HOEFNER & TERN

[2010] FamCA 1242

FAMILY COURT OF AUSTRALIA

HOEFNER & TERN [2010] FamCA 1242

FAMILY LAW – PRACTICE AND PROCEDURE – Expedited hearing – application granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Hoefner

RESPONDENT: Mr Tern

FILE NUMBER: MLC 8864 of 2010

DATE DELIVERED: 14 DECEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: CRONIN J

HEARING DATE: 14 DECEMBER 2010

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: FORTE FAMILY LAWYERS

SOLICITOR FOR THE RESPONDENT: HOGG & REID

Orders

IT IS ORDERED:

1. THAT all outstanding applications be adjourned for final hearing before Justice Mushin on 4 April 2011 at 10.00 a.m.

2. THAT Registrar Mestrovic be responsible for the management of the case.

3. THAT by 4.00 p.m. on 4 February 2011 the applicant mother file and serve:

   a.an amended application setting out with precision the orders to be sought;

   b.the affidavits of evidence in chief of all witnesses relied upon; and

   c.a financial statement that complies with Chapter 13 of the Family Law Rules.

4. THAT the applicant pay all required trial fees by 4.00 p.m. on 4 February 2011.

5. THAT by 4.00 p.m. on 18 February 2011 the respondent father file and serve:

   a.an amended response setting out with precision what orders are being sought;

   b.the affidavits of evidence in chief of all witnesses relied upon;

   c.a financial statement that complies with chapter 13 of the Family Law Rules.

6. THAT all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

7. THAT the parties attend upon a family consultant of the Court for the purposes of the preparation of a family report which is not to be commenced before 25 February 2011.

8. THAT the designated report writer have access to all affidavit material filed by the parties.

9. THAT pursuant to section 68L(2) of the Family Law Act 1975 the child M born … May 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

10. THAT forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service. 

11. THAT within 48 hours of notification of such appointment the solicitors for the respective parties provide to Independent Children’s Lawyer copies of all relevant documents relied upon.

12. THAT should any party fail to comply with these orders, that Registrar shall if both parties are in default, remove the case from its allocated place in the list and refer the case to the trial Judge for directions as to its future management.

13. THAT if one party fails to comply with these orders but the other has, the complying party may seek leave from the trial judge to proceed on an undefended basis without having to wait for the allocated trial date.

14. THAT the practitioners for the parties file and serve by 4.00 p.m. on 23 March 2011, the following:

    a.a concise set of orders to be sought if different from those already filed;

    b.a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

    c.a bullet-point summary of argument in relation to the issues in dispute.

15. THAT each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8864 of 2010

MS HOEFNER

Applicant

And

MR TERN

Respondent

REASONS FOR JUDGMENT

1. The applicant sought an expedited hearing in this matter.  The respondent neither consents to nor opposes the application.  For reasons which follow, I propose to grant the application.

2. The applicant is the mother of M born in May 2008.  The respondent is M’s father.

3. The mother who is a German national wishes to permanently return home to Germany with the child.  The father is opposed to that course and has sought orders that the child be shared between them on a weekly basis.

4. The parties met in December 2005 and began living together in March 2006.  Their relationship came to an end some time after the middle of 2009.  The parties apparently remained in the one house and it is expected that the father will move out of that house, leaving the child with her mother.  Although there are varying degrees of involvement in the child’s life, even on the mother’s evidence, the father is or was playing a significant role in the child’s life.  A move to Germany would significantly alter that.

5. The mother is employed by a company which is a subsidiary of a German company.  Her employment in Australia is possible because she is sponsored by the company and holds a temporary working visa.

6. The mother’s contract ceases on 31 December 2011.  She wishes to renegotiate her employment but also to return to her family in Germany and work there.

7. The mother’s submission was that she needed to know whether she could return to Germany so as to begin negotiations for her employment contract.

8. It was the mother’s position that it was always her intention to return to Germany but also that the father agreed to her being able to do so when they discussed the issue during the pregnancy.

9. The father did not file any material so I am unable to understand what his position was about whether there was always a plan to go to Germany.

10. The mother has attended counselling, is suffering from anxiety and asserts that the delay in a final hearing may cause her greater emotional hardship and that may impact on the child.

11. Rule 12.10A provides for an application for an expedited hearing and sets out some requirements to be fulfilled and some matters that the court can take into account in determining whether to grant a hearing which would put this case ahead of many others.

12. I am satisfied that there has been no delay in making the application.  There is no suggestion no any prejudice to the respondent.  The prejudice to the applicant is a little hard to gauge because it depends upon the outcome of her employment negotiations.

13. Many of the matters set out in Rule 12.10A(4) do not apply but the difficulty here is that unlike many other “relocation” cases, the applicant is in Australia on a visa which could expire, there is a child who is very vulnerable and who is entitled to have her stability for the future considered by the Court quickly.

14. The solicitors for the father thought the matter would take at least 4 days because the mother’s health was put in issue.  I note however that there seemed to be no suggestion of parental capacity or responsibility in issue as the parties seem to have lived amicably under the one roof for a long time.  That would enable each to describe comprehensively the capacity of the other parent.  This case seems more about what sort of relationship each parent is going to have in the future and that very much depends upon what involvement each currently has and proposes for that future.

15. Although the evidence is as yet scarce, removing a child from Australia and significantly altering the relationships of both parents is a big task and often described as the most difficult of determinations for judges.  For that reason, I propose to order the appointment of an Independent Children’s Lawyer and also a family report directed to the impact on the child of a change of such circumstances. The report is not to be commenced until the affidavit material is all completed.

16. This case is therefore set down for final hearing

I certify that the preceding sixteen
(16) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Cronin
delivered on 14 December 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………