Micelotta and Modarelli

[2018] FamCA 739

FAMILY COURT OF AUSTRALIA

MICELOTTA & MODARELLI [2018] FamCA 739

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedition – impacts of delay – where impact upon husband – where significant demonstrated impact upon wife – application for expedition granted. 

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Mr Micelotta

RESPONDENT: Ms Modarelli

FILE NUMBER: CAC 1080 of 2018

DATE DELIVERED: 12 September 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Campbell & Co

Orders

1. The hearing in this matter will be expedited such as to give it priority so that it comes on for final hearing in the first half of 2019.

2. The proceedings are adjourned for directions at 10am on 17 December 2018.

IT IS NOTED THAT

1. Exhibit W1 of today's proceedings sets out a working document balance sheet indicating the likely ambit of the dispute between the parties as to the pool of assets.

2. The parties have identified that there may be the need for the appointment of single experts in relation to a commercial property, a company which owns the commercial property, two blocks of land in B Town and land held in Country C, Europe.

IT IS FURTHER ORDERED THAT

1. In the event that the parties have not resolved the outstanding matters on the balance sheet related to the above issues, and in the event that they have not agreed on the appointment of single experts, then the parties are to file and serve 14 days in advance of the directions date any application and evidence in support of the application that they intend to make to support the appointment of single experts.

2. In the event that a party files and serves such material then that matter may be dealt with on 17 December 2018.

IT IS NOTED THAT

1. The husband will require an Italian interpreter for the hearing of the matter.

IT IS ORDERED THAT

1. In the event that such an interpreter is required for the next directions then the solicitor for the husband is to advise the Court 14 days in advance of that requirement.

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 Micelotta & Modarelli 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 1080 of 2018

Mr Micelotta

Applicant

And

Ms Modarelli

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. An application for expedition has been made by the Wife and is supported by the Husband.  The Wife and the Husband have each supported that application in particular, although not exclusively, by affidavit evidence filed from professional witnesses who each deal with the parties’ mental health. 

2. The application is made pursuant to r 12.10A which allows for a party to apply to expedite the first day of a trial before the Judge.  Rule 12.10A is cast in non-exhaustive terms, but sets out a number of considerations.  First is 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 [that is the application for expedition] has been made without delay;

1. These parties separated in January 2018.  At about that time some family violence orders were obtained, and lawyers were promptly engaged in February 2018.  The proceedings were commenced by the husband in June 2018.  The parties promptly attended mediation in July 2018 and an application, following the mediation ultimately being unsuccessful in resolving the proceedings, was made for expedition which was listed from 23 July 2018 to today's date.  That is, the parties have taken prompt steps following the date of separation to resolve the proceedings, to commence litigation and to participate in that litigation.  That is, they have each taken reasonable steps and have done so without delay.  The application for expedition has been made without delay.

2. Further criteria that r 12.10A sets out is whether there is any prejudice to the respondent.  The respondent supports the application for expedition, therefore no question of prejudice arises.

3. The fourth consideration is whether there is a relevant circumstance in which the case should be given priority, to the possible detriment of other cases.  Non-exhaustive matters are set out again for the Court to have consideration of in relation to the last of those criteria.  Relevantly, the two matters contained in r 12.10A(4) are:

   (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;

   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.

4. In this case, although it is not resolved at this point and may be a contentious issue, the Wife asserts that there has been serious violent, harassing or intimidating behaviour.  As I noted that is not a resolved issue in the case and may well be contentious. 

5. Importantly, the Husband attests to a number of mental health issues that are affecting him, including depression.  One may assume that people who are subject of the litigation proceedings within this jurisdiction on a widespread basis suffer from the effects of depression, which is accentuated by their participation in the litigation process. 

6. In this case the Husband as has brought forward specific evidence about his failure to cope within the context of that litigation process.  That is, there is serious emotional or psychological trauma being brought about by the currency of the proceedings.  Having seen the terms of the expert evidence in relation to the Husband I note that his case may not be sufficient to promote this case to the possible detriment of other cases within the list. 

7. However, the case to give it expedition is made clear by the evidence presented on behalf of the Wife.  In particular, the evidence that she is currently suffering from post-traumatic stress disorder.  The symptoms of that include intrusive, unwanted, disturbing memories, suffering from panic, and suffering from heart palpitations.  The prognosis that is put forward for the Wife is contained at [3b.] of the report of the affidavit prepared by Ms D, who is a psychologist who is currently treating the wife.  I will read from that paragraph in full:

   [Ms Modarelli's] presentation self-report is best accounted for by diagnosis of post-traumatic stress disorder.  According to the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) the duration of symptoms varies with some experiencing complete recovery in three months and others twelve months to fifty years. 

   [Ms Modarelli] is at significant risk of re-traumatisation and intensification of her symptoms while waiting for her separation to be finalised by the court.  In my opinion [Ms Modarelli's] recovery will be greatly affected by ongoing adverse events and reminders of the traumatic events of her past fifty two years.  In addition [Ms Modarelli’s] social isolation, financial and other trauma-related losses may further exacerbate her PTSD symptoms. 

8. Accepting that delays in proceedings in this Court, meaning that people have to generally wait in the order of two to three years to have their matters finalised, is itself traumatic and damaging to parties and damaging to children where they are involved, is likely to worsen a party’s mental health, is likely to worsen their practical circumstances and likely to have damaging effects on the children, in this case the particular evidence of harm, in particular in relation to the Wife, also when added on top of the evidence of harm to the Husband, is sufficient to give this matter priority at the expense of other cases particular because of the post-traumatic stress disorder, the risks of re-traumatisation, intensification of that disorder and exacerbation of that disorder. 

9. That means that it is sufficient to give this case priority such as to bring it on for hearing in the first half of 2019.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 September 2018.

Associate: 

Date:  17 September 2018