Wetherby and Stott

[2017] FamCA 913

FAMILY COURT OF AUSTRALIA

WETHERBY & STOTT [2017] FamCA 913

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Wetherby

RESPONDENT: Mr Stott

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 7677 of 2017

DATE DELIVERED: 13 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

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 Wetherby & Stott 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 7677  of 2017

Ms Wetherby

Applicant

And

Mr Stott

Respondent

REASONS FOR JUDGMENT

1. The mother, who is the applicant in this case, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is opposed by the father.

2. Orders made by Senior Registrar FitzGibbon on 19 September 2017 provided for any party seeking expedition of the final hearing to provide a summary of argument by 11 October 2017.  The mother relies upon her summary of argument filed 11 October 2017. The father relies on his response to summary of argument dated 18 October 2017.

3. The mother seeks to relocate to the UK with the child of the relationship B born in 2012, aged four (“the child”). The parties commenced co-habitation in Australia in 2007 and separated on 12 June 2016 while on holiday in the UK, following an altercation at the mother’s parents’ home which resulted in the father being arrested and charged.

4. Following separation, the mother and the child remained in the UK until Hague Convention proceedings were initiated by the father on 13 June 2017. On 7 July 2017 the mother was ordered to return to Australia with the child by 31 July 2017. The mother and the child returned on that date. The child had not spent time with the father from the time of separation in June 2016 to September 2017, a period of over a year.

5. The father initiated proceedings in the Federal Circuit Court on 1 August 2017, being the day after the mother’s return. Orders were made on 4 August 2017 placing the child’s name on the Airport Watch List. The father’s application and orders were not served on the mother; the father stated he was unable to effect service as he did not have her contact details.

6. On 13 September 2017 the mother commenced proceedings in this Court seeking, inter alia, to relocate with the child to the UK. Orders were made by Senior Registrar FitzGibbon on 19 September 2017 that provided for the father to spend supervised time with the child at a contact centre.

7. In support of her application to relocate, the mother alleges that the father has perpetrated significant family violence against her, that she does not have any friends or family in Melbourne, she is unemployed, does not receive any financial support from the father and is suffering from depression. The child requires speech and language therapy and while support was available in the UK, the mother submits she has been unable to obtain that support in Australia. The father denies the allegations of physical violence and submits the mother and the child do have access to financial and medical support in Australia.

8. The mother submits the circumstances that support her application for an expedited hearing are as follows:

   ·    She has acted reasonably and without delay;

   ·    There is no prejudice to the father;

   ·    She seeks to relocate to the UK, which is her country of origin and where she has employment opportunities, family, friends and a support network.  She submits that she has no such support network in Australia;

   ·    She left secure employment in the UK to return to Australia;

   ·    To date she has not secured employment in Australia and is drawing upon capital to meet her living expenses;

   ·    The father is unemployed and does not pay child support;

   ·    Her health is affected and she has symptoms of depression for which she is prescribed medication;

   ·    The child was receiving speech and language therapy in the UK and has not connected with such services in Australia.

   ·    The father has perpetrated family violence against her.

9. In response, the father relies upon the following circumstances in support of his opposition to the mother’s application for expedition of the proceedings:

   ·    The mother has not acted reasonably and without delay;

   ·    The father’s case will be prejudiced by expedition, as supervised time may not have commenced or will have occurred on only a few occasions by the time of  trial, thereby limiting his opportunity to re-establish his relationship with the child or to adduce evidence of that relationship;

   ·    He denies the mother is unable to obtain employment in Australia, that she has no support here and that she cannot obtain financial or medical assistance for herself and the child.  He relies upon the fact that the mother was engaged in paid employment at the time of her departure from Australia in 2016;

   ·    The father is awaiting receipt of assessment of his child support liability.    The mother is in receipt of Family Tax Benefit A and child care rebates;

   ·    The mother lived in Australia between 2007 and 2016 and has established friendships in Australia;

   ·    The Australian medical system is able to provide appropriate medical services to the mother and the child;

   ·    He denies the allegations of physical violence.

10. These are my reasons for judgment with respect to the mother’s application for an expedited hearing.

Legal principles

11. 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

12. This case has its origins in Hague Convention proceedings in the UK. The mother returned to Australia on 31 July 2017 and initiated proceedings in this Court on 13 September 2017, a little over a month after she arrived in Australia. The parties have been involved in Federal Circuit Court proceedings since 1 August 2017.

13. The father contends that the mother has not acted reasonably and without delay in the conduct of the case. It is his case that the mother over held the child in the UK, in breach of the agreement entered into by the parties prior to their travel to the UK. He submits that it was the mother’s conduct that necessitated his application under the Hague Convention, and as such her conduct has not been reasonable. I do not accept that submission as it relates to the mother’s conduct prior to the commencement of these proceedings, not her conduct with respect to this case.

14.  I am satisfied that the mother has acted reasonably and without delay in relation to the conduct of the case; her application for an expedited hearing was made without delay and within the timeframe prescribed by the orders of 19 September 2017.  The father too has acted expeditiously in the conduct of his case, filing his Initiating Application the day after the mother’s return to Australia.

15. The father submits that he will be prejudiced by an expedited hearing. Due to the mother’s wrongful retention of the child in the UK, the father has spent time with the child on only one occasion in the past twelve months. While an order has now been made providing for the father to spend supervised time with the child, he submits delays in the contact centre availability mean that supervised time is not likely to commence for at least three months.  As a result of those delays the father submits that he will be disadvantaged in relation to obtaining evidence of his relationship with the child if the proceedings are expedited.  

16. I consider that both parties’ applications may be affected if the proceedings are expedited. From the father’s perspective, he will have limited opportunity to spend time and re-establish his relationship with the child prior to the hearing.  This may also impact on the mother’s case, as evidence of an established relationship between the father and child may be a relevant factor in the determination of her application to relocate.

17. Rule 12.10A(1)(d) requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision also require the Court to determine whether priority should be given to the detriment of other cases (emphasis added).

18. The most persuasive factor in determining whether to expedite the matter is that it is an international relocation case which concerns the question of one party’s freedom of movement. Currently there are restrictions on the ability of the mother to move with the child. Accordingly, in my view, where practicable, such matters should be heard and determined expeditiously.

19. I am satisfied that the mother is suffering from financial hardship not caused by her which cannot be rectified by an interim order. The fact that she is unemployed, not receiving financial support from the father and is reliant upon Government benefits, are matters that support her application for expedition.

20. Rule 12.10A(4)(b) allows the Court to consider whether a party has been violent, harassing or intimidating to another party. The mother asserts that she has been subjected to family violence at the hands of the father since 2009. She obtained an intervention order against the father in 2013 and has obtained intervention orders against members of the father’s family. She submits that separation occurred following an altercation with the father at her parents’ home in the UK.  As a result of the father’s conduct on that occasion, he was arrested and charged with various offences. Further, the mother submits that the father suffers from a range of mental health issues including post-traumatic stress disorder, bipolar disorder and depression.

21. The father denies the allegations of physical violence but concedes that the parties had heated verbal conflicts when they had both been consuming alcohol. The father also points to the fact that there is no current intervention order in place and the last intervention order was obtained in 2013.  Finally, the father admits he was charged with two offences at separation and pleaded guilty to child endangerment. He states he was charged due to the child being exposed to inclement weather as it was raining and the child and father were outside and exposed to the elements. He does not specify what the other charge was, but states it was dismissed.

22. It is conceded by both parties in their submissions that violence, whether verbal or physical, has featured in their relationship. The question of each party’s role in those events is a matter that will be determined by the trial judge.  For the purposes of this application, I am satisfied that it is conduct which has likely impacted upon the child and is a factor which supports the application that the matter be afforded priority.

23.  Rule 12.10A(4)(d) provides that the Court may consider whether the continuation of interim orders is causing the mother or child hardship. The mother submits that she has no family or friends in Australia, as during the relationship the father did not permit her to make friends. The father denies that allegation and submits the mother has a network of friends in Australia.  Ultimately the question of what supports are available to the mother in the UK and Australia are issues for determination by the trial judge.

24.  The mother also submits that she displays symptoms of depression for which she is prescribed anti-depressants. The father submits that that circumstance is not relevant to her application for priority, as the mother can obtain treatment for her depression through Medicare. Whilst I accept that the mother is able to obtain treatment for her condition in Australia, the issue is whether a delay in the determination of her application to relocate will impact on her health and therefore her ability to care for the child.  Although there is no evidence before me in relation to those matters, I accept that protracted proceedings are likely to cause hardship and affect the health and well-being of both parties and the child.

25.  The child is due to commence primary school in Term 1, 2018.  Whilst the proceedings will not be heard and determined prior to that date, even with priority, I am satisfied that it is in the child’s best interests that these proceedings be concluded as soon as practicable to ensure certainty for his future education, whether it be in the UK or Australia.

26. Having regard to all of the above matters, I propose to expedite the proceedings. Accordingly, I will order that it be allocated to a judicial docket as soon as is practicable.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 November 2017

Associate:

Date:  13 November 2017