Buckley and Seymour

[2008] FamCA 199

FAMILY COURT OF AUSTRALIA

BUCKLEY & SEYMOUR [2008] FamCA 199

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Expedited hearings

Family Law Act 1975 (Cth)

APPLICANT: MS BUCKLEY

RESPONDENT: MR SEYMOUR

FILE NUMBER: DGC 4663 of 2007

DATE DELIVERED: 28 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITORS FOR THE APPLICANT:	MARIA BARBAYANNIS & CO
SOLICITOR FOR THE RESPONDENT:	PRIOR & PRIOR

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 4663  of 2007

MS BUCKLEY

Applicant

And

MR SEYMOUR

Respondent

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 proceedings began with an application by the mother filed on 22 November 2007 seeking that she be permitted to “relocate with the child […] born […] December 1999” to Tasmania.

4. The respondent resists the application

5. In filing her application, the mother also filed a Form 4 Notice of Child Abuse or Family Violence. Consequently, the matter was placed in the Magellan list. The Department of Human Services received a notice effectively under s 91B of the Family Law Act 1975 (Cth) (“the Act”) and investigated the matter. The report of the Department of Human Services was released on 7 February 2008 and as a consequence and sensibly, the parties removed the matter from the Magellan list on 25 February 2008. The Department in fact indicated they had no intention of having any further involvement.

6. As a consequence of the mother’s application to move to Tasmania, an application has been made to expedite the hearing.

7. The applicant for the expedited hearing says that it is in the best interests of the child that the matter be finalised without further delay.  She asserts that the father continues to place pressure on the child about living arrangements.  The submission ends by saying that “it is clear” from the Department of Human Services file and Victoria Police records that the child is extremely impressionable and is being affected by the conflict between the parties in relation to the issue of relocation.

8. The respondent to the application for the expedited hearing says that the orders of 25 September 2006 remain in force and importantly that the Independent Children’s Lawyer agreed with that position.  The father says that the child wants to reside with him and that the mother is otherwise not proposing to return to Tasmania for employment reasons.

9. I have been provided with a copy of the report of the Department of Human Services. There appears to have been a significant incident in 2007 in which the child reported that his father had “punched him” to the head. The extent of the incident is unclear. Save to say that it was investigated, the Department of Human Services took the view that it would have no further involvement. As a consequence of the application being filed by the mother, the Department file seems to have been reactivated pursuant to the request under s 91B of the Act. A more detailed analysis of the situation was then undertaken and much more factual material was canvassed. Importantly however, the Department file recorded that by 16 January 2008, the mother had reported that the matter had settled down and that there was no further physical harm. To that extent, the urgency abated in relation to the Court intervening for the protection of the child. That then left the question of the mother’s application to relocate.

10. The Independent Children’s Lawyer has not filed any submission.

11. I made orders drawing the parties’ attention to the provisions of paragraph 7.5 of the case management directions and in particular to the description there set out about what might constitute a special reason.

12. Having regard to the fact that the Department and Victoria Police investigated the abuse allegations and were comfortable about not intervening either in this Court or pursuant to their own statutory mandate, and the fact that interim orders are currently working, there is nothing in the submissions of either party other than the assertion by the mother that her desire to move to Tasmania ought to give rise to priority.

13. It has clearly been the policy of the Court in previous years wherever possible to accommodate parties who wish to relocate.  That relocation obviously has important consequences for the child and requires the Court to consider the situation carefully.  In this case, I do not have any submissions in relation to why the relocation is more urgent than otherwise it might have been.

14. 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.

15. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 March 2008