Simpson and D’Leroy

[2008] FamCA 832

FAMILY COURT OF AUSTRALIA

SIMPSON & D’LEROY [2008] FamCA 832

FAMILY LAW – PRACTICE & PROCEDURE – Priority hearing – Application refused

Family Law Act 1975 (Cth)

APPLICANT: MS SIMPSON

RESPONDENT: MR D’LEROY

FILE NUMBER: MLC 6594 of 2008

DATE DELIVERED: 15 OCTOBER 2008

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:	LAMPE FAMILY LAWYERS
SOLICITOR FOR THE RESPONDENT:	KENNA TEASDALE LAWYERS

Orders

1. That the application by the mother foreshadowed in the orders made by Senior Registrar FitzGibbon on 22 September 2008 for an expedited trial is refused.

2. That each party provide written submissions by 4.00pm on 20 October 2008 as to why the proceedings ought not be transferred to the Federal Magistrates Court of Australia.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC6595 of 2008

MS SIMPSON

Applicant

And

MR D’LEROY

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for a priority hearing by Ms Simpson.

2. There are three children of the relationship.  They are B who is aged 11, M aged 4 and K aged 3.  All three children are currently living with their mother Ms Simpson.

3. On 22 September 2008, Senior Registrar FitzGibbon made orders for Mr D’Leroy to whom I shall refer as the father, on each alternate weekend from Friday afternoon until Sunday afternoon together with four hours on each alternate Wednesday.  Ancillary orders were also made. 

4. Senior Registrar FitzGibbon also made an order that the parties’ applications were adjourned to a date to be fixed before me to determine whether or not to expedite the final hearing.  Procedural orders were made for the parties to file a summary of argument.

5. I have received and read a summary of argument from both the mother and the father. 

6. By way of background, the parties had a relationship between 1994 and 23 June 2008.  They were not married.

7. The father began the proceedings on 21 July 2008 seeking parenting orders.  The noticeable thing about that application is that the father did not specify what times he wanted with the children.  His affidavit in support of the application also does not make clear what proposals he has.

8. The application was filed by the father because on 24 June 2008, the mother went to the local Magistrates Court and obtained an interim intervention order against him.  On 8 July 2008, the matter returned to the local Magistrates Court where the father consented to orders without admitting the allegations.

9. It would appear that sometime around the middle of July, the mother took the children unilaterally to H in Queensland and set up a new life including enrolling the children in school there.

10. The father’s application came initially before the court on 22 July 2008 at which point in time, the mother had not been served.

11. Senior Registrar FitzGibbon made orders on 22 July 2008 for service of the documents as well as injunctions precluding the mother from removing the children from Australia.  When the matter returned on 30 July 2008, the Senior Registrar made orders by consent that the children live with the mother and that the father spend time with them in H. 

12. Importantly, in the orders made on 30 July 2008, the mother consented to an order that she return the children to reside at a nominated address in Victoria.  That address was to be provided by the father.

13. When the matter returned to the Senior Registrar on 22 September 2008, provisions were made for the father to spend time with the children but that otherwise, it is clear that the children were to reside with their mother.

14. Importantly, the mother makes significant allegations of domestic violence. Despite that however, there is no notice filed detailing the allegations other than as set out in the affidavit. That has some impact on the requirements of the court as set out in s 60K of the Family Law Act 1975 (Cth).

15. Notwithstanding the allegations of violence, and indeed the intervention order, the mother has consented to orders that the father spend time with the children.

16. The mother’s argument in relation to an expedited hearing is that she relocated with the children out of a legitimate fear for her safety and the need for family support.  It transpires that her family live in the H area.

17. The mother says that B has been significantly traumatised by exposure to domestic violence and was receiving counselling in the limited period of time that she lived in H and that that has now been interrupted and will be replaced by a counsellor in Victoria.

18. Importantly, the mother says that she has now given up all of the arrangements that she made in H and is reliant upon the father who has provided rent-free accommodation in Melbourne.

19. The father replied in a summary of argument and said that there will be no risk of him terminating his financial support.  He said that there were no accusations of violence or any abuse against the children and I note in his affidavit in reply to the mother’s affidavit that he denies many of the incidents to which she refers.  He will have to face the fact that there is a domestic violence order to which he consented notwithstanding his denial of the allegations.

20. The father points to the fact that B has been enrolled in a primary school in G, Victoria, and his relationship is now being re-established.

21. Finally, the father said that the mother had not provided any exceptional circumstance for priority hearing. 

22. Rule 16.01 of the Family Law Rules 2004 provides that a party may apply for an expedited trial. Upon such an application, the court is entitled to take into account whether the applicant had acted reasonably and without delay and more importantly, whether there is an exceptional circumstance which justifies giving the case priority to the possible detriment of other cases.

23. There is no question in this case that the applicant has moved quickly having returned by agreement under an order of the court. 

24. The question in this case is whether or not the circumstances are exceptional justifying this case taking priority over all of the other cases in circumstances where the resources of the court are extremely limited.

25. Cases in which parents wish to relocate are often viewed as ones in which priority should be given but that cannot be the norm if giving such priority would act to the detriment of other cases that have long awaited a final hearing.  I do not see a case of a parent wishing to relocate as exceptional.  Whilst the mother in this case points to the absence of family support, that was clearly the situation in the relationship prior to separation.  She has highlighted the domestic violence issue which is very much in dispute.  However, there have been significant periods in which the relationship was resumed.

26. One of the significant issues for a court in determining a parenting case is the impact on the welfare of the children of domestic violence but it is also part of the greater inquiry by the court as to what best suits the interests of the children.  Relocation cases are but parenting cases with an added complication.

27. In my view, however, this is not a case that warrants expedition because the circumstances are not exceptional.

28. Of concern however is the fact that the proceedings were issued in this court no doubt initially to obtain access to urgent interim orders.  The case otherwise seems to me to fit within the jurisdiction of the Federal Magistrates Court of Australia.  Neither party has addressed the possibility of the case being transferred there.

29. I propose to refuse the application for expedition and to require each party to provide a simple written submission as to why the case ought not be immediately transferred to the Federal Magistrates Court of Australia.  Those applications are to be received by my Associate at … by 4.00pm on Monday 20 October.  If there are no such submissions, I propose to transfer the proceedings accordingly.  I add for the sake of completeness that I have not received any submissions from the Independent Children’s Lawyer.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: …

Date:  15 October 2008