Dione and Dione

[2010] FamCA 62

FAMILY COURT OF AUSTRALIA

DIONE & DIONE [2010] FamCA 62

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Expedited hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Dione

RESPONDENT: Ms Dione

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8156 of 2009

DATE DELIVERED: 4 FEBRUARY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 4 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WILLIAMS

SOLICITOR FOR THE APPLICANT: MOORES LEGAL

COUNSEL FOR THE RESPONDENT: MS JOHNS

SOLICITOR FOR THE RESPONDENT: FORTE FAMILY LAWYERS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MR BULT, DAVID STAGG TONKIN & CO

Orders

1. That all outstanding applications of the parties both as to parenting and property issues be listed for the first day of hearing before the Honourable Justice Cronin at 2.15pm on 5 March 2010.

2. That the husband file and serve an amended application with particularity as to property issues by 4.00pm on 26 February 2010.

3. That without leave of the Court, neither party file any further affidavit material prior to the first day of trial.

4. That the application for priority of hearing made by the husband by way of summary of argument filed electronically on 1 February 2010 is granted.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8156  of 2009

MR DIONE

Applicant

And

MS DIONE

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 18 January 2010, Senior Registrar FitzGibbon made interim orders between the parties most of which related to the husband’s time with the three children of the marriage. 

2. The Senior Registrar also ordered that by 4.00pm on 29 January 2010, the husband seeking an expedited hearing had to serve a summary of argument in bullet point form setting out the matters upon which the determination was to be made.

3. With that summary of argument filed on 1 February 2010 was a letter by email from the solicitor for the husband indicting that the respondent and the Independent Children’s Lawyer supported the application for the expedited hearing.

4. The parties began the proceedings in September 2009 when the husband sought parenting orders. 

5. The matter was listed before Federal Magistrate Walters on 16 September 2009 at which time, it was transferred to this Court.

6. On 28 September 2009, the wife sought that the husband’s time with the children be “reserved” whatever that means.

7. A number of hearings have been conducted in these proceedings and orders were made on the transfer from the Federal Magistrates Court that a s 62G family report be prepared by Dr N and that an assessment be undertaken of the parties psychiatric condition by Dr E.  Those respective assessments were provided to the Court in November 2009. 

8. Federal Magistrate Walters also made an order pursuant to s 91B of the Act for the Department of Human Services to intervene. Consequently, on 25 September 2009, the Court advised the NSW Department of Community Services of the s 67Z notification.  On 8 October 2009, the Department wrote to the Court indicating the Department had decided not to intervene in the proceedings at that time.

9. The orders in relation to the children were amended by the Senior Registrar by consent of the parties on 18 January 2010 such that the husband was to spend time with the two older children each weekend from Saturday morning until Monday evening and with the child Y who is not yet one year of age, for one and a half hours on each Saturday.  All of those orders were to be in the presence of either the paternal grandmother or paternal grandfather.  Undertakings by those persons were given relating to their responsibilities.  In addition, the husband consented to those orders without admitting the necessity for them.

10. There are serious allegations of violence and assertions of two of the three children being at risk of child abuse.

11. Dr E provided his report on 11 November 2009 in which he found that the husband did not present with a psychiatric condition but he did have concerns about the wife’s presentation.  He made it clear that the assessment depended upon the historical facts and they were very much in dispute.  Much the same was said about the psychological report of Dr N dated 17 November 2009.

12. In this case, there are significant factual disputes relating to not only violence but behaviour which could only described as bizarre.  The children are caught in the middle of that and it is in their interests that the matter be resolved as a matter of urgency. 

13. Priority in any case should only be given on the basis that the case is sufficiently serious to place it ahead of all of other matters currently before the Court.  I find that this is one of those cases.

14. Accordingly, I propose to direct that the matter be placed for hearing as a matter requiring a first day before a judge for assessment as to the issues in dispute and the evidence to be called and for the Court’s resources to be then allocated depending upon the assessment of the trial judge.

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

Associate: 

Date: