Aboud and Aboud

[2017] FamCA 142

FAMILY COURT OF AUSTRALIA

ABOUD & ABOUD [2017] FamCA 142

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Aboud

RESPONDENT: Mr Aboud

FILE NUMBER: MLC 6072 of 2016

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marsh & Maher

SOLICITOR FOR THE RESPONDENT: Conlan Cummings Lawyers

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 Aboud & Aboud 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

FILE NUMBER:

Ms Aboud

Applicant

And

Mr Aboud

Respondent

REASONS FOR JUDGMENT

1. On 21 December 2016 the Independent Children’s Lawyer forwarded joint submissions to the court on behalf of all  parties in support of the application the matter be given an expedited trial management hearing. There were a number of interim applications subsequently filed by the parties that delayed the determination of this application however I note they have now been dealt with. I also note that on 23 February 2017 orders were made by Senior Registrar FitzGibbon joining the paternal grandparents as the second and third respondents and when the matter came before me in the Judicial Duty List on 8 March 2017 counsel for the paternal grandparents advised the Court that they also support the application for expedition.

2. The proceedings were commenced by the wife filing her Initiating Application on 30 June 2016 seeking both parenting and property orders. The application was heard urgently that day without notice to the husband and Senior Registrar FitzGibbon made orders placing the children B aged nine and C aged four on the Watch List, appointing an Independent Children’s Lawyer and adjourning the matter to 21 July 2016 with orders for service upon the husband and for the filing of his documents. The husband filed his Response to Initiating Application and supporting documents on 18 July 2016. The parties in their respective parenting applications both seek final orders that the children live with them and have otherwise not particularised their final orders sought.

3. On 21 July 2016 orders were made by consent by Senior Registrar FitzGibbon that the children live with the mother, spend time with the father as agreed between the parties and the Independent Children’s Lawyer and that pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) a Children’s and Parents Issues Assessment be prepared. Ms D released her report pursuant to this order on 5 August 2016 and made recommendations that the parties retain equal shared parental responsibility for the children, that they remain living with the mother, have regular telephone contact with the father and spend day time with him supervised by a professional supervisor or, or the paternal grandparents, if the court were satisfied that they did not present any risk to the children. On 11 August 2016 the matter was adjourned to the Judicial Duty List on 22 August 2016 with orders made for the filing of affidavits and case outlines.

4. The matter was heard by Thornton J who adjourned the matter for interim hearing in the Registrar’s Duty List, listed the matter for a conciliation conference and made parenting orders by consent as follows:

   ·the children live with the mother;

   ·the children spend the following time with the father:

   otwo hours each week supervised by Ms E;

   oby Skype, FaceTime or other video-capable messaging each Wednesday at 6:00pm, and:

   oas otherwise agreed between the parties in writing;

   ·the paternal grandparents be permitted to attend any time the father spends with the children;

   ·the parties attend upon Dr F for the purposes of psychiatric assessments;

   ·a report be prepared by Mr G prepare a family report; and

   ·the parties be restrained from:

   oconsuming  alcohol to excess, or non-prescription drugs while the children are in their care and undertake random supervised urine screens;

   ousing physical discipline with respect to the children;

   odenigrating the other parent.

5. Her Honour also made interim property orders by consent.  

6. The Independent Children’s Lawyer has since filed Dr F’s psychiatric assessments of the parties and Mr G’s report. Dr F has diagnosed the father as having a major depressive illness with severe mood-congruent psychotic features in partial remission.

7. On 15 December 2016 the matter came before Justice Johns sitting in the Registrar’s Duty list and the orders were made with respect to the parties making an application for an expedited hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

8. Pursuant to r 12.10A(1) 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.

9. I am satisfied the parties have acted reasonably and without delay and, noting the application is made by consent, there will be no prejudice to any party if the application for expedition is acceded to.

10. However the Court must be satisfied that there are circumstances that warrant this case being given priority to the detriment of other cases. The parties submit that the parenting applications hinge on the determination of risk, which cannot be further progressed without a trial. The father is currently only spending limited supervised time with the children and pending the determination of risk including the risk posed by the father’s mental health, Mr G has recommended the father see the children “regularly, each alternate weekend and probably a night overnight each week.” albeit with recommendations about supervision. It is submitted that the children miss the father and want to spend more time with him.

11. The parties also submit that the father has been paying for private weekly supervision at significant expense which he will have to continue doing until the matter is determined on a final basis if the children are to see him.

12. In circumstances where expert evidence has been obtained and is crucial to the determination of the case an expedited hearing would likely avoid the necessity and cost of the parties having to obtain further or updated reports.  

13. I am also satisfied that it would be in the children’s best interests for this litigation to be concluded and for that to have some certainty with respect to the time they spend with the father.  

14. In all of the circumstances I propose to make orders listing this matter for a trial management hearing at short notice.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 March 2017.

Associate: 

Date:  10 March 2017