Graham and Bennett

[2017] FamCA 609

FAMILY COURT OF AUSTRALIA

GRAHAM & BENNETT [2017] FamCA 609

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Mr Graham

RESPONDENT: Ms Bennett

FILE NUMBER: MLC 1108 of 2017

DATE DELIVERED: 16 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marcou & Associates Pty Ltd

SOLICITOR FOR THE RESPONDENT: Hartleys Lawyers

Orders

1. All extant applications for final orders are listed to a TRIAL MANAGEMENT HEARING before the Honourable Justice Macmillan at 4 September 2017 for the purposes of listing the matter for final hearing.

2. The parties and if represented, their legal practitioners, attend the trial management hearing.

3. Notwithstanding any applications/responses that have already been filed:

   (a)       by 4.00 pm on 22 August 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 29 August 2017 the Respondent file and serve on all other parties an amended response setting out with precision the orders to be sought at trial.

4. All parties, including the Independent Children’s Lawyer, if one has been appointed, file and serve on all other parties a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 31 August 2017. Such summary should be emailed to: ....

5. At the trial management 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.

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 Graham & Bennett 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 1108  of 2017

Mr Graham

Applicant

And

Ms Bennett

Respondent

REASONS FOR JUDGMENT

1. The mother, who is the respondent in this case, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is opposed by the father. The mother relies upon her Summary of Argument dated 2 July 2017 pursuant to orders made by Registrar Sudholz on 14 June 2017. The father relies upon his summary of argument dated 7 July 2017.

2. This matter concerns the parenting arrangements for the child of the relationship B born in 2002 (aged 14 years) (“the child”). The proceedings were commenced by way of the father’s Initiating Application filed 8 February 2017 where he seeks, inter alia, that the parents have equal shared parental responsibility, that the child live with the mother and that she spends significant and substantial time with the father.  The mother is seeking to relocate to Canada with the child to care for the maternal grandmother, who is in very poor health.

3. The parties give conflicting information as to the nature and details of their relationship. The father, in his Initiating Application indicated that the parties commenced co-habitation in September 2002 and separated in around 2005. In his Affidavit in support of that application, he states that the parties commenced co-habitation in 2001 and the mother became pregnant at the start of 2002 at which time the mother ended the relationship.  The mother’s Affidavit in support of her Response filed 11 April 2017 indicates that the parties commenced a de-facto relationship in around October 2000 and separated in January 2003. While there are inconsistencies with regard to the dates, it is not in dispute, albeit the parties do not agree upon the reasons why that is so.  The mother deposes that the father has only seen the child on three occasions and spoken to her on four occasions in the last 14 years and has not made a genuine effort to have a relationship with the child. The father deposes that he is a victim of parental alienation and has made every effort to spend time with the child and that she has been left in his care on a number of occasions, but does not give any more detail as to the nature and frequency of this.

Legal Principles

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

   (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 submits that the circumstances in support of an expedited final hearing are as follows:

   ·the mother is seeking to relocate to Canada with the child and the continuation of proceedings is causing the mother and child hardship;

   ·the mother is intending to care for her maternal grandmother who is in dire health. If the matter is not heard quickly, the purpose of the case may be lost;

   ·an expedited trial would avoid serious emotional or psychological trauma to the child, who would be distressed and experience grief if the mother’s maternal grandmother were to pass away or if the mother had to return to Canada without the child;

   ·the father has spent very limited time with the child and has failed to make a genuine effort to have a relationship with her;

   ·the new school year in Canada commences in September 2017 and the child has expressed interest in finishing her schooling in Canada.

2. Although when the matter was listed before Registrar Sudholtz on 14 June 2017 the parties both made submissions with respect to there being an expedited hearing the father now opposes this matter being afforded priority on the following basis:

   ·the mother’s grandmother has called the father, pressured and demanded him to withdraw his application and allow the child to relocate which reinforced his fear that the maternal family would sever his relationship with the child;

   ·the father is a victim of parental alienation and has made every effort to see the child;

   ·the parties are enrolled in C Contact Service awaiting availability for the father to spend time with the child;

   ·the father has had telephone contact with the child since April 2017 and continues to do so;

   ·the mother unilaterally applies for things without the father’s consent;

   ·relocation to Canada will sever the father’s relationship with the child.

3. Although the Court must consider the matters in r 12.10A(1) of the Rules the fact that this is an international relocation case is in my view a relevant consideration. As in cases such as these where there may be restrictions upon one of the parties’ freedom of movement they should in so far as it is possible to do so be dealt with expeditiously.

4. There is no suggestion that the mother has acted unreasonably or without delay in the conduct of the case. The mother acknowledges that the application for an expedited hearing was delayed. However, as explained in her submissions for an expedited hearing, the mother is on a grant of legal aid and had to await the outcome of her application made to Victoria Legal Aid for funding of a summary of argument, which is not within a standard grant. I accept that the mother filed her Summary of Argument at the earliest possible date and has not acted with delay.

5. I am also satisfied that despite the father’s submissions to the contrary that he will be prejudiced by the expedition of the final hearing. The focus of the husband’s submissions as to why the matter should not be expedited go to the very heart of the issues in this case and are matters that in my view need to be heard and determined. They are not matters about which I can make any findings.

6. The mother seeks to relocate to Canada to care for her maternal grandmother who is 87 years of age and suffering from ill health. The maternal grandmother is immobile and is cared for by nurses on a full time basis, which has depleted her funds to the point where they are almost exhausted. As such, the mother submits given how dire her health is, if the matter is not heard expeditiously the purpose of the case may be lost if the maternal grandmother were to pass away while the parties awaited the final outcome of the proceedings. In addition, if the mother had to return to Canada without the child, I am satisfied that this would cause the child hardship if she had to remain in Australia without the support of her mother. Even if the mother were permitted to take the child to Canada returning to Australia following her grandmother’s death this would be similarly disruptive for the child.

7. Lastly, as the Canadian school year commences in September 2017, it is in the child’s best interests to have the proceedings concluded as soon as practicably possible to allow her the maximum amount of time to settle into her new surroundings in Canada, if that is what the Court was ultimately to decide. Although even if the mother is permitted to relocate she is unlikely to be a able to start school in Canada in September in my view it is still in her best interests for there to be some certainty as to her future schooling whether that is to be in Australia or Canada. 

8. In all of the circumstances, I am satisfied that this matter should be afforded priority and I propose to list the matter for a Trial Management Hearing before me on 4 September 2017 with a view to listing the matter for final hearing as soon as practicable thereafter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 August 2017.

Associate: 

Date:  16 August 2017