Salaway and Clavell - [2019] FamCAFC 6

FAMILY COURT OF AUSTRALIA

SALAWAY & CLAVELL

[2019] FamCAFC 6

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the applicant father seeks to expedite the respondent mother’s appeal against interim parenting orders – Where the mother seeks to appeal an order allowing the father to spend unsupervised time with the child – Where the orders are stayed pending appeal – Where the respondent does not support or oppose expedition – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justifies priority – Application granted.

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

APPLICANT:

Mr Salaway

RESPONDENT:

Ms Clavell

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

4957

2016

APPEAL NUMBER:

160

2018

DATE DELIVERED:

15 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

15 January 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 November 2018

LOWER COURT MNC:

[2018] FCCA 3653

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the hearing of appeal EA 160 of 2018 be expedited.
The costs in the application are to be costs in the appeal.

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 Salaway & Clavell 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 160 of 2018
File Number: PAC 4957 of 2016

Mr Salaway

Applicant

And

Ms Clavell

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 2 January 2019, Mr Salaway (“the father”) seeks to expedite Ms Clavell (“the mother”) appeal against certain interim parenting orders made in the Federal Circuit Court on 19 November 2018. The parenting orders concern the parties’ daughter, X, who was born in 2015 (“the child”).
An Independent Children’s Lawyer (“ICL”) has been appointed to represent the child’s interests. The ICL supports this application for expedition. The application is not opposed by the mother.
The mother is the appellant in the appeal and I would have anticipated that she would have sought that her appeal be expedited. The better course would have been for the stay to be granted conditional on her doing so and after she had filed her Notice of Appeal, rather than upon an oral application made when the subject orders were pronounced. I trust that the approach adopted here will not become common practice.
In any event, so as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed by the father in this application.
There have been several sets of parenting orders concerning the child. Pursuant to prior interim orders, particularly those dated 16 May 2017 and 21 June 2018, the child lives with the mother, and, up until the hearing by the primary judge, spent supervised time with the father.
At the hearing before his Honour, it was agreed by both parties and the ICL that the child should primarily continue to live with the mother. The father sought an order for unsupervised time. The primary judge was informed by the father, and seems to have accepted, that the father had spent approximately 21 hours of supervised time with the child without any major difficulties. The Family Report Writer, Dr A (“the single expert”) recommended that it would be appropriate to move to unsupervised time. This recommendation accorded with the case presented by the ICL on behalf of the child. Ultimately, as is apparent the primary judge made orders for unsupervised time commencing from Saturday 24 November 2018 until and including Saturday 16 March 2019, to occur between 10.00 am to 1.00 pm (Order 3). The orders then provide for a modest increase in unsupervised time.
The father’s application to move to unsupervised time was opposed by the mother. The mother’s case was set out in her written submissions which were relied upon at the hearing (mother’s written submissions, page 3) as follows:
The risk of harm arises from the [father]’s history of family violence, including physical violence towards the [mother], and the risk of [the child] being neglected in the [father]’s care due to the [father] having a history of dependency on drug (sic) and alcohol, especially in stressful situations. Also, the limited involvement the [father] has had in caring for [the child], without another person present.
At [42] the primary judge accepted the mother’s submission that there were real risks that needed to be taken into account in deciding whether or not unsupervised time for the child with the father would be in the child’s best interests. In coming to his decision, the primary judge balanced the risk factors identified by the mother, with the benefits to the child with spending time with the father unsupervised. His Honour came to the view that the risk factors could be managed and that there was an undoubted benefit for the child to spend unsupervised time with her father [43].
His Honour then recorded:
64. At the end of the above Judgement the mother indicated that she intends to file an Appeal of this decision and has requested a stay be placed on these orders and there was very short further argument.
65.In those circumstances, where we are moving from supervised to unsupervised time I think I am obliged to grant the stay. What I will do is I will grant a stay of these orders until the time expires for the filing of an appeal, and if the notice of appeal is filed within time, then the orders will continue to be stayed, subject to the orders of the Family Court.
His Honour granted a stay of the orders upon the mother’s oral application, even though she had not yet filed a notice of appeal. This is not a course of action that is common place and ordinarily a question of whether a stay will be given should be considered after the notice of appeal had been presented, and for the judge to be in a position to consider the strength of the appeal. Proceeding in the manner that the judge has here has meant that his Honour was unable to address factors that are an important part of the determination of whether or not a stay should be ordered.
Nevertheless, the mother filed her Notice of Appeal on 13 December 2018 seeking that the orders of 19 November 2018 be set aside, the effect of which the orders of 16 May 2017 and 21 June 2018 would become the operative orders. In stating the mother’s grounds of appeal in very broad terms, she argues, inter alia, that the primary judge erred by failing to give sufficient weight to the concerns and risk factors identified by the single expert and failing to consider the father’s lack of insight into his mental health condition and substance abuse issues.
It is my understanding that the hearing of the appeal, unless expedited, would be quite a few months away. The point being that the sittings for February and March 2019 are fully listed and there is a significant number of appeals filed ahead of this appeal that have not yet been listed for hearing.
It is the father’s contention, and it is the case it would seem, that there has been no contact between him and the child since the stay order was made, and that further disruptions to his contact with the child will only compromise their relationship and the child’s opportunity to benefit from his active involvement in her life. It seems to be common ground that it is the mother’s position that the father could spend time with the child under supervision and in accordance with the earlier orders, but the father has not availed himself of that offer. He says that he is unable to afford the cost of the D Group continuing to perform their role as supervisor. There is no doubt that the stay operates as a serious impediment to the type of contact that the primary judge was satisfied is presently in the best interests of the child.

The expedition application

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 Family Law Rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial. It provides a useful guide to the approach to be adopted when determining the question of an expedited appeal. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be the order of priority. The potentially relevant factors referred to in the rules which should be taken into account in an appeal setting will be discussed.
Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case. I accept that the applicant father has lodged his application for expedition in a timely manner. The appeal is instituted by the respondent mother, and having heard from her solicitor today, I have no doubt that whatever is required of the parties to bring an appeal on for an urgent hearing would be done. This subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the application has been made without delay. Nothing more need be said about this issue.
The next factor, subparagraph (c) requires consideration of any prejudice to the respondent. The mother did not file an affidavit in support or opposition of expedition and has not deposed to matters that would support a submission concerning prejudice to her if an order for expedition were made. It seems to me that it likely to be in her interests for the appeal to be expedited. As I have already mentioned, she has indicated through her solicitor that she is in a position to present the appeal even if it is expedited. The only prejudice to her would be bringing forward those costs that she will need to incur so as to prosecute the appeal. This would not stand in the way of expedition if it were otherwise warranted.
Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. Examples of what constitutes a ‘relevant circumstance’ are set out in r 12.10A(4)(a) – (g). Of these, the father, in effect, focused on subparagraph (d), which is concerned with hardship caused by the continuation (during the operation of the stay) of the former interim orders. The submissions made by the father focussed on the impact of the supervision arrangements with the child, who, it is emphasised, is young and has experienced significant change. An expedited appeal is said to have the effect of reducing the consequential emotional upset on the child by virtue of arrangements stopping and starting. There is some force in that.
Subparagraph (e) concerns any financial hardship to the applicant. Although the father spoke of his financial circumstances, there is nothing raised today relevant to the question of expedition connected to his financial circumstances
Further, subparagraph (f) concerns whether the case involves allegations of child abuse, for example. As the primary judge indicated at [8], this case involves allegations of family violence that have not yet been determined. A further hearing undertaken with similar constraints will not alter that state of affairs and the issue as far as the question of expedition is concerned is moot.
On balance, it is the matters that go to the welfare of a young child and her ability to spend time with her father in accordance with orders which the primary judge was satisfied are in her best interests, and which are presently stayed, which tips the balance in favour of expedition.
In relation to the grounds of appeal, there are several which overlap and could be contracted. It could not be said that this appeal is so devoid in merit that it would be appropriate to list it for summary dismissal as was originally proposed by the father (but I note that that application has been withdrawn), or that the grounds should influence the question of whether or not an order for expedition should be made.
Thus, the factors justify expedition and I will order accordingly.
The question of costs will be determined as a question of costs in the appeal.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 15 January 2018.

Date: 31 January 2019