HABER & AHCRAFT

[2009] FamCA 838

FAMILY COURT OF AUSTRALIA

HABER & AHCRAFT [2009] FamCA 838

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

Family Law Act 1975 (Cth)

APPLICANT: Ms Haber

RESPONDENT: Mr Ahcraft

FILE NUMBER: MLC 1744 of 2009

DATE DELIVERED: 4 AUGUST 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: PEARSONS BARRISTERS & SOLICITORS PTY LTD

Orders

1. That all extant applications be referred to the Co-ordinating Registrar to be listed on a date to be fixed as soon as possible for procedural orders to be made for the first day before a trial judge and for the matter thereafter to be given a final hearing date.

2. That my reasons for judgment this day be brought to the attention of the Co-ordinating Registrar.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1744  of 2009

MS HABER

Applicant

And

MR AHCRAFT

Respondent

REASONS FOR JUDGMENT

1. I am dealing in Chambers with an application by the mother for an expedited hearing.

2. The case involves a child of the parties, a daughter, who was born in April 2004.

3. The mother desires to relocate to Queensland to be with her partner.

4. Senior Registrar Fitzgibbon made orders for the applicant to seek a priority hearing and for any responding material to be filed 7 days later.

5. The mother said that her “partner” has been in Queensland since 2006 and that the child had to start school in 2010. Her preference is clearly Queensland.

6. The Family Consultant in the case reported that there is a long-standing conflictual relationship between the parents and that lack of resolution of the proceedings may be detrimental to the interests of the child.

7. There are existing orders for the father to spend time with the child from Friday to Monday in one week and Wednesday to Friday in the alternate week.

8. The father has now sought orders for a week-about arrangement. The mother’s position is that she wishes to have the child live with her in Queensland.

9. The case has not been made any easier by the father’s current and amended application in which he has sought orders that if the mother desires to live in Queensland, she may do so and the child should live with him.

10. I do not have any material filed on behalf of the father.

11. On 11 June 2009, the Child and Parents Issues Assessment was released by Family Consultant Ms L. It said that the father and the child enjoy a close and loving bond but that his fear of losing the child is guiding his decision-making. Ms L said that the father lacks insight into the significant emotional pressure placed on the child. It puts in the position where the child is trying to please everyone.

12. The view of the Family Consultant was that the child is now better placed to manage the length of time between seeing the father if she moved to Queensland. What has been highlighted however is the inability of the parents to manage the conflict between themselves that would arise during the period of time of any adjustment if the child went to Queensland.

13. The Family Consultant pointed to the child’s primary attachment to her mother and without some abatement of the conflict and signs of an ability to co-operate in parenting, a week about arrangement here in Melbourne would not be in the child’s best interests. If that evidence is accepted by a Court, the range of proposals is significantly limited.

14. Without hearing the views of the father, it seems to me that this is a case that needs to be heard because of the pressure being applied to the child where her life is on hold. It is important for her future security and welfare that she has an opportunity to start school in 2010 without disruption.

15. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have its hearing placed ahead of other cases. Rule 12.10A applies but the applicant needs to satisfy the Court that there are relevant circumstances why that elevation should be given. 

16. I am satisfied there has been no delay on the part of the mother and that granting the application does not prejudice the father.

17. Rule 12.10A(4) provides some examples of what might be relevant circumstances. I am satisfied here that there are no issues of age or health or witness availability. However I am satisfied that an expedited trial may avoid serious emotional or psychological trauma to the child who is affected by the case. That justifies the case being placed ahead of others.

18. This is therefore a case which requires having an early first day before a Judge.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 August 2009