SANDERS & TARO - [2019] FamCAFC 86

FAMILY COURT OF AUSTRALIA

SANDERS & TARO

[2019] FamCAFC 86

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother filed an application for expedition of her appeal from interim parenting orders when the matter is listed for trial commencing on 24 June 2019 – where disputed issues of fact can only be resolved at trial rather than on appeal – application of r 12.10A(2) of the Family Law Rules 2004 (Cth) – where the mother delayed the bringing of her expedition application for four months – where there is no basis made out by the mother for this appeal to be given expedition at the expense of other appeals awaiting hearing – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISPENSE WITH TRANSCRIPT – Where the trial of the matter will precede the appeal hearing – where there may be a lack of any utility in an appeal from the interim orders to be heard after the trial has taken place – where the application for dispensation with transcript need not be dealt with pending the outcome of the trial– Application adjourned

Family Law Rules 2004 (Cth) r 12.10A

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

APPLICANT:

Ms Sanders

RESPONDENT:	Mr Taro
INDEPENDENT CHILDREN’S LAWYER:	Bridges Family Law Specialists
FILE NUMBER:	BRC	3460	of	2018

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

23 May 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:	23 May 2019
LOWER COURT JURISDICTION:	Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 December 2018

LOWER COURT MNC:

[2018] FamCA 1103

REPRESENTATION

APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Ehlers

SOLICITOR FOR THE RESPONDENT:

Steindl Bradley & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Wardle

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms V Khushal, Bridges Family Law Specialists

Orders

The Application in an Appeal filed 24 April 2019 for expedition be dismissed.
The Application in an Appeal filed 24 April 2019 for dispensation with transcript be adjourned for further directions following the trial commencing on 24 June 2019.
Costs of and incidental to the Application in an Appeal filed 24 April 2019 be reserved to the appeal hearing.

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 Sanders & Taro 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 BRISBANE

Appeal Number: NOA 4 of 2019
File Number: BRC 3460 of 2018

Ms Sanders

Applicant

And

Mr Taro

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the mother of a four year old child to expedite the hearing of her appeal from interim parenting orders made by Baumann J on 7 December 2018. The mother also seeks that the requirement that she obtain and provide a transcript of the interim hearing on 7 December 2018 for the purpose of her appeal be dispensed with.

Application for expedition

There are some fundamentally important contextual matters to this application for expedition.
First, on 7 February 2019, Baumann J set the parenting proceedings down for a trial to commence on 24 June 2019; a little over four weeks from today.
The next sittings of the Full Court in Brisbane is from Monday 17 June 2019 to Friday 21 June 2019. That sittings has been filled with appeal cases that have been awaiting hearing and there is no excess capacity in that sittings to accommodate any additional matter. If this Court were to expedite this particular appeal to that sittings it would come at the expense of another appeal that has long been waiting to be heard by the Court.
Further, simply stated, the finite resources of this Court to meet the competing demands of numerous pending appeals does not allow for, in the ordinary course, a Full Court to be especially convened outside of listed sittings periods.
However, perhaps of even more fundamental importance in this case, as already referred to, the orders of 7 December 2018 were made following an interim hearing. As the reasons for judgment of the primary judge reflect, there were competing and disputed issues of fact surrounding questions of risk to the child. The primary judge did have the benefit of independent expert evidence of both a family consultant and a psychiatrist. Whilst, as his Honour himself observed in an interim hearing, that evidence could not be tested by cross-examination, that independent evidence from two expert witnesses flagged very significant concerns about the safety for the child if she remained in the mother’s primary care.
It can be seen from the reasons of the primary judge that within the constraints of an interim hearing, and acknowledging that the subject evidence was yet to be tested at a trial, that expert evidence essentially dictated the conclusion that, at least on an interim basis, the risk issues flagged by the experts needed to be addressed in terms of the child’s residence.
The primary judge’s reasons for judgment quote extensively from the contents of the reports of, respectively, the family consultant and the psychiatrist. I will not repeat all of that which his Honour recorded in the reasons but I have those reports before me. I simply note that in his report Dr D states, as his Honour records:
I believe that [Ms Sanders] has Schizophrenia which is not appropriately managed. She has an active Delusional belief and her drinking behaviour is influenced by her delusional material. I believe she needs referral to the appropriate Adult Mental Health Clinic in her area. She requires psychiatric review and review of medication as part of any ongoing court orders. She cannot be placed in charge of a child without appropriate mental health care given her Diagnosis, poor compliance, her longitudinal history and propensity for violence and lack of insight regarding her current delusion that perpetuates her alcohol use.
(Emphasis added)
I say immediately that the mother disputes the contents of the expert’s report and opinion but of course that dispute could not be resolved by his Honour at an interim hearing. It can, and likely will, be resolved at the forthcoming trial of the proceedings.
In relation to the family report, the family consultant says this at paragraphs 122 and 126 of her report:
122.On the information available to me, the state of [Ms Sander’s] mental health and alcohol consumption is worrying, and are more likely to have a detrimental effect upon [X] than any limitation [Mr Taro] may have as a parent.
…
126.More specifically, [X] is likely to experience her mother as emotionally unavailable to her and inattentive to her needs. She will likely experience poor supervision, and compromised care, in that her mother may experience difficulties perceiving and judging risk and danger. [X], because of all of this, may internalise that the world is an unpredictable and confusing space.
I repeat that the mother foreshadows that she will in the trial agitate differences and dispute about the expert evidence to which I have referred, but the point of emphasis is that a trial, as distinct from an appeal, provides the appropriate forum in which that can occur.
I sought to explain to the mother on this hearing that in an appeal proceeding the Court is not equipped to deal with disputed issues of fact or to resolve competing versions of evidence given by witnesses; that is the very purpose of a trial, which in this case is scheduled to commence in a little over four weeks.
As I also sought to explain to the mother, where an appeal succeeds the Full Court has the power to either remit the proceedings for re-hearing, or to

re-exercise the discretion of the primary judge. However to take the path of

re-exercising the discretion, the Full Court must do so based on relevant facts and circumstances at the time of the re-exercise of discretion. The parties must be afforded the opportunity to place current evidence before the Court.[1]
[1] See Allesch v Maunz (2000) 203 CLR 172.
In this case, the effect of Baumann J’s order of 7 December 2018 was to remove the child from her then primary care with the mother and to be placed in the primary care of the father. That is the position that has continued now since 7 December 2018, that is, the child has been in the primary care of her father, and having some supervised time with the mother, for the past approximately six months or so. Necessarily, updated evidence would have to be available, dictating remitter of the proceedings.
The point I sought to emphasise with the mother on this hearing is that the most likely outcome of even a successful appeal, assuming a listing of an appeal could be achieved between now and the forthcoming trial, from interim parenting orders such as these, would likely see the proceedings simply remitted for a further interim hearing by a trial judge on then current evidence, again with precisely the same constraints which Baumann J laboured under in the first interim hearing about resolving contested issues.
Thus it is that in this case even if it were possible for the mother’s appeal to be listed in advance of the current trial listing; and even if an assumption were made that the appeal succeeded; the likely outcome would be that the proceedings would be remitted for another interim hearing. This must be compared to the advantage of a trial proceeding, now only some four weeks away, at which disputed issues of fact can be resolved. In summary, as seems clear, the mother’s case would actually be disadvantaged by granting the application for her appeal to be expedited, even if it were possible for the appeal to be heard in advance of the trial.
The authorities dealing with questions of expedition of appeals often refer to the relevant rule, r 12.10A of the Family Law Rules 2004 (Cth), in relation to expedition of trials. There is no discrete rule in relation to expedition of appeals but that rule, and the principles associated with that rule, are commonly applied in applications seeking the expedition of appeals.
Notably, in trial proceedings that rule applies where there has been an interim hearing and expedition is sought to have the matter progress to a trial. The rule sets out some factors in sub-rule (2) that may be taken into account. These are:
a)whether the applicant has acted reasonably and without delay in the conduct of the case;
b)whether the application has been made without delay;
c)any prejudice to the respondent; and
d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
Sub-rule (4) addresses the meaning of “relevant circumstance”.
In relation to the applicant’s acting with or without delay, it is to be noted that this application for expedition was filed on 24 April 2019 in circumstances where the Notice of Appeal was originally filed in January 2019 following the orders being made in December 2018. In other words the applicant has delayed, for some nearly four months since the appeal was filed, in bringing an application for expedition. That all occurs against a background that it was on 7 February 2019 that Baumann J set the matter down for a trial to commence on 24 June 2019. Thus it is that there has been significant delay by the mother in having this application considered. However, in any event, there is no legitimate basis for this Court to determine that there are circumstances here in which this appeal should be given priority to other appeals.
The mother asserts that the child is experiencing “massive anxiety” in relation to her current care arrangements of living primarily with the father and supervised visits with the mother. The mother relies upon, in essence, the affidavit of a supervisor who has been undertaking the supervision of the mother’s time with the child to which is attached observation notes made by that supervisor. Having carefully read that material it does not offer any support, in my view, for the mother’s contention that the child is experiencing “massive anxiety”, as the mother puts it, with respect to the current arrangements. True it is that there have been one or two occasions in the observations of the supervisor when the child has not wanted to cease the time with the mother, or has been wanting that time to be prolonged, but equally there are many notes to the effect that the child happily transitions to the care of her father.
There is no basis made out by the mother on this Application for this appeal to be given expedition at the expense of other appeals awaiting hearing. I have explained to the mother, also in the course of the hearing, that this Court simply does not have the resources in the ordinary course to list appeals on short notice. It certainly would not accommodate that in the four week period under discussion between now and the listed trial and, in any event, I have sought to emphasise why it is that that outcome would not actually be of assistance either to the mother in particular, the litigants generally, and thus ultimately, in the interests of the child.
For these reasons the application of the mother for expedition of the appeal will be dismissed.
In relation to the question of transcript, the appeal is currently listed for hearing in the sittings in August 2019. The trial of these proceedings is to take place, as I have referred to, commencing on 24 June 2019. Presumably the trial will be completed well before the appeal from the interim orders and the mother herself recognises that there may be a lack of any utility in an appeal from the interim orders, if that appeal is to be heard after the trial has taken place.
It seems to me then that I need not deal with the application so far as it concerns the transcript for the appeal pending the outcome of the trial and whether or not this appeal proceeds.
For these reasons I order:
(1)The Application in an Appeal filed 24 April 2019 for expedition be dismissed.
(2)The Application in an Appeal filed 24 April 2019 for dispensation with transcript be adjourned for further directions following the trial commencing on 24 June 2019.
(3)Costs of and incidental to the Application in an Appeal filed 24 April 2019 be reserved to the appeal hearing.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered ex tempore on 23 May 2019 edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 23 May 2019