Gatlin and Lance

[2019] FamCA 761

FAMILY COURT OF AUSTRALIA

GATLIN & LANCE [2019] FamCA 761

FAMILY LAW – PRACTICE AND PROCEDURE – application for expedited hearing – where the mother seeks the hearing be expedited and submits that the preparation of a family report is not required – application for expedition granted – no order for the preparation of a family report.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 12.10A, 15.51

APPLICANT: Ms Gatlin

RESPONDENT: Mr Lance

FILE NUMBER: MLC 1273 of 2019

DATE DELIVERED: 22 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lander & Rogers

THE RESPONDENT: Self-represented

Orders

1. That all extant applications for final orders be allocated to the judicial docket of Justice Williams for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

2. That all extant applications for final orders are listed to a Trial Management Hearing before the Honourable Justice Williams at 10.00am on 11 November 2019 for the purposes of listing the matter for final hearing.

3. The parties and if represented, their legal practitioners, attend the hearing.

4. In the event that a party has not already filed applications/responses:

   (a)by 4.00 pm on 29 October 2019 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 6 November 2019 the First Respondent file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

5. All parties file and serve a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 9 November 2019.  Such summary should be emailed to: ...

6. If discovery and disclosure has not been completed, each party by 4.00 pm on 8 November 2019 provide to the other party a list of all documents required for inspection and within 7 days thereafter, subject to any objection on the grounds of privilege, such documents be made available for and be inspected by the other party(ies).

7. To the extent that any party wishes to participate in any form of negotiation or mediation prior to the final hearing, arrangements be made prior to the first day of hearing.

8. 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.

9. That if there is no agreement as to the value of the mother’s immigration status in Australia and her entitlement to government benefits in Australia by 30 October 2019, the parties do all acts and things necessary to appoint and instruct such single expert as may be agreed by 6 November 2019 (“the Date”), and in default of agreement, the single expert chosen by the respondent within 14 days of receipt of a list of three suitably qualified experts nominated by the applicant, such list to be provided no later than seven days after the Date, and such list to include an estimate of each expert’s fees to provide that evidence.

10. The cost of the single expert is to be paid in equal shares by the parties.

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 Gatlin & Lance 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 1273 of 2019

Ms Gatlin

Applicant

And

Mr Lance

Respondent

REASONS FOR JUDGMENT

1. The mother is the applicant in these proceedings. In her Initiating Application filed 8 February 2019, she seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

2. On 21 May 2019 Senior Registrar FitzGibbon made the following orders (“21 May 2019 Orders”):-

   6.That this matter be placed in the list of cases awaiting allocation to a judicial docket with priority as and from this day, subject to order 7 herein.

   7.That the Amended Initiating Application of the mother filed 22 March 2019 and the Response to Initiating Application of the father filed 26 April 2019 insofar as final orders, and including for international relocation, is to be referred to the Administrative and Case Management Judge, Justice Johns in Chambers, to consider making trial directions for the matter to be set down for a 2-3 day duration final hearing but subject to the following being first attended prior to her Honour determining if trial directions and other orders are to be made:

   (a)by no later than 4 June 2019 the applicant mother prepare a submission in short bullet point form as to:

   (i)the precise issues requiring determination; and

   (ii)the evidence filed in the case; and

   (iii)most particularly whether or not any independent expert evidence is required, including but not limited to, a s62G Family Report or some other expert evidence, and/or evidence from other persons about any other matters to enable the issue at a trial to be determined and particularly if it is submitted no single expert evidence including a Family Report is necessary why not or if so how it may be done given travel, distance and cost NOTING internal s62G Family Reports are not available to commence in time for a trial in August/September; and

   send it to the Court at …  and to the respondent father; and

   (b)by no later than 11 June 2019 the respondent father respond to the mother’s submission including if he agrees or not and include any other matters relevant, and send it to the applicant mother and the Court at …; and

   (c)in the event of any new issue raised by the father, the mother reply by no later than 18 June 2019 and send it to the respondent father and the Court; and

   (d)otherwise the determination of listing and trial directions be done in Chambers without appearance unless her Honour determines otherwise and on notice to the parties.

3. The mother filed her submission pursuant to those orders on 24 May 2019. The mother’s application for expedition is confirmed in her Initiating Application filed 8 February, and considered in her affidavit filed the same day.

4. The father, who is self-represented, filed his submission in response on 16 August 2019, over two months after the due date provided for by order 7(b) of the 21 May 2019 Orders.  The mother has not objected to the late filing of those submissions.

5. These are my Reasons for Judgment in respect of the mother’s application for expedition and the parties’ submissions in relation to single expert witnesses.

Background

1. The mother is aged 26 and is currently unemployed. She is the primary carer of the parties’ child. The mother was born in United Kingdom, however she has citizenship in both the United Kingdom and New Zealand. The mother moved to Australia in 2015 to undertake a “gap-year” from her university studies.

2. The father is aged 31 and works in hospitality. He is an Australian citizen and currently resides in Suburb B.

3. The parties began living together in 2016, shortly after commencing a relationship. They separated on a final basis in November 2018. There is one child of the relationship, X, aged 2.

4. The mother initiated proceedings in the Family Court of Australia upon filing an Initiating Application on 8 February 2019. In her application she is seeking final parenting orders that enable her to relocate with the child to United Kingdom so that she may live with her parents, obtain financial assistance and have the support of family and friends.

5. On 29 March 2019 Registrar Moser made procedural orders requiring the father to file a Notice of Address for Service, a Response to Initiating Application and relevant affidavits. The matter was adjourned to 8 May 2019.

6. The father filed a Response to Initiating Application on 26 April 2019. In his response the father seeks the mother be restrained from relocating to United Kingdom with the child and that the parties engage in mediation to settle the issues in dispute.

7. The mother deposes that after the hearing on 29 March 2019, the father consented to the mother and the child travelling to New Zealand to live for the foreseeable future. The mother indicates she is living there with family, and intends to return to Australia as required by the Court.

8. The matter returned to Court on 8 May 2019 for a telephone mention before Registrar Moser. The proceedings were adjourned to the Senior Registrar’s Duty List for the determination of the “issues of parental responsibility, relocation of the mother and child to United Kingdom, spousal maintenance, a watchlist order and the father’s time with the child”.

9. On 21 May 2019, Senior Registrar FitzGibbon ordered that the child live with the mother. The orders further provided for the father to spend time with the child in either Australia or New Zealand, as agreed between the parties, noting that “the applicant proposes that it should be supervised, and the respondent does not consent to the need for supervision and seeks short periods of time”.

10. Orders were also made on that day which provided for the mother to make a submission to my Chambers to consider making trial directions for this matter, and as to whether or not a family report or other independent expert evidence is required.

Legal Principles

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

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

Application for expedition

1. Whilst the mother’s submission to the Court pursuant to the 21 May 2019 Orders is silent as to the requirements contained in r 12.10A(2), her affidavit filed 8 February 2019 addresses her application for expedition and the relevant considerations pursuant to r 12.10A(2)(a) - (c) of the Rules.

2. The father’s submissions filed 16 August 2019 were filed over two months late, and do not address the mother’s application for expedition. Further, the father does not address the mother’s application in any of the material he has filed to date.

3. The mother deposes she has acted reasonably and without delay as she made her application to this Court as soon as the father indicated that he would not allow the mother and the child to relocate to United Kingdom. The mother sought the expedition of the trial at the outset of the proceedings, as provided in her Initiating Application filed 8 February 2019. Pursuant to r 12.10A(2)(b) I am satisfied that the mother’s application for an expedited hearing has been made without delay.

4. I am also satisfied that the mother has acted reasonably and without delay in the conduct of the case. The proceedings commenced in February 2019 and the mother has generally complied with all orders and directions of this Court. Further, the mother complied with the filing of her submissions pursuant to the 21 May 2019 Orders. 

5. The mother also indicates that pursuant to r 12.10A(2)(c), there would be no prejudice to the father in having the matter expedited for a final hearing. In the absence of any evidence to the contrary, I am satisfied that there will be no prejudice to the father.

6. Rule 12.10A(2)(d) of the Rules requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

7. The mother’s application for expedition appears to be largely based upon financial hardship, as provided in r 12.10A(4)(c). This requires consideration of whether the mother is suffering financial hardship not caused by her that cannot be rectified by an interim order. The mother deposes that she is unemployed as she is the child’s primary carer. Further, as she is not an Australian citizen, she deposes that the only Government assistance that she is eligible for is a rental allowance payment of $230 per fortnight. The mother indicates that this is insufficient to provide rental accommodation, food and other necessities for her and the child.

8. The father deposes that further Government assistance would be provided if the mother applied for permanent residency in Australia. He asserts that as a result of her New Zealand citizenship, the mother would be eligible to apply for such assistance. The mother submits that the father has no qualifications that would enable him to provide an opinion as to her immigration status.  There is no evidence before me in relation to either of the parties’ positions. Whether or not the mother can obtain permanent residency in Australia and any Government financial benefits she could have access to as a result, is a matter for determination by the trial judge. Having regard to the mother’s evidence, it appears that at present the mother does not receive financial assistance to support her care for the child, which is a relevant consideration.  

9. The mother deposes that she does not currently receive financial support from the father. The father deposes that he has attempted to provide such support, but that the mother has ignored or rebuffed his attempts. As a result it appears that the father does not currently provide the mother with financial support, regardless of his intention to do so.

10. In addition, the mother submits that following the parties’ separation, she has been unable to obtain long-term accommodation for her and the child. The mother indicates that after “couch-surfing” in Melbourne for many months post-separation, the mother and the child have temporarily moved to New Zealand to live with family. The mother deposes that she receives $300 per week from her parents, however she says that not only is that not sustainable for her parents, it is also insufficient to meet the living expenses for her and the child if they must reside in Australia. The mother’s financial statement filed 15 May 2019 appears to support her position, albeit that that evidence remains untested.

11. The fact that the mother is unemployed, does not appear to be receiving financial support from the father, says she cannot obtain sufficient Government benefits and is reliant on her parents to provide financial assistance, are matters that support her position that she is suffering financial hardship pursuant to r 12.10A(4)(c)(i). I am satisfied that the mother’s financial hardship cannot be rectified by an interim order, as the father deposes that he has been “burdened by extreme financial distress”. In the absence of submissions from the father in response or a financial statement as to his financial position, it appears that the mother is receiving no financial support from the father. It is not clear if or when that situation will change.

12. Rule 12.10A(4)(b) provides that the Court may consider whether a party has been violent, harassing or intimidating to another party who is subject to these proceedings. The mother deposes that she has been subjected to family violence perpetrated by the father. It is detailed in her affidavit filed 8 February 2019, that the father has acted aggressively, threatened and yelled at the mother. The father denies all allegations of family violence and notes that no intervention orders are currently in effect. This is ultimately a matter for consideration by the trial judge. However, the mother’s allegations support the making of orders for an expedited hearing as it is in the child’s best interests to have those matters finally determined as soon as possible.

13. Rule 12.10A(4)(g) provides that the Court may consider whether an expedited trial would avoid serious emotional or psychological trauma to a party or child the subject of the proceedings. The mother deposes that she has limited family and friends in Australia to provide support, and receives little financial assistance. The mother indicates that the lack of emotional and financial support causes her significant stress and anxiety. The mother deposes she has been prescribed antiviral medication because of “stress and constantly grinding [her] jaw which is impacting on [the mother’s] overall health”. As a result, the mother says that the child’s well-being is being compromised.

14. Ultimately the question of what supports are available to the mother in Australia are issues for determination by the trial judge. Additionally, the mother has provided no evidence to support her position that she or the child are suffering serious emotional or psychological trauma. Nonetheless, I accept that protracted proceedings are likely to affect the health and well-being of both parties and the child.

15. The most persuasive factor in determining whether to expedite the matter is that it is an international relocation case which concerns the question of one party’s freedom of movement. Where practicable, such matters should be heard and determined expeditiously.

16. Having regard to all of the above matters, I am satisfied that it is undesirable for the mother and the child to remain in a state of uncertainty regarding their future living arrangements. This is particularly so given the mother and the child are currently residing in temporary accommodation in New Zealand pending the outcome of these proceedings. Accordingly, I propose to expedite the matter and order that it be allocated to a judicial docket as soon as is practicable.

Requirement of expert witnesses

1. The 21 May 2019 Orders directed the mother to prepare submissions to the Court detailing the issues in dispute, the evidence filed and whether or not any independent expert is required.

2. The mother details the issues that remain for determination by the Court as follows:-

   ·    Whether the mother and the child are permitted to relocate to United Kingdom;

   ·    The time the father spends with the child in the event the child relocates or in the event the child lives elsewhere;

   ·    The appropriate conditions, if any, for the father’s time with the child; and

   ·    Parental responsibility for the child.

1. The mother submits that for the final hearing she will rely on a trial affidavit, a financial statement and an affidavit from her father, Mr Gatlin.

2. In the father’s submissions filed 16 August 2019, the father indicates that the issues requiring determination include the following:-

   ·    Whether it is in the child’s best interests for the mother and the child to be permitted to relocate to United Kingdom;

   ·    Parental responsibility for the child; and

   ·    Whether the mother is acting with regard to the child’s best interests, particularly considering the child’s right to enjoy a meaningful relationship with both parents.

3. The father also indicated that at the final hearing he would rely on a trial affidavit, a financial statement and an affidavit from his mother, Ms Lance. The father also submitted that he wishes to provide independent expert evidence regarding the “true immigration status of the applicant mother”.

4. In the mother’s submission she indicates that a section 62G family report is not required in this case due to the nature of the proceedings. The mother submits that the child is two years of age and is unable to communicate with a family consultant. Further, the question of the child’s primary attachment or with whom the child will reside with is not in issue. In addition, the child has not spent time with the father for many months and is unlikely to do so prior to the final hearing. The mother submits that the matter will not be advanced by a family report.  She submits that the issues will be determined at trial through cross-examination of witnesses. The mother also submits that neither she nor the father are in a position to pay the costs of a private family report. Additionally, the mother indicates that it would be impractical to make the arrangements to prepare a family report, given the mother and the child do not currently reside in Australia.

5. Pursuant to section 62G(2) of the Act, the Court may direct a family consultant to give the Court a report on such matters relevant to the proceedings as the Court thinks desirable. Whether a family report is obtained is usually a question to be determined by the trial judge following allocation to a judicial docket.   

6. A family report is an important piece of evidence in which a family consultant will undertake independent observation of both the mother and the father.  If the family consultant considers it appropriate, they will also have the opportunity to undertake observation of the child with both the mother and the father. The family consultant may also undertake all necessary enquiries of other professionals in the child’s life; for example, if considered appropriate, health care providers or other experts who play a role in this family’s life. 

7. Having regard to the circumstances in this matter, I am satisfied that there is little utility in directing the preparation of a family report for the finalisation of these proceedings. In circumstances where the child is of a very young age and has not spent significant time with the father since separation, I accept the mother’s submission that a report will do little to assist the Court in making a determination as to the child’s best interests.  It is undisputed that the mother is the primary carer of the child and that the father currently spends no time with the child, except by agreement. 

8. Further, as the mother and the child are currently residing in New Zealand on a temporary basis, the preparation of a report would only cause further financial hardship to the parties. As a result, having regard to the mother’s submissions and absent any submissions on behalf of the father in consideration of this issue, I do not consider that a family report is required to enable a determination of the child’s best interests.

9. The mother also seeks permission from the Court pursuant to r 15.51(1) to adduce evidence from C Lawyers in relation to her immigration options.  The father seeks that an independent expert give evidence as to the mother’s “immigration status”.

10. In relation to an application for permission to adduce evidence from an expert witness, she must do so in accordance with r 15.52 of the Rules, as outlined below:-

    1)A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.

    Note 1: A party who files an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02(1)).

    Note 2: The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01).

    2)The affidavit filed with the application must state:

    (a)whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;

    (b)the name of the expert witness;

    (c)the issue about which the expert witness’s evidence is to be given;

    (d)the reason the expert evidence is necessary in relation to that issue;

    (e)the field in which the expert witness is expert;

    (f)the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and

    (g)whether there is any previous connection between the expert witness and the party.

11. The mother’s submission addresses the matters in r 15.52(2). The mother indicates the name of the witness, Ms D, and submits that she will give evidence in relation to the mother’s immigration options. The mother submits the expert evidence is necessary to refute the father’s assertions in relation to the mother’s ability to obtain permanent residency and thus any resulting Government benefits she may receive. As the financial position of the mother is a central issue, the mother submits the expert evidence is highly relevant to her application.

12. However, the mother does not appear to have consulted the father in an attempt to agree on the appointment of a single expect witness in relation to the opinion of the mother’s immigration options (r 15.52(2)(a)).  In the father’s submissions he also seeks to appoint an expert witness, in order to ascertain the “immigration status” of the mother.

13. Given that it appears to be common ground between the parties that such evidence is required, in my view such evidence should be given by a single expert.

14. Rule 15.44 of the Rules sets out the orders the Court may make with respect to the appointment of a single expert.

15. Absent agreement between the parties within seven days as to the identity of the expert to be appointed, I propose to make orders requiring the applicant to nominate three experts (such nomination to include details of the fees charged by each expert) and the respondent to nominate one expert from that list within 14 days of receipt of the same.

The orders

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 October 2019

Associate: 

Date:  22 October 2019