A mother who tried to have her Appeal case brought forward in the family law courts was unsuccessful after the judge said bringing her case forward is unjustified because there was insufficient evidence to show that speeding the matter up by a few months would make any real difference to the mother or the child.
The mother had brought an application in her appeal matter due to the stress of litigation exacerbating her health issues as well as the fact that her child was having difficulties dealing with the custody reversal that final parenting orders had imposed.
The application in the matter of Gladwell & Gladwell (court pseudonyms) was heard in the Family Court in Sydney. The application and was supported by the child’s father.
Impact on the child of waiting for an appeal hearing
The court noted the mother was genuinely worried about the child’s emotional and psychological health in being separated from her when she had been the child’s primary carer since birth. She said the child was “not coping”. However the judge explained that the child’s behaviours were typical of “transition [of custody from one parent to another] and no more than that”.
Even if the behaviours were more “profound”, the judge questioned 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 emotional welfare in that period”.
Impact on the mother of waiting for an appeal hearing
Health of a party is a relevant circumstance in expedition matters under the Family Law Act 1975. In this case the mother has cancer which has metastasised but is apparently in remission. She argued that the “ongoing court proceedings impact on her ability to cope with her oral chemotherapy and she wishes to bring the proceedings on for hearing sooner rather than later”.
The mother’s treating oncologist provided an opinion that “any delays in the proceedings could adversely impact on the mother’s health”.
But the court said the oncologist’s evidence did not prove how a difference of a few months would definitely affect the mother’s health and prognosis. The judge said: “My understanding is that the difference between an expedited appeal, unless for example if the appeal was to be brought on next week which would not be possible, and an appeal brought on in the ordinary course, is probably no more than a few months. There is insufficient evidence before me that that difference of a couple of months will make any difference to the mother’s diagnosis or her ability to deal with it.”
The judge said the father “too would like to be freed from the strains and stressors” of the litigation. However, this did not justify “jumping the queue of other appeals”.
It’s important to have an understanding of how the court system works and realise that it is currently not practically possible for the courts to bring cases forward. This is simply by virtue of the sheer number of cases going through the court system. The current waiting time for trials in the Canberra family law courts is around 12 to 18 months.
Further, arguments for expediting a matter must be of a sufficiently serious nature (such as involving the safety of a child) to be successful.
The unfortunate reality is that everyone would like their litigation resolved quickly and just about everyone finds the whole process stressful, so arguments based on “stress affecting the health of a party” will need to prove, with strong medical evidence, that this is occurring and that even just several extra months of waiting will make a material difference to a party’s health.
If you are considering to apply to expedite your matter, even if you feel there is a clear case to be made for expedition, you need to ask yourself if it is worth the time and money to make an application for expedition if the end result will only be a saving of a few months.
How else can you speed up a family law matter?
If you don’t feel your matter would qualify for an application for expedition in the courts, you may be wondering how else you can speed it up. There are certain things that you or your lawyer can do, so you should talk to your lawyer about how best to set up your case from the outset to assist the court in progressing your case from a procedural perspective.
Having said that, by far the quickest way to resolve your divorce, property settlement and parenting matters is to come to an agreement with your ex. It is wise to explore the Alternative Dispute Resolution processes that exist to help you avoid the protracted, expensive process of litigation. These are processes that can help you come to an agreement with your ex, with the assistance of professionals who are trained in things such as mediation, arbitration and collaboration – all of which can help resolve issues surrounding child custody, financial and property issues.
You can read this case in full here.
Do you need advice on whether you could try to speed up your family law matter through an application for expedition or on the Alternative Dispute Resolution processes that could help in your case? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
You can also read our previous blog on expedition for more detail on the factors which courts used to decide on expedition applications.