Sandwell and Sandwell
[2018] FamCAFC 255
•14 December 2018
FAMILY COURT OF AUSTRALIA
| SANDWELL & SANDWELL | [2018] FamCAFC 255 |
| FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against interim parenting orders that substantially changed parenting arrangements – Where the mother opposes expedition – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted. |
| Family Law Act 1975 (Cth) ss 94(2D)(j) Family Law Rules 2004 r 12.10A |
| APPLICANT: | Mr Sandwell |
| RESPONDENT: | Ms Sandwell |
| INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Lawyers |
| FILE NUMBER: | NCC | 3665 | of | 2017 |
| APPEAL NUMBER: | EAA | 149 | of | 2018 |
| DATE DELIVERED: | 14 December 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 14 December 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 October 2018 |
| LOWER COURT MNC: | [2018] FamCA 1030 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rugendyke |
| SOLICITOR FOR THE APPLICANT: | Mullane & Lindsay |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Lawyers |
Orders
That the hearing of appeal EA 149 of 2018 be expedited.
That the Appellant file and serve a draft appeal index by 12:00 pm on 18 December 2018.
The Appeals Registry is directed to list the appeal for hearing in the week commencing 4 February 2019.
That the solicitor for the Appellant contact the Eastern Appeals Registry by close of business 17 December 2018, and thereafter do all that is required to ensure that the appeal is brought on for hearing in the week nominated.
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 Sandwell & Sandwell 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: EAA 149 of 2018
File Number: NCC 3665 of 2017
| Mr Sandwell |
Applicant
And
| Ms Sandwell |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
By an Application in an Appeal filed 15 November 2018, Mr Sandwell (“the applicant”) seeks to expedite his appeal against certain interim parenting orders made on 26 October 2018. The parenting orders concern the parties children, X, born in 2016 and Y, born in 2017 (“the children”).
The application is opposed by Ms Sandwell (“the respondent”) who is the children’s mother.
An Independent Children’s Lawyer (“ICL”) has been appointed to represent the best interests of the children. The ICL supports the application for expedition.
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 applicant and the respondent in this application.
The parties separated in October 2017 and since December 2017, there has been several sets of parenting orders put in place concerning the children. The hearing by the primary judge was the fifth interim hearing between the parties within 11 months. It is not hard to understand why the ICL promotes steps which he thinks might help calm the situation.
The orders under appeal seem to have had the support the ICL and provide that the children live with the respondent (Order 3) and for the applicant to spend supervised time with the children (Order 4). Previous orders dated 9 May 2018 provided for the parties to have equal shared parental responsibility for the children, for the eldest child to live with the applicant and spend time with the respondent twice each week, and the youngest child to live with the respondent and spend time with the applicant twice each week.
The current orders are substantially different to those previous orders. The applicant relies heavily on the significant changes in the children’s arrangements as justifying expedition of his appeal.
It is accepted that the orders made significant changes in relation to the living arrangements of the eldest child, who now lives with the respondent. The applicant deposes in his affidavit of 14 November 2018 that that child was in his primary care from when the parties separated, and, as I have already mentioned, the May 2018 orders regularised that arrangement (Order 3).
It would seem that problems have arisen as the current orders are silent as to the attendance of third parties during the children’s supervised time with the applicant (Orders 4-6). This has impeded contact between the children and their paternal grandparents, as well as the applicant’s new partner. I am not sure the latter point is critical at present but the question of the paternal grandparents is perhaps more germane. According to the applicant’s affidavit, this has had a negative impact on the eldest child. Of course this is his view, and I am not purporting to make any findings on that issue and merely record the matters before the Court.
The substantive proceedings are listed for Directions on 13 February 2019 and it was indicated by counsel for the applicant that, at his best guess, a final hearing is 12 months away. No one spoke against that proposition.
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, as the solicitor for the respondent indicated, r 12.10A of the Family Law Rules 2004 (“the Rules”) deals with applications for an expedited trial, and it provides a useful guide to the approach to be adopted to the question of expedition of an 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 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 has lodged his appeal in a timely manner, along with his application for expedition. I have no doubt that whatever is required of the applicant 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. I do not have more to say about this as the applicant has given clear notice to the respondent that he was considering an appeal and has moved with appropriate alacrity.
The next factor which requires consideration is prejudice to the respondent. The respondent filed an affidavit in support of her opposition for expedition but does not depose to matters that would support the submission concerning prejudice to her if an order for expedition were made. A question may arise if the listing means that she is unable to have senior counsel of her choice. I take this into account because if this matter is listed on an expedited basis, it will be listed on the week commencing 4 February 2019. It is sufficiently far out that, although her chosen senior counsel has indicated that he is not available at this time, it is feasible that he might become available closer to the day. In my view this is more in the nature of inconvenience than actual prejudice. In short, I am not persuaded that there are weighty considerations of prejudice to the respondent that would stand in the way of expedition if it was 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 constitute a ‘relevant circumstance’ are set out in r 12.10A(4)(a) – (g). Of these, the applicant focuses on subparagraph (d), which is concerned with hardship caused by the continuation of interim orders. The submissions made by the applicant focus on the impact of the living arrangements with the children who, it was emphasised, are young and have experienced significant change, particularly the eldest child who had previously been in the applicant’s primary care. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the children. There is some force in that.
Further, subparagraph (f) concerns whether the case involves allegations of child abuse for example. As the primary judge indicated at [65], this case involves allegations of family violence which, given the circumscribed nature of interim hearings that have been undertaken thus far, have yet to be determined. A further hearing undertaken with similar constraints will not alter that state of affairs and the issue is moot.
On balance, it is the matters that go to the welfare of young children, and for one, a substantial change in her living arrangements that was effected by the orders under challenge which ultimately tips the balance in favour of expedition.
It is necessary to consider the grounds of appeal. There are many of them. It may be that these could be reduced somewhat, but this is just an observation. All that needs to be said at this point is that there are matters of substance raised in the Notice of Appeal and it could not be said that this appeal is so lacking in merit that an otherwise strong application for expedition would be denied on this basis. I will order accordingly.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 December 2018.
Associate:
Date: 21 December 2018
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