TRACEY & WILKES
[2016] FamCAFC 216
•4 November 2016
FAMILY COURT OF AUSTRALIA
| TRACEY & WILKES | [2016] FamCAFC 216 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the mother seeks to expedite an appeal against interim parenting orders – Where the orders on appeal re-instate final parenting orders from 2015 – Where the orders had been suspended while the father was imprisoned – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(j) |
| Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Ms Tracey |
| RESPONDENT: | Mr Wilkes |
| INDEPENDENT CHILDREN’S LAWYER: | Powe & White Family Lawyers |
| FILE NUMBER: | NCC | 3031 | of | 2012 |
| APPEAL NUMBER: | EA | 170 | of | 2016 |
| DATE DELIVERED: | 4 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 1 November 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 September 2016 |
| LOWER COURT MNC: | [2016] FamCA 851 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Betts |
| SOLICITOR FOR THE APPLICANT: | Joplin Lawyers |
| THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Powe of Powe & White Family Lawyers (via telephone link) |
Orders
The Application in an Appeal filed on 13 October 2016 is dismissed.
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 Tracey & Wilkes 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 170 of 2016
File Number: NCC 3031 of 2012
| Ms Tracey |
Applicant
and
| Mr Wilkes |
Respondent
REASONS FOR JUDGMENT
Ms Tracey (“the mother”) seeks expedition of an appeal brought against the orders of Cleary J made on 30 September 2016. The orders concern parenting orders made by Austin J on 25 June 2015 giving Mr Wilkes (“the father”) sole parental responsibility for the child C, who was born in 2007.
There was no appearance by the father on the appeal hearing. The Independent Children's Lawyer appeared by telephone and took the position that a better course was to seek to have the final hearing expedited, rather than the appeal. However, the Independent Children’s Lawyer further said that if the appeal was to be expedited, he would not be heard against that course.
From the reasons of Austin J it seems that the parties’ relationship ended in 2009 and parenting proceedings were commenced by the father in 2012 in the Federal Circuit Court after what his Honour described as an “ugly confrontation” between the parties to which the police attended (at [9]).
His Honour further observed that there then ensued significant litigation between them which produced nine sets of interim orders relating to the child and the mother’s child of an earlier relationship who had been but an infant at the commencement of the relationship between the mother and father.
In particular, in November 2014, after release of a Family Report, orders were made that the child live with the father because, it seems, the child asserted he had been sexually abused while at the maternal grandparents’ home while in the care of the mother. Orders were also made at this time that the mother’s child live with her. The children have lived separately since then.
The matter was then transferred to the Family Court of Australia for final hearing which took place before his Honour in May and June 2015.
On 25 June 2015 Austin J made final orders in which he ordered that the father have sole parental responsibility for the child and that the child live with the father. The orders further provided for the child to spend time with the mother.
On 24 November 2015 the father was imprisoned. He had been arrested and charged with breaching a domestic violence order made in protection of his former partner, Ms J, and with possession of marijuana. Although the details of the convictions are unclear, he was sentenced to a term of imprisonment. Anticipating being imprisoned, the father arranged for the child to be cared for by the paternal grandmother. The mother forcibly removed the child from the paternal grandmother’s care, although he was returned to the care of the paternal family by the police shortly afterwards.
On 24 December 2015, the matter returned to Austin J who varied the orders made on 25 June 2015 to provide that the child be cared for by the father’s uncle and aunt during his imprisonment. His Honour’s interim orders further provided for the paternal great aunt and uncle to have sole parental responsibility for the child during the time he was in their care.
No appeal was brought by the mother in relation to his Honour’s orders made on 25 June 2015 or 24 December 2015.
On 30 November 2015, the mother applied for further final orders in which she sought that the child live with her and spend time with the father. Those proceedings are yet to be determined.
The mother, by application filed on 18 July 2016 sought interim orders that the child be placed in her care. It seems that at this time, the father was still in prison.
This application came before Cleary J on 29 September 2016 in the course of a duty list.
Her Honour dismissed the mother’s application and discharged the orders made by Austin J on 24 December 2015, finding that there had been a further change of circumstances which warranted such discharge. Her Honour thus reinstated the earlier orders of Austin J made on 25 June 2015 and ordered that the child be returned to the father’s care by 1 October 2016.
It is not clear when the father was released from prison but the child is again living with him.
Application for Expedition
In support of the application for expedition, the mother’s solicitor contends that the appeal should be heard expeditiously and refers to the chronology of orders to which I have referred, and further to the arguments at the hearing before Cleary J. It is said, that in the opinion of the deponent, the appeal has merit.
During oral argument on the appeal, counsel who appeared for the mother contended that her Honour’s orders restoring the child to the care of the father constitutes a situation of risk for the child by reason of the father’s violent conduct.
The issue of family violence was a matter squarely before Austin J in the proceedings which culminated in the orders of 25 June 2015. His Honour notes at [46] of his reasons that the mother made grave allegations against the father of family violence which he denied. Equally, his Honour noted at [49] that the father made allegations against the mother.
His Honour said that despite the allegations of violence, the police had not been involved in the family, save for an incident which occurred in 2012. His Honour did however record at [51] that both children told of seeing the parties assaulting one another.
His Honour then observed that during the cross examination of the mother, it was revealed that she had reported that the father had beaten his former partner, Ms J, with such ferocity that she was hospitalised. However, his Honour noted that when Ms J was called to give evidence in the hearing, she denied any domestic violence as between her and the father, and his Honour further noted that medical records were produced which demonstrated that she had not been recently admitted to hospital. His Honour concluded:
55. …The mother’s recent report to the Department, which relied upon the truth and accuracy of information conveyed to her, was plainly wrong. I reject any implication that the child is at risk of harm through exposure to family violence between the father and Ms [J].
When the matter came before Cleary J on 29 September 2016, Ms J again gave evidence, this time recanting her evidence before Austin J. She said that the father committed serious acts of violence on her in March 2015 following which she and the father separated, before later reconciling. Her Honour noted that the reconciliation would have been within weeks of the final hearing before Austin J.
Her Honour considered Ms J’s evidence before her to be in direct conflict with that given by her in the hearing before Austin J and she concluded that she was unable to accept it untested in the hearing before her (at [36]).
Her Honour concluded:
40. Ms [J] denied any family violence in her relationship with the father in the May 2015 hearing. She may well have been telling the truth then, although that would put her current evidence about events in March and May 2015 in doubt. Or her assertions of severe physical violence visited on her by the father since separation in September 2015 may well be true. However, she has a different perspective now. I cannot assume her current evidence is true or untrue. It is untested. It conflicts with prior evidence.
Clearly then, her Honour was aware of the tension in the evidence and also aware of the seriousness of the allegations made by the mother in relation to the father’s conduct.
Although Ms J’s evidence was significantly relied on in the application for expedition as supporting the mother’s allegations that the father is violent and the child is at risk in his company, given the circumstances in which she gave her evidence, it does not, without more, establish the fact of the violence.
It was further argued on the application that the father may be imprisoned again for a further breach of a domestic violence order. The father did not appear on the application and whether or not this is the case or likely to be the case cannot be known at this time.
Relevant principles
Section 94(2D)(j) of the Family Law Act 1975 (Cth) provides for the expedition of appeals although no criteria or considerations for making that determination are provided. Recourse is often had to r 12.10A of the Family Law Rules 2004 (Cth) which addresses applications for expedition of hearings before a judge.
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought 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.
Clearly the application was brought reasonably and without delay. The father did not appear on the application and thus raised no particular prejudice. It is difficult to imagine that he would be prejudiced if the appeal was expedited.
The issue is whether this appeal should be given priority.
The allegations made by the mother are serious and there should be a hearing of the appeal. However, when that should be has to be considered against the other pending appeals, in which serious allegations in relation to children are also in issue.
This is an appeal against interlocutory orders where a final hearing is pending and at which the allegations will be examined in detail.
Nothing put in this matter persuades me that it should displace pending appeals against final orders which involve equally serious allegations.
The application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 4 November 2016.
Associate:
Date: 4 November 2016
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