Van Housen and Analka

[2017] FamCAFC 113

FAMILY COURT OF AUSTRALIA

VAN HOUSEN & ANALKA [2017] FamCAFC 113

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks expedition of her application to appeal an order dismissing the mother’s relocation application – Whether  the matter should be afforded 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

APPLICANT: Ms Van Housen

RESPONDENT: Mr Analka

FILE NUMBER: EA 63 of 2017

APPEAL NUMBER: SYC 5100 of 2015

DATE DELIVERED: 28 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 28 June 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 2 June 2017

LOWER COURT MNC: [2017] FamCA 388

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT:

David H Cohen & Co

Orders

1. The Application in an Appeal filed 7 June 2017 be dismissed.

2. Costs of this application to be costs in the appeal.

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  Van Housen & Analka 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: SYC 5100 of 2015
File Number: EA 63 of 2017

Ms Van Housen

Applicant

And

Mr Analka

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. By an Application in an Appeal filed on 7 June 2017, Ms Van Housen (“the mother”) seeks an order for an expedited hearing of her appeal (EA 63 of 2017) filed 7 June 2017, against final parenting and property orders made by Cleary J on 2 June 2017. 

3. The parenting proceedings concern the parties’ daughter (“the child”), born in 2014.  The expedition application is based around concerns for the child. 

4. On 4 August 2015, the mother filed an initiating application seeking sole parental responsibility and permission to relocate the residence of the child to New Zealand.  The mother later filed an amended application on 1 December 2015 in which she proposed equal shared parental responsibility and orders for the child to spend time with the father before and after her proposed relocation.

5. Mr Analka (“the father”) is the child’s father and the respondent to this application.  He opposes the relocation of the child to New Zealand, and although his stance in relation to the application for expedition was said to be neutral, in fact the submissions are supportive of an order to that effect. 

6. At the time of trial, the mother relied on her Case Outline which particularised her proposed property orders and that she sought that the father pay her an amount of $300,000. 

7. On 2 June 2017, Cleary J dismissed the mother’s relocation application and ordered that the child spend overnight time with the father and that each party retain the realty and personal in their possession as at the time of separation.

Relevant background

1. In order to give this application context, it is necessary to provide some brief background facts.  These are largely taken from her Honour’s reasons delivered 2 June 2017.

2. The parties began a relationship in mid-2010, began living together in October 2011 and married in 2013.

3. The parties have one child to whom reference has already been made.

4. They separated in late July 2015, when the child was 11 months old.

5. At the commencement of the relationship, the father owned two investment properties, and by the time the parties separated, he had purchased a third.

6. On 14 April 2011, the mother purchased a property with the assistance of funds made available through maternal family trusts.  The mother’s parents were the mortgagees of an unregistered mortgage secured over the property in respect of the advance.  This property later became the family home. 

7. Following separation, the father moved to his parents’ until in approximately mid-August 2015 he moved into independent accommodation in an inner Northern Suburb of Sydney, which is where at the time of trial he lived. 

8. From the time of separation, the child has lived with the mother.  The mother was born in New Zealand, has been a permanent resident of Australia for about 18 years.  She wishes to return to New Zealand with the child to live in her country of birth principally for the support and assistance of the maternal grandparents, who live there.

9. On the evening of 30 July 2015, the mother made an application to the Local Court for the protection of herself and child from the father.  Standard orders for an apprehended domestic violence order were made.  The basis of the order appeared to be the mother’s fear that the father would take the child into his care. 

10. On 3 August 2015, without prior discussion or notice to the father, the mother travelled with the child to New Zealand and stayed with the maternal family.  The following day, the mother’s initiating application was filed in the Family Court in Sydney.  The Apprehended Domestic Violence Order came before the Local Court on 10 August 2015.  Without admissions, the father consented to such an order for a period of 12 months.  The mother was not present. 

11. On 27 August 2015, the father filed an Application in a Case seeking the return of the child by the mother to Australia, equal shared parental responsibility, sole occupation of the family home, residence with the mother and 12 hours a fortnight for the child with the father. 

12. The mother and child returned to Australia on 12 September 2015. 

13. Various interim orders were made by consent on 14 September 2015, which relevantly included provision for the parties to have equal shared parental responsibility and for the child to spend time with the father on various occasions during the week for a few hours at a time but not time overnight. 

14. The applications and responses continued to be amended, up to and including the time of trial. 

15. Cleary J dismissed the mother’s relocation application and ordered that the child live with the mother and spend time, including overnight, with the father.  The orders provided for spousal maintenance to be paid for the mother for some six months and made no adjustment to the parties’ interests in property and liabilities.  These are the orders which are the subject of the appeal filed on 7 June 2017. 

16. The mother filed an application for a stay of Order 5 of the orders (time spent with orders) on 16 June 2017, which is listed before Loughnan J on 29 June 2017.  It is understood that Cleary J is on leave. 

Discussion

1. Section 94(2D)(j) of the Family Law Act1975 (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 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. However, rule 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) 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.

3. Turning to the question of the application of that rule.  The Appeals Registrar has informed the Court that without an order for expedition, the appeal is likely to be listed for hearing in October 2017 and at the latest November 2017.  This is on the basis that the standard appeal directions would be made and complied with without difficulty.  It is appropriate to proceed on that basis.

4. Subparagraph (a) is concerned with whether the applicant for expedition has acted reasonably and without delay.  There is no doubt that in relation to the appeal and this application, the mother has moved promptly and done all that is required to prosecute her appeal and case for expedition.  The application of the subsection weighs in favour of an order for expedition. 

5. Subparagraph (b) is concerned with whether the application has been made without delay.  The matter has already been addressed and need not be considered further. 

6. Subparagraph (c) concerns prejudice to the respondent, in this case the father.  The father concedes there is no prejudice to him.  It is submitted that it is in the interests of this young child that the dispute between her parents is brought to an end as quickly as possible.  That, of course, could be said about all cases which involve a child.  One might be hopeful that, for this child, she is unaware of the litigation that swirls around her.  Nonetheless, the fact that the father would not be prejudiced if expedition is ordered, weighs in favour of the application.

7. Subparagraph (d) requires consideration of circumstances which would justify this case being given priority to the possible detriment of other cases.  When I say “the detriment of other cases”, I mean to appeals that have been filed earlier and which would be called on for hearing in the ordinary course, but not if this appeal was expedited.  As counsel for the applicant agreed in exchanges, this is the issue that lies at the heart of this application.

8. In support of the argument, it is pointed out that the mother wishes to return to New Zealand. It is understood that this is so that the mother and the child would have the support of the child’s maternal grandparents, who live there.  The evidence of the maternal grandmother at trial was that if the mother is unable to relocate with the child to New Zealand, then she is able to remain in her current home.  Her Honour found it likely that given the willingness of the maternal grandparents to provide financial support to the mother and to not require payment of the mortgage, the mother will continue to live in the property under no pressure to repay the debt.

9. The primary judge did not accept that the mother would be unable to find employment in Australia.  Her Honour was of the opinion that the mother has a proven capacity for paid employment and will likely do so for a few days, three or four, perhaps, each week.  The child has a place in childcare three days per week, paid for by the father, which goes some way to moderate what might be thought of as an acute need for maternal family support, for example while the mother had part-time employment. 

10. The child was born in 2014 and has spent the majority of her childhood in Australia.  The primary judge was satisfied that the child has a meaningful relationship with both her parents, who live in reasonable proximity of each other.  Of concern to the primary judge and at issue in the appeal, is her Honour’s assessment of the adverse effect on the child if she was to be separated from her father at a young age. 

11. It is said that the orders under appeal materially change the child’s living materials.  In the sense of the introduction of overnight time, they do. 

12. There is also an argument mounted in ground 8 of the Notice of Appeal that the mother was not afforded procedural fairness in the making of order 5, that is, the overnight time order, in the respect of it commencing “forthwith”.  The point being that the father’s application did not propose overnight time until the child turned three, which I observe is in August this year.  This is only a few months earlier than the father sought.

13. However, it can be seen that the mother seeks to raise matters of some substance in the appeal. Whether they are meritorious cannot be determined at this stage.

14. It is accepted that the appeal is presented bona fide. 

15. Given the findings of the primary judge as to the father’s parental capacity and the importance of the child’s relationship with him, the urgency suggested in relation to this denial of procedural fairness is not as compelling as it might have been.  It is not sufficient to persuade me that the Court should expedite the appeal and disadvantage other litigants ahead of this case in the appeal queue. 

16. The application will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 28 June 2017.

Associate: 

Date:  3 July 2017