Cassidy and Needham

[2018] FamCA 494

FAMILY COURT OF AUSTRALIA

CASSIDY & NEEDHAM [2018] FamCA 494

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedition – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Mr Cassidy

RESPONDENT: Ms Needham

FILE NUMBER: MLC 9817 of 2015

DATE DELIVERED: 2 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McDonnell Law

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

Orders

1. That all extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

2. Pursuant to s 68L(2), the interests of the children X born … 2013 and Y born … 2015 be independently represented by a lawyer and it is requested that Victoria Legal Aid make arrangements as soon as practicable to secure that independent representation of the child's interests AND IT IS REQUESTED that if practicable, the Independent Children’s Lawyer who was previously involved in this matter, Annette Murray of Victoria Legal Aid, be appointed as the Independent Children’s Lawyer.

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

4. Upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9817 of 2015

Mr Cassidy

Applicant

And

Ms Needham

Respondent

REASONS FOR JUDGMENT

1. The father who is the applicant in the substantive proceedings makes application seeking the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

2. On 30 May 2018 Registrar Sudholz made an order that all extant applications of the parties be adjourned to a date to be fixed before me to determine whether to expedite the final hearing.

3. Registrar Sudholz also made the following orders:

   2.That by 4:00pm on 13 June 2018, the party seeking the expedited hearing file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.

   3.That within 7 days of receipt of the applicant’s summary of argument, the responding party file and serve a document indicating his or her support of or objection to the application for expedition.

   4. That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at …

   5.That unless Her Honour directs otherwise, determination of the issue of priority be heard and finalised in chambers

4. The notation to that order also provided:

   A. The parties seek the appointment of an Independent Children’s Lawyer, but the Registrar will leave this to the determination of Justice Johns.

5. On 13 June 2018 the father emailed his written submissions to my associate seeking that the matter be expedited. Due to an error contained in those submissions, amended submissions were filed on 14 June 2018 by the father.  The mother has raised no objection to the filing of the amended submissions on behalf of the father.  Accordingly, those submissions have been read.

6. The mother opposes the father’s application for expedition.  She relies upon written submissions filed 20 June 2018.

7. These are my reasons for judgment with respect to the father’s application for expedition.

Background

1. The father is aged 34 and the mother is aged 41. The parties commenced cohabitation in November 2010 and separated in 2015. The mother lives in Victoria and the father lives in B Town, New South Wales.

2. There are two children of the relationship, X aged almost 5 years and Y aged 3.

3. This matter has a long history. Proceedings were commenced by the mother in the Federal Circuit Court in October 2015.  As part of those proceedings the mother sought to relocate with the children from New South Wales (where the parties’ lived) to Victoria.  Those proceedings were finalised following a three day contested hearing by final orders made by Judge Brewtser on 13 July 2016.  Those orders provided that the children live with the mother in Victoria and spend time with the father in New South Wales.

4. Proceedings were then commenced in the Federal Circuit Court again by the mother in January 2017.   The mother brought that application as a result of allegations that the children had been sexually abused by the father and the paternal grandfather.  Those allegations were denied by the father and paternal grandfather.  Judge McNab transferred the proceeding to this Court in January 2017.

5. On 18 September 2017, being the first day of hearing, I made final parenting orders by consent (“Final Orders”).  Those orders provide that the parties have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father. The orders for the children to spend time with the father provided for a regime of gradually increasing periods of time, with such time to initially be spent in Victoria, where the mother resides and then at the father’s home in B Town, New South Wales.

6. On 26 March 2018 the father filed an Initiating Application in this Court seeking orders for sole parental responsibility for the children, that the children live with him and that the children spend time with the mother.  That application was filed as a result of the father being informed that the mother had made further notification to the Department of Health and Human Services (“the Department”) that X had made disclosures of sexual abuse at the hands of the father.  As a result of that notification, the father alleges that the children are at risk of psychological and emotional abuse by the mother.

7. The mother filed a Response to Initiating Application on 2 April 2018 seeking, amongst other orders, that the father return the children to her care within 24 hours and in the event that the father did not return the children there be a Recovery Order.

8. On 3 April 2018 Hannam J made the following orders:

   1. The father shall cause the children to be presented to Child Dispute Services by 9am 4 April 2018. After the children are delivered to Child Dispute Services the father is to thereafter immediately leave the precincts of the court and the mother is to attend Child Dispute Services at 9.15am to collect the children.

   2. In the event the children have are not delivered to Child Dispute Services by 9am on 4 April 2018 the matter will be listed before the court at 9.30am on 4 April 2018.

   3. In the event the children are delivered to the court by 9am on 4 April 2018 the matter is transferred to the Melbourne Registry of the Family Court of Australia on a date to be advised.

9. The mother has now filed an Amended Response to Initiating Application on 6 June 2018 seeking that the father’s application be dismissed.

Legal Principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge.

2. In determining an application to expedite the first day, r 12.10A of the Rules provides that:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (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.

Discussion

1. The proceedings were commenced by the father on 26 March 2018.  In accordance with the orders made 30 May 2018 the father filed his submissions in support of his application for expedition by 13 June 2018. Accordingly, I am satisfied that the father has acted reasonably and without delay in the conduct of the case and the application.

2. The mother has made no submission as to any prejudice that would be suffered by her were the proceedings expedited.  Therefore, I am satisfied that the expedition of the proceedings will not cause prejudice to the parties.

3. Rule 12.10A(2)(d) of the Rules also requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

4. Both parties’ submissions are peppered with allegations in relation to the other parties’ behaviour and what has occurred since the making of the Final Orders. The father’s submissions also refer to allegations and issues prior to the making of the Final Orders. It is necessary to refer to some of those allegations to understand why it is that the father submits that this matter should be afforded priority. It is noted that these are allegations which have not yet been tested.

5. What appears to be agreed is that the mother did not facilitate the children’s time with the father on 15 February 2018.

6. The mother submits that in January 2018 after the children returned from having spent four nights with the father, X made “various disclosures” to her. She deposed that X reported that she had been tickled on the vagina by the father. The mother submits that she contacted the Department on 11 January 2018 and reported the disclosures. She submits that X was interviewed by SOCIT at which the Department attended and that the Department attended the mother’s home on two occasions and spent time “chatting and playing with X”.

7. The parties agree that the Department contacted the father on 14 February 2018. Both parties also agree that the Department requested that the father consent to his time with the children not proceeding whilst the investigation was conducted. The father did not consent to his time being suspended. The mother submits that the Department explained to her that if she had serious concerns that she should act in the best interests of the children’s safety. The mother submits that she did not make the children available to the father on 15 February 2018 as she considered it was in their best interests to remain in her care pending the outcome of the Department’s investigation.

8. Both parties agree that the father was interviewed by the Department on 28 February 2018 and the Department concluded their investigation on 20 March 2018, which resulted in their recommendation that the father’s time with the children occur in accordance with the Final Orders.

9. The mother submits that since being notified by the Department of the outcome of that investigation, the mother has complied with the Final Orders and facilitated the children’s time with the father.

10. The father submits that documents produced under subpoenae by the Department and the Police “raise matters of grave concerns”. The father submits that those documents reveal that the mother made allegations to the Department and Police in July 2017 that X had disclosed that the father provides her to two men who give her something to drink that puts her to sleep and that the father comes and collects her later.  The father submits that “[t]he allegation was that the father was prostituting the child to pedophiles [sic]”. The father also submits that the mother provided to the Police three recordings of her own interrogations of the child.  The father submits that the mother did not disclose those matters (which occurred prior to the making of the final orders) to the father or the Independent Children’s Lawyer in the previous proceedings in 2017.

11. The father submits that this matter should be set down for an expedited hearing for determination as to whether the children are at risk in the mother’s care. In summary, the father submits the children are at risk for the following reasons:

    ·    That the mother has exposed X to repeated interviews by herself and other agencies;

    ·    That the mother has caused and will cause further disruptions to children’s time with the father which will cause them emotional and psychological harm due to being “alienated” from the father;

    ·    That X is at risk of being coached by the mother to make false reports against the father causing her psychological harm;

    ·    That X may have been sexually abused by someone else including the mother’s partner;

    ·    The children are at risk of neglect in the mother’s care because she has not attended properly to dental hygiene.

12. The matters the court may consider in determining applications for expedition include whether the interim orders are causing the children hardship (r 12.10A(4)(d)), whether the case involves allegations of child abuse (r 12.10A(4)(f)) and whether an expedited trial would avoid serious emotional or psychological trauma to the children (r 12.10A(4)(g)). The issues raised by the father, whilst untested, are deeply concerning.

13. The mother opposes the expedition of the final hearing for the following reasons:

    ·    She asserts the children are not at risk in her care;

    ·    That she has at all times acted appropriately and followed the Department’s protocol;

    ·    That she is facilitating the children’s time with the father in accordance with the Final Orders;

    ·    That since the Department’s investigation has concluded, the children’s normal routines have continued uninterrupted;

    ·    That there is no proper basis for the father’s application to be given priority.

14. The mother also submits that the father’s application should be dismissed as there has been no material change of circumstance since the making of the Final Orders. Ultimately that issue is one for determination by the trial judge upon consideration of the evidence and submissions.

Conclusion

1. These parties have been engaged in litigation for almost three years and have had final orders made on two separate occasions. The circumstances in which the current proceedings have commenced are hotly disputed by the parties. What is not in issue is that there has been a further interruption of the father’s time with the children as a result of allegations of sexual abuse and that at least X, and possibly Y, have been exposed to further investigation and interview as a result of those allegations.

2. While the children’s time with the father appears to have recommenced, the father raises a number of concerns in relation to the risk the children face in the mother’s care.  Further, in response to those concerns the mother submits that the child has made disclosures of abuse.  Whilst I am not in a position to make any findings with respect to those allegations, I am satisfied that the issues raised by both parties give significant cause for concern for the children’s welfare.

3. The key consideration is whether this case should be granted priority to the detriment of other cases. Many cases within this Court involve allegations of risk and child abuse and they are serious matters which require swift determination by this Court. Having regard to the allegations raised by both parties I am satisfied that there should be an order that this matter be afforded priority to the detriment of other cases awaiting hearing. It is a matter that involves allegations of child sexual, or other, abuse.  Given the history of the proceedings, it is in my view necessary to expedite the trial to minimise the risk of psychological or emotional trauma to the children occasioned by these proceedings.

4. The notation to the orders of the Registrar made 30 May 2018 provides that the issue of whether an Independent Children’s Lawyer should be appointed was to be determined by me.  That notation records that the appointment of an Independent Children’s Lawyer was sought by both parties.  As this is a matter that involves allegations of risk and abuse, I think it is appropriate that an Independent Children’s Lawyer be appointed.

5. When the matter was last before the Court in 2017 an Independent Children’s Lawyer was appointed.  That appointment was discharged upon the making of final orders on 17 September 2017.  Given the overlap between issues in the previous proceedings and the current proceedings and the allegations raised by the father that the mother did not disclose in the previous proceedings reports made by her of alleged disclosures of abuse by the children in my view it would be appropriate, if practicable, that the same lawyer be appointed as Independent Children’s Lawyer in these proceedings.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 July 2018

Associate: 

Date:  2 July 2018