Gaswell & Moppet

[2008] FamCA 909

FAMILY COURT OF AUSTRALIA

GASWELL & MOPPET [2008] FamCA 909

FAMILY LAW – PRACTICE AND PROCEDURE – Application for Expedited hearing – whether exceptional circumstances – application refused

Family Law Rules 2004 (Cth)

APPLICANT: Mr Gaswell

RESPONDENT: Ms Moppet

FILE NUMBER: MLC 1726 of 2008

DATE DELIVERED: 29 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Chambers

JUDGMENT OF: Cronin J

HEARING DATE: In Chambers

WRITTEN SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Mackinnon Jacobs Horton & Irving Pty Ltd

SOLICITOR FOR THE RESPONDENT: Anderson Partners

Orders

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

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change including if the parties so wish, an application for transfer to the Federal Magistrates Court of Australia.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1726  of 2008

MR GASWELL

Applicant

And

MS MOPPET

Respondent

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings. Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about the alteration of existing final parenting orders.

3. The proceedings began with an application by the father filed on 27 February 2008 seeking that final parenting orders, made by consent on 9 September 2006 in respect of D born in August 1995 and R born in July 1998, be discharged and that an equal time arrangement be put in place.

4. The mother filed a response on 27 March 2008 seeking that the final parenting orders be altered to reflect the current arrangements, but that otherwise the time spent with each parent remain the same as the 9 September 2006 orders.

5. The father’s application for a change of contact in the interim was dismissed by Senior Registrar Fitzgibbon on 21 April 2008 and the father has now brought an application to expedite the hearing.

The Rules

1. In order for the matter to be listed with urgency and placed ahead of others in the pool of cases awaiting final hearing, exceptional circumstances must be present.

2. The Family Law Rules 2004 (Cth) provide in what circumstances the court will order that a case’s progression to final hearing will be expedited. Rule 16.01 (2) provides:

         (2)         The court may take into account whether:

   (a)the applicant has acted reasonably and without delay in the conduct of the case;

   (b)the application has been made without delay; and

   (c)there is an exceptional circumstance in which the case should be given priority to the possible detriment of other cases.

3. In this application the major issue is whether there is any exceptional circumstance.

4. In determining whether there is “an exceptional circumstance” the rules further provide at 16.01(4) that:

     (4)         For paragraph (2) (c), an "exceptional 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, that would affect the availability or competence of the party or witness;

   (b)whether a party has been violent, harassing or intimidating to another party or a witness;

   (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 the children 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.

5. As further guidance to what circumstances warrant an expedited hearing, the Case Management Directions provide an illustrative list of what a “special reason” may be, largely reflecting what was considered by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 to be relevant to this type of application.

The Submissions

1. The father’s summary of argument sets out the background to the application for final orders and seeks to justify why a change in parenting orders should be made. These factors are not relevant unless they demonstrate some exceptional circumstance. The father argues that the exceptional circumstance is that the eldest child is 13 and “as such is coming to the age where court Orders may be difficult to implement” and that before such a time comes, the father wishes to have a contact regime in place to give the children the “benefits of [the father] being meaningfully involved in her life, to the maximum extent”.[1] This does not demonstrate a special feature.

   [1] Father’s Summary of Argument in support of application to expedite the final hearing

2. It is further put by the father that the age of the children, combined with the length of the delay until final hearing “greatly disadvantages the father in his attempts to further develop his relationship with both children and is detrimental to the best interests of the children and contrary to the children’s rights”.[2] The rules for determining whether the circumstances warrant an expedited hearing are not in reference to the best interests of the child generally. The applicant must, for example, establish that the delay in hearing would cause hardship to the child or to the applicant rather than inconvenience, or a less than “meaningful” relationship between parent and child. The father does not argue that there is not currently a meaningful relationship with the children but rather that the current parenting orders are not what he wants.

   [2] Father’s Summary of Argument in support of application to expedite the final hearing

3. The father also argues that the lack of finality in parenting arrangements is not in the best interests of the children. First, final parenting orders are in place and contact is taking place in accordance with them. To that extent there is no lack of finality. Secondly the father has not demonstrated, according to any of the illustrative factors provided for in the rules or in the Practice Directions, that this case has any special feature or exceptional circumstance which should give it priority over other cases awaiting final hearing.

4. The mother argues that there is nothing exceptional, special or unusual about this case which warrants expedition of the final hearing.

5. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases. The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given. “Special reasons” mean what it says namely something unusual or out of the ordinary.

6. In Braham v Braham (Supreme Court of New South Wales Equity Division, 27 April 1987) McLelland J confirmed the importance of considering the other cases which would be potentially disadvantaged by a case being expedited. In that case his Honour said:

   An application for expedition is not so much if at all a contest between parties as a contest between a party or parties seeking expedition on the one hand and the other litigants in other cases in the list on the other. The latter class is not represented, so that the court has to in effect protect its interests in considering whether to expedite a particular case.

7. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual or special about the case to warrant expedition to the potential disadvantage of other cases. Accordingly, the application is refused. I propose to also make an order that the case await a listing for final hearing before a judge. As usual the parties have liberty to apply should the circumstances change and in particular, if they consider that the case may benefit from being heard in the Federal Magistrates Court of Australia where defined hearing dates are given from the first listing, they may apply to a registrar of this Court for that transfer. If the transfer is opposed, the respondent to the transfer would need to be cautious from a costs point of view to be not seen to be adopting a delaying approach for some tactical reason.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  29 October 2008