McMurphy and McMurphy

[2008] FamCA 507

FAMILY COURT OF AUSTRALIA

MCMURPHY & MCMURPHY [2008] FamCA 507

FAMILY LAW – PRIORITY HEARING –Application granted

Family Law Act 1975 (Cth)

APPLICANT: MRS McMURPHY

RESPONDENT: MR McMURPHY

FILE NUMBER: MLC 6417 of 2007

DATE DELIVERED: 7 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITORS FOR THE 

APPLICANT WIFE:

GRICE & GRICE

Orders

1. That all outstanding applications be listed for a first day less adversarial trial before me on 16 October 2008 at 10.00am.

2. That the parties and their lawyers attend the hearing on that day.

3. That no further affidavit material be filed without leave.

4. That subject to the parties agreeing to pay the necessary costs, the Independent Children’s Lawyer arrange for the attendance on the first day of the less adversarial trial of Mr L to assist in defining the issues in dispute.

5. That in preparation for the first day of the less adversarial trial, each party complete the Court’s parenting questionnaire and financial questionnaire and file and serve both of those documents by 4.00pm on 10 October 2008.

6. That the respective lawyers for the husband and wife provide to them prior to the commencement of the first day of the said less adversarial trial the following:

   (a)A letter setting out the costs incurred to the first day of the said trial and the anticipated costs to its conclusion and make available to the Court a copy of such letter on the first day; and

   (b)A copy of s 69ZN of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6417  of 2007

MRS McMURPHY

Applicant

And

MR McMURPHY

Respondent

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders and financial issues.

3. The proceedings began with an application by the husband filed on 8 October 2007 seeking parenting and financial orders.

4. The respondent filed responding new material on 26 November 2007.

5. The case came before Senior Registrar FitzGibbon on 4 December 2007 at which time an Independent Children’s Lawyer was appointed.

6. On that day, the parties were able to compromise their positions and orders in relation to the children were made.  The parties consented to those orders.

7. On 17 December 2007 in chambers, I made an order that any person who wished to make an application to expedite the final hearing had to file the relevant documentation by 21 February 2008.  That did not occur.

8. The parties were back in Court in March and April of 2008.

9. The matter came on for hearing before the Senior Registrar on 4 June 2008 and agreement was reached about a number of matters including injunctions.  One agreement was that the wife was to file a summary of argument setting out matters upon which she relied for her priority application to which reference had been made in December 2007. 

10. The wife’s application for priority was to be made “forthwith” but her summary of argument was not filed until 28 June 2008.  I have presumed because there has been no objection to that course of action and presuming that the summary of argument has been served upon the practitioners for the husband and the Independent Children’s Lawyer, no point is taken about its delay.

11. The applicant wife says she now wishes to return to her extended family in the United States of America because communication has broken down between herself and the husband.  She says that the children would be free from the religious influence of the husband and his family should she relocate to the USA.

12. In support of her application for expedition, the wife says that she has nothing here to keep her in Australia and her basis for the desire to relocate is otherwise due to the husband’s attitude to her and his “religious zealotry” since the birth of the children.

13. The wife says that in the United States of America she has the capacity and qualifications to work in health services and because of the affluence of the husband, travelling to the United States of America several times per year would not pose any difficulty for him.

14. None of those matters would normally form the basis of an order for the expedition of the final hearing. 

15. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases.  The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given.  “Special reasons” means what it says namely something unusual or out of the ordinary.

16. Whilst the Summary of Argument alludes to the problems that the wife maintains exist, they are not special reasons.

17. Having said that however, my attention was drawn to the fact that the parties attended upon a psychologist Mr L.  Ms Whittaker as the Independent Children’s Lawyer filed an affidavit by Mr L on 10 April 2008. 

18. Mr L was very conscious of the desire of the wife to return to the United States.  On page 8 of his report attached to the affidavit he says that the wife reported that she would “feel far more comfortable” if she were able to relocate to the United States of America where she would have the support of her extended family.

19. Mr L than said that the wife reported that the husband could spend time with the children during four periods of one week each year to coincide with school holidays.

20. Mr L interviewed the children.  The older child responded with ambivalence about the prospect of relocation.  Mr L said that his reasons for wanting to live in the USA were “age-appropriately pre-operational” but that he did not have sufficient conversation skills to understand fully the periods of time he would spend with either parent.  When Mr L dealt with the younger child, he felt that that child’s bond with his father was such that it would not remain strong and developmentally important from a distance.

21. The evidence of Mr L was not drawn to my attention in the Summary of Argument for the wife but it seems to me that his comment in paragraph 8.9 is worth contemplating.  He said:

    I understand that these are but some of the many factors that the Court will consider in determining the present relocation application, but from a psychological perspective only, I would suggest that, on balance, a reasonable time to review any prospective relocation might be the start of the 2009 US school year.

22. Accordingly, there is a basis to give the matter some priority so that the lives of the children are a little clearer.

23. All matters involving children in this Court now commence their first day of a less adversarial trial with the trial judge examining the issues in dispute and determining what evidence is needed to assist the parties to take control of the parenting problems themselves.  In this case, I propose to fix the first day of the less adversarial trial in October 2008.  The parties are not to file any further affidavit material for the purposes of that hearing.  I will allocate 1.5 hours to canvas with the parties the issues in dispute.

24. I propose to direct that the Independent Children’s Lawyer make inquiries of Mr L as to whether he could be available that date at the expense of the parties, to assist in defining the issues further and identifying what evidence would ultimately assist the Court to make a determination on the relocation issue. The parties and their lawyers would do well to read the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

25. In perusing the file generally, I have been unable to determine whether or not the property issues between the parties have been resolved. Part VIII of the Act is not governed by the less adversarial trial process unless the parties consent. I therefore propose to deal with the financial issues (presupposing they are still outstanding) on the basis that at the conclusion of the first day of the less adversarial trial, various orders can be made of a procedural nature to advance those financial matters to be heard as part of the one trial process.

26. Accordingly, I propose to make orders.

I certify that the preceding Twenty Six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  7 July 2008