ZELLNER & SCOPE

[2009] FamCA 996

FAMILY COURT OF AUSTRALIA

ZELLNER & SCOPE [2009] FamCA 996

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Zellner

RESPONDENT: Mr Scope

FILE NUMBER: MLC 5301 of 2009

DATE DELIVERED: 22 OCTOBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: HOGG & REID

SOLICITORS FOR THE RESPONDENT PEARSONS

Orders

1. That the wife’s application for an expedited hearing of all outstanding parenting and financial issues is granted.

2. That all outstanding applications be adjourned for final hearing before me as the fifth case (as at this time) in the list of defended matters for the period of eight days commencing on 5 January 2010 at 10.00am as a three day matter.

3. That the matter be listed for mention before me at 9.00am on 21 December 2009.

4. That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.

5. That by 4 pm on 20 November 2009 the applicant file:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon; and

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

6. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 20 November 2009.

7. That by 4 pm on 11 December 2009 the respondent file:

   (a)an amended response setting out with precision what orders are being sought;

   (b)       the affidavits of evidence in chief of all witnesses relied upon;

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

8. That by 4 pm on 18 December 2009 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

9. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

    (b)refer the case to the trial judge for directions as to its future management; or

    (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

    (d)return the case to the Registrar’s docket on a date to be fixed for further management

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

11. That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 5 January 2010 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of assets and liabilities; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

12. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

13. That pursuant to Section 68L(2) the Family Law Act 1975 the child … born … April 2005 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

14. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

15. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

16. That the parties attend upon family consultant Ms L if she considers it necessary, for the purposes of the preparation of a family report addressing:

    (a)      the nature of the relationship between each of the parents and the child;

    (b)the impact upon the child of not having a consistent personal relationship with her father in the event that the child relocated to Austria;

    (c)the impact upon the child of remaining in Australia with her mother if the Court found that the mother was unable to relocate to Austria;

    (d)the capacity of each parent to focus on and encourage the relationship of the child with the other parent

    (e)each of the matters set out in s 66 of the Family Law Act 1975 (Cth); and

    (f)such other matters of an expert nature that the family consultant concerned may consider as being of assistance to the Court in the determination of the parenting issues generally.

17. That in the event that there is a dispute between the parties as to the valuation of any asset, in default of agreement as to the value of that asset by 6 November 2009, the parties agree upon the appointment of a single expert witness and failing agreement immediately thereafter, the parties comply with the provisions of Part 15.5 of the Family Law Rules 2004 for the completion of any necessary step to enable the appointment of a single expert witness to be made.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

IT IS NOTED that publication of this judgment under the pseudonym Zellner & Scope is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC5301 of 2009

MS ZELLNER

Applicant

And

MR SCOPE

Respondent

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders and financial issues.

3. The proceedings began with an application by the wife filed on 18 June 2009 seeking orders that the child of the marriage born in April 2005 live with the mother and that the mother be permitted to relocate to Austria.  The wife also sought that the father have time with the child on each weekend (or as agreed) during a period of one month in every three months in Melbourne until the child commenced school and then for two weeks three times per year coinciding with school holidays.  The mother also sought ancillary orders associated with the parenting issue and that each party effectively keep their assets and resources. 

4. The respondent filed material on 23 July 2009 seeking equal shared parental responsibility of the child, that the child live with the wife and that he spend time with the child during each alternate weekend from Friday to Sunday and each alternate Thursday overnight into the Friday morning.  He also sought ancillary orders including an injunction precluding the wife from removing the child from both Australia and from outside a radius of 50 kilometres of W.  In respect of property matters, he sought that each party retain the assets that they had save that in respect of the proceeds of the sale of the former matrimonial home, they be divided as to 55 per cent to the wife and 45 per cent to the husband.

5. Orders were made by Registrar Kaur on 28 July 2009 and then subsequently the matter came before Senior Registrar FitzGibbon on 29 September 2009.  The major issue on that appeared to be the wife’s request to travel to Austria for a holiday during 2009-2010 summer holidays.  The parties were able to reach agreement about that.  At the same time that orders were made by the Senior Registrar, the parties also agreed that orders should be made for either party to make an application for a priority fixture. 

6. The priority fixture in this case relates to the issue of international relocation of the child.

7. The applicant for the expedited hearing says there are negative effects upon the wife and ultimately the child if the application to relocate is unsuccessful.  The relationship between the wife and her partner is sound.  The wife’s partner has business interests in Austria.  Decisions need to be made about the child and schooling as she is currently in kindergarten and not sufficiently mature to commence school.

8. The respondent to the application for the expedited hearing complained that he was not provided proper or adequate notice of the application.  If so, that reflects poorly on the professionals involved.  In this case, however, the husband has not been disadvantaged because I have taken into account the comprehensive response in the letter dated 22 October which was emailed and faxed to my Associate.  Apart from disputing some of the assertions of the wife, the husband opposed the grant of priority stating there was no necessity.  No doubt when parties put their credit in issue particularly in an urgent application where the evidence cannot be tested, they do so in the knowledge of the impact on the outcome and the provisions of s 117AB

9. There is no Independent Children’s Lawyer in this matter but having regard to the fact that I propose to grant the application, I propose to also order that there be an Independent Children’s Lawyer appointed.

10. This case is not simply about the impact upon the mother of the child if she is not able to move to live in Austria.  It is also about the nature of the attachment between the child and both parents.  An issues assessment report provided to the Court and to the parties by Ms L expresses preliminary concern about the impact upon the relationship between the father and the child if the child relocates.  There is no trust between the parties and significant allegations each by the other relating to violence, alcohol abuse and questions have been raised about drug usage.

11. There are a number of factual disputes in this case that may impact upon parenting capacity as well as parenting responsibility.  Those issues may influence how the Court decides whether it is going to make any difference to the child and her relationships with each of her parents whether she lives in Australia or Austria.  As such, a critical analysis will need to be undertaken of the family violence issues.

12. It is the policy of the Court to try and hear every matter expeditiously.  There must be something special about any particular case to warrant giving it priority over others.  Something special in reality means something out of the ordinary or unusual.

13. The decision to grant or deny an expeditious hearing is a discretionary one. The only guidance as to the exercise of that discretion is set out in Rule 12.10A of the Family Law Rules 2004. I am conscious that what I am being asked to do is give this case priority over the many other cases that await a final hearing. All parties and the Court see every case as important.

14. I turn then to the matters in the Rules.

15. I am satisfied that the applicant has acted reasonably and without delay in the conduct of the case and in making this application.

16. If this application were granted, it must follow that some other case will be delayed. The Rules provide that relevant circumstances that would justify creating the detriment for other litigants include:

    (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.

17. In this case, on the papers, I would accept that (a), (b), and (g) could apply to the applicant.  However, many litigants labour under the same difficulties.

18. In this case, I am satisfied that this is a case that warrants expedition.  It is particularly important in this case because of the fact that the issue of the nature of the attachment between the child and both of her parents needs to be addressed and also the question of where the child is to commence schooling. 

19. I intend to direct that the matter be listed for an expedited final hearing as soon as possible.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  22 October 2009