McEnroe and McEnroe

[2008] FamCA 205

FAMILY COURT OF AUSTRALIA

MCENROE & MCENROE [2008] FamCA 205

FAMILY LAW – PRACTICE & PROCEDURE – Hearings – Application for expedited hearing - Refused

Family Law Act 1975 (Cth)

APPLICANT: MRS McENROE

RESPONDENT: MR McENROE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 747 of 2008

DATE DELIVERED: 1 April 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: HARTLEYS LAWYERS

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 McEnroe & McEnroe is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC747 OF 2008

MRS McENROE

Applicant Wife

And

MR McENROE

Respondent Husband

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 father filed on 29 January 2008 seeking the discharge of orders made on 14 February 2007 under which the parties’ child, born in May 1999, live predominately with the wife but also with the husband from 5.00pm Saturday until 5.00pm Wednesday in the first week of each two weeks cycle during a school term and from 5.00pm Saturday to 5.00pm on the following Tuesday in the second week of each two weeks cycle during a school term.  Those orders were made by consent of the parties after what appears on the file to have been considerable litigation over a space of one year.  It is evident therefore that as at 14 February 2007, the parties were significantly sharing the child.

4. In January 2008, the father filed an application to discharge those orders and for the child to live with him.  The material that he filed asserted that the wife did not have the physical capacity to care for the child and there were concerns about issues of violence.

5. An examination of the file indicates that the Court did not have the benefit of any affidavit material from the wife as at 7 February 2008.  Be that as it may, both parties were represented by lawyers.  In addition to making an order for the child to be separately represented by an Independent Children’s Lawyer, the Senior Registrar made orders under which on an interim basis, the child live with the wife from the conclusion of school on Wednesday until the commencement of school on the following Friday in each week.  That was clearly an alteration to the status quo.  The significance of that order was that it was made by consent of both parties.

6. The matter returned to the Court before the Senior Registrar on 6 March 2008.  Again, both parties were represented by lawyers.  This time, the Court had the benefit of an Independent Children’s Lawyer.  In addition, the wife filed her material on 29 February 2008.  In her affidavit, she not only denied the assertions of the husband about her capacity but asserted that he was the one who did not have the capacity to care appropriately for the child.  She said that the problem had been that he had over-held the child and made reference to the fact that there had been intervention from the Department of Human Services who had spoken to her and were sufficiently satisfied about what was happening to the child to close their file.

7. The importance of the hearing on 6 March 2008 is that the time between mother and child referred to in the orders of 7 February 2008 was further reduced.  It was ordered that until further order, the child live with the wife on each alternate weekend from 10.00am Saturday until 6.00pm Sunday.  There were other ancillary orders but the significance lies in the time to which the wife consented. 

8. It should also be pointed out that the wife consented to orders that the parties have the right to seek an expedited hearing. 

9. As a consequence, an application by the wife has been made to expedite the hearing.

10. The applicant for the expedited hearing says by way of affidavit that the child has indicated to her that she wants to come home, that she misses home and that she has cried.  The wife asserts that the child is fearful of the husband.

11. It must be remembered that the child is only eight years of age and is no doubt caught in the middle of this turmoil. 

12. The wife’s submissions in affidavit form go on to say that the current orders split siblings although the older two children are from another relationship.

13. The wife refers to the fact that she is currently in receipt of a Commonwealth funded pension as a result of her disability which she described as Ankylosis Spondalytis but she goes on to say that that disability does not affect her capacity to care for the children.

14. There is a statement in the affidavit in which the wife indicates that she is willing to provide the Court with a treating doctor’s report as it is her “understanding that this is the main reason the child has been removed from my care”.  Notwithstanding that that is an affidavit of evidence, I could not draw that inference having regard to the consent orders to which I have earlier referred. 

15. The wife goes on to say that she had been the primary carer of the child and that she has concerns about the impact of the change of environment which is “vastly different from the shared care regime”.

16. In respect of the change that has occurred, the wife says:

    I do not know how the child is coping with this, whether the child is adjusting to this.

17. The respondent did not file any material in respect of the application.

18. The Independent Children’s Lawyer did not respond to any material filed by the wife.

19. The Court is entitled to draw inferences from the fact that parents who consent to arrangements similar to those that I have mentioned above are comfortable that they are in the best interests of the child.  Whilst very few parents could be said to be happy about the making of those orders, it is important to understand that the Court presumes unless there is evidence to the contrary, that the parents are saying that the orders are in the best interests of the child.  In the circumstances, I place great emphasis on the actions of the parents themselves in respect of the conduct of this litigation.

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.  The case management directions require the applicant to satisfy the Court that there are 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:  1 April 2008