Occan and Melot

[2017] FamCA 297

FAMILY COURT OF AUSTRALIA

OCCAN & MELOT [2017] FamCA 297

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Occan

FIRST RESPONDENT: Mr Melot

FILE NUMBER: MLC 370 of 2013

DATE DELIVERED: 28 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MST Lawyers

SOLICITOR FOR THE RESPONDENT: Carew Counsel

Orders

1. All extant applications for final orders be listed for mention before Justice Macmillan at 11.00 am on 1 May 2017 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 Occan & Melot 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 8329 of 2016

Ms Occan

Applicant

And

Mr Melot

First Respondent

REASONS FOR JUDGMENT

1. The mother, who is the applicant in this case, seeks the expedition of the trial management hearing of her application pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is supported by the father.

2. Final orders were made by consent on 23 January 2013 providing inter alia that the parties have equal shared parental responsibility, that the child live with the mother and spend time with the father by Skype while he is living outside of Melbourne and upon him returning to live in Melbourne in June 2013, each alternate weekend, each Wednesday from after school until before school on Thursday, half school holidays and on special occasions. Final property orders were also made by consent on this day.

3. The mother filed an Initiating Application in this Court on 24 January 2017 seeking to relocate with the child B born in 2008 to Country E in the Middle East.

4. The matter came before Registrar Mestrovic on 1 February 2017 and orders were made by consent providing for the wife to file written submissions in support of her application to expedite the first day before a Judge, for the father to file responding material and for the parties to attend upon Dr C for the purposes of the preparation of a family report.

Legal Principles

Pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”) a party may apply to expedite the first day before the 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. It is the mother’s case that she has always been the children’s primary carer and has lived in Australia with B since March 2012. The father returned to live in Melbourne in November 2013 and in December 2015 moved to live in Country D in the Middle East. The mother submits the father has no plans to return to live permanently in Australia.

2. The mother submits, and I accept, that she has acting reasonably and without delay in the conduct of her case. She has filed the appropriate documents, sought an abridgment of the listing of the matter, served the application on the father and at the earliest opportunity sought an expedition of the trial management hearing when the matter first came before the Registrar of this Court.

3. The mother also submits that the father will not be prejudiced by an expedited trial management hearing in circumstances where he has been aware of the mother’s wish to relocate with B since 29 November 2016, is legally represented, travels regularly and can readily attend court events in Australia.

4. The mother seeks to relocate to Country E with the child as she wishes to live with her husband who is living and working in Country E and has been unable to secure employment in Australia. The mother’s case is that she has found it increasingly difficult and stressful to maintain a long distance relationship with her husband and feels unsupported and lonely in Australia. The mother also submits that she is under significant financial pressure having regard to the costs of maintaining separate households particularly so given that the father is assessed to and pays only nominal child support.  Albeit the evidence is yet to be tested the father has not taken issue with the mother’s submissions and supports her application for priority.  

5. The parties in this case have also filed their affidavits of evidence in chief and a family report is in the process of being prepared.  In all of the circumstances I am satisfied that there are circumstances in this case that warrant the matter being given priority and I propose to list the matter in the callover of cases fixed for 1 May 2017. Although it may not be possible for the matter to be heard and determined by 1 July 2017 as the mother seeks it will be , the matter having been granted priority it will be fixed for hearing as soon as a suitable date is available.  

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan on 28 April 2017.

Associate: 

Date:  28 April 2017