Simpson and Caldridge

[2008] FamCA 44

FAMILY COURT OF AUSTRALIA

SIMPSON & CALDRIDGE [2007] FamCA 44

FAMILY LAW – PROCEDURE - Application for expedited hearing - Refused

Family Law Act 1975 (Cth)

APPLICANT: MS SIMPSON

RESPONDENT: MR CALDRIDGE

FILE NUMBER: MLF 328 of 2007

DATE DELIVERED: 6 February 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: MIDDLETONS

SOLICITOR FOR THE RESPONDENT: HARWOOD ANDREWS LAWYERS

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Simpson & Caldrdige.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF328 of 2007

MS SIMPSON

Applicant

And

MR CALDRIDGE

Respondent

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders.

3. The proceedings began with an application by the husband filed on 11 October 2007 in the Magistrates Court at Geelong seeking that the mother be precluded from removing the children from the Commonwealth of Australia.

4. In the written submissions filed on behalf of the wife, it was said that on 28 November 2007, the wife filed a response to the husband’s application for final orders.  According to the submission, she sought both parenting and property orders.  An examination of the file shows that the only document that was filed by the wife on 28 November 2007 was a Notice of Address for Service in handwriting signed by her solicitors.  Notwithstanding that, it is clearly understood from the wife’s other material that she was seeking to relocate to the United States of America.

5. On 20 December 2007, the respective applications of the parties came before Watt J at which time, they resolved some of the interim issues and agreed that orders would be sought for an expeditious hearing. 

6. As a consequence, an application by the wife has been made to expedite the hearing.

7. Notwithstanding the orders of Watt J, the submissions of the wife were received late. Whilst that may not have caused inconvenience to the Court, it obviously created a dilemma for the practitioners for the husband. As the result of a letter from them dated 4 February 2008, I granted leave to extend the filing time of their response.

8. The husband’s response was filed by email transmission on 6 February 2008. Contrary to the directions and intentions of the Court that the submission be in short “bullet-point” form, both parties have descended into complicated summaries of argument about the facts. That is not the basis upon which the application for priority hearing should be made. The Case Management Guidelines are clear.

9. Having said that, I have read all of the material to which I was directed.

10. This case revolves around two children, a son who was born in June 2001 and a daughter who was born in April 2004.  The unusual feature is that the parties have only been in Australia since 2007 and the wife is expecting another child in April 2008.

11. The wife is an American citizen but permanently resident in Australia.  The husband was born in Australia and has dual citizenship.  The American citizenship is a recent event.  The children have both American and Australian citizenship.

12. The parties were married in America in 1999.

13. From the time that they commenced living together until February 2007, the parties resided in America.  In about February 2007, the husband relocated to Australia for employment purposes whilst the wife remained behind with the children.  In June 2007, the husband came to Australia with the children whilst the wife remained behind to complete relocation issues.  The wife came to Australia in July 2007.

14. Subsequent to the move to Australia, the relationship has broken down completely.  The wife alleges that she now lives an isolated and lonely existence lacking in emotional and psychological support and with limited financial support from the husband.  She refers to the fact that that is complicated by the fact that she is “unexpectedly” pregnant.

15. The basis upon which she seeks to expedite the hearing is that she is unable to survive financially and psychologically, has difficulties with the care of children where the husband is not providing her with adequate spousal maintenance or child support and that she has a close association with the United States where her family all live.

16. The respondent to the application for the expedited hearing says that there are adequate orders in place for the children at the moment. The issue of the wife’s unhappiness was rather glibly described by the husband by saying that she had survived and coped since separation with ongoing contact with her family and friends in the United States. He said that the argument about a prolonged absence from family and friends was “fallacious” because that is exactly what the parties had committed themselves to do in coming to Australia. That seems to me to ignore the fact that the parties were then a functional and committed family.

17. The husband says that:

    There is nothing to prevent the wife returning to the United States of America by agreement or Court Order. In any event modern communications can be used to facilitate ongoing contact between parties in different countries using a variety of means.

    I am not entirely sure whether that is a reference to periodic travel or an overall solution to the problem. If it is intended to mean that the wife can return to America with the children because the future relationship between the husband and the children can be properly and appropriately maintained by the communication to which he refers, then the matter should not be litigated further. The statement is certainly at odds with the husband’s further statement:

    Any hearing of all substantive matters would include the husband’s application for shared residence.

    In the event that any future application by the wife to travel overseas is made on an interim basis, the husband’s statement that I have just quoted would appear to be a concession on his part. Anything said to the contrary would, in my view, give rise to an issue of costs if the consent was unreasonably withheld.

18. Finally, I should add that the husband’s statement that the wife’s application for an expedited hearing was made “for the purpose of avoiding her responsibilities to the children in their ongoing time with the husband” was unhelpful and inappropriate.

19. It is the policy of the Court to try and hear every matter expeditiously but an application such as this one, endeavours to have the hearing placed ahead of other cases.  The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given.  “Special reasons” means what it says namely something unusual or out of the ordinary.

20. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

I certify that the preceding Twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  6 February 2008