Narwat and Oresnek

[2012] FamCA 322

FAMILY COURT OF AUSTRALIA

NARWAT & ORESNEK [2012] FamCA 322

FAMILY LAW – PRACTICE AND PROCEDURE – Application for priority of hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Narwat

RESPONDENT: Mr Oresnek

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2312 of 2011

DATE DELIVERED: 8 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Robert Halliday & Associates

SOLICITOR FOR THE RESPONDENT: Robin Harrison & Associates

Orders

1. That the application of the wife for priority is granted.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Narwat & Oresnek 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: DGC 2312 of 2011

Ms Narwat

Applicant

And

Mr Oresnek

Respondent

REASONS FOR JUDGMENT

1. Mr Oresnek (“the husband”) and Ms Narwat (“the wife”) appeared before Senior Registrar FitzGibbon on 27 March 2012 in relation to parenting matters.  The Senior Registrar made orders by consent that all applications be adjourned to a date to be fixed before me to determine the question of whether a final hearing in the case be expedited.

2. This is an application for the expedition of the first day of hearing before a judge concerning the wife’s application to be able to take J (“the child”) (aged 4) to live in Switzerland.

3. The application of the wife to move to Switzerland with the child is opposed by the husband.  In addition, he opposes the expedition of the application.

4. Each party provided a written submission.

5. The wife’s submission was that a separation of the parties occurred in December 2009 subsequent to which the child had been in her care.  In January 2011, the wife went to Switzerland and in February 2011, returned to Australia with her male companion.

6. Some time around early 2011, the mother fell pregnant and now has a child M who was born in September 2011. 

7. The husband commenced proceedings in the Federal Magistrates Court in July 2011.  Those proceedings included property matters and they were finalised in October.

8. The issue before the Court then extant related to the wife’s desire to return to Switzerland.  A variety of interim applications were heard and ultimately, the case was transferred to this Court in February 2012.  The basis of its transfer was that it was an application for international relocation and there was an urgent application for an increase in time with the child by the husband.

9. The matter was listed in March 2012 before Senior Registrar FitzGibbon at which stage, orders were made relating to contact between the husband and the child.  That position remains.

10. The wife’s submission for priority was that her family lives in Switzerland and her fiancé is a Swiss national.  She pointed to the fact that they have a young child aged 7 months and to preclude her from moving to Switzerland would cause hardship because she wanted to finalise her marriage with her Swiss companion.  She asserted that an expedited trial would avert serious emotional or psychological harm although nothing particularly supported that.  Her concern was that her partner is in Australia on a visa and has to return to Switzerland when his visa expires.

11. The wife also submitted that her psychological wellbeing was being severely affected by her inability to relocate and there was the constant uncertainty and foreboding about her future against the background of what she asserted was the husband’s indifference to becoming a parent.  The rest of the submission in the document dated 20 April 2012 was highly emotive and irrelevant. 

12. In response, the husband said that there were no exceptional circumstances to warrant an expedited trial and that the plans of the wife to relocate were vague and uncertain.  The husband asserted that there was no basis provided by the wife to support her assertion that she was suffering a hardship because she was remaining in Australia and he pointed to a report of Dr N which expressed concerns about the child’s developmental problems.  It is suggested there may be an autism problem.  The extent to which Dr N was qualified to make that assertion is not clear.

13. The husband’s submission was that a “more measured approach” was warranted to enable the Court to consider and assess the child’s best interests.

14. This case was initially filed in July 2011 albeit at that time, it was the husband’s application.  He sought orders for limited time with the child and did not oppose the child living with the wife.  The wife’s response filed 31 August 2011 did not seek a relocation to Switzerland.  That came later.

15. Had the case been issued in this Court in the Melbourne Registry, it would have been allocated a trial date hearing around this time.  It is the policy of this Registry when a transfer is ordered by the Federal Magistrates Court of Australia to try and ensure that the case does not simply go to the bottom of the list but rather is placed in a queue so that it would be heard at around the same time as other cases that had been filed in this Court.  The exception to that rule is where the parties have not been diligent in endeavouring to resolve their problems and the delays are of their own making.  That is not the case here.

16. I am satisfied that had the case been before this Court, it would by now have been allocated a first day of hearing before a judge.

17. An application for expedition may be made following the procedure set out in Rule 12.10A of the Family Law Rules 2004. On the material, I am satisfied that the applicant has acted reasonably and without delay in respect of the conduct of the case and this particular application was foreshadowed in the Federal Magistrates Court which effected the transfer. Nothing in any of the material I have read has shown that there is any prejudice to the husband if the matter is given a date earlier than it might otherwise have been expected.

18. Although the material of the wife does not set out what her hardship was nor is there any medical material to which my attention was drawn which might indicate that there is a psychological problem associated with remaining in Australia that has an impact upon her parenting, as I earlier pointed out, this is a case that would have been given a first day of hearing around this time in any event.

19. I am satisfied that the application fits within the criteria set out in the rules.

20. I have considered the matters in Rule 12.10A(4) in respect of the relevant circumstances to which the rules also refer and even considering those matters, this is a case that warrants expedition.

21. It should be noted however that the expedition of a first day of trial does not mean that the case will be pre-judged nor that it will be heard anymore quickly than any other case because once before the judge, it is a matter for the parties to show what evidence is to be called having regard to the matters set out in Division 12A of the Family Law Act 1975 (Cth) (“the Act”) that will assist the judge in making the decision.

22. Accordingly, I make orders that the matter be listed for a first day.

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 8 May 2012.

Associate: 

Date:  8 May 2012