Morrissey & Morrissey

[2008] FamCA 361

FAMILY COURT OF AUSTRALIA

MORRISSEY & MORRISSEY [2008] FamCA 361

FAMILY LAW – PRIORITY HEARING – application granted.

Family Law Act 1975 (Cth)

APPLICANT: MR MORRISSEY

RESPONDENT: MRS MORRISSEY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 3488 of 2007

DATE DELIVERED: 7 MAY 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: PERRY WESTON

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

HARDY’S LAWYERS

Order

1. That all extant applications be placed before Registrar Kaur on Friday 16 May 2008 at 9.30am for procedural orders to be made and a mention date to be fixed before a judge whereupon the matter be given a final hearing date.

2. That my reasons for judgment this day be placed on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC3488 of 2007

MR MORRISSEY

Applicant Husband

And

MRS MORRISSEY

Respondent Wife

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 23 August 2007 in the Federal Magistrates Court at Dandenong seeking parenting orders and also injunctions to preclude the wife removing the children from the jurisdiction.

4. There is one child of the marriage of the parties, T, who was born in May 2003 and who is therefore four years of age.  The mother has two other children M who is aged 11 and H who is five.  It seems common ground that M and H are not the children of the father.  H however, was born during the relationship between the parties. 

5. The wife responded to the husband’s application filed in Dandenong seeking that she have residence of the child J and that the father’s time with J be reserved.  It is important to note that at that point in time, she was already living in Queensland with the children.  Notwithstanding her suggestion of reserved time, she proposed that the father have half of the Queensland term holidays, two weeks during the summer holidays, regular telephone communication and that the parties otherwise share the costs of travel.

6. When the father filed his affidavit in August 2007, he said that statements made by the wife about him were false.  He said she took out intervention orders against him “in defence of her own violent outbursts”.  Despite the intervention orders, he said they stayed together at least fortnightly.  He then detailed allegations of violence against the wife.

7. The wife filed an affidavit on 19 October 2007 and described a troubled history between the parties.  The allegations and assertions of abuse were general.  She referred to an assault upon her own child by the husband in 2004 as a consequence of which, the police were involved and separation between them occurred permanently.  An intervention order followed in March 2007 from the Magistrates Court in which the wife and all three children were named as aggrieved family members.  That order subsists.

8. The husband said that he had time with J who was then four years of age.  The wife asserted that the threats and abuse continued despite the separation but in any event, she allowed all three children to go overnight “to see how he (as distinct from they) would cope”.  During the first period overnight, one child was injured from a fall.  Subsequently, but at an unspecified time and date, the wife said that the husband breached the intervention order and assaulted her.  According to her, this precipitated her move to Queensland. 

9. There was also an allegation of abuse that gave rise to the matter being transferred to this Court for the purposes of inquiry as to whether it would fit within the Magellan list but that inquiry established that the case was not appropriate as a result of the wife not making the allegations that she had earlier. 

10. Looking therefore at the history of the parties and their approach to orders relating to time between the husband and at least J, it should be seen that on 4 December 2007, the parties consented to an order that J live with the wife and that there be communication by telephone on two occasions per week.  Most importantly, there was an agreement that the husband have J for one week during the January-February 2008 holiday period providing his partner was in substantial attendance. 

11. The matter was then transferred to this Court and came before a registrar on 17 March 2008 at which time, the parties consented to the husband having a further week of time with J.  The matter was then referred to the Senior Registrar who on 15 April 2008, made orders referring the matter to me for the purposes of a priority hearing consideration.  Importantly however on that day, the parties consented, with the blessing of an Independent Children’s Lawyer, to significant periods of time between the husband and J. 

12. Whilst it was clear that the priority hearing was going to be sought by the husband, the parties agreed on significant contact and it seems to me that there can no longer be any suggestion of any concern about protection of J or the husband’s capacity to care for her at least on a short term basis.

13. The applicant for the expedited hearing says that despite what I have outlined about, the wife’s failure to attend hearings has resulted in delay.  That is a little hard to follow.

14. It is asserted by the husband that the wife was well aware of the orders made on an ex parte basis in August 2007 restraining her from removing the children from Victoria at the time that she moved.  Notwithstanding that assertion, the wife and children have now been settled in Queensland for a period of some eight months.

15. The husband further submits that had the proceedings remained in the jurisdiction of the Federal Magistrates Court, it is likely that a final hearing would have been set for the middle of 2008.  He says that the allegations made by the wife created that delay. 

16. The husband said that he had a close relationship with the children spending time with them each alternate weekend and that as a result of the relocation, the children who are not his biological children, have been denied any opportunity to spend time with him or communicate with him.  He says that his relationship has therefore been undermined and damaged.  Finally, the husband says that the continuation of the current interim orders will cause hardship for the children because they are residing in a remote location without ready access to important services such as schools, hospitals and medical treatment.  The husband says that that will compromise the children’s academic progress as well as harm to his relationship.

17. The mother did not respond to the priority application and has filed no further material.

18. The Independent Children’s Lawyer supports the husband’s application.  He says the question of the return of the mother is an issue but having regard to the period of time that the children have been in Queensland and the father’s application is to seek time with the children, that seems somewhat doubtful.  The Independent Children’s Lawyer expresses concern about the separation of siblings and that that issue needs to be resolved.  He points to the fact that there is considerable dispute about the evidence and it needs to be tested.  According to the Independent Children’s Lawyer, an expedited hearing would give the opportunity for certainty and stability in the children’s lives.

19. 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.

20. The special reason that entitles this matter to an expedited hearing is the fact that there are untested allegations and the tyranny of distance is giving rise to the separation of at least one of the three children from the husband.  Notwithstanding those siblings are not the biological children of the husband, it is clear that he had a relationship with the second of those two children immediately from the child’s birth.  It is important to understand that the husband is seeking to spend time with the children in circumstances where his own biological child seems to be having a relationship with him both face to face and by telephone for considerable periods of time without restriction.  The separation of siblings during that period therefore is a serious issue and warrants early attention. 

21. Accordingly I propose to grant the application.

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:  7 May 2008