Reidel and Rifkin

[2018] FamCA 83

FAMILY COURT OF AUSTRALIA

REIDEL & RIFKIN [2018] FamCA 83

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Reidel

RESPONDENT: Mr Rifkin

INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

FILE NUMBER: MLC 13125 of 2017

DATE DELIVERED: 21 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

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  Reidel & Rifkin 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 13125  of 2017

Ms Reidel

Applicant

And

Mr Rifkin

Respondent

REASONS FOR JUDGMENT

introduction

1. The father, who is the respondent 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”). He filed written submissions on 18 January 2018. The mother filed written submissions on 25 January 2018. She supports the father’s request for an expedited hearing.

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

BACKGROUND

1. The mother made an urgent application on 14 December 2017 in the Federal Circuit Court seeking interim orders that the two children of the relationship, B born in 2009 (age eight) and C born in 2010 (age seven) be placed on the Airport Watch List.  Orders were made ex parte on that day to that effect.

2. On 22 December 2017 interim orders were made by consent that provided for the children to live with the mother and to spend time with the father each alternate weekend.

3. Orders were made on 10 January 2018 which added the case to the list of cases awaiting allocation to a judicial docket with priority from that date.

4. The mother seeks orders permitting the children live with her in Australia.  The father seeks that the children live with him in New Zealand. The child B had been living with the father and his partner in New Zealand from March 2017 until the interim orders were made in December 2017. Since the commencement of the proceedings the father has temporarily relocated from New Zealand to Queensland where he lives with his mother; he flies to Melbourne each alternate weekend to spend time with the children in accordance with the interim orders.

5. In addition to the issue of relocation, there are allegations made by each parent that they have been subject to family violence at the hands of the other. Further complicating matters is the fact that the mother is eight months pregnant and is soon to give birth to her fifth child.

LEGAL PRINCIPLES

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. In determining such application Rule 12.10A provides that:

   (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 father submits the circumstances that support his application for an expedited hearing are as follows:

   ·There are allegations of child abuse and family violence;

   ·He is seeking to relocate to New Zealand with the children, where he lives with his partner and infant son;

   ·He may suffer financial hardship as he has had to temporarily relocate to Australia to be closer to the children pending the outcome of these proceedings;

   ·An expedited hearing will avoid serious emotional and psychological trauma for the children, especially C who is diagnosed with severe autism and suffers from an intellectual disability; and

   ·The mother is eight months pregnant and due to give birth imminently.  It is submitted that the pressure of a delayed hearing will cause her hardship.

2. The mother supports an expedited hearing and acknowledges that the relocation and the financial implications for the father, if the matter were not to be expedited, are relevant factors. While she supports an expedited hearing, the mother anticipates that the birth of her child may delay the trial.

3. The mother states that she has had complications with her pregnancy, it has been assessed as high risk and it is anticipated that there may be complications during the birth. These factors may compromise the mother’s ability to prepare for an expedited hearing.

4. Having regard to the history of the proceedings, I am satisfied that the father has acted reasonably and without delay in the conduct of this case, which was recently initiated in December 2017.

5. Rule 12.10A(1)(d) requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision also require the Court to determine whether priority should be given to the detriment of other cases (emphasis added). That provision is not exhaustive and the Court is permitted to consider any other circumstances that may be relevant.

6. A significant factor which supports the expedition of the proceedings is that this 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. Relocation cases are difficult in the sense that they can involve significant upheaval in children’s lives if a parent is ultimately allowed to relocate. These children have already experienced a degree of disturbance, in that they have spent time in Australia and New Zealand.

8. In 2017 the child B spent the majority of the school year in New Zealand.   The father’s case is that B expected to return to that school in 2018. The father submits B is settled at school in New Zealand and is excelling in all areas of his life there.  Ultimately, these are matters to be determined upon a testing of evidence at the final hearing.

9. C is described as suffering from severe autism and has an intellectual disability. The father submits that while C was with him in New Zealand, he engaged professional assistance to help with C’s developmental and medical needs.  Again, these are issues to be considered at the final hearing.

10. I am satisfied an expedited hearing to resolve these issues will end the uncertainty for the children with respect to their future living arrangements and likely minimise any psychological and emotional trauma for them arising from the conflict between their parents. I am satisfied that it is desirable that this matter is concluded as soon as practically possible. It is in the children’s best interests for them to know which parent they will be residing with and in which country, so as to provide some consistency in their schooling and in C’s case, consistency with his developmental and medical treatment. That is of paramount importance.

11. The father’s partner and his infant child remain in New Zealand and I am satisfied that his separation from them would also be impacting upon him emotionally and psychologically.

12. I also take into account the allegations of family violence in accordance with r 12.10A(4)(b). The mother alleges the father has perpetrated family violence against her and the children. The father denies such allegations but concedes he has used physical force against the mother to protect himself from her.

13. The father alleges that the mother has acted violently toward him on a number of occasions, the mother’s partner has threatened to harm the children and he has concerns for their safety. Ultimately issues of risk in relation to family violence need to be tested in evidence and determined by the trial judge. I am satisfied that it is in the children’s interests that there be a determination of the parties’ competing allegations with respect to family violence as soon as possible.

14. I accept that the interim orders which provide for the children to spend alternate weekends with the father are likely causing the father financial strain; the father has left his employment in New Zealand, is currently living in Queensland to undertake temporary contract work and is flying to Melbourne every fortnight to spend time with the children. He is residing with his mother in Queensland. The resolution of the parenting issues will relieve the father of the burden associated with living away from his partner and infant son.

15. I am cognisant that the mother is soon to give birth to her fifth child.  However, I do not consider that factor will delay the matter if expedited. Granting the matter priority does not mean the case will be set down for a trial immediately.  Rather, the granting of priority will place the matter in a judicial docket so that trial preparation may commence, with the matter likely to be listed mid-year.

16. Having regard to the above circumstances, I am satisfied that this is a matter that warrants 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.

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 21 February 2018

Associate: 

Date:  21 February 2018