PARETINO & PARETINO
[2016] FamCAFC 95
•14 June 2016
FAMILY COURT OF AUSTRALIA
| PARETINO & PARETINO | [2016] FamCAFC 95 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the father seeks to expedite an appeal against interim parenting orders requiring a family member to supervise his time with the children – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed – Where the applicant is to pay the respondent’s costs of the application. |
| Family Law Act 1975 (Cth) s 94(2D) |
Family Law Rules 2004 (Cth) rr 12.10A, 12.10A(4)
| Moxon & Moxon [2010] FamCAFC 67 |
| APPLICANT: | Mr Paretino |
| RESPONDENT: | Ms Paretino |
| FILE NUMBER: | PAC | 906 | of | 2016 |
| APPEAL NUMBER: | EA | 63 | of | 2016 |
| DATE DELIVERED: | 14 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 31 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 April 2016 |
| LOWER COURT MNC: | [2016] FamCA 261 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPLICANT: | Abrams Turner Whelan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gardiner |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon |
Orders
The application for expedition of the appeal against the orders of the Honourable Justice Hannam filed on 29 April 2016 is dismissed.
The applicant to pay the respondent’s costs of and incidental to the application, such costs to be agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paretino & Paretino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 63 of 2016
File Number: PAC 906 of 2016
| Mr Paretino |
Applicant
and
| Ms Paretino |
Respondent
REASONS FOR JUDGMENT
Mr Paretino (“the father”) seeks expedition of an appeal filed against the orders of Hannam J made on 11 April 2016. The orders concern the time he spends with his daughters, B who was born in 2007 and is currently eight and C, who was born in 2011 and is currently five who are the children of the father’s relationship with Ms Paretino (“the mother”). The mother opposes the application.
The parties were married in 2006 and separated in November 2015. Since that separation and up to the time of the hearing before the trial judge, the children have lived with the mother and spent no time with the father.
The mother commenced proceedings on 1 March 2016 and sought interim parenting orders including that the father’s time with the children be supervised. The application was first listed on 11 April 2016 and came before her Honour. It is reasonably clear that the listing of 11 April 2016 was not for hearing but the issue of the children’s time with the father was transferred to her Honour for her consideration on an urgent basis. Her Honour considered the matter on that date and made the orders from which the appeal is brought.
It is also apparent that the parties were able to reach agreement on an interim position being that the children’s time with the father be supervised. They could not agree on the duration of the supervised time – the father sought an order that supervision take place on only four occasions and thereafter to be unsupervised and the mother sought that the time to be supervised pending further order.
Her Honour relevantly ordered:
(2)The children spend time with the Father as follows:
(a) From 10.00am until 1.00pm on 17, 24 April and 1 May 2016;
(b) From 10.00am until 1.00[p]m on 7 May 2016;
(c) From 10.00am until 4.00pm commencing from 15 May 2016 and continuing each Sunday thereafter.
(3)The time which the children are to spend with the father in Order 2 shall at all times be supervised by the father’s sister, Ms [D] and in the event that the said supervisor should be unable or unwilling to act as supervisor on any occasion then the father’s time shall be suspended on such occasions.
…
(7) An appointment with a Family Consultant for the purposes of a Children and Parents Issues Assessment as part of the Child Responsive Program has been arranged for 18 July 2016 and the usual listing and time frame will follow that event.
Background
It is necessary to give context to the arguments made on the application to set out some matters from her Honour’s reasons.
Her Honour noted that at the time the matter came before her, the parties had not been seen by a family consultant for the purposes of the preparation of a Children and Parents Issues Assessment and that an appointment for that purpose had been made in mid-July. She said:
2.… I was required to make an assessment of the issues of risks associated with the father’s care raised in the mother’s affidavit without the assistance of a family consultant’s Memorandum, or any documents other than those provided by the parties annexed to their affidavits.
Her Honour said:
7.The parents’ relationship was volatile and characterised by verbal abuse and heated arguments. There were occasions on which police were called to the family home.
8.The father suffers from a mental condition and has, on occasions been admitted into specialist mental health facilities to receive treatment, including for a three-week period in February 2015. Approximately one month prior to this admission the father had placed a noose on a beam in the garage at the family home.
Her Honour noted that the father did not dispute that he suffered from a mental condition.
She concluded under the heading “The Short Term Interim Orders”:
25.In relation to the risk said to arise from the father’s consumption of alcohol and illicit drugs, although he disputes the mother’s contentions, the father does agree to the order proposed by the mother restraining him from consuming alcohol or taking illicit drugs or other substances while the children are in his care or for 48 hours prior.
26.The issue of risk said to arise from the father’s mental health condition and non-compliance with medication is unable to be assessed on the limited information available. However, it is to be noted that on the short term basis the mother did not seek an order that he attend upon a particular psychiatrist and comply with medication, so I infer that she does not regard it as a matter of particularly significant risk on this short term interim application.
27.In my view at this stage the clearest risk factor relates to the children’s exposure to family violence. The father agrees that the relationship between he and the mother was volatile and that both parties engaged in aggressive behaviour. He attaches a text message interchange between the parties, which indicates that the mother engages in insulting and abusive communication with him. Most concerningly, although the father does dispute the mother’s evidence that [the child] telephoned police during the November 2015 incident (as he said the mother made this call), he does not take issue with her evidence that the child has called the police on about three occasions. The father also does not give any account of the incident in May 2015 to challenge the mother’s evidence of a quite serious physical assault and does not challenge her contention that this incident occurred in the presence of the children. It is also not in dispute that it is he who was charged following the November 2015 incident and the ADVO was issued for the protection of the mother as a result of this incident. He also does not contest that this incident occurred in the presence of the children.
Finally, her Honour said:
29. The court will be in a better position to make a more considered assessment of the various risk factors after a Memorandum from the Children and Parents Issues Assessment is available to the court. The parties will also be in a position to obtain other relevant documentation such as in relation to the father’s mental health condition and the outcome of the criminal charges will also be known at a later stage.
The Application
In support of the application for expedition, the father’s solicitor swore an affidavit in which it was asserted that although her Honour’s orders did not provide a further date for hearing of the interim parenting orders, leave to relist the matter once the Children and Parents Issues Assessment was available was given by a registrar.
In essence, the solicitor contended that once the family consultant’s report was to hand the parties would be obliged to “again go through the listing procedure in place at the Parramatta registry” before the matter coming before a judge. The solicitor contended that “depending on the attitude of the court, the other party and vagaries…this matter might not be reviewed for months after receipt of the report if at all”.
The solicitor’s affidavit asserted:
13. My client’s proposal for supervision by his sister … (who was acceptable to the mother) was, on my client’s case not a proposal designed to be in place for months and impose upon the Supervisor in that way.
Further, counsel for the father sought to rely on an affidavit of the supervisor to establish that she was not prepared to continue to supervise in accordance with the orders. It was submitted that the reason why the supervisor was reluctant to continue was said to be because of the mother’s actions.
Counsel for the mother, having received the affidavit the night before the hearing of the application said that, given the content, the mother would wish to file an affidavit contesting the version of events asserted by the supervisor.
Leave was refused to the father to adduce the evidence of the supervisor. Clearly the issue of continuing supervision was contested and would require the taking of evidence.
Although it was conceded for the father that this evidence could be adduced before the trial judge or indeed another trial judge in pursuit of further interim orders, it was sought to be introduced to the application on the appeal because of the time it was said it would take to have the matter listed before the court at Parramatta.
It is important to observe that, but for the solicitor’s assertions about the time that the matter may take to be listed at Parramatta, there was no evidence as to how long any application for further interim orders might take to be heard in Parramatta.
Relevant Principles
Section 94(2D) 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 rule 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which address applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
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.
Rule 12.10A(4) provides a definition of a “relevant circumstance”, one of which is:
(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.
There was no dispute that the father acted with reasonable haste in bringing the application for expedition.
As to the issue of prejudice to the mother if the appeal is expedited, although counsel for the mother argued that there was greater distress to the mother if the appeal is brought on sooner than it might otherwise, I am unpersuaded that this is so in this case although I accept that generally the prospect of continued litigation can be distressing to a party.
Turning then to whether there is a relevant circumstance that would cause this case to be given priority over others, it is first important to note that at its highest the argued delay in having any application for further interim orders heard at Parramatta amounted to no more than speculation. No application had been made to the trial judge or any other trial judge at Parramatta for further orders or to relist the matter urgently.
It is worth noting too that even if the appeal was expedited, if it was successful, counsel for the father conceded that there would be no course open to the Full Court but to remit the matter to the Family Court for rehearing on the issue at the cost of time, money and concern for the parties without any further advance in the case.
This is a matter in which all of the issues of which the father complains, the duration of the orders and the need for supervision, can and should be matters for the trial judge.
There is nothing contained either in the affidavit filed on behalf of the father or in the careful and detailed submissions made on his behalf by counsel that establishes any reason at all why this appeal should be expedited.
The application will be dismissed.
Costs
Counsel for the father conceded that if the application failed, he could not resist an order for costs. The application having been wholly unsuccessful, I will order the father to pay the mother’s costs of the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 14 June 2016.
Associate:
Date: 14 June 2016
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