Bartell and Thompkins

[2009] FamCA 411

FAMILY COURT OF AUSTRALIA

BARTELL & THOMPKINS [2009] FamCA 411

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

Family Law Act 1975 (Cth)

APPLICANT: Mr Bartell

RESPONDENT: Ms Thompkins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6090 of 2008

DATE DELIVERED: 21 May 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:

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

Orders

1. That paragraph 6 of the orders made by Senior Registrar Fitzgibbon on 31 March 2009 be extended to permit the application in writing of the Independent Children’s Lawyer to be made out of time.

2. Notwithstanding the absence of notice to the husband and the wife, the Independent Children’s Lawyer have leave to proceed forthwith to make the application.

3. That all extant applications be placed before Registrar Field to be listed on a date to be fixed as soon as possible for procedural orders to be made (if any) and the matter to be placed before a judge for the purposes of a final hearing.

4. That these orders and my reasons for judgment this day be brought to the attention of the co-ordinating registrar.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6090  of 2008

MR BARTELL

Applicant

And

MS THOMPKINS

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.

3. The proceedings began with an application by the husband filed on 4 September 2008 seeking parenting orders in relation to two children, a daughter A born in August 2000 and a son B born in November 2001.

4. The respondent filed material on 8 October 2008 in which she sought that the children live with her and that she have sole responsibility for them.  She made no reference to any time with the husband.

5. The parties separated on 8 June 2006.  On that day, the wife accused the husband of sexually abusing her two older daughters from a previous relationship.  The relationship between the husband and the wife then came to an end and the parties have not lived together since.  Furthermore, the husband has had no time with the children A and B.

6. As a result of the accusation of the wife, the husband was charged with nine offences of indecent and sexual assault upon the wife’s two older children.  It was said that the alleged offences occurred between December 2003 and May 2006.  The husband was prosecuted and in a trial in the County Court of Victoria in 2007, he was found not guilty of all charged.

7. The husband denies any sexual impropriety.

8. Notwithstanding the acquittal, the mother and the two step-daughters stand by their allegations.

9. On 30 November 2007, an intervention order was made against the father.

10. As a result of orders made by Senior Registrar FitzGibbon on 12 January 2009, Dr N was appointed to prepare a report.  That is a comprehensive report after interviews with all parties and all children. Dr N opines that the dispute involves the weighing and balancing of the children’s rights to have a meaningful relationship with their father against the risks of contact with him. 

11. Dr N opined that the two step-children showed signs and symptoms consistent with child sexual abuse.  It was said that they provided a coherent and credible account of sexual abuse.

12. Dr N said that her assessment of the younger children suggested that they have been affected by the events of the last 2½ years including the experience of upheaval and trauma in a family in conflict.

13. The younger children expressed comments about not wanting to see their father and expressing concerns about him.

14. Dr N considered that the direct risks to B and A were moderate.  She said that the younger children did not have relationship with their father and held negative feelings towards him.

15. There are many things that need to be considered in this particular case.

16. The Independent Children’s Lawyer submitted that it was in the best interests of the children that the matter be finalised as soon as possible. 

17. 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.

18. 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.

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

20. I am satisfied that the applicant has acted reasonably and without delay in the conduct of the case and in making this application.  It is notable in this case that the Independent Children’s Lawyer is the applicant.

21. 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.

22. In this case, on the papers, I would accept that (b), (d), (f) and (g) apply.  

23. In this case, I am satisfied that this case needs a resolution for the sake of the children.  As time goes by, the concerns expressed by Dr N can only be exacerbated.  Accordingly, I propose to grant the application. 

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

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 May 2009