SHUTE & SHUTE
[2015] FamCAFC 107
•14 May 2015
FAMILY COURT OF AUSTRALIA
| SHUTE & SHUTE | [2015] FamCAFC 107 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks to expedite the appeal against interim parenting orders – Where the interim parenting orders provide for equal shared parental responsibility – Where the interim parenting orders provide for the children to spend significant and substantial time with each parent – Whether the matter should be afforded priority to the detriment of other cases – Where any deleterious effect of the current parenting arrangement is unlikely to be substantial – Application dismissed. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Shute |
| RESPONDENT: | Ms Shute |
| FILE NUMBER: | NCC | 329 | of | 2015 |
| APPEAL NUMBER: | EA | 53 | of | 2015 |
| DATE DELIVERED: | 14 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 14 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 March 2015 |
| LOWER COURT MNC: | [2015] FCCA 1203 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tregilgas |
| SOLICITOR FOR THE APPLICANT: | Walker Legal & Conveyancing Taree |
| COUNSEL FOR THE RESPONDENT: | Mr Argy |
| SOLICITOR FOR THE RESPONDENT: | Tony Cox Lawyers & Conveyancers |
Orders
That the Application in an Appeal filed by the Husband on 21 April 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shute & Shute 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 53 of 2015
File Number: NCC 329 of 2015
| Mr Shute |
Applicant
And
| Ms Shute |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By an Application in an Appeal filed on 21 April 2015, the applicant father seeks orders expediting his appeal. The Notice of Appeal was filed on 20 April 2015. The father commenced parenting proceedings in the Federal Circuit Court on 11 February 2015. Those proceedings were given a hearing date of 24 March 2015. Being dissatisfied with that date, the father sought to have the Registrar’s listing on that date reviewed. That application for review was refused on 11 March 2015.
On 24 March 2015, interim parenting orders were made in relation to three of the parties’ children. The application as initially brought by the father sought orders that the children spend equal time with each parent on a week-about basis. He also sought, but did not press at the hearing, an order that the respondent mother be prevented from moving the children from Town A on the Mid-North Coast of New South Wales to Town B on the Mid-North Coast of New South Wales.
The orders made on 24 March 2015 were interim orders, pending further order of the court. They provided for the children, Y, E and L, to live with the mother. The mother and father were to have equal shared parental responsibility for those children, who were to spend time with the father each alternate weekend from after school Friday to before school Monday and overnight each Wednesday. The orders provide for the children to be with each parent for half the school holidays.
The matter was adjourned to the Wauchope sittings of the Federal Circuit Court on 24 July 2015 for directions. The best estimate that can be given of the likely hearing date is that it is likely to be heard sometime between the middle to the end of next year.
Judge Myers noted that the proceedings did not concern all of the children of the parties. One of the children is an adopted child and is subject to orders made by the Children’s Court. Two other children were 14 years old and 17 years old, together with two other adult children. There are also a number of children from other relationships.
At the time of the separation, the children the subject of the proceedings lived with the mother. The trial judge noted that the proceedings were commenced by the father because the mother had moved from Town A to Town B on separation. The father lives at Town C on the North Coast of New South Wales which is closer to Town A. The mother says that Town B is some 35 minutes’ drive from Town C and Town A.
In his Honour’s reasons, the trial judge gave particular weight to his finding that the week-about arrangement would be detrimental to the children, and the effect of that separation from their mother and the sibling subject to the Children’s Court order. His Honour also gave particular weight to the parties’ difficulties in communicating.
The father gives essentially two reasons for expedition. First is that Y is not spending time with him, and has not done so since 14 January 2015. Y is 12 years old. The mother asserts that Y is refusing to spend time with her father, saying that she will see him when she is ready. A second complaint is that the orders do not provide for telephone time with Y at all.
The difficulty, therefore, is at least in relation to Y, one of compliance with the order rather than the orders themselves. If the mother’s evidence is correct – and this is not the occasion to determine that – Y may well have those same views about spending week-about time with her father. The trial judge referred to an email exchange between Y and her father in which their respective views of the appropriate period arrangements were apparently made quite clear. Nevertheless, there is an issue there that remains to be addressed at a final hearing.
The father also referred to the hardship of the orders on the children and the possibly deleterious effect it will have on the relationship between them and their father. Rather than spending a block period of seven days with him, they will be spending a lot of time travelling and moving between the two households which, he submits, will make it more difficult for the children to establish and maintain as meaningful a relationship with him as would otherwise be the case.
For the purpose of this hearing, I assume that the father has a reasonable appeal with reasonable prospects of success.
It is significant to note that, other than for what is already been referred to, the father did not raise any issues concerning the safety or immediate welfare of the children. The orders provide for the children to spend significant and substantial time with each parent. The argument in the appeal is whether those orders were correctly made, or whether orders should have been made providing for them to spend greater time with the father.
Taking into account the urgency of the matters raised by the father, and the urgency of other appeals awaiting a hearing, a basis for expedition has not been established. Any deleterious effect of the current parenting arrangement, as opposed to that proposed by the father, is unlikely to be substantial, notwithstanding the delay until the hearing of the final proceedings in the Federal Circuit Court.
The Application in an Appeal filed on 21 April 2015 is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 14 May 2015.
Legal Associate:
Date: 15 June 2015
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