Grollo and Bilson

[2017] FamCA 16

FAMILY COURT OF AUSTRALIA

GROLLO & BILSON [2017] FamCA 16

FAMILY LAW – PARENTING – Bifurcation where interim property issues are pending as a result of a reserved judgment – best interests of children for expeditious conclusion of parenting issues – query whether one judge should alter a docketed case of another.

Family Law Act 1975 (Cth)

APPLICANT: Ms Grollo

RESPONDENT: Mr Bilson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6848 of 2014

DATE DELIVERED: 10 January 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: Eales & Mackenzie

COUNSEL FOR THE RESPONDENT: Ms Grobtuch

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

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

Orders

1. That the parenting aspect of all extant proceedings is bifurcated from the financial proceedings.

2. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 1 June 2017 subject to any part heard case as a three day case.

3. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

4. By 4 pm on 5 May 2017 the applicant file and serve upon all other parties all affidavits of evidence to be relied upon.

5. The applicant pay all required court fees by 4 pm on 5 May 2017.

6. By 4 pm on 19 May 2017 the respondent file and serve upon all other parties all affidavits of evidence to be relied upon..

7. By 4 pm on 26 May 2017 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

8. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

   SUBPOENAE

9. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

10. By 4 pm on 30 May 2017 all parties file electronically to …  a case outline in one document setting out:

    (a)    the outline of the issues in dispute;
    (b)    the list of the affidavits to be read;
    (c)    a concise set of orders to be sought;
    (d)    the list of objections to evidence requiring a ruling;
    (e)    a list of assets and liabilities.

    AND THE PARTIES SHOULD NOTE:

    A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

    B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

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 Grollo & Bilson 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 6848  of 2014

Ms Grollo

Applicant

And

Mr Bilson

Respondent

REASONS FOR JUDGMENT

1. This discrete interim application between Ms Grollo (“the applicant”) and Mr Bilson (“the respondent”) was listed in the Judicial Duty List on

   
   

   10 January 2017.  Each of the parties appeared by their respective legal representatives and the children of their relationship were represented by counsel for the Independent Children’s Lawyer.

2. The relevant application in a case was filed by the applicant on 21 November 2016.  It was not formally opposed by the respondent (in the sense that he filed no material) and he was not heard to dispute the relevant order to which I turn in a moment.

3. After discussion, consensus was reached as to how the parenting dispute should be determined relating to B aged 15 and C aged 14 years.  It was agreed that the parenting dispute be set down for trial but that I should give reasons for the course taken.  These are those reasons.

4. The application filed on 21 November 2016 sought a number of orders but three in particular are of relevance.  First, that the parenting proceedings be “bifurcated” from the extant financial proceedings.  Secondly, that there be a discharge of orders made by the Court on 29 October 2015 relating to specific parenting arrangements.  Thirdly, that there be particular parenting orders made such that the applicant spend time with B and C both during school terms and during holidays.  It was common ground that the children currently live with their father in Queensland as a result of the orders made in 2015.

5. The applicant claims she was in a de facto relationship with the respondent but the substantive financial dispute revolves around the finding of jurisdiction of the court.  The respondent apparently denies jurisdiction exists.  When the application for financial relief was brought before the court, there were also applications for parenting orders.  The parties have concentrated on the threshold issue of jurisdiction in relation to the financial matters and that hearing was said to have taken place over a number of weeks culminating in a reserved judgment in April 2016. 

6. One of the dilemmas relating to the question of the bifurcation of the parenting issues is that the judgment of the court is still reserved.  No indication has been given as to when that judgment will be delivered but even if it is reasonably foreseeable, the prospect of what happens to the parenting issue thereafter, faces two challenges.  The first is the question of when the court might be able to allocate the resources to hear that part of the application and the second relates to the question of whether Bennett J, who is the judge handling the financial matters, would still be able to hear the parenting dispute having regard to findings that might be made arising out of the financial issues.  It would be unfortunate if, having made adverse findings against a party, Bennett J disqualified herself from hearing the parenting case and thereafter, there was a long wait for a trial before another judge.

7. One of the concerns of the court is that B and C currently have limited time with their mother as a result of the tyranny of distance but also because of orders made in 2015.

8. There is common ground between the applicant and counsel for the Independent Children’s Lawyer that the children deserve to have the issue resolved quickly.  The respondent, who is the current carer of the children, was ambivalent about whether there was any urgency.  It was observed by counsel for the Independent Children’s Lawyer that when the orders were made placing the children in the respondent’s care, it was (presumably) as a result of a stinging criticism of both parents by a family consultant who gave both a report and oral evidence to Bennett J.  Put bluntly, counsel for the Independent Children’s Lawyer observed that her Honour had to make a decision between the best of the worst options.  Unfortunately, the reasons for that decision were not on the court file and the parties say they have not received them.  That made determination of the second issue complicated.

9. In respect of the application to vary the orders of 2015, counsel for the applicant faced a hurdle without those reasons even if the Rice and Asplund principles do not apply.  The dilemma is whether variation or alteration of the interim orders could be justified because there was uncertainty even amongst the practitioners as to the basis upon which they were made.  That uncertainty led to the submission by counsel for the applicant that the preferred position was for the final parenting proceedings to be bifurcated because further delay was unreasonable.  I agree.

10. In discussion, I raised with all parties that the court uses a docket system and I was hesitant to infringe on the responsibilities of another judge who might be of a different view as to the management of the proceedings but, on balance, as there is no indication as to when the parenting proceedings could be heard, they should be bifurcated.  Notwithstanding the ambivalent attitude of the father, the court should give priority to the resolution of the children’s residential situation but more importantly, the resolution of relationship (if any) that they are to enjoy in the future with each of their respective parents.

11. The Family Law Rules 2004 govern the management of court hearings. Rule 1.04 provides that the main purpose of the rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case. Whilst the issue of cost to the parties was not argued in this case, bifurcation of proceedings is a matter that should be cautiously considered by the court having regard to the cost to the court of two discrete hearings.

12. Rule 1.06 provides that in promoting that main purpose, the court is required to actively manage each case by identifying and matching types of cases to the most appropriate case management procedure.  Achieving that purpose

    
    

    (Rule 1.07) requires the court to consider the promoting of the saving of costs as well as giving an appropriate share of the court’s resources to a case taking into account the needs of other cases.

13. To the extent that the court uses a docket system here, the application in a case was filed on 21 November 2016.  It was not clear why the matter was placed in the Judicial Duty List some weeks later but I have concluded that there is no reason why this determination should not be made in the absence of the judge who is otherwise controlling the case within a docket.

14. Notwithstanding the ambivalence of the respondent, all parties agreed that the parenting issue was ready to proceed subject to an updating of various expert reports.  The children have been attending a psychologist in Queensland who is not the single expert witness but is treating the children for whatever matters they currently face.  Counsel for the Independent Children’s Lawyer indicated that insofar as the applicant sought to vary the extant orders to give her more time with the children in Melbourne, that was not recommended by that psychologist.  The weight to be given to such an opinion could not be challenged on this limited hearing but it again indicates the necessity for this issue to be dealt with on a final basis as quickly as possible so that any evidence is capable of being so challenged.  It appears that a family consultant in 2015 thought that the applicant mother’s parenting capacities were appalling.  That opinion has apparently not been tested nor could it have been having regard to the limited circumstances of the hearing conducted in 2015.  It is not just the best interests of children that need to be considered here but the rights of the parents to ventilate and dispute accusations and opinions that do not favour them.  None of that has been able to be done here.  For at least over a year now, the position of the children has become settled and the parents do not agree on what should happen in the future.  That is neither fair to the children nor to the respective parents.

15. There are no authorities to which my attention was drawn in relation to the power of the court to bifurcate proceedings nor anything that precludes one judge removing an aspect of a trial from the “docket” of another judge. 

    
    

    It seems to me having regard to the nature of the proceedings that are currently the subject of a reserve judgment, Bennett J is not part heard in any way. 

    
    

    I therefore agree with the views of the parties that there is no legal impediment to that aspect being removed from her Honour’s “docket” in the circumstances. I consider it is in the best interests of the children as well as an attempt to endeavour to achieve the main purpose of the Family Law Rules for an order to be made bifurcating the parenting proceedings from the financial issues associated with the parties’ dispute. The timetable for the filing of relevant material and the setting down of the matter should therefore follow.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 January 2017.

Associate: 

Date:  18 January 2017