Ferrante and Ferrante

[2018] FamCA 52

FAMILY COURT OF AUSTRALIA

FERRANTE & FERRANTE [2018] FamCA 52

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: Mr Ferrante

RESPONDENT: Ms Ferrante

INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates Pty

FILE NUMBER: MLC 8883 of 2016

DATE DELIVERED: 7 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

SOLICITOR FOR THE RESPONDENT: Ben Von Einem & Associates Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates Pty

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 Ferrante & Ferrante 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 8883 of 2016

Mr Ferrante

Applicant

And

Ms Ferrante

Respondent

REASONS FOR JUDGMENT

Introduction

1. The husband who is the applicant in this case, seeks an abridgement of time and the expedition of the first day of hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The wife opposes that application.

2. On 26 October 2017 Senior Registrar FitzGibbon made orders that the husband file and serve any summary of argument in bullet point form in support of his application for expedition by 9 November 2017 and that the wife file and serve a document indicating her support of or objection to the application for expedition within seven days of receipt of the husband’s summary of argument.

3. The husband filed submissions in support of his application on 3 November 2017. The wife filed submissions opposing that application on 10 November 2017.  Although the wife’s submissions are headed “Summary of Argument in Support of Application For Expedition…” that is presumed to be an error given the tenor of the argument contained in the document.  The Independent Children’s Lawyer has not filed any submissions.

4. These are my reasons for judgment with respect to the husband’s application for expedition.

Background

1. The parties married in 2004 and separated in June 2016.

2. There is one child of the marriage, B (the child), who is aged 9 years.

3. The substantive proceedings concern both parenting and property matters.

4. In 2016 the husband was diagnosed with pancreatic cancer.  The parties separated approximately two months after that diagnosis.

5. The husband commenced proceedings in this Court in September 2016.  In his Amended Initiating Application filed 15 November 2016 the husband seeks final orders that:-

   ·    The parties have equal shared parental responsibility of the child;

   ·    The child live with the wife;

   ·    That the husband be excused from particularising final parenting orders sought pending release of the Section 11F report;

   ·    That the father be excused from particularising the final property orders sought pending full and frank disclosure.

6. The husband also sought interim parenting orders in that application.

7. In her Amended Response to Initiating Application filed 24 October 2017 the wife seeks final orders that:-

   ·    The parties have equal shared parental responsibility of the child;

   ·    The child live with the wife;

   ·    That she be excused from particularising final parenting orders sought pending information from the husband as to his medical condition, treatment regime and prognosis;

   ·    That she be excused from particularising the final property orders sought pending disclosure.

8. Pursuant to consent orders made on 1 March 2017 the parties and the child attend upon Ms C for therapeutic counselling.

9. Ms D, Psychologist, has prepared a family report dated 3 October 2017. 

10. Following the release of that report, interim parenting orders were made by Senior Registrar FitzGibbon on 26 October 2017.  Those orders provided at paragraph 2 for the child to spend time with the husband each Tuesday and Thursday from the conclusion of school until 6:00pm and each Sunday from 12:00pm and 5:00pm. They also provide that all extant interim applications be dismissed and the matter be placed in the list of cases awaiting allocation to a judicial docket. Further orders were made which provide:

    3.That any changes to the husband’s time stipulated in paragraph 2 above to be subject of consultation with Ms C, counsellor at the next therapeutic counselling session.

    4.That the parties continue to engage with Ms C pursuant to order 6 made 1 March 2017 and follow all reasonable directions of Ms C with respect to her therapy.  

11. The orders also provide that the parties have liberty to apply in the event the recommendations of Ms C are not adhered to.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. In determining such application the Rules provide 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. As to the question of whether the husband has acted reasonably and without delay in the conduct of the matter, the husband submits that he filed his Initiating Application “as soon after his health allowed him to, following not having had contact with the child of the marriage since separation in June 2016”. He also submits he has made further applications when required and complied with the arrangement between the parties to liaise with Ms C to facilitate his time with the child.

2. In response the wife submits that the husband has failed to make disclosure of a number of his financial interests in a timely fashion. She submits that the husband did not disclose an interest in a property in E Town and that that interest was only revealed after her solicitors conducted a title search of the property and Probate search. This issue is not raised in the submissions of the husband and he has not had the opportunity to reply to those matters.  Until such time as the evidence of the parties is tested the Court is not in a position to make any findings with respect to the wife’s allegations.  Further, in my view they are not matters necessarily relevant to the question of whether the husband has acted reasonably and without delay in the conduct of the proceedings.

3. Given that the husband’s Initiating Application was filed within three months of the parties’ separation, and he has complied with the Senior Registrar’s orders with respect to filing of his submissions in support of this application, I accept the submission that he has acted reasonably and without delay in the conduct of the matter.

4. The wife makes no submission as to any prejudice she will suffer in the event that the proceedings are expedited.  In the circumstances I am satisfied that there is no prejudice to the wife in the event that the proceedings are expedited.

5. The principal question for consideration is whether pursuant to r 12.10A(2)(d) of the Rules, there are relevant circumstances that persuade the Court to give this matter priority to the possible detriment of other cases (emphasis added). 

6. Rule 12.10(4)(a) of the Rules states that a relevant circumstance includes whether the age, physical or mental health of a party or witness would affect the availability or competence of a party or witness.

7. The husband submits that his ill health is a circumstance relevant to the determination of whether the matter should be afforded priority over other cases. The affidavit of the husband’s treating oncologist, Dr F filed 25 October 2017 confirms that the husband has metastatic pancreatic cancer. 

8. In her report dated 19 October 2017 which is annexure KW-01 to that affidavit Dr F notes that:-

   In August of this year [the husband] had imaging showing disease progression and he has undergone a change in his chemotherapy regimen and is responding on clinical grounds extremely well…His liver function tests have improved and his tumour marker has dropped precipitously.

9. In the penultimate paragraph of that report Dr F observes that:

   [The husband] is continuing on second line chemotherapy about to commence his fifth dose of treatment.  It is hard to predict how long his tumour will continue to respond to this line of therapy but [she] would be hopeful it would be several months from here…

10. The wife makes no submission with respect to the husband’s health issues and their potential to impact on the husband’s availability or competence to participate in the proceedings.

11. Having regard to the evidence of Dr F I accept the submission that the husband’s illness is a relevant circumstance in the determination of his application for expedition.

12. Neither party submits that Rule 12.10(4)(b) or (c) of the Rules are relevant to the determination of the husband’s application.

13. The husband submits that the continuation of the proceedings and the lack of a final determination has exacerbated the conflict between the parties and adversely impacted upon his health.  He notes that with each interim hearing his time with the child has been increased. The husband makes no submission as to how the current interim orders are causing the husband hardship.

14. While waiting for a trial date may result in conflict between the parties, this is a usual feature of most disputes and is not unique to this case.  The husband does not identify the evidence relied upon by him in support of his submission that the lack of a final determination is impacting on his health.

15. The report of Dr F dated 25 May 2017 annexed to her affidavit filed 26 June 2017 notes that the husband’s mental health is “excellent and it has certainly improved dramatically since regular access visits with his daughter”.  The evidence contained in her most recent report dated 19 October 2017 notes that the husband is responding well to chemotherapy.

16. The wife submits that the continuation of interim orders allows for a flexible approach “given the changing circumstances of the [husband’s] medical condition”.  The wife is critical of the failure of the husband to provide evidence of his chemotherapy regime, palliative care plan or general medication regime.  Nonetheless, the wife acknowledges the husband’s “declining health”, noting the need for flexible parenting arrangements given that circumstance.

17. The wife also places reliance upon the recommendations contained in the family report prepared by Ms D filed 3 October 2017.  At paragraph 103 of that report Ms D recommends that:-

    ·    The parents give thought to the necessity for and efficacy of ongoing Court proceedings.  They may wish to consider finalising the matter with orders requiring them to continue their attendance upon [Ms C] whilst they remain engaged in the therapeutic process with [Ms C].

    ·    Alternatively, if the matter remains before the Court, consideration be given to a lengthy adjournment period of at least six months but ideally twelve.

    ·    During this period, the parents and the child continue their attendance upon [Ms C], as directed by her, and focus on a therapeutic resolution.

    …

18. I accept the wife’s submission that the current interim orders do provide flexibility and create a mechanism for the child to spend further time with the husband if recommended by Ms C. It is not the case, as the father suggests, that the parties must continue to attend Court to seek further interim orders. Rather it is open to the parties to adopt the recommendations of Ms C regarding the husband’s time with the child. Consequently I am not satisfied that the continuation of the interim orders is and of itself causing the husband hardship.

19. Rule 12.10A(4)(e) of the Rules provides for consideration of whether the purpose of the case will be lost if it is not heard quickly. The husband submits that whilst he has responded well to treatment, the nature of his cancer is that it is “aggressive and fatal” and as such the purpose of the parenting proceedings will be rendered nugatory if they are not expedited. The wife makes no submission with respect to this consideration.

20. Rule 12.10A(4)(g) of the Rules provides for consideration of whether an expedited trial would avoid serious emotional or psychological trauma to a party or child of the case. It is submitted by the husband that an expedited hearing would “avoid the parties and the child being involved in further proceedings and involvement with report writers and the such”.

Conclusion

1. In my view the most significant factor which supports the expedition of the proceedings is the husband’s terminal illness.  The evidence of his treating oncologist highlights the uncertainty of his prognosis.  In her report dated 19 October 2017 Dr F expressed hope that the husband would continue to respond to the second line chemotherapy treatment for several months.  The reality is that without expedition, there is concern given the nature of his illness as to the husband’s ability to participate meaningfully in the proceedings.  Both the husband and the wife will likely be prejudiced if the husband’s illness precludes him from participating in the proceedings.

2. Whilst I am mindful of the recommendations of Ms D as to the efficacy of the parties continuing to engage in therapeutic processes, the reality is that the husband who has a terminal illness seeks finality in the proceedings, both with respect to parenting and property matters.  Ms D recommended that the proceedings be adjourned for a period of six to twelve months.  That recommendation was made almost four months ago.  The reality is that even with expedition, the trial will not be listed until at least six months after the date of Ms D’s report.

3. Accordingly having regard to those matters I am satisfied that this matter should be afforded priority to the detriment of other cases awaiting hearing.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 February 2018

Associate: 

Date:  7 February 2018