MULCASTER & MULCASTER - [2018] FamCAFC 216

FAMILY COURT OF AUSTRALIA

MULCASTER & MULCASTER

[2018] FamCAFC 216

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Appeal against interim parenting orders allowing the mother and children to move – Where the mother and children have already moved in accordance with the orders – Where there has been no change in the time the children spend with the father as a consequence of the relocation – Whether the matter should be afforded priority to the detriment of other cases – Where dates have been set for the final hearing – Where, if the appeal was expedited and successful, the final hearing dates would almost certainly be lost – Allegations of family violence which should be tested as soon as possible – Grounds of appeal not sufficiently compelling to sway granting expedition – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the applicant has been wholly unsuccessful – Applicant on notice of possibility of adverse costs order – Costs order made in favour of the respondent.

Family Law Act 1975 (Cth) s 94(2D)(j)

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Mulcaster

RESPONDENT:

Ms Mulcaster

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

SYC

341

2017

APPEAL NUMBER:

137

2018

DATE DELIVERED:

7 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

7 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2018

LOWER COURT MNC:

[2018] FCCA 2946

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Steggall

SOLICITOR FOR THE APPELLANT:

Douros Jackson Lawyers

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

The application in an appeal filed 25 October 2018 be dismissed.
That the applicant pay the respondent’s costs of the application in the amount of $3,400 within twenty-eight (28) days of these orders.

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 Mulcaster & Mulcaster 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 137 of 2018
File Number: SYC 341 of 2017

Mr Mulcaster

Appellant

And

Ms Mulcaster

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed 25 October 2018, Mr Mulcaster (“the applicant”) seeks expedition of his appeal against certain interim parenting orders made by Judge Henderson on 4 October 2018. The application is opposed by Ms Mulcaster (“the respondent”) who is the children’s mother. The parties have two children, N, who is seven years old and C, who is five years old (“the children”).
An Independent Children’s Lawyer (“ICL”) has been appointed to represent the best interests of the children. The ICL was neutral in relation to the question of expedition.
The interim orders under appeal permit the respondent to relocate with the children from Suburb A (where the parties previously lived) to the Suburb B area, some 35 kilometres away on the other side of Sydney Harbour, and to enrol the children in a local school and preschool. The orders also continue previous orders, in place since August 2017 and made by consent, whereby the applicant spends time with the children for five nights per fortnight during school term, albeit with significantly increased travel time for the applicant and the children so as to give effect to those five nights. In line with what the applicant sought, orders were also made for the children to spend equal time with the parties during school holidays, commencing with the forthcoming 2018-19 Christmas holidays. Importantly, the primary judge listed the matter for final hearing before her in June 2019.
On 25 October 2018 the applicant filed his appeal. By this time, the respondent had moved to Suburb B and the children had been enrolled in their new school and preschool.
The context for the making of the orders under appeal was originally the applicant’s application for an increase of holiday time with the children. However in her response the respondent sought to relocate in the circumstances outlined above. The respondent has been offered a new position with her employer. This position is based in Suburb B and it comes with a not insignificant increase in salary. The respondent had argued to the primary judge, an argument that was self-evidently accepted, that if permitted to move the children she would be in a better position to afford accommodation for them and a baby, the children’s half-sibling, she is expecting with her husband in January 2019.

The expedition application

Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the Appeal Division or another judge if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Family Law Rules 2004 (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal. It was common ground in the submissions provided in writing by counsel for the applicant and the solicitor for the respondent, and obviously embraced by the ICL, that the provisions of r 12.10A which deals with applications for an expedited trial provides a useful guide to the approach to be adopted for expedition of an appeal.
That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be order of priority.
The potentially relevant factors referred to in the rule which should be taken into account in an appeal setting will be discussed.
Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case. The submission of the solicitor for the respondent that the applicant has not acted in a sufficiently diligent manner should not be accepted. I accept that the applicant lodged his appeal in a timely way, along with his application for expedition. It is plain that with the reasons given orally the solicitor for the applicant moved quickly to secure a settled version of the reasons. Advice has been obtained from senior counsel. I have no doubt that whatever is required of the appellant to bring an appeal on for an urgent hearing would be done. This subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay. I do not have more to say about this, other than it would have been undoubtedly helpful had the applicant given clear notice to the respondent that he was considering an appeal and requested that she not take steps to give immediate effect to the orders. The same can be said about the respondent. She was entitled to take the steps that she did to give effect to the orders to move the children, but knowing that the applicant did not support that move she ought to have informed him that the she was in the process of giving immediate effect to the orders. I rather suspect that there will be more said about that at another time.
In any event, the next factor which requires consideration is prejudice to the respondent. As I have already mentioned, the respondent has moved to Suburb B and the children have commenced their new school and preschool. I accept that the evidence establishes that those arrangements were in train before the respondent was notified of the applicant’s intention to appeal the orders. I do not see that this factor warrants any particular weight. The respondent argues that she would be prejudiced if the appeal was successful and she was required to return the children to Suburb A. That is not the point, it is rather prejudice caused if she needs to deal with an expedited hearing.
The most that could be said about prejudice to the respondent is that she would be required to incur the costs and prepare for an appeal hearing much sooner than would be the case if listed in the ordinary course. With a baby due in January 2019, it would be difficult for her to manage an appeal proximate to the birth. The degree of prejudice could be managed though, so that it would amount to some inconvenience, rather than actual prejudice. I was pleased to hear the acknowledgement by counsel for the applicant that an appeal hearing at any stage during January was contraindicated due to the impending birth of the baby. I agree. In short, I am not persuaded that there are weighty considerations of prejudice to the respondent that would stand in the way of expedition if it was otherwise warranted.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. As I mentioned earlier, when I say the detriment of other cases I mean to other cases that have been filed earlier and which would be called on for hearing in the ordinary course but not if this appeal was expedited.
Relevant circumstance is defined in Rule 12.10A(2), and the submissions made by the applicant and indeed the respondent focus on sub-par (d), which is concerned with hardship. It is useful to point out that the provision does not elevate inconvenience to hardship and in my view the proper description of the submissions that were made in support of this hardship ground would better be characterised as inconvenience. The submissions made by the applicant focus on the impact of the relocation on the children who, it was emphasised, are young and have experienced sudden and significant change, particularly for the eldest child who had an established routine, activities and school-based friendship circle in Suburb A. For the younger child, it is submitted that as she will commence school in 2019, any delay to the hearing of the appeal may introduce further change. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the children, particularly if the appeal can be heard prior to or very near the commencement of the new school year.
The appellant also references hardship caused to him and the children as a result of increased travel time between Suburb B and Suburb A, the reduction in his ability to participate in the children’s school and other activities and the impact on his work life, in particular that the amount of travel has necessitated something of a reduction in his hours of work, at least during school term.
I do not accept the submission about the need to expedite this hearing in time for the next school year, in circumstances where the respondent and children have already moved and the final hearing is set down for June 2019. Plainly, both the outcome of the appeal and the final hearing may result in another change in circumstances for these children, or indeed none. Therefore the timing of the appeal does not, on its face, appear to be significant in that regard.
Subsection (f) concerns whether the case involves allegations of child, sexual or other abuse. As the primary judge indicated, this case involves allegations of family violence which, given the circumscribed nature of interim hearings that have been undertaken thus far, have yet to be determined. A further interim hearing would see the same outcome. A final hearing will enable those allegations and the denials to be tested and a decision made in the interests of the children on the resolved facts, rather than an assessment of risk undertaken without the evidence tested. In my view, it is important for these children that there be an opportunity for those important issues to be tested as soon as can be reasonably accommodated.
The primary judge has found time in her docket to give the parties a final hearing. Before me, it was accepted that if the appeal was successful, the matter would need to be remitted for rehearing before another judge of the Federal Circuit Court. The almost inevitable reality of that proposition is that the dates made available by the primary judge would be lost. It is not possible to proceed with any confidence that another judge in the Sydney Registry of the Federal Circuit Court would be able to find similar dates for a final hearing. There is a distinct possibility that because the matter would be transferred to another judge that the final hearing may not take place in 2019. In my view such an outcome would be disadvantageous to the children. They need a final hearing sooner rather than later and that is a factor which weighs heavily against the course proposed by the applicant.
Finally, it is necessary to consider the grounds of appeal. All that needs to be said at this point is that although well-crafted the grounds do not established that this is an appeal that one could confidently say will almost certainly succeed. The point being, the grounds do not compel an expedited hearing.
On balance I am persuaded that the application for expedition should be refused and I will order accordingly. The order of the court is that the application in an appeal filed 25 October 2018 be dismissed.

Costs

The respondent has made an application that the applicant pay her costs. The costs at scale are $3,400 and sensibly no issue is taken in relation to the quantum sought. However counsel for the applicant submits that this is a case in which the parties should each pay their own costs.
In support of the claim for costs, the respondent relies on the fact that the applicant has been wholly unsuccessful as both justifying circumstances and the reason why an order for costs should be made. In arguing in favour of the order for costs, the respondent relies on a letter of 2 November 2018 addressed to the solicitor for the applicant which points out the lack of wisdom in proceedings in an appeal against interim orders in circumstances where the parties have been given final hearing dates. The point made aligns very much with what I saw as the most weighty consideration on the question of expedition, mainly the utility of the appeal and the risk to the trial dates if the appeal proceeded. The correspondence is not an offer of settlement, but it did invite the applicant to reconsider the wisdom of going forward and of course, it ensured that he was on notice that if he decided to proceed he was on notice that an adverse costs order was seriously in play.
In my view, the respondent ought not be financially burdened as a consequence of this unsuccessful application and it is appropriate that there be an order of costs against the applicant in the amount sought.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan on 7 November 2018.

Associate:

Date: 8 November 2018