Burwood and Parker

[2010] FamCA 524

FAMILY COURT OF AUSTRALIA

BURWOOD & PARKER [2010] FamCA 524

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited trial – Transfer to Federal Magistrates Court

APPLICANT: Ms Burwood

RESPONDENT: Mr Parker

INDEPENDENT CHILDREN’S LAWYER: Shorehills Legal

FILE NUMBER: SYC 8423 of 2007

DATE DELIVERED: 8 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 8 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Connor

SOLICITOR FOR THE APPLICANT: Argyle Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: M. Kennedy

INDEPENDENT CHILDREN’S LAWYER:

Ms Dhaliwal,

Shorehills Legal

Orders

1. That the Order made by the Registrar restraining the wife from copying the draft affidavit served by the husband upon the wife which is the subject of that order is hereby revoked.

2. That the application for expedition made by the wife in her application of 28 April 2010 is hereby refused.

3. That this matter is hereby transferred to the Federal Magistrates Court, Sydney Registry.

4. That the husband’s oral application for costs for today’s proceedings is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 8423 of 2007

MS BURWOOD

Applicant

And

MR PARKER

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother of three children to have the hearing of her children's application expedited; meaning by that, the final hearing.  The father does not oppose that application, and neither does the independent children's lawyer. 

2. The mother says that on 18 September 2009 she agreed to children's orders of a final nature which essentially allowed the children to live with their father and have contact with her at regular intervals.  Contact was naturally to be limited, because the father lived, and still lives, in Sydney, and the mother lives on the north coast, as she did at the time of entering into these consent orders.

3. She says that the reason that she agreed to orders that the children live with the father was that she wished to end the protracted litigation over the children for the good of the children.  She was concerned that the litigation would continue and would undermine the children's welfare because of her perception that the father was intractable if she did not concede residence to him.  I do not know why the father says that the children should have lived with him, because no material in relation to the expedition application has been put before the Court by the father. 

4. The mother says that at the time she believed that the father, who is a member of the Defence Forces, would be in a position to provide what is, in effect, full-time care for the children, but she has now discovered that he has obligations which take him outside of Sydney for periods which, the evidence discloses, can be up to about a month, and that in those circumstances, the children are unhappy with the alternative carers that they have in Sydney. 

5. Those alternative carers, according to the mother, are the father's current de facto wife and her father.  She says that she does not even know the proper name of the father's de facto wife's father, even though she has asked the father to supply it and, because one of the children is a teenage girl, says that for an elderly man to have care of a teenage girl is inappropriate.  It is for these reasons, she says, that there should be expedition, because she says it is in the children's best interests to be returned to her full-time care as soon as possible.

6. Currently there are more than 100 matters that have not been allocated to any judge's list that are awaiting such allocation and cannot commence to be heard to finality until after they are allocated to a judge's list.  In my experience, it is highly unlikely that most of those matters are less urgent than the matter which is before me.  There is nothing making a change or the consideration of change an urgent matter on the facts that I have had put before me.  In all cases, it is better for children that what is in their best interests be implemented as quickly as possible.

7. The mother's case here is simply that it will be in the children's best interests to hear the matter, for the reasons she has said, as quickly as possible.  That does not take it outside the ordinary.  There is nothing before me to suggest that the children are at such risk to their welfare that the Court should take any exceptional step to place it ahead of all of the other matters where children's welfare requires that the matter be heard as quickly as possible.  In fact, this is an extraordinarily weak case, in my assessment, for expedition.  Certainly, the requirements for expedition are far from being met by the facts that I have been confronted with.  In the circumstances, I should and shall refuse expedition.

8. Because this matter appears to be a simple one, and all the parties agree with that stance, I think this is a matter which ought to be referred to the Federal Magistrates Court or transferred to the Federal Magistrates Court, and I so transfer it.

9. In this matter, there is an application by the father for costs, in circumstances where he did not oppose the application. In fact, although not arguing in support of it, he supported it.  How, in those circumstances, an order for costs ought to be made is beyond my ken;  however, I must say this that I bear in mind that section 117 of the Act provides that ordinarily without exceptional circumstances each party ought bear his or her own costs in Family Law matters.  In children's matters, it is not in the interests of the children to increase the animosity between the parties.  There appears to be a high level of animosity between the parties in this matter, even though it is a very straightforward matter.

10. To make an order for costs against one party is more likely to increase the level of animosity than is to refuse an order. That is a very strong reason why this court should not depart from the prime thrust of section 117 as to costs;  however, it is my view that the Court, before determining whether the circumstances warrant departure, should consider section 117(2A). 

11. In relation to the matters that ought to be considered pursuant to that section, the Court is in a position where it does not know the financial circumstances of each of the parties.  There does not appear to be any assistance by way of Legal Aid;  there does not appear to have been any suggestion that these proceedings were necessitated by the failure of a party to comply with previous orders of the Court, and there is no suggestion of any offer in writing having been made.  On the issue of whether a party has been wholly unsuccessful in the proceedings, it cannot be said that the wife was wholly unsuccessful, because the husband was equally unsuccessful in supporting her application, and in that sense, the wife was not wholly unsuccessful.

12. As to the conduct of the parties to the proceedings - that is, in relation to the procedures of the Court - there is no suggestion that there has been anything remiss of relevance about that conduct, nor are there, in my view, any other matters, apart from those that I have already considered, which are relevant in determining whether or not there ought to be an order for costs.  In my view, the circumstances that I have already referred to in my judgment do not warrant the Court feeling justified in making an order for costs, and that includes the fact that there are no matters which must be considered under section 117(2A) which would warrant an order for costs, so I refuse that application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              30 June 2010