NORBURN & NORBURN
[2018] FamCA 704
•12 September 2018
FAMILY COURT OF AUSTRALIA
| NORBURN & NORBURN | [2018] FamCA 704 |
| FAMILY LAW – PRACTICE AND PROCEDURE – application for expedited hearing – application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Ms Norburn |
| RESPONDENT: | Mr Norburn |
| FILE NUMBER: | CAC | 670 | of | 2017 |
| DATE DELIVERED: | 12 September 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | Written Submissions in Chambers |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Sautelle White Lawyers |
| THE RESPONDENT: | In Person |
Orders
The wife’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.
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 Norburn & Norburn 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: CAC 670 of 2017
| Ms Norburn |
Applicant
And
| Mr Norburn |
Respondent
REASONS FOR JUDGMENT
The wife, who is the applicant in the proceedings, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).
On 3 August 2018 Registrar Jenkins made the following orders:
1.These proceedings are added to the list of cases awaiting allocation to a judicial docket with priority from 3 August 2018.
2.That all extant applications of all parties are adjourned to a date to be fixed before the Honourable Justice Johns to determine whether to expedite the final hearing.
3.That by 4 pm on 17 August 2018, the party seeking the expedited hearing, file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.
4.That within 7 days of receipt of the applicant’s summary of argument, the responding party, file and serve a document indicating his or her support of or objection to the application for expedition.
5.That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at …
6.That unless Her Honour determines otherwise, the determination of the issue of priority be heard and finalised in chambers.
…
On 21 August 2018 the wife filed her application seeking expedition of the proceedings.
The husband filed his response to the wife’s application on 31 August 2018.
These are my Reasons for Judgment in respect of the wife’s application.
Background
The wife is aged 44. The husband is aged 49. They commenced cohabitation in December 2001, married in 2003 and separated in September 2016.
There are three children of the marriage, X aged 14, Y aged 13 and Z aged nine.
The wife initiated proceedings in this Court on 19 April 2017 in the Canberra Registry, seeking both parenting and property orders.
The husband filed his Response on 4 May 2017 and sought, amongst other orders, that the matter be transferred to the “Dandenong Registry of this Court”
On 16 May 2017 Gill J made orders transferring the proceedings to the Federal Circuit Court at the Dandenong Registry.
On 25 July 2017 Judge O’Sullivan made a number of orders including listing the matter for final hearing on 7 June 2018 and trial directions were made.
Final parenting orders were made by consent on 15 December 2017. Those orders also noted that the property proceedings remained listed for trial on 7 June 2018 and that the orders and directions for trial made on 25 July 2017 remain in full force and effect.
On 24 May 2018 Judge O’Sullivan ordered the transfer of the matter to this Court. The notations to that order were as follows:
A.The parties have not complied with orders of 25 July 2017 which fixed the matter for a two day trial.
B.The matter is likely to take four or more days with four professional witnesses to be cross examined and the respondent is self-represented.
C.The parties do not oppose the matter being transferred to the Family Court of Australia.
D.The applicant seeks an order for a spilt of the Defence Force Retirement and Death Benefit of the respondent and decisions in Semperton & Semperton [2012] FamCAFC 132, Campbell & Superannuation Complaints Tribunal [2016] FCA 808, Welch & Ahney [2016] FamCAFC 271, Campbell & Superannuation Complaints Tribunal [2017] FCA 1509 and Welch & Ahney [2018] FamCA 135.
Legal Principles
Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge.
In determining an application to expedite the first day, r 12.10A of the Rules provides 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 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
The wife in her submissions fails to address the considerations under r 12.10A(2)(a)-(c) of the Rules. Rather her submissions focus upon the procedural history and allegations in relation to the husband’s behaviour.
Doing the best I can absent submissions which address the considerations identified in r 12.10A(2)(a)-(c) of the Rules, I am satisfied that the wife has filed her application for expedition without delay in circumstances where the proceedings were transferred to this Court in May 2018. However, I am not persuaded that the parties have conducted the proceedings reasonably and without delay, having regard to Notation A of the orders dated 24 May 2018, which indicates that the parties failed to comply with the trial directions dated 25 July 2017.
Absent any submission as to prejudice that would be suffered if the proceedings were expedited, I am satisfied that neither the husband nor the wife would suffer any prejudice if I were to grant this matter priority.
Rule 12.10A(2)(d) of the Rules requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).
Rule 12.10A(4)(c) of the Rules provides that a relevant consideration that the Court may take into account is whether the applicant is suffering financial hardship that is not caused by the applicant and cannot be rectified by an interim order.
The thrust of the wife’s submissions centre around financial hardship she alleges she has suffered as a result of the litigation. The circumstances the wife points to includes:
· That the parties have attempted to resolve their matter for almost two years;
· That the husband has received a “generous income” from his pensions during the proceedings;
· That the wife no longer resides in the former matrimonial property which was previously her main source of income;
· That the wife has spent considerable money preparing the matter for trial; and
· That the husband continues to use the matrimonial home to run several businesses.
Although asserting financial hardship, the wife concedes that the parties hold $252,420.59 in a controlled money account pending the determination of the matter.
The wife also raises issue with the disposal of chattels by the husband. Those matters are not relevant to the question of whether this matter should be afforded priority to the detriment of other cases.
Finally, in support of her application the wife provides the dates upon which her counsel of choice is available for trial in 2018 (Annexure E). Even if I were minded to grant this matter priority, it is unlikely that the matter would be heard in 2018. The Court is certainly not in a position to list a matter to a specific date in order to satisfy counsel’s convenience.
In response to the wife’s submissions, the husband contends that the wife has disclosed an income of over $1,200 a week and that she has not disclosed any current liabilities. He also submits that the wife is supported by her mother and that the wife has disclosed that “she works for a family member on a cash in hand basis”.
The husband further submits that any financial hardship being suffered by the wife pending a final hearing can be rectified by an interim order for partial or equal distribution of the proceeds of sale of the former matrimonial home. The husband also submits that both parties are able to support themselves pending the trial, with or without an interim distribution of funds.
The husband denies the wife’s allegations regarding his use of the former matrimonial home. He asserts that his sister, who purchased the former matrimonial home, has established the property as short term rental and that he does not earn any income from that business.
I am unable to make any findings regarding the contentions of the parties as to their financial circumstances absent a testing of evidence at final hearing. The determination of those issues will be a matter for the trial judge.
The husband also submits that there is currently a matter pending before the “Administrative and Arbitration Tribunal” and that the outcome of that case is relevant to the treatment of his interest in a Defence Force Retirement and Death Benefit. The relevance or otherwise of that decision to the determination of the issues before this Court will be a matter for the trial judge.
In conclusion, the husband submits that there is no relevant circumstance that justifies the case being given priority and relies on the following:
· That both parties are in a “healthy stable position” which is not likely to change;
· That there is no purpose of the case which will be lost if it is not heard quickly;
· That there are no allegations of “threatening or intimidating behaviour”;
· That no trauma will be suffered by either party or the children; and
· That neither party will be prejudiced by a delay.
Conclusion
I am not satisfied that this matter should be granted priority to the possible detriment of other cases awaiting trial. The mother’s submissions regarding the transfers of this matter between courts is not a circumstance that persuades me to grant this matter priority. Gill J made an order on 16 May 2017 transferring the proceedings to the Federal Circuit Court, and there was no appeal against that order. The transfer of the proceedings back to this Court one year later in May 2018 appears to have arisen in part due to the parties’ non-compliance with orders of that Court, which is referred to in Notation A to those orders.
Whilst the wife makes submissions that she is suffering financial hardship those contentions are disputed by the husband. It is conceded by the wife that the parties have over $250,000 currently held on trust. Having regard to that circumstance, I am not satisfied that if the wife is suffering financial hardship that it cannot be cured by an interim order.
Whilst the wife submits the parties have been attempting to resolve the matter for almost two years, the proceedings did not commence until April 2017. The parties had a trial date in June 2018 and seemingly did not comply with orders so as to enable it proceed on its listed trial date.
Other matters awaiting hearing involve serious allegations of child abuse and where it is alleged that children are at risk of harm. Against this backdrop, I cannot justify affording this case priority.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 September 2018
Associate:
Date: 12 September 2018
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