Fredericks and Fredericks

[2014] FamCA 242

FAMILY COURT OF AUSTRALIA

FREDERICKS & FREDERICKS [2014] FamCA 242

FAMILY LAW – Priority hearing granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Fredericks

RESPONDENT: Ms Fredericks

FILE NUMBER: MLC 3071 of 2013

DATE DELIVERED: 15 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

SOLICITOR FOR THE RESPONDENT: In person

Orders

That upon reading the written submissions seeking priority under Rule 12.10A

IT IS ORDERED:

1. That the application for an expedited hearing is granted.

2. That all outstanding applications are referred to the Honourable Justice Bennett as soon as practicable.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3071  of 2013

Mr Fredericks

Applicant

And

Ms Fredericks

Respondent

REASONS FOR JUDGMENT

1. By written application in the form of a submission filed electronically on 25 March 2014, Ms Fredericks sought an order that her application in this Court be expedited to a first day before a judge.

2. The application arises out of orders made in chambers by Registrar Mestrovic on 18 March 2014.  Mr Fredericks who is represented by solicitors filed a responding submission indicating that he did not oppose the mother’s application.

3. This is a parenting dispute involving a boy aged 10 who is currently residing with the father in Australia.  The mother resides in the Country B with the other child of the parties’ relationship who is now 16 years.

4. There have been proceedings in the courts in C State and orders were there made.  It would appear that those orders have not been followed.  The file indicated the disputes by both parties as to exactly what has happened and findings of fact will no doubt have to be made. 

5. The proceedings began in the Federal Circuit Court and interim orders were made in September 2013.  The jurisdiction to make those orders might be questionable but in any event, the proceedings were transferred to this Court which is now seized of it.

6. The mother is the respondent in the substantive proceedings and it would seem that the applicant father wants parenting orders that are inconsistent with the orders made in the C State court.

7. One of the orders made by the Federal Circuit Court was for a family report to be prepared and the appointment of an Independent Children’s Lawyer.  The family report looked at the social science issue but on a cursory reading of it, it would seem that the expert is of the view that the child should remain in Australia.  There are more issues than that to consider here.

8. Despite the apparent lack of enforcement of the orders of Country B for some time, I propose to grant the application for an expedited hearing because the family report has already been prepared and the child is now well aware that he is embroiled in a dispute where two courts are looking at the same problem but with different perspectives.  It is not in the child’s interest for the matter to be delayed any longer.  He can only be confused about his future but at the same time, is not having what was otherwise apparently his designated time with his mother in the Country B.

9. Rule 12.10A(1) of the Family Law Rules 2004 provides that a party may apply to expedite the first day before a judge and, upon considering that application, the Court may take into account a number of matters set out in sub-rule (2). Those include things relating to the way in which the parties have approached the expeditious disposal of their case. There is also the consideration of whether or not there would be any prejudice to the respondent. In this case, the respondent urges an expedited hearing as well.

10. In a parenting case, the Australian legislation requires that the Court consider the welfare of the child as the paramount consideration.  That does not mean it is the only consideration but the Court’s focus will be on the interests of the child.  I am unclear whether a jurisdictional argument is to be raised.  If it is, it needs an expeditious determination.

11. An important consideration set out in the rules also is whether or not there are any relevant circumstances justifying the case being given priority to the detriment of other cases.  There is little doubt that by expediting this hearing, particularly as it has already had some months in the Federal Circuit Court, the parties will wait a considerable period if it is not placed ahead of other cases in this Court. 

12. The relevant circumstances must be examined within the light of the description in the Family Law Rules. The rules provide:

    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.

13. If the Court is satisfied that some or all of the criteria apply and it or they justify the case being given priority to the possible detriment of other cases, the rules provide for a discretionary determination to

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

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

14. I am satisfied that this is not so much a relocation case but the question of whether or not this Court is obliged, or should, follow the decisions of the Country B court.  There is no prejudice in those circumstances to the father because apart from wanting the hearing conducted, he is well aware that the issue is also about his obligations in the Country B.  There is no suggestion here that witnesses are unavailable and there is an extant family report.  This is not a case in which interim orders could resolve the problem bearing in mind the mother is currently in the Country B.

15. I accept that there are numerous cases in this Registry that require a hearing and the Court’s resources are finite.  Using the rules to contemplate this particular case, I am of the view that it does warrant being granted priority over other cases because of the delays that have already occurred, the ongoing unresolved issue of whether or not the Country B court should be the relevant orders to determine the obligations of both parties and the fact that the child is aware that his parents are competing for his time.  Accordingly, I propose to expedite the first day before a judge whilst leaving it to that judge to determine when it should be heard.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 April 2014.

Associate:

Date:  15 April 2014