Eastwood & Jarden [2020] FamCAFC 103 (29 April 2020)

Last Updated: 6 May 2020

FAMILY COURT OF AUSTRALIA

EASTWOOD & JARDEN

[2020] FamCAFC 103

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Appeal against interim parenting orders allowing the respondent to spend supervised time with young child –Where the respondent is not a biological parent of the child – Where the applicant is the biological mother – Whether the respondent is a parent of the child has not been determined – Where the respondent is a person concerned with the care, welfare or development of the child – Whether the matter should be afforded priority to the detriment of other cases – Where dates have not been set for the final hearing – Grounds of appeal not sufficiently compelling to sway granting expedition – Application dismissed.

Family Law Act 1975 (Cth) ss 60H, 65C(c), 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Eastwood

RESPONDENT:

Ms Jarden

FILE NUMBER:

NCC

3339

of

2019

APPEAL NUMBER:

EA

40

of

2020

DATE DELIVERED:

29 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (by videolink)

JUDGMENT OF:

Ryan J

HEARING DATE:

29 April 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 April 2020

LOWER COURT MNC:

[2020] FamCA 211

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levick

SOLICITOR FOR THE APPLICANT:

Cooney Harvey Doney

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

ORDERS

(1) The Application in an Appeal filed 6 April 2020 be dismissed.
(2) The costs of the application are 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 Eastwood & Jarden 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 40 of 2020
File Number: NCC 3339 of 2019

Ms Eastwood

Applicant

And

Ms Jarden

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By an Application in an Appeal filed on 6 April 2020, Ms Eastwood seeks an expedited hearing of her appeal against certain interim parenting orders made on 1 April 2020 (“the orders”). The orders concern the child, X, born in 2019 (“the child”). Ms Jarden is the respondent. By a Response filed on 23 April 2020, Ms Jarden supports expedition.
2. The child has just turned one year old. He was conceived by an artificial conception procedure.
3. Ms Eastwood is the child’s biological mother.
4. Ms Jarden is not the child’s biological parent. Relevantly, the orders under appeal declare Ms Jarden a person concerned with the care, welfare or development of the child pursuant to s 65C(c) of the Family Law Act 1975 (Cth) (“the Act”) (Order 1); and allow Ms Jarden to spend time with the child at a contact centre in C Town (or other centre as agreed) (Order 3).

BACKGROUND

5. In order to understand the context within which Ms Eastwood makes this application, it is necessary to refer to some brief background facts. These facts have been taken from her Honour’s reasons and the material filed by the parties in this application.
6. Ms Eastwood is 42 years old. She is currently on maternity leave from her employment. Ms Eastwood is an indigenous woman. She has no other children other than the child, but took on parental responsibility for her nephew, Mr F, and raised him. He is now aged 19 and lives independently.
7. Ms Jarden is 48 years old. She has twin daughters aged 19 from a previous relationship. Ms Jarden is indigenous. She has suffered for many years from mental illness which she manages by medication.
8. In June 2018 the parties were engaged to marry.
9. In August 2018 the child was conceived by an artificial conception procedure. The parties’ relationship ended sometime between May and June 2019.
10. On 17 October 2019 Ms Jarden filed an Initiating Application in the Federal Circuit Court seeking interim and final parenting orders. She identified herself as the applicant mother of the child and nominated Ms Eastwood as the respondent mother. On 3 December 2019, the proceedings were transferred to the Family Court.
11. On 31 January 2020, Ms Eastwood filed an application seeking to discharge several procedural orders made by a registrar and sought a threshold hearing to determine whether Ms Jarden is an ‘intended parent’ for the purpose of s 60H of the Act and; whether Ms Jarden had standing to bring the application for the purpose of s 65C(c) of the Act. On 4 February 2020, a judge of the Family Court adjourned the issue concerning the threshold hearing; the application was otherwise dismissed.
12. On 24 March 2020, the primary judge conducted an interim hearing by telephone in relation to the two outstanding issues. Ms Eastwood submitted that Ms Jarden did not have standing but in the event the Court found that she did, then parenting orders should not be made at that time. Ms Jarden pressed for interim orders to be made for time on a regular basis including at special times.
13. The primary judge determined that the evidence supported a finding that Ms Jarden has a concern for the care, welfare or development of the child [44]. Accordingly, her Honour accepted that Ms Jarden had standing to apply for parenting orders, regardless of whether she is a ‘parent’ [44]. It was made clear that the issues concerning whether Ms Jarden is a parent of the child or any allocation of parental responsibility would be determined at trial [12].
14. The orders under appeal were made on 1 April 2020. The substantive proceedings are listed for Trial Management Hearing on 28 May 2020. It is unclear when a final hearing is to be expected.
15. On 6 April 2020, Ms Eastwood filed her Notice of Appeal along with an application to stay the orders pending the outcome of the appeal.
16. It would seem that issues had arisen for the parties in implementing the order allowing Ms Jarden to spend time with the child. On 21 April 2020, Ms Jarden filed an Application in a Case seeking an order for the appointment of a private supervisor to facilitate her time with the child. Ms Jarden deposes that the contact centre in C Town has been closed and is unable to accommodate her as a result of COVID-19 social distancing requirements. Ms Jarden has not had contact with the child since August 2019.
17. Ms Eastwood’s stay application and Ms Jarden’s Application in a Case are listed for hearing on 13 May 2020.

The appeal and expedition application

18. Ms Eastwood appeals against orders which declare Ms Jarden a person concerned with the care, welfare or development of the child (Order 1), allow Ms Jarden to spend supervised time with the child at a contact centre (Orders 2–4) and, for the matter to be listed for a Trial Management Hearing on 28 May 2020 (Order 5). The Notice of Appeal presents five grounds of appeal. Stated broadly, the grounds assert that the primary judge erred:
    • in finding that Ms Jarden had standing to bring the application for parenting orders pursuant to s 65C(c);
    • in failing to allow the parties to be cross-examined in relation to the issue of standing, thereby denying procedural fairness; and
    • in finding that it would be in the best interests of the child for the child to spend time with Ms Jarden.
19. Section 94(2D)(j) of the Act provides that an order may be made to expedite an appeal by a Full Court of the Family Court, or a judge of the Appeal Division, or any other judge if a judge of the Appeal division is not available. Whilst there is no provision in the Act or the Family Law Rules 2004 (“the Rules”) which specifically sets out the criteria for deciding expedition of an appeal, r 12.10A of the Rules deals with expedition applications in relation to trials. The criteria contained in that rule provides useful guidance for the approach to be adopted when determining expedition of an appeal, over and above consideration of the merits of the proposed appeal.
20. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The point being that there are appeals that have been filed ahead of this one, and if this appeal is expedited then a case that is currently waiting an appeal hearing will be deprived of that opportunity in what would otherwise be order of priority.
21. Ms Eastwood does not provide any reason in her affidavit to support her application for expedition. The question to be answered is whether bringing the appeal on a couple of months earlier than in the ordinary course is likely to result in a material change in the child’s welfare in that period. I cannot see that it would. In any case, the potentially relevant factors referred to in the rule which should be taken into account in an appeal setting will be discussed.
22. Subparagraph (a) concerns whether the applicant has acted reasonably and without delay in the conduct of the case. It is accepted that Ms Eastwood has acted in a diligent manner. She lodged her appeal in a timely way, along with her application for expedition. It is plain that with the reasons given orally in the court below, the solicitor for Ms Eastwood moved quickly to secure a settled version of the reasons. I have no doubt that whatever is required of Ms Eastwood to bring an appeal on for an expedited hearing would be done. This subsection weighs in favour of an order for expedition.
23. Subparagraph (b) concerns whether the application has been made without delay. Nothing more needs to be said.
24. In any event, the next factor which requires consideration is prejudice to the respondent. That is, any prejudice caused if she needs to deal with an expedited hearing. Ms Jarden filed a Response to this application in support of expedition and by necessary implication she is unconcerned about this issue.
25. Subparagraph (d) concerns whether there is a relevant circumstance in which the case should be given priority to the detriment of other cases. As was mentioned earlier, the detriment is to other cases that have been filed earlier and which would be called on for hearing in the ordinary course but not if this appeal was expedited.
26. Examples of what may constitute a ‘relevant circumstance’ are set out in r 12.10A(4)(a)–(g), including:

(a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

(b) whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

(c) whether the applicant is suffering financial hardship that:

(i) is not caused by the applicant; and

(ii) cannot be rectified by an interim order;

(d) whether the continuation of interim orders is causing the applicant or a child hardship;

(e) whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

(f) whether the case involves allegations of child sexual, or other, abuse; and

(g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

27. In her affidavit evidence, Ms Jarden appears to focus on subparagraphs (d) and (g), which are concerned with hardship. Ms Jarden states that she is worried that “if I am not able to see [the child] with private supervision, my bond with him will continue to deteriorate until [the contact centre] opens, and there is no indication of when this might occur” (Ms Jarden’s affidavit filed 23 April 2020, paragraph 15). The reference to hardship caused to her and the child is a result of the closure of the contact centre and the reduction in her ability to have contact with the child. An expedited appeal is said to have the effect of reducing the consequential emotional and psychological trauma on the child. It seems that Ms Jarden was then under the misapprehension that the appeal operates as a stay. It does not and the inability to access the contact centre is a matter to be addressed at the forthcoming interim hearing and can be readily addressed by an amendment to the orders.
28. Counsel for Ms Eastwood placed real emphasis on the risk that, should the orders operate for a significant period of time, the child will form an attachment to Ms Jarden which will affect the question as to Ms Jarden’s standing as a person interested in the welfare of the child. This requires some prediction of whether a stay is likely to be given. Some caution is warranted but I agree with the submission that I should not proceed on the basis that a stay is certain. However, I do not accept the submission that giving effect to orders for limited supervised time for a couple of months longer than would be the case if the appeal is expedited is likely to affect Ms Jarden’s standing to pursue her application for parenting orders.
29. Plainly, both the outcome of the appeal, the looming applications for interim orders and the final hearing may result in another change in circumstances for the child, or indeed none. Therefore the timing of the appeal does not, on its face, appear to be significant.
30. Subparagraph (f) concerns whether the case involves allegations of child sexual, or other, abuse. Allegations of family violence, if any, have yet to be determined. A further interim hearing would see the same outcome. A final hearing will enable any allegations and/or denials to be tested and a decision made in the interests of the child on the resolved facts.
31. Finally, it is necessary to consider the grounds of appeal. All that needs to be said at this point is that the grounds do not establish that this is an appeal that one could confidently say will succeed. The point being, the grounds do not compel an expedited hearing.
32. On balance the application for expedition should be refused. The order of the court will be that the Application in an Appeal filed 6 April 2020 be dismissed.

Costs

33. It was accepted that costs of the application should be costs in the appeal.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 April 2020.

Associate:

Date: 29 April 2020