Pascoe and O’Keefe and Anor
[2018] FamCAFC 118
•29 June 2018
FAMILY COURT OF AUSTRALIA
| PASCOE & O’KEEFE AND ANOR | [2018] FamCAFC 118 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against orders substantially changing the child’s living arrangements – Where the father opposes expedition – Where the orders provide that the child live with the father – Where the mother was the child’s primary carer – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Ms Pascoe |
| FIRST RESPONDENT: | Mr O’Keefe |
| SECOND RESPONDENT: | Mr Pascoe |
| INDEPENDENT CHILDREN’S LAWYER: | Dai Lee |
| FILE NUMBER: | CAC | 790 | of | 2015 |
| APPEAL NUMBER: | EA | 79 | of | 2018 |
| DATE DELIVERED: | 29 June 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 28 June 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 May 2018 |
| LOWER COURT MNC: | [2018] FamCA 350 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Legal Aid ACT |
SOLICITOR FOR THE FIRST RESPONDENT: | In person |
| SOLICITOR FOR THE SECOND RESPONDENT: | In person |
SOLICITOR FOR THE APPELLANT: | Gabbedy Milson Lee |
Orders
That the hearing of appeal EA 79 of 2018 be expedited.
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 Pascoe & O’Keefe and Anor 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).
|
Appeal Number: CAC 790 of 2015
File Number: EA 79 of 2018
| Ms Pascoe |
Applicant
And
| Mr O’Keefe |
First Respondent
And
| Mr Pascoe |
Second Respondent
And
Dai Lee
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 19 June 2018 Ms Pascoe (“the mother”) seeks an order for an expedited hearing of her appeal (EA 79 of 2018). The appeal relates to final parenting orders made by Gill J on 21 May 2018.
The parenting proceedings concern the child, born in 2014 (“the child”). The child is the biological child of the mother and Mr O’Keefe (“the father”).
The father is the respondent to this application and to the appeal.
Mr Pascoe is the second respondent and the mother’s husband (“the mother’s husband”).
The effect of the orders under appeal was to substantially change the child’s living arrangements. That is, from primarily in the care of their mother to that of the father. The orders provide that the father is to have sole parental responsibility for the child, that the child will live with him and spend time with the mother each alternate weekend and for one week of the 2018 NSW term school holiday periods. Further, the orders provide that the mother’s husband is restrained by injunction from consuming alcohol or being intoxicated while the child is in the same household as he is.
Prior to the orders of 21 May 2018 the parties had a shared care arrangement for the child on a 4/3 split in the mother’s favour. The mother’s husband was excluded from the mother’s home while the child was there by virtue of interim orders.
The father resists an order for expedition.
The Independent Children’s Lawyer’s (“ICL”) position is that the application for expedition should be granted. As I indicated during oral argument, I intend to make an order for expedition.
Relevant background
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the document filed in support of this application.
The mother and her husband have been in a relationship since about March 2006, although they separated for a period of time.
There are two children of the relationship who were eight and nine years of age respectively at the time of final hearing. They are not the subject of the orders.
The mother and her husband are expecting a third child in July 2018 and hope to move from E Town to F Town shortly thereafter.
There is an extensive history of family violence between the mother and her husband. Each has alleged that the other has been the perpetrator of such violence, often in the presence of their older children. At trial, the incidents of family violence were found to be closely allied to the abuse of alcohol by both parties.
The mother is totally deaf and does not communicate orally. Rather, she relies upon Auslan, writing, such as texts, the National Relay Service and some ability to lip read and read body language.
The mother’s husband has some capacity to communicate in Auslan.
At trial, the father was 69 years of age. He lives by himself out of town, about 35 km from the mother and 70 km from F Town. The father has quite limited ability to communicate using Auslan.
The child, to whom reference has already been made, was born in 2014. She was three years of age at the time of final hearing.
The conception of the child was of issue at trial. The mother alleges that it was by virtue of a sexual assault upon her whilst the father says that it was consensual and at the instigation of the mother.
The father sought and obtained paternity testing through the Federal Circuit Court on 17 July 2015.
The parties entered into consent orders on 19 August 2015. The orders provided for the child to live with the mother and spend time with the father every weekend. They contained various other matters including restraints in relation to the consumption of alcohol.
On 19 June 2017 the father withheld the child in contravention of the August 2015 consent orders.
The mother commenced proceedings in the Federal Circuit Court on 22 June 2017 and applied for a recovery order seeking that the child be returned to her.
On 29 June 2017 orders were made, primarily by consent, providing for the child to live with the father and to spend time with the mother every weekend pending further order. Further orders were made preventing the mother’s husband from coming into contact with the child.
On 7 July 2017 further orders were made by consent providing that the child live with the mother and spend time with the father and that the mother’s husband would not come into contact with the child unless supervised by the Department of Family and Community Services (“FaCS”).
On 21 July 2017 the father again withheld the child from the mother.
On 14 August 2017 orders were made for the father to return the child to the mother and for the matter to be transferred to the Family Court of Australia.
On 15 November 2017 the mother obtained an Interim Apprehended Violence Order (“IVO”) against the father.
In late 2017 FaCS conducted an appraisal which found no concerns in relation to the mother and father’s care of the child.
In early 2018 the father unsuccessfully sought an Apprehended Violence Order against the mother, seeking to prevent the child from being in contact with the mother and an IVO against the mother’s husband.
The matter was accorded priority in the list due to the urgent circumstances of the mother being due to give birth in July 2018.
The trial took place from 1 to 4 May 2018 and final orders were made on 21 May 2018 in accordance with his Honour’s reasons for judgment published the same day.
Discussion
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 rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the Court may take into account and which are also relevant to appeals will be discussed.
Subparagraph (a) is concerned with whether the applicant, in this case the mother, has acted reasonably and without delay. The Notice of Appeal was filed on 18 June 2018 and the application was filed on 19 June 2018. There can be no doubt that the mother has acted promptly, indeed expeditiously.
Subparagraph (c) concerns prejudice to the respondent, in this case the father. The father filed an affidavit in support of his opposition for expedition and does not there depose to matters which would support the submission concerning prejudice to him if an order for expedition was made. However, in submissions by the father today, he argued that prejudice would be visited upon him if he was required to prepare his case in a truncated timeframe. The father is self-represented and, in his words, would “need more time” to prepare for the appeal hearing.
Subparagraph (d) requires consideration of circumstances which justify this case being given priority to the possible detriment of other cases. 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.
The mother is concerned for the impact to the child should the current arrangements continue pending the determination of the appeal. In accordance with the orders of 20 August 2015, the child has lived with the mother and spent time with the father each weekend from 9:00 am on Saturday until noon the following Monday. The mother alleges that prior to the orders of 21 May 2018, the child had not spent more than three days with the father at any one time other than on the occasions in June and July 2017 when he withheld the child from her. This is of particular concern to the mother given the child is three years of age and has never spent an extended time away from her mother or siblings.
The mother alleges that the family report writer, Ms Connor, made mention of the social isolation the child might face when living with the father. This is due to the father living by himself, out of town, on a ten kilometre property, approximately 70 km from F Town.
Important to the disposition of this application for expedition is the fact that the father has a limited ability to communicate using Auslan. The mother is concerned that with limited communication between the child, her siblings and the mother, the child’s ability to learn Auslan will be negatively affected as she will not be able to practice as often as she had prior to the orders of 21 May 2018.
That the matter concerns serious issues that go to the welfare of a young child weighs heavily in favour for an order of expedition.
On balance I am persuaded that the application for expedition should be granted and will order accordingly.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 June 2018.
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