REEVES & GRINTER
[2016] FamCAFC 29
•1 March 2016
FAMILY COURT OF AUSTRALIA
| REEVES & GRINTER | [2016] FamCAFC 29 |
| FAMILY LAW – APPEAL – CHILDREN – Application for expedition of appeal – Where the father seeks to expedite an appeal against final parenting orders – Where the child has significant intellectual and behavioural issues – Where the child has primarily lived with the mother and spent limited time with the father – Where the single expert’s recommendation was not followed by the trial judge – Where the father relies upon the single expert’s recommendation – Whether a case should be given priority to the detriment of other cases – Where the matter does not justify priority to the detriment of other cases – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D) Family Law Rules 2004 (Cth) r 12.10A |
| Moxon & Moxon [2010] FamCAFC 67 |
| APPLICANT: | Mr Reeves |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Ms Grinter Osborne Legal |
| FILE NUMBER: | SYC | 6726 | of | 2013 |
| APPEAL NUMBER: | EA | 189 | of | 2015 |
| DATE DELIVERED: | 1 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 23 February 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 November 2015 |
| LOWER COURT MNC: | [2015] FamCA 1037 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Levy |
| SOLICITOR FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT SOLICITOR FOR THE INDEPENDENT | Legal Aid NSW Mr Siggins Osborne Lawyers |
Orders
The application in an appeal filed on 3 December 2015 for expedition of the appeal filed on 3 December 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reeves & Grinter 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 189 of 2015
File Number: SYC 6726 of 2013
| Mr Reeves |
Applicant
and
| Ms Grinter |
Respondent
and
Osborne Legal
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By Application in an Appeal filed on 3 December 2015, Mr Reeves (“the father”) seeks expedition of an appeal filed by him against final parenting orders made by Foster J on 25 November 2015 in relation to parenting proceedings as between him and Ms Grinter (“the mother”) concerning their child B born in 2006 (“the child”). The mother and the Independent Children's Lawyer appeared on the application and neither opposed nor consented to the application.
Following the hearing of the matter, Foster J ordered that the mother and father have equal shared parental responsibility for the child; the child to live with the mother and spend time with the father as agreed between the father and mother. If the parties could not reach agreement his Honour made detailed orders defining the time the child was to spend with the father.
It is useful to set out some brief context taken from his Honour’s reasons for decision which enable an understanding of the father’s application.
In the hearing, both parties sought orders that the child live primarily with them. His Honour focused on the parenting history of the child together with each party’s parenting capacity in the light of their competing proposals.
The child has special needs and his Honour carefully considered each party’s capacity to meet those needs together with the effect on the child of any change in his living arrangements.
His Honour set out the issues taking into consideration the competing applications where the father’s proposal would see a substantial change in the child’s living arrangements and removal from his primary carer.
If the appeal is successful the father seeks orders that the father and mother have equal shared parental responsibility and that the child live with him.
Relevant Principles
Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals although no criteria or considerations for making that determination are provided. Recourse is often had to rule 12.10A of the Family Law Rules 2004 (Cth) which address applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
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.
Rule 12.10A(4) provides a definition of a “relevant circumstance”, one of which is:
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
Evidence in the application
In support of the application, the father relied on his affidavit filed on
3 December 2015 in which he placed considerable reliance on the report of
Dr E, the single expert. Dr E prepared a report dated
13 March 2015. At paragraph [38] of that report Dr E said:
I am very concerned that a hearing in this matter may not occur for a number of months, delaying the stabilisation of [the child’s] home life and the introduction of important changes in parenting, medication and remedial education, which in turn may set back his potential for improvement quite significantly. However, one possibility may be for [the child] to start living with the father very soon …
The father asserted that when cross-examined, Dr E maintained his position that the “best option” was for the child to live with the father. He expressed his concern as to the impact on the child continuing to live with the mother although did not, in his affidavit, indicate what those concerns may be.
The father contended that Dr E’s expressed concerns about the mother’s ability to care for the child raised significant concerns which required the matter to be dealt with as a matter of priority.
Reasons of the trial judge
The child’s difficulties were the subject of considerable analysis by the trial judge and his Honour set out in some detail the evidence from all sources about the child’s behaviour at school and in other settings. The child is under the care of a number of health professionals.
From a reading of his Honour’s careful consideration of the evidence of the various professionals who have been involved with this little boy and his consideration of the evidence as a whole, that the child has significant difficulties across a range of areas but, it seems within the school system and demonstrated difficult behaviours at home.
While Dr E expressed the opinion that the child should be placed to live with his father, his Honour concluded that the opinion was attended with some ambivalence and he did not accept Dr E’s opinion [191]. His Honour concluded that there were no “clear and cogent reasons indicative that it is in the best interests of the child for removing him from the primary care of his mother” [194].
There is no doubt that the father brought the application with despatch and no prejudice to the mother was, nor in my view, reasonably could be said to obtain to her by reason of the application. However, while every appeal which concerns children must be considered expeditiously, I am not persuaded that there are relevant circumstances in this matter which would cause it to be given priority over other cases of a similar nature.
I will thus dismiss the application.
Costs
No costs of the application were sought by the respondent mother or the Independent Children’s Lawyer.
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
1 March 2016.
Associate:
Date: 1 March 2016
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