Sarti & Anor and Sarti
[2020] FamCAFC 253
•8 October 2020
FAMILY COURT OF AUSTRALIA
| SARTI AND ANOR & SARTI | [2020] FamCAFC 253 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Two appeals – Where parents appeal interim parenting orders –Where terminally ill respondent grandfather is to spend time with grandchild – Where parents application for a stay refused – Whether the matter should be afforded priority to the detriment of other cases – Failure to grant expedition would render appeal nugatory – Efficient use of Court’s resources – Appeals consolidated – Application granted. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| FIRST APPLICANT: | Mr B Sarti |
| SECOND APPLICANT: | Ms Sarti |
| RESPONDENT: | Mr Sarti |
| FILE NUMBER: | CAC | 1154 | of | 2020 |
| FIRST APPEAL NUMBER: | EAA | 113 | of | 2020 |
| SECOND APPEAL NUMBER: | EAA | 137 | of | 2020 |
| DATE DELIVERED: | 8 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 7 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 31 July 2020 17 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 2101 [2020] FCCA 2595 |
REPRESENTATION
| COUNSEL FOR THE FIRST AND SECOND APPLICANTS: | Ms Tabbernor |
| SOLICITOR FOR THE FIRST AND SECOND APPLICANTS: | Farrar Gesini Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr Masters |
| SOLICITOR FOR THE RESPONDENT: | Kennedy & Cooke |
Orders
That the applications to expedite the hearing of Appeals EA 113 of 2020 and EA 137 of 2020 be granted.
That Appeals EA 113 of 2020 and EA 137 of 2020 be consolidated.
The applicants are to file and serve a Draft Appeal Index in Appeal EA 137 of 2020 by 4.00 pm on 9 October 2020.
The consolidated appeals be listed for hearing before the Honourable Justice Ryan at 10.00 am on 30 November 2020.
That the respondent’s application for an adjournment of the application for a stay as contained in the Application in an Appeal EA 137 of 2020 be granted.
That the respondent file and serve an affidavit in reply to the application for a stay along with written submissions of no more than three (3) pages by 4.00 pm on 14 October 2020.
That the applicants file and serve written submissions in reply to the submissions filed in accordance with Order 6, if any, of no more than three (3) pages by 4.00 pm on 19 October 2020.
The application for a stay be determined in chambers.
The costs of these applications will 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 Sarti and Anor & Sarti 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 113 of 2020; EAA 137 of 2020
File Number: CAC 1154 of 2020
| Mr B Sarti |
First Applicant
And
| Ms Sarti |
Second Applicant
And
| Mr Sarti |
Respondent
REASONS FOR JUDGMENT
Introduction
These are two Applications in an Appeal filed on 1 October 2020 by Mr B Sarti (“the father”) and Ms Sarti (“the mother”) (together “the parents”) in parenting proceedings between them and the respondent, Mr Sarti (“the grandfather”), who is the father’s father.
The parenting orders relate the parents’ son, X, born in 2015 (“the child”), who is five years old.
The first application seeks to expedite the hearing of the parents’ appeal EA 113 of 2020, which is against interim parenting orders made in the Federal Circuit Court of Australia on 31 July 2020. Relevantly, those orders provide for the grandfather to spend time with the child for four hours each fortnight (Order 1) and; in the event the grandfather’s health declines so that he is unable to effectively supervise the child, then for the grandfather to ensure another adult is substantially present (Order 4).
The second application seeks to expedite the hearing of the parents’ appeal EA 137 of 2020, which is against the dismissal of their stay application pending the outcome of the appeal against the 31 July 2020 orders.
The parents are separated but are joined in their appeals against the parenting orders and refusal of a stay.
The grandfather agrees that the appeals should be consolidated and the hearing expedited.
The parents also seek a stay of the interim parenting orders pending determination of the appeals. The grandfather opposes that application and sought an adjournment to file evidence about his health. He is terminally ill and the suggestion is that his life expectancy is now measured in weeks. As the application was served late Friday and Monday was a public holiday, it is appropriate that he is given the seven days he seeks to file his affidavit in opposition to the stay.
Background
It is helpful to set out some brief background facts so as to understand the context within which the orders of the primary judge were made and the circumstances under which the parents seek expedition.
The parents have one child together, X, born in 2015. They separated in late 2017 but are not yet divorced. The parents are both professionals and they both live in the ACT. The parents have a cooperative co-parenting arrangement whereby the child lives weekabout with each parent.
The grandfather is 78 years of age. He has been diagnosed with inoperable cancer and is in receipt of palliative treatment. He lives on a property at Town F, NSW, with his partner, Ms G, who is 68 years of age.
The child has a positive relationship with his grandfather but the relationship between the grandfather and each of the child’s parents is strained [2]. The father says that he and his father were never close but in March 2019 they had an argument which resulted in them falling out [10]. The father and grandfather did not speak for a few weeks which was followed by months of, at best, tense communications between the parents and the grandfather [26].
Between July 2019 and December 2019 the child spent time with the grandfather, as agreed by the father, on six occasions. On 18 March 2020 the father emailed the grandfather advising him that future visits were cancelled until further notice due to risks associated with the COVID-19 pandemic [27]–[28].
The ‘tense communications’ continued until 11 April 2020 when all communication ceased [31]. The last contact the child has had with his grandfather was by telephone for five to 10 minutes during the 2020 Easter period [32]; they last saw each other during a planned visit in December 2019.
On 10 June 2020 the grandfather filed an application seeking to spend regular time with the child. He relied on an affidavit from Dr L, who is a general practitioner, to the effect that the grandfather had a life expectancy of about three months.
The grandfather’s application came before the primary judge on 13 July 2020. He sought orders allowing him to spend time with the child for eight hours, three times a week. The parents resisted the application. Ultimately, the primary judge found that the child had a meaningful relationship with his grandfather [53] and determined that it is in his best interests to spend regular time with his grandfather [55]. Her Honour considered the grandfather’s proposal to be “too excessive” as it would involve a dramatic increase in the amount of time the child would spend with him, especially given the parents’ negative views of the grandfather [56]. The primary judge considered it better for the child to spend time with the grandfather in terms similar to the arrangement prior to litigation, being four hours every second weekend [56]. Having found that there was no risk of physical or psychological harm to the child in the grandfather’s care, the primary judge made the parenting orders now the subject of appeal.
On 10 August 2020 the parents filed a Notice of Appeal (EA 113 of 2020) against the orders dated 31 July 2020. They seek to have the orders set aside and for the Full Court to re-exercise discretion. They also seek to adduce further evidence concerning the grandfather’s health.
On 12 August 2020 the parents filed a stay application pending the outcome of the appeal. That application was heard by a different judge on 19 August 2020.
On 17 September 2020, orders were made and judgment delivered refusing the stay application (Sarti & Sarti & Anor(No.2) [2020] FCCA 2595 (“Sarti No.2”)). It was reiterated in the reasons for judgment that that child and the grandfather have a good relationship, the dispute concerns the acrimonious relationship between the parents and the grandfather and; the grandfather will “die soon, literally within a matter of months”, highlighting the futility of the proposed appeal [6]. His Honour notes the discretionary nature of the decision under appeal and was not satisfied that the parents showed that appellate intervention was on the cards and the application for a stay was dismissed.
On 1 October 2020 the applicants filed a Notice of Appeal (EA 137 of 2020) against the dismissal of their stay application. By an Application in an Appeal filed on the same day, they also seek to have the hearing of this appeal expedited.
The matter is next listed for hearing on 13 October 2020 to deal with contravention applications filed by the grandfather, which assert that the father has breached the interim orders on four occasions from 13 August 2020 to 21 September 2020.
The expedition application
The parents’ primary concern is that they do not want their child to spend any time with the grandfather. The parents contend that the orders dated 31 July 2020 are in conflict with the best interests of the child. They contend that an expedited appeal hearing could any avoid any emotional and psychological harm caused in the child spending time with the grandfather pursuant to the orders, until they are potentially set aside on appeal.
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 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A(2) of 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 parents have acted reasonably and without delay in the conduct of the case. I accept that they have lodged their appeals in a timely manner, along with their applications for expedition. I am satisfied that they will do whatever is required of them to bring on the appeals for an urgent hearing. This subsection weighs in favour of an order for expedition.
Subparagraph (b) concerns whether the applications have been made without delay. I do not have more to say about this.
The next factor which requires consideration is prejudice to the respondent. An expedited hearing would place the parties under some time pressure which weighs against a hearing being listed in a few weeks’ time. However, the grandfather agrees the appeals should be expedited and thus there is no suggestion of prejudice to him.
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). Rule 12.10A(4)(a) states that the health of a party may constitute a relevant circumstance. Whilst this is not the focus of the parents’ application for expedition, the grandfather’s health is highly relevant. The grandfather’s health issues have a potential to impact on his availability or competence to participate in the proceedings. The grandfather is receiving palliative medical treatment. Whatever time he has left is short. The stress of the litigation can only adversely impact on his coping and probably also his ability to cope with treatment. I am sure that it is in his interests for the hearing to take place sooner rather than later. My understanding is that the difference between an expedited appeal and an appeal brought on in the ordinary course, is probably six months or longer. The grandfather’s poor health weighs in favour of expedition.
Of the relevant circumstances, the parents focussed on subparagraph (d) which concerns whether the continuation of interim orders is causing the child hardship. It is clear from the father’s evidence that the parents do not want the grandfather to spend time with child. However, the primary judge found that the child is not at risk of suffering harm from the continued involvement of the grandfather in the child’s life [38]. The stay application failed and the grandfather is permitted to spend time with the child, although it appears that the child is still not seeing his grandfather. This argument is not particularly compelling.
The parents also focussed on subparagraph (e), which concerns whether the purpose of the case will be lost if it is not heard quickly. As already mentioned, should this appeal be set down for hearing in the ordinary course, there is every likelihood that it would not be heard until mid-2021. If that were to be the case, it is asserted that the purpose of the parents’ appeal would be rendered nugatory. There is some force in this.
Subparagraph (g) which concerns whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case. The father reiterates in his affidavit that the child has not seen his grandfather since December 2019 and, in his affidavit filed in support of expediting the stay appeal, he says that the parents are worried about “reintroducing” the child to his grandfather (father’s affidavit filed 1 October 2020, paragraph 17 (EA 137 of 2020)). Without more information this is not a factor that will influence the outcome.
The parents assert nine grounds of appeal. Stated broadly, it is their contention that the orders are “plainly wrong” (Ground 9) and that the primary judge erred:
· by failing to give adequate weight to the parents’ exercise of parental responsibility in “jointly deciding not to facilitate time” between the child and grandfather (Ground 1);
· by failing to provide adequate reasons for “interfering” with the parents’ exercise of parental responsibility (Ground 2);
· by making incorrect findings as to the child’s relationship with the grandfather (Ground 3); and
· by placing too much weight on the potential benefits the child would have in spending time with the grandfather and not enough weight on the grandfather’s health (Grounds 4 and 6).
It is also contended that Order 4, which requires another adult be in attendance if the grandfather’s health has deteriorated, is so uncertain that it is incapable of proper interpretation (Ground 8).
In refusing the stay application, his Honour carefully analysed the grounds and determined that the grounds of appeal fail to demonstrate error ([48], [57], [63], [66], [71], [76], [82], [86] and [88] (Sarti No.2)). 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 doomed to fail such that an otherwise strong application for expedition would be denied on this basis.
On balance, it is the matters that go to the welfare of a young child and his ability to spend time with his grandfather who is dying and in accordance with orders which the primary judge was satisfied are in his best interests, which tips the balance in favour of expedition.
I will order accordingly.
The parents also seek an expedited hearing of their appeal against the dismissal of their stay application (EA 137 of 2020).
The parties agreed that the most efficient use of resources, the parties’ and the Court’s, would be to see the substantive appeal consolidated with the appeal against the stay order; and for those consolidated appeals to be expedited.
This is the most sensible way to proceed. Counsel who appears for the respondent agrees with the obvious desire to minimise the financial and personal stress associated with numerous appearances in this Court and to avoid the prospect of two separate appearances in the current two appeals. I agree.
For these reasons expedition of both appeals is appropriate as is an order that they be heard at the same time.
Otherwise the parties agree that the remaining application for a stay can be determined in chambers. Directions will be made accordingly.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 October 2020.
Associate:
Date: 8 October 2020