MALLESON & MALLESON - [2015] FamCAFC 230

FAMILY COURT OF AUSTRALIA

MALLESON & MALLESON

[2015] FamCAFC 230

FAMILY COURT – APPEAL – Application for expedition of an appeal – Where the father seeks to expedite an appeal against interim parenting orders – Where the mother moved with the children to another region in New South Wales – Where the father sought an order at first instance seeking the relocation of the residence of the children – 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.

Family Law Act 1975 (Cth) s 60 CC

APPLICANT:

Mr Malleson

RESPONDENT:

Ms Malleson

FILE NUMBER:

NCC

1809

2015

APPEAL NUMBER:

166

2015

DATE DELIVERED:

5 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

5 November 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

8 September 2015

LOWER COURT MNC:

[2015] FCCA 2757

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bithrey

SOLICITOR FOR THE APPLICANT:

APJ Law

COUNSEL FOR THE RESPONDENT:

Mr Curtis by telephone

SOLICITOR FOR THE RESPONDENT:

A W Simpson & Co

Orders

The Application in an Appeal filed by the Applicant on 2 October 2015 is dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 166 of 2015
File Number: NCC 1809 of 2015

Mr Malleson

Applicant

And

Ms Malleson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 2 October 2015, Mr Malleson (“the father”) seeks an order that his appeal against orders made by Judge Terry on 8 September 2015 be expedited. Her Honour had before her parenting proceedings between the father and Ms Malleson (“the mother”) concerning their two children born in 2012 and 2009. At the time of the hearing they were aged three and six. The father’s application was for interim orders for the children’s residence to be relocated to Town G, where he lives. The mother had moved to Town T with the children in March 2015.
The father was not successful on the interim hearing. The trial judge made orders for the children to live with the mother and spend time with the father during the entirety of the three short school holidays and from 19 December 2015 to 2 January 2016 in the long school holiday. Town X was nominated in the orders as the changeover place being halfway between Town G and Town T which are nearly five hours apart in driving time. The trial judge also ordered the preparation of a family report to be ready by 12 February 2016. The matter was adjourned to 19 February 2016 “for further consideration”.
As the orders indicate, and as her Honour made expressly clear in her reasons, that order was an interim order made to cover the next six to 12 months. It was also a case where the trial judge was limited in the findings that could be made because either there was no evidence to support consideration of a particular factor under section 60CC of the Family Law Act 1975 (Cth (“the Act”) or else there was evidence from each party which entirely conflicted with the other party’s evidence. Ultimately the trial judge concluded that the children would be safe and happy in Town T for the next six to 12 months and that it was not in their best interest to return to Town G.
The father promptly filed a Notice of Appeal on 2 October 2015 and his application seeking expedition on the same date. The father seeks an order that, in the event the appeal is successful, there be an order that the mother return the children to Town G and that a recovery order is issued to ensure compliance. In the alternative, an order is sought remitting the matter for rehearing. The father has obtained the transcript and is in a position to prepare appeal books quickly.
Very briefly, the background to this dispute is that the parties met in 2005 and separated in October 2014. During that time they lived in Town G. On 2 February 2015, there was an incident between the parties that resulted in the father agreeing to an apprehended domestic violence order without admissions. As I have said, the mother moved to Town T in March 2015, where she has family and has a job. As is clear from the trial judge’s reasons, almost everything else is either not stated by the parties or is the subject of a stark dispute.
The issue is whether the hearing of this matter should be advanced over other appeals awaiting a hearing date. The father has acted without delay in appealing and in lodging this application. No prejudice is suggested by the mother if the appeal is expedited. If the matter is expedited, it is envisaged that the appeal would come on for hearing in March or April 2016.
The father submits that, if expedition is not granted, the purpose of the appeal would be lost. If a rehearing were to follow, even from an expedited hearing, the mother would have the benefit of living in Town T with the children for over a year. This, he said, would create a difficulty for him at a final hearing because the children in particular are likely to have become more settled over that time, making it harder for a judge to consider a return to Town G. He submits that it is unlikely that the trial judge will reconsider the matter in February next year and that the likely outcome will be that it will be fixed for hearing at an unknown time.
It follows from this, the father submits, that at any final hearing he will have to contend against an established status quo of the children living with the mother in Town T for well over a year.
Two things may be said about this. First, the trial judge was satisfied on an interim basis that the children should live in Town T. Her Honour was well aware that this involved the risk that the children would become more settled. The trial judge said of this:
7. I must decide on an interim basis whether the mother should return to [Town G] with the children at least until a family report can be obtained and the matter can be heard on a final basis or whether she should be able to remain in [Town T] and parent the children in [Town T] during that period.
Secondly, as I have said, a family report was ordered and, as is apparent from the passage just quoted, the matter was stood over for reconsideration. I take that to mean that when the matter is next before the court, the trial judge will consider looking again at the interim orders or whether the matter should proceed to a hearing with the existing orders in place.
The difficulty is that if this appeal is successful, it is most unlikely that the court would be in a position to re-exercise the discretion, if only because a family report is then likely to be available and is also likely that the parties would wish to adduce updating evidence. That means it is almost inevitable that the matter would be remitted for rehearing. Any expedited appeal is not going to come on before March 2016, and therefore the matter is not likely to be remitted for rehearing until sometime after that. A date for the remitted rehearing would then have to be found. Hopefully, at that stage, the parties will otherwise be close to a final hearing date before the trial judge when the issue can be determined on all of the evidence. Specifically, that means that if the Full Court, even if it were to set aside the existing orders, would probably not make an order returning the children to Town T but remit the matter for rehearing. Thus, the father, in the event the appeal was allowed, would face the same difficulties with the extent of time the children would be living in Town T.
Whilst I completely understand and accept the father’s frustration at this course of events, on balance, this consideration does not favour expedition.
The merits of the proposed appeal are relevant. Whilst a number of the grounds of appeal are against the exercise of discretion, it cannot be said that the appeal is not substantial. However, taking into account the above matters and the other appeals awaiting hearing dates, I am not satisfied that this matter warrants expedition.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Aldridge J delivered on 5 November 2015.

Associate:

Date: 9 December 2015