Farleigh and Wills and Ors

[2010] FamCA 1240

FAMILY COURT OF AUSTRALIA

FARLEIGH & WILLS AND ORS [2010] FamCA 1240

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Expedition

Family Law Act 1975 (Cth)

APPLICANT: MS FARLEIGH

RESPONDENT: MR WILLS

2^ND RESPONDENTS: MR AND MRS WILLS SENIOR

FILE NUMBER: MLC 7638 of 2010

DATE DELIVERED: 14 DECEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: CRONIN J

HEARING DATE: 14 DECEMBER 2010

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: HOGG & REID

SOLICITOR FOR THE RESPONDENT: GADENS LAWYERS

SOLICITOR FOR THE 
2^ND RESPONDENTS: SCHETZER CONSTANTINOU

Orders

IT IS ORDERED:

1. THAT all outstanding applications be adjourned for final hearing before Justice Mushin on 11 April 2011 at 10.00 a.m.

2. THAT Registrar Field be responsible for the management of the case.

3. THAT MR WILLS SENIOR and MRS WILLS SENIOR have leave to intervene in the proceedings and become parties.

4. THAT by 4.00 p.m. on 13 January 2011, the said new parties file and serve a response to the current application of the wife filed 23 August 2010 (noting the further documents to be filed as set out hereafter).

5. THAT by 4.00 p.m. on 4 February 2011 the applicant wife file and serve:

   a.an amended application setting out with precision the orders to be sought;

   b.the affidavits of evidence in chief of all witnesses relied upon; and

   c.a financial statement that complies with chapter 13 of the Family Law Rules.

6. THAT the applicant pay all required trial fees by 4.00 p.m. on 4 February 2011.

7. THAT by 4.00 p.m. on 25 February 2011 the respondent husband file and serve:

   a.an amended response setting out with precision what orders are being sought;

   b.the affidavits of evidence in chief of all witnesses relied upon;

   c.a financial statement that complies with Chapter 13 of the Family Law Rules.

8. THAT by 4.00 p.m. on 4 March 2011 the third parties file and serve:

   a.an amended response setting out with precision what orders are being sought; and

   b.the affidavits of evidence in chief of all witnesses relied upon.

9. THAT all parties have liberty to approach the Registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10. THAT all parties attend upon a family consultant of the Court for the purposes of the preparation of a family report which is not to be commenced before 4 March 2011.

11. THAT the designated report writer have access to all affidavit material filed by the parties.

12. THAT pursuant to section 68L(2) of the Family Law Act1975 the child T born … January 2007 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

13. THAT forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service. 

14. THAT within 48 hours of notification of such appointment the solicitors for the respective parties provide to Independent Children’s Lawyer copies of all relevant documents relied upon.

15. THAT should any party fail to comply with these orders, that Registrar shall if both parties are in default, remove the case from its allocated place in the list and refer the case to the trial Judge for directions as to its future management.

16. THAT if one party fails to comply with these orders but the other has, the complying party may seek leave from the trial Judge to proceed on an undefended basis without having to wait for the allocated trial date.

17. THAT the practitioners for the parties file and serve by 4.00 p.m. on 20 April 2011, the following:

    a.a concise set of orders to be sought if different from those already filed;

    b.an updated financial statement if it is different from that referred to above (noting that the third parties are not required to file any such statement);

    c.a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

    d.a bullet-point summary of argument in relation to the issues in dispute.

18. THAT each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7638 of 2010

MS FARLEIGH

Applicant

And

MR WILLS

Respondent

And

MR and MRS WILLS Senior
2^nd Respondents

REASONS FOR JUDGMENT

1. These reasons involve two determinations as follows:

   (a)should the Court order an expedited hearing of the wife’s application filed 23 August 2010 in which she seeks to be able to live in Canada with the only child of the marriage T who was born in January 2007; and

   (b)should the Court grant the application of the paternal grandparents who seek to intervene in the first proceedings in circumstances where they say they intend to seek specific parenting orders in their own right?

2. I propose to grant both applications.

3. In these reasons, I shall deal with the second matter first.

4. Intervention is dealt with bysection 92 of the Family Law Act. The Court may make an order allowing persons to intervene upon such conditions as it considers appropriate.  Once such an order is made, the intervenor is to be regarded as a party to the proceedings with all the rights, duties and liabilities that this entails.

5. The wife’s argument is that the grandparents are really aligned with their son and seeking orders for tactical purposes.  The evidence in the proceedings will soon test that proposition but it is not the basis upon which the Court should refuse a request to intervene in parenting proceedings and particularly by grandparents.  The various sections of the Act make clear that orders may be made in favour of persons such as grandparents and, in their own right.

6. Section 60B of the Act sets out the objects of Part VII and the principles underlying it. It includes:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) …

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives) (emphasis mine); and

   (c) …

   (d) …

   (e) …

7. Section 64B defines a parenting order to include the time a child is to spend with another person or other persons. For apparent good reason, the legislature then said:

   The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

8. Section 64C provides:

   A parenting order in relation to a child may be made in favour of a parent of the child or some other person.

9. Section 65C provides:

   Who may apply for a parenting order

   A parenting order in relation to a child may be applied for by:

   (a)  either or both of the child's parents; or

   (b)  the child; or

   (ba)a grandparent of the child; or

   (c)  any other person concerned with the care, welfare or development of the child.

1. It is interesting to note that grandparents were considered by the Parliament as different from the class of persons who have to show that their connection with the child relates to a concern for the care, welfare or development of the child.

1. In their application supported by affidavit, the grandparents say they are seeking orders which on their face, appear to be different to those sought by the husband.

1. It is appropriate in the circumstances that the grandparents be given leave to intervene and become parties.

1. I turn then to the wife’s expedition application.

1. The wife was born in Canada and says that all of her support base is in Canada. She has been in Australia since December 2002.  The parties married in Canada.

1. The husband is an Australian who is away approximately 6 months per year in his occupation. The wife had relied heavily upon the paternal grandparents but the breakdown in the marriage seems to have strained that relationship.

1. It would seem also that the grandparents have had a significant role in their grandchild’s life and wish to do so into the future.  It does not seem on the material to simply be a situation where the grandparents are waving the husband’s flag.  A move to Canada would significantly alter that relationship.  The wife asserted that she and her husband had never agreed to live permanently in Australia and that prior to separation, he agreed to her living in Canada “for a period of time”.  That does not sound like any form of permanent agreement.

1. The mother’s case was put on the basis that she is seeing a psychologist about her “deep” sense of unhappiness, isolation and loneliness.  It is obvious that if that is right, the impact on the child is a possibility.  Needless to say, the wife asserts there is importance in the fact that her family and friends are all in Canada.

1. Rule 12.10A provides for an application for an expedited hearing and sets out some requirements to be fulfilled and some matters that the court can take into account in determining whether to grant a hearing which would put this case ahead of many others.

2. I am satisfied that there has been no delay in making the application.  There is no suggestion of any prejudice to the respondents.

3. Many of the matters set out in Rule 12.10A(4) do not apply but I am entitled to consider that the child is about to commence school and it is an appropriate time to consider whether any move should be made now before he embarks on that. It is also important to recognise that the mother is (and has been) the predominant carer in this child’s life.  There are freedom of movement considerations here which may clash with the best interests of the child but the Court needs to address those quickly in this case.

4. Because of those considerations, I think this is a case which should take some precedence over other matters waiting in the list which is already stretched by diminishing judicial resources.  Granting this application adversely affects other children but also many business activities embroiled in financial cases within the Court’s system.  On balance, this is a case that justifies that priority.

5. I propose to order the appointment of an Independent Children’s Lawyer and also a family report directed to the impact on the child of a change of circumstances.  The report is not to be commenced until the affidavit material is all completed.

6. This case is therefore set down for final hearing

I certify that the preceding Twenty-Three
(23) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Cronin
delivered on 14 December 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………