Coburn & Anor and Oliver & Ors

[2016] FamCA 974

FAMILY COURT OF AUSTRALIA

COBURN AND ANOR & OLIVER AND ORS [2016] FamCA 974

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

1st APPLICANT: Ms Coburn

2nd APPLICANT: Mr Coburn

1st RESPONDENT: Ms B Oliver

2nd RESPONDENT: Ms Truscott

3rd RESPONDENT: Mr Truscott

4th RESPONDENT: Ms C Oliver

5th RESPONDENT: Mr D Oliver

INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

FILE NUMBER: MLC 5371 of 2016

DATE DELIVERED: 26 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: G & G Legal

SOLICTOR FOR THE 2ND APPLICANT: G & G Legal

THE 1ST RESPONDENT: In Person

SOLICITOR FOR THE 2ND RESPONDENT: Avon Legal

SOLICITOR FOR THE 3RD RESPONDENT: Avon Legal

THE 4TH RESPONDENT: In Person

THE 5TH RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

IT IS ORDERED THAT

1. 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.

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 Coburn and Anor & Oliver and Ors 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 5371 of 2016

Ms Coburn and Mr Coburn

Applicants/ Paternal Grandparents

And

Ms B Oliver

First Respondent Mother

Ms Truscott and Mr Truscott

Second and Third Respondents/ Maternal Aunt and Uncle

Ms C Oliver and Mr D Oliver

Fourth and Fifth Respondents/ Maternal Grandparents

REASONS FOR JUDGMENT

1. These proceedings are in relation to the arrangements made for the care of the child E who was born in 2009, one of the proposals for his care involving his relocation to Queensland.

2. On 2 September 2016 Senior Registrar Fitzgibbon made orders inter alia that the parties and particularly the Independent Children’s lawyer have liberty to apply for the expedition of the final hearing of this matter by no later than 9 September 2016. The other parties had a further seven days after the party seeking priority had filed his or her summary of argument to file a document indicating their support or opposition to priority being granted.

3. On 13 September 2016 the Independent Children’s Lawyer filed her submissions in support of her application that the hearing of this matter be expedited. The second and third respondents filed submissions on 16 September 2016, the fourth and fifth respondents filed submissions on 19 September 2016 and the applicants filed submissions on 20 September 2016 all in support of the Independent’s application for an expedited hearing. I am satisfied that there would not be any prejudice to them if this were to occur.

4. Pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”) a party may apply to expedite the first day before the Judge. As set out in the Rules:

   (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.

5. The child in this case lives with his paternal grandparents and spends time with his maternal grandparents and his maternal aunt and uncle. His father is deceased and his mother has not participated thus far in the proceedings.

6. It would appear that there is no dispute that the child lived primarily with his mother spending time with his grandparents and eventually going to live with his paternal grandparents sometime in the last 12 months. There are allegations that during the time the child lived with his mother, and his father before his death, he was exposed to family violence and his mother’s drug use and that there was a great deal of instability in his life.

7. Although it was submitted by the Independent Children’s Lawyer that there has been a remarkable level of co-operation between paternal and maternal families with respect to the arrangements for the child’s care she also submits that notwithstanding this level of co-operation the child’s life has been one of constant transition and instability and very little certainty or predictability.

8. This is further complicated by the maternal aunt and uncle’s application which would involve the child’s relocation to Queensland. Each party asserts that the other parties have inappropriately discussed the proceedings and their respective proposals with the child and the Independent Children’s Lawyer submits that the child is not only aware of the proceedings but also of the proposed relocation and that this is likely to add to his feelings of instability and uncertainty.

9. Although I am satisfied that this case should be given priority it is not possible as submitted by the Independent Children’s Lawyer for the matter to be listed in January 2017 so that if the Court were to order that the child relocate to Queensland such relocation would coincide with the commencement of the school year.

10. Whilst that might be optimal it is unlikely that even if the matter were to be listed for final hearing in January 2017 that judgment would be delivered by the commencement of the school year. In any event the Court simply does not have the resources to accommodate the matter in January 2017. In all of the circumstances I propose to order that the matter be allocated to a judicial docket with a view to being listed for final hearing as soon as it can be reasonably accommodated.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 October 2016.

Associate: 

Date:  26 October 2016