Lawler and Oliver - [2016] FamCAFC 80

FAMILY COURT OF AUSTRALIA

LAWLER & OLIVER

[2016] FamCAFC 80

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting orders and an appeal against a refusal to grant a stay of those orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeals does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth): s 94(2D)(j)
Family Law Rules 2004 (Cth): r 12.10A

APPLICANT:

Ms Lawler

RESPONDENT:

Mr Oliver

FILE NUMBER:

SYC

7081

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

4 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

4 May 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 April 2016

LOWER COURT MNC:

[2016] FamCA 210

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

That the Application in Appeal filed on 18 April 2016 be dismissed.
Grant leave to the mother to make an oral application for expedition of an appeal against the refusal to grant a stay ordered 3 May 2016.
The oral application be dismissed.
The Court requests that the Eastern Appeals Registrar issue procedural orders and directions for the preparation of appeal books by the mother and such other directions as may be required to enable the appeals to be prepared and ready to proceed in the event there becomes space available that does not involve the dislocation of other appeals.
The costs of these applications will be costs in the appeals.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawler & Oliver has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 57 of 2016
File Number: SYC 7081 of 2015

Ms Lawler

Applicant

And

Mr Oliver

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By Application in an Appeal filed 18 April 2016 Ms Lawler (“the mother”) seeks an expedited hearing of her appeal against interim parenting orders made by Rees J on 6 April 2016. The mother was also granted leave to make an oral application for an expedited hearing of her proposed appeal against her Honour’s refusal to stay those orders. The refusal to grant the stay being ordered 3 May 2016, that is, yesterday. This judgment then concerns the two applications for expedition.
The proceedings concern the parties’ three children, B a female born in 2007, who is currently eight years of age; C a male born in 2008 who is currently seven years of age; and D a female born in 2010 who is currently six years of age. C and D have both been diagnosed with autism of differing severity.
The effect of her Honour’s orders is that during school term the children’s time with Mr Oliver (“the father”) will be increased by one night each fortnight, such that the children will spend four nights in each fortnight with the father and ten nights with the mother. In increasing the time the children are to spend with the father, the primary judge’s orders are structured such that the children will spend dedicated time with each parent. The configuration is that B and C will be separated from D and she from them two nights a fortnight. B and C will not be separated from each other. It appears that part of the reason for the children’s separation under the orders is to account for C and, in particular, D’s special needs.
The father is the respondent to these applications. He seeks to uphold the orders made by the primary judge and concedes properly, as indeed does the mother, that whether or not expedition is ordered is a matter for the Court, taking into account the particular circumstances of the case compared with those cases awaiting a hearing.

Relevant background

In order to give this application context, it is necessary to refer to some brief background facts. These are largely taken from her Honour’s reasons and the documents filed in support of this application.
The father is 44 years of age.
The mother is 40 years of age.
The parties commenced cohabitation in 2001. They married in 2005 and separated on a final basis in late February 2015.
As earlier noted the parties have three children. The parties’ youngest child, D, has been diagnosed with an autism spectrum disorder, severe developmental delay, anxiety and obsessive compulsive traits with behavioural concerns. It is not in issue between the parties that “[D’s] particular difficulties require special consideration by them as parents” (at [10] reasons).
The parties’ son, C, has also been diagnosed with an autistic disorder, however, he is currently being educated within the mainstream school system at a private boys’ school. As observed by the primary judge, there was no evidence before the court at first instance to suggest C was not coping well within the mainstream school system.
Following separation the children have lived primarily with the mother and spent time with the father. It appears uncontroversial that prior to separation, as the solicitor who appeared for the mother today described the arrangements, the mother was the predominant carer of the children and the father was heavily involved in his career. The arrangements made for the children’s care post‑separation appear to largely reflect that fact, and also the fact that there needed to be some adjustment because the parties no longer lived in the same home. Those arrangements were made by agreement, and it appears common ground the agreement was honoured.
In any event, an application for parenting orders was commenced by the father, and on 27 November 2015 the parties entered into interim consent orders which provided for them to have equal shared parental responsibility, and for the children to live with the mother and spend time with the father each alternate weekend from Friday afternoon until Monday morning and for half of each school holiday period.
There was an outstanding issue concerning the magnitude of the children’s time with the father during school term, and with the parties unable to come to an agreement about that issue, it was determined by Senior Registrar Campbell on 16 February 2016. The Senior Registrar increased the father’s time with the children, in effect, providing for the additional night each fortnight ordered by the primary judge, save that he provided for a graduated implementation of that arrangement.
The mother filed an application for review of those orders, which was heard by the primary judge on 23 March 2016 and in relation to which her Honour pronounced orders on 6 April 2016. These are the orders under appeal in the first appeal. The circumstances which gave rise to the review hearing and the issue for determination before the primary judge are set out at [3]-[6] of her Honour’s reasons for judgment, and which I incorporate into these reasons as follows:
3.On 16 February 2016, orders were made by Senior Registrar Campbell for the children to spend further time with their father. In the case of [B] and [C], from the completion of school each Tuesday until the commencement of school on Wednesday in each alternate week. As to [D], from the completion of school on Thursday in each alternate week prior to the weekend she would normally spend with her father so as to extend the alternate weekends to four days. The effect of the orders made by the Senior Registrar was that [B] and [C] on the one hand, and [D] on the other hand, would have dedicated time with their father and consequently with their mother during school weeks.
4.The mother has filed an application to review the decision of the Senior Registrar. The matter therefore comes before the Court by way of hearing de novo.
5.The mother asked the Court to maintain the regime which was agreed upon between the parties in the consent orders of 27 November 2015 without further mid-week time for the children with their father. The father asked the Court to make orders which would preserve the regime which was ordered by the Senior Registrar.
6.The only matter therefore to be determined is whether the children’s time with their father, during school terms, should be confined to weekends from Friday afternoon until Monday morning or whether there should be time for the children with their father during the school week and, if so, in what configuration.
I also note the primary judge’s observations at [7] of her Honour’s reasons for judgment concerning the limitations imposed upon her assessment of the evidence as a result of the interim nature of the proceedings and which I incorporate into these reasons:
7.Because this matter proceeded on the basis of the untested evidence of the parties and it is difficult, if not impossible, to make factual determinations in the absence of cross-examination, particular weight must be given to the evidence before the Court which can be said to be independent of the parties.
Thus, in assessing the parties’ competing proposals her Honour gave particular weight to the independent evidence of family consultant, Ms E, who prepared a report in the matter, as well as the affidavit evidence of D’s special needs teacher, Ms F, and D’s treating paediatrician, Dr G.
After setting out in some detail the independent evidence and the care arrangements proposed by the parties, her Honour concluded (at [34]):
34.I accept the evidence of Ms [E] and Dr [G] that these children would benefit from an arrangement such as that which is proposed by the father. [D’s] time with her father would be increased from three days a fortnight to four days a fortnight. She would have the advantage of a day and a night in the sole care of her father without her brother and sister. They would have the advantage of a day and a night in the care of their mother without [D]. [D] would then have the advantage of the balance of the weekend from Friday afternoon until Monday morning in the care of her father in the presence of her siblings. If [B] and [C] spend every alternate Tuesday night with their father they will benefit from spending one-on-one time with him and [D] will benefit from spending that time in the sole care of her mother without the distraction of her siblings.
Following the hearing on 23 March 2016, her Honour reserved her decision and subsequently made orders and delivered judgment on 6 April 2016. The orders are as follows:
(1)That in addition to the time which the children are to spend with their father pursuant to the orders made on 27 November 2015, the children [B] (“[B]”) born […] 2007, [C] (“[C]”) born […] 2008 and [D] (“[D]”) born […] 2010 shall live with the father during school terms as follows:
(a)As to [B] and [C], from the conclusion of school on Tuesday until the commencement of school on Wednesday in each alternate week;
(b)As to [D] from the completion of school on Thursday until the commencement of the period of time when [D] would live with the father on alternate weekends pursuant to the November orders.
It is to be observed that her Honour’s orders concerning overnight time during the school week commence immediately, whereas the orders of 16 February 2016 made by the Senior Registrar, as I have already mentioned, provided for a staged implementation.
It should also be observed that the mother contends, in her Amended Notice of Appeal filed in support of the first appeal that the immediate commencement of the orders was not sought before her Honour and that in making the orders the mother has been denied procedural fairness. It may be that there is some substance to that complaint, but it needs to be understood that the effect of the asserted denial of procedural fairness is of small compass and that by July 2016, the orders made by her Honour replicate the orders made by the Senior Registrar. It seems likely that the effect of a denial of procedural fairness if the complaint is made good is of some four to six occasions of extra time for the children with the father than the Senior Registrar ordered.
On 18 April 2016 the mother filed her Notice of Appeal and application for expedition of the appeal against the orders of 6 April 2016, as well as her application for a stay of the orders. As earlier noted, the primary judge dismissed the mother’s application for a stay of the orders yesterday.

Discussion

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 Rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial and provides a useful guide to the approach that might be taken in relation 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, and that lies at the heart of these applications. The potentially relevant factors referred to in the rule which the Court may take into account and which are also relevant to appeals will be discussed. As I move through the relevant provisions I do so on the basis that an order which granted expedition of these appeals would be to the detriment of other cases.
Sub-paragraph (2)(a) is concerned with whether the mother has acted reasonably and without delay in the conduct of her case. There is no doubt that in relation to the appeals and these applications the mother has moved promptly and done all that is required to prosecute her appeals and her applications for expedition. The application of the sub-paragraph weighs in favour of an order for expedition.
Sub-paragraph (2)(b) is concerned with whether the application has been made without delay. That matter has already been addressed and need not be considered further.
Sub-paragraph (2)(c) concerns prejudice to the respondent, in this case, the father. Nothing was said by counsel for the father which suggests that an order to expedite the appeals would impose any disadvantage or prejudice him in some way. The application of sub-paragraph (c) is moot.
Sub-paragraph (2)(d) requires consideration of relevant circumstances which would justify this case being given priority to the detriment of other appeals. When I say the detriment of other appeals, I mean to other cases that have been filed earlier and would be called on for hearing in the ordinary course, but not if the appeals were expedited. In this regard, it needs to be understood that some of those appeals awaiting hearing also concern appeals in relation to the welfare of children and concern appeals where it is asserted children are at risk.
The orders are structured such that there are two nights a fortnight where D will be separated from her siblings. That is, every second Tuesday when B and C are to spend an additional night with the father while D remains with the mother, and every second Thursday D will spend an additional night with the father while B and C remain with the mother.
In her affidavit, the mother deposes that she is concerned about the emotional and psychological impact on the children as a result of being separated from each other and, as I understood the submissions made today, also particularly D from her. In support of this the mother refers to evidence of the children’s expressed views and distress at the prospect of being separated. In particular, the mother deposes that when she explained the effect of her Honour’s orders to B and C, C started crying hysterically, while B became very upset and expressed her distress at being separated from D. It would appear that D is unaware of the effect of her Honour’s orders and probably, given these applications, for good reason. The mother contends that since she told B the effect of the orders, B has “repeatedly expressed her concern regarding [D] spending time with the Father without [B]”.
The expert evidence before the primary judge was that B and C may well benefit in being able to spend time with each of the mother and father in the absence of D and thus without the demands of D’s special needs. The expert evidence also indicated that D would benefit from spending one-on-one time with each of her parents. The primary judge took that evidence into account when considering what orders were in the children’s best interests. Her Honour also had regard to the mother’s concerns about the separation of the children and ultimately concluded (at [34]) that the children’s interests would best be served by the orders which her Honour went on to make.
Finally, it is necessary to consider the grounds of appeal. All that needs to be said is that the mother raises a number of challenges to her Honour’s reasons and exercise of discretion, in particular, her Honour’s treatment of the untested expert evidence. Otherwise the remaining grounds may be classed as weight challenges and the denial of procedural fairness ground to which reference has been made earlier. It needs to be understood and is worthy of emphasis that these are appeals against discretionary judgment. The appeals are in relation to interlocutory orders, albeit with substantive effect.
The barriers to appeals underpinned by challenges of that type are well known and need not be restated here. Suffice to say that the appeals do not appear to be presented on such compelling grounds and in relation to orders which have the capacity to have a profound long-term effect on the children that I am persuaded this Court should dislocate other appeals so as to give these appeals priority.

Conclusion and costs

Notwithstanding the matters that weigh in favour of expedition, in my view the case for these appeals to be given priority has not been made out, and the applications for expedition should be dismissed. I will order accordingly.
That said, I will ask the Eastern Appeal Registrar to settle the appeal indexes for the appeal books. Provision will also be made for the summaries of argument to be filed so that if an appeal falls through, these appeals would be ready and could be interposed at short notice without causing difficulty for other litigants. Appeals do settle and the availability of an appeal hearing at short notice is not a concept which lacks substance. It would be the Court’s expectation that if a Full Court becomes available on short notice and these appeals are ready, then the appellant would accept the date without challenge. An early date, if offered and rejected, would be unlikely to be offered again.
The costs of these applications for expedition will be costs in the appeals.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 4 May 2016.

Associate:

Date: 16 May 2016