Roberts and Liang & Anor

[2017] FamCA 517

FAMILY COURT OF AUSTRALIA

ROBERTS & LIANG AND ANOR [2017] FamCA 517

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Mr Roberts

FIRST RESPONDENT: Ms Liang

SECOND RESPONDENT: Mr Dieters

INDEPENDENT CHILDREN’S LAWYER: McCormack & Co

FILE NUMBER: DGC 1163 of 2016

DATE DELIVERED: 19 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sharrock Pitman Legal

SOLICITOR FOR THE 

FIRST RESPONDENT:

Clark Family Lawyers

SOLICITOR FOR THE

SECOND RESPONDENT:

N/A

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

McCormack & Co

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  Robert & Liang and Anor 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: DGC 1163  of 2016

Mr Roberts

Applicant

And

Ms Liang

First Respondent

And

Mr Dieters
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The applicant and the first respondent were married in 2010. The applicant submits in his summary of argument opposing expedition that they separated on 27 February 2016 and are not yet divorced. The first respondent in her Affidavit filed 19 December 2016 deposes that they have been separated since 10 January 2012. This matter concerns the parenting arrangements for a three year old child, B born in 2014 (“the child”). The applicant commenced proceedings in the Federal Circuit Court by way of Initiating Application filed 21 April 2016 seeking, inter alia, that he have sole parental responsibility, the child live with him and spend time with the mother as agreed. This matter is complicated by a somewhat unusual set of circumstances relating to parentage of the child and there are a number of fundamental issues relating to separation, parentage and timelines that remain in dispute.

2. The applicant is the non-biological father of the child, the first respondent is the biological mother and the second respondent is the biological father.  The child lives with the applicant and spends time with the first respondent in accordance with interim orders made by the Federal Circuit Court on 29 June 2016. On 23 August 2016, the first respondent filed an Application in a Case seeking urgent DNA paternity testing and in her Affidavit in support of the Application in a Case, she sought that the child be returned to her care immediately after DNA testing demonstrated that the child is not the biological daughter of the applicant and to “protect my child from sexual abuse by [the father].”  The father categorically denies the first respondent’s allegations.

3. The second respondent is a European Country C national and resides there. The applicant contends that he was unaware of the existence of the second respondent until the applicant appeared in the Federal Circuit Court in September 2016, when he was then provided with the results of a paternity test conducted in Country C on 27 November 2014. This indicated the second respondent was the biological father of the child. Further paternity testing was conducted in Australia which provided the same result. The first and second respondents in their joint summary of argument seeking an expedited hearing contend that the applicant knew that he was not the biological father, which is denied by the applicant. Despite the results of the paternity tests, it is the applicant’s position that this has not changed his position or role as the child’s father.

4. The matter, which was listed for final hearing in the Federal Circuit Court commencing on 31 July 2017, was transferred to this Court on 8 March 2017 and the trial date vacated.

5. The first and second respondents in this case now seek an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The first and second respondents rely upon their summary of argument dated 22 June 2017 filed pursuant to orders made by Registrar Field on 26 May 2017. The applicant opposes the first and second respondents’ application for an expedited hearing and relies upon his summary of argument opposing the expedited final hearing dated 30 June 2017.

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 first and second respondents submit that the circumstances in support of their application for an expedited final hearing are as follows:

   ·    It has been established that the second respondent is the biological father of the child and delays in the proceedings will compromise the child’s opportunity to know and develop a relationship with her biological father.

   ·    The first respondent’s case is that she was the child’s primary carer and she is seeking orders that the child be returned to her care and live with her.

   ·    On the basis that she was previously the child’s primary carer, the current arrangements are compromising the strong bond between mother and child and further delays will make it more difficult for the child to reunite with the mother.

   ·    The mother intends to relocate to Europe if she is successful in her application and delays will make it more difficult for the child to settle into her new environment.

   ·    The second respondent will be forced to continue to fund flights to Australia, which are funds that could be spent in financing the proposed relocation.

   ·    It is unclear who cares for the child during the applicant’s work hours and an expedited hearing would minimise the need for third parties to care for the child.

   ·    An expedited hearing would mean a s 62G(2) Report would be ordered and it can be considered whether any paediatric psychological reports should be prepared.

   ·    This case is concerned with freedom of movement and as a general rule, the Court has regularly adopted that such cases should be given priority.

2. The applicant opposes the expedition of the final hearing on the following grounds:

   ·    Neither the first respondent nor the second respondent have acted reasonably or without delay in the conduct of the case and with regard to expedition. The first respondent has made false allegations, delayed proceedings by failing to provide details and documents when requested, blackmailed and threatened the applicant, in which the first respondent was charged with two counts of contravention of a Family Violence Intervention Order (“IVO”).

   ·    That the second respondent made no attempt to spend time with the child when he found out he was the biological father, allegedly having known since December 2014.

   ·    The applicant would experience significant prejudice due to IVO proceedings that have not been finalised and divorce proceedings are pending. Furthermore, the first and second respondents have indicated that they intend on filing further material, so an expedited hearing may be premature.

   ·    Expedition will cause the applicant financial hardship, due to the costs of wasted court dates.

3. The Independent Children’s Lawyer supports the expedition of the final hearing on the following grounds:

   ·    The child is in her formative years, physically and mentally and an extended delay (if the Court ultimately determined to allow the mother to relocate to Europe) will prejudice the child’s ability to adapt and prosper and will prejudice the child’s ability to form and maintain relationships with her biological mother, biological father and extended family.

4. The first and second respondents submit that as this is a case that involves freedom of movement, with regard to the mother’s intended relocation to Europe, it should be afforded priority, as that is the Court’s general practice. However, it is not the case that priority will be granted automatically by the Court simply because there is an intended relocation. The Court must consider all of the matters in Rule 12.10A of the Rules. The intended relocation is a relevant consideration and is in my view, significant in this case. The first respondent seeks to resume her role as primary carer for the child and to relocate to Europe to resume her role as a homemaker and wife to the second respondent. She submits that she does not have family or support in Melbourne and has two sisters, a brother and extended family in Europe and that she feels isolated in Melbourne, which is compounded by her limited English. Both the first and second respondents submit that further delays in the hearing will prevent the child being returned to the care of her biological mother, limit the time and opportunity for the child to know and be cared for by the biological father and will make it more difficult for her to settle in her new environment in Europe, should the mother’s application for relocation be successful.

10.  Although I have had regard to the fact that the second respondent did not file his application seeking orders that the child spend time with him until February 2017, despite having known since December 2014 that he was the child’s biological father, I am not otherwise in a position to make findings with respect to the applicant’s allegations as to the conduct of these proceedings by the first and second respondents. In any event, that is only one of the matters I must consider. I also have some difficulty understanding the reasons given by the applicant as to why he says he would be prejudiced by this matter being afforded priority. In my view, that ignores the welfare of the child in this case. It is more likely than not to be in this child’s best interests for these proceedings to be concluded, whatever the outcome, as soon as is possible, which accords with the submissions made by the Independent Children’s Lawyer.

11. In all of the circumstances, I am satisfied that this matter should be afforded priority and propose to order that it be allocated to a judicial docket as soon as is practicable.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 19 July 2017.

Associate: 

Date:  19 July 2017