Yong and Liu

[2016] FamCA 966

FAMILY COURT OF AUSTRALIA

YONG & LIU [2016] FamCA 966

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

Wellsound & Wellsound [2010] FamCA 468

APPLICANT: Ms Yong

RESPONDENT: Mr Liu

FILE NUMBER: DGC 262 of 2016

DATE DELIVERED: 15 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: JH Legal Pty Ltd

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

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 Yong & Liu 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: DGC 262  of 2016

Ms Yong

Applicant

And

Mr Liu

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The mother, who is the Applicant in this case seeks the expedition of the first day of hearing of her application before a judge. That application is opposed by the father.

2. The proceedings were commenced by the mother in the Federal Circuit Court at Dandenong on 2 February 2016. The Initiating Application filed by the mother that day sought orders for property settlement but did not seek any parenting orders. The father filed a Response to Initiating Application to the mother’s application on 24 February seeking inter alia orders that the children live with the mother and spend time with the father and that the mother be restrained from removing or relocating with the children of the relationship, B who is 12 years of age and C who is now four years of age from the Commonwealth of Australia.

3. On 20 June 2016 the mother filed an Amended Initiating Application which included an application for parenting orders but did not at that time seek orders permitting her to relocate with the children to the People’s Republic of China.

4. On 25 August 2016 Judge Phipps transferred the matter to this Court noting that the mother intended to amend her application to seek orders permitting her to relocate with the children.

5. The matter was first listed for hearing in this Court before Registrar Mestrovic who made orders requiring the mother to file an amended application and appointed an Independent Children’s Lawyer and directions with respect to the determination of the mother’s application for expedition of the first day of hearing. The mother has now filed an Amended Initiating Application in which she seeks an order permitting her to relocate to the People’s Republic of China with the children. 

Legal Principles

1. Pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”) a party may apply to expedite the first day before the 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. It is the mother’s case that she has always been the children’s primary carer but that in circumstances where she has no family support, including only limited support from the father who lives and works in Sydney, she is feeling both depressed and anxious. She has sought and has recently obtained a referral to a psychologist located in closer proximity to her current home. The mother who says she struggles with English and has no real work experience in Australia which contributes to her feelings of depression and anxiety. She is financially dependent upon Social Security benefits and the child support she receives from the father.

2. It is the mother’s case that she speaks fluent Cantonese and Mandarin and in those circumstances would have opportunities for employment in China as well as the assistance of family to enable her to return to the work force.

3. The mother seeks the expedition of the matter because of the uncertainty of her position and its likely effect upon both herself and the children.

4. Although as submitted by the father the mother did not immediately apply for orders permitting her to relocate to China that is not the only matter I must consider.

5. There are in my view other factors, albeit the evidence is yet to be tested, that weigh in favour of the matter being given priority to the detriment of other cases. These include the uncertainty of the mother’s position both in relation to her wellbeing, the lack of support she has in Melbourne and her financial position all of which may impact upon the children. I also note that a family report has been prepared and was released by 15 July 2016.

6. I do not accept the father’s submission that he would be prejudiced by the expedition of the first day of hearing as he is applying for and may obtain employment in Melbourne in the short term which would be a relevant matter for the Court to consider. This matter if expedited is likely to be listed for a first day of hearing either late 2016 or early 2017 and listed for final hearing some three to four months later. If the father obtains employment in that period he will be able to adduce evidence with respect to that employment and his proposals for the children’s care based upon his return to Melbourne. Even if he has not obtained the employment he seeks the Court can consider his proposals based upon either his current employment in Sydney or his proposal to return to Melbourne.

7. Although the father also submitted that he would be prejudiced by the matter being expedited because he would be denied the opportunity to maintain and consolidate his relationship with the children if the mother were permitted to relocate with them. This ignores the possibility that the mother might not be permitted to relocate. That is in fact the very question the Court will have to determine and it is the outcome of the case itself rather than whether it is expedited which is the issue.

8. I agree with Cronin J’s observations in Wellsound & Wellsound [2010] FamCA 468 at paragraph 19 that “…having a child in a holding pattern with uncertainty for her parents is not in her best interests.”

9. In all of the circumstances I propose to order that the matter be allocated to a judicial docket for a first day of hearing for the purposes of listing the matter for final hearing.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 15 November 2016.

Associate:

Date:  15 November 2016