Best and Avery

[2013] FamCA 81

FAMILY COURT OF AUSTRALIA

BEST & AVERY [2013] FamCA 81

FAMILY LAW – PRACTICE AND PROCEDURE - Priority hearing application refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Best

RESPONDENT: Ms Avery

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4679 of 2012

DATE DELIVERED: 14 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

SOLICITOR FOR THE RESPONDENT: Cathleen Corridon & Associates

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

Orders

1. That the application for a priority hearing is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Avery has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4679  of 2012

Ms Best

Applicant

And

Ms Avery

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parties were in an eleven year same sex relationship which came to an end in March 2012. 

2. There are two children who are the subject of these proceedings, B who is aged six and C who is 18 months old.  B came into the care of the parties as a result of a foster care placement in 2006 and as a result of a 2010 permanent care order at the Children’s Court of Victoria.  B is not the biological child of the parties.  C however is.  He was conceived by anonymous donor.  The respondent is the biological mother.

3. The applicant seeks an expedited hearing.  It is not opposed by the Independent Children’s Lawyer but it is opposed by the respondent.

4. The application began in May 2012 with the applicant seeking equal shared parental responsibility and time with the children.  That position has now altered as a result of things that have been said to have occurred since the application was filed.  She now seeks sole parental responsibility and that the children reside with her.  It is not clear from her material what time she would allow the respondent to spend with the children. 

5. The respondent biological mother filed a response in June 2012 seeking sole parental responsibility and supervised time between the children and the applicant.  That too has altered to a situation in which she seeks that either the time be limited or that there be no time at all. 

6. In March 2012, the relationship between the parties had deteriorated to such an extent that an intervention order was made against the applicant on the application of the respondent. 

7. Despite the pleadings of the parties, they were able to arrange a compromise which is in stark contrast with the positions each had initially adopted and later amended.  On 17 December 2012, consent orders were made for the applicant to have time with the children overnight and unsupervised. 

8. The parties have had an involvement with psychiatrist Dr E and psychologist Mr P.  It is asserted that they will be witnesses for one or both of the parties.

9. The submission in relation to priority seeks urgency because of the applicant’s assertion that the children are exposed to the respondent’s delusional beliefs in addition to which, as a result of B’s health problems, the respondent can manage him.  The respondent denies all of those assertions. 

10. The respondent makes two points.  First, the now-known evidence of two experts may be flawed because they did not have access to relevant material produced under subpoena about physical violence to B.  Secondly, even if there was some concern about her care, the child C is now spending significant time with the applicant so she can monitor his progress and if necessary, seek to alter the interim orders.

11. The Independent Children’s Lawyer who consented to the orders on 17 December 2012 is not opposed to a priority hearing but has indicated as a preliminary view, a position similar to that of the applicant for the expedited hearing.

12. An expedited hearing of a first day before a judge is the focus of Rule 12.10A of the Family Law Rules 2004. Those rules set out the matters for consideration by the Court. I have considered all of those matters and I find that there can be no criticism of the parties in terms of their preparation. However, Rule 12.10A(2)(d) says that the Court may take into account whether there is a relevant circumstance giving justification for the case being given priority to the possible detriment of other cases. Rule 12.10A(4) sets out what might fit within the definition of relevant circumstances. None of the matters in that sub-rule is particularly relevant save two important considerations. The first is whether the case involves allegations of child sexual, or other abuse. In this case, an allegation has been made and an appropriate notice of risk has been filed. Despite that, there has been no intervention by the Department of Human Services. More importantly, the factual circumstances giving rise to the allegations are denied. In addition to that, the parties were able to reach a compromise position such that the urgency seems to me to have abated.

13. A second consideration is 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.  Again, the parties were able to reach a compromise in December 2012 and they have the assistance of a number of experts in this case.  The consent in December 2012 obviated the necessity for the Court to intervene and in those circumstances, it is my view that it is not appropriate to give this case priority over other cases which have urgency by virtue of the intervention of the Court.  I take into account the Court’s limited resources and the fact that the parties will have the opportunity to have their case heard but not ahead of others and certainly at some stage or other in 2013.  At any stage, the parties are at liberty to make a further application to the Court for an interim order if the orders of December 2012 are inappropriate.

14. Having regard to the matters set out above, I decline to give the matter priority.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2013.

Associate: 

Date:  14 January 2013