Pawley and Pawley

[2017] FamCAFC 103

FAMILY COURT OF AUSTRALIA

PAWLEY & PAWLEY [2017] FamCAFC 103

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite a cross-appeal against interim parenting orders – Where the mother seeks to expedite an appeal against a dismissal of a stay application – Where the nature of appeal justified priority to the detriment of other cases – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules (2001)(Cth)

APPLICANT: Ms Pawley

RESPONDENT: Mr Pawley

FILE NUMBER: NCC 363 of 2017

FIRST APPEAL NUMBER: EA 33 of 2017

SECOND APPEAL NUMBER: EA 54 of 2017

DATE DELIVERED: 2 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 2 June 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 21 March 2017

LOWER COURT MNC: [2017] FCCA 804

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Windsor

SOLICITOR FOR THE RESPONDENT: Bale Boshev Lawyers

Orders

1. That the appeals numbered EA 33 of 2017 and EA 54 of 2017 be consolidated.

2. On the application of the applicant/cross-appellant, the hearing of the appeals be expedited.

3. That the appeals EA 33 of 2017 and EA 54 of 2017 be listed for hearing in a sitting of the Full Court in Sydney for the week commencing 19 June 2017.

4. That the parties’ legal representatives make immediate contact with the Appeal Registrar to settle the procedural directions for the appeals.

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 Pawley & Pawley 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)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 33 of 2017; EA 54 of 2017
File Number: NCC 363 of 2017

Ms Pawley

Applicant

And

Mr Pawley

Respondent

REASONS FOR JUDGMENT

1. Before the court today were two applications seeking an expedited hearing of appeals EA33/2017 (filed on 16 May 2017) and EA 54/2017 (filed on 30 May 2017).  Both applications were filed by the mother.

2. In EA 33/2017 the mother is the cross-appellant, and the father is the appellant. The appeal and cross-appeal relate to interim parenting orders made by Judge Middleton on 21 March 2017, with settled reasons provided on 17 May 2017.

3. On 16 May 2016 Judge Middleton heard an Application in a Case filed by the mother on 10 May 2017 seeking a stay of the interim orders, pending the appeal.  The application was refused, and EA 54/2017 appeals that refusal.

4. At the conclusion of the hearing I made orders that the applications be granted. These are the reasons for the orders.

Relevant Background

1. The parties have two children together, E is almost three, and A who is nine months old (“the children”).

2. In January 2017 the mother relocated with the children from the Hunter Valley region to X district, north of Coffs Harbour and 450 kilometres from the family home.

3. At the time of hearing, the mother was spending approximately five days a week at the X property, where she assists her new partner with the running of his farm, and two days per week in the Hunter Valley area with her mother.  The oldest child was spending one day per week with her father, and the youngest child was not spending any time with her father.

4. On 14 February 2017 the father filed an initiating application, seeking final and interim parenting orders, including that the mother return with the children to the Hunter Valley area. The mother opposed the return order. On 21 March 2017 interim orders were made for the father to spend time with the children each Wednesday and Sunday.  No orders were made requiring the mother to relocate the children back to the Hunter Valley.

5. The father filed an appeal against these orders on 18 April 2017, on the basis that the primary judge erred in not ordering that the mother and children return to the Hunter Valley region area pending final hearing.

6. The primary judge recalled the parties on 4 May 2017, and an additional order was made restraining the mother from relocating the children’s residence from the M region between Wednesday and Sunday. The source of power was said to be r 16.05(2)(e) of the Federal Circuit Court Rules (2001)(Cth) (“the Slip Rule”). On 16 May 2017 the mother filed her cross-appeal against all interim parenting orders, including on the basis that the order of 4 May 2017 was made at a time when the primary judge was functus officio.  

7. The mother’s appeal against the primary judge’s order of 26 May 2017 refusing the stay application contends that the primary judge erred in not considering the mother’s grounds of appeal in relation to the relocation order, and failed to adequately consider the best interests of the children.

Discussion

1. 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.

2. 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.

3. Subparagraph (a) is concerned with whether the applicant has acted reasonably and without delay.  Subparagraph (b) also deals with the issue of delay. There is no doubt that in relation to the cross-appeal, the appeal and these applications the mother has moved promptly.

4. Subparagraph (c) concerns prejudice to the respondent, that is, the respondent to these applications, who, it will be recalled, is the appellant in EA33/2017.  There can be no concerns as to prejudice to the father, provided there is no undue hardship in preparing the father’s case for appeal within a truncated timeframe. I note the limited number of documents proposed by the parties in their draft appeal book indexes.

5. Subparagraph (d) requires consideration of circumstances which would justify this case being given priority to the possible detriment of other cases.  The affidavits of the mother in support of these applications state that if she is forced to relocate then she will be unable to assist her partner in the running of his farm, to the detriment of his business. The mother further deposes that she will be required to live with her mother, and that her children will be unable to attend their current playgroup. Further, the mother states that the children will suffer a further change to their living arrangements, in spending half the week in the Hunter Valley region and half a week on the mid North Coast.  These are all relevant factors on an application for expedition and weigh in favour of it being granted. 

6. Finally it is necessary to consider the grounds of the cross-appeal and appeal.  All that needs to be said at this point is that the mother raises a number of challenges to his Honour’s reasons, and both appeals appear to raise substantial issues for consideration. 

7. On balance I am persuaded that the application for expedition should be granted and will order accordingly. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 2 June 2017.

Associate: 

Date:  2 June 2017