Family Law Case Note: Pawley & Pawley [2017] FamCAFC 103 (2 June 2017)

Summary
This family law parenting matter involved an Application in an Appeal for expedition of the hearing of the Appeal. The Appeal related to an appeal against interim family law parenting orders and against a dismissal of a stay application of interim family law parenting orders.

The Application in an Appeal was determined by Judge Ryan.

Legislation Cited
Family Law Act 1975 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth)
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth)
(including 16.05(2)(e) of the Federal Circuit Court Rules (2001)(Cth) (“the Slip Rule”))

HEARING DATE: 2 June 2017
JUDGMENT OF: Ryan J
DATE OF JUDGMENT: 2 June 2017
PLACE OF JUDGMENT: Sydney
LOWER COURT JUDGMENT DATE: 21 March 2017

ORDERS
(1) That the appeals numbered EA 33 of 2017 and EA 54 of 2017 be consolidated.
(2) On the application of the applicant/cross-appellant, the hearing of the appeals be expedited.
(3) That the appeals EA 33 of 2017 and EA 54 of 2017 be listed for hearing in a sitting of the Full Court in Sydney for the week commencing 19 June 2017.
(4) That the parties’ legal representatives make immediate contact with the Appeal Registrar to settle the procedural directions for the appeals.

SUMMARY OF JUDGMENT
1. The mother sought expedited hearing of appeals. One appeal being against interim parenting orders and one against the decision not to stay the interim orders.
2. The appeals relate to decision by Judge Middleton of the Federal Circuit Court.

Background

3. The mother had relocated from the Hunter region to Coffs Harbour (approximately 450km away) with the children who were almost 3 and 9 months old.
4. The father then filed an application for parenting orders including that the children return. The mother opposed the application.
5. Judge Middleton made orders for the children to spend time with their father every Wednesday and Sunday but no orders were made require the mother to relocate the children back to the Hunter Valley.
6. The father filed an appeal against on the basis that the primary judge erred in not ordering that the mother and children return to the Hunter Valley region area pending final hearing.
7. The primary judge recalled the parties on 4 May 2017, and an additional order was made restraining the mother from relocating the children’s residence from the M region between Wednesday and Sunday. The source of power was said to be r 16.05(2)(e) of the Federal Circuit Court Rules (2001)(Cth) (“the Slip Rule”).
8. On 16 May 2017 the mother filed her cross-appeal against all interim parenting orders, including on the basis that the order of 4 May 2017 was made at a time when the primary judge was functus officio.
9. The mother’s appeal also contends that the the primary judge erred in not staying the interim orders because the primary judge did not consider the mother’s grounds of appeal in relation to the relocation order, and failed to adequately consider the best interests of the children.
Relevant Law
10. Justice Ryan, in her Judgment of the Expedition Application, referred to section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) which 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.
11. She also referred to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which deals with applications for an expedited trial. She stated that the 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.
12. Justice Ryan went through each of the sub paragraphs of that rule. In regards to subparagraph (c) which concerns prejudice to the respondent, she considered that there can be no concerns as to prejudice to the father, provided there is no undue hardship in preparing the father’s case for appeal within a truncated timeframe.
13. Subparagraph (d) of rule 12.10A requires consideration of circumstances which would justify this case being given priority to the possible detriment of other cases. Justice Ryan said at paragraph 16,

“…The affidavits of the mother in support of these applications state that if she is forced to relocate then she will be unable to assist her partner in the running of his farm, to the detriment of his business. The mother further deposes that she will be required to live with her mother, and that her children will be unable to attend their current playgroup. Further, the mother states that the children will suffer a further change to their living arrangements, in spending half the week in the Hunter Valley region and half a week on the mid North Coast. These are all relevant factors on an application for expedition and weigh in favour of it being granted.”

14. It was necessary to also consider the grounds of the cross-appeal and appeal. Justice Ryan considered that both appeals appeared to raise substantial issues for consideration.
15. On balance, Justice Ryan was persuaded that the application for expedition should be granted.

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This article does not represent the views of the firm. It a case note based on a decision made by the Full Court of the Family Court in relation to family law property case appeal involving issues of an appeal, cross appeal, and application for expedition of a hearing.

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