Peake and Cousins

[2018] FamCA 496

FAMILY COURT OF AUSTRALIA

PEAKE & COUSINS [2018] FamCA 496

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedition – Where the mother seeks her application be expedited – Application refused.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Ms Peake

RESPONDENT: Mr Cousins

FILE NUMBER: MLC 4941 of 2014

DATE DELIVERED: 2 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

Orders

1. The mother’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 < Peake & Cousins 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 4941 of 2014

Ms Peake

Applicant

And

Mr Cousins

Respondent

REASONS FOR JUDGMENT

1. The mother who is the applicant in the substantive proceedings makes an application seeking the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

2. On 2 May 2018 Registrar Sudholz made an order that all extant applications are adjourned to a date to be fixed before me to determine whether to expedite the final hearing. The orders also provided:

   2.That by 4 pm on16 May 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.

   3.That within 7 days of receipt of the applicant’s summary of argument, the responding party, file and serve a document indicating his support of or objection to the application for expedition.

   4.That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at …

   …

   6.That in the event the matter is not expedited it be adjourned to a date to be fixed before the Senior Registrar to determine the interim application, specifically the request for interim relocation in paragraph 4 of the Applicant’s application.

3. On 4 May 2018 the mother filed her summary of argument.  That document is headed:-

   APPLICATIONS for:

   A. Expedited Abridgement Final Hearing for temporary International   Relocation (non-immigration visas) to the USA with the children of the marriage,

   B. Sole Parental Responsibility for all major long-term children’s issues,

4. I will not be considering the mother’s application for sole parental responsibility.  The only application for determination by me pursuant to the orders of Registrar Sudholz is whether or not the final hearing should be expedited.

5. The father opposes the mother’s application for expedition and relies upon his submissions emailed to my associate on 11 May 2018.

6. The mother filed an amended summary of argument on 16 May 2018. This was after the father had filed his written submissions. The mother provided no evidence that she obtained consent from the father before filing further material.  Accordingly I have not considered that additional material.

7. These are my reasons for judgment with respect to the mother’s application for expedition.

Background

1. The mother is aged 44 and the father is aged 41.

2. Both parties are self-represented.

3. There are two children of the relationship, X aged 10 and Y aged eight.

4. Final parenting orders were made by consent in the Federal Circuit Court by Judge Bender on 13 October 2015. Those orders provide for the parties to have equal shared parental responsibility for the children, for the children to live with the mother and for the children to spend time with the father for specified periods on alternate weekends, mid-week during school terms and during school holiday periods.

5. On 11 April 2018 the mother filed an Initiating Application in this Court. The orders sought by the mother include that the children be permitted to leave Australia to travel to the United States in the company of the mother “as soon as the mother determines she wishes to leave Australia after 30 July 2018”.  The mother also seeks orders that she have sole parental responsibility for the children.  While not expressed in her Initiating Application, the mother in her submissions seeks orders for permission to “temporarily” relocate and to establish residence with the children in the United States.

6. On 24 April 2018 the father filed his Response seeking that the final parenting orders dated 13 October 2015 remained “unchanged and unvaried” save for one addendum. The father also seeks alternative orders in the event that the mother relocates to the United States.

Legal Principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge.

2. 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

1. These proceedings were commenced by the mother on 11 April 2018 and she filed her submissions in support of expedition some two days after the orders made 2 May 2018 for their filing.  Accordingly, I am satisfied that the mother has filed her application for priority without delay.

2. However, it is evident from the mother’s submissions that she has put in train arrangements for her proposed relocation to the United States prior to making application to the Court for permission to do so.  For example, the mother was granted a non-immigration employment visa for the United States on 22 February 2018 on the conditional basis that her employment contract would commence on 1 April 2018.  Further, the mother submits that she entered an employment contract to commence on 1 April 2018 and also secured a position at the University of F State to commence on 27 August 2018.

3. In those circumstances the father questions, quite reasonably in my view, why the mother waited until 11 April 2018 to file her Initiating Application given that she must have made application for her employment and visa to travel well prior to filing her application with the Court.  To that extent, I am not satisfied that the mother has acted reasonably in the conduct of the proceedings.

4. As to whether the father would suffer any prejudice if the matter was expedited, the father submits that he requires more time to prepare the case as he is self-represented. He submits the following:

   [The mother] has nearly completed all of her coursework for a … degree at [C] University as well as having extensive legal expertise within her family (father, sister, and brother). Her sister frequently attends hearings with her to offer assistance. I have no such support.

5. The mother does not address the issue of prejudice in her submissions.

6. Rule 12.10A(2)(d) 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).

7. The mother’s submissions centre on detriment and hardship that she and the children will suffer if they do not relocate to the United States by August 2018.

8. In response the father submits that the matters relied upon by the mother are “completely manufactured to rush through the courts”.

9. The mother relies upon the following matters to support her application for priority:-

   ·the children’s first semester for the 2018/2019 school year in the USA commences on 30 August 2018;

   ·she has enrolled the children at D School in F State. The mother submits that if the children miss the commencement of the first semester they may lose their place at that school, or potentially have to attend different schools, which would be to the children’s detriment;

   ·she has secured a rental property in the United States.  The mother submits that unless the proceedings are expedited the mother may suffer hardship in having to secure another property with the potential loss of her bond and action for breach of the rental agreement;

   ·she has purchased non-refundable air tickets for departure to the United States on 14 August 2018;

   ·she has arranged for the children to attend specialist medical appointments on 18 September 2018.

10. Having regard to the matters relied upon by the mother, I accept the father’s submission that the mother by her actions, has endeavoured to force the Court’s hand in expediting the proceedings.  It is evident that the mother has made arrangements to relocate before filing her application seeking the Court’s permission to do so.  In my view such actions are not reasonable and are not an appropriate justification for the grant of expedition to the detriment of other cases.

11. The father submits that in a 12 month period the children have attended three different schools and that the mother’s application will further disrupt their school routine and stability.  He submits that the proposed relocation is unfair to the children.  In my view, such matters are issues to be determined by the trial judge.

12. The father also submits that he does not believe that the children’s health issues are better addressed in the United States than Australia as asserted by the mother and that such matters do not form the basis for expedition.  Again, issues related to the children’s health care are matters for determination by the trial judge.

13. Rule 12.10A(2)(c) provides that the court may consider whether the applicant is suffering financial hardship that is not caused by the applicant and cannot be rectified by an interim order. As mentioned above the mother submits that she has purchased return tickets for herself and the children to the United States to depart on 14 August 2018 and return on 22 December 2018. The mother submits that the airfares are non-refundable and that “it would be a great financial burden on our family to have to re-purchase new tickets at a later stage”.

14. The mother also submits that if the trial is not expedited, she risks losing her “rental residence, monetary bond already paid and risk the legal ramification for breach of contract if we break our lease”.

15. The father submits the following in relation to the rental deposit and airfares:

    Why would the [mother] purchase non-refundable airplane tickets and a non-recoverable deposit without any guarantee of the Court’s permission except to create the circumstance of false urgency?

16. In my view the alleged financial hardship arising as a result of the mother’s purchase of airfares and entering into a lease agreement are matters of her own making. The mother has chosen to purchase the tickets and enter into a rental agreement prior to the determination of her application to travel with the children to the United States.  In my view such matters are not a justification for expedition of the proceedings.  Further, even if the matter is afforded priority, it is highly unlikely that it will be heard and determined prior to August 2018.

17. The mother also submits that if unable to commence employment in the United States there may be an exacerbation of her “emotional distress and unhappiness and the potential deterioration of [her] mental health”.  

18. The mother refers to a psychiatric report of Dr G dated November 2014 and submits that the report stated:

    … that due to my extreme circumstances involving the Respondent Father and my professional issues in Australia, I was experiencing periods of increased distress with evidence of depression and severe unhappiness with “a pattern of adjustment disorder with depressed moods”. He also stated that the stress of issues relating to the Respondent Father may have caused my distress and adjustment disorder.

19. The mother submits that she fears for her “unhappiness, mental health and potential regression to my adjustment disorder and depression”.

20. The report of Dr G was prepared almost four years ago and pre-dates the current parenting orders.  There is no current evidence before the Court as to the mother’s psychological functioning or as to the impact upon the mother if her application for expedition fails.  In the circumstances, I do not accept the mother’s submissions with respect to her health.

21. The mother also submits that she needs to relocate to the United States for her own mental health, welfare and happiness “regardless of the final decisions of the Family Court for relocation of the children” and that the “questions of the best interests and residence of the children would remain for the Family Court to determine after my relocation”. It appears from that submission that the mother intends to relocate to the United States irrespective of whether her application for expedition is granted.

Conclusion

1. Having regard to the above matters I am not satisfied that the mother has acted reasonably in the conduct of the case and in filing her application for expedition.  The mother did not file that application until after securing employment, enrolling the children in a school, obtaining a visa, securing rental accommodation and purchasing non-refundable air tickets; those actions were then relied upon by her as a justification for expedition.     

2. I am satisfied that the expedition of the hearing would cause the father hardship. The father is self-represented and if the proceedings were to be expedited and finalised prior to August 2018 the father would have insufficient time to prepare his case.

3. As to the financial loss the mother alleges she will suffer if the matter is not expedited, in my view any loss suffered is of her own making.   Her decision to purchase air tickets and secure rental accommodation prior to the court’s determination of the issue was ill-considered and is not a basis for expedition.

4. Rule 12.10A(2)(d) of the Rules provides that the Court may consider whether the continuation of the interim orders are causing the mother and the children hardship. The current orders are final orders and have been in operation since October 2015. The evidence the mother relies upon with respect to her mental health issues pre-dates those orders. In the circumstances I am not satisfied that the continuation of the current orders causes any hardship to the mother or the children.

5. It is unlikely that the matter will be heard and finalised prior to 30 August 2018 even were the matter afforded priority.   In any event, the mother submits that she will relocate without the children in the event that her application for expedition is unsuccessful.  

6. The Rules make it clear that the Court needs to balance whether the benefit that will be afforded to these parties by granting priority outweighs the detriment that will be caused to other cases similarly awaiting hearing. Some of the cases awaiting hearing involve serious allegations of family violence and child abuse and where it is alleged that children are at risk of harm. Against that backdrop, I cannot justify affording this case priority.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 July 2018

Associate:

Date:  2 July 2018