Overland and Overland

[2010] FamCA 189

FAMILY COURT OF AUSTRALIA

OVERLAND & OVERLAND [2010] FamCA 189

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedition

APPLICANT: Ms Overland

RESPONDENT: Mr Overland

FILE NUMBER: SYC 7805 of 2009

DATE DELIVERED: 12 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 12 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Holmes

SOLICITOR FOR THE APPLICANT: Slade Manwaring Solicitors

COUNSEL FOR THE RESPONDENT: Ms Kirkman

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

1. That the mother’s Application in a Case filed 1 March 2010 seeking expedition of the substantive proceedings is refused.

2. That the father’s oral application for costs is refused.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7805 of 2009

MS OVERLAND

Applicant

and

MR OVERLAND

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, the wife has sought expedition.  This is an appeal from a deputy registrar who refused that expedition, despite the fact that, at that time, the husband supported the wife in the expedition application, or at least did not oppose it.  He now opposes it.  The Deputy Registrar’s reasons are not really of any relevance to me, but I should mention them because they point to the real issues in this case.  He did not allow the expedition because the processes of the Court have not been followed by the parties to the extent that those processes are intended to encourage the parties and to achieve settlement of all of their issues.

2. The parties have not yet had a conciliation conference and they have not been through the child responsive program. That is what he relied upon to refuse the application.  The wife’s application is based upon continuing stress created by the fact that the parties have, according to her, been separated under the one roof for so long that the situation is untenable.  There is some dispute about how long they have been separated but there is no dispute about the fact that the proceedings were not commenced until December last year.

3. The issue of separation under the one roof is really an issue that is properly dealt with by an interim application, rather than, ultimately, by final orders.  Mr Holmes submitted that one of the matters that I cannot take into account or should not take into account is the effect of an expedition order.  I think that that is essentially correct, but I think that the reality is that if I were to make an expedition order, little would change in the position in the short term in the likelihood of the matter being heard to finality faster because of it. I think that the Court cannot ignore that fact, even if it is the case that expedition would be relatively ineffective at this stage However, one does not know what will happen in this court in the future which might be relevant and one would hope things might change to the extent that an expedition order can be fully effective.  At the moment, my understanding is that there are not enough judges in this registry, that there will be one more judge appointed to the registry, hopefully in the near future, but that there are 200 cases or more awaiting allocation to a judge’s list and that the new judge is not likely to be allocated more than 70 cases, so there will still be 140 other cases awaiting hearing which have not been allocated to a judge.

4. One would think that all of the people who are taking so long to have their cases heard because of the insufficient number of judges in the registry are equally as keen to get their cases on and there are likely to be many cases where it could be argued to an equal extent that there should be expedition.  In this particular instance, I think that, although Mr Holmes is correct in saying that there should be an order without considering the state of the list, that does not mean that I should not consider the pressures on the wife in this case as compared with the pressures on other parties to get their cases on.

5. This case is not particularly unusual.  The parties have lived in New South Wales for a long time, the wife wants to return with the children to New Zealand.  There are many cases of a relocation nature awaiting hearing, no doubt.  There are many other cases where, for one reason or another, the parties feel that their matter should be dealt with urgently.  In my view, there is nothing about the current proceedings which would warrant them being regarded as so exceptional that an expedition order should be made. I think that the appropriate order is to refuse the application for expedition because, in the instance that the wife is really complaining about, and that is, the stress to her of living under the one roof with the husband can be altered by an interim interlocutory application I should refuse the application for expedition.

6. The husband, in anticipation of such a refusal, seeks costs.  I am of the view that, at this stage, it would be most inappropriate to make a costs order.  The effect of a costs order so early in the proceedings would be to increase the level of animosity between the parties more than the effect of refusing a costs order will.  The very nature of these proceedings is such that they are recognised as proceedings of a type where the parties should be given every possible opportunity to compromise and settle without the interference of a judge. An order for costs will tend to undermine that. It is not for no reason that section 117 of the Act provides that a cost order should be only made in exceptional circumstances and that otherwise parties should meet their own costs.  I can see good reason for such a section and this case, at this stage, is a good example of that. I shall refuse the application for costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              1 April 2010