Corelli and Peterson

[2016] FamCA 814

FAMILY COURT OF AUSTRALIA

CORELLI & PETERSON [2016] FamCA 814

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

Family Law Rules 2004 (Cth)

APPLICANT: Ms Corelli

RESPONDENT: Mr Peterson

FILE NUMBER: MLC 7392 of 2013

DATE DELIVERED: 21 September 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

SOLICITOR FOR THE RESPONDENT: MST Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) all extant applications for final orders are listed for mention before the Honourable Justice Macmillan at 9.00 am on 28 September 2016 for the purposes of listing the matter for final hearing.

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 Corellii & Peterson 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 7392  of 2013

Ms Corelli

Applicant

And

Mr Peterson

Respondent

REASONS FOR JUDGMENT

1. In accordance with the orders made by consent by Senior Registrar FitzGibbon on 1 July 2016, on 15 August 2016, the mother filed a summary of argument  in support of her application for an expedited first day of hearing. The father filed a summary of argument on 24 August 2016 in which he indicates that he does not oppose the mother’s application for expedition.

2. Pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”) a party may apply to expedite the first day before the Judge. As set out in the Rules:

   (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.

3. In this case the parties have been unable to agree upon what school the children of the marriage, B born in 2004 and C born in 2007, will attend for their secondary education.

4. The mother filed her Initiating Application on 1 June 2016, when she says it became clear to her that the parties were unable to resolve the dispute regarding the children’s schooling. I am satisfied in those circumstance that there has been no undue delay.

5. The children in this case, and in particular B, are left not knowing which school they are to attend and exposed to the ongoing conflict between their parents in relation to this issue. I am also satisfied in circumstances where the child B will be commencing his secondary education in 2017 that it is necessary for this case to be given priority over other cases awaiting hearing at least with respect to this issue.

6. In all of the circumstances I propose to list this matter for mention before me at 9.00 am on 28 September 2016.  

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 21 September 2016.

Associate: 

Date:  21 September 2016