Beddisloe & Church

[2008] FamCA 204

FAMILY COURT OF AUSTRALIA

BEDDISLOE & CHURCH [2008] FamCA 204

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Application for expedited hearing – Granted

Family Law Act 1975 (Cth)

APPLICANT: MS BEDDISLOE

RESPONDENT: MR CHURCH

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2579 of 2006

DATE DELIVERED: 1 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

THE APPLICANT: IN PERSON

Order

1. That all extant application be placed before Justice Watt and/or Registrar Riddiford to be listed on a date to be fixed as soon as possible for procedural orders to be made and the matter to be given a final hearing date.

2. That my reasons for judgment this day be brought to the attention of Justice Watt.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF2579 OF 2006

MS BEDDISLOE

Applicant

And

MR CHURCH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders.

3. The substantive proceedings are about the wife’s remarriage and a consequence of which is her desire to move with her new husband from regional Victoria to a south-east Melbourne suburb.  The child at the centre of the dispute was born in November 2003.  The child is therefore four years of age and the future questions of the nature and extent of the relationship between he and each parent is very much in issue.

4. On 20 June 2007, orders were made that the child’s father spend five nights out of 14 with him.  There is a significant amount of time between father and child.  As a consequence, orders were made that the wife be restrained from moving the child and in the meantime, the parties were to attend upon Mr P.  On 10 December 2007, Senior Registrar Fitzgibbon made orders restraining the wife from making the move that she proposed in the substantive proceedings.

5. As a consequence, an application by the wife has been made to expedite the hearing.

6. The applicant for the expedited hearing filed a comprehensive submission.  No submissions were provided either by the husband or the Independent Children’s Lawyer.

7. The wife’s submission relates largely to her new husband’s income, earning capacity and the relationship between he and his two daughters.  It is tempting to take these matters into account in a significant way but the real issue here is the proceedings about the child and his relationship with both parents as well as the other people who are significant in his life.

8. The wife points out that the respondent husband pays minimal child support so there is some significance in her new husband providing the substantial amount of support for the child.  Her own position as a sole trader seems to suggest that the bulk of her business inquiries stem from the greater Melbourne area.  She points out that if her husband moves to the Melbourne area, she would find it financially impossible to remain in the regional area.

9. Importantly, a decision will need to be made about where the child attends kindergarten and school in the immediate foreseeable future. With demographic changes, places are limited and therefore decisions need to be made.  The same logic applies in respect of schooling.

10. Mr P prepared a report and he perceived that the child really saw his major residence as being with his mother.  Mr P pointed out that the move would not terminate the relationship but significantly change it.

11. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases.  The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given.  “Special reasons” means what it says namely something unusual or out of the ordinary.

12. In this case I am satisfied that:

    (a)that interlocutory orders are causing the applicant hardship;

    (b)the expedited hearing may avoid problems for the child in the sense that kindergarten and schooling need to be sorted out quickly.

13. It seems to me that this is one case where there are special reasons within the meaning of something unusual or out of the ordinary.  Accordingly, I propose to grant the application.

14. I intend to direct that the matter be listed for an expedited final hearing as soon as possible.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 April 2008