Obelink and Messina

[2018] FamCA 641

FAMILY COURT OF AUSTRALIA

OBELINK & MESSINA [2018] FamCA 641

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Obelink

RESPONDENT: Mr Messina

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: DGC 944 of 2015

DATE DELIVERED: 24 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marshalls Dent and Wilmoth

SOLICITOR FOR THE RESPONDENT: Taylor Splatt and Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That 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 Obelink & Messina 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: DGC 944 of 2015

Ms Obelink

Applicant

And

Mr Messina

Respondent

REASONS FOR JUDGMENT

1. The mother and father both seek the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). Their application is supported by the Independent Children’s Lawyer. The proceedings concern parenting arrangements with respect to the parties’ child of the relationship, aged three.

2. On 4 July 2018 Registrar Jenkins made the following orders:

   1. All extant applications of all parties are adjourned to a date to be fixed before the Honourable Justice Johns to determine whether to expedite the final hearing.

   2.By 4pm on 31 July 2018, the Applicant file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.

   3.Within seven days of receipt of the Applicant's summary of argument, the Respondent and the Independent Children’s Lawyer file and serve a document indicating his or her support of or objection to the application for expedition.

   4.All parties forward the documents required by these orders by email to the associate to Justice Johns at ...

   5.Unless the Honourable Justice Johns determines otherwise, the determination of the issue of priority be heard and finalised in chambers.

   …

3. The mother emailed her Summary of Argument to my Associate on 30 July 2018. The father and Independent Children’s Lawyer each emailed their Summary of Argument to my Associate on 2 August 2018. The father’s submits that he joins the mother in requesting an expedited trial and that the “Summary of Argument of the Mother is agreed to the extent it relates to issues in support of urgency”.

4. These are my Reasons for Judgment with respect to the application for expedition.

Background

1. The mother is aged 36. The father is aged 41.

2. The parties commenced cohabitation in December 2013 and separated in February 2015. There is one child of the relationship, B (the child), aged three.

3. The parents have a long history of litigation in the Federal Circuit Court in relation to the child. The father originally commenced proceedings in April 2015.  On 1 October 2015 final parenting orders were made by consent by Judge Curtain when the child was then aged almost one year. Those orders provide for the parents to have equal shared parental responsibility for the child, for the child to live with the mother and for the child to spend time with the father on a gradually increasing basis.

4. The mother filed an Initiating Application on 1 February 2017 in the Federal Circuit Court in which she sought orders that the father’s time with the child be suspended. The father filed a Response on 14 February 2017 in which he sought orders that the mother’s application be dismissed and that his time with the child resume in accordance with the orders made 1 October 2015.

5. On 15 February 2017 orders were made providing for the child to spend time with the father.  Those orders also provided that:

   The parties shall attend upon [Mr C] or such other therapist as may be recommended by [Mr D] and agreed by the parties in writing for the purpose of unreportable therapeutic counselling to address their interpersonal dynamic and communication and follow all reasonable directions of the counsellor and provide the necessary authorisation to enable the counsellor to liaise with [Mr D], such counselling to be at the father’s expense.

6. On 30 May 2017 the mother filed an Amended Initiating Application but does not particularise the final orders she seeks. The father filed his Amended Response on 7 June 2017. The father in his Amended Response seeks, amongst other orders, that the mother’s Amended Initiating Application be dismissed and that the orders made on 1 October 2015 remain in full force and effect.

7. Further orders were made on 9 June 2017 which provided for the child to spend time with the father. Those orders also provided for the parties and the child to attend upon Mr D, psychologist for the purposes of an updated family report.

8. Mr D prepared a family report dated 20 November 2017 that was annexed to his affidavit filed on 8 December 2017.

9. Orders were made by Judge Curtain on 11 December 2017 listing the matter for trial on 27 March 2019 with an estimated hearing time of three days. Interim parenting orders were also made that day which provided for the child to spend time with the father as follows:

   (a)      each Wednesday from 10:00am to 4:00pm;

   (b)      on 25 December 2017 from 10:00am until 4:00pm; and

   (c)such other times as agreed between the parents or as recommended in writing by Dr E.

10. Those interim parenting orders also provided for the parties and the child to attend upon Dr E as and when is reasonably requested by her and comply with her reasonable recommendations for therapeutic treatment for the child and the family and in relation to further time spent arrangements between the child and the Father.  The matter was further listed for mention on 15 June 2018.

11. Mr D has prepared another family report dated 13 June 2018 which is annexed to the mother’s submissions.

12. On 15 June 2018 Judge Curtain transferred the proceedings to this Court. The Notations to that order provided:

    A. All parties, including the Independent Children's Lawyer, agree that the matter raises complex issues relevant to the child's best interests and emotional wellbeing which need determination as a matter of urgency.

    B.The evidence of the child's psychologist, Dr E and the Family Consultant, Mr D supports the need for an urgent determination of all issues.

    C.All parties intend to join in a submission to the Listing Judge of the Family Court of Australia for an expedited hearing.

13. It is most unfortunate for these parties that the proceedings were transferred to this Court on the basis that the matter required an urgent determination of the issues.  The reality is that even with priority, which I will grant in this matter, it is unlikely to be listed for trial until February or March 2019 at the earliest.  The transfer of the matter to this Court means that the fixed trial dates it had in March 2019 have been lost with no certainty that the matter will be dealt with by this Court any earlier.

14. Orders were made on 4 July 2018 by Registrar Jenkins which provided for the filing of submissions in relation to the application for an expedited 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.

2. In determining an application to expedite the first day, r 12.10A of the Rules provides that:

   (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. The mother submits that she has acted reasonably and without delay and relies on the following:

   ·That she filed her Initiating Application on 1 February 2017;

   ·That the matter was first listed on 15 February 2017 before Judge Curtain;

   ·That during the proceedings the mother has engaged with Dr E and followed her directions and recommendations;

   ·That the parties met with Mr C for the purpose of unreportable therapeutic counselling, but that counselling did not proceed;

   ·That on 15 June 2018 Judge Curtain ordered for the matter to be transferred to the Family Court; and

   ·That the mother made her application for expedition pursuant to the Rules in “the most timely manner possible”.

2. While the matter has been in the Federal Circuit Court since February 2017, I am satisfied that the mother has acted reasonably and without delay in the conduct of her case. Following the transfer of the matter to this Court, the mother has complied with the orders made for the filing of her application for expedition. I am therefore satisfied that the application for expedition has been made without delay.

3. In relation to whether the father would suffer any prejudice if the matter was to be expedited the mother submits there would be no prejudice to the father and that “it is understood that the Father agrees to seek an expedited first day hearing”. The father joins the mother in seeking that the matter be expedited and makes no submission in relation to prejudice. In those circumstances, I am satisfied that the father would not suffer prejudice if the matter is expedited.

4. Rule 12.10A(2)(d) of the Rules requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).

5. The mother submits that an expedited trial is “sought to avoid serious emotional and/or psychological trauma to the child”. The mother submits that she has observed concerning behaviours when the child returns to her care following time spent with the father and that her parents with whom she lives have also observed this behaviour. She submits that she understands at least four notifications have been made to the Department of Health and Human Services Child Protection Services by professionals. She also submits that the father says that he has not observed any of these behaviours whilst the child is in his care. Ultimately these issues remain untested and are matters for consideration of the trial judge.

6. In support of her submissions, the mother annexes to her Summary of Argument the family report by Mr D dated 13 June 2018 and relies on parts of that report. In particular she relies on paragraphs 8, 9 and 25. Those paragraphs read as follows:

   8. Following these observations, I highlighted the importance of psychological intervention, and the need to conceptualise of [the child's] behaviour not through the eyes and beliefs of his parents, but through his eyes; I made the very strong recommendation that priority should be given to psychological treatment with [Dr E] and that in my opinion, [the mother] and [the father] should take on board completely and comprehensively what [Dr E] had to say, her treatment recommendations and that they should follow her directions unwaveringly. I strongly suggested that they needed to follow a consistent and predictable plan, regardless of whatever disadvantage they felt or perceived for themselves, and that [the child's] needs exceeded them and their needs. I expressed my deep concern that with the passage of time, [the child's] predicament seemed only to have worsened, amidst ongoing concerns regarding his developmental trajectory. I remained concerned about the impact on his level of continuing stress on his brain architecture

   9.[The child’s] presentation is as disturbed as I have observed in a child of this age. The competing narrative from [the mother] and [the father] is confusing; the more recent observations of [the child] in the company of his parents was not. My view was, and continues to be, that the prognosis for [the child] is poor in the extreme unless there can be dramatic intervention.

   …

   25. As a matter of priority, action needs to be taken. It sadly, appears to me that the child is not able to live in the middle space with his parents, and will consequently need to reside with one and have, for a significant period, restricted, and probably no contact with the other, in order to allow him to emotionally regulate.

7. The father also relies on paragraph 9 of that report and submits:

   The issues concerning the child need to be determined as a matter of urgency and it is submitted the observations of [Mr D] in paragraph 9 of his report dated 13 June 2018 are reason enough to support the exercise of discretion in favour of an expedited hearing…

8. The Independent Children’s Lawyer submits that the observations of the child by Mr D “raise concerns for the child’s emotional and psychological health if this matter is not dealt with expeditiously”.

9. Mr D’s observations about the impact of continuing stress on the child’s brain architecture is deeply concerning. Further the observations that the child’s presentation is “as disturbed” as Mr D has observed in a child of his age support the position of the parties that this matter be afforded priority. Mr D has worked as a Clinical Psychologist since 1988 and regularly prepares reports for this Court. While his evidence is presently untested, his observations raise serious concerns for the welfare of the child.

10. The mother also relies on parts of a letter dated 22 March 2018 provided by Dr E who has provided therapeutic treatment for the child since October 2016, to his referring General Practitioner. In that letter, Dr E refers to the child’s anxiety and that the child’s anxiety disorder is largely generated by the split between the parents whereby the father denies “any anxiety whatsoever in his presence” and that the mother “reports anxiety associated with situations such as, but not limited to, separation, getting his hands dirty, and sleeping”. Ultimately Dr E ceased treatment of the child, having concluded that mental health treatment is not viable for him and has been terminated in circumstances “where the child’s mental health is victim to the adversarial relationship between the parents” and treatment is “likely to be counterproductive”.

11. While the parents’ different views in relation to the child’s anxiety and the observations of Dr E are as yet untested, they highlight the adversarial relationship between the parents and the impact of this on the child. The Independent Children’s Lawyer also relies on Dr E’s concerns in relation to the impact of the proceedings on the child’s mental health given the adversarial nature of the parents’ relationship.

Conclusion

1. I am satisfied that this matter should be afforded priority to the possible detriment of other cases. The evidence of Mr D and Dr E, while untested, supports a finding that an expedited trial may protect the child from serious emotional or psychological trauma or limit such trauma (r 12.10A(4)(g) of the Rules).

2. This matter has had a long litigation history in the Federal Circuit Court, and it is necessary for the proceedings to come to a conclusion to ensure orders are made that are in the best interests of the child.  Mr D opines in his report that unless there is dramatic intervention, the prognosis for the child is poor in the extreme.  Having regard to those matters, I am satisfied that it is appropriate that this matter be afforded priority to the detriment of other matters.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 August 2018

Associate: 

Date:  24 August 2018