MONAHAN & MONAHAN

[2014] FamCA 129

FAMILY COURT OF AUSTRALIA

MONAHAN & MONAHAN [2014] FamCA 129

FAMILY LAW – PRACTICE AND PROCEDURE – Submission seeking priority

Family Law Act 1975 (Cth)

APPLICANT: Mr Monahan

RESPONDENT: Ms Monahan

FILE NUMBER: MLC 5647 of 2013

DATE DELIVERED: 13 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM:

THE APPLICANT: Berry Family Law

Orders

UPON READING THE WRITTEN SUBMISSION SEEKING PRIORITY UNDER RULE 12.10A,  
IT IS ORDERED:

1. That all extant applications for final orders are listed to a HEARING before the Honourable Justice Bennett on a date to be fixed by her Honour’s chambers for the purposes of listing the matter for final hearing.

2. That the parties and if represented, their legal practitioners, attend the first day of hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Monahan & Monahan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5647 of 2013

Mr Monahan

Applicant

And

Ms Monahan

Respondent

REASONS FOR JUDGMENT

1. On 19 February 2014, Registrar Mestrovic made procedural orders in this matter giving both parties the opportunity to seek to expedite a parenting dispute. The order provided a timetable.

2. By written submission filed on 26 February 2014, Mr Monahan, (“the husband”) sought an order that his amended application filed 6 February 2014 be expedited to a first day before a judge.

3. No response to that submission has been received from Ms Monahan, (“the wife”). The time for that submission to be filed expired on 5 March 2014.

4. The husband’s solicitor’s letter enclosing the submission said that it had been served on the solicitors on the record for the wife. The Court therefore presumes that she did not wish any matter to be taken into account in response.

5. The parenting dispute over H, (“the child”) is of long standing. Orders were made in 2005 under which the child who is now 12 years of age live with the wife and spend time with the husband.

6. It seems that the wife has medical problems culminating in hospitalisation. In recent months, the child has been living with the husband and spending time with the wife.

7. The precipitating factor that gives rise to this application is that the husband wants to move to the United Arab Emirates, (“UAE”) where he has professional employment prospects as a healthcare worker. The wife opposes that move but also wants the current parenting situation to revert to what was ordered in 2005.

8. This case had been in the Federal Circuit Court and Judge Connolly ordered the preparation of a family report. That report is on the court file and is helpful.

9. There is little doubt that the child is aware of his father’s desire to move to UAE and that his mother opposes it. The child impressed as being measured and mature in his discussion with the family consultant. It is clear that whilst he loves both parents, he gave the impression of being aligned with his father and expressed concerns about his mother.

10. Leaving aside the international relocation move issue, the parenting issue has been comprehensively canvassed by a very experienced family consultant. The child’s views may carry a significant weight but the major issue is that the employment prospects are better for the husband overseas. The child is schooled at an expensive private school in Melbourne the fees for which are being paid by the husband. His evidence is that he is working two jobs to pay those. In respect of the overseas travel issue, the child is an experienced traveller and seems excited about such a move. That would mean being away from his mother and that issue did not seem to trouble him.

11. For the wife’s part, it appears that she has the ability and the desire to travel to UAE if the Court permits the child to go.

12. Rule 12.10A(1) of the Family Law Rules 2004 provides that a party may apply to expedite the first day before a judge and, upon considering that application, the Court may take into account a number of matters set out in sub-rule (2). Those include things relating to the way in which the parties have approached the expeditious disposal of their case. In other words, have they done everything that could be done to sort out their own dispute before requiring the Court to intervene and determine it for them? Part of that consideration is whether or not there would be any prejudice to the respondent. In a parenting case, the focus will be on the interests of the child rather than the prejudice to the parent because the welfare of the child is the paramount but not the only consideration.

13. Another important consideration set out in the rules is whether there is an applicable relevant circumstance justifying the case being given priority to the possible detriment of other cases. The rules provide some assistance by stating the following:

    relevant circumstance includes:

    (a)whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or     witness would affect the availability or competence of the party or witness;

    (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;

    (c)whether the applicant is suffering financial hardship that:

    (i)is not caused by the applicant; and

    (ii)cannot be rectified by an interim order;

    (d)whether the continuation of interim orders is causing the applicant or a child hardship;

    (e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

    (f)whether the case involves allegations of child sexual, or other, abuse; 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.

14. If the Court is satisfied that some or all of the criteria apply and it or they justify the case being given priority to the possible detriment of other cases, the rules provide for a discretionary determination to

    (a)set an early first day before the Judge; and

    (b)make procedural orders for the further conduct of the case.

15. I am satisfied that the husband has filed his application seeking the relocation expeditiously. There can clearly be no prejudice to the wife in the case being heard earlier than it would otherwise be heard having regard to the fact that she wants the child to live with her and not a continuation of the present arrangements. In any event, she has not brought to the Court’s attention any prejudice to her.

16. There are no issues of witnesses being unavailable.

17. There is a pressing financial issue here relating to the husband’s ability to continue to have the child continue to attend the school at which he has been a student all of his life. Nothing I have read suggests a solution from the wife to that impasse. The overseas posting seems to bring with it significant financial advantages. To the extent that the wife disagrees with that, she did not say so.

18. Whilst the interim parenting orders are not to the wife’s liking, there has been no urgent application for an alteration of that at a time when the matter was listed for final hearing before Judge Connolly. No interim application has been brought before this Court to alter the status quo.

19. Whilst the mother seeks financial relief in employment and property in Ireland, I do not perceive that to be a pressing issue.

20. Many cases in this registry face similar pressures and the Court’s resources are finite. The rules guide the Court to contemplate why this case should be given priority over those other cases.

21. On balance, this is a case where the urgency of a full trial can be considered by a trial judge examining just what evidence is going to be led and what, if any, expert evidence is to be called. On the submission of the husband, the balance of convenience suggests that this case should be expedited over other cases which demand the resources of the Court.

22. Accordingly, I propose to expedite the first day before a judge but obviously leave it to that judge to decide when it should be heard.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 March 2014.

Associate: 

Date:  13 March 2014