Potter and Withnail

[2018] FamCA 254

FAMILY COURT OF AUSTRALIA

POTTER & WITHNAIL [2018] FamCA 254

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Potter

RESPONDENT: Mr Withnail

FILE NUMBER: MLC 1268 of 2013

DATE DELIVERED: 26 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lou Castellano Lawyer

SOLICITOR FOR THE RESPONDENT: Harwood Andrews Lawyers

Orders

1. All extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

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 Potter & Withnail 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 1268 of 2013

Ms Potter

Applicant

And

Mr Withnail

Respondent

REASONS FOR JUDGMENT

1. The mother, who is the applicant in this case, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The mother, by her Initiating Application filed 4 October 2017 seeks orders that she be permitted to relocate to the United States of America with the child of the relationship, B born in 2009 (age nine). This has prompted her to make an application for an expedited hearing.

2. On 8 February 2018, Registrar George made orders for the mother to file written submissions in support of her application for expedition within 14 days and the father to file his response 14 days thereafter. The mother relies on her submissions dated 21 February 2018 and her affidavit filed 4 October 2017.

3. The father has not filed any material in response to the mother’s submissions.

4. The mother is aged 44 years.

5. The father is aged 46 years.

6. There is one child of the parties’ relationship, B who is aged nine years and in Year Three.

7. Final parenting orders were made by consent in the Federal Circuit Court on 14 November 2013.  Those orders provide for the child to live with the mother, for the parents to have equal shared parental responsibility and for the father to spend time with the child each alternate weekend from the conclusion of school on Friday to the commencement of school Monday, each alternate Wednesday from after school to Thursday morning, on the alternate Wednesday evening from after school until 7:30 pm and for one half of the school holidays.  Those orders also make provision for the child to spend time with the parties on birthdays and other significant days.

8. The mother now seeks a variation of those orders to enable her relocation to the United States with B.  The mother’s partner, whom she has known for 20 years and who she is planning to marry, resides there.

9. The father opposes the mother’s application to relocate. Whether or not the mother is permitted to relocate is not a question that I am required to answer at this stage. I am simply determining whether or not the trial date for the mother’s application should be expedited.

10. These are my reasons for judgment with respect to the mother’s application for an expedited hearing.

Legal principles

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

   (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. The mother submits the circumstances that support her application for an expedited hearing are as follows:

   ·She seeks to relocate to the United States with the child;

   ·She is suffering from mental health issues living in her current circumstances and due to the father’s refusal to allow her to relocate;

   ·She is engaged to be married and her fiancé lives in the United States. He is unable to relocate to Australia;

   ·She wishes to minimise the disruption to the child’s schooling and an expedited hearing would assist as the new school year in the United States starts in August;

   ·She has recently graduated from university and is unable to commit long term to an employer due to the uncertainty surrounding her future;

   ·She is under financial stress due to a lesser income, as she is working in casual rather than permanent employment.

2. I am satisfied that the mother has acted reasonably and without delay in relation to the conduct of the case and in relation to her application for an expedited hearing. The mother filed her submissions in support of an expedited hearing within the prescribed timeframe provided for in the orders made 8 February 2018. 

3. The parties have also conducted the case without delay. The mother initiated proceedings on 4 October 2017 and it was before Judge Kelly a little over a month later on 9 November 2017. I am satisfied the matter has progressed without delay; in any event, questions of conduct and delay are not pertinent to the determination I must make.

4. I am satisfied, in the absence of any evidence to the contrary, that there will be no prejudice to the father if the matter is expedited.

5. Rule 12.10A(2)(d) requires a consideration of other relevant circumstances that may persuade the Court to give a case priority. As such, the Court is not limited by the considerations listed in r 12.10A. Importantly, the words of that provision require the Court to determine whether priority should be given to the detriment of other cases (emphasis added). Other cases are disadvantaged as they miss out on the opportunity to be granted a trial date. As such, there needs to be justifying circumstances to grant expedition.

6. The most persuasive factor in determining whether to expedite the matter is that it is an international relocation case which concerns the question of one party’s freedom of movement.  Where practicable, such matters should be heard and determined expeditiously.

7. The mother submits the United States is her former home, she is engaged to be married and her fiancé lives in the United States. Her fiancé is unable to move to Australia as he has health issues and cares for his mother, who suffers from Parkinson’s disease. The reasons surrounding why the mother’s fiancé is unable to move to Australia is not relevant to the determination of expedition.

8. What I do consider relevant is the fact that the school year in the United States commences at the end of August. While there is no guarantee that the case can be heard and determined prior to then, relocation involves significant upheaval and disruption to a party’s and more significantly, to a child’s life. They are difficult cases to determine with associated psychological and emotional consequences for all parties.

9. I am satisfied that an expedited hearing will at least minimise the disruption to the child’s life and it is in her best interests for her to know whether she will be relocating to the United States with her mother as soon as practically possible.  It is not in her best interests for the case to remain in abeyance. 

10. I am also satisfied that an expedited hearing would avoid emotional and psychological trauma for the mother, a consideration that is expressly provided for in r 12.10A(4)(g). The mother submits she is suffering from depression, insomnia, anxiety and emotional distress in circumstances where she feels lonely and isolated in her current circumstances. The mother is engaged to her fiancé who lives in the United States and there is uncertainty surrounding when or if they can move forward with their marriage, in circumstances where the father opposes the mother’s application to relocate and where her fiancé is unable to move to Australia.

11. Having regard to those matters, I am satisfied that it is appropriate that the hearing of the proceedings be expedited. Expedition will minimise the emotional and psychological impact of the proceedings on the mother and in turn limit the impact of the mother’s mental health issues on the child.

12. The mother submits that she has recently graduated from university and that she is unable to commit long term to an employer due to her uncertainty as to whether she will be relocating to the United States. The mother submits her inability to commit long term to an employer has meant she has had to work casually, which is causing her financial stress. Rule 12.10A(4)(c) allows the Court to consider whether the applicant is suffering from financial hardship. While I am satisfied that casual work may not offer remuneration at the same levels as part time or full time employment, without further evidence as to her earnings and in circumstances where she is in employment, I cannot be satisfied that she is in financial hardship.

13. Nonetheless, I am satisfied that there are circumstances in this case which warrant the matter being given priority to the detriment of other cases that are awaiting hearing. I propose to make the necessary orders for the matter to be allocated to a judicial docket with priority. It is important to emphasise that granting the matter priority will not guarantee that the case will be heard and determined prior to the school year commencing in the United States. It simply means that the matter is allocated to a Judge and preparation for the trial can commence. The matter may be listed some months from now.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 26 April 2018.

Associate: 

Date:  26 April 2018