Collar and Beabry

[2019] FamCA 156

FAMILY COURT OF AUSTRALIA

COLLAR & BEABRY [2019] FamCA 156

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Ms Collar

RESPONDENT: Mr Beabry

FILE NUMBER: MLC 8235 of 2018

DATE DELIVERED: 20 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

Orders

1. That all extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8235 of 2018

Ms Collar

Applicant

And

Mr Beabry

Respondent

REASONS FOR JUDGMENT

1. The mother, who is the applicant in the proceedings, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). In support of that application she relies on her Summary of Argument filed 15 February 2019. The proceedings concern the mother’s application that she be permitted to relocate with the child of the relationship to the United Kingdom.

2. The father neither supports nor opposes the mother’s application for priority.  He relies upon his Summary of Argument filed on 1 March 2019 in response to the mother’s submissions.

3. The submissions of the parties were filed in compliance with the orders of Senior Registrar Field dated 24 January 2019.  Order 7 of those orders provides that the application for priority be heard and finalised in chambers.

4. These are my Reasons for Judgment in respect of the mother’s application for expedition of the final hearing.

Background

1. The mother is aged 45. The father is aged 40.

2. The parties commenced cohabitation in April 2011 and married in 2013. They separated in 2017. There is one child of the relationship, X, aged five.

3. The mother commenced proceedings in the Family Court of Australia in July 2018 seeking both parenting and property orders. The property proceedings concluded upon orders being made by consent in January 2019.

4. What remains for determination by the Court are the parties’ competing parenting applications.

5. In the mother’s Initiating Application filed 20 July 2018, she seeks final parenting orders permitting her to relocate with the child to the United Kingdom. In the father’s Response filed 27 August 2018, he opposes the mother’s application and seeks orders for equal shared responsibility, that the child live with the mother and spend time with the father 5 nights per fortnight.

6. On 5 September 2018, the parties consented to interim orders that they attend upon Ms X, psychologist for the preparation of a Family Report. Further orders were made that day for the child to spend time with the father as follows:

   3.1

   3.1.1 Each Tuesday from 4:00pm until 6:30pm;

   3.1.2 Each Saturday from 10:00am until 10:00am on Sunday.

   3.2 From 22 September 2018 until 15 October 2018:

   3.2.1 Each Tuesday from 4:00pm until 6:30pm;

   3.2.2 Each Saturday from 10:00am until 5:00pm on Sunday.

   3.3 Commencing 12 October 2018:

   3.3.1 Each Tuesday from 4:00pm until 6:30pm;

   3.3.2 Each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday;

   …

7. On 23 January 2019 the Family Report was released.

8. Further interim parenting orders were made by consent on 24 January 2019 that increased the father’s time with the child to three nights and one afternoon per fortnight. Those orders also provide that the mother and the father each obtain a report from their past and current treating psychologists.

Legal Principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge.

2. In determining an application to expedite the first day, r 12.10A of the Rules provides that:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

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

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

   (4)  For paragraph (2)(d), a 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.

Discussion

1. The mother submits that she has acted reasonably and without delay and relies on the following:

   ·When the mother filed her Initiating Application on 20 July 2018 she particularised final orders sought by her in the event relocation was permitted or refused;

   ·The mother brought proceedings prior to putting in place any arrangements to relocate;

   ·Interim parenting orders were made by consent on the first return date of her application;

   ·The parties attended upon Ms D to obtain a private Family Report; and

   ·Following the release of the Report, on 24 January 2019 there was further agreement as to interim parenting arrangements.  The mother also made application for expedition that day.

2. The father contends that the mother has not acted reasonably and without delay in the conduct of this case.  In support of that submission he says that after separation in July 2017, the father agreed to the mother travelling overseas with the child for two months. He is critical of the mother for extending her stay multiple times, resulting in her spending a total of eight months overseas with the child. The father submits that the mother deliberately delayed her return to Melbourne. The mother rejects that allegation and submits that the father consented to the extension of her stay in the United Kingdom with the child.  Absent a testing of the evidence, I am not in a position to determine those matters.

3. The Rules require that I have regard to the manner in which the mother has conducted her case. To that end I note that the mother filed her Initiating Application in July 2018, within a few months of her return from overseas. Since that time, the matter has been conducted expeditiously and the mother has complied with all orders and directions of the Court. Having regard to those matters, I am satisfied that the mother has acted reasonably and without delay in the conduct of her case.

4. The mother submits that the father will suffer no prejudice if the matter is expedited. The father submits that he would suffer prejudice as he would be “deprived of the significant and substantial time with the child for the period that the hearing is expedited”. As a result, the father submits he would be denied the ability to strengthen his bond with the child.

5. I do not accept the father’s submissions as to prejudice.  The father points to no prejudice to his ability to conduct the matter as a result of expedition of the proceedings; rather, his objection to expedition relates to the potential outcome of the proceedings, namely the possibility that the mother and child may be permitted to relocate to the United Kingdom earlier than would otherwise be the case were the proceedings not expedited.  The determination of the issue of relocation and the timing of any relocation, if so permitted, are matters for the trial judge.  They are matters about which it is open for the father to adduce evidence and make submissions at the final hearing.    

6. Rule 12.10A(2)(d) of the Rules requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

7. The mother deposes that the school year in the United Kingdom begins in September, and that it is desirable for the child to be permitted to relocate to enable her to commence school at that time. An expedited hearing will enable the matter to be heard prior to the commencement of the new school year.

8. The father submits that there is no reason to interrupt the current school year in Australia.  He submits that allowing the child extra time in Australia will enable her to consolidate her friendships and education, as well as her relationship with the father. Further, the father postulates that any change effected at the conclusion of the Australian 2019 academic year may in fact be better to ease the child into school in the United Kingdom, as she would be commencing there half way through the school year.

9. The parties have identified in their submissions the differing arguments as to the potential timing of any relocation.  Ultimately, these are matters for determination by the trial judge and do not assist in the resolution of whether this matter should be afforded priority over other cases awaiting final hearing.

10. The most persuasive factor in determining whether to expedite the matter is that it is an international relocation case which concerns the question of one party’s freedom of movement. Where practicable, such matters should be heard and determined expeditiously. I am satisfied that the nature of the issues raised, including the potential limitation of the mother’s freedom of movement and the possible disruption to the child’s education factors, support the expedition of the proceedings to the possible detriment of other cases.

11. Under r 12.10A(4)(2)(g) of the Rules of the Court, the mother further submits that an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of the case. The mother submits she has been diagnosed with an “adjustment reaction with depressed mood relating to the separation” by her general practitioner. She is currently attending upon a psychologist and has been prescribed anti-depressants.

12. The mother deposes that she feels unhappy and isolated in Australia, and that without the support of her parents, sister and close friends, who all live in the United Kingdom, she is stressed and unable to sleep. The mother’s general practitioner has expressed that whilst anti-depressants are helping, it is likely that the removal of social stressors is required to fully reverse her mood disorder.

13. The father challenges the mother’s contentions, noting that the mother’s general practitioner has no specialist qualifications.   Further, the father submits that the maternal grandparents have been visiting regularly and that the maternal uncle resides in Melbourne; he submits that those members of the mother’s extended family provide her with support. The father also notes that the mother has not lived in the United Kingdom for approximately 13 years.

14. Again, it will be for the trial judge to determine the impact living in Australia has upon the mother’s psychological well-being as well as the supports available to her in Australia. 

15. In my view it is likely that the continuation of these proceedings, and the consequent uncertainty as to future parenting arrangements, is impacting upon the emotional and psychological well-being of both parties and therefore on their child.

16. The mother also contends that she is suffering financial hardship, as contemplated by Rule 12.10A(2)(c). The mother submits that she is neither employed nor eligible for government assistance. The mother submits that the final property orders made on 24 January 2019 provide that the sale of the former matrimonial home will not be executed until 30 days after judgment in relation to the parties’ competing parenting applications.  As a result, the mother will not have access to her property entitlements until after the conclusion of the parenting proceedings.  The mother contends that the interim support she receives from the husband is insufficient to meet her living expenses. The father takes issue with those submissions and relies upon the interim orders that oblige him to pay to the mother spousal maintenance and child support. The father also contends that the mother has the capacity to earn an income but has made no reasonable attempts to do so, and that she owns a property in the United Kingdom from which she may be receiving rental income.

17. Given the mother consented to the final property orders as well as the orders for her interim financial support in January 2019, I am not persuaded that she can now rely upon those terms to found her application for priority.  I am not satisfied that the mother is suffering financial hardship that is not caused by her.      

Conclusion

1. The Rules make it clear that the Court needs to balance whether the benefit that will be afforded to these parties by granting priority outweighs the detriment that will be caused to other cases similarly awaiting hearing.

2. I am satisfied that it is appropriate that this matter be afforded priority over other matters awaiting hearing having regard to:-

   ·the limitation on one party’s freedom of movement;

   ·the impact a delay in the proceedings may have on the psychological and emotional health of the parties;

   ·the desirability of an expeditious determination of the proceedings to provide certainty as to whether the child is to continue her education in Australia or commence school in the United Kingdom in the second half of 2019; and

   ·the availability of a current Family Report.

3. Therefore, I will order that the proceeding be allocated to a judicial docket as soon as practicable.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered 20 March 2019.

Associate: 

Date:  20 March 2019