MILLARD & MILLARD
[2018] FamCAFC 251
•14 December 2018
FAMILY COURT OF AUSTRALIA
| MILLARD & MILLARD | [2018] FamCAFC 251 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks expedition of his appeal against interim parenting orders – Where the substantive proceedings are part-heard – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Where there exists practical difficulties as to any potential rehearing given the interim nature of the orders and the part-heard proceedings – Application dismissed. |
| Family Law Act 1975 (Cth) s 94 Family Law Rules 2004 (Cth) r 12.10A |
| APPELLANT: | Mr Millard |
| RESPONDENT: | Ms Millard |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kenny |
| FILE NUMBER: | SYC | 5458 | of | 2015 |
| APPEAL NUMBER: | EA | 155 | of | 2018 |
| DATE DELIVERED: | 14 December 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 13 December 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 November 2018 |
| LOWER COURT MNC: | [2018] FamCA 902 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Othen |
| SOLICITOR FOR THE APPELLANT: | Hamish Cumming Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Sen |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance having been excused |
Orders
The application for expedition of Appeal EA 155 of 2018 is dismissed.
The respondent mother file and serve within 14 days any application for costs and any submission in support in relation to the application for expedition and the applicant father respond to any such submissions within 28 days of service of any such application and submission. The issue to be determined in chambers without the need for any further attendance by the parties.
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 Millard & Millard 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 155 of 2018
File Number: SYC 5458 of 2015
| Mr Millard |
Appellant
and
| Ms Millard |
Respondent
REASONS FOR JUDGMENT
Mr Millard (“the father”) seeks expedition of his appeal against interim parenting orders made by Rees J on 8 November 2018.
Ms Millard (“the mother”) opposes the father’s application for expedition. The Independent Children's Lawyer made no submissions in relation to the application.
The parties are in dispute as to appropriate parenting orders in relation to their three children; B aged 13, C aged 11 and D aged 6 (“the children”).
On 26 April 2018 Benjamin J discharged parenting orders made on 14 March 2018 and in their stead ordered the mother to have sole parental responsibility for the children, that they live with her and that the children spend no time with the father.
His Honour made other orders, amongst which was an order that the final parenting proceedings between the parties be expedited.
The final hearing came before Rees J on 29 October 2018 having been fixed for five days. It was generally acknowledged that the hearing would not be concluded within those allocated days. At the conclusion of the five allocated days in October, the matter was adjourned part heard to 1 April 2019 when it is anticipated a further five days of hearing will take place.
In anticipation of the adjournment, the father applied to Rees J for interim orders that he spend time with the children in the adjourned period. The orders sought were that the father spend each alternate weekend with the children from Thursday after school until Monday morning before school and one half of the school holidays on a week about basis. The father also sought time on Christmas Day 2018 from 3pm until 10am on 27 December 2018. The father proposed that the time with the children be supervised and nominated two people, one of whom was his present partner and the other being the babysitter occasionally employed by the mother.
In the event that his application for weekend and school holiday time was refused, the father sought in the alternative that he be able to write to the children and send birthday and Christmas cards and gifts and that he be able to inform the children that his partner was pregnant. He further sought the intervention of the single expert to advise the children of the progress of the proceedings, and the delay caused by the matter being adjourned part-heard and to read to the children the letter he wrote to them.
The mother and the Independent Children's Lawyer opposed any interim order for face to face time with the children.
Her Honour dismissed the father’s application for interim face to face time orders however she made orders that the father be permitted to send Christmas presents, birthday presents and accompanying cards to the children. He was further permitted to inform the children of the impending birth of his child with his present partner. It was ordered that the letter to be first sent to the Independent Children's Lawyer and, if the Independent Children's Lawyer thought the letter appropriate, it would be forwarded to the children.
At the time of the adjournment of the proceedings, as her Honour noted, the mother and all of her witnesses had been called and cross examined as had the father’s present partner. However, the father and his other witnesses had not, nor had the single expert been examined by the parties.
In anticipation perhaps of the interim application, the father’s counsel sought that the evidence of the single expert be interposed on the last day of the hearing before the adjournment. Her Honour refused that application.
On 4 December 2018 the father appealed against her Honour’s order dismissing his application to spend time with the children during the adjournment. On the same date, the father filed an application seeking expedition of the appeal. The order sought on appeal in the event that the appeal succeeds that the interim application be remitted for hearing by another judge of the Family Court.
Before considering the principles relevant to an application such as this for expedition of an appeal, it is helpful to understand the context in which the appeal and the application is brought.
Both Benjamin J and the primary judge observed that each party raised very serious assertions against the other which need to be resolved in determining the orders which will be in the best interests of these children. As the primary judge said at [20] “[o]n the case of either party, it is possible that an order could be made that the children live with one parent and do not spend time with the other parent” and she further commented that to make final orders required determinations to be made about highly contested allegations of family violence and psychological harm to the children.
Relevant principles
Section 94(2D)(j) 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 r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which addresses applications for expedition of hearings before a judge.
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.
Of those factors, 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.
The thrust of the application is that the father has not spent any or any meaningful time with the children since 26 April 2018. This was said to be particularly important because since the orders of Benjamin J were made, the report of the single expert had been released to the parties and it appears from that report that the children wish to spend time with the father. Thus it was argued that it was not in the children’s interests that there be any further delay in their spending time with the father.
In the circumstances of this case, even though some time has passed since the father spent time with the children (other than abbreviated time) and potentially will not spend time with them until the parenting proceedings are completed, I am not persuaded that it is appropriate to expedite the hearing of this appeal with the effect of displacing another appeal already listed in which, perhaps, similar parenting issues are waiting for adjudication on appeal.
There is a further, practical reason why the application should be dismissed. Even if this appeal were to be expedited, it seems impossible that it could be heard, determined and, if the appeal was successful, any re-hearing of the application occur before the resumption of the hearing before Rees J. It was submitted on behalf of the applicant that there nevertheless is utility in the appeal because the issue of interim contact may be able to be determined before Rees J either completes the hearing or delivers judgment in the principal matter.
The solicitor on behalf of the mother argued that to expedite the appeal would impose a burden on her of incurring additional costs of a potential redetermination of the contact issue at the same time as she is preparing for the continuation of the part-heard matter. There is some force in that argument albeit speculative.
The application for expedition will be dismissed.
I will make directions for the filing of submissions in the event that the mother wishes to apply for costs in relation to the father’s application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 14 December 2018.
Associate:
Date: 14 December 2018
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