Ferucci and Denton

[2017] FamCA 746

FAMILY COURT OF AUSTRALIA

FERUCCI & DENTON [2017] FamCA 746

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

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 12.10A, 12.10A(1)

APPLICANT: Ms Denton

RESPONDENT: Mr Ferucci

FILE NUMBER: MLC 1785 of 2014

DATE DELIVERED: 22 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

SOLICITOR FOR THE RESPONDENT: Glenister Steinfort & Co

Orders

1.   That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Johns at 9.30am on 19 October 2017 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 notwithstanding applications/responses have already been filed:

(a)by 4.00 pm on 29 September 2017, 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 4.00 pm on 13 October 2017, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

4.   All parties file and serve a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 18 October 2017.  Such summary should be emailed to: ...

5.   That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

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.

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 Denton & Ferucci 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 1758 of 2014

Ms Denton

Applicant

And

Mr Ferucci

Respondent

REASONS FOR JUDGMENT

1. On 1 February 2017 the mother filed an Initiating Application seeking the discharge of final parenting orders made by consent on 1 May 2014 and seeking permission to move with the children to live in the B Town area, where she owns a home and wishes to establish a business. She also seeks that the children attend B Town Primary School.  The father in his Response to Initiating Application filed 17 March 2017 opposes the mother’s application to move with the children and seeks orders that his time with the children be extended.

2. The children the subject of the proceedings are C, aged 11 years and D, aged almost 9 years.  They currently live with the mother in Suburb E and are in Grade 5 and Grade 3 respectively.  They have attended the same school since the commencement of their primary education.  The father lives in a neighbouring suburb.

3. The orders made by consent on 1 May 2014 provide that:-

   ·    the father and mother to have equal shared parental responsibility for the children;

   ·    the children live with the mother; and

   ·    the children spend time with the father during school term from the conclusion of school on Friday until 5pm Sunday each alternate weekend, from the conclusion of school on Wednesday until the commencement of school on Thursday each week, and for specified periods during the school term and long summer holidays and on special occasions.

4. The matter was listed for directions before Registrar Lethbridge on 20 March 2017.  That day orders were made adjourning the matter to enable determination of whether the proceedings should be expedited.   Directions were made for the parties to file submissions with respect to the question of whether the matter should be afforded priority.  Paragraphs 4 and 5 of the orders made provided as follows:-

   4.All parties file the documents required by these orders by email to the Associate to the Honourable Justice Macmillan …

   5.Unless her Honour determines otherwise, the determination of the issue of priority be heard and finalised in chambers.

5. Notwithstanding the specific order as to the filing of documents by email, neither party complied with that direction, instead filing submissions via the Court portal.  As a result the matter was not directed to the Chambers of the Case Management Judge for consideration until receipt of an email from the mother’s lawyers dated 3 August 2017.

6. These are my reasons for judgment in respect of the mother’s application pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”) to expedite the first day of hearing before a Judge.

Legal principles

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

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

   (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’s submissions in support of her application for priority were filed on 3 April 2017. They do not address the matters contained in r 12.10A of the Rules. Nonetheless, it is clear that the mother has acted reasonably and without delay. The orders requiring the filing of her submissions by 3 April 2017 were complied with, albeit that they were not filed in the manner directed.

2. The father’s submissions filed 10 April 2017 have also been filed in accordance with the timetable provided in the orders of 20 March 2017, although also not filed in the correct manner.  Those submissions confirm the father’s support for the mother’s application that the proceedings be heard and determined before the end of 2017.  Hence, I am satisfied that there would be no prejudice to the father if I were to accede to the mother’s application for priority.

3. The submissions of both parties focus on the merits of their substantive applications rather than the matters contained in r 12.10A of the Rules. I do not propose to deal with those matters which will be dealt with at the final hearing.

4. The mother submits that the current school year concludes on 22 December 2017.  If she succeeds in her application to move to B Town, it will be necessary for the children to change schools.  The 2018 school year commences on 30 January 2018.  The mother seeks an expedited hearing to ensure that the question of where the children live and which school they attend is resolved prior to the commencement of the new school year.  The father agrees that the parties competing applications should be determined before the end of 2017.

5. The children face continuing uncertainty as to their future schooling arrangements whilst these issues are unresolved.  Such uncertainty is contrary to the children’s best interests.  I am satisfied that an expedited hearing will limit the emotional and psychological impact of these proceedings upon the children.  It will also minimise any disruption to the children to ensure that in the event of a change of school such change may be effected at the conclusion of the school year rather than during the next school year.

6. Further, whilst the matter awaits a trial the mother is unable to advance her future plans with respect to her proposed business; there is a potential that delay in the determination of the matter will visit financial hardship upon the mother and therefore the children. 

7. In the circumstances I am satisfied that it is appropriate that this matter be afforded priority.

ORDERS

1. The orders I make are as follows:-

   1.   That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Johns at 9.30am on 19 October 2017 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 notwithstanding applications/responses have already been filed:

   (a)by 4.00 pm on 29 September 2017, 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 4.00 pm on 13 October 2017, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

   4.     All parties file and serve a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 18 October 2017.  Such summary should be emailed to: ....

   5.     That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

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.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 September 2017

Associate: 

Date:  22 September 2017