Maeraegh and Salter

[2010] FamCA 815

FAMILY COURT OF AUSTRALIA

MAERAEGH & SALTER [2010] FamCA 815

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

Family Law Act 1975 (Cth)

APPLICANT: Mr Maeraegh

RESPONDENT: Ms Salter

FILE NUMBER: MLC 3427 of 2010

DATE DELIVERED: 13 SEPTEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

THE APPLICANT: IN PERSON

SOLICITOR FOR THE RESPONDENT: CATHERINE GALE

Orders

1. That the application pursuant to Chapter 12 of the Rules for an expedited first day of hearing is granted.

2. That the matter be listed before the Honourable Justice Mushin as a reserve matter to commence on 8 November 2010.

3. That the parties and their lawyers attend before the Honourable Justice Mushin at 10.00am on 24 September 2010 for mention to ensure readiness for trial.

4. That subject to any order of the trial judge to the contrary, the mother file and serve any material upon which she intends to rely by 4.00pm on Friday 22 October 2010.

5. That subject to any order to the contrary of the trial judge, the father file and serve any material upon which he intends to rely by Thursday 4 November 2010.

6. That the parties attend upon Mr S for the purposes of the completion of a family report to be released if possible by Friday 5 November 2010.

7. That the parties AND the child F born … of March 2007 attend upon the family consultant for the purposes of the family report on 14 October 2010, with the applicant attending with the child at 9.30am and the respondent attending with the child at 10.30am that day.

8. That the family consultant have access to the court file for the purposes of the preparation of this said report.

9. That Registrar Sikiotis monitor the progress of the matter for the purposes of ensuring that the matter proceeds expeditiously.

10. That pursuant to Section 68L(2) the Family Law Act 1975 the child F born on the … day of March 2007 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

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

12. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3427  of 2010

MR MAERAEGH

Applicant

And

MS SALTER

Respondent

REASONS FOR JUDGMENT

1. Rule 12.10A of the Family Law Rules 2004 provides that upon application, the Court may expedite the first day before a judge.

2. Chapter 1 of the Rules permits the Court to vary the processes under the Rules to achieve the main purposes set out.

3. Ms Slater (“the mother”) has applied to expedite the hearing of a parenting dispute with Mr Maeraegh (“the father”) concerning their child F who is 3½ years of age.

4. The facts in this case are disputed but in my view, having regard to the child’s age, the mother’s circumstances and the father’s desire to have a clear relationship with the child, the case warrants expedition.  The impact of that means that other cases may be delayed. 

5. The parties commenced their relationship by living together in Germany.  In 2004 they came to live in Australia.  In 2007 they moved to Europe and the United Kingdom.  The mother was born in Scotland and it is to that country that she desires to return.  The father opposes that.

6. The parties separated in 2009 and the father returned to Australia.  In May 2009 the mother came to Australia.  Her evidence will apparently be that she came for a working holiday but also to give the father an opportunity to develop a relationship with the child before he commenced education.

7. Whilst the mother was in Australia, injunctive orders were sought and obtained.

8. The parties were able to agree on interim orders on 5 July 2010 under which the child is currently living with the mother and there is time being spent between the father and his son. 

9. The parties have attended an issues assessment program with a family consultant who has reported that there was a good relationship between the child and both parents.  The report said that the Court would need to consider the strength and stability of the child’s attachment to the father in determining whether he could be reasonably expected to maintain a relationship if the mother moved to Scotland. It was recommended that a family report be prepared.

10. The mother also sought a property settlement pursuant to s 90SM(1) of the Act although no details as to what she was seeking were provided.  In the same application, she sought to be able to take the child to live in Scotland on or before 18 December 2010.  It remains to be seen whether she can have all matters ready within a very limited period of time.  In her application to obtain a priority hearing, the mother said that she was receiving limited support from the father.  He denied that.  She said that she was only in Australia briefly.  The father denied that.

11. The mother said that she was suffering anxiety and needed psychological help.  She accused the father of perpetrating family violence resulting in her seeking an intervention order which in turn, ended with undertakings being given by the father.  The father denies any family violence.

12. The mother described having a position of employment made available to her in the United Kingdom and having worked in Australia to complete her professional qualifications.  The father said it was far more expansive than that by referring to the fact that she had worked on major projects in Melbourne.

13. There are many things that are contentious in this case but ultimately the Court will have to decide the best interests of the child.

14. In deciding to expedite a first day, the Court may take into account whether the applicant has acted reasonably and without delay.  I do not consider the period in this case to be unreasonable having regard to the fact that the relationship broke down in 2009. 

15. The application for the expedited hearing was only made after the parties attended court and that is also not a matter that I would be concerned about.

16. There can be no prejudice to the father in an expedited hearing because most parties would desire to have their cases heard quickly.  In so far as he may have some concerns about the developing nature of the relationship, those matters can be clarified by professional evidence. 

17. The major issue in this case is whether there ought to be a priority hearing which would mean that other cases are delayed.  Having regard to the nature of the lists in Melbourne at this stage, I do not see that as being a significant impediment to other cases.

18. I have taken into account the matters set out in Rule 12.10A(4) including the fact that the mother has indicated concerns about her psychological health and being required to remain in Australia. I have also taken into account that there is an uneasy relationship between the parties evidenced by the intervention order proceedings but also the fact that the Court had to make orders for the father to spend time with the child. I am also conscious of the fact that there are financial considerations because the mother had purchased the ticket to return to Scotland and has now lost that opportunity and also that her contract of employment is about to end, her financial future is at best unclear.

19. I have also taken into account that the mother has an opportunity to take employment in the United Kingdom albeit that the father says that the details are vague.

20. Subject to the parties expeditiously preparing their cases, this matter should be able to be heard in November 2010.  Accordingly, I propose to grant the application but also to make procedural orders.

21. Having regard to the nature of the application and the reasons above, I shall order that the child be separately represented and also that the parties file their material.  The family report that will be necessary will also require attendances by the parties upon the family consultant.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 September 2010.

Associate: 

Date:  13 September 2010