Zabini and Zabini
[2013] FamCAFC 102
FAMILY COURT OF AUSTRALIA
| ZABINI & ZABINI | [2013] FamCAFC 102 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application filed by the appellant mother for expedition of an appeal against parenting orders in relation to the parties’ two children – Where the parenting orders provided that the children move from residing primarily with the mother to residing with the father and then having no contact with the mother for about 28 days – Where the mother provides evidence in support of the application about events which occurred between when his Honour reserved his decision and when his Honour’s reasons were given which, it is found, would probably bolster concern in relation to, inter alia, how difficult it might be for one of the children to change residence – Where it is found that it is undoubtedly in the children’s interests that this case is brought on as quickly as possible and an order for expedition made. |
| Family Law Act 1975 (Cth): s 94(2D)(j) Family Law Rules 2004 (Cth): r 12.10A |
| APPELLANT: | Ms Zabini |
| RESPONDENT: | Mr Zabini |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 4364 | of | 2009 |
| APPEAL NUMBER: | EA | 48 | of | 2013 |
| DATE DELIVERED: | 7 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Ryan |
| HEARING DATE: | 7 June 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 5 April 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 298 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney SC |
| SOLICITOR FOR THE APPELLANT: | John R Quinn & Co |
| COUNSEL FOR THE RESPONDENT: | Watts McCray |
| SOLICITOR FOR THE RESPONDENT: | Ms Medland as agent for Legal Aid NSW |
Orders
That the hearing of the Notice of Appeal filed by Ms Zabini on 2 May 2013 is expedited.
The Eastern Appeal Registrar is directed to list the hearing of the appeal at the first available sitting of the Full Court in Sydney.
Subject to further directions by the Eastern Appeal Registrar the matter is tentatively listed for 11 July 2013.
The parties are directed to forthwith attend upon the Eastern Appeal Registrar to settle the directions for the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zabini & Zabini has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 48 of 2013
File Number: SYC 4364 of 2009
| Ms Zabini |
Appellant
And
| Mr Zabini |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
This is an application filed by Ms Zabini (“the mother”) for expedition of an appeal in relation to parenting orders made by Judge Scarlett on 5 April 2013.
The hearing before his Honour was lengthy and commenced on 9 November 2010 and concluded on 24 April 2012. During that period of time some 14 sitting days occurred. Judgment was delivered on 5 April 2013.
The proceedings relate to the parties’ two children, T, who was born in September 2000 and M, who was born in March 2003. It would appear uncontroversial that the effect of his Honour’s parenting orders was to move the children from residing primarily with the mother to residing with Mr Zabini (“the father”) and then having no contact with her for about 28 days. Over a period of about six months the children’s time with the mother was to increase so that ultimately each fortnight they would reside with her during school term from Wednesday to Monday.
His Honour’s reasons for decision span 54 pages. It is sufficient to observe at this point that there was considerable focus on T and difficulties in T’s relationship with his father. There was also considerable focus on the extent to which T and M have been caught up in a very difficult parental separation and in relation to T, in particular, whether he had become so parentified that, in effect, he made the types of decisions for himself which should properly be made by his parents. It was mentioned more than once by his Honour that any change in T’s residence, in particular, from living primarily with his mother to living with his father would not be easy.
The mother, in her application brought in support of expedition, provides evidence about events which occurred between when his Honour reserved his decision and when his Honour’s reasons were given which would probably bolster concern in relation to how difficult it might be for T to change residence; that T carried a heavy burden in this difficult parental separation and an overall concern for T’s emotional and psychological well being.
The evidence before his Honour, and the additional evidence before me, makes it plain that it is likely to be all but unendurable for these children were this litigation to continue for longer than is necessary.
In support of her application for expedition, reference is made briefly to the Notice of Appeal relied upon by the mother. Without attempting to analyse in detail the apparent merit or lack of it in relation to the grounds which challenge his Honour’s decision, it is clear that the appeal is presented on a substantive basis.
Section 94(2D)(j) of the Family Law Act 1975 (Cth) 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 which specifically deal 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 factors identified in the rules in respect of trials are apposite to this application. Most compelling in this case, however, is my concern for two children whose circumstances about whom his Honour was very troubled. It is undoubtedly in their interests that this case is brought on as quickly as possible and for these reasons the order for expedition will be made.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 June 2013.
Associate:
Date: 28 June 2013
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