Wetherby and Wetherby

[2017] FamCA 589

FAMILY COURT OF AUSTRALIA

WETHERBY & WETHERBY [2017] FamCA 589

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)
APPLICANT:	Ms Wetherby

RESPONDENT: Mr Wetherby

FILE NUMBER: MLC 3503 of 2017

DATE DELIVERED: 11 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

Orders

1. All extant applications for final orders are listed to a TRIAL MANAGEMENT HEARING before the Honourable Justice Johns at 10.00 am on 22 September 2017 for the purposes of listing the matter for final hearing.

2. The parties and if represented, their legal practitioners, attend the trial management hearing.

3. Notwithstanding any applications/responses that have already been filed:

   (a)       by 4.00 pm on  28 August 2017 the Applicant file and serve on all other parties an amended application setting out with precision the orders to be sought at trial; and

   (b)       by 4.00 pm on 11 September 2017 the Respondent file and serve on all other parties an amended response setting out with precision the orders to be sought at trial.

4. All parties, including the Independent Children’s Lawyer, if one has been appointed, file and serve on all other parties a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 18 September 2017. Such summary should be emailed to: ...

5. At the trial management hearing each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

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 & Wetherby 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 3503  of 2017

Ms Wetherby

Applicant

And

Mr Wetherby

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. The mother relies upon her Summary of Argument dated 2 June 2017 pursuant to orders made by Registrar Field on 19 May 2017. The father relies upon his Summary of Argument dated 9 June 2017. This case is concerned with the mother’s intended relocation to South Africa with the children.

2. The applicant mother and the respondent father were married in 2001 in South Africa and separated on 15 November 2016. The parties moved from South Africa to Australia in 2012. There are three children of the relationship, B born in 2007 (aged 10), C born in 2010 (aged seven) and D born in 2014 (aged three).  The substantive proceedings were commenced by way of an Initiating Application filed by the mother on 11 April 2017. The mother seeks orders that the children live with her and that she be permitted to relocate to South Africa at the end of the 2017 school year. The father opposes the mother’s intended relocation.

3. The mother submits that she suffers from anxiety and feelings of isolation in Australia and that her family, friends and support network all remain in South Africa and that she owns a business in South Africa.  She submits that relocation, if permitted by the Court, will enhance her ability to become financially independent.

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. The mother submits that the circumstances in support of an expedited final hearing are as follows:

   ·she has acted reasonably and without delay, having explored all alternative avenues for dispute resolution before initiating proceedings and she has filed all the necessary documents;

   ·there would be no prejudice to the father but a delay will cause her further distress; and

   ·she suffers from anxiety and feelings of isolation and while remaining in Australia, this may have the potential to affect the children.

2. The father opposes this matter being afforded priority on the following basis:

   ·the children are well settled at school, have close friends, are engaged with extra-curricular activities and have spent five years in Australia, which is the majority of their lives;

   ·the father is providing financial support to the mother and there is no hardship;

   ·the parties are yet to particularise the orders they seek and the Family Report is due to occur on 31 August 2017 and as such, the application for relocation is not ready to proceed;

   ·the mother acted with delay and did not inform the father promptly of her intention to relocate; and

   ·the mother’s alleged emotional and psychological problems are not new and she suffered from them in South Africa.

3. This is a relocation case and as such if at all possible and depending on the urgency of the particular circumstances will be expedited where possible. However, it is also not the case that priority will be granted automatically by the Court simply because there is an intended relocation. The Court must consider all of the matters in r 12(10A) of the Rules. The intended relocation is a relevant consideration and is in my view, significant in this case.

4. I do not accept as submitted by the father that the mother has not conducted her case in a timely manner. Nor do I accept his submission that he would be prejudiced by an expedited hearing. The father in his submission opposing the expedition of the matter states that the mother refused to discuss the issue of relocation with him until 15 February 2017 and therefore has delayed. However, later on in his submission, he appears to contradict himself and states that the parties separated in November 2016 and shortly after the mother took the children on a seven week holiday over the Christmas period to South Africa “during which she expressed to the Husband her desire to relocate to South Africa.”

5. Although it is common ground that the father is providing the mother with financial support it is her case that although she operates a fashion business in South Africa she cannot expand that business whilst she remains in Australia and consequently will, if she remains in Australia, remain financially dependent on the father. This will no doubt be an issue in the case.

6. The father and the mother both make submissions that go towards the relocation itself, the father submitting that the children are well settled in Australia and the mother submitting that she has greater support in South Africa. These are matters that go toward the determination of whether to allow the relocation itself. I am only determining whether the matter should be expedited having regard to the matters in r 12.10A of the Rules.

7. The mother submits that she is isolated from family and friends in Australia and is suffering from anxiety. She submits that the mother’s psychological health has the potential to impact upon the children. Whilst the father’s case is that the mother’s psychological health issues are not new that is not to say that they could not be further exacerbated if her application to return to South Africa was not to be addressed. In my view the issues in this case are not issues that can be addressed by the Court making interim orders.

8. The parties are due to attend upon Dr E for the purposes of a Family Report on 31 August 2017. The father submits that the application for relocation is therefore not ready to proceed. In my view this is a further reason why the matter should be afforded priority not a reason for delaying a hearing. The matter will be listed for a Trial Management Hearing before Johns J on 22 September 2017. The Court will have the benefit of a recent report and be ready to proceed.

9. The father also submits that the parties have not particularised the orders they seek. The usual course is for the parties to file and serve an amended Initiating Application and an amended Response to an Initiating Application particularising the orders they seek in anticipation of the Trial Management Hearing so there is no reason why the fact that they have not done so to date should delay a final hearing.

10. I am satisfied in all of the circumstances that this matter should be afforded priority.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 11 August 2017.

Associate: 

Date:  11 August 2017