Brown and Royale

[2010] FamCA 906

FAMILY COURT OF AUSTRALIA

BROWN & ROYALE [2010] FamCA 906

FAMILY LAW – PRACTICE AND PROCEDURE – Application for priority hearing – Granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Brown

RESPONDENT: Mr Royale

FILE NUMBER: DGC 3949 of 2009

DATE DELIVERED: 11 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: EINSIEDELS SOLICITORS

Orders

1. That the application by the mother for a priority hearing is granted.

2. That all outstanding applications be adjourned for final hearing before the Honourable Justice Mushin as the reserve case commencing at 10.00am on 20 December 2011 as a three day matter.

3. That unless otherwise impracticable, Registrar Kaur be appointed as the docketed registrar responsible for the management of the case.

4. That by 4 pm on 15 November 2010 the applicant file and serve:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses relied upon.

5. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 15 November 2010.

6. That by 4 pm on 13 December 2010 the respondent file and serve:

   (a)  an amended response setting out with precision what orders are being sought; and

   (b)  the affidavits of evidence in chief of all witnesses relied upon.

7. That pursuant to Section 68L(2) the Family Law Act 1975 the children M born … November 2005 and B born … June 2006 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

8. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

9. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

10. That all parties have leave to approach the docketed registrar to issue subpoenae for the production of documents.

11. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

12. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

    (b)refer the case to the trial judge for directions as to its future management; or

    (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

    (d)return the case to the Registrar’s docket on a date to be fixed for further management

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3949  of 2009

MS BROWN

Applicant

And

MR ROYALE

Respondent

REASONS FOR JUDGMENT

1. Ms Brown (“the mother”) has sought a priority hearing of her application filed in the Federal Magistrates Court of Australia on 23 November 2009. 

2. The matter comes to me by way of an order made on 7 September 2010 by Registrar Kaur in which a timetable was set for a summary of argument to be filed by each party in respect of the parenting dispute.

3. The mother filed her summary of argument by the due date.

4. Mr Royale (“the father”) was represented at the hearing on 7 September 2010 by his lawyers but did not file any responding document. 

5. I have presumed that the summary of argument has been served on the father.

6. The application by the mother is that two children M born in November 2005 and B born in June 2006 live with her and that she be able to live with those children in New Zealand.

7. The father filed a response to the mother’s application on 12 January 2010 in which he sought final orders that the children live with the mother “conditional” upon her residing in Victoria.  He proposed that if she “ceases” to reside in the Commonwealth of Australia, the children live with him.

8. The matter came before Federal Magistrate O’Sullivan on 27 January 2010.  It was then adjourned by consent of the parties to 10 May 2010.  On that day, the proceedings were transferred to this Court and the order has a notation endorsed upon it indicating:

   The matter concerns a contest over an application for international child relocation.

9. Despite the order being made on 10 May 2010 transferring it to this Court, it was not listed before a registrar until 7 September 2010.  At that time, the application for priority was apparently proposed.

10. In her summary of argument, the mother said that Federal Magistrate O’Sullivan transferred the matter on the basis of “a court protocol which he claimed, did not allow him to hear the matter”.  The submissions said that this was “incorrect in law and caused the delay of the hearing”.

11. I have no transcript or reasons for judgment.  I have no opposition to the application for priority hearing by the father.  If the matter was transferred on the basis that Federal Magistrate O’Sullivan could not hear the matter, that would certainly be incorrect.  There is certainly a protocol between the courts in which international relocations are seen by both courts as complex matters and should be transferred.  I do not know in this case whether or not the transfer was opposed by one or other of the parties.  It is clear that a party has no right of appeal against such a transfer order.

12. It is unfortunate in this case that no activity occurred for some months because during that period of time, the children no doubt settled into a regime with their father.  I note that they are very young but right from the outset of the litigation, they have been spending block periods with their father and away from their mother.

13. Interestingly, despite the father’s response to which I have referred, a family report prepared and dated 22 March 2010 noted that the father was not seeking that the children live with him.  Rather, he did not propose to alter the current living arrangements but opposed the mother’s proposed relocation on the grounds that the children would be “denied access to him” along with a balanced input in their lives.  The report noted that the father said that the possibility that the children may move to New Zealand caused him much emotional pain and he was unable to entertain the notion of living a full and rewarding life in their absence. 

14. The family report noted that the mother would be likely to enjoy a better quality life if she was living in New Zealand which is her ancestral home and where she has family and a new partner.  The report referred to the fact that if she remains in Australia, there was a risk that she may become clinically depressed and disengaged with life and as a parent.  The impact of that on the children ought to be obvious.

15. Whilst it is not my function to determine anything other than whether this matter should be given a priority hearing, the father’s position, if correct, indicates that his concerns are about his emotional welfare rather than that of the children. 

16. In this case, I propose to order that there be a priority hearing for reasons to which I shall refer.  I also propose to order that there be an Independent Children’s Lawyer appointed subject to the usual funding restrictions of Victoria Legal Aid.  The father will need to show that the relationship he proposes with the children cannot be continued in a meaningful way if the mother was to move.  These children are very young and have a relationship with both parents which a relocation to New Zealand would substantially alter.  All parties will need to have their material focussed on the impact of such a change in the lives of these children having regard to the matters set out in s 60B, s 60CA and s 60CC of the Family Law Act 1975 (Cth) (“the Act”).

17. I do not propose to order an updated family report but if the parties consider that important, they can make the necessary arrangements to have the matter listed before the trial judge.  At this stage, having regard to the very limited resources of the Court, I propose to place this matter as a reserve case for hearing before the Honourable Justice Mushin to commence on 20 December 2010.  That will not be the first day but rather the comprehensive trial itself and accordingly, I propose to make orders for a timetable and for the registrar to ensure rigid adherence to that timetable.

18. Rule 12.10A of the Family Law Rules 2004 refers to the party making an application to expedite the first day before the judge. Because of the vagueness of the position of the parties, but the fact that they have attended upon a family consultant as a result of which a family report was prepared, I do not propose to give this matter a first day but rather a full trial. In making that order, I have taken into account that the matter seems to have been transferred to this Court over opposition from the mother and the only delay has been caused by the matter waiting for it to be listed before a registrar. I do not see any prejudice to the respondent in respect to the matter being brought forward quickly having regard to the fact that he will have an opportunity to put a comprehensive picture before the Court as to his position concerning the children in the future.

19. In every case however the question must also be considered as to the detriment of other cases which have been waiting in the list for much longer.  Because this application was listed in the Federal Magistrates Court, the parties’ material upon which they intended to rely was filed. 

20. In her affidavit in support of the orders proposed, the mother said that the father had refused time with children and shown a lack of interest.  She had been back to New Zealand for some three months without objection from the father.  It was only after her return that the father complained and refused to allow her to go permanently.  The father’s position as set out in his affidavit filed 12 January 2010 denied a lack of interest.  Much of what he said was argumentative opinion and unhelpful in terms of evidence.  He referred to the fact that he missed the children when the mother went to New Zealand but he consented on the basis that he thought that he believed the children would be growing up in Australia.  That evidence has a ring of unreality about it having regard to the period of time that the mother was away.  In his affidavit, he said he was really upset and concerned to discover that the mother had stayed throughout the three month period with her boyfriend and refused to give him any details.  Why he was upset about that is not clear. 

21. The father made statements that he would not agree to the mother being away again because the children missed him and it was not in their best interest to be separated from him for such a significant period of time.  He did note that in August 2009, the mother went to New Zealand for three weeks leaving the children with him.

22. There is little information in the father’s affidavit which would enable the Court to determine a parenting matter upon and certainly not one as complicated as a relocation of children internationally.

23. In the circumstances, this case should be listed quickly for trial so that the dilemma faced by the children can be resolved.

24. I have taken into account the matters set out in Rule 12.10A(4) and say that none of those matters are particularly relevant in this case but I am very concerned that the children are in a state of flux bearing in mind that they are currently spending alternate weekends with the father.

25. In those circumstances, I propose to make orders for the matter to be listed as a reserve matter in December.

I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 October 2010.

Associate: 

Date:  11 October 2010