REBEKEH & REBEKEH

[2009] FamCA 846

FAMILY COURT OF AUSTRALIA

REBEKEH & REBEKEH [2009] FamCA 846

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Rebekeh

RESPONDENT: Ms Rebekeh

FILE NUMBER: MLC 3397 of 2009

DATE DELIVERED: 4 AUGUST 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: SCHULTZ TOOMEY O'BRIEN LAWYERS

Orders

1. That all extant applications be referred to the Co-ordinating Registrar to be listed on a date to be fixed as soon as possible for procedural orders to be made for the first day before a trial judge and for the matter thereafter to be given a final hearing date.

2. That my reasons for judgment this day be brought to the attention of the Co-ordinating Registrar.

IT IS NOTED that publication of this judgment under the pseudonym Rebekeh & Rebekeh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3397  of 2009

MR REBEKEH

Applicant

And

MS REBEKEH

Respondent

REASONS FOR JUDGMENT

1. I am dealing in Chambers with an application by the husband for an expedited hearing.

2. The case involves two children of the parties, T born in November 2003 and J born in April 2006.

3. The children lived their lives in Queensland until the wife made a decision to return to rural Victoria where her family live. Since then, the children have largely lived in Victoria.

4. The wife’s position is that she desires to remain in Victoria.

5. The husband’s position is that the wife should return to Queensland where the former home is situate and the wife and children can reside there in his absence. The husband is a fitter in fulltime employment.

6. After a contested interim hearing on 18 June 2009, Senior Registrar Fitzgibbon made orders and delivered reasons on 3 July 2009.

7. Under the interim orders, the Senior Registrar left the children living with the wife and the husband spending time with them on a monthly basis. It is fair to say that the orders provide for the husband to do significant travelling to see the children.

8. There was no suggestion other than that the husband had a good relationship with the children although there is a contentious history which includes family violence allegations.

9. The Senior Registrar made provision for the parties to seek an expedited hearing. The husband made such an application by filing a submission on 27 July 2009.

10. The basis of the husband’s submission was that the husband had limited time with the children and telephone communication was difficult because of the ages of the children. The submission also made the point that the husband could not continue to afford the costs of travel which, in his absence, required an accompanying person at his expense.

11. The evidence that either party could present at this stage is still relatively new because of the recent final separation and the children have already begun to establish themselves in their local community and school.

12. Relocation cases so called are not different from any other parenting case but for the fact that children settle into a routine and an environment with one parent to the almost exclusion of the other if the tyranny of distance is great. That distance makes the status quo difficult for a court to alter. It is important therefore to assist the parties if possible to work out a sensible proposal for the future that meets the necessary legislative requirements.

13. The Senior Registrar dealt with all of the legislative requirements and it would seem that he felt that there were several unknowns with assertions by each party that needed to be comprehensively tested.

14. I do not have any material filed on behalf of the wife and an Independent Children’s lawyer was only appointed under the orders of the Senior Registrar.

15. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have its hearing placed ahead of other cases.

16. Rule 12.10A applies but the applicant needs to satisfy the Court that there are relevant circumstances why that elevation should be given. 

17. I am satisfied there has been no delay on the part of the husband. Granting the application does not prejudice the wife. It will be apparent that a Court will normally order a Children’s and Parenting Issues Assessment for the parties to contemplate which also has the potential to shape the way the evidence will be led.

18. In relation to relevant circumstances that might give rise to an expedited hearing, Rule 12.10A(4) provides some examples.

19. I am satisfied here that there are no issues of age or health or witness availability. That would normally mean that there is no basis for any urgency and the children should be given an opportunity to settle down under the existing orders. I also bear in mind that regardless of how it came about, these children have been living in their mother’s environment since the start of the year.

20. However I am also satisfied that an expedited trial may avoid serious emotional or psychological trauma to the children not only in respect of the prospect of returning to Queensland but also how they might live in the future if a court determined that they could still have a meaningful relationship with their father from afar. Many of those issues have been canvassed in the senior Registrar’s judgment.

21. On balance, this is a matter that justifies the case being placed ahead of others because of the overall impact on the children and the uncertainty for both the husband and the wife as to their future relationships with the children and others.

22. This is therefore a case which requires having an early first day before a Judge.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 August 2009