Leggara and Oncins

[2019] FamCA 812

FAMILY COURT OF AUSTRALIA

LEGGARA & ONCINS [2019] FamCA 812

FAMILY LAW – Application for expedition – where parties each seek that the child live with them – where the child currently lives with the Father in Australia – where the Mother currently resides in Country B – consideration of matters that the Court may take into account regarding expedition

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

APPLICANT: Mr Leggara

RESPONDENT: Ms Oncins

INDEPENDENT CHILDREN’S LAWYER: Ms S Hiles

FILE NUMBER: CAC 2154 of 2017

DATE DELIVERED: 5 November 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Elringtons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The matter is granted expedition in the Canberra list of the Family Court of Australia.

IT IS NOTED THAT

1. At this stage it is anticipated that with the granting of expedition this matter would be likely to be dealt with in the second half of 2020.

IT IS FURTHER ORDERED THAT

1. The matter is relisted for trial directions on Tuesday 10 March 2020 at 10am.

IT IS NOTED THAT

1. On that day it is anticipated that the parties will deal with issues in so far as they relate to what witnesses will be called at the hearing, whether there is the need for a Single Expert to present evidence to the Court in relation to the capacity of each of the parties to be in Australia and the arrangements for the preparation of a Family Report including the time that X might spend with his Mother immediately preceding the preparation of such report.

2. The parties have agreed the other matters to be contained within the interim orders and I have identified which other orders will be made where those were not strictly agreed.

3. The Independent Children’s Lawyer will prepare a minute of those terms.

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 Leggara & Oncins 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 CANBERRA

FILE NUMBER: CAC 2154 of 2017

Mr Leggara

Applicant

And

Ms Oncins

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an application for expedition by the Mother under circumstances where she lives in Country B and the Father lives in Australia.  The Mother, the Father and X are all Country B citizens. 

2. Without descending into detail the Mother recently retained X in Country B in conflict with Orders that were made by this Court requiring that X be returned to Australia.  There are disputes about the parties’ varying capacities to remain in Australia and the essence of the dispute between the parents is that the Mother seeks that X will live in Country B with her and the Father seeks that X will live in Australia with him. 

3. The Mother is currently in Country B.  X is currently in Australia with his Father. 

4. The Father, in relation to the Mother's application for expedition, helpfully identifies that Rule 12.10A deals with the subject matter of expedition.  Rule 12.10A(2) details the matters that the Court may take into account.  The first is whether the Applicant has acted reasonably and without delay in the conduct of the case and the second, whether the application has been made without delay.  The Father correctly points that neither of these conditions apply.  Rather than acting reasonably and without delay in relation to the promotion of the case, the Mother retained X in Country B, a step which probably has delayed the proceedings as it was necessary for the Father to secure the return of X for them to continue in a meaningful fashion. 

5. The third matter that the Court may take into account is any prejudice to the Respondent.  In this case the Father has conceded there would be no prejudice to him in expedition.

6. The fourth is whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.  That is a reference to sub-rule (4) which defines relevant circumstances in an inclusive definition.  It is somewhat difficult to easily fit the circumstances of this case into the various considerations set out.  That exercise must be done with the understanding that they do not set out the complete set of circumstances that may be necessary to be taken into account.  Of those most applicable it appears that subparagraph (4)(g), which is the avoidance of serious emotional or psychological trauma, or subparagraph 4(d), whether the continuation of interim orders is causing the Applicant or a child hardship, as to subparagraph 4(g).  The evidence, at least at present, does not go so high as to be suggestive that X is likely to suffer serious emotional or psychological trauma by the continuation of the proceedings.

7. As to the hardship potentially caused to X or to the Applicant, this is a case in which the parties and the Court are faced by stark circumstances.  They are X’s separation from his Mother in Country B or a separation from his Father in Australia. 

8. The Interim Orders will continue a position where X remains in Australia with his Father.  That is a position which may or may not be reversed at the Final Hearing and so X at present faces a potential reversal of what as time passes becomes a more and more settled set of circumstances.  It is that potential of reversal and the potential that X is currently separated from the person with whom he should live (I say potential because it is not a pre-judgment of the matter, just a recognition that that is the form of the Mother's application) which is sufficient to justify that this case is given some priority over other cases. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 November 2019.

Associate:

Date:  6 November 2019