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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FamCAFC 162
Decision Date: 22 August 2018

CaseChat Overview and Summary

Oram and Lambertand Ors (No 3) involved an application for an expedited appeal against a family law decision. The applicants sought to avoid what they argued would be serious emotional or physical trauma to the children if the appeal was not heard promptly. The court had to determine whether the appeal was sufficiently urgent to warrant expedited treatment, considering the potential impact on the children. The respondents argued that the appeal was not so urgent that it should be given priority over other pending parenting appeals. The court's decision hinged on the balance between the urgency of the appeal and the need to manage the court's workload effectively.

The legal issues centred on the criteria for expediting an appeal under the Family Law Act. The court had to assess whether the appeal met the threshold for urgency that would justify expediting, and whether the potential harm to the children was sufficient to warrant special consideration. The applicants needed to demonstrate that the delay in hearing the appeal would cause significant and immediate harm to the children, outweighing the general principles of judicial efficiency and fairness to other litigants. The court had to weigh these considerations carefully to determine whether the appeal could be prioritised.

In dismissing the application for expedition, the court found that while the potential harm to the children was a serious concern, it did not meet the high threshold required for expediting an appeal. The court recognised the distress that the delay might cause but concluded that the appeal was not so urgent that it should be given precedence over other parenting appeals. The court's reasoning emphasised the importance of maintaining a balanced approach to the management of the court’s caseload and the need to ensure that all litigants, including children, are treated fairly. The court also noted that the Family Law Act requires a high level of urgency for an appeal to be expedited, which was not demonstrated in this case.

The court's final order was to dismiss the application for expedition of the appeal, with the form of the order to be finalised in the Court's records. The dismissal reflected the court's finding that, while the applicants had shown potential harm to the children, it did not rise to the level necessary to justify prioritising the appeal over others. This decision underscores the rigorous scrutiny applied to applications for expediting appeals, particularly in family law matters involving children.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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