BILLINGS & LONGLEY

[2017] FamCA 960

FAMILY COURT OF AUSTRALIA

BILLINGS & LONGLEY [2017] FamCA 960

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing – application refused.

Family Law Rules 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Billings

RESPONDENT: Ms Longley

FILE NUMBER: MLC 2606 of 2016

DATE DELIVERED: 28 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Meerkin Apel

SOLICITOR FOR THE RESPONDENT: Counsel Family Lawyers

Orders

1. That the wife’s Response to Application in a Case filed 26 October 2017 be listed for a Directions Hearing at 9.30am on 11 December 2017.

2. That within 14 days the husband file and serve any Reply and affidavits in support upon which he seeks to rely in answer to the wife’s Response to Application in a Case filed 26 October 2017.

3. Upon the dismissal of all extant interim applications, all extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

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 Billings & Longley 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 2606  of 2016

Mr Billings

Applicant

And

Ms Longley

Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 8 September 2017 the husband, who is the applicant in the proceedings, seeks an abridgement of time and the expedition of the first day of hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is supported by an affidavit of the husband sworn 5 September 2017 and an affidavit of his treating neurologist Dr B sworn on 7 September 2017.

2. Orders made by me in Chambers on 12 October 2017 provided that the wife’s solicitor file any written submissions in response to the husband’s application for priority within 14 days.

3. Notwithstanding that order, no submissions were filed on behalf of the wife.  Instead, a Response to Application in a Case was filed on her behalf on 26 October 2017.  That response seeks orders for disclosure and that the husband be assessed by an independent medical expert.  I propose to list the wife’s Response to Application in a Case for hearing in the Registrar’s Directions List and otherwise make directions for the husband to file any reply and affidavit upon which he seeks to rely with respect to those matters.

4. The property proceedings were commenced by the husband in the Federal Circuit Court on 29 March 2016. The parties attended a private mediation on 9 February 2017.  Following that mediation the parties jointly sought a transfer of the proceedings to this Court.  On 5 May 2017 orders were made by Judge Small transferring the proceedings to this Court.  

5. On 21 June 2017 the matter was placed into the list of cases awaiting allocation to a judicial docket.

6. The husband’s application for an expedited hearing is motivated by a decline in his health as a result of the effects of Parkinson’s disease.  The husband was diagnosed with Parkinson’s disease in May 2015.  It is his case that his symptoms are worsening due to the stress of the ongoing family law proceedings.  The husband states that the decline in his health has and will continue to reduce his capacity to work; he is also concerned that the heightening of his symptoms will impact on his ability to participate and give evidence in the proceedings.

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. It is not contentious and I am satisfied that the husband has acted reasonably and without delay in the conduct of the proceedings and in making this application. As noted earlier, the parties have attended private mediation in the course of proceedings and jointly wrote to the Federal Circuit Court seeking a transfer to this Court.  In addition, the husband’s application for an expedited hearing was made without delay on 8 September 2017, less than a month after he attended upon his neurologist on 11 August 2017 for a consultation with respect to his worsening symptoms.

2. In the absence of any evidence to the contrary, I am satisfied that the expedition will not cause any prejudice to the wife.

3. Rule 12.10A(2)(d) of the Rules also requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

4. Rule 12.10A(4)(a) of the Rules states that a relevant circumstance includes whether the age, physical or mental health of a party or witness would affect the availability or competence of a party or witness.

5. The husband contends that the ongoing stress of litigation is contributing to the deterioration in his Parkinson’s disease symptoms and that as his symptoms continue to worsen, his ability to participate and give evidence in these proceedings will be compromised.

6. The husband was first diagnosed with Parkinson’s disease in May 2015. At paragraph 13 of his affidavit filed 8 September 2017 the husband describes the exacerbation of his symptoms, including:-

   ·    Mobility issues, particularly issues with walking;

   ·    Balance issues, with rigidity and tremors starting to affect his balance;

   ·    Speech, noting that he is not as fluent or articulate as he used to be due to a combination of rigidity, fatigue and executive function;

   ·    Interrupted sleep; and

   ·    Fatigue.

7. In his affidavit filed 8 September 2017, the husband’s treating neurologist, Dr B addresses the husband’s health issues and annexes a number of reports in relation to the husband.  In his most recent report dated 11 August 2017 Dr B opines that:

   [the husband’s] dyskinetic posturing is typically influenced by psychological stress and I would anticipate that ongoing anxieties or stresses related to a legal dispute over settlement of his affairs with his wife, would be a factor in increasing these movements and also in enhancing and exacerbating the underlying Parkinson in slowing. 

   Sustained psychological stresses would also interfere with his cognitive function.  This is another typical feature of Parkinson’s where there is some mild cognitive slowing, and difficulty in dealing with multiple tasks at once, and an increased susceptibility to adverse mood changes with anxiety and depression.

8. Dr B’s view is that the ongoing anxieties and stresses related to these proceedings would be a factor in the exacerbation of the husband’s symptoms.  He observed that the husband’s capacity to work has been affected by those symptoms and his employment was terminated in late 2016.   Dr B considers that the husband’s capacity to work “might be in the range 4 and a half to 5 years”.

9. Having regard to the evidence of Dr B I am satisfied that the husband’s ongoing capacity to participate in the proceedings may be compromised if the proceedings are not expedited.  Accordingly, I am satisfied that this is a matter that should be afforded priority.   

10. However, as a result of the filing of an interim application by the wife in response to the husband’s application for priority, of necessity that application will need to be listed and finalised before this matter can be allocated to a judicial docket.  Therefore , upon the determination of the pending interim applications, the listing of the applications for final orders will be expedited.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 28 November 2017

Associate: 

Date:  28 November 2017