Toft and Prince

[2012] FamCA 490

FAMILY COURT OF AUSTRALIA

TOFT & PRINCE [2012] FamCA 490

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Toft

RESPONDENT: Ms Prince

FILE NUMBER: CAC 614 of 2011

DATE DELIVERED: 27 June 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: Armstrong Legal

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

Orders

1. That the application of the husband for an expedited first day is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Toft & Prince 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: CAC 614  of 2011

Mr Toft

Applicant

And

Ms Prince

Respondent

REASONS FOR JUDGMENT

1. On 18 June 2012, by written submission, the husband sought to expedite the first day before a judge of a parenting dispute.

2. For the purposes of the determination of the application, I have considered the substantive application of the wife and the response thereto of the husband together with the relevant written submission and the affidavit material filed by the wife’s practitioners of a psychiatrist and a forensic psychologist.

3. The initiating application filed 3 February 2012 by the wife sought that she be excused from particularising her proposed final order until the release of the relevant psychological and psychiatric assessments.  I shall turn to those in a moment.  On 13 March 2012, the husband filed his response in which he sought orders that the children reside with their mother and that he spend time with them in circumstances where he is currently living in Canada.  Accordingly, I conclude that the children are to reside in Australia predominantly with the wife.

4. To the extent that the wife did not particularise her proposed orders and has not done so since the application was filed, the evidence of Ms F a psychologist, and Dr T, a psychiatrist are relevant.

5. Bearing in mind the dispute centres on the husband’s time with the children, Dr T said there were no psychiatric symptoms at present and the husband would not be regarded as someone who suffered from a psychiatric condition which would cause concern about his contact with the children.  For her part, Ms F in a very long and comprehensive report attached to an affidavit filed 31 May 2012 recommended that the children spend time with their father as he proposed.

6. There does not seem therefore to be an immediate problem (depending upon the factual dispute between the parties) that might underpin the evidence of the two professionals.

7. The submission of the husband expressed concern about the conduct of the wife and noted that there were no risks that would require his time to be supervised. 

8. The submission was put that the interim orders made in June 2012 do not provide time for the husband to have contact with the children in Canada and that if the interim orders were in force as they presently stand, the father would be prejudiced by evidence raised by the wife about the length of time that the children had not been in Canada.  It was asserted that the recommendations of the psychologist might become weaker with the passage of time.

9. The orders made on 1 June 2012 were interim and drawn by the parties.  There is no dispute in this case about equal shared parental responsibility so I have presumed that the parties can at least communicate about the welfare of their children in respect of major long term issues. 

10. To the extent that a final hearing of this matter will still focus on the husband’s time with the children in either Canada or Australia, having read the evidence of Ms F, it is hard to see where the dispute is and importantly, to the extent that there will be a delay in the final hearing, the husband is able to make a further application for interim orders if the existing arrangements are no longer appropriate. 

11. The power to expedite a first day before a judge is a discretionary one.  Rule 12.10A provides guidance as to the matters that the Court may take into account.  In this case, there is no suggestion of a delay in making the application.  Having regard to the tyranny of distance between the parties, it would appear that the husband has acted reasonably.  There could be no prejudice to the respondent and as such, the only relevant question is whether there are other circumstances that might justify giving this case priority to the detriment of other cases.

12. In determining that issue, none of the factors in Rule 12.10A(4) appear to be strongly in favour of expediting the hearing over other cases in circumstances where a further interim application could be made on the evidence currently before the Court.

13. At present, the delay in the Melbourne registry would mean that this case would be most likely called on for a first day before a judge around the end of the year giving rise to a probable final hearing in the early part of 2013.

14. Having regard to the possibility of the husband making an application for a further interim hearing should he come to Australia as he seemed to propose, there is no basis for me to expedite this particular case.  Accordingly I decline to do so.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 June 2012.

Associate: 

Date:  27 June 2012