TINDALE & THOMAS

[2012] FamCA 312

FAMILY COURT OF AUSTRALIA

TINDALE & THOMAS [2012] FamCA 312

FAMILY LAW - PRACTICE AND PROCEDURE – Expedited hearing granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Tindale

RESPONDENT: Mr Thomas

FILE NUMBER: MLC 10507 of 2011

DATE DELIVERED: 23 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Clancy & Triado

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

Orders

1. That pursuant to Rule 12.10A of the Family Law Rules 2004, the hearing of the wife’s application for an expedited first day before a judge is granted.

2. That all extant applications for final orders are listed for a FIRST DAY OF HEARING before the Honourable Justice Cronin at 10.00am on 4 June 2012.

3. That the parties and if represented, their legal practitioners, attend the first day of hearing.

4. That notwithstanding applications/responses have already been filed:

5. by 4 pm on 11 May 2012, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

6. by 4 pm on 24 May 2012, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

7. That for the purposes of first day of hearing to determine whether the appointment should be extended to the full hearing that pursuant to Section 68L(2) the Family Law Act 1975 the child L born on … July 2007 be separately represented AND IT IS REQUESTED that Victoria Legal Aid to consider making the appointment for the attendance at the first day of hearing only.

8. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

9. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

10. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposal and on the return date, present to the Court a copy of those orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tindale & Thomas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10507  of 2011

Ms Tindale

Applicant

And

Mr Thomas

Respondent

REASONS FOR JUDGMENT

1. By written submission filed electronically on 2 April 2012, Ms Tindale seeks an expedited final hearing pursuant to Rule 12.10A of the Family Law Rules 2004.

2. On 13 April 2012, by written submission, the husband replied to the wife’s application and in turn, the wife replied to the husband’s submission on 16 April 2012. 

3. It is not the function of the Court in determining an application for an expedited first day of hearing to make any findings of fact.  I do not intend to do so in these reasons.

4. I am determining this matter entirely upon the material provided to me having regard to the requirements of Rule 12.10A.

5. In my view this is a matter that should be expedited.  I propose to fix a first day of hearing at 10.00am on 4 June 2012. 

6. The applicant seeks that she be able to relocate with L who is aged four years to her home country in Ireland.

7. There have been proceedings in this Court and also in Ireland.  The Irish proceedings came about when the mother did not return to Australia as requested by the father and proceedings were instituted under the Hague Convention.  The mother consented to returning to Australia and proceedings in the Federal Magistrates Court were transferred to this Court by Hughes FM at the request and consent of the parties.

8. The father objects to the expedited hearing.  Doing the best I can, his submission comes down to the fact that his relationship with L is in its infancy and time is necessary to allow the relationship to not only develop but to also be observed by an expert.  I do not know whether a family consultant would take the same view and the observations of the depth of the relationship must be seen as only one part of the whole dispute.

9. Although it is argued to the contrary by the father, there does not seem to me to be any basis to say that the mother has not conducted the proceedings reasonably and without delay. Her position about wanting to return to Ireland has always been clear. This particular application for an expedited hearing was made within weeks of the case being transferred to this Court. I have set out my understanding of the father’s case opposing expedition but Rule 12.10A(2)(c) refers to prejudice to the respondent. Having regard to the many aspects that the Court must consider in ss 60B, 60CC and 60CA, the focus must be on what is in the best interests of L. The father can no doubt present whatever evidence he has in relation to his proposal for L’s future welfare.

10. The submissions of the mother are replete with allegations of domestic violence and the father’s submissions not only deny them but say they were never raised by the mother.  I agree with the mother that if the issue is as she alleges, she is placing her credibility before the Court and the evidence can be properly tested at trial.

11. A critical question in every expedition case is whether or not the case should be given priority if it would have a detrimental effect on other cases.  All cases are important but the facts of this case show that the mother wants to return home and is suffering depression.  Whether that depression relates to her desire to return home or as would apparently also be open, a long term problem, is a matter for evidence.

12. In determining what is relevant, Rule 12.10A(4) provides a number of matters that lie within the discretionary judgment of the Court. This is a case where from the mother’s perspective, she does not know what her future holds. The father’s position is clear that the child should remain in Australia and he will no doubt address the question of how the mother’s difficulties including her depression, should be considered by the Court. There are allegations now made by the mother and they need to be determined one way or the other. Those issues can only fester and make the ongoing relationship between the parties as parents, more difficult.

13. Notwithstanding that other cases may be delayed by expediting this case, I consider that it is one that warrants the exercise of discretion and I propose to make the order accordingly.

14. Finally, the application of the father was filed in the Federal Magistrates Court on 23 November 2011 and the response thereto by the mother was filed on 3 February 2012.  Neither of those documents appropriately sets out the matters that should be canvassed at a final hearing and accordingly I propose to direct the parties to make comprehensive and precise applications setting out how the trial should be conducted by the orders the parties propose.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 April 2012.

Associate: 

Date:  27 April 2012