FATHER WANTS EXPEDITION OF HIS APPEAL AGAINST INTERIM PARENTING ORDERS DUE THE MOTHER’S MENTAL HEALTH CONDITION
BADRICK & GERSAM
FAMILY COURT OF AUSTRALIA
[2020] FamCAFC 164
FACTS:
Mr. Badrick (the father) filed an Application in an Appeal seeking for the expedition of his appeal against certain interim parenting orders made between Ms. Gersam (the mother) and him. The parenting orders relate to their son, Z (the child).
As a background, the parties were at no point in a relationship with each other. They have their respective partners. The father met the child on 26 January 2018. On 28 June 2018 the father commenced proceedings in the Federal Circuit Court of Australia seeking orders for the child to live with him. The parties entered into consent orders for the child to live with the mother and spend time with the father from 3.00 pm Friday until 4.00 pm Sunday, on each alternate weekend and on special occasions. However, in about June 2019, the mother experienced a decline in her mental health and had difficulties with housing which impacted on her parenting capacity. As a result and by agreement, the parties changed the arrangements so that the child would live with the father and spend time with the mother.
On 1 May 2020, the child spent time with the mother, but the mother retained the child. On 12 May 2020, the father filed an Initiating Application in the Federal Circuit Court for interim and final parenting orders. Among other things, he sought a recovery order for the mother to return the child to him and for the matter to be listed on an urgent basis.
On 15 May 2020, orders were made that provide for the child to live with the parents on a week-about arrangement and for the mother to provide the father with a list of medical professionals that she has attended upon since 2017. On the following time they were before the primary judge, the father’s counsel sought for the orders to be varied on the basis that the evidence filed by the mother raised concerns about the effect of her mental health on her parenting capacity. Further, the mother’s representative informed the Court that the mother’s partner had been charged with family violence related offences against his former partner. But the primary judge refused to vary the orders and the proceedings were adjourned for further mention on 4 September 2020. Thus, the father filed an application for expedition. The mother opposed the expedition only because she has applied for a grant of legal aid and is worried that an expedited hearing could mean that she has insufficient time to deal with that issue and arrange representation.
ISSUE:
Whether or not the application for expedition filed by the father should be granted.
HELD:
The father asserts that he was denied procedural fairness by reason of not being heard in relation to the parenting orders. The father asserts that the primary judge made findings contrary to the weight of evidence concerning risk to the child in the mother’s care; made errors of law and; failed to give adequate reasons in making the orders under appeal. The Court found that there are matters of substance raised in the Amended Notice of Appeal and it is with merit.
The Family Law Rules[1] provides that the court must consider whether a case should be given priority to the possible detriment of other cases. One potentially relevant factor to consider is whether the applicant has acted reasonably and without delay in the conduct of the case.[2] The father has lodged his appeal in a timely manner, along with his application for expedition. This subsection weighs in favor of an order for expedition.
Another factor which requires consideration is prejudice to the respondent. The mother has not filed any documents in this application to support or oppose expedition; however, she is worried that an expedited hearing could mean that she has insufficient time to deal with that issue and arrange representation. An expedited hearing would place the mother and legal aid authority under some time pressure which weighs against a hearing being listed in a few weeks. The Court is not persuaded that this should stand in the way of expedition.
Finally, a factor to be considered concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases.[3] The father focuses on the hardship to the child caused by the continuation of interim orders. The submissions made counsel for the father focus on the impact of the living arrangements on the child who at a very young age has experienced significant change. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the child. On balance, it is the matters that go to the welfare of a young child and the substantial change in his living arrangements which tip the balance in favor of expedition.
[1] Rule 12.10A.
[2] Ibid., subpara (a).
[3] Ibid., subpara (d).