AMBERSON & BRACCHI

[2017] FamCA 508

FAMILY COURT OF AUSTRALIA

AMBERSON & BRACCHI [2017] FamCA 508

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Amberson

RESPONDENT: Mr Bracchi

FILE NUMBER: MLC 10820 of 2016

DATE DELIVERED: 18 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: David J Ryan

SOLICITOR FOR THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER : Victoria Legal Aid

Orders

1. All extant applications for final orders are listed to a TRIAL MANAGEMENT HEARING before the Honourable Justice Macmillan at 10.00 am on 3 August 2017 for the purposes of listing the matter for final hearing.

2. The parties and if represented, their legal practitioners, attend the trial management hearing.

3. Notwithstanding any applications/responses that have already been filed:

   (a)       by 4.00 pm on 24 July 2017 the Applicant file and serve on all other parties an amended application setting out with precision the orders to be sought at trial; and

   (b)       by 4.00 pm on 28 July 2017 the Respondent file and serve on all other parties an amended response setting out with precision the orders to be sought at trial.

4. All parties, including the Independent Children’s Lawyer, if one has been appointed, file and serve on all other parties a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 1 August 2017. Such summary should be emailed to: ….

5. At the trial management hearing each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

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 Amberson & Bracchi 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10820  of 2016

Ms Amberson

Applicant

And

Mr Bracchi

Respondent

And

Independent Children’s Lawyer 

REASONS FOR JUDGMENT 

1. The mother, who is the applicant in this case, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is opposed by the father. The mother relies upon her summary of argument dated 22 June 2017 pursuant to orders made by Registrar Jenkins on 14 June 2017. The father relies upon his summary of argument dated 30 June 2017.

2. The parties were married in 2006 in Country B and separated in May 2016. There are two children of the relationship, C born in 2007 (age nine) and D born in 2008 (age eight) (“the children”). The substantive proceedings were commenced in the Federal Circuit Court by the father on 7 November 2016. The Initiating Application filed by the father sought final and interim parenting orders. The father sought, inter alia, interim orders that he have sole parental responsibility for the children, that they should live with him and that the children have three hours of supervised time with the mother on Saturday and Sunday, apparently due to her alleged poor mental health.  On 9 February 2017 Judge Harland made interim parenting orders by consent that provided for the parents to have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father.

3. The father commenced these proceedings having, according to the mother, previously indicated that he would not stand in the way of her return to Country B with the children.

4. The mother seeks an expedited hearing as it is her intention to relocate with the children to Country B as soon as she is able to do so. The family moved to Australia from Country B in May-July 2015, when the father obtained work.  On 23 February 2016, with sponsorship from the firm the father was employed by, the family were granted 457 visas for a period of two years. As such, the visas for the family are due to expire on 23 February 2018.

5. The matter is further complicated by the mother having received a letter from the Department of Immigration and Border Protection (“the Department”) headed “Notice of intention to consider cancellation” explaining that her visa and those of the children might be cancelled because she was no longer in an ongoing relationship with the father.  The mother has submitted to the Department that their visas should not be cancelled pending a decision of this Court as to her return to Country B with the children. The letter from the Department made it clear that cancellation of the visas would have “serious consequences, including possible detention and removal from Australia.”

6. The issue in this case is not whether the children should return to Country B but rather a question of when that should occur and it is the mother’s case that if that is to occur, it should take place at a time and in circumstances that would be in the children’s best interests. In particular, she submits that it would be traumatic if this were to take place at short notice and as a consequence of the cancellation of their visas. The mother also submits that it would be in the children’s best interests for them to return to Country B in August 2017, giving them time to settle back into life in Country B before the commencement of the new school year. The mother says she would have the benefit of free accommodation upon her return to Country B until she can secure accommodation for herself.  She and the children would also have the benefit of family support not available to them in Australia.

7. The mother also relies upon what she says are the difficult financial circumstances she and the children are in Australia. As the holder of a 457 visa, the mother is not entitled to Centrelink benefits. The father receives a guaranteed income of approximately $55,000 per annum and pays her $88 per week in child support. According to the father, they receive combined  Country B government benefits of $900 per month. Although the mother was previously employed on a part time basis, she says that she took a break from her employment because of the stress of the breakdown of the relationship and these proceedings. Her employment contract was due to expire in June 2017 in any event. Her only other source of income has been from casual employment.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. As set out in the Rules:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (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.

Discussion

1. The father opposes this matter being afforded priority on the following basis:

   ·The mother has not acted reasonably and without delay;

   ·That as he works five days a week, an expedited hearing will prejudice his ability to seek legal advice and properly prepare for the proceedings;

   ·That as all their visas will expire on 23 February 2018, the parties will in any event be returning to Country B, albeit I note that he does not address the mother’s submission that he may be able to extend his visa;

   ·That any financial hardship suffered by the mother is caused by her own conduct;

   ·That the continuation of the interim orders will not cause any hardship and to the contrary, will provide stability for the children;

   ·That an early return to Country B will result in the children being alienated from the father; and

   ·That an expedited trial will cause serious emotional and psychological trauma for the children as they have told him they do not want to return to Country B.

2. I do not accept that the mother has not conducted her case in a timely manner or that an expedited hearing would prejudice the father. The father has been on notice since at least February of this year of the mother’s intention to seek the expedition of this matter. More importantly the correspondence passing between him and the mother, which he does not dispute, makes it clear that the parties have been discussing arrangements for the children’s return for some time prior to that. Although the evidence about these matters is yet to be tested, it would appear to be the father who has changed his mind, albeit it is not totally clear from his submission whether he is saying the children should not return to Country B at all or whether he is saying they should not return until their visas expire.

3. I do not accept that the interim orders will not cause hardship to these children. Even if it is inevitable that the children will be returning to Country B, the uncertainty of when that is likely to be is, in my view, not in their best interests. Although it is hoped that the mother’s and the children’s visas will not be cancelled, if that did occur, it is likely to be disruptive for the children. In addition, the father’s submission that any financial hardship the mother is experiencing is as a result of her conduct ignores the impact of that financial hardship upon the welfare of the children.

4. I also do not accept that the children will be alienated from the father if the children were to return to Country B prior to the expiration of their visas in February 2018. Although it is clear from the father’s submissions that he would prefer that the children remain in Australia until the expiration of his work visa, he does not say whether he has to remain in Australia until then or if he could necessarily leave Australia at the same time as the children. The father himself suggests in his submissions that he and the mother have had discussions about a possible return by Christmas 2017.

5. Even if the father cannot return at the same time as the mother and the children on the face of it, there appears to be no reason why arrangements could not be put in place to enable the children to maintain regular contact with the father in the intervening period. In any event, these matters could be canvassed at the hearing.

6. Whilst this case is not strictly speaking what is commonly referred to as a relocation case, as the children’s return to Country B is inevitable, I am satisfied that it is in all of the circumstances in the children’s best interests for arrangements for their return to be made in an orderly fashion. Although, even having afforded the matter priority, it may not be determined in time for the children to commence the new school year in Country B, I propose to list the matter for a Trial Management Hearing before me on 3 August 2017 with a view to listing the matter for final hearing if that is necessary, as soon as practicable thereafter.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 July 2017.

Associate: 

Date:  18 July 2017