Yang and Cao

[2017] FamCA 1143

FAMILY COURT OF AUSTRALIA

YANG & CAO [2017] FamCA

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Yang

RESPONDENT: Mr Cao

FILE NUMBER: MLC 9058 of 2017

DATE DELIVERED: 27 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Nicholes Family Lawyers
SOLICITOR FOR THE RESPONDENT:	Oceania Lawyers

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 Yang & Cao 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 9058  of 2017

Ms Yang

Applicant

And

Mr Cao

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”). The proceedings relate to both parenting and financial matters. The mother seeks to relocate to Country C with the parties’ child, B, who is eight months old.

2. The matter came before Senior Registrar FitzGibbon on 27 September 2017 and that day orders were made for the parties to file written submissions in support of any application for a priority hearing. The mother relies upon her amended summary of argument filed 6 October 2017. The father relies on his summary of argument filed 16 October 2017. 

3. The mother is a Country C national and entered Australia in May 2017 on a tourist visa. The father is a dual Country C and Australian citizen. The mother’s tourist visa was due to expire on 2 October 2017 but she has since obtained a visitor tourist visa and been provided with a bridging visa pending the outcome of her application. The mother submits that the matter should be afforded priority due to the uncertainty of her immigration status. The current interim orders made 4 September 2017 prevent her from removing the child from Australia; this is impacting on her financial and living circumstances and causing her hardship. In addition, the mother submits that she has been subjected to family violence at the hands of the father.

4. The father concedes that the parties would be assisted by the expedition of the proceedings, but challenges the mother’s bona fides in seeking such an order.  Further, he denies the family violence allegations and states that the mother’s desire to relocate is motivated by financial considerations, rather than the best interests of the child.

5. These are my reasons for judgment with respect to the mother’s application for expedition.

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 for expedition r 12.10 A of the Rules provides:

   (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 the following circumstances are relevant to her application for an expedited hearing:

   ·Her visa status is uncertain and that will affect her ability to remain in Australia;

   ·She has been subjected to violence by the father;

   ·She is suffering from financial hardship;

   ·The continuation of the interim orders is causing hardship;

   ·A delay in the hearing may cause the loss of an employment opportunity she has in Country C;

   ·An expedited hearing will avoid further emotional suffering.

2. In support of his position, the father submits that:

   ·    The mother does not need to apply for other visas as her Electronic Travel Authority (“ETA”) is valid for 12 months and expires on 20 April 2018, provided she exits and re-enters Australia every three months;

   ·    He denies the allegations of family violence and submits the mother is using the child to achieve her goals;

   ·    Her claims of financial hardship are exaggerated;

   ·    The mother seeks to relocate for financial advantage.

10. Rule 12.10A(2) provides that the Court may take into account whether the mother has acted reasonably and without delay, both in relation to the conduct of the case and the application for expedition itself. The mother’s Initiating Application was filed on 1 September 2017 and an Amended Initiating Application was filed on 15 September 2017. At the hearing before the Senior Registrar on 27 September 2017, orders were made for the filing of submissions in support of an expedited hearing. The mother’s application for expedition was made within the prescribed timeframe in those orders.  Having regard to that procedural history, I am satisfied that the mother has acted reasonably and without delay.

11. Further, having regard to the father’s concession that the parties will be assisted by an expedited trial, I am satisfied that there will be no prejudice to the father if the proceedings were expedited.

12. The primary basis for the mother’s application for expedition is that she seeks to return with the child to Country C.  As relocation cases are concerned with a party’s freedom of movement, it is the Court’s practice, where practicable, to deal with such matters as expeditiously as possible. The mother arrived in Australia in May 2017 on a tourist visa; the uncertainty of her immigration status is a significant factor in determining her application for expedition. The mother submits that she is currently on a bridging visa and if her application for a visitor tourist visa is denied, she will only be allowed to remain in Australia for 35 days. At the time her submissions in support of expedition were filed, the outcome of her visa application was still pending.  In any event, the mother submits that if such a visa was granted, it will only allow her to remain in Australia for a maximum of 12 months. 

13. Rule 12.10A(1)(d) also 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).  The child the subject of these proceedings is an Australian citizen and there are currently interim orders in place that restrain her from being removed from Australia. The uncertainty of her future living arrangements is undesirable, particularly given her very young age, her likely attachment to the mother and the various consequences that necessarily flow from the mother’s uncertain immigration status. The father submits that the mother does not need to apply for other visas as her ETA expires on 20 April 2018.  I do not accept that submission as without expedition of the proceedings, it is unlikely that they will be finalised prior to that date.

14. The mother submits that as a result of her immigration status, she is ineligible for Centrelink benefits, crisis accommodation, private rental accommodation, Medicare subsidies and day care subsidies.  She is currently residing with friends and does not have any familial support in Australia.  Further, the mother submits and the father concedes that he is not providing her with any spousal maintenance or child support. With regard to familial support, the father submits the mother has never been close to her family in Country C.

15. Currently, the mother is drawing upon her capital in Country C and borrowing from her family to support herself and the child. In her affidavit filed 2 October 2017, the mother deposes to having borrowed $76,950 from her mother to cover legal fees and living expenses. While the mother does have capital assets to rely on in Country C, she is not working and is unable to work in Australia or access any government support.

16. The father submits that the money the mother has expended in pursuing litigation has been disproportionate to the dispute. The father also submits the mother has refused mediation that he proposed and used the family’s “emergency fund” to commence litigation against the father, rather than utilise it to collaboratively resolve the matter. Lastly, the father points to the fact that the mother was able to raise a significant amount of money to fund her litigation. Notwithstanding the submissions of the father, I am satisfied that in circumstances where it is conceded by him that he is providing the mother with no financial support and she is unable to receive government benefits or support, she is suffering from financial hardship. This is a relevant consideration pursuant to r 12.10A(4)(c)(i) of the Rules.

17. I am also satisfied that the mother’s financial hardship would be unable to be rectified by an interim order, as the father has submitted that he is unable to provide spousal maintenance at this time and deposes to have liabilities that exceed his assets. The father submits he is currently communicating with the Child Support Agency and will commence making child support payments once that assessment is complete. He is also actively looking for full time employment and once that is obtained, he submits he will be able to pay spousal maintenance. However, the situation as it currently stands is that the mother is receiving no financial support from the father. It is not clear if or when that situation will change.

18. A further basis for the mother’s application is that her current employment in Country C, from which she is currently on maternity leave, will only be held open for her until 20 June 2018.  I am satisfied that this is a relevant consideration pursuant to r 12.10A(4)(e).  The father submits that the mother’s urgency to return to her employment for financial reasons is not in the child’s best interests.  That is a question for determination by the trial judge.

19. The father submits that the mother has changed her mind about living in Australia despite her initial intentions to reside here and that she has been swayed by financial and material reasons to return to her role in Country C.  These may be matters relevant to the determination of the mother’s application to relocate. They are not matters relevant to the determination of the application for priority.

20. Finally, the mother alleges she has suffered family violence at the hands of the father including choking, punching and pulling her hair. She has filed a Notice of Risk and obtained an interim intervention order on 29 August 2017. While the contested hearing for the intervention order will not be heard until 8 February 2018, the mother’s submissions that the father has been violent toward her is a factor that may be considered under r 12.10A(4)(b).  The father submits that the mother has made false allegations of child abuse and child neglect and that she is using the child as a tool to coerce the father. The father also submits the mother has shouted near the child and told the child that “your father wants you to burn to death.” The allegations of family violence are contested and will be heard in the Melbourne Magistrates Court.  The allegations by each of the parties as to family violence perpetrated by the other in my view supports the making of orders for an expedited hearing as it is in the child’s best interests to have the those matters finally determined as soon as possible.

21. In all of the circumstances, I am satisfied that it is undesirable for the mother and the child to remain in a state of uncertainty regarding their future living arrangements, particularly given the uncertainty of the mother’s immigration status and lack of financial support available to her in Australia. Accordingly, I propose to expedite the matter and order that it be allocated to a judicial docket as soon as is practicable.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 October 2017.

Associate: 

Date:  27 October 2017