Bollard and Konten

[2009] FamCA 292

FAMILY COURT OF AUSTRALIA

BOLLARD & KONTEN [2009] FamCA 292

FAMILY LAW – PRACTICE AND PROCEDURE – Expedited hearing – application refused – Leave to transfer to Federal Magistrates Court if this Court can be satisfied that the matter can be heard in that jurisdiction at an earlier date

Family Law Act 1975 (Cth)

APPLICANT: Mr Bollard

RESPONDENT: Ms Konten

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 4914 of 2007

DATE DELIVERED: 15 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: In Chambers

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: JULIE TAYLOR

SOLICITOR FOR THE RESPONDENT: VERHOEVEN & CURTAIN PTY LTD

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

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.

4. That the parties have leave to make a further application for transfer to the Federal Magistrates Court of Australia if they can satisfy this Court of the possibility of a federal magistrate hearing the matter more quickly than this Court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 4914  of 2007

MR BOLLARD

Applicant

And

MS KONTEN

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.

   The proceedings began with an application filed by the husband on 7 December 2007 in the Federal Magistrates Court seeking parenting orders in relation to two children M aged 9 and N aged 7.  The orders proposed by the husband were for alternate weekends, overnight on two nights in an alternate week and some holiday time.

3. The respondent filed material on 19 December 2007 seeking that time between the husband and the children be fortnightly under supervision by B Centre.

4. In opposing the husband’s application, the wife made allegations of sexual impropriety.  As a consequence, albeit with the consent of the husband, he has had supervised time with the children between 20 December 2007 and now.

5. A curious feature of the evidence of the parties is that between June 2003 and February 2007, the husband had unsupervised time with the children including a child from the wife’s former relationship.  In October 2007, the wife insisted upon the time being supervised and that seems to have precipitated the husband’s application to the court.

6. Having made interim orders, the Federal Magistrate set the matter down for final hearing in November 2008.

7. On 27 November 2008, the Federal Magistrate transferred the proceedings to this Court with the consent of the parties.  At that time, a notation to the order was made that the parties requested the case be considered for the Magellan List.  An assessment has been made by the Magellan Registrar and the case has been rejected. 

8. On 17 March 2009, Senior Registrar FitzGibbon made an order that by 7 April 2008, the husband make any application he so desired seeking an expedited hearing.  The Senior Registrar also made provision for material in reply seven days later.

9. Both husband and wife filed written submissions.  The Independent Children’s Lawyer supported an expedited hearing.

10. The applicant for the expedited hearing says that the allegations of sexual impropriety relate to the husband’s daughter from his first marriage and the wife’s older child who is not a child of this marriage.  It is pointed out that there are no allegations of impropriety in relation to M and N. 

11. The application points out that the children are seeing their father for 1½ hours per fortnight in a restricted environment and that that is not in the best interests of the children’s emotional welfare particularly if on a testing of the allegations, there is no substance.

12. The husband drew my attention to the attendance upon a psychologist named Mr R.  This attendance was for testing about “dangerous sexual offenders” and the risk of “sexual violence”.  The report of Mr R apparently says the husband is of “low risk of sexual offending” but then recommended a continuation of supervision whilst therapy continued for “say” six months.  The wife, in her submission, agrees that was Mr R’s view but added that Mr R said it was “not satisfactory” to allow the husband “full unfettered contact”.

13. Significantly therefore, I have to balance the boredom of the children with the expert’s view that supervision is necessary.  The choice is obvious at this stage.

14. Rule 12.10A provides for an application to expedite the first day before a judge.  I am satisfied in this case that the husband has acted reasonably and without delay on the basis that he anticipated the hearing of the case on a final basis in the Federal Magistrates Court in November 2008.  For whatever reason, it is most unfortunate that the case was not heard on that day or at least provision made for a further hearing thereafter in that court particularly now as the case has not been assessed as one appropriate for Magellan matters.  To again place the case in a queue in this Court substantially prejudices the applicant having regard to the fact that he had waited his turn (as no doubt had the wife) in the Federal Magistrates Court.

15. In relation to the existing orders, the husband is seeing the children and there are still unresolved risk issues being addressed in therapy.

16. 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 applicant must 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.

17. In this case, having regard to the reasons above, there are no special reasons.

18. I will also give the parties liberty to apply to transfer the matter back to the Federal Magistrates Court on the basis that the major reason why the case was transferred was because of its Magellan potential.  That having been rejected, if there is a possibility that the case can be heard more expeditiously in the Federal Magistrates Court, the parties should have that opportunity notwithstanding it is the policy of both courts now not to transfer matters back and forth.  This case however was transferred prior to the policy coming into operation and that may not have occurred had the appropriate inquiries been made as to the eligibility for the Magellan program. 

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  22 April 2009