Callum & Callum (No. 2)

[2008] FamCA 366

FAMILY COURT OF AUSTRALIA

CALLUM & CALLUM (NO. 2) [2008] FamCA 366

FAMILY LAW – PRACTICE AND PROCEDURE – PRIORITY HEARING – Application refused.

Family Law Act 1975 (Cth)

APPLICANT: Mrs Callum

RESPONDENT: Mr Callum

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4219 of 2007

DATE DELIVERED: 23 May 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:

SOLICITOR FOR THE APPLICANT: Lennon Mazzeo

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 Callum & Callum is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC4219 of 2007

MRS CALLUM

Applicant

And

MR CALLUM

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 and financial issues.

3. This case involves two children A who is aged seven and C who is aged four. 

4. The property proceedings involve predominately the equity in the home in E.  That equity is approximately $1.35 million.  The mortgage has risen to that level substantially subsequent to separation as a result of draw downs by the parties.  Sadly, much of that expense seems to have been associated with the costs of these proceedings.  If the picture painted about the financial circumstances is correct, the dispute between the parties ought be reasonably quickly resolved.  The wife asserts that the husband is living in the home to her detriment whilst she is living in rented accommodation.  Some pragmatism by each party would seem to resolve the matter outside of the litigation particularly having regard to the amount of money that the parties have each already spent.

5. The fundamental issue that gave rise to the priority application was that the wife wanted to move to live in regional Victoria where her family ties remain.  The husband opposes the relocation. 

6. The parties have had extensive assistance from psychologist Mr P and in a recent hearing which gave rise to an extempore judgment on 20 February 2008, Carter J made the very important point that the opinions of Mr P are untested.  However, as her Honour pointed out, two significant things came out of Mr P’s report.  The first is that Mr P did not support the move away to regional Victoria on the basis that it would require a relationship other than that which he felt was good for the children and secondly, he was recommending a significant period of time between father and daughters on a “trial basis”.  As Carter J pointed out, the evidence of not only Mr P but also the parties remained untested but what her Honour had to do was to make a decision which was in the best interests of the children.

7. Carter J was told that the wife was no longer seeking an interim move to regional Victoria on the basis that the school year had already started.  The wife adopted the position that if she was successful in making the move, it would be appropriate to do it at the end of this year so that the children could commence school in regional Victoria at the start of the 2009 year.  In reality, a court is ultimately going to have to determine which proposal best suits the needs of the children whether that is in regional Victoria or Melbourne.  Carter J pointed out that it was the Court’s normal attitude that cases involving relocation should if appropriate be heard with rather more expedition than other cases.  It is that appropriateness that I have to determine today. 

8. The orders of Carter J provided for any party seeking an expedited hearing to file material by 11 March 2008.  Only the wife filed that application.  Her Honour’s orders provided that within seven days thereafter, the responding parties file and serve a document indicating either support or objection to the application.  No response was received.

9. The applicant for the expedited hearing says three things.  The first is that the wife has strong ties to regional Victoria and that all “satisfactory arrangements” have been made with respect to the relocation for the children.  The difficulty with that submission is that whilst the material arrangements may have been made by the wife for the move to regional Victoria, it still flies in the face of the recommendations of Mr P as to what is the appropriate level of time between the husband and the children.  As Carter J pointed out, recommendations of Mr P are just that.  Ultimately it is the responsibility of the Court to determine what is in the best interests of the children but in this case, the wife is now seeking that on the basis of a move to regional Victoria, the existing time be reduced to each alternate weekend from Friday through to Sunday.  That is and remains, the significant dispute between the parties.  That is no less a problem for these children than any others including those whose parents are not involved in a debate about relocation. 

10. The second issue relates to financial matters.  The wife submits that because she is now renting and has had to pay rental “up front” it has had a significant imposition upon her dwindling financial resources.  That is similarly no less a problem for these parties than any others.  In so far as the husband is adopting a position of holding on to the property because of some power of possession, the wife has her own remedies.  In my view, that is not a basis upon which I should grant priority.

11. The third issue raised by the wife is that the matter has been “extremely acrimonious”.  The submission points to not only the report of Mr P but also the reasons for judgment of Carter J on 20 February 2008.  I have had the benefit of reading both the report of Mr P and her Honour’s reasons.  Whilst the parties may have an acrimonious relationship, the significant comment was made by Mr P that the lawyers should temper their correspondence.  Although Carter J said that she did not wish to inflame the proceedings by alluding to the role of the lawyers in this acrimonious debate, the message was clear that the language in the correspondence between the lawyers needed to be tempered.  The wife’s submission for a priority hearing says that an early hearing will enable the parties to achieve some finality and for them to “move on” and as such, it would assist their care of the children.  I fail to see how the entrenched positions adopted by the parties will improve even with the conclusion of the matter and if the war of words continues, the conclusion of the proceedings will do nothing for the benefit of the children.  The parties and their lawyers should heed the very clear message of Carter J in paragraph 15 of her Honour’s reasons about the need for some dispassionate approach.  I am not persuaded that a priority hearing will do anything to overcome those problems.

12. 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.

13. 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 Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  23 May 2008