Richard and Briar

[2010] FamCA 828

FAMILY COURT OF AUSTRALIA

RICHARD & BRIAR [2010] FamCA 828

FAMILY LAW – PRACTICE AND PROCEDURE – Expedited hearing – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Richard

RESPONDENT: Ms Briar

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5660 of 2010

DATE DELIVERED: 17 SEPTEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 17 SEPTEMBER 2010

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: FORTE FAMILY LAWYERS

SOLICITOR FOR THE RESPONDENT: LAMPE FAMILY LAWYERS

Orders

1. That the application of the husband filed 24 June 2010 and the application in a case of the wife filed 29 June 2010 be adjourned for a first day hearing before the Honourable Justice Dessau at 11.00am on 28 October 2010.

2. That the file be delivered to Coordinating Registrar Field to arrange for the delivery of any information to the parties as to the way in which the first day hearing will be conducted.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5660  of 2010

MR RICHARD

Applicant

And

MS BRIAR

Respondent

REASONS FOR JUDGMENT

1. Rule 12.10A of the Family Law Rules 2004 provides for the expedition of a case upon application.

2. Mr Richard (“the husband”) and Ms Briar (“the wife”) have been litigating about their son who is aged eight years for over four years.

3. On 7 November 2008, final orders were made by the Honourable Justice Dessau under which the child was to reside with his father and spend time with his mother.

4. On 24 June 2010, the husband filed an application seeking to discharge the 2008 orders and replace them with an order that the child spend time with his mother at a contact centre under supervision.

5. On 29 June 2010, the wife filed an application in a case seeking enforcement of the 2008 orders.  A plethora of affidavits has been filed by both parties.

6. On 5 July 2010, Senior Registrar FitzGibbon ordered that the child’s interests be represented by an Independent Children’s Lawyer.

7. On 2 September 2010, Senior Registrar FitzGibbon suspended the 2008 orders or parts thereof, and ordered that the wife spend time with the child at a contact centre.  The Senior Registrar also ordered that all applications for final hearing be adjourned to a list awaiting a judge determining them.  He also however provided that I determine the question of whether or not the final hearing should be expedited. I have read the material in the submissions of the husband and the Independent Children’s Lawyer. The wife did not file any such material.

8. The parties have attended upon psychologist Ms D and an affidavit was filed by the Independent Children’s Lawyer setting out her views.

9. Apart from some brief material not otherwise canvassed in the affidavits, it would appear that this case is ready for a determination before a judge.

10. The husband filed his application within the time prescribed by the orders of the Senior Registrar.  In essence, the request for an expedited hearing was on the basis that there is observable regressive behaviour in the child.  He also relied upon a clinical psychologist Dr V.  That material is also on the court file.

11. The proceedings in 2008 were comprehensive culminating in a judgment and orders which were not the subject of appeal.

12. The material before the Court does not appear to be unrelated to the issues canvassed before Dessau J in 2008. It would be sensible in those circumstances for her Honour to examine the details of these proceedings having regard to the background of 2008.

13. Rule 12.10A provides that in expediting the first day before a judge, the Court can take into account questions of delay and prejudice. In this case it seems to me that the husband has acted reasonably to bring the matter before the Court and there is no prejudice to the respondent whose time with the child has been severely curtailed. It is therefore in her interest as much as it is in the child’s to have the matter resolved. In the circumstances it seems to me appropriate that the matter should be placed before Dessau J for a first day and I appoint 11.00am on 28 October 2010 accordingly.

14. Because of the various affidavits on the file, I do not propose to order the filing of questionnaires or any other material as her Honour will have access to all of that together with the affidavit of Ms D.  It will be a matter for Dessau J as to what she does with the case thereafter.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 September 2010.

Associate: 

Date:  17 September 2010