MADDIGAN & GEARY
[2016] FamCAFC 101
•17 June 2016
FAMILY COURT OF AUSTRALIA
| MADDIGAN & GEARY | [2016] FamCAFC 101 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the mother seeks to expedite an appeal against parenting orders that the child live with the father and that the mother is restrained from approaching the children for a period of time – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed – Where there is no order as to costs. |
| Family Law Act 1975 (Cth) s 94(2D) Family Court Rules (2004) r 12.10A |
| Moxon & Moxon [2010] FamCAFC 67 |
| APPLICANT: | Ms Maddigan |
| RESPONDENT: | Mr Geary |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | CAC | 2054 | of | 2010 |
| APPEAL NUMBER: | EA | 81 | of | 2016 |
| DATE DELIVERED: | 17 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 14 June 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 April 2016 |
| LOWER COURT MNC: | [2016] FamCA 279 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Cameron |
| SOLICITOR FOR THE RESPONDENT: | Mr Ridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Burgess, Legal Aid ACT |
Orders
The application for expedition of the appeal against the orders of Austin J made on 28 April 2016 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maddigan & Geary has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY | THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 81 of 2016
File Number: CAC 2054 of 2010
| Ms Maddigan |
Applicant
and
| Mr Geary |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Maddigan (“the mother”) has appealed against parenting orders made by Austin J on 28 April 2016. By an Application in an Appeal filed on 25 May 2015, she seeks that the hearing of the appeal be expedited.
Mr Geary (“the father”) and the solicitor for the Independent Children's Lawyer, Ms Burgess, neither consent to nor oppose the application.
The parenting orders relate to the children of the parties who are presently aged 12, nine and seven years respectively. The effect of his Honour’s orders was that the children live with the father, that he have sole parental responsibility for them and that until 23 June 2016, the mother was not to approach the father’s residence nor the children’s school. After 23 June 2016, his Honour made orders providing for the children to spend time with the mother during weekends and during school holidays.
It is not necessary to traverse his Honour’s reasons for his decision for the purposes of this application. He did say however:
71. The only risk of harm threatening the children is one germane to
s 60CC(3) rather than s 60CC(2) of the Act. It is the threat posed to their emotional security by exposure to incessant parental conflict. As the single expert said, adopting as correct the view formerly expressed by a Family Consultant in earlier litigation between the parties:[1][The father] and [the mother] both appear to love their children and want the best for them. The difficulty is that each perceives their children’s interests in very different ways. [The mother] is consumed with insuring [sic] that most aspects of the boys’ lives are highly regulated, she leaves little to chance. [The father] has a tendency to be more organic in the way he parents the boys, responding in an ad hoc manner to their needs. Their styles are polar opposites.
The greatest risk to the boys at this stage is the highly conflicted relationship between the parents. The lack of respect and regard that they display towards each other is affecting [the children’s] emotional development and ultimately their view of themselves.
72. The parties have failed to absorb such advice despite experiencing more than five years of litigation since their final separation. In all probability, they never will. The single expert opined neither party is motivated to accept therapeutic education[2] and, in her view, they would remain:[3]
…two very different people, who have polar opposite parenting styles and considerable levels of acrimony and animosity towards the other.
[1] Single expert report, para 224
[2] Single expert report, paras 84, 122
[3] Single expert report, para 231
His Honour, then said, after traversing the evidence:
108. The sole consideration of primary importance in these proceedings (s 60CC(2)) is the need for the children to continue deriving benefit from their meaningful relationships with both parties. That outcome can only be achieved if both parents remain significantly involved in the children’s lives, which objective would be scuppered if one party was either eliminated from, or marginalised in, the children’s lives in the way the mother envisaged might happen to the father. None of the additional considerations raised by the evidence (s 60CC(3)) carried sufficient weight, either individually or in aggregation, to outweigh the desirability of both parties remaining meaningfully engaged in the children’s lives.
109. Necessarily then, the children should live with one party, but spend substantial and significant time with the other. On balance, the children should live with the father instead of the mother. It would be a mistake to commit the parties, for a third time, to a regime under which the children live with the mother and spend substantial and significant time with the father. That regime has already failed twice, even though the parties willingly acceded to it in the past. Forcing it upon them again now, when neither party wants it this time, would be a recipe for failure and probably result in even more litigation. Significantly, the Independent Children’s Lawyer submitted for a reversal of the children’s residence if her primary proposal for an “equal time” residential regime was rejected.
Thus his Honour came to make the orders from which the mother appeals.
It was uncontentious that during the marriage the mother was the primary carer for the children and, from separation of the parties in 2010 up until his Honour’s orders, the mother had cared for the children and they lived with her.
At the time of the hearing of the mother’s application for expedition, no stay of his Honour’s orders had been sought although it was said that on 16 June 2016, the matter was listed before his Honour for the purposes of the mother seeking a stay of his orders.
However, that being the case, his Honour’s orders have been put into effect and on 28 April 2016 the children were collected from school by the father. Consistently with his Honour’s orders, the mother has had no contact with the children since that time. The children remain at the school which they were attending at the time of the hearing before his Honour and his Honour’s orders provide that their school may not be changed until the end of the 2016 school year.
Relevant Principles
Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals although no criteria or considerations for making that determination are provided. Recourse is often had to rule 12.10A of the Family Court Rules (2004) (“the Rules”) which addresses applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
The application was brought expeditiously.
As to whether there would be any prejudice to the father if expedition was granted, there was some suggestion from the father’s solicitor that he might experience some financial “embarrassment” if the matter was brought on expeditiously. The father’s solicitor said, however, that it was only a possibility and about which he had no evidence. In this matter, I do not find any prejudice to the father if the matter was expedited.
The issue then for determination is whether there is a relevant circumstance which would cause this matter to be given priority over other matters listed for appeal.
The mother, in her affidavit sworn in support of the application deposes to her deep concern that his Honour’s orders resulting in a sudden change of their living circumstances may have upset and unsettled them as they have not before spent long periods of time away from her. She further says that she is upset and very concerned because, by reason of his Honour’s orders, she does not have information about the children. She has attempted to speak to them by telephone, which is provided for in his Honour’s reasons, but without success.
While the mother’s distress and concerns are understandable, they do not, in my view amount to a circumstance which would cause this matter to take priority over other, similar appeals already listed.
I will thus dismiss the application.
Costs
As is usual, the parties’ submissions on the question of costs were sought at the conclusion of the hearing. In the event that the application failed, neither the father nor the Independent Children's Lawyer sought an order for costs.
There will thus be no order as to costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
17 June 2016.
Associate:
Date: 17 June 2016
0
0
2