SORBO & SOULOS
[2015] FamCAFC 90
•8 May 2015
FAMILY COURT OF AUSTRALIA
| SORBO & SOULOS | [2015] FamCAFC 90 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite an appeal against final parenting orders that denied her application to relocate overseas with the child – Whether a case should be given priority to the detriment of other cases – Where the nature of the appeal justified priority to this matter to the detriment of other cases – Application granted. |
| Family Law Act 1975 (Cth): s 94(2D) |
| Family Law Rules 2004 (Cth): rr 10A, 12.10A |
| APPLICANT: | Ms Sorbo |
| RESPONDENT: | Mr Soulos |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 5406 | of | 2012 |
| APPEAL NUMBER: | EA | 54 | of | 2014 |
| DATE DELIVERED: | 8 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 8 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 March 2015 |
| LOWER COURT MNC: | [2015] FamCA 196 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr B. Levet |
| SOLICITOR FOR THE APPELLANT: | Spectrum Legal Group |
| COUNSEL FOR THE RESPONDENT: | Ms Hazim |
| SOLICITOR FOR THE RESPONDENT: | Thurlow Fisher Lawyers |
Orders
That the appeal filed 22 April 2015 and cross-appeal filed 23 April 2015 be expedited.
Subject to further direction the appeal and cross-appeal be listed for hearing in the September 2015 sittings of the Full Court in Sydney.
The cross-appellant to file a draft appeal index within 14 days of the draft appeal index prepared by the appellant being filed and served.
The solicitors for the parties to forthwith approach the Appeals Registrar for an urgent procedural hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sorbo & Soulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURSIDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 54 of 2014
File Number: PAC 5406 of 2012
| Ms Sorbo |
Applicant
And
| Mr Soulos |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
By an application in an appeal filed on 23 April 2015, Ms Sorbo (“the mother”) seeks an order for an expedited hearing of her cross-appeal filed the same day against the final parenting orders made by Foster J on
26 March 2015. The parenting proceedings concern the parties’ son B, born in 2011. The mother sought to relocate with the child to Country N in Europe. In summary the orders provided that the child lives with the mother who was restrained from relocating with the child outside of the Sydney region without the written consent of the father. The orders also provide for the father to spend time with the child.
Mr Soulos is the child’s father and the respondent to this application (“the father”). By Notice of Appeal filed on 22 April 2015, he seeks to set aside the majority of the orders made by the primary judge. He does not oppose orders that the appeal and cross-appeal be expedited.
The proceedings before the primary judge involved an Independent Children's Lawyer appointed to represent the child’s best interests (“ICL”). The ICL supports the application for expedition.
Background facts
In order to give this application context, it is necessary to provide some brief, and hopefully uncontroversial, facts.
The mother is a Country N citizen. The parties met in 2009 through an internet dating site. After flying backwards and forwards between Australia and Europe the mother arrived permanently in Australia in May 2010. The parties married shortly afterwards in July 2010.
The child, who is their only child, was born in 2011.
The mother obtained permanent residency of Australia in 2012.
The mother alleged that throughout the relationship the father was emotionally and physically abusive. She provided evidence of a number of specific incidents. The father denied her allegations. The primary judge accepted the mother’s evidence as to family violence generally and found that the father was abusive and controlling. However, his Honour found that the evidence was not such as to support the mother’s contention as to an ongoing fear that the father would harm either herself or the child.
The father gave evidence that throughout the marriage the mother often seemed suicidal. A Dr Q, who attended on the mother in 2012, formed the view that the mother was at some risk of suicide. However, her clinical notes for the period after separation were to the effect that there was no evidence of depressed mood.
The parties separated in November 2012 when the father returned home to find that the mother and child had left the family home. After separation the mother and child resided in a number of women’s shelters before the mother settled in a suburb in southern Sydney with the assistance of a rental subsidy. The mother refused the father’s request to have contact with their son.
Interim orders were made on 12 July 2013 which provided for supervised time by the child with the father.
The matter was heard by Foster J in February 2015. Before his Honour both parties sought that the child resides primarily with them. The father’s main contention was that if the mother was allowed to return to Europe with the child he would never see him again. Both the family report writer and the single expert, Dr M, found that the child’s primary attachment was to the mother. It was the opinion of the family report writer that if the mother was allowed to return to Europe, the child’s relationship with the father would suffer.
On 26 March 2015 final orders were made providing the child lives with the mother but, as has already been mentioned, she is restrained from relocating with the child outside of Sydney.
Discussion
Section 94(2D)(j) of the Family Law Act 1975 (“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) which specifically deals with the criteria to be applied on expedition of an appeal. Rule 12.10A deals with applications for an expedited trial. 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 will be discussed below.
Subparagraph (a) is concerned with whether the applicant has acted reasonably and without delay. There is no doubt that in relation to the cross-appeal and this application the mother has moved promptly and done all that is required to prosecute her cross-appeal and case for expedition. The application of this subsection ways in favour of an order for expedition.
Subparagraph (b) is concerned with delay. The matter has already been addressed and need not be considered further.
Subparagraph (c) concerns prejudice to the respondent, that is, the respondent to this application, who, it will be recalled, is actually the appellant. There are no submissions made against expedition, save that the father points out that the cost of a transcript and preparation of the appeal books will be significant and he needs some months in order to file the appeal books.
Subparagraph (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 10A(4)(a). The submissions made on behalf of the mother focused on the fact that she is without family support in Australia. Her affidavit filed 23 April 2015 says she feels alone and isolated. It is common ground that during the period leading up the final hearing, members of the mother’s family came to Australia and spent considerable time here providing her with practical support. The mother deposed to being depressed about her current situation and she receives ongoing psychiatric assistance from Dr FF. These are all relevant factors on an application for expedition and weigh in favour of it being granted.
As the ICL pointed out today, the proceedings concern not just the living arrangements of the mother but also the living arrangements of a young child. The proposition that this matter being resolved sooner rather than later is in the best interests of the child is accepted.
Finally it is necessary to consider the grounds of the cross-appeal. All that needs to be said at this point is that the mother raises a number of challenges to his Honour’s reasons. Although they are few in number – there are some 33 grounds of appeal contained in the father’s Notice of Appeal and at first blush it must be said that between them the Notice of Appeal and the cross-appeal appear to raise substantial issues for consideration.
On balance I am persuaded that the application for expedition should be granted and will order accordingly.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 May 2015.
Associate:
Date: 20 May 2015
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