SUAREZ & SUAREZ

[2016] FamCA 1030

FAMILY COURT OF AUSTRALIA

SUAREZ & SUAREZ [2016] FamCA 1030

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

FAMILY LAW – CHILDREN – Issue as to the time the parents are to spend with the child in the 2016/2017 summer holidays – where the mother has booked a holiday with the child and maternal grandmother for an extended period during the summer holiday period – where the father seeks that the child spend specific periods amounting to half of the summer holidays with each parent – where the father’s proposal mirrors the arrangements for the previous summer holiday period – interim orders made as sought by the mother

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.

APPLICANT: Ms Suarez

RESPONDENT: Mr Suarez

FILE NUMBER: MLC 917 of 2015

DATE DELIVERED: 1 December 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 8 November 2016 and by written submissions considered in chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Colla

SOLICITOR FOR THE APPLICANT: Resolve Conflict

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The child B born … 2009 spend time with the father from 6.00 pm on 16 January 2017 until 6.00 pm on 30 January 2017.

2. 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.

3. All extant interim applications save for paragraph 13 of the wife’s Application in a Case filed 25 August 2016 be otherwise dismissed and removed from the list of cases awaiting hearing.  

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 Suarez & Suarez 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: MLC 917  of 2015

Ms Suarez

Applicant

And

Mr Suarez

Respondent

REASONS FOR JUDGMENT

1. This matter having been transferred from the Federal Circuit Court to this Court was listed for hearing before me in the Judicial Duty List on 8 November 2016. On that date following a lengthy interim hearing the parties resolved all the interim issues save and except for the question of the time the child of the relationship, B, who is seven years of age, should spend with each of them during the forthcoming long summer vacation.

2. The parties in this case were married in 2005 separating under the one roof in December 2014. The husband vacated the former matrimonial home shortly thereafter.

3. The husband is currently 50 years of age and is employed as a manager earning the wife asserts approximately $191,000 per annum and a possible annual bonus of $12,000. The husband says that he currently earns approximately $188,000.

4. The wife who is 37 years of age works casually earning approximately $38,000 per annum. The husband asserts that she also receives cash working part time.

5. The husband filed an Initiating Application in the Federal Circuit Court of Australia on 10 February 2015. The matter was first listed for hearing on 29 April 2015. On that date the matter was adjourned for an interim hearing on 15 May 2015 and the parties consented to parenting orders pending that adjourned date.

6. On 14 May 2015 Judge O’Sullivan made orders by consent in chambers for a further adjournment of the interim hearing to 28 July 2015.  On 28 July 2015 the parties consented to both interim parenting orders, including an order for the child to spend time with the husband during the 2015/2016 long summer holiday period, and procedural orders in anticipation of the matter being listed for final hearing. The matter was also listed for mention on 1 December 2015.   

7. On 1 December 2015 the matter was listed for final hearing before Judge O’Sullivan as a two day matter commencing on 18 August 2016. Orders were also made by consent with respect to the child’s time with the husband during the 2015/2016 long summer holiday period, altering the previous arrangement.

8. On 18 August 2016 the matter was adjourned for final hearing, with an estimated hearing time of two days, on 24 August 2017. Following the adjournment of the matter the wife filed an Application in a Case on 25 August 2016 seeking inter alia orders for repayment of funds the wife alleged had been taken by the husband from joint savings, payment of monies held by him in accounts in his name, orders to preserve the remaining property and orders with respect to the valuation of properties owned by the husband in the Middle East.  

9. On 8 September 2016 the husband filed a Response to the wife’s Application in a Case in which he sought further interim parenting orders. The wife’s Application in a Case and the husband’s Response to an Application in a Case were first listed for hearing on 13 September 2016. On that date Judge O’Sullivan transferred the matter to this Court in circumstances where he said there were “disputes over property in [the Middle East], ongoing mutual complaints regarding lack of proper disclosure and the approach that the parties seem to be taking to compliance with Court orders” as a result of which it was more appropriate for the matter to be dealt with by this Court. Whilst I do not agree that these matters necessarily make this Court a more appropriate venue, I am conscious of the fact that this matter has now been on foot since early 2015, has now no doubt lost its place in Judge O’Sullivan’s list and in my view should not be further delayed. Both the husband and the wife seek the expedition of this matter albeit for different reasons.

10. Pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”) a party may apply to expedite the first day before the Judge. The Rules also set out the matters the Court may take into account.

11. The fact that a matter has been on foot in the Federal Circuit Court for some time and unable to be reached albeit for totally understandable reasons does not of itself determine that the matter should be afforded priority in this Court. However in this case there a number of matters, including the length of time since these proceedings were commenced that lead me to conclude that the matter should be afforded priority. The first is that a family report was prepared in July this year for the purposes of the final hearing and if at all possible the matter should be listed so as to avoid the necessity for the preparation of a further report.

12. Of even more significance in my view having regard to the delay is that although the asset pool is quite small the husband has already had the benefit, on his own evidence, to the exclusion of the wife, of some $262,000 which would otherwise form part of the property available for division, a significant part of which he has applied to the payment of his legal expenses. In all of the circumstances I am satisfied that this matter should be allocated to a judicial docket to be listed for a first day hearing and ultimately a final hearing.

Interim Parenting Orders

1. As previously referred to orders were made with respect to the 2015/2016 long summer holiday period, however it appears that as the parties had anticipated a final hearing of the matter in August this year no orders were made with respect to the forthcoming long summer holiday period.

2. The orders made by consent on 1 December 2015 provided for the child to spend time with the husband from 6.00 pm on 18 December 2015 until 6.00 pm on 30 December 2015 and from 6.00 pm on 16 January 2016 until noon on 24 January 2016, a total of 20 days or approximately half of the long summer holiday period. It is the husband’s case that the orders for the child to spend time with him during the forthcoming school holiday period should mirror the orders for the previous year.

3. The husband was until recently legally represented and he relied upon two letters sent to the mother’s solicitor the first dated 21 September 2016 in which he proposed that the child spend two weeks with him from 16 December to 30 December 2016 and then a further week with him from 13 January 2017, being approximately half of the school holiday period. His solicitors forwarded a further letter to the wife’s solicitor dated 19 October 2016 in which it was noted that his solicitors were yet to receive any reply from the wife’s solicitors to their earlier letter.

4. The wife’s evidence is that in early September 2016 prior to the date of the husband’s solicitors’ first letter the wife, in anticipation of her mother travelling from the Europe to spend time with both she and the child, booked a holiday for the three of them to Queensland departing 19 December 2016 and returning to Melbourne on 22 January 2017. The mother in her Affidavit filed 8 November 2016 made two different proposals. Doing the best I can based upon her evidence her proposal was that that  the child spend time with the husband for two days from 6.00 pm on 16 December 2016 and from 23 January 2017 until either 31 January 2017 or 1 February 2017 a total period of approximately 11 or 12 days. The husband’s proposal is effectively that the child should spend the first two weeks of the holiday period with him, the next two weeks with the wife and thereafter a further week with each of them.

5. At my request the wife made enquiries as to whether she could rearrange her travel plans and having made those enquiries proposed that the child spend time with the husband from 16 January 2017 until 30 January 2017, effectively the last two weeks of the long summer holiday period allowing for the child to return to the wife’s care for a couple of nights prior to the commencement of the new school year.

6. These are parenting proceedings and in those circumstances I must apply the legislative pathway identified by the Full Court in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286. I have had regard to that legislative pathway and in particular considered the matters in s 60CC as I am required to do to the extent, as referred to by the Full Court in Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637, the facts of this case and the limited nature of the issues in the case dictate.

7. Although the wife may already have made her travel arrangements prior to receipt of the first letter from the husband’s solicitor, at the very least she made those arrangements in the knowledge that they were not consistent with the arrangements the parties had agreed upon during the previous long summer holiday period. Although that is far from satisfactory and there may need to be some make up time during some other school holiday period I am also satisfied that to accede to the husband’s proposal may now significantly impinge on the child’s holiday with her maternal grandmother. On the wife’s evidence the holiday arrangements have been in place for approximately two months and it is in my view reasonable to infer that the child may also be aware of the proposed holiday, at least in general terms.  The husband’s proposal would likely preclude the wife having an extended holiday with her mother and the child.

8. The wife did, although not significantly, reduce the length of her proposed holiday and in circumstances where the husband will in any event be spending two uninterrupted weeks with the child I am not satisfied that it is in the child’s best interests on this occasion for the sake of an extra week to require the wife to forego or to significantly rearrange the proposed holiday with her mother and the child. The problem that has arisen on this occasion will hopefully be avoided in future by the Court making orders with respect to the husband’s time with the child during the long summer holiday period. The wife is however on notice that in any event absent orders to that effect she should not make arrangements without first discussing those arrangements with the husband.

9. In all of the circumstances I propose to adopt the wife’s proposal for holiday time on this occasion.   

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 December 2016.

Associate: 

Date:  1 December 2016