McPherson and McPherson
[2017] FamCAFC 64
•30 March 2017
FAMILY COURT OF AUSTRALIA
| MCPHERSON & MCPHERSON | [2017] FamCAFC 64 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks the expedition of his appeal from interim parenting orders – Where the father complains that the primary judge failed to order sufficient time between the father and the child – Where there is no suggestion that the orders pose a risk to the child’s safety – Where there is no basis for expediting the appeal – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Mr McPherson |
| RESPONDENT: | Ms McPherson |
| FILE NUMBER: | SYC | 4540 | of | 2016 |
| APPEAL NUMBER: | EA | 22 | 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: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 February 2017 |
| LOWER COURT MNC: | [2017] FCCA 254 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPLICANT: | Abrams Turner Whelan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Di Condio solicitor |
| SOLICITOR FOR THE RESPONDENT: | Horton Rhodes Legal |
Orders
The Application in an Appeal filed on 6 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 McPherson & McPherson 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 22 of 2017
File Number: SYC 4540 of 2016
| Mr McPherson |
Applicant
And
| Ms McPherson |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 6 March 2017 Mr McPherson (“the father”) seeks an order that his appeal against interim parenting orders made by Chief Judge Pascoe on 22 February 2017 be expedited.
The orders provided that the child X (“the child”), born 2013, live with Ms McPherson (“the mother”), spend unsupervised time with the father for three hours every Wednesday morning and talk to the father by phone once a week. The orders also provided that the father’s partner is not to be present when the father spends time with the child.
At the interim hearing before the primary judge, the sole issue was the amount of time the child would spend with father.
The mother sought to maintain the supervised time regime that had continued until November 2016: namely, for the father to spend several hours per week with the child, supervised at a contact centre. The father, on the other hand, sought to spend unsupervised time with the child on Saturdays and Wednesdays from 9 am to 7.30 pm each week until 7 January 2017. After 7 January 2017, he proposed to spend unsupervised time with the child from 9 am to 7.30 pm each Wednesday, from 9 am Saturday to 12 noon Sunday each alternate weekend, and from 2.30 pm to 7.30 pm each alternate Friday.
The orders of the primary judge therefore accorded more closely with the orders sought by the mother, although they did not provide for the time to be supervised, as the mother proposed.
By a Notice of Appeal filed on 1 March 2017 the father challenges the orders, principally contending that they fail to promote a meaningful relationship between him and the child.
The father seeks expedition of the appeal, arguing that his relationship with the child will be irreparably damaged if he is limited to spending only three hours per week with the child, as provided for in the orders.
Section 94(2D)(j) of the Family Law Act1975 (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 applies only to trials, the same considerations are relevant to an application for the expedition of an appeal.
The father has brought his appeal and this application reasonably promptly.
The mother did not point to any prejudice that would flow from an expedited hearing and did not otherwise oppose the application.
The first basis on which the father advances his application for expedition is his concern that the orders do not provide enough time for him to maintain a meaningful relationship with the child.
The child has lived with the mother since the parties separated when the child was little over seven months old. Since separation, the time the child has spent with the father has varied.
From November 2015, when the child was two years old, she began to spend overnight time with the father. In May 2016, the mother reduced that time to eight hours per week, supervised at a contact centre. This arrangement ended in November 2016, as the father could no longer afford the costs associated with engaging the contact centre.
In making the interim orders, the primary judge considered that there was a need for the child to have “regular age-appropriate contact with her father” but that overnight time was “neither necessary nor in [the child]’s best interests at this stage of her life” (at [88]).
The father’s complaint is essentially that the orders provide only for a short amount of time each week, and do not allow the father to spend substantial and significant time with the child. The father did not raise any issues concerning the safety or the immediate welfare of the child. Rather, as I have said, the submission is that the orders cause hardship to the child by damaging the meaningful relationship she has with the father and his new partner. I consider that complaint that the primary judge should have ordered the child to spend greater time with the father is not a circumstance that demands the prioritisation of the father’s appeal ahead of others.
The father’s affidavit in support of this application recounts why the father is pursuing his appeal, but not why his appeal is of sufficient urgency to warrant expedition.
I am informed that this matter has now been transferred from the Federal Circuit Court of Australia to the Family Court of Australia. It is submitted that this will mean that it is likely that if the orders are left undisturbed and absent any significant change in circumstances, these interim orders will be in place for some time. Sadly, that will be the case in whichever court the matter is heard.
Whilst, of course, the parenting arrangements of a young child should be determined promptly, this is but one such appeal of many that are presently before the court. As I have said, there is no suggestion that the orders pose a risk to the child’s safety. The orders also provided a change from the previous arrangement of supervised time with the father to unsupervised time, albeit not to the extent sought by him.
Having regard to the present state of the list and the fact that a Draft Appeal Index has already been filed and the transcript has been obtained, I would expect that, properly prepared, this appeal could come on for hearing in the ordinary course in September this year.
Taking the above matters into account and the urgency of other appeals awaiting a hearing, the father has not established a basis for the expedition of his appeal.
The Application in an Appeal will accordingly be dismissed.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 30 March 2017.
Associate:
Date: 12 April 2017
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