Nelson and Nelson

[2017] FamCA 149

FAMILY COURT OF AUSTRALIA

NELSON & NELSON [2017] FamCA 149

FAMILY LAW – PRACTICE AND PROCEDURE – Expediting final hearing.

APPLICANT: Mr Nelson

RESPONDENT: Ms Nelson

INDEPENDENT CHILDREN’S LAWYER: Madison Branson Lawyers

FILE NUMBER: MLC 5516 of 2009

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Fiona R. McGregor

SOLICITOR FOR THE RESPONDENT: Ian Robertson Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Madison Branson Lawyers

Orders

1. All extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

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 Nelson & Nelson 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 5516  of 2009

Mr Nelson

Applicant

And

Ms Nelson

Respondent

REASONS FOR JUDGMENT

1. The father in this case seeks an expedited hearing of his application for parenting orders. The father relies upon his summary of argument filed pursuant to orders made by Registrar Lethbridge on 19 January 2017. The Independent Children’s Lawyer forwarded submissions supporting the father’s application on 2 March 2017 albeit over three weeks out of time. Solicitors for the mother advised chambers on 3 March 2017 that they had not received a copy of the orders, which were emailed to them that day, and have not since filed any response.

2. The proceedings are in relation to the children B who is 11 years of age and C who is now eight years of age.

3. The children live with the mother and C spends supervised time with the father.

4. The father and mother were married in 2004 and separated in 2008 shortly before C was born.

5. The father initiated proceedings on 24 June 2009 in the Federal Circuit Court seeking final parenting orders. Following a Notice of Risk filed by the mother on 28 August 2009 alleging the father had sexually assaulted the child B, orders were made by Judge Riley on 2 September 2009 transferring the matter to the Family Court of Australia where the matter was placed in the Magellan list. On 9 August 2011 before Justice Dessau made final parenting orders by consent which provided for the children to live with the mother and spend time with the father ultimately spending alternate weekends with the father.

6. It is the father’s position that B spent only limited time with him following the final orders being made and that although C spent regular time with him pursuant to the orders she has now not spent any time with him since January 2016.

7. The father filed an Initiating Application on 3 June 2016 in the Federal Circuit Court seeking final parenting orders including that he have sole parental responsibility, that the children live with him and following a period of three months spend weekend time with the mother.

8. On 29 August 2016 orders were made by consent by Judge O’Sullivan for C to spend supervised time with the father at D Contact Centre and for Dr E to prepare a family report. An Independent Children’s Lawyer was also appointed on that date. Dr E’s report was released on 7 November 2016. On 17 November 2016 further orders were made by Judge O’Sullivan providing inter alia that the matter be transferred to this Court, that the final parenting orders made on 9 August 2011 with respect to the children spending time with the father be discharged, that the order for supervised time with the father include both children and that the parties (and the children if necessary) attend upon Ms F, Psychologist for family therapy.

Legal Principles

1. Pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”) a party may apply to expedite the first day before the 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. It is the father’s case supported by the Independent Children’s Lawyer that in circumstances where the children are not spending any time with him this matter should be given priority. He further submits that the children require finality and an end to the litigation.

2. Although there was a period of approximately 5 months between the last time C spent with him and him commencing the current proceedings, and even longer since B had spent any time with him, I am not satisfied that this delay was inordinate or is such that it would lead to the conclusion that the matter should not be given priority. that he filed his application and notwithstanding his time with B had ceased well before that date.

3. The father also relies upon the fact that if the matter is not given priority Dr E’s report may need updating which he says may not be possible given the parties respective financial circumstances.

4. The court must be satisfied that it is appropriate to give this case priority to the possible detriment of other cases. Dr E in his report identified that possibility that the children are being alienated from the father. Whether the court ultimately finds that is the case I am satisfied that it is in the children’s best interests, in circumstances where they have been the subject of litigation since 2009, that that ligation be concluded and that the children have some finality.

5. In all of the circumstances I propose to make orders allocating this matter to a judicial docket.   

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan on 10 March 2017.

Associate: 

Date:  10 March 2017