PORTER & VANN

[2014] FamCA 753

FAMILY COURT OF AUSTRALIA

PORTER & VANN [2014] FamCA 753

FAMILY LAW – PRACTICE AND PROCEDURE – Application for priority listing – substantive application for “relocation” of children to live in New Zealand – Application refused as not warranting being placed ahead of other cases.

Family Law Act 1975 (Cth)

APPLICANT: Mr Porter

RESPONDENT: Ms Vann

FILE NUMBER: MLC 1824 of 2014

DATE DELIVERED: 11 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Pearsons Lawyers

SOLICITOR FOR THE RESPONDENT: Taylor & Preston Lawyers

Orders

1. That the application arising out of paragraph 2 of the orders made on 28 July 2014 is dismissed.

2. That all outstanding applications will remain in the list awaiting the allocation to a judge for a final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Porter & Vann 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 1824 of 2014

Mr Porter

Applicant

And

Ms Vann

Respondent

REASONS FOR JUDGMENT

1. Ms Vann applies pursuant to the orders of Registrar Mestrovic made on 28 July 2014 for an expedited first day of hearing before a judge.  The application is opposed by Mr Porter.

2. There are two children of this relationship and the substance of the dispute seems to be that the mother wishes to permanently relocate to City A in New Zealand.  In the submission filed on her behalf on 12 August 2014 by her solicitors, a set of proposed final orders was included.  It sought that the relocation occur immediately after the completion of the “current school semester”.  Even if I were to grant the expedited hearing, there is little prospect that the Court could provide the resources of a trial of a disputed parenting matter such that a hearing of that nature could be guaranteed.

3. The children of this relationship are Z aged 13 and N aged seven.  The parties’ submissions do not indicate that there is consensus about how these children are to be raised in the future.

4. The submission encompassed in the argument of the applicant for the expedited hearing was that the mother “and the children” are under the “threat of family violence” or at the risk of family violence from the father.  Whilst an interim family violence intervention order was made against the father on 7 April 2014, his responding submission to the applicant’s material indicates that there is a contested hearing later this month.

5. The second submission of the mother is that she and the children are suffering financial hardship due to restriction on what Centrelink benefits can be received and she is currently unemployed.  To both of those matters, the father responded indicating either little or no knowledge and that the mother had the capacity for work and was not pursuing it.  There is some substance to that latter point because the mother indicated that her sister had offered her a cleaning job in New Zealand and one must therefore conclude that she has the capacity to work.  Nothing in the mother’s submission indicated any reason why applications for employment were not being made in Australia.

6. The mother further submitted that she was currently responsible for all outgoing payments associated with a rental property and “all expenses” in relation to the children’s extra-curricular activities.  In response, the father said that the submission was not true because he is paying for the rent on the Suburb B property as well as assisting with internet and telephone expenses of the mother.  He also submitted that he pays child support which should cover the extra-curricular activities, or part thereof, of the children.

7. It is also significant but not mentioned by the mother that the father is currently spending weekends with the children along with an evening meal on Thursday evening together with sharing of the school holidays.  What impact (if any) an intervention order has (or might have) is hard to tell but in any event, the mother did not say that there was not an ongoing physical relationship between the father and the children.  I note also that the children are in schools in the area and one of the issues will be the disruption of Z’s accelerated learning program.  In my view, that is not an issue that I should determine anything about now.

8. The application for an expedited first day before a judge is governed by Rule 12.10A of the Family Law Rules 2004. In determining that, the Court may take into account whether the applicant has acted reasonably and without delay in the conduct of a case. There does not appear to have been any tardiness on the part of the mother. Similarly, there is no prejudice to the father even if the application was expedited because it is in everyone’s interest that the children have some understanding of their future. More importantly, the Court is obliged to consider any relevant circumstance in which the case should be given priority such that there might be possible detriment to other cases. Relevant circumstances are set out in the Rule. There is no suggestion in this case that a delay will affect the availability or competence of either of the parties or a witness. There is clearly an allegation of family violence but that is to be determined later this month. No connection was made between the existing order or the proposed intervention order and the parenting issues before this Court so it is hard to tell whether the allegation of the mother is a relevant circumstance.

9. Whilst the mother clearly indicates that she is suffering financial hardship, that alone would not be sufficient basis to give this case priority over other cases with equally difficult issues requiring determination.  To the extent that there is a financial issue, the father points to the fact that the mother could obtain employment and no reason has been given why that has not occurred.  Secondly, to the extent that the father has the capacity to pay spousal maintenance, I am not aware of any interim application that is pending.

10. There is no suggestion in this case that the relocation to New Zealand is critical and indeed, the assertion about the job opportunity in New Zealand has little merit if the same sort of application has not been made here.  There is no evidence here that the delay is causing emotional or psychological trauma to either of the parties or the children to the extent that an expedited trial could alleviate that in any event.

11. The fundamental question is that there are other cases in the Registry that require the attention of the Court and on the basis of the submission put by the mother, I am not satisfied that it is appropriate to exercise the discretion and expedite the first day.

12. The mother’s application for an expedited hearing is dismissed.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 September 2014.

Associate: 

Date:  11 September 2014