Rader and Rader And Ors
[2019] FamCAFC 183
•24 October 2019
FAMILY COURT OF AUSTRALIA
| RADER & RADER AND ORS | [2019] FamCAFC 183 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father sought expedition of an appeal against orders concerning the parenting arrangement for his children – Where the parenting orders were of a drastic nature – Where the solicitor for the first respondent sought an application for the adjournment of the application for the expedition of the appeal – Where the application for an adjournment was refused – Where the father’s appeal raises substantial issues – Where it is in the best interests of the children that the issues are determined as quickly as possible – Where the application for expedition of the appeal is allowed – Where the hearing of the appeal is expedited. |
| Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Mr Rader |
| FIRST RESPONDENT: | Ms Rader |
| SECOND RESPONDENTS: | Ms Haines and Mr Haines |
| INDEPENDENT CHILDREN’S LAWYER: | Morton Family Lawyers |
| FILE NUMBER: | SYC | 1641 | of | 2019 |
| APPEAL NUMBER: | EA | 99 | of | 2019 |
| DATE DELIVERED: | 24 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 10 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2825 [2019] FCCA 2826 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies SC with Ms Reid |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
SOLICITOR FOR THE FIRST RESPONDENT: | Bowral Legal |
| SOLICITOR FOR THE SECOND RESPONDENTS: | Godden Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Morton Family Lawyers |
Orders
The oral application for an adjournment by the first respondent on 10 October 2019 be dismissed.
The hearing of the appeal no. EA 99 of 2019 is expedited.
Appeal no. EA 99 of 2019 be listed for hearing on 15 November 2019.
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 Rader & Rader and Ors 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 99 of 2019
File Number: SYC 1641 of 2019
| Mr Rader |
Applicant
and
| Ms Rader |
First Respondent
and
Ms Haines and Mr Haines
Second Respondents
REASONS FOR JUDGMENT
This is an application made by Mr Rader (“the father”) seeking expedition of an appeal against orders made by a judge of the Federal Circuit Court of Australia on 13 September 2019.
The proceedings before the primary judge concerned the parenting arrangements for two children who are 13 and 14 years old.
As originally constituted, the proceedings were between the father and Ms Rader (“the mother”) but on 13 September 2019 the maternal grandparents, Ms Haines and Mr Haines (“the maternal grandparents”) appeared in court and sought to be joined as respondents to the proceedings. That occurred, and the Independent Children’s Lawyer (“the ICL”) then proposed orders that the children, who had lived with the father since October 2018, be moved to live with the maternal grandparents who were to have parental responsibility for them. Over the opposition of the father, but with the support of the mother, those orders were made, although Order 1 for the maternal grandparents to have “sole parental responsibly, shared jointly” was tempered by the requirement that the maternal grandparents “shall not make any non-urgent major long-term decision without consulting with each of the parties first and obtaining an order of the Court”.
A further order provided that all of the parties, including the maternal grandparents, were to engage in family therapy with a named family therapist who could, if she chose, recommend in writing that the children spend time with either of their parents in accordance with the written recommendation. Otherwise the parents were restrained from contacting the children, their medical practitioners and their schools.
On 1 October 2019, the father filed a Notice of Appeal along with the present Application in an Appeal for expedition of the appeal. Unexceptionally, given the nature of the application, it was listed quickly and came before me on 10 October 2019.
In those circumstances, it would not have been entirely surprising if one of the legal practitioners representing any of the parties or the ICL was not available personally to attend the hearing of the application for expedition of the appeal on 10 October 2019. Indeed this was the case with the ICL. However, she did not arrange for counsel or an agent to appear on her behalf, understandably perhaps, as she apparently lacks a grant of legal aid for the appeal. She also did not ask one of the parties attending the hearing of the application for expedition of the appeal to indicate her attitude to the application on her behalf.
Unfortunately, the course that was taken by the ICL was to send an email to my associate advising of the reasons she was not available to attend the hearing, the travel arrangements of the father, an application for a stay of the orders recently filed by the father and then setting out a number of facts that have occurred since the orders were made on 13 September 2019. Unhelpfully, the ICL did not set out in the email what her attitude to the application for expedition of the appeal was, although she did attach an email that she had sent to the father’s lawyer suggesting that the application would have to be adjourned, presumably until she returned.
The email should not have been sent to my associate. Litigation is not to be conducted by correspondence with a judge or via an associate but rather it is to be conducted in open court unless there are directions which provide to the contrary.
Adjournment of the application for expedition
The solicitor for the mother sought an adjournment of the application for expedition of the appeal for up to a month because her counsel was not available, the maternal grandparents had only recently instructed lawyers and the single expert psychiatrist’s interviews for a family report were to be conducted on 11 November 2019. It was suggested that the single expert would be better informed if the single expert knew the outcome of the appeal.
I do not understand the relevance of the first two submissions. The hearing of applications, particularly urgent ones, does not wait upon the convenience of lawyers.
As to the third submission in relation to the family report, I question the relevance of the outcome of the appeal to the matters to be traversed by the single expert. However, if the outcome is relevant, it is desirable that the expert know sooner rather than later.
Given the circumstances of these children, it is imperative that the family report be obtained as soon as possible regardless of the outcome of the appeal.
The application for an adjournment was supported by the solicitor for the maternal grandparents on the basis that the ICL has not yet expressed a view as to either the appeal or the application for expedition of the appeal. That is so, but that is hardly a reason to delay the hearing of the application.
For these reasons the application for an adjournment was refused.
Should the appeal be expedited?
Whilst there are no rules that govern the expedition of appeals, commonly courts considering such applications look to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) as a helpful list of factors to be considered.
Two factors in favour of granting expedition in this matter are that the father has acted promptly in bringing this application before the Court (r 12.10A(2)(b) of the Rules) and that the subject matter of the appeal is such that if an error in the reasons is to be identified that should occur sooner rather than later (r 12.10A(2)(d) of the Rules). The latter requires some explanation.
The children had been living with the father since October 2018. The mother accepted that, at least presently, she was not in a position to have the children live with her or to exercise parental responsibility.
The maternal grandparents appeared in the proceedings for the first time on 13 September 2018. On the same day, an oral application for them to be joined as parties was acceded to by the primary judge. The maternal grandparents had filed no evidence. Nonetheless, orders were sought for the children immediately to be removed from the father and to be placed with the maternal grandparents who would have parental responsibility for them.
The primary judge acceded to those requests because his Honour was satisfied on the material before him that he was “gravely concerned about the children’s psychological safety continuing to live with the father” (Rader & Rader (No.4) [2019] FCCA 2826 (“Rader”) at [49]). That view was formed on the basis of what the children had told their school counsellor and general practitioner, as recorded in their notes. It is clear that those notes recorded the children as not liking their father and saying things such as:
· X “finds it hard to talk to her dad. He has a clear hatred towards her and is biased” (Rader at [23]);
· “Dad is annoying. I am stuck with him for four years. How am I going to cope?” (Rader at [24]);
· “He yells and can be a bully” (Rader at [24]);
· “Dad is trying to control what I say and I prefer to meet with them separately” (Rader at [29]);
· “[H]e is very controlling and wants to know everything we are talking about” (Rader at [38]); and
· He “takes all his anger out on [the children]” and that Y had been afraid of his father a few times in the past (Rader at [45]).
The orders, therefore, were a drastic and peremptory change in the children’s living arrangements.
The father submitted that the appeal should be heard quickly because of the nature of the orders and the circumstances in which they came about, which he asserts, involved a lack of procedural fairness.
He also submitted that the primary judge erred as a matter of law in making orders that provided for the family therapist to determine if, when and where the children will see their parents.
The father’s challenges raise substantial issues. It is in the best interests of the children that these issues be determined as quickly as possible.
The solicitor for the mother opposed the application for expedition of the appeal and submitted that the father had deliberately delayed the interim hearing by objecting to subpoenas such that he should now not be granted expedition of the appeal.
There are two answers to that. The first is that the basis of any expedition of the appeal is on the basis of what would be in the best interests of the children and not the father’s conduct. Secondly, whatever the conduct of the father may have been up until 13 September 2019, the proceedings radically changed in nature on that day when the maternal grandparents were joined to the proceedings and orders were made immediately thereafter. The conduct of the father was not relevant to the proceedings as constituted on the day that the orders were made.
The solicitor for the mother and the solicitor for the maternal grandparents also made submissions to the effect that the orders were appropriately made and that it would be best to await the outcome of the family report before determining what orders are in the best interests of the children.
The father has exercised his right to appeal in circumstances where substantial issues concerning the well-being of two children arise. Whilst it is true that it will be important to receive the family report before determining what future orders should be made, that has no bearing on the issue of whether or not the orders that are presently in place were erroneously made.
In short, given the issues raised and the drastic nature of the orders, I consider it appropriate to expedite the hearing of the appeal.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 October 2019.
Associate:
Date: 24 October 2019
0