Rudd and Riddick

[2019] FamCA 44

FAMILY COURT OF AUSTRALIA

RUDD & RIDDICK [2019] FamCA 44

FAMILY LAW – PRACTICE AND PROCEDURE – Expedited hearing.

Family Law Act 1975 (Cth)
Family Law Rules 2004

APPLICANT: Ms Rudd

RESPONDENT: Mr Riddick

FILE NUMBER: MLC 5036 of 2018

DATE DELIVERED: 6 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne In Chambers

JUDGMENT OF: Cronin J

HEARING DATE: 6 February 2019 In Chambers

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

THE RESPONDENT: In Person

Orders

1. That the application by way of written submission filed by the applicant on 19 December 2018 to which the respondent replied on 2 January 2019 arising out of paragraph 2 of the orders of 28 November 2018 is dismissed.

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 Rudd & Riddick 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: MLC5036 OF 2018

Applicant
Ms Rudd

And

Respondent
Mr Riddick

REASONS FOR JUDGMENT

1. By an order made on 28 November 2018, a registrar gave each of the parties an opportunity to make an application for expedition of the current proceedings before the court.  Ms Rudd (“the applicant”) availed herself of that opportunity and applied.  Mr Riddick (“the respondent”) opposed the application.

2. Each party was given an opportunity to file written submissions directed to the matters about which the court must give consideration under rule 12.10A of the Family Law Rules 2004.

3. For the reasons that follow, the wife's application is refused.

4. The parties who have two children still live together under one roof.  To the extent that it is necessary to say so, the older child is now an adult.  He is in his final year of secondary school.  The parties’ second child is in primary school and aged 11 years and is said to be afflicted by autism spectrum disorder. 

5. The wife's submission was prepared by her practitioners.  The husband drew his submission himself.  In respect of the husband's submission, although his complaints were directed towards the lack of evidence, he strayed into that same dilemma. 

6. The determination under the rules is an administrative one.  The registrar's order provided that the determination should be made in chambers by Johns J.  Her Honour delegated the task to me. 

7. Rule 12.10A provides that in deciding whether to expedite the matter to a judge, the court may take into account the following:

   (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

8. To the extent that the rule encourages the court to take into account relevant circumstances, rule 12.10A(4) provides as follows:

   (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.

9. The applicant began the proceedings by filing an application on 9 May 2018 seeking both financial and parenting orders.  The final orders appear to set out her proposed alteration of property with precision.  In respect of parenting orders, the applicant evaded the question of what precise parenting orders she required pending the preparation of a family report.  That is a curious position having regard to the fact that she ought to have a clear view about what is best for her child and at least give any professional the opportunity to understand the parameters of the dispute.

10. The respondent filed a response on 23 August but did not seek precise orders and indeed, sought a transfer of the proceedings to the Federal Circuit Court.  No amended response appears to have been subsequently filed so from the perspective of the financial and parenting issues, the parameters of the dispute have not been fixed.  The respondent needs to rectify that position instead of obfuscating as he did with the submissions put for the purposes of this application for expedition.

11. In filing her application for final orders, the applicant did not seek interim orders.  I have concluded that at that time, and with both parties living under one roof, the situation was manageable.  There does not appear to have been a subsequent application for interim orders.  Similarly, in filing his response on 23 August 2018, the respondent said that he was not seeking interim orders.  The same observation relating to the applicant therefore applies.  Having regard to the fact that the parties have had a case assessment conference and three hearings before a registrar, in circumstances where there is no end in sight to their problem, it behoves the parties to set out with precision just what orders they are seeking.  The shadowboxing must stop.

12. In her written submissions, the applicant indicated that the property matter was relatively straightforward.  She observed that the asset pool had been identified and was not complicated and that the main asset of significance was the parties’ home which had been valued and fixed at $2.35 million.  It is a property encumbered by a mortgage to the National Australia Bank securing what appears to be modest mortgage of about $75,000.

13. The jurisdiction of the court to alter the interests of the parties in their property in circumstances where they have not married only arises if the parties agree that they were living in a de facto relationship which has come to an end or, alternatively, a court makes that finding.

14. The applicant asserted the ending of the relationship but the respondent said that he disputed that the relationship had broken down including disputing the date of the asserted final separation.

15. That issue must be determined before anything else but having regard to what appears to be common ground from the written submissions and/or arguments for the purposes of this expedited application, there would appear to be not much doubt that their de facto relationship has come to an end.  To the extent that the respondent thinks otherwise, at least the applicant made her position very clear. 

16. If the assertion of the applicant is correct, the parties have had a relationship of over 20 years duration.  It is unclear why there is a significant dispute in this case about the property to be altered however the respondent's material submission would seem to suggest that he considers it inconvenient if not disruptive at this particular time.  He also submitted that work on the house had to be done.  All of those are matters within the parties’ hands and it seems there is little need for the court to be involved in this case at all and common sense should prevail.

17. In her submission, the applicant said that there had been difficulties in having the respondent comply with court orders and that he was likely to frustrate and delay the proceedings and incur costs for her.  She went on to submit that he had exposed the children to conflicts and arguments with her.  With respect, all those matters are within her control.  As I earlier observed, neither party has sought interim orders and this is a situation in which, if it is as bad as both parties seem to suggest it is, an appropriate application for interim orders could be made rather than have the matter determined on a final basis. 

18. In her submission, the applicant also said that the current living arrangement was not in the children's best interests and a continuation of it, was to have a detrimental impact upon the children.  She included that the respondent had not provided her with any financial support since October 2017 and that he would not agree to the sale of the home.  All of these matters are again within her control.  No application of an interim nature has been made to a judge.  If the circumstances are as bad as each party portrays, this is not a difficult matter to determine on an interim basis.

19. The applicant's submission then went on to say that there were problems in relation to the youngest child, and blamed the respondent.   I repeat, those matters could all be dealt with on an interim basis as the court (subject to the jurisdictional issue being determined) can make orders for exclusive occupancy and/or parenting orders. 

20. For his part, the respondent's submission was a stream of consciousness.  At paragraph [22], the respondent referred to prejudice that would be occasioned to him in his capacity as a parent.  Obviously having regard to what I have earlier said, those matters are well within his control.  Nothing in his submission indicated how he proposed to resolve the matter.  In my view, the submission smacks of obfuscation.  The court expects better.  Further, in his submission, the respondent said that if the property was to be sold, it would prejudice him.  This however was directed to the fact that much work was required to prepare the property for sale but I observe that it has been valued on the basis of its current condition.  The respondent complained that he would be compromised in his capacity to work but if indeed, the property was sold, he would have considerable funds at his disposal to rehouse himself and it was not immediately apparent what he was referring to in terms of his capacity to work.

21. Turning then to rule 12.10A, I have already indicated I would not exercise the discretion and grant an expedited hearing. I make that determination based on the following:

    (a)I accept that the applicant has acted reasonably and without delay in respect of the conduct of the case but it would seem that both parties need to plead with particularity;

    (b)This application has certainly been made without delay but as I have already observed, interim orders could have been sought to solve some of the problems;

    (c)I reject any suggestion of prejudice to the respondent in the matter being expedited for the reasons I have already outlined; and

22. There is no matter drawn from rule 12.10A(4) which I find is relevant such that I would be justified in detrimentally affecting other litigants. There are no witness problems. To the extent that there are assertions of inappropriate personal behaviour against the respondent, those are matters that can be determined by appropriate applications. To the extent that the applicant asserts there is financial hardship, that problem can be resolved by the sale of the property and no such application has been made. To the extent that the continuation of the existing status quo of the parties’ living arrangements is causing a particular child hardship, that too could be the subject of an interim order. To the extent that it is asserted that an expedited trial would avoid serious emotional or psychological trauma to a party or a child, again, neither party has pleaded with particularity and as I have already observed, I consider the respondent is obfuscating in respect of what final orders he would propose.

23. In my view there is no basis to give this case priority over all the other matters in circumstances where if there are parenting difficulties, the parties could seek appropriate professional assistance with the social scientists rather than having the matter determined by a court.  In respect of the financial matters, the absence of any indication as to what the parameters of the dispute are make it difficult for the court to understand why there is a need for priority. 

24. In the circumstances, I would decline to exercise my discretion in favour of the applicant. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 February 2019.

Associate:

Date:  6 February 2019