EAST & PURCELL

[2012] FamCA 20

FAMILY COURT OF AUSTRALIA

EAST & PURCELL [2012] FamCA 20

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing granted

Family Law Act 1975 (Cth)

APPLICANT: Ms East

RESPONDENT: Mr Purcell

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 10190 of 2010

DATE DELIVERED: 19 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE

APPLICANT:

Lampe Family Lawyers

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

Orders

HAVING been placed in the list of cases awaiting a final hearing and upon being satisfied that it is appropriate to expedite the hearing, IT IS ORDERED as follows:

1. That all extant applications for final orders are listed for a FIRST DAY OF HEARING before the Honourable Justice Cronin at 10.00am on 29 February 2012.

2. That the parties and if represented, their legal practitioners, attend the first day of hearing.

3. That notwithstanding applications/responses have already been filed:

   a)by 4 pm on 3 February 2012, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   b)by 4 pm on 17 February 2012, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

4. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposals and on the return date, present to the Court a copy of those orders.

AND THE COURT NOTES:
If a party does not comply with paragraph 3 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym East & Purcell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10190 of 2010

Ms East

Applicant

And

Mr Purcell

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application by the mother to expedite the first day of hearing of a parenting dispute.

2. The case concerns K who is 10 years of age. 

3. Proceedings were commenced in October 2010 by the father seeking parenting orders.  At that time he filed a Notice of Risk of Child Abuse.  The mother filed a response and sought parenting orders in November 2010.

4. Since then, the parties have been to court on five occasions and there is no indication of them being able to resolve the problem.

5. On 24 November 2011, the matter was last before the Senior Registrar and at that hearing, it was ordered that the child continue some counselling that had been commenced but that the counsellor also have the benefit of a s 11F memorandum.

6. The parties attended a family consultant in November 2011 for a children and parents issues assessment.  That report sets out nine “key issues” which include the Court having to deal with allegations of illicit drug use, exposure to family violence by the mother’s new partner, the antagonistic relationship between the parties having become entrenched and the father’s aversion to any form of mediation or counselling.  At the moment, there is an undertaking in place under which the mother’s partner abstains from any contact with K.  The dilemma is that the mother is now pregnant to her partner and due to give birth to a baby in March.

7. All of the circumstances just outlined indicate that this is a matter that requires court intervention and resolution because it is unlikely that the parties will be able to resolve the matter themselves.

8. The mother applied for the expedited hearing and that was supported by the Independent Children’s Lawyer.  The father remained silent on the issue.

9. Rule 12.10A of the Family Law Rules 2004 sets out the basis upon which a party may apply to expedite the first day of a hearing before a judge. Looking at those matters, I am satisfied that there has not been any delay in the conduct of the proceedings and an early resolution of the matter is certainly not going to prejudice the father. There is no circumstance here that would indicate that promoting an early hearing would prejudice other cases because the case itself is now outside this Court’s preferred guideline. The reason why the matter has not been allocated a final hearing to date is because the parties have continued to litigate about interim issues.

10. The most relevant circumstance here is that K is caught in the middle and a resolution is necessary.  Accordingly, I propose to make an order for an expedited first day of hearing.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 January 2012.

Associate: 

Date:  19 January 2012