Campbell and Myers

[2014] FamCA 122

FAMILY COURT OF AUSTRALIA

CAMPBELL & MYERS [2014] FamCA 122

FAMILY LAW – PRACTICE AND PROCEDURE – Submission seeking priority

Family Law Act 1975 (Cth)

APPLICANT: Ms Campbell

RESPONDENT: Mr Myers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10936 of 2013

DATE DELIVERED: 12 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

Orders

UPON READING THE WRITTEN SUBMISSION SEEKING PRIORITY UNDER RULE 12.10A,  
IT IS ORDERED:

1. That all extant applications for final orders are listed to a HEARING before the Honourable Justice Thornton at 10 am on  7 May 2014 for the purposes of listing the matter for final hearing.

2. That the parties and if represented, their legal practitioners, attend the first day of hearing.

3. That unless the parties do not intend to alter their current applications for final orders,:

   a)by 4 pm on 4 April 2014 the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   b)by 4 pm on 20 April 2014, the Respondent file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

4. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposal and on the return date, present to the Court a copy of those orders.

AND THE COURT NOTES:
If a party does not comply with paragraph 3 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Campbell & Myers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10936 of 2013

Ms Campbell

Applicant

And

Mr Myers

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By written application in the form of a submission filed on 18 February 2014, Ms Campbell sought an order that her application filed 16 December 2013 be expedited to a first day before a judge.

2. No response to that submission has been received from Mr Myers.

3. Because the solicitor’s letter enclosing the document relied upon had no indication of having been served on the solicitors on the record for Mr Myers, the Court had no knowledge of whether Mr Myers wished to respond.

4. By email dated 3 March 2014, the solicitors for Ms Campbell sought an indication as to when the priority application would be dealt with. That email too had not been copied into the solicitors for Mr Myers compounding the Court’s concern that the original document had not been served.

5. I pause here to reiterate that it is highly improper for a lawyer to contact the chambers of a judge by such an email without copying in all parties. Whilst it may be acceptable in some courts, it is not acceptable in this Court. That said, the solicitors wrote on 7 March that they had served the “Application and supporting documents at the time of filing”. I am not entirely sure that I understand what was served bearing in mind that the solicitors chose to proceed by way of submission.

6. Needless to say, I have presumed that the solicitors for Mr Myers have brought to their client’s attention that the Court is being asked to deal with the expedition process. I have presumed that Mr Myers does not wish to be heard on the subject.

7. The substantive proceedings began on 16 December 2013 with Ms Campbell, (“the mother”) seeking parenting orders and specifically an order that she be permitted to relocate to Ireland with B, (“the child”). Whilst the wording may not necessarily have been what was intended, I have understood this to be a parenting case where the mother wishes to live in Ireland.

8. Mr Myers, (“the father”) filed a response which seeks an order that if the mother wishes to move to Ireland, the child should live with him. Having regard to the affidavit material filed thus far and the relatively uncontroversial history subsequent to separation, that is an unusual application. Certainly nothing filed in affidavit form thus far would seem to justify such a proposal.

9. The history of the relationship of the parties was also not particularly unusual. The mother was born in Ireland where she met the father in 2005. She moved to Australia to be with the father in 2006. The child was born in April 2007 and the parties’ relationship came to an end in 2009.

10. It seems uncontroversial that the child has lived with the mother since separation but had limited overnight time with her father. The parties have disputed why the time was limited but seemed to have overlooked that it has been the reality for their daughter.

11. The mother is employed in the education field whose evidence is that her contract is tenuous.

12. The father has repartnered and is expecting a child in May.

13. The mother has not given up her desire to return to what is clearly her homeland. She has made a number of visits and the evidence thus far does not seem to suggest that there was any controversy about the visits.

14. The mother has all of her extended family in Ireland and perhaps unwisely, has purchased a property there and has been actively seeking an education field position. It has also been the mother’s position that if she cannot return to Ireland, she wishes to move away from her current Victorian Regional centre anyway.

15. The father’s case (as best I can glean it from the affidavit material) is that the mother has been obstructive to his endeavours to develop a relationship with the child.

16. The evidence presented to the Court thus far has been far from inspiring. It would assist if the practitioners acted as a filter and ensured that the material is relevant to the issue in dispute. The issues have been encapsulated in the “key issues” paragraph of the Issues Assessment report of Family Consultant Mr E.

17. Attached to the mother’s submissions (and I note also filed) is an affidavit from her treating psychologist. That suggests that the mother suffers considerable emotional stress but strategies are being put in place. The parties’ practitioners are again reminded about the quality and the nature of the evidence they intend to rely upon and in particular, the single expert rules. The father will no doubt consider whether he wishes to challenge the findings of the psychologist. For my part, the evidence is hardly surprising.

18. The practitioners will also contemplate how (and particularly in the case of the father) an order for equal shared parental responsibility could work in the current emotionally charged environment where the father is accusing the mother of thwarting his relationship.

19. I propose to grant the application despite the fact that the period of time since 2009 has been unusually long. The child is now settling into school life and the mother’s employment situation needs to be clarified. There is nothing in the material that I read to suggest that the father would be content to finally support the mother here in Australia if she is unable to continue to work in her chosen profession. That then enables the Court to focus on what it is that will enable the mother to have finance to support the child. The father is currently paying child support of $153 per week but common sense dictates that such an amount would not enable the mother to support herself. I should add that there is no spousal maintenance application on foot. Thus, the issue is festering and needs a resolution.

20. Rule 12.10A(1) of the Family Law Rules 2004 provides that a party may apply to expedite the first day before a judge and, upon considering that application, the Court may take into account a number of matters set out in sub-rule (2). Those include things relating to the way in which the parties have approached the expeditious disposal of their case. In other words, have they done everything that could be done to sort out their own dispute before requiring the Court to intervene and determine it for them? Part of that consideration is whether or not there would be any prejudice to the respondent. In a parenting case, the focus will be on the interests of the child rather than the prejudice to the parent because the welfare of the child is the paramount but not the only consideration.

21. Another important consideration set out in the rules is whether there is an applicable relevant circumstance justifying the case being given priority to the possible detriment of other cases. The rules provide some assistance by stating the following:

    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.

22. If the Court is satisfied that some or all of the criteria apply and it or they justify the case being given priority to the possible detriment of other cases, the rules provide for a discretionary determination to

    (a)set an early first day before the Judge; and

    (b)make procedural orders for the further conduct of the case.

23. I am satisfied that as the mother had filed her application seeking the relocation, she has made it expeditiously. There can clearly be no prejudice to the father and in any event, he has not brought to the Court’s attention any such prejudice.

24. There are no issues of witnesses being unavailable.

25. There being no application for spousal maintenance, and as the mother is currently working, there is no financial issue immediately concerning the parties but as the mother asserts, it may be in the future.

26. Interim parenting orders are not causing the mother or the child hardship.

27. Whilst the mother seeks financial relief in employment and property in Ireland, I do not perceive that to be a pressing issue.

28. An expedited trial may (and most likely will) avoid serious emotional trauma to the mother if indeed it is such a problem. I only have the untested evidence of Mr M in that respect. However, common sense dictates that whilst this issue remains unresolved, the mother’s future is on hold and that cannot be good for the child. 

29. Many cases in this registry face similar pressures and the Court’s resources are finite. The rules guide the Court to contemplate why this case should be given priority over those other cases.

30. On balance, this is a case where the urgency of a full trial can be considered by a trial judge examining just what evidence is going to be led and what, if any, expert evidence is to be called. On the submission of the mother, the balance of convenience suggests that this case should be expedited over other cases which demand the resources of the Court.

31. Accordingly, I propose to expedite the first day before a judge but obviously leave it to that judge to decide when it should be heard.

I certify that the preceding Thirty One (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 March 2014.

Associate: 

Date:  12 March 2014