Wei and Gong
[2016] FamCAFC 236
•9 November 2016
FAMILY COURT OF AUSTRALIA
| WEI & GONG | [2016] FamCAFC 236 |
| FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – EXPEDITION – Where the husband and wife both seek leave to expedite their appeal and cross-appeal against interim financial orders – Where the husband and wife also seek to expedite their appeal and cross-appeal against interim parenting orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal and cross-appeal does not justify priority to the detriment of other cases – Applications dismissed. |
| Family Law Act 1975 (Cth): ss 94AA, 92(2D)(j) Family Law Rules 2004 (Cth): r 12.10A |
| Medlow & Medlow (2016) FLC 93-692 |
| APPELLANT / CROSS-RESPONDENT: | Mr Wei |
| RESPONDENT / CROSS-APPELLANT: | Ms Gong |
| FILE NUMBER: | SYC | 5655 | of | 2015 |
| APPEAL NUMBER: | EA | 177 | of | 2016 |
| DATE DELIVERED: | 9 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 9 November 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 September 2016 |
| LOWER COURT MNC: | [2016] FamCA 860 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT / CROSS-RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE APPELLANT / CROSS-RESPONDENT: | Mills Oakley Lawyers |
| SOLICITOR FOR THE RESPONDENT / CROSS-APPELLANT: | Barkus Doolan |
Orders
That the Application in an Appeal filed on 14 October 2016 be dismissed.
That the Application in an Appeal filed on 18 October 2016 be dismissed.
That there be no order as to costs.
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 Wei & Gong 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 177 of 2016
File Number: SYC 5655 of 2015
| Mr Wei |
Appellant / Cross-Respondent
And
| Ms Gong |
Respondent / Cross-Appellant
EX TEMPORE REASONS FOR JUDGMENT
Mr Wei (“the husband”) and Ms Gong (“the wife”) are engaged in parenting and financial proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”). Various interim orders were made by Stevenson J on 30 September 2016, the majority of which are challenged in the appeal and cross-appeal by one or other of the parties. Each of the parties wants the appeal and cross-appeal expedited and heard simultaneously.
The financial orders all require a grant of leave. The challenge to the interim parenting orders is not so constrained. The test to be applied in applications for leave to appeal under s 94AA(1) of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [57]). However, as Medlow also points out (at [55]), the discretion is broad and the stated test will give way to the interests of justice in particular cases.
The parenting proceedings concern the parties’ three children who are aged seven, five and four years respectively. At least on an interim basis, it is agreed that the children should live with the wife, however, there is no agreement about the amount of time and the circumstances under which the children should spend time with the husband. According to the wife, if the children spend time with the husband unsupervised, there is an unacceptable risk they would be exposed to family violence. The husband disputes the allegations of family violence and contends that it is in the best interests of the children for them to spend time with him, unsupervised, and to thereby enjoy the benefits of a meaningful relationship with him.
In relation to the children, interim orders were made for the parties to have equal shared parental responsibility, the children to live with the wife and for a graduated arrangement for the children’s time with the husband. This moved from brief periods twice a week until, six months hence, when the children would commence spending time with the husband each alternate weekend from after school Friday until the commencement of school on Monday and half school holidays. The primary judge was not satisfied “… there exists a need to protect the children from physical or psychological harm or exposure to family violence in the unsupervised care of the father …” ([60]).
The essence of her Honour’s reasons are found at [64] and [65] as follows:
64.The contact reports are replete with similar descriptions of warm, loving and comfortable interaction between the father and the children. No supervisor reported any matter of concern in relation to the father's conduct, nor any apparent fear or reticence on the part of the children.
65.The changes proposed by the father would eliminate the artificiality of supervision and remove the cost of approximately $700 per week. In my view the contact reports are indicative that the father/child relationships should be fostered and encouraged, rather than curtailed as sought by the mother.
On 28 October 2016, Loughnan J granted the wife’s application for a stay of the parenting orders, at least insofar as the children’s time with the husband is concerned. The effect of his Honour’s stay in relation to time is that the children will continue to see their father, but under supervision. The stay, as I understand it, means that the more extended time provided for in her Honour’s orders will not take place.
In relation to the financial proceedings, it needs to be understood that either in their names or through a company they own and control, the parties own five parcels of real estate which are worth a considerable sum, albeit subject to considerable liabilities. As to the total pool of property under the parties’ control, the husband estimated a gross value of $12,038,907 subject to liabilities in the vicinity of $8,355,722, whereas the wife said the total property was worth $9,601,242 subject to liabilities of $3,445,906.
The husband conceded that he owned a share portfolio (in China) worth some $750,000, and the primary judge was satisfied that the wife should receive an amount of $200,000 by way of property settlement so as to fund the family law litigation. The husband failed to persuade her Honour that three of the investment properties should be sold and he is required to meet the shortfall between rental income and associated mortgage instalment payments.
There can be no doubt that the primary judge was troubled by both parties’ failure to make full and frank disclosure, which failure, her Honour indicated “… compromises the ability of the Court to determine all of the interim financial issues raised by the parties” ([19]). That factor obviously influenced her Honour’s decision to dismiss the wife’s application for spousal maintenance.
It is perhaps useful to point out, at this stage, that notwithstanding the various challenges raised in the appeal and cross-appeal to the financial orders, no challenge is made to findings concerning the parties’ failure to give full and frank disclosure. Taken at its highest, the complaint of the wife is that her
non-disclosure should have been treated as immaterial. There can be little doubt that the non-disclosure findings will make the task of securing leave to appeal difficult and weighs heavily against expedition being given in relation to the financial orders.
As I earlier mentioned, the parties made it plain this morning, for obvious good reasons, that they do not want the parenting and property appeals heard separately.
Discussion
Section 94(2D)(j) of 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 on expedition of an appeal.
However, r 12.10A deals with applications for an expedited trial and provides a useful guide to the approach to 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. It is that principle which lies at the heart of these applications. 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.
Sub-paragraph (a) is concerned with whether the husband (appellant) and wife (cross-appellant) have acted reasonably and without delay in the conduct of their respective cases. There is no doubt that they both have and the application of the sub-paragraph weighs in favour of an order for expedition.
Sub-paragraph (b) operates to the same effect.
Sub-paragraph (c) concerns prejudice to the respondent, in this case, the husband (cross-respondent) and the wife (respondent). The parties agree expedition is appropriate and both assert prejudice if the orders continue to operate and if the appeal and cross-appeal are not expedited.
Of particular relevance here is the prejudice to the husband and the children of being denied the benefit of unsupervised time, given that her Honour’s orders have been stayed. It is accepted that there is a degree of prejudice in that regard, but no other.
Sub-paragraph (d) requires consideration of relevant circumstances which would justify these proceedings being given priority to the detriment of other appeals. When I say the detriment of other appeals, I mean to other cases that have been filed earlier and would be called on for hearing in the ordinary course, but not if the appeal and cross-appeal were expedited. In this regard, it needs to be understood that some of those appeals awaiting hearing also concern appeals in relation to the welfare of children and where it is asserted children are at risk.
Examples of what constitutes a “relevant circumstances” are set out in r 12.10A(4)(a)-(g). Of particular relevance to this case are sub-rules (4)(b), and (c). The former is concerned with family violence, and the latter, financial hardship. In relation to the parenting orders, counsel for the husband emphasised that the primary judge was satisfied there was no unacceptable risk to the children from unsupervised time with their father and he is presently deprived the benefit of her Honour’s orders. Unless expedition is granted, the effect of this is that his time with the children is likely to continue to be supervised for many months, a position which is said to be undesirable.
I agree with the submission as the likely duration of the stay, and also with the tenor of the submissions made by both parties in relation to the parenting appeal that ideally the appeal should be dealt with reasonably quickly. But quick is a relative concept and relative to the seriousness of the other cases that are also awaiting determination at appeal. That relativity is, of course, affected by the fact that the orders are interim orders and that the resolution of the contested factual matters is better able to be dealt with at trial.
A submission was made that a trial is likely to be delayed if the appeals remaining outstanding. I do not understand why that would be the case. I can see no reason why – even if the appeals remained outstanding – the process of bringing the proceedings to a final hearing should be delayed by the existence of these particular interlocutory appeals.
Both parties claim financial hardship as a consequence of the orders each seeks to challenge. However, in light of the findings as to non-disclosure, the case of financial hardship is not made out.
Finally, it is necessary to consider the grounds of the application for leave to appeal and the parenting appeal. All that needs to be said at this point is that there are a number of grounds which assert errors of principle and others which assert error in the exercise of discretion. However, it is difficult to see on the grounds as presented that the putative appeal and the appeal are presented on such compelling grounds that the Court should dislocate other appeals so as to give priority to these proceedings.
I pause to observe that, notwithstanding the unhappiness that the husband feels with the continued constraint of supervised time, this is not a case where a parent has been denied all time with their children.
I am not persuaded that the circumstances upon which either the husband or the wife rely should give rise to an order for expedition. In my view, this Court has to be more concerned with appellate resources being made available for appeals against final orders rather than interlocutory orders (even when the interlocutory orders have substantive effect).
Conclusion and Costs
The applications for expedition should be dismissed. Neither party has been successful and there is nothing which would justify an order for costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 9 November 2016.
Associate:
Date: 28 November 2016
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