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…