Wiles and Paglia

[2018] FamCA 82

FAMILY COURT OF AUSTRALIA

WILES & PAGLIA [2018] FamCA 82

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Mr Wiles

RESPONDENT: Ms Paglia

INDEPENDENT CHILDREN’S LAWYER: Vessali Legal

FILE NUMBER: MLC 7708 of 2017

DATE DELIVERED: 21 February 2018

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: Sayer Jones Pty Ltd

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Lakey Family Law and Mediation

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Altavilla Vessali

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 Wiles & Paglia 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 7708  of 2017

Mr Wiles

Applicant

And

Ms Paglia

Respondent

REASONS FOR JUDGMENT

introduction

1. The father, 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”). The impetus behind the father’s application for expedition is his desire to relocate to New Zealand with the child of the relationship.

2. The father filed an Application in a Case and supporting affidavit on 7 December 2017. On 19 December 2017 I made orders for the father to file and serve a summary of argument by 9 January 2018 and for the Independent Children’s Lawyer and the mother to file their replies by 16 January 2018.

3. The father relies upon his summary of argument dated 9 January 2018.

4. The Independent Children’s Lawyer’s submission dated 16 January 2018 supports the father’s application for expedition.

5. The mother has not filed any submission in response to the father’s application.

6. These are my reasons for judgment with respect to the father’s application.

BACKGROUND

1. The parties were in a de facto relationship and there is one child of their relationship, B born in 2015 (aged three years).

2. The parties met in New Zealand in late 2013. The child was born in New Zealand and the parties moved to Australia at the end of February 2017.  The father alleges that the parties relocated to enable the mother to commence employment.

3. The child has spent almost one year in Australia.

4. The father deposes that he discovered in late March 2017 that the mother had lied about her employment; she was was instead working in a call centre. The father has since discovered that the mother does not have a law degree, despite representing herself as a lawyer in New Zealand to various individuals who have attested to this on affidavit.

5. The mother denies she has ever represented herself to be a lawyer.

6. The mother alleges the father has perpetrated family violence. At an interim hearing on 21 November 2017 orders were made by consent that the child live with the mother and spend four nights a fortnight with the father.

7. In support of his application that the child live with him in New Zealand, the father alleges that the child will continue to be exposed to the mother’s erratic and deceptive behaviour while she remains in her primary care. The father submits that he only moved to Melbourne as a result of the mother’s deception as to her profession and employment.

8. The single expert psychiatrist, Dr C, expresses significant concerns as to the mother’s psychiatric state. In the report annexed to his affidavit filed 17 November 2017 Dr C concludes that the mother was at least suffering from major depressive disorder and that there was a significant possibility that she suffered from a personality disorder and a possible compulsive lying disorder.   

9. Mr D, psychologist, expresses similar concerns as to the mother’s presentation in his family report dated 19 October 2017. 

10. The evidence of both Dr C and Mr D indicates that there are significant factual disputes between the parties that are only capable of resolution upon a testing of the evidence at final hearing.

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 father submits the circumstances that support his application for an expedited hearing are as follows:

   ·    He wants to relocate to New Zealand with the child and it is important that they do so as soon as possible to re-establish their lives there;

   ·    Neither the father nor the mother have any family in Melbourne;

   ·    The parties and the child have only been in Melbourne since February 2017;

   ·    He feels isolated in Melbourne and has been unable to establish a life for himself.  He submits that the continuation of interim orders is causing him hardship;

   ·    He is experiencing financial strain; and

   ·    He has grave concerns about the mother’s mental state and the potential impact that may have on their daughter.

2. I am satisfied that the father has acted reasonably and without delay in relation to the conduct of the case and in relation to his application for an expedited hearing. His application for expedition was made on 7 December 2017, a few weeks after interim orders were made by consent on 21 November 2017.   Further, the father’s summary of argument was filed within the timeframe prescribed by the orders of 19 December 2017. 

3. I am satisfied the father has conducted the case without delay. He initiated proceedings on 2 August 2017. This was approximately one month after an intervention order was made against him on 3 July 2017.

4. Since the proceedings were initiated in August 2017, a family report has been prepared and psychiatric assessments of the parties have been completed. I am satisfied the matter has progressed without delay.

5. I am satisfied that there will be no prejudice to the father or the mother if the matter is expedited.

6. 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). That provision is not exhaustive and the Court is permitted to consider any other circumstances that may be relevant.

7. 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. Where practicable, such matters should be heard and determined expeditiously. This is particularly so in circumstances where the parties have lived in New Zealand for the majority of their lives and it is where the child was born.

8. Interim orders were made on 21 November 2017 that provide for the child to spend the majority of her time with the mother.

9. The father raises concerns as to the mother’s mental state.  It is submitted on his behalf that there is a danger that the continuation of the interim orders may cause the child emotional or psychological trauma.  An expedited hearing will minimise such risks.

10. In the report annexed to his affidavit Dr C indicates that the mother has had a significant psychiatric history since her adolescence. In his psychiatric assessment of the mother, Dr C reports that

    The totality of the information provided by both [Ms Paglia] and [Mr Wiles] raise significant concerns about [Ms Paglia’s] ability to provide a reasonable level of positive parenting without fluctuating psychiatric symptoms leading to distorted views about what can or cannot be regarded as normal behaviours. In turn, this must raise psychiatric concerns about her ability to provide consistent modelling and emotional care of her daughter.

11. Dr C also indicated that the mother “at the very least…appears to be suffering from a major depressive disorder, recurrent”,  that there was a “significant possibility” that she suffers from a personality disorder and

    Given the longstanding recurring and complex nature of her psychiatric symptoms, as well as a possible compulsive lying disorder…there is a significant likelihood that [Ms Paglia’s] behaviours will remain unchanged into the foreseeable future.

12. In his family report Mr D states at paragraph 52 that

    [He is] clearly extremely concerned about the implications insofar as the underlying personality structure and functioning of one or other parent, with the indications being that [Ms Paglia’s] story simply does not make sense, does not hold together, is inconsistent and frankly, is difficult to believe.

13. At the time of Mr D writing his family report, the psychiatric assessment by Dr C had not been completed. Mr D indicated that the findings of that report would have a “profound impact” on the dispute and that the reality of the dispute was that one party was clearly lying and whoever it was, it reflected something like “pathological lying.” As indicated above, Dr C similarly opined that the mother had a possible “compulsive lying disorder.” The evidence contained in the reports of both experts highlights the need for a hearing at which the evidence can be tested.

14. Having regard to the assertions of the father as to the mother’s conduct which, if found to be true, is deeply troubling, coupled with the assessments of Dr C and Mr D (albeit untested), I have serious concern as to the potential impact these issues may have on the emotional and psychological wellbeing ofthe child, who is just three.

15. The mother, for her part, has previously deposed to the father perpetrating family violence towards her in the presence of the child. The mother told Mr D that she believes the child has been traumatised as a result of being exposed to the father’s violence.  The father denies the allegations. There is currently an intervention order in place due to expire on 2 July 2018. It was made by consent, without admission.

16. Ultimately, the mother’s mental state and the potential impact this may have on the child is an issue for determination for a trial judge. The same is true for the allegations of family violence.

17. In addition to the above factors the father submits that he is under financial strain. He is employed on a full time basis earning $68,000 per annum, resides in a two bedroom apartment in Suburb E and is privately funding the proceedings. He alone has met the costs of the expert reports. Without more than an assertion of financial strain and considering his annual income, I am not satisfied that the father is suffering from financial hardship as that term is understood in the Rules. Conducting family law proceedings is a costly and taxing exercise and places parties under financial strain.

18. Taking into account the very young age of the child, the father’s allegations as to the mother’s mental health, the concerns expressed by the single experts as to the mother’s presentation and the allegations of family violence raised by the mother, I am satisfied that this is a matter requiring a determination as soon as possible so as to minimise the potential adverse psychological or emotional impact of these proceedings on the child and the parties.

19. 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 thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 February 2018

Associate: 

Date:  21 February 2018