PIDOUX & MAGNIN
[2017] FamCAFC 214
•11 October 2017
FAMILY COURT OF AUSTRALIA
| PIDOUX & MAGNIN | [2017] FamCAFC 214 |
| APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks expedition of his appeal against interim parenting orders – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Where further orders have been made by the primary judge relating to the circumstances advanced in support of the application for expedition – Where the Independent Children’s Lawyer has indicated her willingness to maintain a proactive approach – Application dismissed. |
| Family Law Act 1975 (Cth) s 94AAA |
| Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Mr Pidoux |
| RESPONDENT: | Ms Magnin |
INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 4645 | of | 2011 |
| APPEAL NUMBER: | EA | 102 | of | 2017 |
| DATE DELIVERED: | 11 October 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 10 October 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 2022 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Spain |
| SOLICITOR FOR THE APPLICANT: | Somerville Legal |
| THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Smith of Legal Aid NSW |
Orders made 10 October 2017
The Application in an Appeal filed on 25 September 2017 for expedition of the hearing of the appeal from the orders of Judge Kemp made on 28 August 2017 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 Pidoux & Magnin 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 102 of 2017
File Number: SYC 4645 of 2011
| Mr Pidoux |
Applicant
and
| Ms Magnin |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Mr Pidoux (“the father”) seeks expedition of his appeal against interim parenting orders made in the Federal Circuit Court of Australia by Judge Kemp on 28 August 2017. The orders concern the only child of the father and Ms Magnin (“the mother”), who was born in 2007.
The application for expedition came before me on 10 October 2017. I dismissed the application on that day and indicated that I would provide reasons for that decision. These are those reasons.
Final parenting orders were made by consent between the parties on
2 November 2012, which provided that the child live with the mother and spend time with the father. In February this year the father filed an application seeking that new parenting orders be made.
On an interim basis the father sought that the child live with him and spend day time only with the mother, such time to be supervised by the maternal grandmother subject to an undertaking to the Court. The father made allegations of alcohol and illicit drug use by the mother, and raised concerns that the child was exposed to aggressive behaviour and verbal and emotional abuse from the mother as a result of her drinking. An Independent Children’s Lawyer was appointed to the matter.
On 24 July 2017 consent orders were made providing that the mother submit to urinalysis no more than once a month as requested by the Independent Children’s Lawyer. The orders also restrained the mother from consuming alcohol or any illicit drugs 24 hours prior to spending time with the child or when she had the child in her care.
On 28 August 2017 the primary judge made interim orders that the child spend five nights a fortnight with the father and otherwise live with the mother, subject to the mother residing with her parents. The orders also provided that the mother register and attend a drug and alcohol counselling service and that the mother undertake urinalysis and CDT (carbohydrate deficient transferrin) testing when requested by the Independent Children’s Lawyer. The previous injunctive orders on the mother’s alcohol and drug use remained in force. The Independent Children’s Lawyer was also given liberty to restore the matter on seven days’ notice to the parties and the Court in respect to the ordered testing.
His Honour’s reasons carefully explored the competing positions of the parties and the issue of the mother’s drinking. His Honour was clearly conscious of the issue of the risk to the child. His orders require the mother to attend for testing and other matters addressed to her alleged alcohol abuse.
On 25 September 2017 the father filed a Notice of Appeal against the
28 August 2017 orders. On the same day he filed an Application in an Appeal seeking the appeal be expedited. An associated application to adduce further evidence on the application was not pressed.
The grounds of appeal challenge the weight or importance that the judge placed on the evidence before him about the mother’s drinking, amongst other matters.
In support of his application for expedition the father relies on his affidavit filed on 25 September 2017. The father argues that that appeal should be expedited as, notwithstanding the primary judge’s orders, the child is nevertheless at risk of harm in the care of the mother. The basis for the father’s concerns are:
·The primary judge’s orders do not sufficiently address the risk of harm to the child because of the mother’s alcohol abuse;
·The mother has refused to attend the drug and alcohol counselling service as required by the orders; and
·The mother has not complied with the Independent Children’s Lawyer’s requests to undergo CDT testing pursuant to the orders.
Relevantly to the issue of expedition are recent events. Apparently the Independent Children’s Lawyer relisted the matter before the primary judge, concerned as to the mother’s compliance with earlier orders. I was informed that on 5 October 2017 orders were made suspending the mother’s time with the child until she had complied with the orders. The father submitted that this did not protect the child from risk. However, the Independent Children’s Lawyer submitted that if there were concerns about the mother’s drinking or otherwise, she retained liberty to relist the matter before the primary judge for further orders and would do so.
Expedition
Section 94AAA(10)(j) of the Family Law Act 1975 (Cth) provides for the expedition of appeals, although no criteria or considerations for making that determination are provided. Recourse is often had to r 12.10A of the Family Law Rules 2004 (Cth) which addresses applications for expedition of hearings before a judge.
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.
The application for expedition was filed on the same day as the appeal. The respondent did not respond to the application nor did she appear at the hearing. I am unable to point to any particular prejudice that might be visited upon her were the appeal to be expedited.
Thus, this matter turns on whether this case should be given priority over other cases and to their possible detriment.
This matter, absent expedition, is likely to be listed in February 2018. It is difficult to imagine that an order for expedition in the circumstances of this case would bring it to hearing sooner. Further, given the Independent Children's Lawyer’s proactive approach to the orders made by the primary judge and her expressed willingness to seek further orders, any asserted risk to the child arising from the orders can be addressed in the meantime.
In these circumstances I am unpersuaded that the appeal in this matter should have priority over and displace other, like appeals waiting to be heard. The application will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 11 October 2017.
Associate:
Date: 11 October 2017
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