Lancefield and Lancefield
[2020] FamCAFC 194
•7 August 2020
FAMILY COURT OF AUSTRALIA
| LANCEFIELD & LANCEFIELD | [2020] FamCAFC 194 |
| FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against final parenting orders that substantially change primary care arrangements – Change in living arrangements to take place six months hence – Where the mother and Independent Children’s Lawyer neutral on the application – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority – Application granted. |
| Family Law Act 1975 (Cth) ss 60CC, 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Mr Lancefield |
| RESPONDENT: | Ms Lancefield |
| INDEPENDENT CHILDREN’S LAWYER: | Acorn Lawyers |
| FILE NUMBER: | WOC | 562 | of | 2018 |
| APPEAL NUMBER: | EA | 105 | of | 2020 |
| DATE DELIVERED: | 7 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 7 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 June 2020 |
| LOWER COURT MNC: | [2020] FCCA 1674 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Powe & White Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Rossi Simicic Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Acorn Lawyers |
Orders
That the Application in an Appeal for expedition filed 24 July 2020 be granted.
That the appeal EA 105 of 2020 be listed for hearing before the Full Court at 10.00 am on 7 October 2020 or as otherwise directed by the Eastern Appeals Registrar.
That the parties confer with the Eastern Appeals Registrar as to further directions in relation to the appeal.
That the costs of the application are to be costs in the appeal.
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 Lancefield & Lancefield 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 105 of 2020
File Number: WOC 562 of 2018
| Mr Lancefield |
Applicant
And
| Ms Lancefield |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 24 July 2020, Mr Lancefield (“the father”) seeks to expedite his appeal against final parenting orders made on 29 June 2020 (“the orders”) in proceedings between him and Ms Lancefield (“the mother”). The orders relate to parties’ children, X, born in 2009 and, Y, born in 2011 (“the children”).
Relevantly the orders under appeal provide:
·for the parties to have equal shared parental responsibility for the children (Order 1);
·until 23 December 2020, for the children to live with the father and spend time with the mother for three weekends and two week nights, as well as half school holidays (Orders 2 and 3);
·thereafter, for the children to live with the mother and spend time with the father for three weekends during school term and half of school holidays and; for the father to be at liberty to spend time with the children for one additional weekend per school term upon providing 28 days’ notice to the mother (Orders 6–8);
·for the Family Report prepared by the family consultant, Mr E (“the family consultant”) and his supplementary Report dated 19 May 2020 be provided to the children’s counsellor to assist them in relocation and change of residence (Order 22); and
·for the children to be enrolled in a school within Region B prior the commencement of the 2021 school year (Order 25).
The orders change the children’s living arrangements from 23 December 2020, so that they move from the father’s primary care to that of the mother’s.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the best interests of the children. The ICL does not support or oppose expedition.
The mother agrees with the ICL that expedition is a matter for the court.
The main issues permeating the proceedings include the question of the mother’s parenting capacity arising from mental health difficulties, the children’s views and allegations that the father had engaged in family violence as well as acts of coercion and control during the parties’ relationship and post‑separation [7].
Background
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed by the father in this application.
The mother is 40 years old and the father is 41 years old. They are employed in the public sector.
The parties commenced a relationship in early 2008. They lived in a town in New South Wales close to the Victorian border. Their relationship ended in about November 2017.
After separation, the mother admitted herself to hospital for treatment relating to her mental health for about six weeks [22]. On 20 December 2017, she was discharged from hospital and moved to Town K to live with her parents. It seems to be uncontroversial that thereafter the father had primary responsibility for the children’s care. Although it is not entirely clear, it would seem that the children lived with him with the mother’s agreement and that he facilitated the children spending time with her. By no later than April 2018, a disagreement developed in relation to the children and on 8 June 2018, the mother commenced proceedings in the Federal Circuit Court of Australia seeking parenting orders and later, property orders. The property application was dealt with by consent.
On 24 July 2018, interim orders were made by consent, which provided for the children to live with the father and for the mother’s time with the children to increase to overnight time including for two weekends during school term in the Town R area and for 10 nights during school holidays.
The matter was listed for final hearing in July 2019 at Town R. However, it was not reached and was transferred to Sydney. By this time, the father had moved to Town J with the children and his partner Ms H [139].
The final hearing was heard over six days; on 5 and 6 September 2019, 19 to 21 February 2020 and then 1 June 2020. Further interim orders were made which increased the mother’s time with the children.
His Honour delivered his reasons for judgment and pronounced orders on 29 June 2020.
In determining where the children should live, his Honour made findings that the mother presented a “low to moderate risk of a recurrence of a major depressive disorder, and the inevitable consequences of that on her parenting capacity, is a risk which weighs in favour of the children remaining with [the father]” [227]. His Honour also noted that a change of residence “will necessarily involve instability and that there is an element of risk inherent in the unknown and that this would support the children remaining with [the father]” [229].
However, it would seem the primary basis for the order that the children should live with the mother is outlined at [225]–[226] and [228] of the reasons for judgment, which is as follows:
225.Having weighed the risks inherent in [the mother’s] mental health history as best I can, together with the risks to the children’s development and relationship with [the mother], given the likelihood that [the father] will continue to act in the same way as he has done since separation, and also considering the children’s views, the benefit of the existing known stability against the risks inherent in a move, and the probable but not certain benefits of a more nurturing environment at [the mother’s] residence, I have formed the view for the reasons given by [the family consultant] and also considering [the mother’s] mental health, that the greatest weight should be given to the risks to the children from [the father’s] established conduct in seeking to exercise sole parental responsibility and to control and minimise [the mother’s] involvement in the children’s lives, and in failing to actively promote their relationship with her.
226.The factors relating to [the father’s] coercion or control and failing to support the children’s relationship with [the mother] support a change of primary residence.
…
228.I find that the children’s need for a more nurturing environment and the probability, but not certainty, that they will receive this at [the mother’s] residence also supports a change of residence.
In balancing the factors outlined in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), his Honour ultimately found that it would be in the best interests of the children for them to live with their mother from the end of 2020 [230].
The expedition application
Section 94(2D)(j) of 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 to the question of 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 applicant has acted reasonably and without delay in the conduct of the case. I accept that the father has lodged his appeal in a timely manner, along with his application for expedition. I have no doubt that whatever is required of the applicant to bring an appeal on for an urgent hearing would 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 respondent. The mother did not suggest she would be prejudiced if an order for expedition were made and I thus proceed on the basis she would not be.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a)–(g). Of these, the father focuses on subparagraph (g), which concerns 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 submissions made on behalf of the father focus on the impact of the living arrangements on the children who, it was emphasised, are young, have experienced significant change, and were previously in the father’s primary care. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the children. There is some force in that.
Further, subparagraph (f) concerns whether the case involves allegations of child abuse. As the primary judge indicated at [7(b)], this case involves allegations of family violence. By the time of final submissions, the parties and the ICL were agreed, “neither parent poses an unacceptable risk of physical or psychological harm to the children” [4(b)]. His Honour accepted that the children could safely live with either parent [236] and declined to make a formal finding that “[the father] engaged in family violence within the meaning of the Act” [102]. Nothing more needs be said in relation to this.
It is necessary to consider the grounds of appeal. The father asserts that the primary judge erred in:
· finding that the father failed to support the children’s relationship with their mother (Ground 2), and failed to take into consideration evidence on this point (Ground 3);
· failing to find that the mother had expressed negative views about the father towards the children (Ground 6);
· finding that the father “continued to monitor the mother’s iTunes account until at least some time until the months prior to July 2019” (Ground 1);
· failing to take into account evidence which would go against the finding that the children would receive a more nurturing relationship in the mother’s household (Ground 5);
· failing to give adequate reasons for the finding that the father would likely continue to act as though he asserted sole parental responsibility over the children (Ground 4);
· incorrectly applying principles concerning the children’s views (Ground 7);
· failing to give reasons as to the effect on the children of a change of residence (Ground 8);
· failing to give adequate reasons for a finding that a breach of orders would be less likely if the children lived with the mother (Ground 9); and
· failing to afford the father procedural fairness in relation to the orders for the children’s vaccinations (Ground 10).
All that needs to be said at this point is that there are matters of substance raised in his Notice of Appeal and it could not be said that this appeal is so lacking in merit that an otherwise strong application for expedition would be denied on this basis.
On balance, it is the matters that go to the welfare of young children and the substantial change in their living arrangements, which tips the balance in favour of expedition. Expedition will mean that if the appeal is successful, the children will be spared unnecessary dislocation. And if it is unsuccessful the children can move with a degree of settlement for the future.
I will order accordingly.
I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 7 August 2020.
Associate:
Date: 7 August 2020
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