Cutter & Egerton

[2008] FamCA 1122

FAMILY COURT OF AUSTRALIA

CUTTER & EGERTON [2008] FamCA 1122

FAMILY LAW – PROCEDURE – Priority hearing – application granted

Family Law Act 1975 (Cth)

APPLICANT: MR CUTTER

RESPONDENT: MS EGERTON

FILE NUMBER: DGF 191 of 2006

DATE DELIVERED: 22 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT:

MEIER DENISON GUYMER

SOLICITOR FOR THE RESPONDENT:

GUTHRIE & ASSOCIATES

THE INDEPENDENT 

CHILDREN’S LAWYER:

TAYLOR SPLATT PARTNERS

Orders

1. That the application by the father for an expedited hearing is granted.

2. That all outstanding applications be adjourned for final hearing before Justice Bell as the fifth case in the list of defended matters for the period of nine sittings commencing on 14 April 2009 at 10.00am as a three day matter.

3. That the matter be mentioned before me at 9.00am on 3 April 2009.

4. That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.

5. That by 4 pm on 20 March 2009 the applicant file:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and

6. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 20 March 2009.

7. That by 4 pm on 3 April 2009 the respondent file:

   (a)an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

8. That by 4 pm on 8 April 2009 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

9. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

    (b)refer the case to the trial judge for directions as to its future management; or

    (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

    (d)return the case to the Registrar’s docket on a date to be fixed for further management

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

11. That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 8 April 2009 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a bullet-point summary of argument in relation to the issues in dispute.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 191  of 2006

MR CUTTER

Applicant

And

MS EGERTON

Respondent

REASONS FOR JUDGMENT

1. This is an application to have a hearing expedited.

2. The proceedings involve a child born in January 2002.

3. This case is about what (if any) relationship should exist between the child and in particular, her father.  At the moment, the child has no relationship with her father.

4. In May 2006 an attempt was made by orders to create a relationship between the child and her father by using the Gordoncare facility.  In Independent Children’s Lawyer was appointed.

5. The mother had asserted that the relationship was one of constant violence and abuse during which the father abused drugs.  On 5 August 2005 the Magistrates Court at Frankston granted the mother an intervention order in the usual terms.  The father consented to the order without admission as to the allegations in the complaint.

6. In August 2007, the parties agreed to undergo parentage testing procedures to ascertain whether the applicant was the child’s father.

7. It would seem that the orders even using the contact centre have been unsuccessful.  An order was made for Ms N to undertake a family report and that was filed in September 2007.  According to the evidence in the affidavit material, the matter has not progressed.  On 5 November 2008 Registrar Kaur made an order that the parties have liberty to apply for an expedited final hearing.  Orders were made for them to file material. 

8. The Independent Children’s Lawyer filed a summary of argument which according to an email dated 5 December 2008 was supported by the mother.

9. In essence, the Independent Children’s Lawyer says that the parties have been engaged in litigation since 2006, the matter has progressed slowly and orders will be needed to progress the matter to avoid further litigation and “breaches of orders”.

10. The solicitors for the father filed a submission setting out the chronology.  The pointed to the fact that the litigation had not been delayed through any fault of their client and that the order for supervised time between father and daughter had not been successful through no fault of the father.  The father’s position now is that the mother is causing psychological harm to the child by resisting the whole process.

11. It is clear from reading the file that this case has had numerous hearings and has not progressed.

12. The parties need to show that there is a reason why their particular case should be given priority over all other cases.  This case warrants that order for two reasons.  The first is that the case has been delayed because of the fact that there have been numerous interim hearings all of which were endeavouring to get some relationship started.  There is a dispute as to why the relationship has not commenced and that needs to be resolved.  Having said that, the case is not too far from the top of the list of cases in any event. 

13. The second reason why the matter needs to be given some priority is the fact that it involves a child who has no relationship with her father and possibly no knowledge of the biology involved.  In those circumstances, any further delay can only exacerbate that situation as the child matures.

14. In the circumstances, this is a case that warrants an expedited hearing.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  23 December 2008