SASKO & RADAVICH

[2015] FamCAFC 162

FAMILY COURT OF AUSTRALIA

SASKO & RADAVICH [2015] FamCAFC 162

FAMILY LAW – APPEAL – Application for expedition of appeal – Where the father seeks to expedite an appeal against final parenting orders – Whether there is any fact or circumstance which would cause this matter to be given priority over other cases to their possible detriment – Whether the appeal would be rendered nugatory if not expedited due to the young age of the child – Application dismissed.

Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules 2004 r 12.10A (4)

Moxon & Moxon [2010] FamCAFC 67

APPELLANT: Mr Sasko

RESPONDENT: Ms Radavich

INDEPENDENT CHILDRENS’ LAWYER: James Haddock

FILE NUMBER: CAC 224 of 2014

APPEAL NUMBER: EA 60 of 2015

DATE DELIVERED: 18 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 11 August 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 31 March 2015

LOWER COURT MNC: [2015] FCCA 749

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Levet

SOLICITOR FOR THE APPELLANT: Des Leyden Law & Migration

SOLICITOR FOR THE RESPONDENT: Ms Kennedy appearing by telephone

SOLICITOR FOR THE INDEPENDENT CHILDRENS’ LAWYER: Mr James Haddock appearing by telephone

Orders

1. Application in an appeal filed on 21 July 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sasko & Radavich has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 60 of 2015
File Number: CAC 224 of 2014

Mr Sasko

Appellant

and

Ms Radavich

Respondent

and

James Haddock

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Application in an Appeal filed on 21 July 2015, Mr Sasko (“the father”) seeks expedition of an appeal filed by him against orders made by Judge Hughes on 31 March 2015 in relation to parenting proceedings as between him and Ms Radavich (“the mother”) concerning their child A (“the child”).   The child was born in 2011 and was thus four years old at the date of the hearing of this application.

2. After a defended hearing, Judge Hughes ordered that the mother have sole parental responsibility for the child and that he live with her.  Her Honour’s orders provided for the child to spend time with the father every second weekend and on other specified occasions.

3. It is useful to set out some brief context taken from her Honour’s reasons for decision which enable an understanding of the father’s application.

4. In the hearing, both parties sought orders that the child live with him or her.  Her Honour recorded the father’s contention that the mother’s attitude towards him was so hostile that the only circumstances in which the child could enjoy a meaningful relationship with his father was for him to live with the father.  The child had always lived with the mother and her daughter by another relationship. Her daughter’s partner also spends significant time in the household.  It seems from her Honour’s reasons that the child’s care was undertaken by the mother and the others in the household.

5. It is apparent from reading her Honour’s reasons that a number of assertions were made by the mother about the father’s conduct and her Honour made specific findings rejecting those assertions.

6. If the appeal is successful the father seeks orders that the child live with him and that he have sole parental responsibility for him.

Relevant Principles

1. 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 Court Rules (2004) which address applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).

2. The considerations thus are:

   ·Whether the applicant has acted reasonably and without delay;

   ·Whether the application has been brought on 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.

3. 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

1. In support of the application, the father deposed that, despite him taking steps to prosecute his appeal with all despatch, the delays attending the listing of appeals for hearing are such that unless the appeal is expedited the appeal will be rendered nugatory because the child is very young.  I infer that, consistently with his case before the trial judge, the father complains that in the time that will pass before the appeal is heard, there will be a deterioration in the relationship between father and son occasioned by the mother’s hostility towards him.

2. The application was opposed by the mother on whose behalf it was argued that if the appeal is brought on expeditiously the mother will have less time to garner the funds necessary to pay her lawyers to conduct the appeal.  I do not consider that a particularly persuasive argument against expedition, if it was otherwise an appropriate matter in which to order expedition.

3. While it is understandable that the father wishes to have the appeal heard without delay, 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.

4. I will thus dismiss the application.

Costs

1. No costs of the application were sought by the respondent mother or the Independent Children’s Lawyer, both of whom appeared on the application by telephone.

2. I will make no order as to costs of the application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 18 August 2015.

Associate:

Date:  18 August 2015