Scarle and Ringwood and Anor
[2016] FamCAFC 181
•24 August 2016
FAMILY COURT OF AUSTRALIA
| SCARLE & RINGWOOD & ANOR | [2016] FamCAFC 181 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the mother seeks expedition of her appeal against parenting orders which provide for the children to live with the maternal grandmother – Where the mother contends the children are at risk of harm in the maternal grandmother’s care – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Where orders are to be made for the appeal and cross-appeal to be listed at short notice in the event an early date becomes available without dislocating other appeals – Application dismissed. |
| Family Law Act 1975 (Cth): s 94(2D)(j) Family Law Rules 2004 (Cth): r 10.12A |
| Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Scarle |
| FIRST RESPONDENT: | Ms Ringwood |
| SECOND RESPONDENT: | Mr Arrow |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5 | of | 2013 |
| APPEAL NUMBER: | EA | 109 | of | 2016 |
| DATE DELIVERED: | 24 August 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 24 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 June 2016 |
| LOWER COURT MNC: | [2016] FCCA 1428 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Watts McCray |
| SOLICITOR FOR THE FIRST RESPONDENT: | Blackman Legal |
| FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The Application in an Appeal filed on 29 July 2016 be dismissed.
The Court requests that the Eastern Appeals Registrar issue procedural orders and directions for the preparation of appeal books by the appellant and cross-appellant and such other directions as may be required to enable the appeals to be prepared and ready to proceed in the event that there becomes space available that does not involve the dislocation of appeals.
Costs of the application 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 Scarle & Ringwood and Anor 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)
.
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 109 of 2016
File Number: SYC 5 of 2013
| Ms Scarle |
Applicant
And
| Ms Ringwood |
First Respondent
And
Mr Arrow
Second Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
By an Application in Appeal filed on 29 July 2016 Ms Scarle (“the mother”) seeks an expedited hearing of her appeal against parenting orders made by Judge Brewster on 27 June 2016.
The proceedings concern two children, M born in 2008 and H born in 2010 (“the children”).
The first respondent to the appeal is the maternal grandmother, Ms Ringwood (“the grandmother”). The children’s father, Mr Arrow, is the second respondent to the appeal (“the father”). However, he did not participate in the proceedings at first instance and at this stage it appears unlikely he will participate in the appeal.
An Independent Children’s Lawyer (“ICL”) has been appointed to represent the children’s interests. On 8 August 2016, the ICL filed a Notice of Cross-Appeal in relation to his Honour’s failure to make orders sought by the ICL. Otherwise, as to the disposition of the appeal itself the preliminary view of the ICL is that it should be dismissed.
The orders under appeal provide, inter alia, that the mother and grandmother have equal shared parental responsibility for the children; that the children live with the grandmother and spend time with the mother on the second and sixth weekend of each school term, as well as half each school holiday period. Provision was also made for the mother to spend additional weekends with the children, provided she gave specified notice to the grandmother and that such time occur in the area near the grandmother’s home.
It is apparent from the hearing today that the intent of those orders as to additional time has not been met with the grandmother apparently refusing to make the children available because the notice was other than strictly in accordance with the orders. Nothing more needs to be said about that other than one would hope that this sorry state of affairs ends today.
In any event, the orders also provide that the grandmother be restrained from bringing the children into contact with Mr Z. He is the grandmother’s husband and from whom, in the interests of the safety of the children, she is now separated.
The issues permeating the proceedings include the mother’s allegations of risk of sexual abuse from Mr Z, as well as allegations that the mother’s partner, Mr L, also poses a risk to the children. As a result of those allegations, each of the mother and grandmother sought orders that the other be restrained from bringing the children into contact with the other’s partner. In the case of Mr L, the primary judge declined to make such an order. The grandmother also raised allegations that the mother poses a risk to the children as a consequence of what was said to be her excessive consumption of alcohol. His Honour did not accept that this was a risk that warranted restriction on the mother’s time with the children.
Relevant background
In any event, to give this application context it is necessary to refer to some brief background facts. These are largely taken from his Honour’s reasons and the documents filed in support of the application for expedition.
The maternal grandmother is 58 years of age.
The mother is 35 years of age.
Mr Z is 47 years of age. He commenced cohabitation with the grandmother in 2011 and they were married in mid 2013. As will be discussed, at the time of the final hearing Mr Z had recently been charged with sexual abuse of a young woman, Ms W. On the second day of the trial, the grandmother advised the court that she and Mr Z had separated.
The mother’s partner is 46 years of age. He and the mother commenced their relationship in early 2012 and they live together at Suburb X on the Central Coast of New South Wales.
The children’s father resides in Queensland and sees the children sporadically.
Prior to the birth of each of the children and subsequently, the mother lived in the maternal grandmother’s home. As a result, the grandmother was significantly involved in the care of the children from their birth.
In March 2012, the mother and grandmother moved to Town K on the South Coast of New South Wales. Around the same time the mother commenced a relationship with Mr L. The mother initially spent each second weekend with him and on those occasions the children remained with their grandmother. According to his Honour towards the end of 2012 the mother was spending an increasing amount of time with her partner and her absences from the children became longer and more frequent. This led to an incident in December 2012 when the mother attended her sister’s home where the grandmother and children were also visiting. The mother told the grandmother that she had come to get the children. When the grandmother refused the mother left and returned with the police and ultimately she left with the children. The mother, her partner and the children then went on a camping holiday. It is said that during this holiday the child M made disclosures to the mother’s partner that Mr Z had sexually abused him.
Upon their return from the holiday the mother and the children moved to her partner’s home on the Central Coast of NSW.
On 2 January 2013 the grandmother filed an application in the Federal Circuit Court seeking that the children be returned to her. That application was amended to include an application for a location order and a recovery order which was heard on 5 February 2013. On that occasion leave was granted to the grandmother to proceed ex parte and a location order and a recovery order were both made. The recovery order was executed on 15 February 2013 at which time the children were placed in the care of the grandmother. They have resided with her ever since.
I pause to observe that the primary judge commented that on the facts as known to him he would not have made that recovery order. On the facts as known to me nor would I.
In any event, in the course of the proceedings the mother sought to subpoena various police forces to ascertain if there were convictions recorded or allegations made against Mr Z. Although this was initially resisted by the grandmother, it was eventually discovered by the subpoena process that in the early 1990s allegations had been made by Ms W that when she was a child, and her mother lived with Mr Z, Mr Z sexually abused her.
The primary judge noted (at [24]) of his reasons that the allegations made by Ms W about what Mr Z made her do were the same as M revealed to the mother’s partner. Ms W gave evidence in the proceedings before the primary judge and was cross-examined. It was also discovered that in 1993 Mr Z was convicted of a criminal offence, when he exposed his penis to a young female service station attendant.
On 19 March 2013 Judge Scarlett made interim orders for the appointment of an ICL and for the children to live with the grandmother and spend time with the mother each Saturday. Various injunctions were also made.
Further orders were made on 7 May 2013 and 9 December 2013. None of these orders changed where the children lived.
Excluding the final hearing that did take place, three sets of trial dates were set and vacated. The parties agree that two sets of trial dates were administratively vacated for reasons unknown to them. A third proposed trial date was vacated because the evidence in relation to Mr Z was still unfolding.
In any event, orders were made for the preparation of an expert’s report by Dr B and the proceedings were ultimately transferred to the docket of Judge Brewster where they were listed for hearing in February 2016. That hearing took place as listed.
It is a matter of great significance to the appellant (applicant in this application) that some three years passed between when the ex parte recovery order issued and the final hearing. A question which will be discussed is the extent to which the delay in the court below could justify an order for expedition of the appeal given that the expedition of the appeal will of necessity disrupt other cases.
In any event, as I indicated, Judge Brewster delivered his reasons for judgment and pronounced orders on 27 June 2016.
It would seem the primary basis for his Honour’s order that the children live with the grandmother is outlined at [74] of the reasons for judgment, which is as follows:
I now turn to the crucial reason why I have made orders which maintain the present situation where the children reside with the grandmother. Essentially it is because of the past history of this matter. I am satisfied that for a period prior to the mother taking the children in December 2012 the grandmother was the primary carer. Since the children were returned to her in early 2013 she has, of course, been their only carer. Their time with the mother has been somewhat circumscribed. This is now a period in excess of three years. This is half [H’s] life and getting on to half of [M’s] life. I have little doubt that it would be extremely unsettling for the children to be removed from the care of the grandmother and placed in the care of the mother and [Mr L]. [Dr B] in her oral evidence expressed considerable concerns as to the potential impact on the children of such a radical change in their care arrangements.
At [77]-[79] his Honour explained why he made specific orders concerning the mother’s time with the children. In particular, his Honour emphasised the practical implications of the orders in light of the distance between the grandmother’s home on the South Coast and the mother’s home on the Central Coast. He said at [77]:
The difficulty in relation to contact is logistical. I believe it would be too punishing for the children if they had to travel between [the South Coast] and the Central Coast once a fortnight. Fortnightly contact is the usual arrangement when there are not substantial distances involved. I am perfectly happy for the children to see their mother in the [South Coast] area but I have restricted the weekends that they spend on the Central Coast.
The mother filed her appeal on 25 July 2016 and four days later her application for expedition and affidavit in support. The ICL filed a Notice of Cross-Appeal on 8 August 2016. The ICL supports the application for expedition and points out the ongoing stress inherent in litigation about the children. And the importance for these children, who have lived in a shadow of litigation now for quite a number of years, for the litigation to come to an end, even if the dispute between the adults does not.
The respondent says whether or not an order for expedition is made is ultimately a matter for the Court and makes no submission that an order in favour of expedition would cause her hardship.
Discussion
As the mother’s solicitor indicated, s 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court may make an order to expedite the hearing of an appeal. There is no provision in the Act or the 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 and provides a useful guide to the approach that might be taken in relation to 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 potentially relevant factors referred to in the rule which the Court may take into account and which are also relevant to appeals will be discussed.
As I move through the relevant provisions I do so on the basis that an order which granted expedition of this appeal would be to the detriment of other cases, including other cases concerned with the care, welfare and development of children and some of which in which it is said the children are at risk of harm.
Sub-paragraph (a) is concerned with whether the mother has acted reasonably and without delay in the conduct of the case. There is no doubt that in relation to the appeal and this application that the mother has moved promptly and done all that is required to prosecute her appeal and her case for expedition. The application of the sub-paragraph weighs in favour of an order for expedition.
Sub-paragraph (b) has the same result.
As to sub-paragraph (c), this is concerned with prejudice to the respondents, in this case the grandmother and the father. As already noted, the father has elected not to participate in the proceedings and the grandmother does not suggest she would be prejudiced. Again, the application of the sub-paragraph weights in favour of an order for expedition
Sub-paragraph (d) requires consideration of relevant circumstances which would justify this case being given priority to the detriment of other appeals including, as I have said, appeals concerned with the care, welfare and development of children.
Examples of what constitute a “relevant circumstance” are set out in r 12.10A(4)(a)–(g). Of particular relevance to this case is sub-rule (4)(f) which provides that a relevant circumstance includes “whether the case involves allegations of child sexual, or other, abuse”, which of course this does.
The submissions made on behalf of the mother focus on the fact that that the children are, or could be, at risk of harm in the grandmother’s care. Thus, it is in their best interests that the appeal be expedited. In particular, the mother contends the grandmother has historically failed to put the needs of the children first and has failed to protect them from Mr Z. In this regard, it is necessary to consider the observations of the primary judge concerning the risk posed by Mr Z in light of the charges now brought against him:
29.Had the grandmother proposed that the injunction concerning [Mr Z] living with her and the children be discharged and indicated that she proposed to live with [Mr Z], I would have made orders that the children live with the mother.
30.However the situation has changed. I have already indicated that an order was made on 30 June 2015 that the children not be brought into contact with [Mr Z]. I am satisfied that the grandmother has complied with this order. In fact the mother and [Mr L] at one stage retained a private investigator to check this out. [Mr Z] has now been charged with sexual abuse of [Ms W]. No charges were ever preferred at the time of the original complaint. The court was advised on the first day of the hearing that the […] Director of Public Prosecutions might decline to continue with this matter but was advised on the second day of the hearing, after the matter had come before the […] District Court for directions, that the prosecution would proceed. The court was subsequently advised by counsel for the grandmother that she, the grandmother, had decided to end her relationship with [Mr Z].
His Honour went on to consider the mother’s complaint that the grandmother was slow to believe the allegations against Mr Z. After weighing the evidence his Honour concluded (at [32]-[34]):
32.There is something in this criticism. However in defence of the grandmother the following must be said. First the allegations had been investigated and no action taken. Secondly she had read the report by [Dr B] who had discounted the allegations of sexual abuse.
…
33.Thirdly it must be very difficult for a person in her position to think that her husband could have been guilty of such offences. Fourthly on 30 June 2015 she consented to an order that [Mr Z] have no contact with the children. Finally when push came to shove in 2016 she put the children ahead of her marriage with [Mr Z]. This must have been a very difficult decision. Whilst I criticise her for what I regard as her rather naive belief in [Mr Z’s] innocence, in the end when it came to a stark choice of one or the other she chose the children. As I have indicated had she preferred to stay with [Mr Z] I would have made an order that the children live with the mother.
34.I hope the grandmother will not take offence at this but I warn her that if it were found that she at any stage had brought the children into contact with [Mr Z] then this litigation might recommence with quite different results.
(Emphasis added)
The primary judge made it very clear that should the grandmother breach the orders, and bring the children into contact with Mr Z, his decision concerning where and with whom the children live could be changed. Should this occur, it would be open to the mother to place that evidence before the court and assert a change of circumstances according to the principles in Rice and Asplund (1979) FLC 90-725.
Finally, it is necessary to consider the grounds of appeal. All that needs to be said at this point is that the mother raises a number of challenges to his Honour’s reasons and the exercise of discretion. While the subject matter of the grounds is serious, it needs to be understood the appeal is against a discretionary judgment and it raises questions of weight. The barriers to appeals underpinned by these challenges are well known and it could not be said at this stage that the appeal is presented on such overwhelmingly strong grounds that this Court should dislocate other appeals so as to give it priority.
I am conscious that this will be very distressing to the mother. As she points out, she waited a long time to have the hearing at first instance and, as a proper analysis of his Honour’s reasons for judgment reveals, that period of time was a significant factor in his Honour’s decision that the children should remain with their grandmother, but that is, as I indicated in exchanges, a fact which now cannot be undone. There is, quite simply, nothing that this Court can do which would provide the mother with the solace she seeks for the delay that was occasioned below.
However, although I am not persuaded this case should be given expedition, I am satisfied that orders should be made to prepare the appeal and cross-appeal for hearing so that in the event that an early date becomes available which does not involve dislocating another appeal awaiting hearing, this appeal could be listed for hearing. This would involve the preparation of the appeal books and the filing of summaries of argument sooner than might otherwise have been the case. I will request that the Eastern Appeals Registrar convene a prompt procedural hearing so that the matter is able to be called on for hearing.
These are not hollow words because appeals do resolve and it is not at all uncommon for dates to become available on relatively short notice. We often experience difficulty filling those dates. If an offer is made by the appeal registrar for an early hearing and it is turned down by the appellant, the appellant would understand that another early date would not be made available. It is, in effect, a take it or leave it proposition.
So although the mother has not achieved an order for expedition, she has probably achieved a rose by another name.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 August 2016.
Associate:
Date: 8 September 2016
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