Howell and Carter

[2017] FamCA 521

FAMILY COURT OF AUSTRALIA

HOWELL & CARTER [2017] FamCA 521

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Mr Howell

RESPONDENT: Ms Carter

INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

FILE NUMBER: MLC 11211 of 2013

DATE DELIVERED: 19 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

SOLICITOR FOR THE RESPONDENT: Women's Legal Service Victoria

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

1. The father’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

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 Howell & Carter 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 11211  of 2013

Mr Howell

Applicant

And

Ms Carter

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The father, who is the applicant in this case, seeks the expedition of the trial management hearing of his application for final orders pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is opposed by the mother.

2. The proceedings concern the parenting arrangements for the child of the relationship X born in 2011 (aged five) (“the child”) and have a lengthy procedural history. The proceedings were commenced by the father on 20 December 2013. Interim orders were made in the Federal Circuit Court on 9 December 2015 which provided for the mother to have sole parental responsibility, for the child to live with the mother, for the father to spend supervised time with the child and for the father to engage in a Men’s Behaviour Change program, drug and alcohol counselling, a neuropsychological assessment, a psychiatric assessment and counselling in relation to multi-cultural issues. A final hearing was due to commence on 6 October 2016 but was vacated following the father’s unsuccessful application to have the Independent Children’s Lawyer discharged.

3. The matter came before Registrar Marrone on 3 May 2017 and orders were made for the parties to file written submissions in support of any application for a priority hearing.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. As set out in the Rules:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  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.

Discussion

1. In support of his application for priority the father submits in summary as follows:

   ·    that the matter has been before the Federal Circuit Court on at least 16 separate occasions and there are no final orders;

   ·    that although the Family Reports support the father having a relationship with the child the parties have already used their allocated supervised visits at B Contact Centre and have been advised that they are unlikely to be accepted for further supervised visits at M Contact Centre as a consequence of which the father has not communicated or spent time with the child since March 2017; and

   ·    that it is in the child’s best interest that there be an early resolution to this matter, considering that it has been ongoing for some years.

2. The mother opposes the expedition of the final hearing on the following grounds:

   ·    the father has not acted reasonably and without delay;

   ·    the father has failed to comply with previous Court orders;

   ·    that the matter was listed for final hearing in October 2016 but did not proceed on that date because of the father’s unsuccessful application to discharge the Independent Children’s Lawyer;

   ·    there is no prejudice to the father and a further delay is not likely to be detrimental to the current relationship between the father and the child as the father has not presented any new evidence as to his circumstances having changed;

   ·    the child is thriving in the mother’s care and there is no risk of harm to the child in her care; and

   ·    the outstanding issues in this case may be resolved by way of family dispute resolution in the near future.

3. I am not satisfied that the father has pointed to any factors that persuade me that the matter should be afforded priority to the detriment of other cases. In addition, I have grievances about the father’s conduct in these proceedings and am not satisfied that he has acted reasonably, or even appropriately. Although these proceedings have been on foot for a number of years, it appears at least with respect to the final hearing listed to commence in October 2016 that the father has been the author of the delay. In his reasons for judgment delivered on 2 March 2017, Judge Wilson said the father’s application to have the Independent Children’s Lawyer discharged “smacked of a litigant being dissatisfied with the judge’s determination and that the litigant is now blaming the [Independent Children’s Lawyer] for the result.” Had the final hearing proceeded on 6 October 2016 as listed, it is reasonable to assume that the matter would have been well and truly heard and determined by now.

4. The mother also points to the father’s non-compliance with the orders made 8 December 2015 with respect to his attendance at a Men’s Behaviour Change Program. I am not in a position to make findings with respect to this or any other issue. However, assuming that the mother’s submission is correct, such failure to comply on the father’s part is a relevant factor particularly when it comes to weighing up this case against those other cases awaiting a final hearing.

5. While it is undoubtedly desirable for matters to be resolved at the earliest possible date, giving parties an opportunity to move forward with their lives, and this matter has been on foot in the Federal Circuit Court for some time, the fact that matters are transferred to this Court does not guarantee them being given priority over other matters commenced in this Court.

6. Whilst I am satisfied that there may be some prejudice to the father and the child, subject to whether the Court determines it is in his best interests to spend time with the father, unfortunately there are many cases in which that is the case and there is in my view nothing in this case that stands out that would warrant this matter being given priority over other matters awaiting hearing.

7. I am also mindful of the fact that the parties are engaging in family dispute resolution and have attended intake sessions at Legal Aid for this purpose.

Conclusion

1. In the circumstances, I am not satisfied that the matter should be afforded priority to the detriment of other cases which are similarly awaiting hearing. I propose to dismiss the father’s application for an expedited hearing and the matter will remain in the list of cases awaiting allocation to a judicial docket.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 19 July 2017.

Associate:

Date:  19 July 2017