MAIER & TUNNECLIFF

[2018] FamCA 1149

FAMILY COURT OF AUSTRALIA

MAIER & TUNNECLIFF [2018] FamCA 1149

FAMILY LAW – PRIORITY HEARING – application by submissions – insufficient basis to give the matter priority over other cases – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Maier

RESPONDENT: Ms Tunnecliff

FILE NUMBER: MLC 1268 of 2011

DATE DELIVERED: 19 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way of Written Submissions

SUBMISSIONS RECEIVED FROM

THE APPLICANT:	In Person
SOLICITOR FOR THE RESPONDENT:	Berry Family Law

Orders

1. That the application of the father contained in the summary of argument filed 4 September 2018 is dismissed.

2. The response of the mother contained in her submission attached to the letter of her solicitor dated 10 September 2018 is dismissed.

3. The application for expedition is declined.

4. The contravention application of the mother filed 17 January 2018 and the contravention application of the father filed 18 January 2018 are referred to Registrar Field for consideration as to whether those matters should be listed in the Judicial Duty List after consultation with the parties.

5. That all outstanding applications for final parenting orders are otherwise adjourned to a date to be fixed for hearing by a judge when 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 Maier & Tunnecliff 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: MLC 1268  of 2011

MR MAIER

Applicant

And

MS TUNNECLIFF

Respondent

REASONS FOR JUDGMENT

1. The proceedings to which I refer below relate to the children of the parties Mr Maier and Ms Tunnecliff.

2. Rule 12.10A of the Family Law Rules 2004 sets out that a party may apply to expedite the first day before a judge. Ironically, these parties appear to have had five first days before a judge and it is not abundantly clear (notwithstanding there are over 68 documents on the court file) what the issue is for any judge in a parenting dispute to address. However, presupposing that the issue before me is whether I should take some steps to expedite a hearing of a more substantive nature than just the first day hearing, the rules set out what the court may take into account.

3. The first of the considerations is whether the applicant has acted reasonably and without delay in the conduct of the case; this application has been made without delay.  Having regard to the fact that no application was made until the Federal Circuit Court determined that it was unable to hear it as a result of the way in which the father was conducting the proceedings, I could not criticise any action that he has taken.

4. A second consideration is whether there is any prejudice to the respondent in the case being heard expeditiously.  Although the respondent mother opposed the application, one would presume that she saw sense in having the children out of the warzone having regard to the observations of the family report writer indicating that her greatest concern was that the children were exposed to the conflict between the parents. 

5. This matter had reached the final hearing stage when it was transferred.  The notation to the court order that day reads as follows:

   Given that this matter will require a six (6) day Final Hearing with approximately nine (9) witnesses (including three (3) experts) it is this Court’s view that it is more appropriate for the matter to be transferred to the Family Court of Australia and it is requested that the final hearing be listed with priority to ensure the experts’ evidence remains current.

6. As will have been seen, just over a month later, the parties were before the registrar. 

7. The nub of the summary of argument by the father is that he had been unemployed since April 2016 and the case had cost him $100,000 in legal fees since he filed his initiating application and that had caused him financial hardship.  He said that he has now ceased representation because of the cost of running the case and was representing himself.  He pointed out that since the case commenced, the children had been subjected to three interviews for family reports, the last of which was on 1 June 2018.

8. Importantly for the purposes of these reasons, the father noted that prior to 10 January 2018, various interim orders had increased his day and overnight time with the children over the mother’s opposition.  He alleged that between January 2018 and 22 June 2018, the mother breached the orders and denied him contact.

9. In the father’s view, having read the family report to which he had referred, he felt that the children were being harmed emotionally and psychologically by the drawn out nature of the proceedings and the consequential uncertainty.  He quoted from the most recent family report where the psychologist expressed concern about the real risk to the children being their emotional and psychological welfare “while they remain embroiled in the parental disputes”. 

10. The father then said that he had serious concerns about the mother’s mental health and the psychological impact it was having on the children, the longer the case took to be heard.

11. The mother’s solicitor filed a response on her behalf complaining that the father had not disclosed all of his medical records as was required by the court order.  That did not disadvantage her save that she had to issue a subpoena to ascertain the full extent of his medical treatment.  No doubt that is a matter that can be taken up at trial.  It does not affect the present application.

12. The nub of the mother’s submission in opposing the expedition of the hearing was that up until the night before the trial in July 2018, it had not been apparent (to the mother) that the father had intended to call a whole raft of witnesses to whom the Federal Circuit Court judge was referring in the notation he added to his orders.

13. In her submission, the mother was ready for trial but did not know of the case she was facing until the father’s outline of case document was served.  I have reservations about accepting that submission bearing in mind the torturous pathway that the parties have followed through the Federal Circuit Court.

14. True it is that the children have been involved in three family reports but one of those was with a report writer who had been involved with the father in his previous marriage problems.  That report process was abandoned.  It was then observed that in respect of the second of the report writers (a Ms C), the Federal Circuit Court judge terminated the appointment on the basis that the father had “lied” to Ms C and her report was consequentially unsafe.

15. The nub of the father’s complaint however was that he was precluded from having time with his children between January and June 2018 and the children were suffering psychologically and emotionally as a consequence.  In respect of the latter point, that is not what Ms B (the family consultant) said.  She made clear as I have already indicated, the concern was the fact that the children were involved in the parental conflict.  There is no doubt that the mother terminated the father’s time in January 2018 but her submission in this expedition application was that she did so “with a reasonable or justifiable excuse”.  It seems that she asked the father to give undertakings at the time and he refused to then give them but did so in June 2018 and his time was then restored.  Whilst that might sound obtuse, the court file shows that there was a Notice of Risk filed by the mother in June 2017 and ultimately both parties filed contravention applications in January 2018.  In the mother’s contravention application, she alleged that the father had defied the court order by taking the children upon a boat when he was specifically restrained from so doing.

16. What is not readily apparent from the summaries of argument nor, it would seem, from reading the various orders that were made after the father instituted proceedings in April 2017, was that final parenting orders were made on 12 January 2012.  Those orders were intended to finalise all parenting arrangements between the parties for the future.  When the father filed his initiating application five years later, he was apparently seeking an increase in time on the basis of the increased development and maturity of the children.  Perhaps a thought might have been given in early 2017, at one of the many hearings about which the father complained, to the basis upon which the court should reconsider the final orders that had been made in 2012. 

17. Whilst no doubt the Federal Circuit Court was extremely busy, there is an underlying inference to be drawn from the father’s material that the 2012 orders related to very young children, and were so restrictive, that it was now time to review them but the mother would not agree.  Since then, a whole variety of arguments arose and the court was asked to tinker with orders from time to time rather than looking at the substantive basis upon which the proceedings should be reopened.  It ought not be accepted as a matter of course that children growing up is a basis to reconsider orders when the parties do not agree.

18. Whilst I express concern about the five interim hearings, the long delays in getting to trial and the various attempts to get a family report have no doubt been expensive, frustrating and time-consuming, much of that must be due to the way in which the parties were conducting the litigation.  In my view there is no prejudice to the respondent.

19. The next issue is whether there is a relevant circumstance as a result of which the case should be given priority to the possible detriment of other cases. Relevant circumstance is defined in rule 12.10A(4). Nothing about these proceedings indicates difficulty in obtaining witnesses and family violence does not appear to be a substantive issue at least from the summaries of argument. Whilst the father asserts that he is suffering financial hardship as a result of the delays, that problem now appears ameliorated because he is representing himself.

20. The mother argued that the father had failed to tell the court that he had “received a very significant redundancy” and that he had retained the home he purchased just after separation.  It seems that he also has another property.  Financial circumstances are clearly relative to the individual and the thought of having spent $100,000 in legal fees in a parenting dispute where the court has taken as long as it has only to then transfer the proceedings, is no doubt frustrating.  However, it would appear to have been the choice of the father to have legal representation.  The financial circumstances are therefore not given much weight in this application.

21. Another relevant circumstance is whether the continuation of the interim orders is causing the applicant, or a child, hardship.  Nothing in the father’s material would enable me to make such a finding although he argued that the continuation of the drawn out nature of the proceedings, and uncertainty, was emotionally and psychologically harmful for one of the children.  Even with that in mind, the father persists with his application.  Nothing in the material indicates that interim orders could not resolve the problem until trial and indeed, it would appear that at least at one of the hearings, tinkering with the parenting orders had been undertaken.  There is no basis for me to find that the continuation of the interim order is causing the father or one of the children hardship. 

22. The father argued that an expedited trial would avoid serious emotional or psychological trauma to the children but again, I come back to what Ms B said and upon which the father relied.  These children are experiencing loyalty conflicts and remain embroiled in the parental dispute.  They have been in that dispute presumably since the orders were made of a final nature in 2012 and it is the father’s application to reopen those events.  Accordingly, it is hard to see how an expedited trial in this case will avoid emotional or psychological trauma when it is the father’s application to reopen the proceedings that were concluded in 2012.  Eighteen months later after the proceedings were filed by the father, the children are embroiled in the dispute again, based as I understand the father’s case, on his desire to increase his time.

23. The most significant issue here is why this case should be given priority over other cases in circumstances where, final orders were made in 2012, interim orders have been made after a consideration of all of the circumstances at that time and, no application was made by the father to alert the Federal Circuit Court throughout 2017 that he intended to call all of the evidence that gave rise to the Federal Circuit Court judge indicating that his court did not have sufficient time to deal with the matter.

24. Nothing I have read indicates that attention has been given to s 69ZX nor how the principles in s 69ZQ ought to apply.  There are many cases awaiting a hearing in this court where diligence has been the focus of the litigant’s attention and I have read nothing in this case that would justify the parents in the present case being given priority over those cases.  Certainly, interim orders are in place and, accepting what the mother says to be correct for a moment, the father took matters into his own hands by declining to give the undertaking she sought until June 2018.  The parties would do well to sit down and listen to Ms B about what she says is good for their children rather than litigating the way this case has been handled.

25. Accordingly, I decline to give this case expedition.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 September 2018.

Associate: 

Date:  19 September 2018