Lambton and Lambton

[2017] FamCAFC 63

FAMILY COURT OF AUSTRALIA

LAMBTON & LAMBTON [2017] FamCAFC 63

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal on the basis that her physical and mental health has declined since the trial – Where the appeal is not of sufficient urgency to warrant displacing other appeals awaiting hearing – Application dismissed.

Family Law Act 1975 (Cth) s 94(2)(j)

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Ms Lambton

RESPONDENT: Mr Lambton

FILE NUMBER: SYC 212 of 2015

APPEAL NUMBER: EA 24 of 2017

DATE DELIVERED: 30 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 30 March 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 15 February 2017

LOWER COURT MNC: [2017] FamCA 73

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Pigdon Norgate Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Middleton solicitor

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. The Application in an Appeal filed 13 March 2017 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 Lambton & Lambton 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 24 of 2017
File Number: SYC 212 of 2015

Ms Lambton

Applicant

And

Mr Lambton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 13 March 2017, Ms Lambton (“the applicant”) seeks expedition of her appeal against orders made by Rees J on 15 February 2017.  Her Honour had before her proceedings between the applicant and Mr Lambton (“the respondent”) in relation to their daughter B (“the child”), who was born in 2013.  The significant issue that was before the primary judge was whether the applicant should be permitted to take the child to live with her in the United Kingdom.  The order that was made by the primary judge was that the child live with the mother, but that the child remain in Australia.

2. A Notice of Appeal against that decision was filed on 13 March 2017, the same day as the Application in an Appeal. 

3. The respondent neither consented to nor opposed the application. 

4. Section 94(2)(j) of the Family Law Act 1975 (Cth) provides that an order can be made to expedite an appeal. Rule 12.10A of the Family Law Rules 2004 (Cth) provides that when determining an application for expedition of a trial, the Court may have regard to a number of considerations including whether the applicant has acted reasonably and without delay in bringing the application for expedition, prejudice to the respondent, and whether there is a relevant circumstance by which the case should be given priority to the possible detriment of other cases. While this rule only applies to trials, the same considerations are relevant to an application for the expedition of an appeal.

5. This application and the appeal have been brought promptly.

6. The main basis on which the application for expedition was brought is the mother’s mental and emotional health.  That had been an issue before the primary judge, with evidence as to that issue having been given by the applicant’s treating psychiatrist and by a single expert.  The primary judge summarised the psychiatrist’s evidence as follows:

   72.In evidence in chief, [the psychiatrist] said that the mother’s prognosis, should she be required to stay in Australia, was moderately poor. He said he had concerns about her ongoing depression, low mood and dysphoric state.

   73.He believed the mother’s state was chronic because she feels pessimistic about being able to create a life for herself in Australia and her ability to pursue her employment and to create a full and healthy environment for her child.

7. A further issue was the extent to which those difficulties would affect the wellbeing of the child.  The primary judge concluded:

   132. Neither [the single expert] nor [the psychiatrist] predicted that, in Australia, the mother would not be able to parent the child. Rather, they said that her parenting might not be optimal. [The psychiatrist] was confident that the mother would continue to care well for the child, whatever the outcome of the proceedings.

8. The applicant’s evidence, however, is that her condition has worsened since the trial and since the making of the orders.  She has little appetite and has lost significant weight.  She has trouble sleeping and is experiencing regular and frequent panic attacks.  Her dose of temazepam has been doubled accordingly.  She continues to feel depressed and has consulted the psychiatrist on at least four occasions, with significantly greater frequency than she had prior to the trial.  She is concerned that her state of health is adversely affecting her care of the child. 

9. Further, the applicant is now unemployed.  She was previously employed as a health professional.  In November 2016 she went on extended sick leave and ceased employment altogether in February 2017.  I accept that this is leading to significant financial difficulties for her.  These are significant matters which are at the least capable of adversely affecting the welfare of the child.

10. It is, however, necessary to take into account other appeals awaiting hearing, including those in which there are significant issues affecting the best interests of children.  My understanding of the present state of the list is that if a Draft Appeal Index were to be filed within the next day or so, it is likely that the appeal would be heard in September of this year, assuming of course compliance with all relevant directions. 

11. On balance, I consider that such a hearing date adequately reflects the urgency of this matter, when other appeals awaiting hearing are taken into account.  Had the delay in coming on for hearing been any longer than this, I would have been inclined to make an order for expedition, but in the circumstances I do not consider that to be necessary.  It follows, however, that on this basis the application will be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 30 March 2017.

Associate: 

Date:  11 April 2017