Toller and Toller

[2018] FamCA 159

FAMILY COURT OF AUSTRALIA

TOLLER & TOLLER [2018] FamCA 159

FAMILY LAW – PRACTICE AND PROCEDURE – application for expedited hearing – application granted

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Ms Toller

RESPONDENT: Mr Toller

FILE NUMBER: MLC 9114 of 2018

DATE DELIVERED: 19 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Glezer Lanteri & Associates 

SOLICITOR FOR THE RESPONDENT: Lander and Rogers

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 Toller & Toller 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 9114 of 2018

Ms Toller

Applicant

And

Mr Toller

Respondent

REASONS FOR JUDGMENT

1. The wife, who is the applicant in the proceedings, seeks expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The proceedings relate to financial matters.

2. On 18 January 2019 Registrar Moser made the following orders:

   1.That all extant applications of all parties are adjourned to a date to be fixed before the Honourable Justice Johns to determine whether to expedite the final hearing.

   2.That by 4pm on 1 February 2019, the party seeking the expedited hearing, file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.

   3.That within 7 days of receipt of the applicant’s summary of argument, the responding party, file and serve a document indicating his or her support of or objection to the application for expedition.

   4.That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at …

   5.That unless Her Honour directs otherwise, the determination of the issue of priority be heard and finalised in chambers.

3. On 1 February 2019 the wife emailed to my Associate her submissions in support of an application for an expedited hearing. No response to those submissions has been filed on behalf of the husband.

4. These are my Reasons for Judgment in respect of the wife’s application.

Background

1. The wife is aged 66. The husband is aged 58.

2. The parties commenced cohabitation in either 1993 or 1994, and were married in 2006. They separated in July 2017.

3. On 9 August 2018 the wife filed an Initiating Application in the Family Court of Australia seeking final property orders. The husband filed a Response on 17 October 2018.

4. On 19 November 2018 Registrar Mestrovic added this case to the list of cases awaiting allocation to a judicial docket with priority, noting that the parties had attended mediation prior to commencing proceedings. Registrar Mestrovic also noted that in the event that either of the parties made an application for an expedited final hearing, that directions in chambers for filing of the material in support of the application be enabled.

Legal Principles

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

2. In determining an application to expedite the first day, r 12.10A of the Rules provides that:

   (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. This matter first came before the Court on 19 November 2018 for a Case Assessment Conference. On that day the wife indicated her intention to make an application for expedition of the final hearing. On 15 January 2019 the wife requested that directions be made in response to her application for an expedited final hearing. On 18 January 2019 orders were made for the filing of the summaries of argument by both parties. Accordingly, I am satisfied that the wife has acted reasonably and without delay in the conduct of the proceedings.

2. The wife submits that the husband will suffer no prejudice if the trial is expedited.  In circumstances where the husband has filed no submissions in response to the wife’s application for expedition, I am satisfied that the husband would not suffer any prejudice if the proceedings were to be expedited.

3. Rule 12.10A(2)(d) of the Rules requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

4. Under r 12.10A(4)(2)(a) of the Rules the Court may consider whether the physical or mental health of a party would affect the availability or competence of that party. The wife contends that she suffers from a number of serious physical conditions, including:

   ·Chronic migraine;

   ·Epilepsy;

   ·Osteoarthritis;

   ·Degenerative back; and

   ·Minor renal impairment.

5. The wife also submits she has recently suffered from fractures on the lumbar vertebrae and is in a brace, which is causing her significant pain. The wife submits she is currently undertaking weekly appointments with her orthopaedic surgeon, and a determination of whether she requires surgery will be made in approximately six months. If surgery is necessary, the wife submits she is likely to be incapacitated for a substantial period of time.

6. As a result, the wife submits that if her application for expedition is denied, “her availability and/or competency to attend and/or participate in a trial is uncertain and at risk”.

7. In support of the wife’s application she provided a letter from Dr C dated 29 January 2019. Dr C confirms the wife’s claims that she is suffering from the physical conditions listed above. Further, Dr C states that the wife is under severe psychological stress due to the ongoing proceedings, which could adversely impact on a number of her physical medical conditions. Dr C states:

   It is of the utmost importance that these psychological stressors be removed and to that end I recommend resolution of her legal difficulties as a matter of urgency.

8. The wife also relies upon letters from Dr G and Dr T to support her application for priority.

9. Rule 12.10A(4)(g) states that the Court may consider whether an expedited trial would avoid serious emotional or psychological trauma to a party. The wife submits she is being treated for a major depressive disorder with co-morbid anxiety. As these proceedings are a major stressor for the wife, she submits her mental health is impacting on her physical health, including increasing her incidence of seizures. She submits any further delay will place further stress on her and impact her ongoing mental and physical health.

10. Dr T, the wife’s psychiatrist, in his letter dated 3 November 2018 states:

    [The wife] has been quite significantly affected by the separation…and the legal proceedings related to this process which has caused immense stress for her and is having a significant impact on her mental and physical health including more frequent seizures.  She has recently had a fall and has suffered from fractures of her lumbar vertebra and is in a brace with significant pain which has further challenged her emotional stability.  Any substantial delay in having her matter finalised will prove to be a further substantial stressor to [the wife] and will impact on her ongoing medical situation.  In the interest of [the wife’s] mental health I request that consideration be given for an expedited hearing in regard to the separation proceedings, if possible.

11. The husband does not challenge the wife’s submissions with respect to her health or the documents relied upon by her in support of those submissions.

Conclusion

1. Having regard to the opinion of the wife’s treating psychiatrist, I am satisfied that an expedited hearing may reduce some of the emotional and psychological trauma she might otherwise endure as a result of these proceedings. Given the potential impact of such trauma upon her physical health, as raised by Dr T in his report, I am satisfied that this matter should be afforded priority to the detriment of other cases awaiting hearing.

2. Accordingly, I will make orders allocating this matter to a judicial docket as soon as practicable.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 March 2019.

Associate: 

Date:  19 March 2019