PEPINO & PETERS

[2013] FamCA 27

FAMILY COURT OF AUSTRALIA

PEPINO & PETERS [2013] FamCA 27

FAMILY LAW – PRACTICE AND PROCEDURE - Priority hearing application - application granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pepino

RESPONDENT: Mr Peters

FILE NUMBER: MLC 9408 of 2012

DATE DELIVERED: 1 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM:

THE APPLICANT: In person

THE RESPONDENT: Altavilla Vessali

Orders

1. That pursuant to rule 12.10A of the Family Law Rules, this case be granted an expedited first day hearing before a judge.

2. That the file be allocated to the Honourable Justice Bennett to be allocated such first day of hearing on a date and at a time to be fixed by her Honour.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pepino & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9408  of 2012

Ms Pepino

Applicant

And

Mr Peters

Respondent

REASONS FOR JUDGMENT

1. A registrar made orders on 3 January 2013 for the parties to file any material upon which each intended to rely for the purposes of my consideration as to the wife’s request for some priority in the hearing of their parenting dispute.

2. The wife filed a summary of argument on 18 January and although the husband had lawyers acting for the husband, he responded personally on 25 January.

3. I propose to grant the application because this case is a little unusual.

4. Rule 12.10A(1) of the Family Law Rules 2004 provides that a party may apply to expedite the first day before a judge and, upon considering that application, the Court may take into account a number of matters set out in sub-rule (2). Those include things relating to the way in which the parties have approached the expeditious disposal of their case. In other words, have they done everything that could be done to sort out their own dispute before requiring the Court to intervene and determine it for them? Part of that consideration is whether or not there would be any prejudice to the respondent. In a parenting case, the focus will be on the interests of the child rather than the prejudice to the parent because the welfare of the child is the paramount but not the only consideration.

5. Another important consideration set out in the rules is whether there is an applicable relevant circumstance justifying the case being given priority to the possible detriment of other cases. The rules provide some assistance by stating the following:

   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.

6. If the Court is satisfied that some or all of the criteria apply and it or they justify the case being given priority to the possible detriment of other cases, the rules provide for a discretionary determination to

   (a)      set an early first day before the Judge; and

   (b)      make procedural orders for the further conduct of the case.

7. The parents in this case have one child who is aged 7. He lives predominantly with the wife.

8. The wife also has a child from another relationship who is, by age, an adult but whose disabilities, means that she is in need of the care that a young child needs. That child lives in special accommodation in the United Kingdom.

9. The parties had lived and worked in the United Kingdom and it was the wife’s evidence to a Federal Magistrate that the relationship faltered there but upon being asked to come to Australia by the husband, did so to reinvigorate the relationship. That obviously failed but her decision to come to Australia also meant leaving her disabled daughter behind.

10. In March 2011, the parties separated. On 12 October 2012, the wife filed an application in the Federal Magistrates Court seeking parenting orders, the most significant of which was that she be permitted to relocate the child to the United Kingdom. The husband filed a response to that document seeking a sharing regime reflective of a week-about arrangement.

11. On 18 December 2012, the parties attended for a second hearing before a Federal Magistrate and the record shows that orders were made by the Court under which the child live with the wife and the father spend time with him initially for a 3 week block during the summer holidays and then when school began, for a number of days and nights in each week. The Court therefore must have been satisfied that the father could care for the child in a block period.

12. The substantive issue in dispute between the parties is where the child is to live in the future. The unusual feature is that the wife has her daughter in the United Kingdom along with opportunities to work there. She says that when they were all living in the United Kingdom as a family, the child enjoyed his time and friendships there. The wife has relatives in Australia but submitted that her desire and connection was in the United Kingdom. Apart from anything else, her daughter has care facilities there which the wife alleged were not available or not as good in Australia.

13. In his submission for a priority hearing, the husband simply said he did not agree with the facts alleged by the wife but otherwise supported the priority application.

14. Therefore, of the matters mentioned above, there can be no suggestion of any prejudice to anybody nor has there been any delay in respect of the conduct of these proceedings.  

15. The interim orders made by the Federal Magistrate do not appear to have been consent orders and they are certainly inconsistent with those that the wife sought in her application. I would not therefore presume that there is a comfortable and agreed status quo.

16. As can be seen from the rules, the mental health of a person is a consideration and in her written outline, the wife pointed to the stress associated with her position. It is not uncommon in so called international relocation cases, insofar as parenting capacity is concerned, to see evidence being led as to the impact of orders which effectively prevent the adult from returning to what is seen as “home” because they will not separate from a child who must remain in Australia.  On the written material before me, that seems to be the probable course that this case will take.

17. This case also seems to have financial restrictions because the wife submitted that she was unable to obtain government benefits and there seems to be economic uncertainties about the financial positions of both parties. On the other hand, the wife said that there were employment prospects in the United Kingdom that were open to her.

18. Whilst there are interim orders in place, as I earlier mentioned, they appear to the Court record to have been imposed upon the parties.

19. The wife also submitted that there were emotional and psychological problems about not being given an expedited hearing and I accept that in a parenting case, that is not unusual. Parenting proceedings often follow a separation which in itself, is a traumatic event after which, the parents have to pick up the pieces and begin to be what is often referred to as “child focussed” parents. I accept that that is all the more difficult where there is a separation of a parent from another child and a longing to be somewhere else. I accept that interim orders in this case do not ease that burden.

20. Many cases in this registry face similar pressures and the Court’s resources are finite. The rules guide the Court to contemplate why this case should be given priority over those other cases.

21. On balance, this is a case where the urgency of a full trial can be considered by a trial judge examining just what evidence is going to be led and what, if any, expert evidence is to be called. On the submissions of the parties, the balance of convenience suggests that this case should be expedited over other cases which demand the resources of the Court.

22. Accordingly, I propose to expedite the first day before a judge but obviously leave it to that judge to decide when it should be heard.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 February 2013.

Associate: 

Date:  1 February 2013