Barone and Barone

[2012] FMCAfam 780

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARONE & BARONE [2012] FMCAfam 780

FAMILY LAW – Application to vacate hearing dates – transfer to the Family Court of Australia.

Family Law Act 1975, s.75(2)

Applicant: MS BARONE

Respondent: MR BARONE

File Number: SYC 6392 of 2009

Judgment of: Altobelli FM

Hearing date: 30 July 2012

Date of Last Submission: 30 July 2012

Delivered at: Sydney

Delivered on: 30 July 2012

REPRESENTATION

Solicitors for the Applicant: Mr Ford

Counsel for the Respondent: Mr Kearney

Solicitors for the Respondent: Miller Goddard Solicitors

ORDERS

1. The Final Hearing on 16 and 17 August 2012 be vacated.

2. The matter be transferred to the Family Court of Australia on a date to be determined with my recommendation that the Final Hearing be expedited.

IT IS NOTED that publication of this judgment under the pseudonym Barone & Barone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6392 of 2009

MS BARONE

Applicant

And

MR BARONE

Respondent

REASONS FOR JUDGMENT

1. In the matter of Barone, I have before me the applicant wife’s application in a case filed 17 July seeking that hearing dates of an application for alteration of property interests on 16 and 17 August be vacated.  The wife’s application is supported by her affidavit. Mr Ford, her solicitor, has submitted a case outline raising a number of other orders sought by the wife in addition to the orders for vacation.  Mr Kearney appears for the father and he opposes the wife’s application.

2. This case has, unfortunately, a very sad indeed – some would say a tragic – history.  Parenting orders made by the learned Chief Federal Magistrate were overturned on appeal by the Full Court on 26 June 2012.  The appeal was allowed partly by consent.  The Full Court remitted the matter for rehearing by a federal magistrate other than the Chief Federal Magistrate and pursuant to administrative direction within the Court, the matter has been allocated to me.  This makes quite some sense, given that the hearing of the property case is in my docket.

3. This is a difficult case because the interests of both the husband and the wife in relation to how this case should be managed are quite different.  The other legitimate interest that must be taken into account is the interest of the public in the effective and efficient administration of justice and the ability to allocate scant resources in a proper fashion.

4. Mr Ford submits that if the two hearings, that is property and parenting, are consolidated, it would take five days and he apprehends that at the moment, the wife understands the dispute about the children to be one basically about time, with the father’s proposal understood to be equal time, but her proposal to be three nights out of 14.  Mr Kearney, on behalf of the father, could not provide the Court an estimate as to how long that might take or what the current proposal of the father is.

5. It is relevant, of course, in the context of working out whether to vacate the hearing, that if I were to continue to hear the property case on 16 and 17 August and if it were the case that the father was still seeking equal time, the assessment of section 75(2) considerations would be problematic indeed in a case where the parenting orders have not been finalised. Mr Kearney has submitted that the husband is prepared to suffer any adverse impact on him of an assessment of section 75(2) considerations that do not, ultimately, reflect parenting responsibilities and time.

6. Nonetheless, I need to be conscious not just of the interests of the mother and the father but the interests of justice.  The reality is that the matter of Barone is listed on 16 and 17 August before me but it is listed against a parenting case.  That is standard procedure in this Court.  I would be very surprised indeed if anyone at the bar table did not understand that to be the case.  I mention the fact that it is listed against a parenting case because it raises the possibility that if I don’t vacate the hearing and keep the hearing dates, that the case would nonetheless be not reached.

7. The earliest opportunity that I have to list a five-day case, including one dealing with parenting, is the week of 24 June 2013.  It makes no sense, in my opinion, to keep the hearing dates for property in circumstances where parenting is unresolved.  I intend, therefore, to vacate the hearing date.  Instead of giving consideration as to the allocation of a hearing date for the matter in its consolidated form, I intend to transfer this matter to the Family Court of Australia.

8. The husband may quite properly be entitled to feel that he is prejudiced and disadvantaged by what is happening here.  It would be a mistake, I suggest, for him to think that the prejudice is caused by the actions of the wife in seeking to vacate a hearing that, on any objective basis, should have been vacated.  If there is a disadvantage caused to him, it is a result of the appeal being allowed in the Full Court in the matter of parenting having need to be redetermined.

9. In any event, the prejudice suffered by the husband, who I can understand would be quite concerned about the adverse impact on him of the order I made on 4 April for exclusive occupation and the consequent order that he pay the mortgage on the property, can be managed in two ways.  Firstly, if the matter were transferred to the Family Court and that court was somehow able to accommodate an early listing, particularly if I make a recommendation to that effect.  Secondly, the husband is able to ask the Family Court to revisit the interim orders about exclusive occupation and payment of the mortgage.  So the disadvantage to the husband is not one that cannot be remedied by way of a transfer.

10. I think, at the end of the day, the public interest in the proper administration of justice and the proper allocation of resources warrants that this matter be transferred to the Family Court of Australia and that is the order that I will make.  I will make a strong recommendation that the hearing of this matter be expedited.  The other issues raised by the applicant in her solicitor’s case outline can be dealt with once it is in the Family Court. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: 

Date:  2 August 2012