Arrabati and Jocking

[2009] FamCA 288

FAMILY COURT OF AUSTRALIA

ARRABATI & JOCKING [2009] FamCA 288

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

Family Law Act 1975 (Cth)

APPLICANT: Mr Arrabati

RESPONDENT: Ms Jocking

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3052 of 2008

DATE DELIVERED: 21 April 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: Berry Family Law

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC3052 OF 2008

MR ARRABATI

Applicant

And

MS JOCKING

Respondent

INDEPENDENT CHILDREN’S LAWYER

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 issues.

3. On 7 April 2008, the father filed an application seeking that all four children aged between three years and twelve years live with him.  On 15 April 2009, the mother filed a response document requesting orders that the children live with her and that the father’s contact be “reserved”.  On that same day, she filed a Notice of Child Abuse.

4. The matter came on for hearing before Federal Magistrate Walters on either 14 April or 15 April.  The bench sheet shows 14 April but the formal order signed by his Honour shows 15 April. 

5. The April orders of Walters FM adjourned the interim hearing relating to the parenting orders to 13 June 2008 and otherwise fixed a final hearing for 9 February 2009. At that same time, his Honour made an order under s 91B of the Family Law Act 1975 (Cth) (“the Act”) that the Department of Human Services invited to intervene.  His Honour’s orders provided for the children to live with their mother until further order and that the father’s contact with them be for four hours on Sundays with two of his relatives being in substantial attendance.

6. On 11 June 2009, the Department provided the court with a letter indicating that they accepted that there were some concerns in relation to the children.  That is significant because two days later, on 13 June 2008, the parties consented to all time between the father and the children being suspended until further order.  The father’s consent however was noted as being based upon the Department of Human Services protocol.  The father denied there was any need to suspend the orders at all.

7. On 14 August 2009, the matter came on for mention before Federal Magistrate Walters who adjourned the matter to an interim hearing on 13 November.  On 13 November, there is no indication of what if any orders were made, and the matter was adjourned to the trial date which at that stage was still 9 February 2009. 

8. I pause at this stage to point out that the parties had been before the Court on four occasions up until 13 November.  At all times, the final hearing had been fixed for 9 February 2009 and there could have been no misunderstanding about the nature of the dispute having regard to the fact that the Notice of Risk of Child Abuse had been filed.

9. When the matter came on for hearing on 9 February 2009, Federal Magistrate Walters transferred the proceedings to this Court noting as request for the Court if possible to give the matter priority.  There is little information as to the basis of the transfer however there is on the court file, a handwritten “trial plan” which seems to suggest that the case would have taken between five and six days to hear. 

10. On 17 February 2009, I made some orders for parties to provide details as to why the case should be given a priority fixture.  Only the husband responded to that order.  Through his lawyers, he filed a summary of argument on 23 February 2009.  Neither the wife nor the Independent Children’s Lawyer has filed anything to assist.

11. In respect of the summary of argument, the husband said that there had been a significant delay in the Federal Magistrates Court and that because of the proposed length of the matter, it could not be completed until October 2009 at the earliest.  This Court could not provide a hearing much earlier even if priority was granted.  Of some concern is the fact that the extended hearing time was said to be partially due to the fact that the mother made further allegations of disclosures by the children on 6 February 2009.  Whilst that may have extended the length of the hearing, it would still have seemed to have been a case that would have taken some considerable time.

12. The father goes on to argue that his time with the children has been suspended since “early 2008” which was in fact from 13 June 2008.  However it must be said that he consented to those orders albeit under protest and because of the Department of Human Services protocols.  The father’s final observation is that an expedited trial would avert serious trauma for the children.  I am not entirely sure how an expedited trial would do that.  Quite the contrary, any trial must have deleterious affects upon children.

13. Every case involving children is important and s 60K of the Act makes it abundantly clear that the Court must put its resources into those cases involving the protection of children.

14. It has not been suggested to me that inquiries were made in April 2008 about the Court’s Magellan program nor is it now suggested that it could be used for this case having regard to the time that has elapsed.  To some extent therefore the parties have determined the course of this litigation themselves.  In a time of straitened judicial resources, the Court has to follow its charter and be conscious of its legislative responsibilities in respect to all children. 

15. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases.  The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given.  “Special reasons” means what it says namely something unusual or out of the ordinary.

16. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

17. It is also possible that the parties can confine their hearing to discrete issues and in the circumstances, if the Federal Magistrates Court has the capacity to hear a truncated hearing, I would give the parties liberty to apply to seek a transfer back.  Otherwise, the matter can remain awaiting a final hearing as soon as practicable.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 April 2009