PEMBROKE & HERON - [2015] FamCAFC 55

FAMILY COURT OF AUSTRALIA

PEMBROKE & HERON

[2015] FamCAFC 55

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks to expedite an appeal against interim parenting orders – Whether a case should be given priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules 2004 r 12.10A

Babeu & Aamot [2015] FamCAFC 8

APPELLANT:

Mr Pembroke

RESPONDENT:

Ms Heron

FILE NUMBER:

SYC

4058

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

14 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

31 March 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 February 2015

LOWER COURT MNC:

[2015] FamCA 120

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Ms Warda of Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Adams of Hamish Cumming Family Lawyers

Orders

The application for expedition of the appeal against the orders of Johnston J made on 9 February 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pembroke & Heron 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 34 of 2015
File Number: SYC 4058 of 2014

Mr Pembroke

Appellant

and

Ms Heron

Respondent

REASONS FOR JUDGMENT

On 9 February 2015 Johnston J made interim parenting orders in proceedings between Mr Pembroke (“the father”) and Ms Heron (“the mother”) relating to their son B Heron Pembroke who was born in 2013.
His Honour’s orders concern the time that the child spends with the father.
The father appealed those orders and seeks by this application that the hearing of the appeal be expedited.
Some brief background to the matter is useful to give context to the application and is taken from his Honour’s reasons.
The parties began to live together in December 2012 and separated in

January 2014 when the child was but five months old. During their cohabitation, the parties lived in G Town in NSW. Very shortly after the separation, the mother moved to E Town, some distance away and although the father’s employment caused him to move to D Town, there is still a distance between the parties. The father contended that prior to separation he spent considerable time with the child but that the separation and the distance between the parties makes the development of the relationship with the child difficult. His Honour found that the move did adversely affect the father’s relationship with the child.
In July 2014, shortly after the parties separated, they entered into consent orders which provided for the father and child to spend time together with the time to be supervised by the paternal grandparents. These arrangements broke down and culminated in the father bringing an application for contravention against the mother on 24 October 2014. It seems that the application has been adjourned until the parties have been provided with a report from a single expert. Further orders were made in November 2014 which provided for the child to spend time with the father based on an eight-week cycle. These orders were made in the face of the mother’s opposition to them, her case being that the child was not coping with the earlier orders.
His Honour referred to the mother’s evidence in which she said that after each of the first two of the ordered visits the child was distressed and bit her and himself [16]-[17]. She said that this pattern of behaviour continued [18]-[19].
His Honour had the benefit of a report from a family consultant. His Honour was also conscious that a single expert had been appointed to assess the parties and to report to the court and his Honour, on a number of occasions expressed the view in his reasons that issues may be able to be resolved once the expert’s opinion is to hand.
His Honour found that the child’s primary relationship is with the mother and that the child was, before separation, forming a relationship with the father but there have been real difficulties in that continuing [43]. His Honour observed that it was likely that the difficulty in this case is that the child had had insufficient opportunities to form an attachment or relationship with the father that would enable him to pass from his mother easily to the father.
The mother sought interim orders, pending the release of the expert’s report, that the child spend time with the father each weekend on Saturday and Sunday for two hours, with the time being spent in E Town. The father submitted a schedule that provided for the child to spend time with him on three weekends out of four in D Town and E Town for three hours each time.
His Honour made orders as sought by the father and ordered that the time be supervised by the maternal grandmother.
It is mainly in relation to the maternal grandmother’s supervision that the father’s appeal is directed.
The thrust of the father’s contentions as to why the hearing of the appeal should be expedited is his concern that the mother, in concert with her mother, are contriving to disrupt his time with the child and that it will impede the development of his relationship with the child. His affidavit contains accounts of his visits with the child and the difficulties the father contends he has encountered because of the grandmother’s intervention in or interference with his time with the child.
The solicitor for the father argued that such was the level of the father’s concerns as expressed in his affidavit that the appeal should be given an expedited hearing. This submission was made in the face of the acknowledgement that, if the appeal was successful, the Full Court would have little choice but to remit the matter for a further interim hearing.
It was common ground between the solicitors for the parties that the expert is conducting the necessary interviews with the parties and that his report is expected to be delivered to the court within about six weeks of its completion. It was submitted by the solicitor for the mother that while a final hearing date for the principal parenting proceedings may be some time off, the provision of the report may assist the parties to a resolution of matters or provide the basis for further interim orders.
Whilst s 94(2D) of the Family Law Act 1975 (Cth) provides for an order to be made expediting an appeal, it does not provide the criteria by which this decision is made. In Babeu & Aamot [2015] FamCAFC 8, Ryan J applied the criteria provided by Rule 12.10A of the Family Law Rules 2004 for the expedition of trials as being appropriate to a consideration of whether an appeal should be expedited. The rule requires consideration of whether the applicant has acted reasonably and without delay in bringing the application for expedition; prejudice to the respondent and whether there is a “relevant circumstance in which the case should be given priority to the possible detriment of other cases”.
Of those considerations, the relevant one in these proceedings is the final matter: whether there is a circumstance by which this case should have priority to the possible detriment of another. The orders made by his Honour were as sought by the father and they provide the father with frequent short periods of time with this little boy in an endeavour, as his Honour said, to build the relationship between them. His Honour however ordered supervision, again for the assistance of the child in moving easily from his mother to the father. The time is being provided. The father is concerned about the grandmother’s conduct during the time. Those concerns, while no doubt validly held, in no way could provide a circumstance in which this appeal should have priority over and possible detriment to other appeals.
The application will be dismissed.
No costs were sought by the respondent and none will be ordered.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

14 April 2015.

Associate:

Date: 14 April 2015