Meadows & Meadows (No 2)

[2018] FamCAFC 119

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO. 2) [2018] FamCAFC 119

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR EXPEDITION – Where appeal is listed for hearing before the Full Court in six weeks from the date of the application for expedition – Where the appeal has already been listed for hearing at the first available sitting – Where the mother seeks to expedite an appeal against interim parenting orders that she undergo a psychiatric assessment by an expert appointed for that purpose and that a single expert be appointed to enquire into and report upon matters concerning the welfare of the parties’ child – 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)

Moxon & Moxon [2010] FamCAFC 67

APPELLANT: Ms Meadows

RESPONDENT: Mr Meadows

INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate

FILE NUMBER: PAC 3509 of 2013

APPEAL NUMBER: EA 113 of 2017

DATE DELIVERED: 3 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 3 July 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 11 October 2017

LOWER COURT MNC: [2017] FamCA 90

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate

Orders

1. The application in an appeal filed 28 June 2018 is dismissed.

2. The question of costs of the Independent Children's Lawyer is reserved.

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 Meadows & Meadows 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 113 of 2017
File Number: PAC 3509 of 2013

Ms Meadows

Appellant

and

Mr Meadows

Respondent

and

The Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Meadows has appealed against interim parenting and financial orders made by Le Poer Trench J on 11 October 2017.  The parenting proceedings concern the daughter of Ms Meadows (“the mother”) and Mr Meadows (“the father”), child B who was born in 2011 (“the child”).

2. The orders made by Le Poer Trench J dismissed applications filed by the mother on 22 February 2017, 5 May 2017 and 7 September 2017 which, amongst other things, sought to set aside parenting orders made on 10 January 2017, to have the child returned to the mothers care and for urgent spouse maintenance.  Le Poer Trench J also made orders facilitating the mother’s participation in a psychiatric assessment. 

3. By an Application in an Appeal filed on 28 June 2018, the mother sought that the hearing of the appeal be expedited notwithstanding that it had already been listed for hearing on the 17 August 2018 some a matter of weeks away from the date of filing of this application.

4. Both the father and the solicitor for the Independent Children's Lawyer appear and made no submissions on the application.

Relevant Principles

1. 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 order are provided within the section. Recourse is often had to rule 12.10A of the Family Law Rules (2004) (“the Rules”) which addresses applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).

2. The considerations  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 to the application; and

   ·Whether there is a relevant circumstance which would cause the case to be given priority over other cases to its possible detriment.

3. The issue here is whether there is a relevant circumstance which would cause this matter to be given priority over other matters listed for appeal.

4. The mother, swore an affidavit in support of the application, she further filed a document in the form of a written submission in which she set out the points she wished to emphasise in relation to the application and, further made oral submissions. It is clear that she has a deep concern for her relationship with the child and for the child’s distress while matters remain unresolved and for the child’s development while in the care of the father and his partner.  She also asserts she is deprived of financial support. She provided a brief email from a psychologist who has been involved in the case which I take to reflect the psychologist’s general concern for the distress to the child while the situation continues.

5. Given that the appeal is to be heard in a matter of weeks I am unpersuaded that there is anything which would provide a basis for expedition of the already listed appeal and I will dismiss the application

Costs

1. As is usual, the parties’ submissions on the question of costs were sought at the conclusion of the hearing.  The Independent Children’s Lawyer has asked for the consideration of any costs she might seek to be reserved to the appeal and I make that order.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

3 July 2018.

Associate:     

Date:              5 July 2018