PICAR & JACK

[2019] FamCA 361

FAMILY COURT OF AUSTRALIA

PICAR & JACK [2019] FamCA 361

FAMILY LAW – PRACTICE AND PROCEDURE – whether the matter should be expedited – consideration of the relevant factors contained at r 12.10A of the Family Law Rules 2004 (Cth) – where the Mother wants to relocate with the children to Country D – where the Father opposes such relocation – where a delay in the proceedings may have an adverse impact on the Mother’s mental health.

Family Law Act 1975 (Cth) s 60CC
Family Law Rules 2004 (Cth) r 12.10A.

APPLICANT: Ms Picar

RESPONDENT: Mr Jack

FILE NUMBER: CAC 859 of 2019

DATE DELIVERED: 3 June 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 3 June 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Strong Law Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Davis

SOLICITOR FOR THE RESPONDENT: Uther Webster & Evans

Orders

1. This case is granted priority to the extent that it shall be listed for final hearing within the first six months of 2020.

2. That within 21 days of today's date the parties do all acts and things necessary to appoint and instruct an appropriately qualified single expert pursuant to Division 15.5.2 of the Family Law Rules 2004 (Cth) to prepare a report as to the matters relevant under s 60CC of the Family Law Act 1975 (Cth) in relation to the competing proposals of the parties contained in their applications filed in these proceedings as agreed, or failing agreement, the matter may be relisted firstly before the Registrar of the Canberra Registry of the Family Court of Australia and then before this Court.

3. The matter is otherwise transferred to the Registrar's list pending further interim application, noting that neither party otherwise presses their current interim applications, or pending the parties seeking to have the matter relisted before me for further directions.

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 Picar & Jack 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 CANBERRA

FILE NUMBER: CAC 859 of 2019

Ms Picar

Applicant

And

Mr Jack

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this case the parties have appeared before me on the first return date to argue a question of an expedition.  The general context is that the parties and the children have moved back and forth between Australia and Country D over a number of years.  The marriage now appears to have broken down in Australia and the Mother seeks to return to Country D with the two children. 

2. The parties have filed some material in the case on an urgent basis, and given the circumstances of the filing probably not on a comprehensive basis, and so we turn to the preliminary issue as to whether this matter should be expedited.  That question of expedition may then determine the listing process and whether the Mother proceeds to prosecute her interim applications, including an interim application for international relocation. 

3. The expedition process is dealt with at r 12.10A of the Family Law Rules 2004 (Cth). Without reciting the rule completely the question on which this issue turns is that identified in r 12.10A(2)(d):

   whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases. 

4. The other factors to be taken into account may be seen to be in favour of, or at least not tell against, an application for expedition.

5. In dealing with the question of relevant circumstances these are set out at sub-rule (4).  There are a number of relevant circumstances identified here.

6. Perhaps the most minor, and one which would be unable to be accommodated even if urgent expedition was given, is that the school year in Country D begins in September.  While one can see some benefits in having the children, if the relocation is to take place, commencing at the start of the school year it is simply not possible to deal with the matter within that timeframe. 

7. More emphasis was given to issues to do with the mental health of the Mother. 

8. Some reference was made in the Mother’s material, but reasonably not emphasised in submissions for the Mother, relating to other instability of circumstances.  There is some instability of circumstances. 

9. The parties have a lease for which the fixed term is shortly to end and the Mother says that her initial contract of employment comes to its end reasonably shortly.  Further, the parties are separated under the one roof which, without great description of the circumstances of that, must be extremely difficult for both of them and the children at present.  However, the matters emphasised by the Mother (at face value) at present do not appear to speak of significant uncertainty in her capacity to retain accommodation if it is required, or the Father's capacity to retain accommodation, or her capacity to obtain further employment.  That is in the context of the Mother having an apparently strong employment history. 

10. The matter which had the most emphasis was the Mother's mental health, which is important as the Mother's mental health impacts upon the children's well-being.  In support of that being an issue, the Mother points to what the Father has deposed to in his material.  He has deposed to distress and upset on the part of the Mother and that that is currently impacting upon the girls.  What is proposed by the Mother is that if there is an inability for her to move for an extended period it will impact upon her mental health and therefore on the children or that it would result in her effectively being forced to move without the children to support her mental health which would also impact upon the children. 

11. I note that these two issues were raised in submission by Ms Strong for the Mother, but that the Mother has not so bluntly put the risk of her moving without the children to Country D.  At this stage there is not a strong basis for me to assess that as being a risk, but rather the matter to be focused upon is the impact on her mental health of an extended stay in Australia and therefore the impact upon the children. 

12. The Father responds that the apparent stresses upon the Mother are not simply to do with whether or not she lives in Australia or Country D, but are also circumstances of the breakdown of the marriage.  One apparent stressor is that the parties chose to move to Australia out of fears for the family’s safety following from an interaction between the Mother and another person who subsequently threatened them.  It is not necessary to recite the details at this stage. 

13. The Father also points to there being strong family support in Australia and greater family support than in Country D.  He supports that proposition with two affidavits from his parents. 

14. In support of the issue in relation to her mental health, the Mother points to evidence from her clinical psychologist, Ms B, who has seen her for eight sessions since June 2018 and has been in a position to make some longitudinal assessment of the Mother's mental health.  That comes in part from testing conducted in relation to the Mother firstly by her general practitioner in November 2018 and then by Ms B in May 2019.  That longitudinal assessment indicated there was some deterioration in the Mother in terms of stress and anxiety, although some improvement in her depression.  That improvement in her depression should be seen in the context of what the psychologist describes as an increase in depression earlier in the year and then a resort to antidepressant medication, which has had significant benefits for the Mother.  The psychologist also observed that the Mother is managing her symptoms well at present.  The psychologist offered the opinion that the symptoms are directly related to the absence of the Mother from her home country, family and friends, but that there are also secondary causes such as the under the one roof separation with the Father. 

15. She expressed the concern that a delay in resolution of the proceedings may lead to further adverse mental health on the part of the Mother.  When one turns to the relevant circumstances set out in the Rules these matters speak to circumstance (g) which is:

    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.

16. On one side of the equation an expedited trial may or may not avoid such stress as it in large part depends on what the outcome might be and whether the result of an expedited trial would result in the Mother being able to move to Country D with the children or not.  A delayed trial does definitely carry the risk of psychological trauma. 

17. At present there is some deterioration in the Mother's position, although also some improvement, but further deterioration is again likely to be reflected on the children.  The context reasonably pointed to by counsel for the Father related to the trauma that accompanies a breakdown of many relationships which often leads to unhappiness and anxiety and stress.  That is something which is faced by most people who appear within this Court and so the question then arises as to whether what the Mother faces is of such a magnitude as to justify giving this case priority to the possible detriment of other cases.

18. The Mother's depression factors strongly into this question, as does the fact that it is well-managed by medication, which as I have noted is providing her with significant benefits at the moment.  The psychologist, although it is not clear precisely how this is done, asserts that the Mother has been able to adequately care for the children to date.  These various factors leave the matter finely balanced as to whether or not there should be some form of expedition.  However, one factor remains and that is the question that is referred to at consideration (e) of relevant circumstances and that is

    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).

19. Here the parties have been in Australia for a relatively short period of time, a little over 12 months.  Significant delays to the hearing of the matter would mean that any move back to Country D would occur in a circumstance where the children would then have spent an extended time in Australia.  It will have been a longer time since they have lived in Country D and the consequences of that would be a much more severe uprooting for the children.  That factor swings the balance in favour of expedition, but not in favour of urgent expedition.  This is not a matter of such urgency as to require an emergency hearing.  The expedition that should be granted to this matter giving it priority over other cases in the list is to cause it to be heard in the first half of next year, being the first half of 2020.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 June 2019.

Associate: 

Date:  4 June 2019