Moxell & Moxell

[2008] FamCA 377

FAMILY COURT OF AUSTRALIA

MOXELL & MOXELL [2008] FamCA 377

FAMILY LAW – PRIORITY HEARING – Application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Moxell

RESPONDENT: Mrs Moxell

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12019 of 2007

DATE DELIVERED: 28 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: BALLARDS

SOLICITOR FOR THE RESPONDENT: NANCY V BATTIATO

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC12017 of 2007

MR MOXELL

Applicant

And

MRS MOXELL

Respondent

INDEPENDENT CHILDREN’S LAWYER

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.  I must say that I am puzzled as to why the property issues have not resolved.  Each party has filed a financial statement saying that the assets for division are the equity in the home about which there appears to be no dispute of any significance and a modest amount of superannuation.  I note that the Registrar in February 2008 waived the requirement of the parties to attend a conciliation conference on the basis that there were children’s issues still outstanding.  Whilst there may be some doubt about the wisdom of that, there is no indication in any of the material that I have read to suggest that any order relating to the children would affect the outcome of the property proceedings in any significant way.  When the matter ultimately reaches the trial stage, if the parties have not resolved the property dispute, the Court will give serious consideration to insisting that the parties do attend a conciliation conference notwithstanding the order of the Registrar.

3. The proceedings began with an application by the wife filed on 2 November 2007 seeking that she have sole parental responsibility for the three children C who is aged eight years, T who is aged six years and A who is aged two years.  She also sought that the children live with her and that the husband’s time be worked out by the Court.  Inappropriately, she sought that the “matrimonial” property be divided as to 80 per cent to her and 20 per cent to the husband.  For the reasons I have articulated about the equity, seeking that order seems to me to be inappropriate.

4. The wife also filed an application for an interim order that included that the husband submit to a psychiatric assessment.

5. It appears that the wife’s case is that the husband had abused verbally and physically, the children.

6. The respondent filed material on 29 November 2007 seeking equal shared parental responsibility and that the wife and children return to Melbourne forthwith.  He then sought a build-up of orders leading to an arrangement in which he had five nights out of 14 and that the travelling arrangements between the parties be shared.  In relation to property matters, he too sought inappropriate orders in that he sought a division of the property as to 60 per cent to the wife and 40 per cent to him.  I say inappropriate in respect of both parties having regard to the fact that the assets seem simple and clear.  To simply seek percentage divisions gives no indication to the Court as to whether the property is to be sold or one party is to buy the other’s interest.  That situation must be rectified before this matter proceeds any further.

7. The parties attended before Register Moser on 11 December 2007 at which time, an Independent Children’s Lawyer was appointed.  The parties agreed on some interim arrangements including that the husband’s time with the children be supervised at a contact centre in northern Victoria.

8. The matter returned to the Court before Senior Registrar Fitzgibbon on 1 February 2008 at which stage, the question of the future residence of the children was agreed by final orders.  That must therefore surely resolve any argument that the parties have in relation to property issues.  At that time, the Court ordered that the husband’s time with the children be at the Contact Centre.  That was an arrangement that the parties consented to.  The Senior Registrar was asked to make orders in relation to some supervised time with the husband’s family and that was so ordered. 

9. On 29 April 2008, the parties returned to the Court and the Senior Registrar continued the orders made on previous occasions.

10. As a consequence, an application by the husband has been made to expedite the hearing.

11. The applicant for the expedited hearing says that he is concerned about the lengthy separation from the children compounded by minimal time spent with him on a supervised basis over an extended period of time.  He says that that will cause long term damage to the relationship between the children and himself and their proper development.

12. The husband also seeks an expedited trial to “avert serious emotional or psychological trauma to the children”.  He says that given the ages of the children, any further delay will result in irreparable damage to the relationship. 

13. The wife in response to the husband’s application for an expedited hearing says that the current arrangements for the children to spend three weekends out of four create financial “distress” notwithstanding the husband’s contribution towards petrol costs and in addition, the children are not getting adequate rest on the weekends.  She points to the fact that the child support payments are about to decrease by $400 per month as a result of the recent legislative changes.

14. The wife also says that an expedited trial would allow all issues in dispute to be decided on a final basis and avert serious emotional and psychological trauma for the children in the event that C should be forced to see his father in circumstances where a finding could be made that the children have suffered under the hands of their father.

15. In every case, the Court must regard the best interests of the child as the paramount consideration.  Those interests will normally be promoted by giving the children some stability pending the full hearing of all relevant issues.  This is a case where the latter part of the relationship was obviously traumatic for all parties and the children and the parties together with the Court have tailored arrangements to give the children an opportunity to obtain some stability in their lives.  Albeit unsatisfactory to the husband, these arrangements would appear to be giving the children an opportunity to settle and there is no evidence that I have seen that indicates that there is a justification for the husband’s assertions to which I have just referred.

16. 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.

17. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:  Elizabeth Hore

Date:  28 May 2008