Oram and Lambertand Ors (No 3) - [2018] FamCAFC 162

FAMILY COURT OF AUSTRALIA

ORAM & LAMBERTAND ORS (NO. 3)

[2018] FamCAFC 162

FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – Where the application was not brought promptly – Whether an expedited appeal would avoid serious emotional or physical trauma to the children – Where the appeal is not so urgent that it should be given priority over other pending parenting appeals – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

Oram & Lambert and Ors [2018] FamCAFC 130
Oram & Lambert and Ors (No. 2) [2018] FamCAFC 161

APPELLANT:

Ms Oram

FIRST RESPONDENT:

Mr Lambert

SECOND RESPONDENT:

Ms McCready

INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

FILE NUMBER:

NCC

2354

2016

APPEAL NUMBER:

2018

DATE DELIVERED:

22 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

22 August 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2018

LOWER COURT MNC:

[2018] FCCA 1214

REPRESENTATION

THE APPELLANT:

In person (by telephone)

COUNSEL FOR THE FIRST RESPONDENT:

Ms Schaefer solicitor (by telephone)

SOLICITOR FOR THE FIRST RESPONDENT:

Moin Morris Schaefer Pty Ltd

THE SECOND RESPONDENT:

In person (by telephone)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gemmell solicitor (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

Orders

The Application in an Appeal filed on 3 July 2018 seeking expedition of the appeal is 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 Oram & Lambert and Ors (No. 3) 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).

APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 67 of 2018
File Number: NCC 2354 of 2016

Ms Oram

Appellant

And

Mr Lambert

First Respondent

And

Ms McCready

Second Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

This is an application for expedition of an appeal in relation to parenting orders.
The Notice of Appeal was filed on 16 May 2018. The application for expedition was filed on 3 July 2018, along with an application to restrain the first respondent’s solicitors from acting for him.
The restraint application had to be heard by a Full Court. It was heard and dismissed earlier today (Oram & Lambert and Ors (No. 2) [2018] FamCAFC 161). Had that application not been made, this expedition application could have been heard and determined on 13 July. The reason for that is that this application was opposed by the first respondent and his representation needed to be sorted out before it could be heard.
On 13 August 2018, a further Application in an Appeal was filed seeking, in effect, a review of the registrar’s procedural orders in relation to the appeal and, in particular, as to the transcript to be provided. In the application for relief from having to provide a transcript (Oram & Lambert and Ors [2018] FamCAFC 130), I described the proceedings in the following way:
8.The proceedings the subject of the appeal were parenting proceedings in relation to the two children, Y aged seven and X aged five. The applicant is their mother. The second respondent is the maternal grandmother of the children. The first respondent was described by the primary judge as the father of X and the “psychological father” of Y. The applicant does not accept those characterisations.
9.On 18 April 2018 Judge Terry ordered that the two children live with the first respondent who was to have sole parental responsibility for them. The children were to spend two hours per month with the mother which was to take place at a contact centre and to be supervised by it. The first respondent, in his sole discretion, could allow further or unsupervised time.
10.The children had lived primarily with the applicant until July 2016 when she was incarcerated. The children then lived with the first respondent. This caused the second respondent to commence proceedings seeking orders that the children live with her.
11.In January 2017 the applicant was released on parole and the children resumed living with her.
12.In December 2017, following release of the Family Report, interim orders were made for the children to live with the first respondent and to spend weekend and holiday time with the applicant. Following an incident in January 2018, the time the children were to spend with the applicant was reduced to once per week at a contact centre.
It can be seen therefore that the orders made by the primary judge had a significant effect on the future living arrangements of the children and that the appellant has been shut out from having a significant role in the children’s lives.
Although not directly applicable to appeals, r 12.10A of the Family Law Rules 2004 (Cth) provides a reasonable guide as to what the Court will take into account on expedition applications. That rule provides:
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.
It cannot be said that this application for expedition was brought promptly, it having been filed on 3 July 2018. I accept that such an application need not be filed at the time of the filing of the Notice of Appeal, but, ordinarily, it should be filed shortly thereafter. If an appellant expects priority in having his or her appeal heard, it is not unreasonable to expect them to act promptly as well.
The hearing of this application has been delayed by the application to restrain the solicitors from acting. That application was brought by the appellant and was unsuccessful.
The application is opposed by the first respondent. Although he submitted that the basis for expedition has not been made out, he did not identify any prejudice whatsoever that would be suffered by him if the matter were to be expedited.
The basis of the application essentially is that an expedited appeal would avoid serious emotional or physical trauma to a child who is affected by the case. This is a relevant circumstance (r 12.10A(4)(g)).
In support of that submission, the appellant says that the children are not coping well with the present parenting arrangements and that they are not well psychologically or physically. She asserts that they should be seeing a psychologist, which they are not, although she accepts that appointments have been made by the first respondent. She asserts, however, that those appointments have not been kept. In response, it is submitted from the bar table without the benefit of an affidavit that the children are seeing a counsellor at school and are participating in an appropriate program.
The appellant also says the children are not doing well at school and that the first respondent is still abusing drugs. I note that at [152] of the primary judge’s reasons, her Honour recorded that the first respondent did have a drug history, but she was not convinced she should be concerned about his capacity to care for the children. The appellant says the children have been sick every time that she has seen them, the children do not like their present living arrangements, and that they are not happy with the school they attend which is not of the same standard and quality of the school they previously attended when they were in the care of the appellant. Predictably, the first respondent through his solicitor denies each of those assertions.
It is not at all uncommon where significant parenting orders have been made that children have difficulties adjusting and may be unsettled for a while. Whether that is so in the present case or the matters raised by the appellant are indicative of unsuitable long-term parenting arrangements is not a matter that will be determined on the appeal and is not a matter that can be determined by me on the hearing of this application. What I need to determine is whether this matter has such urgency that it should displace other parenting cases with equally serious issues in the queue.
I therefore accept completely that for the reasons given by the appellant this is an urgent appeal that should be heard as quickly as possible; however, there are many such appeals awaiting hearing where the parties and the children are in the same position.
Significantly, to my mind, the registrar conducted a procedural hearing on 4 July 2018. Included amongst those orders were orders that the appellant file and serve her appeal books and electronic transcript on or before 15 August 2018. I am informed that she has filed the appeal books and that there is an application shortly to be heard that deals with the registrar’s orders in relation to transcript. Once the appeal books and transcript have both been filed, the registry will commence the process of listing the appeal for hearing. The timetable provides that the last summary of argument is to be filed and served by 24 October 2018.
If the transcript issues are sorted out promptly and the timetable is otherwise complied with, there is a reasonable expectation that the appeal will come for hearing this year or at the latest early next year. I am not convinced that this appeal is so urgent that it needs to come on before that time. In any event, any advantage now to be gained from an order for expedition as opposed to an order that could have been made over six weeks ago would be of any significant advantage, it being a matter of a few weeks at best.
Consequently, I am not satisfied that the appeal should be expedited, and the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 22 August 2018.

Legal associate:

Date: 18 September 2018