Richards and Richards

[2013] FamCA 2

FAMILY COURT OF AUSTRALIA

RICHARDS & RICHARDS [2013] FamCA 2

FAMILY LAW – PRACTICE AND PROCEDURE - Priority application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Richards

RESPONDENT: Ms Richards

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1099 of 2010

DATE DELIVERED: 14 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way of Written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Westminster Lawyers Pty Ltd

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. That the application for a priority hearing is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Richards has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1099  of 2010

Mr Richards

Applicant

And

Ms Richards

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are parenting proceedings in this Court for which an application for a priority hearing to list the matter before a judge as a first day have now been sought. 

2. The proceedings between the parties began in February 2010 at which stage, the three children of their relationship were aged 9, 7 and 6 years respectively.  The parties managed to compromise their dispute by final orders by consent in May 2010.  It is clear from the wording of those orders that the arrangement was to be therapy-based. 

3. The consent orders seemed to enable the parties to avoid litigation until May 2012 when the husband filed a contravention application.  That application was filed in the Federal Magistrates Court of Australia but it was adjourned at the request of the parties to an indefinite date because of the therapy arrangements involving the children.  I note that the contravention application is still alive.  In my view it should not be.  The parties either bring the contravention application or it should be withdrawn.

4. In August 2012, notwithstanding the extant contravention application, the husband filed an application in the Federal Magistrates Court seeking the splitting of the children and that otherwise, the parents have equal shared parental responsibility.  The wife filed a response to that application simply seeking that the husband’s application be dismissed. 

5. In September 2012, the extant applications (and therefore including the contravention application) were transferred to this Court.  It was clear though that the parties were to attend upon Mr V a psychologist for the purposes of some sort of report.

6. The submission seeking priority said that the Federal Magistrate deemed the matter urgent and complex but I also note that the parties consented to the transfer and no reasons were otherwise given by the learned Federal Magistrate.

7. In November 2012, the matter came before a registrar whereupon it was adjourned to me to be determined in chambers based upon written submissions as to whether to be expedited. 

8. The husband’s submission which was largely supported by the wife although factually disputed, was that there is some urgency about the matter because of the dysfunctional nature of the arrangements.  I note however that the parties are attending upon Mr V and Dr B but none of those appointments can take place until February 2013.  Having regard to the fact that the parties have had a long history of professional assistance, it seems to me that this is another pathway that they should complete before the Court intervenes. 

9. On the material I have read, the current arrangement for the husband is to spend alternate weekends from Friday evening until Monday morning with the children and he has additional time after school.

10. The submission of the solicitors for the husband was that given the history and the circumstances of the matter, it warranted priority.  That priority means it would be given a hearing ahead of other matters and therefore would need to have greater urgency than those cases.

11. Rule 12.10A(1) provides that a party may apply to expedite the first day before a judge and upon considering that application, the Court may take into account a number of matters set out in sub-rule (2).  Of the matters there set out, there can be no suggestion of any prejudice to anybody nor has there been any delay.  The rule indicates that the Court may consider whether there is a relevant circumstance justifying the Court giving priority to the possible detriment of other cases.  Relevant circumstances are defined in sub-rule (4) to include a number of matters.  There can be no doubt in this case that there are considerable difficulties for the parties in endeavouring to solve their problems but that is consistent with many cases particularly involving children.  One of the considerations that is relevant is whether the continuation of interim orders is causing the applicant or child hardship.  There is no suggestion of any difficulty being caused to the applicant and certainly no suggestion that any of the children is at risk of physical or emotional harm.  Another consideration is 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.  This case has a torturous history before the courts which indicates that if the parties cannot resolve the matter with the assistance of professionals, the Court may have to intervene and take over the responsibilities of decision-making for the parties.  Be that as it may, there is no suggestion here that anything has changed since 2010 when the proceedings were concluded.  If anything, the dispute has raged further.  The parties indicated to a registrar that they were not in a position to proceed immediately until such time as they had reports.  In my view, it would be more appropriate for the parties to place their cases before the Court in evidentiary form and then have the experts comment upon it rather than the other way around.  However that is not what has occurred here and the parties are consulting with a psychiatrist and a psychologist.  If the recommendations of those experts are not adopted by one or both of the parties, a further application can then be made to the Court for the matter to be expedited.  At this stage however, having regard to the history of the matter, I see no reason why these parties should be given priority ahead of any other case in the Court’s list.  The application for priority is therefore refused.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2013.

Associate: 

Date:  14 January 2013