Zema and Toleman

[2016] FamCA 729

FAMILY COURT OF AUSTRALIA

ZEMA & TOLEMAN [2016] FamCA 729

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing refused

Family Law Act 1975 (Cth)
Births Deaths and Marriages Act 1996 (Vic)

APPLICANT: Mr Zema

RESPONDENT: Ms Toleman

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 7092 of 2015

DATE DELIVERED: 29 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Berry Family Law

SOLICITOR FOR THE RESPONDENT: Ryan Carlisle Thomas

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. The mother’s application for an expedited hearing be dismissed.

2. All extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Macmillan at 10.00 am on 12 September 2016 for the purposes of listing the matter for final hearing.

3. The parties and if represented, their legal practitioners, attend the first day of hearing.

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 5 September 2016. Such summary should be emailed to: ...

5. To the extent that the Independent Children’s Lawyer has formed a view with respect to the orders sought by the parties, his or her view and any orders proposed form part of the summary to be filed pursuant to paragraph 4 of these orders.

6. At the first day of 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 Zema & Toleman 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 7092  of 2015

Mr Zema

Applicant

And

Ms Toleman

Respondent

REASONS FOR JUDGMENT

1. In this case the mother, in accordance with the orders made by consent by Senior Registrar FitzGibbon on 28 July 2016, filed a summary of argument on 8 August 2016 in support of her application for an expedited first day of hearing. That application is supported by the Independent Children’s Lawyer. Although at the hearing before the Senior Registrar the father indicated that he wanted the final hearing of the matter to be expedited he has not filed a summary of argument in support of that application or indicated either his support or opposition to the mother’s application.   

2. A significant issue in this case is the dispute between the father and mother as to the name of their child. Although the child was assigned a name pursuant s 22(b) of the Births Deaths and Marriages Act 1996 (Vic). The name assigned to the child is B however it is the mother’s case that her name is C and that her name should be registered as such.

3. The parties also seek orders for property settlement and although that aspect of the proceedings may not have proceeded in a timely manner a conciliation conference has been scheduled for 7 September 2016.

4. 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.

5. In circumstances where the parties are using different names for their child I am satisfied there may be detrimental consequences for the child if the matter is not heard and determined on a final basis.  However this matter will be listed for a first day of hearing on 12 September 2016 and in those circumstances it is not necessary to afford this matter any priority over any other matters and propose to dismiss the application for priority.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 August 2016.

Associate: 

Date:  29 August 2016