Morrison and Rennie

[2017] FamCA 593

FAMILY COURT OF AUSTRALIA

MORRISON & RENNIE [2017] FamCA 593

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Mr Morrison

RESPONDENT: Ms Rennie

FILE NUMBER: MLC 5695 of 2016

DATE DELIVERED: 14 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mitchell Family Law

THE RESPONDENT: In Person

Orders

1. All extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably 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 Morrison & Rennie 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 5659 of 2016

Mr Morrison

Applicant

And

Ms Rennie

Respondent

REASONS FOR JUDGMENT

1. The parties commenced cohabitation in 2007, were married in 2010 and separated in August 2015.

2. The husband in these proceedings seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is not opposed by the respondent wife.

3. The husband relies on the following documents in support of  his application:

   a)Application in a Case dated 7 July 2017 (not filed);

   b)Affidavit of the husband sworn 7 July 2017 (not filed);

   c)Affidavit of Dr B affirmed 11 July 2017 (not filed);

   d)Summary of Argument dated 1 August 2017 filed pursuant to orders made by Registrar Jenkins on 25 July 2017.

4. The wife relies upon her Response to Husband’s Application for Priority Hearing dated 8 August 2017.

5. The proceedings were commenced by the husband by way of an Initiating Application filed on 22 June 2016 seeking orders for property settlement. The husband now seeks to expedite the final resolution of the proceedings. That application is not opposed by the wife. To the contrary although she does not necessarily accept the factual basis upon which the husband relies she asserts that if the matter is not afforded priority there is a risk that the real estate valuations will become stale.   

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. As set out in the Rules:

   (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 has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

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

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

   (4)  For paragraph (2)(d), a 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.

Discussion

1. There is no dispute in this case and I accept that the husband has acted reasonably in the conduct of his application for priority and the conduct of his case generally.

2. The critical issue in this case with respect to the question of whether or not the matter should be afforded priority is the age and state of health of the husband. The husband relied upon the affidavit of Dr B who has been treating the husband since January 2010.

3. Dr B described the husband who is now 80 years of age as currently being in “less than perfect health”. It is his evidence that the husband, suffers from depression and moderately severe anxiety which is aggravated by both the length of the litigation and his uncertain future as a result of the breakdown of the relationship. I note in this regard that the wife is living in the home the parties shared during the relationship, which was the husband’s home prior to the relationship and which he seeks to retain. He has a chronic lung condition making him prone to frequent bouts of bronchitis; he takes medication for an underactive thyroid condition and suffers stomach acid reflux.  There is also evidence of him having had a stroke or cerebellar infarct.

4. Although Dr B expressed the hope that the husband’s mental health issues and weight loss issues will resolve when the proceedings are concluded some of his ailments are of a more permanent nature.

5. I am satisfied that in this case, having regard in particular to the age of the parties and the husband’s health issues that there are circumstances which justify this matter being afforded priority over other matters that are in the list awaiting hearing. In all of the circumstances I propose to order that this matter be allocated to a judicial docket as soon as practicable.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 August 2017.

Associate: 

Date:  14 August 2017