Tilson and Tilson

[2017] FamCA 591

FAMILY COURT OF AUSTRALIA

TILSON & TILSON [2017] FamCA 591

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Mr Tilson

RESPONDENT: Ms Tilson

INDEPENDENT CHILDREN’S LAWYER: Reid Family Lawyers

FILE NUMBER: AYC 68 of 2015

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: Slater & Gordon Lawyers

SOLICITOR FOR THE RESPONDENT: Toner & May Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Reid Family Lawyers

Orders

1. 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.

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 Tilson & Tilson 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: AYC 68 of 2015

Mr Tilson

Applicant

And

Ms Tilson

Respondent

REASONS FOR JUDGMENT

1. The applicant husband and the respondent wife commenced a relationship in 1998, were married in 2003 and separated finally on 21 May 2013. Proceedings were commenced by way of an Initiating Application filed by the husband in the Federal Circuit Court on 12 February 2015 seeking final property and parenting orders.

2. The Independent Children’s Lawyer seeks an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). She relies upon the summary of argument in support of expedition dated 4 August 2017 filed pursuant to orders made by Registrar Field on 25 July 2017. The husband and the wife have not filed any submissions in reply.

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. In support of the application that the matter be given priority the Independent Children’s Lawyer submits that:

   ·both parties have acted reasonably and without delay including compliance with Court directions as to filings and genuinely pursuing settlement negotiations;

   ·the matter was ready to proceed to final hearing in November 2016 however due to circumstances outside of the parties’ control the Department of Human Services (“the Department”) commenced proceedings in the B Town Children’s Court which although those proceedings were ultimately discontinued delayed the resolution of the family law proceeding and in circumstances where the Children’s Court Clinic Report cannot be utilised in this Court a further assessment for the purposes of the proceedings in this Court is required;

   ·the mother wishes to relocate to Western Australia where she has the support of her extended family;

   ·there are allegations that the father has behaved in an inappropriate sexual manner towards the children and that although one of the children spends unsupervised time with the father the other child has not spent time with him since October 2016; and 

   ·the father alleges that the mother is alienating the children from him and that if that were the case further delay would likely entrench the estrangement between the father and the child who is not currently spending time with him.  

2. Of particular significance in this case is the fact that the parties have agreed upon the appointment of a suitably qualified single expert and are privately funding the cost of the preparation of a report and that the report is likely to be available in November 2017. The matter is otherwise ready to proceed subject to the parties filing any updating affidavits.

3. I am satisfied having regard in particular to the fact that one of the children is not spending any time with the father, that the mother wishes to relocate and the readiness of the matter for a final hearing that this matter is a matter that should be afforded priority over the other cases awaiting hearing. On that basis I propose to order that the matter be allocated to a judicial docket as soon as practicable.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan J delivered on 14 August 2017.

Associate: 

Date:  14 August 2017