Cavour and Cavour

[2017] FamCA 963

FAMILY COURT OF AUSTRALIA

CAVOUR & CAVOUR [2017] FamCA 963

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing

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

APPLICANT: Ms Cavour

RESPONDENT: Mr Cavour

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: BRC 9228 of 2010

DATE DELIVERED: 29 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

SOLICITOR FOR THE RESPONDENT: Clark Family Lawyers

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

Orders

1. That the Application in a Case filed 16 October 2017 be dismissed.

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 Cavour & Cavour 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: BRC 9228  of 2010

Ms Cavour

Applicant

And

Mr Cavour

Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 16 October 2017 the mother, who is the applicant in the proceedings, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). This is the second such application seeking expedition of the final hearing filed in these proceedings this year, the first application having been refused by Cronin J on 19 June 2017.

2. The Independent Children’s Lawyer supports the current application for an expedited hearing and the father does not oppose the mother’s application.

3. Following the filing of the mother’s Application in a Case, on 17 October 2017 I made orders in Chambers for the filing by each party of a summary of argument. The mother relies upon her summary of argument filed 18 October 2017 and the Independent Children’s lawyer relies on the summary of argument dated 25 October 2017. The father has not filed any summary of argument.

4. The parties have two children, B aged 14 and C aged 12.

5. The proceedings were commenced in the Federal Circuit Court by the mother in August 2016. On this date the mother filed Notice of Risk alleging that the father has been physically violent towards her in the presence of the children and also verbally abusive. She stated that the children were at risk as the father has denigrated her to the children “to the extent that they have been anxious and expressed a reluctance to spend time with [the mother]”.

6. On the 26 August 2016 the father filed a Notice of Risk alleging that the mother had tried to choke C in April 2016 and that she had violently put a bar of soap in C’s mouth in May 2016. He alleged the children were at risk of being abused by the mother. He alleged the mother has historically physically abused the children and verbally denigrated them.

7. On 15 August 2016 an order was made appointing an Independent Children’s Lawyer. The proceedings were transferred to this Court in May 2017.

8. On 9 September 2016 interim orders were made for the children to live with the father.

9. Pursuant to orders made by consent on 15 May 2017 until further order the children are to spend time with the mother from the commencement of Term Four 2017 in a two week cycle from Thursday after school until Friday before school in the first week and the conclusion of school Thursday until the commencement of school Monday in the second week.

10. As a result of an incident which occurred in June 2017 proceedings were commenced in the Children’s Court on 28 June 2017; as a consequence, s 69ZK of the Family Law Act 1975 (Cth) was invoked. The Children’s Court proceedings were concluded on 8 September 2017.

11. Following the resolution of the matters in the Children’s Court the mother filed an Application in a Case on 14 September 2017 seeking interim parenting orders.

12. On 21 September 2017 orders were made by Senior Registrar FitzGibbon that the operation of the Orders made 15 May 2017 resume forthwith, save for variations as to the operation of those orders during the September 2017 school holiday period.  Further, the commencement of such time was to be facilitated on each such occasion by Ms D’s Family Contact Service.   Otherwise, all interim parenting applications were 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. Rule 12.10Aprovides 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 mother submits the circumstances that support her application for an expedited hearing are as follows:

   ·Her application has been without delay;

   ·There is no prejudice to the father;

   ·The father was “violent and intimidating” during the relationship;

   ·She is suffering financial hardship;

   ·The children are suffering hardship;

   ·She is suffering hardship as she finds it challenging to repair and restore her relationship with the children;

   ·The children’s views of the mother will be further entrenched and it will be difficult for her to restore and repair her relationship with the children without an expedited hearing;

   ·There are competing allegations that the children gave been subjected to abuse by their parents;

   ·The children are being subjected to “a severe case of parental alienation”;

   ·There is a likelihood of further allegations made by the father and/or the children against the mother;

   ·There was no contact between her and the children from 10  June 2017 until 5 October 2017; and

   ·That the mother is currently seeing a psychologist to assist her with managing stress and anxiety from ongoing litigation.

2. The Independent Children’s Lawyer relies on the following circumstances in support of the mother’s application for expedition of the proceedings:

   ·That the application by the mother has been made without delay;

   ·The Independent Children’s Lawyer will not suffer any prejudice;

   ·There are significant allegations by and on behalf of each parents that the other is violent, harassing and/or intimidating;

   ·The longer the case goes on, the more entrenched the children’s position appears to be and/or become;

   ·The case involves allegations of child abuse; and

   ·The children are already experiencing serious emotional and psychological trauma.

3. The difficulty with the submissions made by both the mother and the Independent Children’s Lawyer is that they largely rely upon matters that were considered by Cronin J in his determination of the previous application for an expedited hearing.  There has been no appeal against Cronin J’s orders dated 19 June 2017 dismissing the application for expedition.  As was observed by his Honour at paragraph 7 of his Reasons for Judgment, “[t]here are clearly indications of a conflictual relationship but those are being dealt with by the state courts and as I have already said, notwithstanding that, arrangements seemed to be made by consent as between the wife and the children”.

4. As I have noted earlier in this judgment the State court proceedings have now concluded and orders have been made for a resumption of time between the mother and the children in accordance with the orders made by consent in May 2017.  In her affidavit filed 16 October 2017 the mother deposes that there have been some difficulties in the reintroduction of her time with the children.  Nonetheless that reintroduction is in train and is being supported by therapeutic processes with Ms E.

5. It is not submitted that the age, physical or mental health of a party or witness affects their availability or competence to participate in the proceedings.

6. The mother submits that she has been subjected to family violence at the hands of the father.  In support of that submission, she relies upon her affidavit filed 18 April 2017.  These are matters that were known to her and a basis for her application before Cronin J.  The only new matter raised in support of her submissions pursuant to r 12.10A(4)(b) is the fact that the Children’s Court proceedings have concluded and assault charges made against the mother withdrawn.  The result of that action is the resumption of the orders made by consent in May 2017.  I am not satisfied that those matters support an application for expedition of these proceedings.

7. The mother also submits that she suffers financial hardship as a result of the numerous court proceedings between the parties.  These include proceedings in this Court as well as the Children’s Court proceedings and intervention order proceedings.  I accept that likely both parties are suffering financial hardship as a result of the litigation process.

8. The mother submits that the children are suffering hardship as a result of the continuation of interim orders.  The orders made by the Senior Registrar on 21 September 2017 provided for the resumption of previous orders made by consent in May 2017.  At the hearing before the Senior Registrar in September the only issue between the parties related to the periods of time to be spent by the mother with the children during the imminent September school holiday period.  In her summary of argument dated 18 October 2017, the mother places heavy reliance upon the report of a Ms F dated 7 September 2017.  Presumably that report was available to the mother prior to the interim hearing before Senior Registrar Fitzgibbon.  Both that report and the earlier report of Ms E dated 12 May 2017 raise concerns for the children’s welfare in the context of the dispute between their parents.  Whilst the mother relies upon the evidence of Ms F, I note that that expert has not seen the children, is not engaged as a single expert and the father through his lawyers has taken objection to the filing of that material.  The evidence of that expert is untested.

9. The evidence of Ms E was available to Cronin J when the first application for an expedited hearing was made.

10. The mother also submits that a further delay in the finalisation of the proceedings may entrench the children’s views and make it more difficult for her to restore and repair her relationship with them.  The mother also refers to the nature of the allegations made by the father against her.  It is alleged by the father that the mother has physically abused the children over the past 13 years.  Again these matters were in issue at the time Cronin J determined the previous application for priority.  The mother also places reliance upon the reports of Dr G filed 12 May 2017 and Dr H filed 28 March 2017.  Again they were matters available for consideration by Cronin J in the determination of the previous application for priority.

11. The mother submits that she is “tired and exhausted in having to defend herself to have an opportunity to have a meaningful relationship with the children”.  I accept that the litigation is impacting upon the mother. 

12. However, in determining the application, I must consider whether there is a relevant circumstance which justifies this matter having priority to the possible detriment of other cases. 

13. Having regard to the history of the proceedings, I have no doubt that the parties and more importantly the children would benefit from a conclusion to the litigation.  Nonetheless, in circumstances where there has been little change in the position of the parties other than the conclusion of the Children’s Court proceedings and the withdrawal of criminal charges against the mother since Cronin J considered an application for these proceedings to be expedited, there is no new fact or matter which emerges from the submissions of the mother or the Independent Children’s Lawyer  that would justify this matter taking priority over other cases ahead of it in the list of case awaiting allocation to a judicial docket.  That being the case, the application for expedition is refused.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 29 November 2017

Associate:

Date:  29 November 2017