JUKIC & JUKIC

[2018] FamCA 1090

FAMILY COURT OF AUSTRALIA

JUKIC & JUKIC [2018] FamCA 1090

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing – application dismissed.

Family Law Act 1975 (Cth) r 12.10A

APPLICANT: Ms Jukic

RESPONDENT: Mr Jukic

FILE NUMBER: DGC 556 of 2018

DATE DELIVERED: 7 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

SOLICITOR FOR THE RESPONDENT: Destra Law

Orders

1. The mother’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

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 Jukic & Jukic 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: DGC 556 of 2018

Ms Jukic

Applicant

And

Mr Jukic

Respondent

REASONS FOR JUDGMENT

1. The mother who is the respondent in the proceedings seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The proceedings relate to parenting matters with respect to the parties children, who are aged seven and four. The mother seeks orders that she be permitted to relocate to Country B in Europe with the children.

2. On 1 June 2018 Registrar Field made the following orders:

   1. These proceedings are added to the list of cases awaiting allocation to a judicial docket with priority from 1 June 2018.

   2. All extant applications of all parties are adjourned to a date to be fixed before the Honourable Justice Johns to determine whether to expedite the final hearing.

   3. By 4 pm on 6 June 2018, the party seeking the expedited hearing file and serve a summary of argument in bullet-point form setting out the matters upon which the determination is to be made.

   4.Within seven days of receipt of the applicant’s summary of argument, the responding party file and serve a document indicating his support of or objection to the application for expedition.

   5.All parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at ...

   6.Unless Her Honour directs otherwise, the determination of the issue of priority be heard and finalised in chambers.

3. The mother’s Submissions in Support of Priority listing were filed electronically on 7 June 2018.

4. The father, who opposes the application for expedition, filed his Outline of Submission on 14 June 2018.

5. These are my Reasons for Judgment with respect to the mother’s application.

Background

1. The father is aged 42 and the mother is aged 43. The mother and the father commenced cohabitation in 2009, married in 2010 and separated in November 2016.

2. The parties have two sons, X aged seven and Y aged four.

3. The father commenced proceedings on 26 February 2018 in the Federal Circuit Court. The final orders sought by the father include that the parties have equal shared parental responsibility, that the children live with the mother and spend time with him.

4. The mother filed a Response on 9 April 2018. The mother seeks final orders that she have sole parental responsibility for the children, that she be permitted to relocate the children to Country B and that the children spend time with the father as agreed between the parties.

5. On 17 April 2018 orders were made by consent that provided for the children to live with the mother and for the father to spend time with the children as follows:

   (a)From 5pm to 6:30pm on Fridays such time to occur at the C Church Suburb D and such time be supervised by the Parish Priest or his nominee.

   (b)Otherwise the father spend up to 4 hours per fortnight with the children at times to be agreed, such time to be supervised by the E Group or similar organisations and the father shall meet the costs of supervision and the father shall ensure only English is spoken or he ensures an interpreter is available to assist.

   (c) As further or otherwise agreed.

6. An order was also made by consent that all extant applications be transferred to the Family Court for inclusion in the “International Relocation List”. It should be noted that there is no International Relocation List conducted in the Melbourne Registry of the Family Court of Australia.

7. Orders were made on 1 June 2018 by Registrar Field which provided for the filing of submissions in relation to the application for expedition of the final hearing.

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

1. The mother’s submissions do not address any of the considerations the Court may take into account pursuant to rr 12.10A(2)(a)-(c) of the Rules. Rather, they principally address the reasons why she seeks to relocate the children’s residence to Country B, which are matters for determination by the trial judge.

2. The father’s submissions invite an inference that the mother has not acted reasonably or without delay in the conduct of the case.  He submits that the mother’s application for international relocation arose only after the father initiated proceedings. In my view, the fact that the mother is the respondent to the substantive proceedings and seeks international relocation does not in and of itself make her actions unreasonable or indicate delay.

3. With respect to the question of whether the mother’s application for expedition was made without delay, the father relies upon the fact that the mother did not seek orders for expedition at the time she filed her Response on 9 April 2018. I do not accept that submission. The mother made her application for expedition within one month of filing her Response and in accordance with the directions of Registrar Field, save that they were filed one day late. The father makes no submission with respect to the late filing of those submissions.  Accordingly, I am satisfied that the mother has acted reasonably and without delay.

4. The mother does not address the question of whether the father will suffer any prejudice if the proceedings are expedited.

5. The father submits that he would be prejudiced were the proceedings expedited. He expresses concern that, if expedited, the proceedings may be listed for trial without the preparation of a family report.  In my view, there is no basis for that submission.  Whether a Family Report is obtained in a matter is a question to be determined by the trial judge following allocation to a judicial docket; given the nature of the issues in dispute it is likely that such order would be made at the first listing before the trial judge.  The father also submits that the mother’s proposed relocation will be disruptive to the children, who are settled at school and kindergarten and have established friendships.  These are matters to be considered by the trial judge at the final hearing and are not relevant to the mother’s application for expedition.  Accordingly, I do not accept the father’s submission that he will suffer prejudice if the proceedings are expedited.

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. One of the relevant circumstances which may be taken into consideration pursuant to r 12.10A(4) of the Rules is whether the applicant is suffering financial hardship that is not caused by the applicant and cannot be rectified by an interim order.

8. The mother submits that she has not been able to secure stable, long term and permanent employment in Australia. She submits that she has been offered employment in Country B.   It is submitted that the mother is “anxious to relocate to Europe as soon as possible to commence steady, regular, full time employment which would be of benefit to the children in that they would have a secure life”.  The mother’s submission provides no particulars as to the terms of her proposed employment.  The submissions are silent as to when such employment is to commence.  The absence of evidence regarding those matters limits the Court’s ability to consider those factors in the determination of the mother’s application for priority.

9. The mother also relies upon the father’s alleged failure to pay any child support in 2018.  I note that the father does not respond to that allegation in his submissions.

10. A further consideration for the Court is whether a party has been violent to another party of the case (r 12.10A(4)(b) of the Rules). The mother submits that she was “subject to family violence inflicted upon her by [the father] in the course of the marriage” and that the children were present for such incidents. The father denies the allegations of family violence. The father confirms in his submissions that physical separation occurred following the mother obtaining an interim intervention order against him. I note that the father submits that allegations of family violence are matters to be determined at trial.

Conclusion

1. Whilst the Court does not maintain an International Relocation List as contemplated by the Federal Circuit Court judge, it has been this Court’s practice, where practicable to afford such matters priority.  That this is so is due to the fact that such matters are concerned with a party’s freedom of movement.  Unfortunately, in circumstances where the Court’s resources are ever diminishing whilst its work load continues to grow, that factor alone no longer is a justification for priority. 

2. In circumstances where the mother makes no submissions as to specific offers of employment and provides no timeframe as to when such offers are to be accepted or employment commenced, and where she submits that she has been offered more than one position, I am not satisfied that this is a matter that warrants priority.

3. Further, while the mother refers to family violence she alleges was perpetrated against her by the father in the presence of the children, such allegations are not unique and in and of themselves are not a justification to grant the matter priority. The reality is that there are many cases before this Court that involve such allegations; the Court does not have the resources to grant priority to all cases where there are allegations of family violence. Some of the matters awaiting hearing involve serious allegations of child abuse and where it is alleged that children are at risk of harm.  Against this backdrop, I cannot justify affording this case priority.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 August 2018

Associate: 

Date:  7 August 2018