Nimmo & Bush - [2016] FamCAFC 274

FAMILY COURT OF AUSTRALIA

NIMMO & BUSH

[2016] FamCAFC 274

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – application to expedite an appeal – where Family Law Rules 2004 (Cth), r 12.10A is relevant to applications to expedite appeals – where grounds for appeal assert procedural unfairness and apprehended bias – where applicant has acted reasonably and without delay – where there are concerns of harm to child – where case should be given priority to detriment of other cases – application allowed.

Family Law Act 1975 (Cth) ss 94(2D)(j), 60CC(2A)

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Nimmo

RESPONDENT:

Ms Bush

FILE NUMBER:

BRC

4853

2016

APPEAL NUMBER:

2016

DATE DELIVERED:

22 December 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

22 December 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 November 2016

LOWER COURT MNC:

[2016] FCCA 3149

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Ramsden Lawyers

SOLICITORS FOR THE RESPONDENT:

Mr Benedetti of Fedorov Lawyers

Orders

That appeal No NA 86/2016 be expedited.
The appeal be heard by the Full Court of the Family Court of Australia in the week commencing 6 March 2017 on a date and at a time during that week to be advised in writing by the Appeals Registrar.
That the parties attend upon the Appeals Registrar forthwith upon the conclusion of the hearing of this Application for the purpose of the Registrar making directions for the said hearing of the appeal.
The costs of and incidental to this application be reserved to the Full Court.

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 Nimmo & Bush 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 BRISBANE

Appeal Number: NA 86 of 2016
File Number: BRC 4853 of 2016

Mr Nimmo

Applicant

And

Ms Bush

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 28 November 2016, the father of a child aged nearly four filed a Notice of Appeal against orders made by Judge Street. Those orders were made at the conclusion of a final hearing in respect of parenting orders on 15 November 2016.
There are 24 grounds of appeal. The grounds embrace challenges which include assertions of procedural unfairness and apprehended bias on the part of the trial judge, including challenges based on his Honour’s failure to recuse himself. The grounds also embrace challenges to the parenting orders made by his Honour which include assertions of numerous errors of material fact and that findings made by his Honour were not open on the evidence before him.
On 5 December 2016, the father filed an application to expedite the appeal. The application is supported by an affidavit from the father’s solicitor which I have read. I have also read the transcript of the proceedings before Judge Street. I have been assisted by helpful written submissions prepared by counsel for the applicant father.
A single judge of this Court may hear applications to expedite the hearing of an appeal pursuant to s 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”). Neither the Act nor the Family Law Rules 2004 (Cth) (“the Rules”) contain specific provisions with respect to the expedition of appeal hearings. However, rr 12.10A(2) and (4) makes reference to principles which guide applications for the expedition of trials.
As it seems to me, precisely those same sorts of considerations can be seen to be directly relevant to applications to expedite appeals.
Rule 12.10A provides:[1]
[1]As was foreshadowed upon the oral delivery of these reasons, the relevant rules have been inserted in the settled reasons.
12.10A Expedition
...
(2) The court may take into account:
(a)     whether the applicant has acted reasonably and without delay in the conduct of the case;
(b)     whether the application has been made without delay;
(c)     any prejudice to the respondent; and
(d)     whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
…
(4)For paragraph (2)(d), a relevant circumstance includes:
(a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b) whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c) whether the applicant is suffering financial hardship that:
(i)is not caused by the applicant; and
(ii) cannot be rectified by an interim order;
(d) whether the continuation of interim orders is causing the applicant or a child hardship;
(e) whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f)   whether the case involves allegations of child sexual, or other, abuse; and
(g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
(Emphasis in original)
The transcript of the proceedings before Judge Street reveals that the proceedings had, with all respect, some remarkable features. Included among them is the withdrawal of Legal Aid for the mother at or shortly before the commencement of the final trial. It should be observed that this matter had been in Judge Jarrett’s list for some time prior to the withdrawal of her Legal Aid.
Despite the withdrawal of Legal Aid, the solicitor and counsel for the mother, commendably with respect, remained within the Court precincts for the purposes of conducting negotiations with a view to resolving the outstanding issues between the parties. Unfortunately, those negotiations were unsuccessful. Again commendably, the then solicitor and counsel for the mother remained to represent the mother during an initial part of the hearing so as to seek an adjournment of the trial on her behalf. The primary reason for seeking that adjournment was the timing of the withdrawal of Legal Aid.
With all respect, his Honour’s consideration of that application for adjournment is scant. Be that as it may, the net result was that counsel and solicitor for the mother withdrew and that the trial proceeded with the mother representing herself. It is uncontroversial, as I understand the evidence, that the mother has suffered, and suffers, from very significant mental health issues. She has received treatment for those mental health issues from a psychiatrist.
The net effect of the withdrawal of Legal Aid and the refusal of an adjournment was that a woman with significant mental health issues, who had up until that time been represented by a solicitor and counsel, including at various procedural and other hearings before Judge Jarrett, was left to represent herself at a final hearing of parenting issues where the potential for harm to the child was a central issue.
My reading of the transcript reveals that the mother had very significant difficulties in representing herself. Perhaps as a result of that, his Honour asked each of the parties and witnesses a number of questions. It is his Honour’s involvement in that manner that, in part, founded the applicant seeking that his Honour recuse himself. His Honour refused to do so. This forms the basis of a number of different grounds of appeal.
The predominant issue before his Honour was the potential for harm to the child if he remained in his mother’s full-time care. There were two pieces of expert evidence before his Honour: evidence from the mother’s psychiatrist; and evidence from a family consultant.
The latter was firmly of the view that the child should immediately be removed from the mother’s care. The family consultant was also of the view that that removal should take place expeditiously and that the child was at some considerable risk of harm if he remained in the mother’s care.
One does not need to have reference to s 60CC(2A) of the Act to understand that this predominant issue was very troubling. The manner in which his Honour determined that issue is also the subject of other grounds of appeal.
Interestingly, it might be thought, his Honour made a direct credit finding against the family consultant. The family consultant had said in evidence that she had read the mother’s psychiatrist’s report. His Honour made a specific finding that she had not done so. Other credit findings were also made in respect of the family consultant’s evidence. Those findings are the subject of yet further grounds of appeal, including that central findings made by his Honour were not open to him on the evidence.
Against that background I turn to the matters I consider relevant pursuant to r 12.10A which, as I have said, I consider has analogous application to the expedition of appeals.
It seems to me that firstly, the applicant can clearly be said to have acted reasonably and without delay in the conduct of the case below and in the bringing of the appeal and the application for expedition.
Secondly, the case should be given priority to the “possible detriment of other cases” awaiting appeal because of the significant evidence with respect to potential harm for the child, which needs to be resolved as soon as possible. In that respect, I note again that specific grounds of appeal are directed towards the rejection of expert evidence with respect to urgent and immediate concerns about harm.
Next, referencing r 12.10A(4), it can be seen that the mental health of the mother is a very relevant circumstance, as, indeed, may be her competence. And I obviously mean there competence in a legal sense. Fortunately, in the hearing of the application before me today, the solicitor who instructed counsel for the mother in the proceedings before his Honour has advised that arrangements have been made so that the mother is funded for a solicitor and counsel to appear on her behalf at the hearing of the appeal. In light of at least some of the circumstances to which I have made reference, it can be seen that the mother’s mental health is a significant matter relevant to when this appeal should be heard.
I have already referred to other significant matters that are contained in r 12.10A(4), namely, the potential for hardship to the child and the potential for harm to the child which, of course, sit at the forefront of any considerations with respect to expedition.
Taking into account all of the circumstances to which I have referred, it seems to me clear that this is a case deserving of expedition “to the possible detriment of other cases” remaining within the list to be heard on appeal.
I note that the appeals registrar has made herself available at the hearing of this application with a view to the parties presenting themselves to her at the conclusion of the hearing of this application so that directions for the hearing of the appeal can be made as soon as possible. I will then, as I have indicated, make an order for that to occur.
At the conclusion of the hearing, counsel for the applicant, Mr Alexander, submitted that it was appropriate that the costs of this application be reserved to the Full Court. That is not opposed by Mr Benedetti representing the mother. It seems to me that is the appropriate order.
It’s for those reasons, then, that I make the orders that I indicated at the outset.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 22 December 2016.

Associate:

Date: 13 January 2016