MOTHER SEEKS EXPEDITION OF HER APPEAL OF STAYED ORDERS PROVIDING FOR THE FATHER TO SPEND WITH THE CHILD
BAUKHAM & PITRESSO
Family Court of Australia at Sydney
[2020] FamCAFC 3
Ms. Baukham filed an Application in an Appeal to expedite her appeal[1] against certain final parenting orders made in the Federal Circuit Court on September 13, 2019, particularly the orders allowing Mr. Pitresso (Father and Respondent) to spend time with their child, which were stayed pending the outcome of the appeal.
Facts:
As background, Ms. Baukham filed a Notice of Appeal[2], seeking to have the September 13, 2019 orders set aside. In the appealed order, the primary judge gave significant weight to the family consultant’s opinion, in a Family Report[3], which expressed that the child would benefit from spending four nights per fortnight with Mr. Pitresso and otherwise live with her other, and that time with him could increase to five nights per fortnight after a couple of years. The primary judge determined that there was mutual family violence during the parties’ relationship and that the existing Apprehended Violence Order (AVO)[4] “might help” to moderate the father’s behavior.[5] Further, the primary judge found that the father did not pose an unacceptable risk of sexual harm to the child.[6] Moreover, the primary judge found no risk of emotional or psychological harm to the child in spending time with her father.[7] Ultimately, the primary judge determined that it was the child’s best interest for her to spend time with her father.[8] On her appeal, Ms. Baukham argued that the primary judge erred by failing to give sufficient weight to the concerns and risk factors she identified and by relying on an outdated Family Report.[9]
Issue:
Whether or not an order for expedition should be made.
Held:
Under the Family Law Rules 2004 (Rules)[10], a party may apply to expedite the first day before the Judge and may take into account:
- whether the applicant has acted reasonably and without delay in the conduct of the case;
- whether the application has been made without delay;
- any prejudice to the respondent; and
- whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
For subparagraphs a and b, Ms. Baukham lodged her application for expedition in a timely manner[11]; hence, these subparagraphs weigh in favor of an order for expedition. For subparagraph c, Mr. Pitresso supported the expedition and had not deposed to matters that would support a submission concerning prejudice to him if an order of expedition were made.[12]
The Rules provided for relevant circumstances under subparagraph d[13] the court considered (d) to be most relevant to Mr. Pitresso, which is concerned with the hardship caused to a child by the continuation of the stay order. Mr. Pitresso’s submissions focused on the impact of the cessation of the current arrangements relating to his time with his daughter. The expedited appeal is said to have the effect of reducing the potential for an emotional upset for the child.
The Court found the factors justify expedition of the appeal; hence, the Court ordered for the expedition of the appeal.
The Court held, after considering factors, that the matters that go to the welfare of a young child and her ability to spend time with her father in accordance with orders, which the primary judge was satisfied, are in her best interest, and which are presently stayed, tips the balance in favor of expedition.
[1] EA 100 of 2019; filed on December 5, 2019
[2] Baukham & Pitresso [2020] FamCAFC 3 (9 January 2020) at (22)
[3] Ibid at (16)
[4] Ibid at (11)
[5] Ibid at (18)
[6] Ibid at (19)
[7] Ibid at (20)
[8] Ibid at (21)
[9] Ibid at (23)
[10] Rule 12. 10A of the Family Law Rules 2004 (Cth)
[11] Supra at (28)
[12] Supra at (30)
[13] Family Law Rules 2004 - Rule 12.10A (4)