Murdoch and Murdoch

[2010] FamCA 1115

FAMILY COURT OF AUSTRALIA

MURDOCH & MURDOCH [2010] FamCA 1115

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited first day of trial

Family Law Act 1975 (Cth)

APPLICANT: Mr Murdoch

RESPONDENT: Ms Murdoch

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10073 of 2009

DATE DELIVERED: 8 December 2010

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: PEARSONS BARRISTERS & SOLICITORS PTY LTD

SOLICITOR FOR THE RESPONDENT: ROCHELLE BELCHER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

Orders

1. That the wife’s application for an expedited first day of trial is dismissed.

2. That by 4 pm on Friday 17 December 2010, the husband through his solicitor write an open letter to the solicitors for the wife and also the Independent Children’s Lawyer indicating whether the orders he is still proposing are those set out in his application filed 12 March 2010 and if they are not, what orders he is seeking.

3. If the husband seeks to maintain his extant application, the wife have liberty to reapply immediately for a priority hearing.

4. If the husband does not provide any indication as set out in paragraph 2 above, the wife may presume that no alteration has occurred in the husband’s position and the wife may then rely on paragraph 3 hereof.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10073  of 2009

MR MURDOCH

Applicant

And

MS MURDOCH

Respondent

REASONS FOR JUDGMENT

1. The wife seeks an expedited final hearing of proceedings for parenting orders and property division. The husband opposes the expedition. The Independent Children’s Lawyer does not oppose the expedition order.

2. In this case, I propose to refuse the application for the reasons that follow.

3. The parenting application involves 4 children between the ages of 5 and 12 years all of whom live with the wife. The wife has repartnered. The husband is employed on a full time basis.

4. The proceedings were commenced in the Federal Magistrates Court on 12 November 2009 when the husband filed an application for parenting orders. Specifically, he sought time with the children from 4 pm Friday to 4 pm on Saturday.

5. On 27 November 2009, the wife filed a response agreeing with the parenting orders sought by the husband but seeking property division orders herself.

6. The matter came before Walters FM on 18 November and obviously, the wife had not filed her response. Walters FM set a final trial date of 13 September 2010 but also ordered a family report, and an independent children’s lawyer be appointed. The record does not indicate why that was necessary.

7. On 12 March 2010, the husband filed an amended application and sought that the children live with him. That seems a remarkable turn of events having regard to the professional opinions of experts that were yet to come.

8. A psychiatric examination of the husband was ordered.

9. Dr E was the appointed psychiatrist and he described the husband as having little insight into the needs of the children; hardly a supportive witness for the husband.

10. The appointed psychologist was Dr N. She suggested the children should spend alternate weekends with the husband but she too had little of a complimentary nature to say of the husband concerning his parenting. One must conclude that Dr N’s concerns about the husband were not sufficient to recommend that there be no time spent with the children. Again, I make the observation that Dr N was hardly a supportive witness of the husband if his application as I have described it was genuine.

11. On 7 May 2010, the matter came on again before Walters FM.  His Honour had access to the relevant materials and for reasons which I am unable to discern, the applications were transferred to this Court. His Honour made orders by consent of the parties giving interim time with the children to the husband from Friday to Monday in alternate weeks.

12. The matter came before this Court and financial issues were canvassed at a conciliation conference in October. Apparently, the case did not settle.

13. The wife now seeks an expedited hearing. In a long written submission, her solicitor said:

    ·There were four children one of whom is significantly autistic;

    ·Dr N’s report expressed concerns about the husband (but then did not recommend a cessation of the husband’s time)

    ·The wife had significant concerns about the husband (but these too seemed to have been picked up in the professionals’ reports);

    ·The husband had no insight into the needs of the children;

    ·The wife’s care of the children was being impacted upon by the “situation continuing” (yet she consented to the May 2010 orders);

    ·The husband’s behaviour placed strain on the wife’s new relationship (but that does not impact upon the parenting orders currently extant);

    ·The wife is under enormous emotional and physical pressure exasperated by the unresolved case;

    ·The transfer and consequent delay was not the fault of the wife.

14. The husband’s response simply referred to the lack of prejudice by the delay and the parties had to attend a parenting program. However and somewhat cryptically, the husband said:

    The husband has time with the children. The wife has “live with orders” on an interim basis. There is certainty for the children with the interim orders for both parties and the wife has the final decision on health should there be a disagreement.

15. The husband did not address any of the matters in paragraph 13 above. He did not address any of the concerns expressed by the experts. He did not indicate that his application filed on 12 March 2010 was not what he was seeking. His only position seemed to be that all was currently well. He suggested that Walters FM transferred the case to this Court for “case management”. That is hardly a basis for transfer and I doubt whether that was what his Honour would have done.

16. I am very concerned that the husband’s position is unclear even if the parties are engaging in post-separation parenting programs and the “case management process” of this Court as it was described by the solicitor for the husband.

17. The Independent Children’s Lawyer in a succinct and helpful submission said that the current orders provided the children with stability and consistency and with that I agree save that she then added that the wife’s mental and physical health was crucial for the children’s well-being. She pointed to the allegations of the wife against the husband which if true would be concerning.

18. The critical issue in the determination of priority in this case is whether the husband’s position is that the children live with him or whether he is content for his future relationship with them to be something similar to what the existing orders provide. If it is the latter, there is no basis for priority because the wife consented to the status quo in the face of the experts’ reports. If it is the former then this matter should be expedited because the children are in a state of flux in circumstances where there will be a significant delay in resolution and where experts have expressed concerns about the husband.

19. I am not expressing any concluded opinion about anything here other than to observe that the dichotomy is stark and obvious. The evidence needs to be tested but the parties are also each entitled to know for the sake of the children just what position each is adopting. These are children about whose interests the Court has an obligation to protect and foster.  The posturing and tactical issues that would appear to be evident on the material are inappropriate in a parenting dispute.

20. Rule 12.10A sets out the basis on which the Court should consider granting an expedited first day before a judge. All of the matters there set out have been considered but the perplexing questions are whether the interim orders are causing hardship to the applicant or children and whether violence, harassment and intimidation has occurred. Both of those matters are relevant to the husband’s application but also affect the wife’s proposed time between the husband and the children. I am entitled also to consider whether this case is sufficiently serious to warrant it being given priority over other similar cases awaiting a trial. If the husband’s application is as would appear, I think it is such a matter. If the husband’s application is otherwise, other cases must take priority.  If the wife is of the view the existing orders are not in the best interests of the children, she is at liberty to apply for alteration of them. That has not happened to date.

21. In the circumstances, I propose to make orders refusing the wife’s application but also requiring the husband to make his position immediately clear. If the husband maintains that his position is as he has set it out, I would reconsider the priority question.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 December 2010.

Associate: 

Date:  8 December 2010