Sully and Walker

[2017] FamCA 592

FAMILY COURT OF AUSTRALIA

SULLY & WALKER [2017] FamCA 592

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Sully

RESPONDENT: Ms Walker

FILE NUMBER: MLC 5006 of 2014

DATE DELIVERED: 14 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Creative Family Law Solutions

SOLICITOR FOR THE RESPONDENT: O'Hanlon Foster Lawyers

Orders

1. The matter be placed in the list of cases awaiting allocation to a judicial docket with priority from 15 June 2016.

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 Sully & Walker 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 5006  of 2014

Ms Sully

Applicant

And

Ms Walker

Respondent

REASONS FOR JUDGMENT

1. The applicant and respondent were in a de facto relationship for 11 and a half years from the end of 2002 until their separation on 22 April 2014. There is one child of that relationship who is currently aged 10 years. The parenting issues in this case have been resolved by final orders made by consent on 9 April 2016 but property issues remain outstanding. 

2. The proceedings were commenced by the applicant on 10 June 2014 by way of an Initiating Application filed in the Federal Circuit Court. Over the course of the proceedings, the parties have filed a number of additional amended applications, responses and applications in a case. The matter was listed for a final hearing in the Federal Circuit Court on 11 April 2016. The property issues were still unable to be resolved at that date and the matter was transferred to this Court. Essentially, the applicant submits that the respondent through her behaviour has caused this matter to be unduly delayed. The respondent submits that the applicant has not provided full and frank disclosure of financial interests and as such, will suffer prejudice if the matter is set down for trial before this information can be obtained.

3. The matter came before Registrar Lethbridge on 22 June 2017 and orders were made for the parties to file written submissions in support of any application for a priority hearing.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. As set out in the Rules:

   (2)  The court may take into account:

   (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.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (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.

Discussion

1. The applicant submits that the circumstances in support of her application for an expedited final hearing are as follows:

   ·she has at all times acted reasonably and without delay in the conduct of the proceedings and the application for expedition was made without delay;

   ·she is prejudiced as she has been excluded from the family home and cannot access her personal possessions. In addition, she is residing in basic temporary accommodation;

   ·there would be no prejudice to the respondent if the matter was to be expedited.

2. The applicant’s written submissions in support of an expedited hearing are focussed on the delays in this case, which she attributes to the respondent. Whether there was a deliberate intention on the Respondents part to frustrate the proceedings it would appear that would appear to be the effect of the way in which the proceedings have been conducted.

3. The respondent opposes the expedition of the final hearing on the following grounds:

   ·    the applicant has not made full and frank disclosure in relation to financial interests and as such has not acted reasonably and without delay;

   ·    as there has not been proper disclosure, she will be prejudiced by an expedited hearing;

   ·    she denies that the applicant has not had access to her personal belongings or that her temporary accommodation is “basic”.

4. This matter was commenced in the Federal Circuit Court over three years ago. Despite the time that has elapsed, mediation, a conciliation conference and numerous direction hearings, the matter is still unresolved.  It is undoubtedly desirable for matters to be resolved at the earliest possible date, giving parties an opportunity to move forward with their lives, and this matter has been on foot in the Federal Circuit Court for some time. However, that being said the fact that matters are transferred to this Court does not guarantee them being given priority over other matters commenced in this Court. I am required to consider the totality of the circumstances in this case and have regard to the factors in r 12.10A of the Rules.

5. The applicant submits that she has acted reasonably and without delay.  She appears to have done so and although the respondent complains about discovery being deficient that is disputed by the applicant. Even the respondent’s submissions suggest that that this may at least to some extent be attributable to the changes in the respondent’s legal representation rather than a failure on the applicant’s part to meet her obligations. There are in any event remedies that are available and have been available to the respondent to enforce compliance with the obligation to provide full and frank disclosure. That is not a reason of itself to further delay a hearing.

6. The applicant also submits that she will be prejudiced if the matter is not expedited as she has been excluded from the family home, cannot access her personal possessions and is residing in temporary accommodation. This is disputed by the respondent. Although I am not in a position to make findings with respect to this issue I am satisfied that a delay of some three years  as in this case is likely to cause hardship to one if not both parties.

7. That being said the Rules refer to any prejudice to the respondent if the matter is expedited, not the applicant. I am not satisfied that the respondent will be prejudiced if the matter is afforded priority and ultimately listed for trial. The respondent has had years in which to take the necessary steps to ascertain the asset pool and orders can be made in anticipation of a trial to ensure the matters readiness for trial.  

CONCLUSION

1. In the circumstances, I am satisfied that the matter should be afforded priority. The court has an obligation to finalise the financial relationships between parties and I am satisfied that this is a matter that should be heard and determined. In all of the circumstances I propose to afford this matter some priority and place it in the list with priority as at 15 June 2016.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 August 2017.

Associate: 

Date:  14 August 2017