed a Notice of Discontinuance in relation to the parenting proceedings. In December 2017 the parties agreed upon arrangements for the children to spend time with the father [18].
On 1 June 2018, the mother reported to police that X told her that his father hit him three times, he was “hysterically crying” and had “red marks on his back” [21].
On 18 June 2018 an interim Apprehended Violence Order was issued against the father for the protection of the mother, but the application was withdrawn later that month [14].
On 29 August 2018 the mother commenced the present proceedings in the Family Court of Australia, seeking parenting and child support departure orders. She later withdrew her application for a departure order.
On 17 April 2019 interim orders were made which provided for the children to spend overnight time with the father during school term and for block periods during school holidays.
On 1 September 2019 the mother reported to the Department of Communities and Justice (“DCJ”) a disclosure made by Y of sexual conduct by the father towards the children [30]–[32]. The next day, the mother took the children to an interview with the Joint Investigation Response Team (“JIRT”). Neither child spoke to the officers on that occasion or at a second attempt at interview on 4 September 2019. JIRT closed their investigation without taking any further action [55].
On 12 September 2019 interim orders were made to suspend the children’s time with the father.
On 22 October 2019, interim orders were made which provided for the children to spend supervised time with the father for four hours each Sunday.
As a result of the mother’s allegations that the father had subjected Y or both children to sexual abuse (which he denied), the main issue to be determined at trial was whether the children would be placed at an unacceptable risk of harm in the unsupervised care of the father [1]. Also relevant to the proceedings was the various incidents of sexualised behaviours exhibited by the children.
The mother sought orders that she have sole parental responsibility for the children, that the children live with her and spend supervised time with the father on an indefinite basis. Additionally, she sought orders which would permit her to relocate the children’s residence to City C or Melbourne, Victoria. The father sought orders that the children spend time with him for six nights per fortnight; half of all school holidays and on special occasions. The father opposed the mother’s relocation proposal and sought orders which would require the children to continue to live in the northern suburbs area of Sydney. The ICL proposed orders that the mother have sole parental responsibility for the children and that she be permitted to relocate their residence to City C, that the children spend day periods only with the father for four weeks, followed by three overnight stays. After the proposed relocation, the children would spend time with the father on three weekends per term and half school holidays.
Her Honour delivered her reasons for judgment and pronounced orders on 4 December 2020.
In relation to the mother’s allegations of sexual abuse and/or exposure of the children to inappropriate sexual behaviour by the father, the primary judge considered evidence given by Dr O, a professional engaged in the matter. Dr O prepared a single expert report dated 5 February 2020. In his report, Dr O said:
49. …
118.The allegations of sexual abuse are centred around Y's disclosures to her mother following a time spent with her father on Father's Day 2019. [The mother’s] disclosed that her concerns were based on Y's merely expressed anger towards her and the episodes of Y and X engaging in sexualised behaviours, attributable to [the father’s] potential (alleged) sexual abuse of the children.
119.It is suggested that the occurrence of previously unseen defiant behaviour is not unexpected in a five year old child whose parents are in a high state of conflict, particularly towards the parent who is imposing a constraint (nil/minimal contact with her father) which does not bode well with the child's immediate wants. The immaturity of the child's understanding of attachment at that age will mean that Y responds primarily to what makes her feel happy and what does not. It is considered highly likely that Y’s angry responses to her mother are a normal developmental feature, not just gaining but asserting independence from one's primary caregiver, while at the same time "testing" the strength and resilience of that primary attachment in the context of having experienced a loss of another attachment. It is also noted that this will continue as she further develops emotionally, physically and intellectually, and the challenge is on the parents to become far more sophisticated in their understanding and parenting styles of both children.
120.With regard to the sexualised behaviours seen in both children, there appears to be an absence of directions from either parent in relation to the behaviours in question. It is apparent that the behaviours began with X a number of years ago and have subsequently continued intermittently since then. [The mother] reported that Y has now also begun to engage in inappropriate sexual behaviour with her peers, but has also reported to observing X and Y in inappropriate sexual play together whilst in the bath. It is considered a possibility that X has continued his interest in sexualised play, but may have done so without adult witness and as such Y has now begun to mirror her brother's behaviour. [The father] reported for the most part to have been left out of all discussions with regard to these behaviours and even stated that he is not being told about some of the occurrences, despite requesting information from the pre-school and [the mother] herself. [The father] also reported that [the mother] requested that he not broach the subject with the children but to simply engage in avoidance behaviour instead to prevent the children being in situations where the sexualised play could occur. Though paradoxically the avoidance of discussion of this issue by one or both parents brings with it the risk that the children perceive this conduct as being condoned, and may in part have contributed to its persistence.
…
122.Following a review of all documents provided, and extensive interviews and assessment conducted, there appears to be minimal identifiable risk posed by [the father] to Y or X presuming that (once unsupervised contact resumes) he provides a firm undertaking that he will not co-sleep with either child again, that when they are in his care he will ensure appropriate respectful personal boundaries are observed by X towards Y and that he will no longer allow them to change, bathe or shower together.
Her Honour said that Dr O “provided a convincing and innocent explanation for the sexualised behaviour of both children” [57] and was satisfied that there was nothing of concern in the nature of the children’s interactions with the father [50]. Her Honour determined that unsupervised time with the father would not expose either child to an unacceptable risk of sexual abuse [55]. Further, the primary judge acknowledged the “reprehensible conduct of the father toward the mother” but noted that his behaviour had abated over recent times and, was of the view that family violence would “not play a significant role in the outcome of these proceedings” [90].
In relation to the mother’s relocation application, Dr O said in his report:
72. …
110.With regard to separation from caregivers, the children have recently had a period of separation from their father and upon their reunion the children's attachment to their father was undeniable, in particular with X. As such it is considered essential that they are able to remain in regular contact with both parents ...
The primary judge rejected the mother’s relocation application having made findings that relocation would cause the children to “lose the opportunity to spend regular time with the father which, as noted, is considered ‘essential’ by Dr O” [75].
The essence of her Honour’s conclusion as to the children’s living arrangements can be discerned from [98]–[99] and [101] of the reasons for judgment, which is as follows:
98.In my assessment, the only advantage to the children which would result from a relocation to City C is the positive impact on the mother in terms of family support and distance from the father. I do not undervalue the benefits to the mother and the flow-on effects for the children.
99.On the other hand, however, Dr O gave very clear evidence of the disadvantages to the children of an inevitable minimisation of the father's role in their lives. Dr O evaluated that regular and significant time with the father is "critical" and "essential" at this stage in their lives. That objective simply cannot be achieved if the children relocate to City C.
...
101.In my view the mother's wish to distance herself geographically from the father is entirely understandable, given his past abusive and coercive behaviour toward her. I can see no good reason, from the perspective of the best interests of the children, for the mother to be required by court order to remain in close physical proximity to the father. Accordingly, I will not accede to that aspect of the relief sought by the father. That being said, it will be incumbent upon the mother to arrange accommodation for the children which will facilitate implementation of the orders of the court.
Her Honour ultimately determined that, in accordance with the recommendations of Dr O, it was in the best interests of the children for them to spend regular time with the father and orders were made to that effect, albeit, her Honour did not consider it necessary for the mother to be required to live in close proximity to the father [101]-[102]. Her Honour was not of the view that the children’s safety required supervision, but agreed with Dr O’s opinion that “some sort of security” would flow to the mother from an arrangement of a period of supervised time before a return to the previous arrangement of four days per fortnight with the father [102].
On 22 December 2020, the mother filed a Notice of Appeal against the final orders. The Notice of Appeal presents five grounds of appeal with numerous sub-grounds. In stating the grounds of appeal in very broad terms, the mother challenges the adequacy of the trial reasons and argues that the primary judge erred by failing to give sufficient weight to the evidence of the single expert and the concerns and risk factors identified by the mother. The final ground concerns her Honour’s failure to order the father to pay half of the costs associated with the preparation of Dr O’s report.
It is my understanding that the hearing of the appeal, unless expedited, is likely to be listed no sooner than the first half of 2022.
In accordance with Order 1 of the orders dated 21 January 2021, the father will spend supervised time with the children only, each Sunday until the appeal has been determined.
THE EXPEDITION APPLICATION
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the Appeal Division or another judge if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Family Law Rules 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Rules deals with applications for an expedited trial, and it provides a useful guide to the approach to be adopted as to expedition of an appeal. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be order of priority. The potentially relevant factors referred to in the rules which should be taken into account in an appeal setting will be discussed.
Subparagraph (a) concerns whether the mother has acted reasonably and without delay in the conduct of the case. I accept that the mother has lodged her appeal in a timely manner, along with her application for expedition. I have no doubt that whatever is required of the mother to bring an appeal on for an urgent hearing will be done. This subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay. I do not have more to say about this.
The next factor which requires consideration is prejudice to the father. An expedited hearing would place the father under some time pressure. This weighs against expedition. However, he supports an expedited hearing and is not concerned about needing to prepare earlier than would have been the case.
A key consideration is whether a relevant circumstance exists which would justify the appeal being afforded priority to the possible detriment of other appeals filed ahead of it (r 12.10A(2(d)). Examples of what may constitute a relevant circumstance are contained in r 12.10A(4)(a)–(g). Relevantly, subparagraph (f) concerns whether the case involves allegations of child sexual abuse, or other abuse. As already mentioned, this case involves family violence perpetrated by the father. However, her Honour was satisfied that the father did not present an unacceptable risk of harm to the children [55] and, as was already mentioned, that family violence would “not play a significant role in the outcome” of the matter [90]. The mother did not point to any concerns in relation to family violence in her affidavit filed in support of expedition. Consequently, this is not a factor that will weigh in favour of expedition.
In her affidavit filed in support of expedition and the submissions filed on her behalf, the mother focuses on subparagraph (c), which concerns financial hardship. It is clear from the mother’s affidavit that she seeks to relocate to Victoria, where, the mother contends she will receive financial and emotional support from family. The mother says that due to her poor financial situation she can no longer afford to live in the northern suburbs, which is where the father lives and the children go to school. It is not clear why the mother’s family can support her in Victoria but not if she is in NSW.
Further, the mother deposes to receiving a total income of $684 per week, comprising $184 per week from casual employment and an additional $500 per week from JobKeeper (mother’s affidavit filed 6 January 2021, paragraph 26). However, she believes her JobKeeper payment will cease at the end of March 2021. The mother also records that the amount of child support payable to her by the father has reduced from $249.72 per week to $97.78 per week and that the father is in arrears of some $858.67 (mother’s affidavit filed 6 January 2021, paragraph 29).
Of course, while it is unfortunate that the mother is enduring financial difficulties, the same can be said of many litigants who find themselves caught in court processes following the breakdown of their marriage or relationship. This factor in and of itself is therefore not sufficient to dislocate other appeals.
In support of expedition, the mother also addressed subparagraph (g), which concerns whether an expedited trial would avoid serious emotional or psychological trauma to a party or a child who is the subject of, or affected by, the case. The mother says that she has observed X to be “distressed, angry and presenting with low mood”, refusing to go to school and “pulling his hair out during times when he is angry and distressed” (mother’s affidavit filed 6 January 2021, paragraph 31). She says that she has been advised that X “needs to engage in long term therapy”, albeit, she does not want to commence the child’s therapy until the appeal has been determined and, in the meantime, has enrolled the child into the Cool Kids Online programme (mother’s affidavit filed 6 January 2021, paragraph 32).
What the mother has failed to do, is identify that the child’s behaviours as recounted by her, are more than one might anticipate where a child has been involved in a high state of conflict. I accept the mother’s evidence that the child’s behaviours create genuine concern for her.
More tellingly, the father supports expedition, because the orders for him to spend regular unsupervised time with his children are currently stayed pending the outcome of the appeal. An expedited appeal is said to have the effect of reducing the potential for emotional upset for the child by virtue of arrangements stopping and starting. Each of these contentions is accepted and given significant weight.
In relation to the merits of the appeal, it could not be said that this appeal is so devoid of merit or that the grounds are so compelling that this should influence the question of whether or not an order for expedition should be made.
On balance, it is the matters that go to the welfare of the children and their ability to spend time with their father in accordance with the orders which the primary judge was satisfied are in their best interest, and which are presently stayed, which tips the balance in favour of expedition.
CONCLUSION AND COSTS
Thus, the factors justify expedition and I will order accordingly.
The costs of the application will be costs in the appeal.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan. Associate:
Dated: 19 February 2021