ZLOTNIK & GERASIMOV

[2015] FamCAFC 174

FAMILY COURT OF AUSTRALIA

ZLOTNIK & GERASIMOV [2015] FamCAFC 174

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks to expedite an appeal against interim parenting orders that the child be permitted to spend five months overseas with the maternal grandmother – Whether a case should be given priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases  – Application dismissed.

Family Law Act 1975 (Cth): s 94(2D)(j)

Family Law Rules 2004 (Cth): r 12.10A

Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68

APPLICANT: Mr Zlotnik

RESPONDENT: Ms Gerasimov

FILE NUMBER: SYC 503 of 2015

APPEAL NUMBER: EA 142 of 2015

DATE DELIVERED: 9 September 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 9 September 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 5 August 2015

LOWER COURT MNC: [2015] FamCA 646

REPRESENTATION

FOR THE APPLICANT: Mr Zlotnik in person

SOLICITOR FOR THE RESPONDENT: Kyle Family Lawyers

Orders

1. That the Application in an Appeal filed 26 August 2015 be dismissed.

2. That the costs of this Application be costs in the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zlotnik & Gerasimov 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 142 of 2015
File Number: SYC 503 of 2015

Mr Zlotnik

Applicant

And

Ms Gerasimov

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 26 August 2015, Mr Zlotnik (“the father”) seeks an expedited hearing of his appeal against interim parenting and other orders made by Rees J on 5 August 2015. 

2. The proceedings concern the parties’ only child B (“the child”) who was born in 2012. He is three and a half years old.

3. The respondent to this application and the appeal is the child’s mother Ms Gerasimov (“the mother”). The mother opposes the father’s application for expedition.

4. The effect of her Honour’s orders of 5 August 2015 was to vary earlier consent orders of 6 May 2015 which allowed the child to spend five weeks in Europe with the mother and maternal grandmother, such that the child would now spend approximately five months in Europe, the overwhelming majority without his mother, and he would return to Australia in late December 2015.  Orders were also made for the child’s time with the father when he returns to Australia and, of particular relevance to the appeal, her Honour dismissed the father’s oral application that she disqualify herself from determining the application which culminated in the orders of 5 August 2015.

Background facts

1. In order to give this application context, it is necessary to refer to some brief background facts.  These are largely taken from her Honour’s reasons and the documents filed in this application.

2. The parties were both born in Europe and have settled in Australia. They lived together from December 2004 until February 2011 and again from November 2011 to February 2013. As earlier noted, the child was born in 2012.

3. The child was a little over one year of age when the parties’ separated. He was born in Australia, however his primary language is that spoken in Country J. The child holds both Australian and Country J passports and I infer is a dual citizen.

4. The maternal grandmother has been significantly involved in the child’s care such that she might be seen as having been his primary carer. She travelled to Australia shortly prior to the child’s birth.  Since the child’s birth the maternal grandmother has lived in the mother’s home and cared for him, or cared for him in her home in Country J. She was so significantly involved in the child’s care because both parents have been in full-time employment and neither has been in a position to personally care for him.

5. The maternal grandmother has a three year parent visa which allows her to stay in Australia for a period of 12 months but upon condition she then departs for six months so she can then return for a further 12 months. Her visa is in force until August 2017.

6. Since the child was very little, something short of five months old, he has spent periods of approximately four-five months each year in Europe with the maternal grandmother. The mother also joined the child and maternal grandmother for portions of those trips.

7. On each of these occasions the father agreed to the child being cared for in Country J by the maternal grandmother and by the mother to the extent she was involved.  

8. From April 2013 until January 2014 the father lived abroad and interstate as a consequence of which he did not have face to face time with the child.

9. As was highlighted by the primary judge, the effect of the parenting arrangements has been that the child has only been apart from the maternal grandmother for six nights in his entire life. He has spent much longer periods separated from one or both of his parents.

10. Earlier this year, the maternal grandmother proposed to return to Country J in accordance with her visa requirements. The circumstances of that trip and the events which unfolded and culminated in the hearing on 20 July 2015, are set out at [12]-[18] of her Honour’s reasons for judgment which I incorporate into these reasons as follows:

    In accordance with her visa requirements the grandmother proposed that she would leave Australia and return to [Country J] on 12 May 2015. The mother proposed to leave Australia, with [the child], for [Country J] on 26 June 2015 and return on 8 August 2015 and that [the child] would remain with his grandmother in [Country J] until December 2015. The father did not agree with that proposal and filed an application seeking orders, on an interim basis, restraining the removal of [the child] from Australia.

    The mother in her response sought orders that [the child] be permitted to leave Australia in May 2015 with his grandmother and remain for five months.

    That application came before the Court on 6 May 2015 in a Judicial Duty List. The mother was represented by counsel. The father was unrepresented. The father opposed the orders sought by the mother but the parties agreed that the mother could travel with [the child] to [Country J] between 26 June 2015 and 8 August 2015. Consent orders were made to that effect.

    In the course of the proceedings on 6 May, I indicated that I was unwilling to embark upon a determination of the issues between the parties (other than those to which they consented) in the absence of expert evidence. It was a matter of some concern, on the basis of the documents filed by each of the parties, that [the child]’s primary attachment appeared to be to his grandmother rather than to either of his parents.

    During the luncheon adjournment enquiries were made by counsel for the mother who ascertained that Dr [E], a consultant child and family psychiatrist, was available to see the parties urgently. Dr [E] was prepared to conduct interviews on 26 May 2015 for the purpose of the preparation of a report. It was made clear to the parties that I was not prepared to deal with the application for [the child] to spend five months in [Country J] until Dr [E]’s report was available.

    The father consented to orders for the appointment of Dr [E] as the expert and agreed to pay half of Dr [E]’s fees for the preparation of the report.

    Upon receipt of the report of Dr [E] the mother renewed her application for [the child] to spend the extended period in [Country J] with his grandmother and that application came before the Court, again in a Judicial Duty List, on 20 July 2015.

11. At the outset of the hearing on 20 July 2015 the father made an oral application that the primary judge disqualify herself on the ground of apprehended basis. After hearing submissions from both parties his application was dismissed. This is one of the orders against which the father appeals.

12. Her Honour’s reasons for that dismissal are contained at [19]-[34] of her reasons for judgment.

13. Put simply, the basis for the father’s application was that when discussions took place at court on 6 May 2015, and when I say at court I include in court, regarding the appointment of the expert, Dr E, the father was not advised that he was entitled to have the names of three experts provided to him and to choose one of those experts.  He says he was not adequately involved in the discussions surrounding the selection and appointment of Dr E.

14. As was highlighted by the primary judge however, there is nothing in the Family Law Rules 2004 (Cth) (“the rules”) or the jurisprudence of this Court which mandates such a procedure. It is also noteworthy and the transcript would seem to bear out, at no time did the father indicate his opposition to the appointment of Dr E as the single expert. It is worth noting at this point, that in submissions today the father presented a different complaint for the basis upon which he said her Honour ought to have disqualified herself. He pointed to what he described as her prejudgment by raising her concerns about the child’s attachment to the maternal grandmother and in failing to acknowledge that the child was also, on the evidence, probably attached to each of his parents. Given that this was not the basis upon which the father asked that her Honour recuse herself, if that is the gravamen of his appeal, cases such as Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68 would make it extremely difficult for the father to succeed on that aspect of his appeal.

15. The primary judge went on to consider the parties’ competing applications as to whether the child’s time in Europe should be extended for a further five months, as was sought by the mother, or whether the child should be returned to Australia on 8 August 2015 in accordance with the consent orders and thereafter live with each parent for seven days in each fortnight, as was sought by the father.

16. The mother opposed the father’s application and sought orders in the alternative that in the event the child was returned to Australia in accordance with the consent orders, then the father should personally care for the child between 8.00 am and 5.30 pm on Monday to Friday each week until the maternal grandmother returned to Australia. It would appear that on the father’s proposal, were the child returned to Australia on the August date, the child would be cared for by the father’s partner when he was not at pre-school.

17. The primary judge observed at [38] of her reasons:

    It was clear in the presentation of the case of each of the parents that neither of them was prepared to take time off work to care for [the child] on a full-time basis until the grandmother returned to Australia.

18. It appears to be common ground that until the child travelled to Country J on 26 June 2015, he lived primarily in the mother’s home with the maternal grandmother caring for him from 9.00 am to 5.00 pm while the mother was at work, save for the periods when he attended childcare.

19. The primary judge observed, based on the submissions of both parties, there was little factual dispute between them and the issue for the court’s determination was what was the best solution for the child’s care over the next five months until the maternal grandmother returned to Australia.

20. Following the hearing on 20 July 2015, her Honour reserved her decision and subsequently made orders and delivered judgment on 5 August 2015. As earlier noted those orders provided for a five month extension of the child’s time in Country J such that he would return to Australia on 28 December 2015, rather than 8 August 2015 as contemplated by the 6 May 2015 consent orders. Further orders were made for the child to spend time with the father on a gradually increasing basis upon his return to Australia.

21. The father filed his Notice of Appeal and application for expedition of the appeal on 26 August 2015.

Discussion

1. Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“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 rules which specifically deals with the criteria to be applied on expedition of an appeal.

2. 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 and which are also relevant to appeals will be discussed. As I move through the relevant provisions I do so on the basis that an order which granted expedition of this appeal would be to the detriment of other cases.

3. Sub-paragraph (a) is concerned with whether the father has acted reasonably and without delay in the conduct of the case.  There is no doubt that in relation to the appeal and this application the father has moved promptly and done all that is required to prosecute both his appeal and case for expedition. The application of the sub-section weights in favour of an order for expedition.

4. Sub-paragraph (b) is concerned with delay.  That matter has already been addressed and need not be considered further.  Save to say that if an order for expedition is not made, then there is a real question about whether the father’s appeal would be heard prior to the child’s due date for return to Australia. This would tend to weigh in favour of an order for expedition.

5. Sub-paragraph (c) concerns prejudice to the respondent. Whilst the mother opposes expedition of the appeal, there seems to be no factor which would occasion prejudice to her if the appeal were to be expedited.  The application of the sub-section is moot.

6. Sub-paragraph (d) requires consideration of circumstances which would justify this case being given priority to the detriment of other appeals. When I say the detriment of other cases, I mean to other appeals that have been filed earlier and would be called on for hearing in the ordinary course, but not if this case is expedited.

7. Relevant circumstance is defined in r 12.10A(4)(a).  The father’s submissions focused on the notion that it is contrary to the child’s best interests that he remains in Country J as he is being denied the benefits of a proper and meaningful relationship with each of his parents. There seems little doubt that that is so. The father alleges that the child is suffering psychological and emotional harm as a result of being denied such a relationship with both parents, and his removal to Country J was in violation of the Convention on the Rights of the Child. I am not persuaded that either of these propositions is correct.  I note there are also concerns raised about the child’s health by being exposed to winter in Country J.  Further, the father alleges that an expedited appeal is necessary as the child’s return on 28 December 2015 “is not guaranteed unless the appeal is granted.” The father’s basis for this submission is that Country J is a non-convention country, by that I mean the Hague Convention on the Civil Aspects of International Child Abduction, the mother has an alleged “track record of not being genuine when consenting to court orders” and the maternal grandmother, who has care of the child, is not bound by the court orders. The last of those propositions is undoubtedly correct. It is similarly correct to say that Country J is not a signatory to the convention just mentioned. However it has not been established to my satisfaction that the mother has the poor track record to which the father made reference in his submission.

8. It is also appropriate to make a few other observations about the case which are particularly relevant to the question of priority. First, historically the child has spent approximately four-five months in Country J each year in the care of the maternal grandmother and on each occasion the child has been returned to Australia. The father has historically agreed to such trips. The child has never been “removed” from Australia without the consent of both of the child’s parents. Self-evidently on the father’s own evidence he consented to the child travelling to Country J for this trip and to the extent that he argues that there is a serious risk of the child not being returned, the facts speak against it.

9. Secondly, there is no evidence to suggest the child’s return on 28 December 2015 will not occur, or that somehow a decision of the Full Court would make a difference to whether or not the child is likely to be returned. Indeed in addition to the evidence already mentioned, it is uncontroversial that the mother has already purchased the child’s return ticket and it is her evidence that he is due to return to Australia on 28 December 2015. Of course, the other salient fact is that the maternal grandmother in recent years has moved backwards and forwards between Country J and Australia with the child without ever being in default it would seem of orders or agreement between the parties.

10. Thirdly, there is expert evidence that the child’s primary attachment figure is the maternal grandmother. In his three and a half years the child has spent six nights away from her and considerably longer periods away from each of his parents.  If he is used to being separated from any of the three adults concerned with his care it is his mother and his father. He is not used to being separated from his maternal grandmother. The effect of this is the argument that the child is subjected to a risk of psychological harm at separation from either his mother or his father if he remains in Country J until late December 2015 is not only inconsistent with the manner in which the parents have parented this child to date but fundamentally inconsistent with the expert evidence that the child has been primarily cared for, and become primarily attached to, his maternal grandmother. That should not be misunderstood as somehow suggesting that the evidence does not also establish that the child has nice attachments to each of his parents. As the affidavit filed by the father today reveals, if it accurately records the evidence given by Dr E (I have no reason to suspect that it does not), the child also has nice and appropriate attachments to his mother and his father.

11. Finally, it is necessary to consider the grounds of appeal. The grounds are drafted in very broad terms and it is difficult to see from the grounds themselves how appellate error might be established. However, the nature of the challenges to which the grounds are addressed can be gleaned from the affidavits filed by the father in support of this application and his oral addresses today. Suffice to say that the father raises a number of challenges to her Honour’s reasons, including what he says was her failure to afford him procedural fairness, and what he says was her wrongful rejection of his application that she disqualify herself. I have already made observations that the father would seek to agitate on appeal a different aspect of apprehension of bias than he raised with her Honour. It will be very difficult for him to proceed in that fashion. The father also contends that the primary judge erred in failing to place sufficient weight on his evidence concerning the risk to the child’s health and the child’s relationships with each of his parents by remaining in Country J for a further five months.

12. It is difficult to see on the grounds as presented and argued that the appeal is presented on sufficiently strong grounds that this Court should dislocate other appeals and give it priority.

Conclusion and costs

1. On balance I am persuaded that the application for expedition should be dismissed.

1. I will further order that the costs of the application will be costs in the appeal.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 9 September 2015.

Associate:

Date:  10 September 2015