BURTON & TENANT

[2011] FamCA 780

FAMILY COURT OF AUSTRALIA

BURTON & TENANT [2011] FamCA 780

FAMILY LAW – applications, responses and representation

Family Law Act 1975 (Cth)

APPLICANT: Ms Burton

RESPONDENT: Ms Tenant

FILE NUMBER: MLC 6710 of 2007

DATE DELIVERED: 7 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Julie Taylor

Orders

1. That all extant applications for final orders are listed for a FIRST DAY OF HEARING before the Honourable Justice Cronin at 10.00am on 3 November 2011.

2. That the parties and if represented, their legal practitioners, attend the first day of hearing.

3. That notwithstanding applications/responses have already been filed:

   a)by 4 pm on 21 October 2011, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   b)by 4 pm on 31 October 2011, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

4. That pursuant to Section 68L(2) the Family Law Act 1975 the child B born … 2003 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

5. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

6. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon

7. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposal and on the return date, present to the Court a copy of those orders.

8. That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

AND THE COURT NOTES:
If a party does not comply with paragraph 3 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6710  of 2007

Ms Burton

Applicant

And

Ms Tenant

Respondent

REASONS FOR JUDGMENT

1. By order made on 13 September 2011, I directed that either of the parties seeking expedition to file a summary of argument by 23 September 2011 and for any response thereto to be filed within seven days thereafter.

2. On 23 September, Ms Burton (“the applicant”) filed a summary of argument.

3. As at 6 October 2011, no response was received from Ms Tenant (“the respondent”).

4. In this case, I propose to order an expedited first day and to fix 10.00am on 3 November 2011.

5. This is an application concerning B who is about to turn eight years of age.  The child was born during the relationship between the applicant and the respondent when they were de facto partners.  The applicant and the respondent are therefore the parents of the child.

6. The relationship between the applicant and the respondent lasted a long time but broke down in 2007 whereupon consent orders were made that the child was to live in a shared arrangement.  Those orders were varied in 2009.

7. The applicant now seeks to move away from the Melbourne residential area to live in the country.  Such a move would necessitate a change of school for the child.  Importantly, the parties have put their respective positions before the Court on the basis that the child should live with the respondent effectively where she currently resides on a part-time basis or move to the country with her biological mother.  With those perspectives so clear, the Court is being asked to analyse the proposals and determine which best suits the needs of the future of the child.

8. The parties are currently engaged in a process with a forensic psychologist who is going to apparently provide a report to the Court. 

9. Rule 12.10A of the Family Law Rules 2004 sets out the guidelines for expediting a first day before a judge. In this case there can be no suggestion of any delay or prejudice and the critical question seems to be whether the continuation of the current uncertainty and the need to settle the child into a school if she is to move is a relevant circumstances such as would entitle the Court to give this case priority to the possible detriment of other cases.

10. The state of flux for the child has been continuing for some time now placing her under pressure and in those circumstances, I propose to expedite the hearing.

11. However, because of the significant change one way or the other in the life of the child and the apparent intractable conflict between her parents, I propose to make an order for the appointment of an Independent Children’s Lawyer.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 October 2011.

Associate: 

Date:  7 October 2011