Critas and Critas

[2018] FamCA 253

FAMILY COURT OF AUSTRALIA

CRITAS & CRITAS [2018] FamCA 253

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing – application dismissed.

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

APPLICANT: Mr Critas

RESPONDENT: Ms Critas

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 5643 of 2016

DATE DELIVERED: 26 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Clancy and Triado

SOLICITOR FOR THE RESPONDENT: Ferrar Gesini Dunn

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

Orders

1. The father’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) 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 Critas & Critas 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 5643 of 2016

Mr Critas

Applicant

And

Ms Critas

Respondent

REASONS FOR JUDGMENT

1. The father who is the applicant in the substantive proceedings makes an application seeking the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The substantive proceedings concern the parenting arrangements in relation to the parties’ two children, B aged 5 and C aged 2. The children currently spend supervised time with the father.

2. On 20 March 2018 Senior Registrar Field  made the following orders:

   6. That all extant applications of all parties are adjourned to a date to be fixed before the Honourable Justice Johns to determine whether to expedite the final hearing.

   7. That by 4.00pm on 28 March 2018, the Husband file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.

   8.That by 9 April 2018, the Wife file and serve a document indicating her support of or objection to the application for expedition.

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

3. The father’s submissions in support of his application for an expedited hearing were filed on 28 March 2018 in accordance with the orders of Senior Registrar Field.

4. The mother emailed her submissions to my associate on 9 April 2018. The mother submits that she “does not support the Father’s submissions made in the Summary of Argument however the Mother does not oppose the Father’s application for an expedited hearing”.  The other submission made by the mother is that:

   The Mother maintains her concerns that the Father poses a risk to the children and the children are at risk of harm in the Father’s care unsupervised.

5. Otherwise the mother did not make any submissions in relation to the application for expedition.

6. On 20 March 2018 Senior Registrar Field also made an order for the appointment of an Independent Children’s Lawyer (“the ICL”).  No orders were made for the filing of written submissions by the ICL in relation to the application for an expedited hearing as at the time the directions for filing of submissions were made, the ICL had not yet been appointed. 

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

Background

1. The father is aged 37. The mother is aged 34.

2. The parties commenced cohabitation in 2007 and married in 2010. They separated on 18 November 2015 and divorced on 25 May 2017.

3. The parties have two children, B aged five and C aged two.

4. On 27 October 2015 the father deposed that he was charged with knowingly possessing child exploitative material. The father pleaded guilty to and was convicted of those offences and in mid 2016 in the Magistrates’ Court of Victoria at Suburb D the father was made subject to a Community Correction Order for a period of 24 months.

5. Final property orders were made by consent on 4 July 2016.

6. On 27 October 2017 the father filed an Initiating Application seeking parenting orders in relation to B and C.

7. Interim parenting orders were made by consent by Registrar Jenkins on 1 December 2017 which provide as follows:

   1. That the children, [B] born on … 2012 and [C] born on … 2015 (collectively referred to as the “children”) live with the mother.

   2.That the children spend time with the father:

   2.1      In a fortnightly cycle as follows

   2.1.1   In week one:

   (a)From the date of these Orders until 2 January 2018, each Thursday from 7:30am to 7:00pm commencing 7 December 2017;

   (b) From 3 January 2018, each Thursday at the completion of school/kinder or child care or 3:30pm until 7:00pm;

   AND IT IS NOTED that the Father is at liberty to take the children out of child care early and if he does so, will repay to the mother the cost of child care for that day.

   2.1.2   In week two:

   (a)Saturday from 9:00am to 5:00pm commencing 2 December 2017; and

   (b)Sunday from 10:00am to 7:00pm commencing 3 December 2017.

   …

8. The orders on 1 December 2017 also provide for the children to spend special days with the father.  Further order 3 provides:

   That the father’s time with the children pursuant to paragraph 2 above is conditional upon any of the paternal grandparents or the paternal aunt, [Ms E Critas], being available to supervise such time AND UPON the paternal aunt and grandparents making an Undertaking to the Court, marked “Annexure A” hereto, in respect of their role and responsibility to supervise the father’s time with the children AND providing said Undertaking to the Court to remain on file and to the Mother’s lawyers.

9. An order was also made for Dr F to prepare a Family Assessment Report. That report was completed and is dated 5 February 2018. Dr F also prepared a psychosexual report in relation to the father which is dated 27 February 2018.

10. On 20 March 2018 orders were made for the interim parenting applications to be otherwise adjourned to the Senior Registrar’s Duty List on 31 May 2018. Order 12 provides:

    That in the event the hearing of the substantive applications are granted priority, the parties have leave to jointly seek a chambers order vacating the listing on the 31 May 2018 and dismissal of all extant interim applications.

11. The mother filed a Notice of Risk of Child Abuse, Family Violence or Risk of Family Violence (Current Case) on 23 March 2018. In the notice under Part F Paragraph 10 the mother states that the children are at risk of sexual abuse by the father. Further the mother states:

    Were the children to spend unsupervised time with the father there is a risk of them being placed in situations whereby the father’s mandatory reporting requirement of the [Sex Offenders Registry] exposes the children to frequent questioning and the risk of institutional abuse.

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 father submits that he has acted reasonably and without delay in the conduct of the case.  In support of that submission he relies upon his compliance with requirements that he attend upon Dr F both for the preparation of the Family Report that the updated psychosexual assessment report.  Further the father submits that his application for priority was made without delay following the release of Dr F’s reports. Those reports were released in February 2018 and the father filed his submissions in March 2018 in compliance with the orders of the Senior Registrar.  Having regard to the manner in which the father has participated in and conducted the parenting proceedings to date, I am satisfied that he has acted reasonably and without delay in the conduct of the case.

2. The father submits that there is no prejudice to the mother in having the first day of the hearing expedited.  In circumstances where the mother does not oppose the father’s application for expedition, I accept that submission.

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).  Other cases are disadvantaged as they miss out on the opportunity to be granted a trial date. As such, there needs to be justifying circumstances to grant expedition.

4. The father submits that the continuation of interim orders is causing hardship to the children. He submits that his relationship with the children will be “negatively impacted given their young ages if he continues to spend limited, supervised time with them”. The father submits that he has been spending supervised time with the children since around 28 December 2015.

5. The father relies upon and refers to the recommendations in the Family Report at paragraph 83 and in particular where Dr F recommends:

   1. A gradual increase in time between the children and the father over the next three years, up to [C] beginning school;

   2. Overnight time should begin following Court Orders on a fortnightly basis beginning with Saturday am to Sunday 7pm, and 9am to 7pm on a day in the intervening week, e.g. Thursday 9am – 7pm for C, and from 3pm to 7pm for [B];

   3. There should be a gradual increase in the number of nights with the father available to the children over the next 4 years, with a further night introduced to the fortnightly weekend in 6 months, from Orders, and then a further night again in the intervening week, 6 months hence from that date;

   4. By the time [C] begins school, time with the father should be 5 nights across two time periods, and 9 nights across two time periods with the mother.

6. The father also submits that the children have been requesting to spend more time with him and at times become distressed at changeover and do not want to return to the mother’s care.

7. The father relies on the psychosexual report prepared by Dr F which states at paragraph 35:

   Structured professional judgment based on the RSVP indicated that [the father] is at Low risk for sexual offending, which in this case related to the use of child pornography…

   With respect to the care of the children, they are at Low risk in the care of [the father], and normal time should be established between the father and the children. The extent of time will be dependent upon the broader issues associated with the children and their needs, and these issues are addressed more specifically in the family report dated 5 Feb 2018.

8. The father also places reliance on the earlier psychosexual report of Dr G dated 30 May 2016 which assesses the father as having a low risk of future reoffending.  In addition, the father points to the position of the Department of Health and Human Services which stated in a letter dated 8 August 2016 that its requirement for supervision has been removed.  

9. Finally the father relies upon the letter from his psychologist dated 12 October 2017 which states that he believes the father’s risk of reoffending is in the “lowest category of risk”.

10. The father contends that the interim orders are causing him hardship as he is spending only limited supervised time with the children and has not spent overnight time with the children since November 2015, prior to separation.

11. The father submits that a delay in the hearing of the matter would result in the recommendations of Dr F being “impracticable” as Dr F states “there is to be a gradual increase such that the final 9/5 care arrangement is in place by the time [C] is to begin school”.   Given C’s age, were Dr F’s recommendations accepted, it is anticipated that such gradual increase would occur over the next three years.

12. In her submissions dated 9 April 2018 the mother submits that the father poses a risk to the children and further that the children are at risk of harm in the father’s care if unsupervised.

13. I am not in a position to make any findings with respect to whether the father poses an unacceptable risk to the children; that is an issue to be determined by the trial judge.  Accordingly, whether the imposition of supervision and limitation on the father’s time is a hardship upon the children and the father, as asserted by the father, or a necessary safeguard, as maintained by the mother are matters to be determined upon a testing of the evidence.

14. Rule 12.10A(4)(f) provides that a relevant circumstance to be considered in determining the question of priority is whether the case involves allegations of child sexual, or other, abuse. Such considerations are squarely raised in this matter.  The mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 23 March 2018.  The allegations of risk contained in that Notice include:-

    ·    The father’s conviction in March 2016 for possession of child pornography and his placement on the Sex Offenders Registry for a period of eight years;

    ·    That the children are at risk of sexual abuse by the father.

15. In addition, the mother submits that the children will be affected by the father’s inclusion on the Sex Offenders Registry due to the obligation upon him to disclose that fact to schools and other organisations in which the children are enrolled.

Conclusion

1. The father is currently spending regular time with the children, albeit on a supervised basis.  The father places heavy reliance on the recommendations of Dr F that his time be increased on a gradual basis until C attends school in support of his application for priority.  However, in my view that such recommendation has been made does not mean that this matter should be afforded priority to the detriment of other matters.  The reality is that C is 2 years old and will not be attending school for approximately three years.   These proceedings will be concluded well prior to C’s commencement at school.

2. The parties’ interim applications are currently listed in the Senior Registrar’s Duty List on 31 May 2018.  On that day interim orders may or may not be made extending the father’s time with the children. The previous interim parenting orders were made without the benefit of the Family Report or the Psychosexual Report prepared by Dr F.

3. Ultimately determining whether to grant a case priority is a balancing act which requires me to determine whether priority should be given to the possible detriment of other cases (emphasis added).  I do not consider it appropriate to grant this matter priority. There are many cases within this Court where similar allegations of risk of sexual abuse are raised; it is not possible to afford all such cases with priority.

4. In circumstances where the children are spending regular and frequent time with the father and upon the disposal of all interim issues in May 2018 the matter will be in a position to be placed into the pool awaiting allocation to a judicial docket, I am not persuaded that there are circumstances which justify the matter having priority over other matters in the list.   Accordingly, I will make orders that the father’s application for an expedited hearing be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 26 April 2018.

Associate: 

Date:  26/04/2018