PETERS & ASHWOOD

[2018] FamCA 700

FAMILY COURT OF AUSTRALIA

PETERS & ASHWOOD [2018] FamCA 700

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

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Mr Peters

RESPONDENT: Ms Ashwood

INDEPENDENT CHILDREN’S LAWYER: White Cleland

FILE NUMBER: MLC 10556 of 2011

DATE DELIVERED: 11 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Pentana Stanton Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: White Cleland

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 Peters & Ashwood 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 10556  of 2011

Mr Peters

Applicant

And

Ms Ashwood

Respondent

REASONS FOR JUDGMENT

1. The father who is the applicant in the proceedings seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The proceedings relate to parenting matters with respect to the parties child, aged seven.

2. On 25 July 2018 Registrar Field 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 of these proceedings.

   2.On or before 4.00 pm on 8 August 2018 the party seeking the expedited hearing being the Applicant Father (“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 Mother (“Respondent”) and the Independent Children’s Lawyer file and serve a document indicating their 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 the Honourable Justice Johns.

   5.Unless her Honour determines otherwise, the determination of the issue of priority be heard and finalised in Chambers.

   …

3. The father emailed his Summary of Argument to my associate on 8 August 2018. The mother and the Independent Children’s Lawyer (“the ICL”) were to file their Summary of Argument by 15 August 2018. No document has been filed on behalf of the mother or the ICL.

4. These are my Reasons for Judgment in respect of the father’s application.

Background

1. The father is aged 37. The mother is aged 34. They have one child together, B aged seven.

2. On 20 March 2017 I made final parenting orders (“the Final Orders”) by consent which provide for the mother to have sole parental responsibility for the child and for the child to live with the mother. The Final Orders also provide for the child to spend time with the father on an increasing basis.  That time was to be supervised and did not include overnight time. The child’s time with the father was to be initially supervised by C Family Service, and then later supervised by a family supervisor or such other person as agreed between the parties or as approved by Ms J, psychologist. Order 7 of the Final Orders provided for Ms J to be appointed to supervise the parenting orders on a reportable basis.

3. On 31 October 2017 the father filed an Application – Contravention in the Federal Circuit Court in relation to the Final Orders. On 31 October 2017 Judge Bender transferred the matter to this Court to be listed before me on 6 December 2017 in the Judicial Duty List. The notation to that order provided:

   The matter has been transferred in accordance with the protocol of both the Family Court of Australia and the Federal Circuit Court of Australia, on the basis that the applications before the Court relate to alleged contraventions of very recent final parenting orders made by Justice Johns.

4. On 6 December 2017 I made orders that varied the times in which the child was to spend time with the father. Otherwise I made the following orders:

   …

   2.The Final Parenting Orders dated 20 March 2017 otherwise remain in full force and effect.

   3.All extant applications be otherwise dismissed.

   …

5. On 16 March 2018 the father filed an Initiating Application seeking the following final orders:

   1.        That all previous parenting Orders be discharged.

   2.That the applicant father and Respondent mother have equal shared parental responsibility for the child.

   3.That the child live with the father.

   4.That the child spend time with and communicate with the mother at such times as the Court deems fit.

   5.That the father seeks to be excused from further particularising the Orders he seeks with respect to parenting matters pending a full family report and psychiatric assessment of the Respondent mother.

   6.Such further and other Orders as the Court deems fit.

6. On 16 March 2018 the father also filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence. At Part E of that document, in relation to allegations of abuse the father alleges:

   ·    That the child has been sexually abused by a relative over several years whilst in the care of the mother;

   ·    That the mother has failed to provide the child with a safe and secure living environment; and

   ·    That the mother has failed to provide an adequate level of health care for the child whilst in the mother’s care.

7. Further, at Part F in relation to alleged risk of abuse, the father alleges that the mental health of the mother has been “questioned by the supervising counsellor for the Family Court presumably placing the child at risk”.

8. On 21 March 2018, Senior Registrar Field made orders appointing an Independent Children’s Lawyer and that Ms J provide a report to the Court in relation to her supervision of the Final Orders, including but not limited to any matters that relate to the care, welfare and development of the child. Pursuant to s 69ZW the Department of Health and Human Services (“the Department”) was requested to prepare a report. That report was received by the Court and is dated 11 April 2018.

9. The matter was then adjourned to 19 April 2018 before Senior Registrar FitzGibbon.

10. On 6 April 2018 the mother filed a Response to Initiating Application seeking that the father’s Initiating Application be dismissed.

11. Ms J prepared a report dated 18 April 2018.

12. On 19 April 2018, Senior Registrar FitzGibbon made orders by consent that varied the time the child spends with the father pursuant to the Final Orders, but that the time remain supervised by the family supervisors. Those orders provide for the child to spend time with the father as follows:

    (a)Each alternate Friday from 3.30 p.m. to 6.30 p.m. with changeover at school at the commencement of time and [Suburb K] Police Station at the conclusion of time commencing 25 May, 2018.

    (b)Each alternate Sunday from 9.00 a.m. to 5.00 p.m. commencing 20 May, 2018 with changeover to occur in accordance with Order 6 of the Orders of 20 March, 2017.

    (c)      As otherwise agreed between the parties.

13. Pursuant to the orders made on 19 April 2018 the mother is to attend upon a neuropsychologist. That day an order was also made placing the matter in the list of cases awaiting allocation to a judicial docket with priority as and from 19 April 2018.

14. The father’s lawyers filed a Notice of Ceasing to Act on 6 June 2018.

15. On 3 July 2018 the father filed an Application in a Case seeking that I determine whether the matter be expedited. The husband filed an affidavit in support of that Application in a Case.

16. On 25 July 2018 Registrar Field made orders that provided for the parties to file a Summary of Argument in respect of an application for expedition.

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. Whilst not referred to in the father’s submissions I have also considered the husband’s affidavit filed on 3 July 2018 in support of his Application in a Case filed that day seeking an expedited hearing.

2. The father deposed that on 2 February 2018 Ms J telephoned him to “express grave concerns for B’s welfare whilst in [the mother’s] care”. He deposed that Ms J had seen the mother and the maternal grandmother on 31 January 2018 and suggested that he make an “urgent application seeking a change of residence for B”. 

3. The father filed his Initiating Application seeking parenting orders on 16 March 2018.  Accordingly, I am satisfied that the father has acted reasonably and without delay in the conduct of the proceedings.

4. Following the interim hearing on 19 April 2018, the father deposes that he instructed his lawyers to make an application for expedition of the proceedings but that no such application was made on his behalf.  The father deposes that he ceased being represented on 6 June 2018. Ultimately the father filed his Application in a Case seeking expedition on 3 July 2018. In circumstances where the father initiated proceedings in this Court in March 2018, I am satisfied that he has acted reasonably and without delay in making his application for expedition.

5. The mother has not filed any submissions with respect to the father’s application. Accordingly, absent any submission to the contrary, I am satisfied that the mother would not suffer any prejudice if the proceedings were to be expedited.

6. 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).

7. The issues for determination by the trial judge centre upon whether the child is at risk in the care of her parents.  The father contends that the mother has limited parenting capacity and the child is at risk in her care.  Since the final orders were made, it has emerged that there are allegations that B has suffered ongoing sexual abuse at the hands of the maternal step-grandfather.

8. The father relies upon the report of Ms J, who was appointed pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) to provide ongoing reportable supervision of the parenting orders.

9. In the report of Ms J dated 18 April 2018 she states:

   As a result of the interview with [the mother] and [the maternal grandmother], I held serious concerns for the capacity of both to provide appropriately protective and facilitative care for [B] at this point in time. At interview, [the mother] presented as considerably emotionally dysregulated, incoherent at times and irrational. She presented as considerably physically frail. At my strong recommendation, [the mother] agreed to re-attend her medial practitioner for further assessment.

10. The observations by Ms J of the mother are deeply concerning. 

11. Following Ms J’s consultation with the mother and maternal grandmother in January 2018, Ms J made a notification to the Department as to her concerns for B.  Notwithstanding Ms J’s reported concerns as to the mother’s capacity to care for B, she notes that in her discussions with the Department, it held protective concerns about the father’s parenting capacity as opposed to the mother’s, and would not support any application for the child to live with him.

12. In the s 69ZW Report produced by the Department it is reported that Child Protection has assessed that B should remain in the primary care of the mother.

13. Ms J holds a contrary view to that expressed by the Department.  She concludes in her report that “[i]f the Court determines inter alia that [B] should reside with her father…or indeed time arrangements should include overnight time with him, I would support this”.

14. Further Ms J’s report notes that in an appointment with the mother and maternal grandmother on 31 January 2018, they reported that in January 2018 B had disclosed that the maternal step-grandfather had been sexually abusing her on an ongoing basis. The report notes that those matters were reported to Child Protection, the police were notified and that the maternal step-grandfather had left the family home.

15. In addition to the concerns raised in Ms J’s report the father makes a number of submissions in relation to the mother’s behaviour, some of which he submits was disclosed in the documents produced under subpoena, including that:

    ·    The mother exposes the child to unnecessary stress and anxiety;

    ·    The mother has contravened the court orders;

    ·    The child has missed 39 days of school in the last year;

    ·    The child has been constantly exposed to the mother’s ongoing unstable mental health issues and drug abuse;

    ·    The child is at risk in the mother’s care;

    ·    The mother had a boyfriend for six months who was an “ice addict”;

    ·    The mother attended a doctor’s appointment and left the child in the car;

    ·    The child attends appointments with the mother and “is exposed to the Mother’s narrative and adult medical content”; and

    ·    He believes the mother is abusing prescription medication “given her presentation at times and her previous misuse of methamphetamines and alcohol”.

16. I note that all of these allegations are untested.  As the mother has filed no submission in reply to the father’s allegations her position with respect to many of the allegations raised by the father is unknown.  The s 69ZW Report by the Department notes that the mother is engaged with professionals who she sees regularly and that none of the professionals have raised significant concerns for the mother’s mental health.

17. Many of the allegations raised by the father are issues which will be determined at trial following a testing of evidence.

18. Nonetheless, the observations contained in Ms J’s report highlight significant concerns in relation to the mother’s capacity to provide protective and facilitative care for the child. The evidence of Ms J, 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) and further, that the interim orders may be causing the child hardship (r 12.10A(4)(d) of the Rules).

19. There are allegations that the child has been sexually abused while in the mother’s care. The report of Ms J raises concerns as to the safety of the child in the mother’s care as well as the mother’s capacity to protect her from harm. Allegations of sexual abuse is one of the matters I may consider when determining if the proceeding should be expedited (r 12.10A(4)(f) of the Rules).

20. Having regard to the seriousness of the father’s allegations, many of which are based upon the observation and report of Ms J in her capacity as a supervisor appointed pursuant to s 65L of the Act, I am satisfied that this matter should be afforded priority to the possible detriment of other cases.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 September 2018

Associate:

Date:  11 September 2018