SEGERS & TACASON
[2015] FamCAFC 101
•21 May 2015
FAMILY COURT OF AUSTRALIA
| SEGERS & TACASON | [2015] FamCAFC 101 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Whether a case should be given priority to the detriment of other cases – Where the interim orders appealed against are due to expire in two months – Where it is possible to relist the proceedings before the primary judge – Where there is no utility in ordering the expedition of the appeal – Application dismissed. |
| Family Law Act 1975 (Cth): s 94(2D) |
| Family Law Rules 2004 (Cth): r 12.10A |
| APPLICANT: | Mr Segers |
| RESPONDENT: | Ms Tacason |
| FILE NUMBER: | CAC | 661 | of | 2014 |
| APPEAL NUMBER: | EA | 63 | of | 2015 |
| DATE DELIVERED: | 21 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 9 April 2015 |
| LOWER COURT MNC: |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Elizabeth Fleming & Associates Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Wendy Evans Lawyer |
Orders
The Application in an Appeal filed on 4 May 2015 be dismissed.
That the applicant father pay the respondent mother’s costs of this application in the amount of $550.00 within two (2) months.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Segers & Tacason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 63 of 2015
File Number: CAC 661 of 2014
| Mr Segers |
Applicant
And
| Ms Tacason |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an application in appeal filed on 4 May 2015, Mr Segers (“the father”) seeks an expedited hearing of his Notice of Appeal filed on
4 May 2015 in relation to interim parenting orders made by Judge Neville on
9 April 2015.
The orders relate to the parties’ son, C, who was born in 2013 (“the child”). The respondent to this application and to the appeal is the child’s mother, Ms Tacason (“the mother”). The mother seeks to uphold the orders and argues that the application for expedition should be dismissed.
It is understood that the matter came before his Honour in relation to a contravention of parenting orders application filed by the father and an application in a case filed by the mother, in which she sought to vary interim parenting orders made last year. His Honour declined to hear either application. He varied the interim consent orders by requiring the father to now spend time with the child during the day and under supervision and otherwise made provision for the preparation of a family report and directed that the father’s contravention application could be relisted upon him having obtained a transcript of proceedings in the Local Court.
It is relevant to this application that the father has not seen the child since January 2015, not as a consequence of a lack of interest on his part but, as the existence of the contravention application would suggest, because he says the mother has failed to comply with the operative orders.
It is relevant to note that, as at today, his Honour’s reasons for judgment for the orders made on 9 April 2015 have not been published. Because the issues in the appeal are quite limited, the parties were content to proceed notwithstanding. It is understood, that his Honour has not been well and it might be a little time before the reasons become available.
Background Facts
In order to give this application context, it is necessary to provide what are hopefully uncontentious facts.
The parties commenced a de facto relationship in 2009 and separated in early 2014. C is their only child.
The father commenced proceedings for parenting orders in the Local Court on 24 April 2014. It would seem he was motivated to do so by a concern that the mother may have been planning to move away from the far south coast town M to Newcastle with their son.
On 5 August 2014, orders were made in accordance with the parties’ agreement. The gravamen of the orders was that the child would continue to live with the mother and would spend time with the father each Sunday, excluding the first Sunday of every month, from 9.00 am to 6.00 pm, on Mondays for the same period and each Wednesday from 9.00 am until 4.30 pm. Provision was also made for such additional time as might be agreed.
The interim orders were expressed to continue until 4 August 2015, the indication being that by then the parties hoped to have either negotiated final parenting orders themselves or, if they failed to do so, whatever orders would govern the future would need to be determined by the court.
On 25 November 2014, his Honour made orders by agreement which settled property adjustment issues. The parenting matter was adjourned for further directions.
On 18 January 2015, the parties had an argument when the mother was delivering the child to the father at the father’s home. The mother reported the matter to police and the father was charged with assault and an interim Apprehended Domestic Violence Order (ADVO) was made for the mother’s protection.
That matter came before the Local Court on 6 February 2015. On that occasion, the terms of the ADVO were amended to make it clear that the father was prevented from contacting the mother, but not the child.
The father was found guilty of assault on 26 February 2015. It is his evidence that the circumstances under which it was accepted that he had committed the assault were less serious than the case as initially presented by the mother.
It would appear to be common ground the father has not seen the child since 18 January 2015.
On 1 April 2015, the father filed a contravention application in the Federal Circuit Court in which it is alleged the mother had contravened the interim orders of 5 August 2014.
On 7 April 2015, the mother filed an application in a case, seeking that the 5 August 2014 orders be suspended until 4 August 2015 and that during the interregnum the child have only supervised daytime contact with the father.
Both of those applications came before his Honour on 9 April 2015. On that day, his Honour declined to list the applications for hearing and said, in relation to the contravention application, he would not do so until the transcript of the criminal proceedings in the Local Court was provided. He also ordered a family report. The orders under appeal were then made in circumstances, according to the father, which denied him procedural fairness.
As I have already mentioned, provision was made in his Honour’s orders for the contravention application to be relisted as soon as the transcript is provided from the Local Court.
The father has not applied for a stay of his Honour’s orders, because to do so would have little practical effect. That is to say, the mother would simply remain in breach of the orders and a stay would merely incur further costs.
The father filed his Notice of Appeal on 4 May 2015. He filed his application to have the appeal expedited the same day.
Discussion
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 by expedition of an appeal.
Rule 12.10A deals with applications for an expedited trial. Those rules are generally apt on an application for 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 facts referred to in the rule which may be taken into account will be discussed.
Sub-paragraph (a) is concerned with whether the applicant has acted reasonably and without delay. There is no doubt that in relation to the appeal and this application, the father filed his Notice of Appeal and application within time and has done all that is required to prosecute both his appeal and case for expedition. The application of the sub-section weighs in favour of an order for expedition.
Sub-paragraph (b) is also concerned with delay. It is accepted that unless the father’s appeal is dealt with as a single judge appeal, it is likely to be quite some time before his appeal would be heard and determined. The application of the sub-section weighs in favour of an order for expedition.
Sub-paragraph (c) concerns prejudice to the respondent. Whilst the mother seeks to uphold the orders, there seems to be no factor which would occasion prejudice to her if the appeal were to be expedited. The application of the sub-section is moot.
Sub-paragraph (d) requires consideration of circumstances which would justify this case being given priority to the possible detriment of other cases. Relevant circumstances is defined in r 12.10A(4)(a). The submissions made on behalf of the father focussed on the fact that he has not seen his son since
18 January 2015. The father’s solicitor’s affidavit filed 4 May 2015 confirms that this is the case. That being said, there are negotiations underway which could see that situation resolved in a way which enables the father to spend time with the child, albeit not in circumstances which he would regard as reasonable or acceptable. This, of course, is a relevant factor.
However, the court must weigh this consideration against the fact that the interim orders which the father would seek to have reinstated on appeal, are due to expire on 4 August 2015, some two and a half months away. It is difficult, in those circumstances, to contemplate what the utility of the appeal, let alone an expedited appeal, might, in fact, be. This proposition becomes even more relevant when it is recalled that, upon the provision of the Local Court transcript, the proceedings may be relisted before his Honour and presumably heard and determined fairly promptly.
Finally, it is necessary to consider the grounds of appeal. All that needs to be said is that the father raises a number of challenges to his Honour’s orders which, relevantly, include challenges to the lack of procedural fairness afforded to the father. That being said, there is nothing apparent from the grounds of appeal which would impel this court to make an order for expedition.
I am not persuaded that this appeal should be expedited when doing so will necessarily displace other appeals filed in the ordinary course. In my view, the duration of the orders under challenge and the fact that there is an avenue to bring this matter back before the Federal Circuit Court in probably no more than another four weeks militates against this court taking a step which would be to the disadvantage of other litigants. The application for expedition should be dismissed, and I will order accordingly.
Costs
The mother applied for her costs in resisting the application for expedition. She says, in essence, that the application was without merit and she has, as a consequence, incurred costs unnecessarily. The amount sought is $500 plus GST.
In response, it is submitted on behalf of the father, that if the costs are pressed, the proceedings should be adjourned so that he could place evidence before the court of his financial circumstances. Given the modest amount sought, it is difficult to see how the step proposed by the father would do anything more than incur at least that additional amount, i.e. another $500. It does not sit well with the efficient administration of justice to take a step which is going to incur costs equivalent of the modest amount under dispute.
The parties, as has already been mentioned, live in the Town M area, and the court has acceded to their request to participate in this hearing by telephone. Arrangements could have been made for the father to attend by telephone and thus an adjournment would not be sought. The mother, after all, has travelled to be with her solicitor.
For those reasons, I am not persuaded that the application for costs should be adjourned.
I am persuaded that there are justifying circumstances for an order for costs, and it would be proper to make an order for costs in the amount sought. I need only repeat that the father sought expedition of an appeal in relation to orders which have, at the most, another two and a half months to run. His application has been unsuccessful and the order will be made. I will give the father two months to pay the amount.
I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 May 2015.
Associate:
Date: 2 June 2015
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