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Family Law

Expedition: hardship to a child

By August 5, 2020February 23rd, 2024No Comments

Expedition: In certain cases it’s possible to have your family court matter heard sooner, in what’s known as expedition. With expedition, a case is hurried along by giving it priority over other waiting cases so that it is heard and resolved more quickly. So what kinds of cases are granted expedition?

Expedition when there’s hardship to a child

Arguments for expediting a matter must be of a sufficiently serious nature, such as involving the safety of a child, to be successful. Courts have to consider a number of factors and ‘relevant circumstances’ when deciding whether to grant an order for expedition. Factors that are usually considered as ‘relevant circumstances’ include things like illness or severe financial hardship affecting a party, the presence of untested violence or sexual abuse allegations, and circumstances that are creating hardship to a child.

While cases involving potential harm to a child are among those most often allowed to be expedited, it is certainly not the case that every application for expedition involving risk to a child is granted.

We recently wrote about another expedition case in which a mother was worried about the effect on the child of a custody reversal to the dad and said their child was not coping. But in that case, the judge said the child’s behaviour was merely typical of children who have transitioned to a different household and declined to expedite the matter.

As with all cases in the family court, the impact of the law on children is at the forefront of judge’s decisions, as children’s welfare is always paramount. So the courts will look at the impact of waiting for an appeal hearing on the children. But the courts also recognise that undergoing upheavals due to family law matters will inevitably impact children, and children “acting out” in response to a court decision is not unexpected.

And yet in the recent matter of Badrick & Gersam, the impact of new living arrangements on a child were the overriding factor in deciding to allow an expedited appeal. The court said the circumstance of hardship to a child caused by the continuing interim orders was relevant because the child was young, the custody reversal was a significant change, and there were untested allegations of child abuse by the mother’s partner. With the aim of reducing potential emotional trauma for the child, the appeal was brought forward.

Note, we are talking about a hearing now being ‘listed in a few weeks’ vs. its original hearing listed ‘in five weeks’. But the significance of a few weeks either way will always be subjective and depend on the case’s unique circumstances. Recall that in the case mentioned earlier, the judge said it would make no difference to the child if a hearing was expedited by mere weeks.

Bringing an appeal matter forward will put someone else’s case back. So one question the courts also ask is, is it sufficiently important to bring this matter forward at the expense of another case? Another question that’s asked is, will bringing this appeal forward prejudice the other party in any way?

For example, in this case, the mother tried to argue that bringing the case forward would prejudice her by reducing the time she had to organise legal representation. Unfortunately for her, while the court considered this as a factor, it said the other factors outweighed it.

With appeal cases the courts also need to look at if the parties acted reasonably and swiftly in the matter, and whether the appeal case itself has merit and the chance of succeeding.

It’s important to realise that it is currently not practically possible for the courts to bring matters or appeals 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.

Expedition: How else can you speed up your family law matter?

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 or even a couple of weeks.

If you don’t believe your matter could qualify for an application for expedition in the courts, you may be wondering how else you can speed it up. After all, you want the whole process completed as fast as possible, given the repercussions divorce and separation have on so many areas of our lives. 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.

Do you need advice on whether you may be able 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 Legal Services 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 Legal Services.

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