Lanegan and Kodi

[2018] FamCA 94

FAMILY COURT OF AUSTRALIA

LANEGAN & KODI [2018] FamCA 94

FAMILY LAW – PRACTICE AND PROCEDURE – application for expedited hearing – application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Mr Lanegan

RESPONDENT: Ms Kodi

FILE NUMBER: MLC 12648 of 2016

DATE DELIVERED: 26 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Gordon Legal

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

Orders

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

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 Lanegan & Kodi 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 Rule s 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 12648 of 2016

Mr Lanegan

Applicant

And

Ms Kodi

Respondent

REASONS FOR JUDGMENT

1. The husband who is the respondent in the substantive proceedings makes an application seeking the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

2. This matter came before me in the Judicial Duty List on 24 January 2018 and that day I made orders for the parties to file summaries of argument in respect of the husband’s request that the listing of the final hearing be expedited.  Those orders provided for the husband to file a summary of argument by 2 February 2018 and within seven days of receipt of the husband’s summary of argument the wife to file and serve a document indicating her support of or objection to the application for expedition.

3. The husband filed his summary of argument and an affidavit on 29 January 2018. The wife filed her summary of argument on 31 January 2018 consenting to the husband’s application for expedition, but submitted this was “provided she is given sufficient time to adequately prepare her case”. Further the wife submitted that she:

   …takes issue with what is stated in the Husband’s Summary of Argument filed 29 January 2018 and reserves her right to file further evidence at Trial if necessary.

4. These are my reasons for judgment with respect to the husband’s application for expedition.

Background

1. The parties married in 1994 and separated in September 2016. They have one adult child, Mr B, aged 18 and another child C aged 15.

2. The wife is aged 56 and the husband is aged 54.

3. The wife initiated proceedings in December 2016 seeking final property orders.  The husband filed a response to that application in March 2017.

4. The husband was diagnosed with cancer in February 2017. In a letter from his Oncologist Dr D dated 30 September 2017 annexed to the husband’s affidavit filed 18 January 2018 (Annexure B), Dr D states that a scan in February 2017 showed “widespread metastatic disease involving [the husband’s] lungs, lymph nodes and bones”.

5. The husband in or about April 2017 received $1,072,554.33 from his T Super superannuation fund and his total and permanent disability claim. Of that amount $700,000 was for the total and permanent disability claim and the balance was from the husband’s superannuation fund.[1]

   [1] Affidavit of the husband filed 31 August 2017, Annexure A.

6. I made orders by consent on 24 January 2018 which provided for the husband and wife to each receive $100,000 by way of partial property settlement to be paid out of the husband’s superannuation payout of $300,000. A further order was made for the husband to be at liberty to re-invest his total and permanent disability payment of $700,000 and the balance of his superannuation payout in a term deposit and that the said invested funds shall not be drawn upon by the husband until further order.

Leal 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. I am satisfied that the husband has acted reasonably and without delay in the conduct of the case. The husband submits that following his diagnosis with cancer the parties agreed to adjourn the proceedings until 30 June 2017 to enable him to complete chemotherapy and radiation treatment.

2. Since that time the husband submits that the parties have complied with their obligations of disclosure.  Further, in November 2017 they engaged in private mediation but were unable to resolve the dispute.  The husband complied with the orders made regarding the filing of his summary of argument in support of his application for expedition.  Having regard to that history I am satisfied that the husband’s application for expedition has been made without delay.

3. It is not asserted by the wife that she will suffer any prejudice if the matter is expedited and the wife supports the application for expedition. The only reservation expressed by the wife is that she be provided “sufficient time to adequately prepare her case”.  The reality is that even if expedited, the final hearing will not be listed for some months, which will provide both parties with ample time to prepare the matter.

4. Rule 12.10A(2)(d) of the Rules also 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).

5. The most significant consideration in this matter is the impact of the husband’s illness upon his availability or competence to participate in the proceedings, which is a relevant circumstance pursuant to r 12.10A(4)(a) of the Rules.

6. The husband submits he is concerned that the stress of the proceedings will impact on his treatment and life expectancy by “causing his tumours to grow”. In the husband’s affidavit filed 29 January 2018 he annexes a letter dated 19 January 2018 from Dr E, Integrative Practitioner, who states that the husband “fears that the stress of this process will impact on his life expectancy by causing tumour growth” and notes that “[t]his is not without basis”.

7. The husband further submits that while his current treatments are having a positive impact on the reduction of his tumours and he is currently able to fully participate in the proceedings, the tumours are inoperable and it is “unknown whether his prognosis may change so that his ability to participate in the proceedings was [sic] compromised if there was a significant delay in the final hearing being heard”.

8. The husband’s oncologist Dr D in her letter dated 30 September 2017 states that the husband’s first PET scan on treatment in September 2017 “demonstrates a good response to treatment in all his disease sites”. Nonetheless in the penultimate paragraph of that report she provided a cautious estimate as to the husband’s survival at anywhere between 12 months and five years.  That evidence lends significant weight to this matter being afforded priority to the detriment of other cases.

9. Rule 12.10A(4)(c) of the Rules provides for the consideration of whether the husband is suffering financial hardship which is not caused by him and cannot be rectified by an interim order. The husband submits that he has been unable to work since his diagnosis and he is in receipt of income protection insurance as his “primary source of income”. He submits this income stream from that source will cease in or about April 2019. Following this the husband submits he will be reliant on “his superannuation payout and total and permanent disability payment to meet his living and medical expenses, the full extent of which are not known at this stage”. In his affidavit filed 29 January 2018 the husband deposes to the costs associated with his treatment. As a result of his finite income stream, the husband seeks expedition of the proceedings to ensure that he will have certainty as to his future financial position.

Conclusion

1. I am not satisfied that the husband is suffering financial hardship within the meaning of r 12.10A(4)(c). The reality is that the parties have consented to orders making provision for partial property settlement and there is no bar to them seeking further distributions pending the final hearing.

2. The most significant factor which supports the expedition of the proceedings is the husband’s illness.  The evidence of the husband’s treating oncologist, Dr D as to the husband’s life expectancy is compelling and in my view supports an order that this matter be afforded priority to the detriment of other cases awaiting hearing.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 26 February 2018

Associate: 

Date:  26 February 2018