Garde & Raddison

[2009] FamCA 291

FAMILY COURT OF AUSTRALIA

GARDE & RADDISON AND ANOR [2009] FamCA 291

FAMILY LAW – PRACTICE AND PROCEDURE – Priority hearing application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Garde

RESPONDENT: Ms Raddison

RESPONDENT PATERNAL

GRANDMOTHER:

Mrs Garde

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6049 of 2008

DATE DELIVERED: 15 April 2009

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: T J MULVANY & CO

SOLICITOR FOR THE RESPONDENT:	RICHARD CALLEY
SOLICITOR FOR THE RESPONDENT PATERNAL GRANDMOTHER:	CYNTHIA A TOOSE

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6049  of 2008

MR GARDE

Applicant

And

MS RADDISON

Respondent

And

MRS GARDE

Respondent Paternal Grandmother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders.

3. The proceedings began with an application by the husband filed on 2 July 2008 in the Federal Magistrates Court of Australia seeking orders that he be able to spend time with his son born in February 2007.  It seems common ground that the father has not seen his son at all since June 2008.  At that time, the child was 16 months of age.  It is now ten months since there has been any contact between father and son.

4. The factual matrix of this case is difficult and unusual.  The parties commenced their relationship in March 2006 and married in July 2006.  At the time of the marriage, the husband had not told the wife that in June 1988 he pleaded guilty to a charge of murder and subsequently served a term of 11 years imprisonment.  The victim was his girlfriend.  He was released from prison in January 1999 on parole.

5. There is significant dispute between the parties about what happened after the wife became aware of the previous conduct of the husband but she asserted a history of domestic violence, assaults and road rage.  She said that upon learning of the history, the relationship deteriorated substantially.  There are now intervention orders in existence between the parties.

6. Prior to issuing any proceedings, the parties arranged some supervised contact at a contact centre but as a result of an assertion by the wife about the behaviour of the husband, she ceased participating in that.  That action precipitated the husband’s application on 2 July 2008 at which time he sought parenting orders.

7. The application initially came before Federal Magistrate Turner and the husband sought interim orders for contact with the child.  Other orders were also sought including the appointment of an Independent Children’s Lawyer.  Federal Magistrate Turner refused virtually all orders sought by the husband as a consequence of which, the husband appealed to the Full Court.  By consent of both sides, the Full Court upheld the husband’s appeal and gave reasons for setting aside the orders of Federal Magistrate Turner.  The matter was transferred back to the Federal Magistrates Court where on 22 January 2009, it came before Federal Magistrate Burkhardt who transferred all proceedings to this Court. 

8. It is important for the purposes of this application to note that when the matter came before Federal Magistrate Turner on 13 August 2008, his Honour fixed a final hearing date of 23 April 2009.  The matter having been transferred to this Court, that date was obviously vacated.

9. On 2 March 2009, Senior Registrar FitzGibbon made an order appointing an Independent Children’s Lawyer and gave the husband an opportunity to seek an expedited hearing from me.

10. For the purposes of these reasons and the orders I propose to make, I can indicate that I have read the judgment of the Full Court together with the affidavits of the husband and the wife that were placed before Federal Magistrate Turner.

11. In addition to those materials, I have had the advantage of reading the summary of argument provided by each party and a letter from the solicitor for the paternal grandmother supporting the concept but not from the Independent Children’s Lawyer. 

12. In essence, the husband seeks an expedited hearing on the following ground:

    Given [the child’s] age and developmental process and the delays in the Family Court of Australia at Melbourne, the passage of time can only play into the wife’s hands to the very substantial detriment of the husband.  If subsequently it is determined [the child] can see his father it is submitted there is a substantial detriment to [the child] by delaying the commencement of such time.

13. The wife agreed that the case should be heard as soon as practicable.  Her concern however, related to having to face another interim hearing where there would be controversial facts.

14. Another factor of some concern is that a report was being pursued from psychologist Mr P. Mr P sought to observe father and son and set an appointment for 9 April 2009 but the wife refused to participate.

15. Rule 12.10A of the Family Law Rules 2004 sets out the basis upon which an application can be made for an expedited hearing. If granted, an expedited hearing would place the case before a judge for a first day of trial. In considering such an application, the Court may take into account whether the applicant has acted reasonably and without delay and a number of other matters including any prejudice to the respondent and “whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases”.

16. The Rules provide that a “relevant circumstance” includes a number of things.  One of them is 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.  That is the underlying argument of the husband. 

17. There are two important concerns in this case. The first is that there is an interim order denying the child any contact with his father. The second is that there are serious allegations against the husband relating to his recent conduct let alone his past history. That gives rise to the assertion of the wife that there is a need to protect the child from exposure to abuse or family violence. Section 60K applies to cases where a document prescribed by Rule 2.04 has been filed. That document in turn, triggers s 60K(2A). These proceedings were begun in the Federal Magistrates Court. Rule 1.05(2) and (3) of the Federal Magistrates Court Rules 2001 refer parties to Schedule 3 which picks up Rule 2.04 of the Family Law Rules 2004. Neither party (and the husband probably did not need to do so) filed the requisite notice.

18. The applicant for the expedited hearing says that having no time with a child who is very young must affect the ease with which a relationship can be developed in the future.  I am cognizant of the fact that ten months has already gone by and as such, it is difficult to know what damage, if any, has already been done and how difficult it would be in the future for the husband to develop any relationship with the child if a court ordered that it was appropriate for that relationship to commence.  That unfortunately is a problem that faces many parents in situations involving abuse where it is asserted that children are at risk.  There are a number of those matters in every registry of this Court around Australia.  As such, notwithstanding the importance of developing a relationship of a meaningful nature as a consideration by every trial judge, there is nothing extraordinarily different about this case from many others.

19. It is a discretionary and balancing decision to place this case ahead of any other but had it taken its usual course in the Federal Magistrates Court, it would not have been heard before April 2009 in any event.  The husband made an application for interim orders and was refused by Turner FM.  A Full Court was concerned about the absence of appropriate reasons for that decision.  That is not to say that a further interim application could not be made in this Court if the husband determined that it was appropriate to do so notwithstanding the argument of the wife.

20. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases.  Are there special reasons why that elevation should be given?  “Special reasons” means what it says namely something unusual or out of the ordinary.

21. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  22 April 2009