FLAST CASE SUMMARY: Salaway & Clavell 2019: APPLICATION IN APPEAL – EXPEDITION

Salaway & Clavell [2019] FamCAFC 6 (15 January 2019)

FACTS

• Parenting orders regarding daughter, born in 2015.
• May 2017 and June 2018, it was determined the child resides with the mother (this was agreed by both parties and the ICL) and, up until the hearing by the judge, supervised time with the father.
• 19 Nov 2018 at the hearing, the father sought an order for unsupervised time.
• The father states he spent approx 21 hours of supervised time with the child without any problems, it was agreed by all the child still resides with the mother.
• The Family Report Writer endorsed that unsupervised time was now appropriate; this was in alignment with the ICL.
• The Mother opposed the fathers application, allegations of risk of harm from the fathers history of substance abuse that may result in neglect of child, history of family violence (that has not yet been determined), limited time spent with the child alone.
• The Judge made orders for unsupervised time; he accepted the mother’s submission of risk and balanced the risk factors versus the benefits of child spending unsupervised time with their father, the judge determined the risk could be managed.
• The mother states verbally that she intends to file an Appeal of this judgement and has requested a stay be placed on the orders.
• Judge grants the stay orders-pending appeal even though the mother has not yet filed a notice of appeal.
• The mother files for appeal on 13 Dec 2018, seeking the Nov 2018 orders are set aside, this would make the 16 May 2017 and 21 June 2018 orders remain.
• The mother’s view is the father may spend time with the child under supervision at the contact centre while the stay order is in place- this is in alignment with previous orders.
• The father did not utilise the contact centre this time. He states he cannot afford the supervisor.
• Father files for expedition of appeal 2 Jan 2019.
• Father states there has been no contact between him and the child since the stay order were made.
• The ICL supports this application for expedition. 
• The Mother does not support or oppose expedition.

ISSUE

• Should this application be given priority over other cases?

HELD

The circumstances of the appeal substantiate priority – Application granted.

It was determined the application in an appeal for expedition satisfied Section 94(2D)(j) of the Family Law Act 1975 (Cth) and section r 12.10A of the Family Law Rules 2004.

It was argued an expedited appeal might reduce the significant emotional upset on the child and that the current disruptions of the arrangements were affecting the child and fathers relationship,

At [22] 'On balance, it is 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 interests, and which are presently stayed, which tips the balance in favour of expedition.'

Furthermore, the mother did not support not oppose the expedition of appeal. This meant she did not state if there would be predjuice against her if the expedition were granted, it was established that it was in the mother’s best interest and that she was ready for the appeal to be brought forward if granted in any case.

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