Stevens & Maloney

[2008] FamCA 10

FAMILY COURT OF AUSTRALIA

STEVENS & MALONEY [2008] FamCA 10

FAMILY LAW – Application for expedited hearing – No unusual or urgent circumstances – Application refused

Family Law Act 1975 (Cth)

APPLICANT: MR STEVENS

RESPONDENT: MS MALONEY

FILE NUMBER: MLC 12036 of 2007

DATE DELIVERED: IN CHAMBERS
15 January 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:

PEARSONS SCHETZER & ASSOCIATE ON BEHALF OF THE APPLICANT HUSBAND

BRUCE C CHALMERS, SOLICITORS ON BEHALF OF THE RESPONDENT WIFE

Orders

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

2. That the wife have liberty to seek a further application after the parties have attended upon the psychologist referred to in the orders of Brown J dated 17 December 2007.

3. That all proceedings otherwise a listing for trial before a judge on a date to be fixed.

4. That there be general liberty to apply.

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 Stevens & Maloney.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC12036 of 2007

MR STEVENS

Applicant

And

MS MALONEY

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 father filed on 5 November 2007 seeking injunctions about the wife moving away.

4. The respondent wife filed material on 22 November 2007 seeking variation of orders from 2006 that the husband’s time with the children be varied to alternate weekends and a changeover of the children at Geelong.

5. The evidence presented at that time was that the husband had flexible working times and that he had the capacity to fit in with the relevant proposed changes.

6. The wife’s position is that she has repartnered and with her family, has purchased a caravan park on the Victorian coast and wanted to move away. 

7. According to the submissions from the husband, those issues are in dispute.

8. The matter came before Justice Brown on 26 November 2007 at which time, her Honour restrained the wife from moving from the Melbourne Metropolitan Area during school time. Her Honour ordered an Independent Children’s Lawyer be appointed and that thereafter, there be some consultation about the appointment of a psychologist.

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

10. The applicant for the expedited hearing says that the current interim orders are not in the best interests of the children because the wife does not have a permanent residence with close proximity to the outer Melbourne suburbs save for short term accommodation with relatives.  The dilemma appears to be the unilateral nature of the move.

11. The respondent to the application for the expedited hearing says that the husband does not agree with the facts contained in the wife’s submission and that a psychologist will not be seeing the parties until 12 March 2008.

12. It is the policy of the Court to try and hear every matter expeditiously but an application such as this 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.

13. 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.  However, I authorise the parties or either of them to renew the application for priority listing once the report of Mr V has been completed in March.  I otherwise 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 Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  16 January 2008