Schmidt and Arlesworth

[2008] FamCA 20

FAMILY COURT OF AUSTRALIA

SCHMIDT & ARLESWORTH [2007] FamCA 20

FAMILY LAW – CHILDREN – With whom a child spends time – Application by father for expedited hearing – Application refused

Family Law Act  1975 (Cth)

APPLICANT: MR SCHMIDT

RESPONDENT: MS ARLESWORTH

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 3135 of 1999

DATE DELIVERED: 21 JANUARY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Schmidt & Arlesworth

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF3135 OF 1999

MR SCHMIDT

Applicant Father

And

MS ARLESWORTH

Respondent Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders/financial issues.

3. The proceedings began with an application by the father filed on 18 September 2007 seeking that he be able to spend time with the son born in October 1995.

4. The respondent filed material on 16 October 2007 seeking that the father have no “contact” with the child. 

5. On 16 October 2007, Registrar Field made an order for the appointment that the child be represented by an Independent Children’s Lawyer.

6. On 4 December 2007, Senior Registrar Fitzgibbon adjourned the matter to a date to be fixed for a priority hearing but otherwise dismissed the interim applications.

7. As a consequence, an application by the father has been made to expedite the hearing.

8. The applicant for the expedited hearing says that prior to an incident in September 2005, he enjoyed a very good and loving relationship with the child.  He expresses remorse about that incident.  He says that an expedited trial would avert any further serious emotional or psychological trauma to the child.

9. The respondent to the application for the expedited hearing is the mother.  According to a letter dated 18 January 2008 from the Independent Children’s Lawyer, the mother has indicated that she did not receive the orders that I made on 17 December 2007.  Notwithstanding that, I think I have sufficient information based upon the father’s application and the material that I have read together with the Independent Children’s Lawyer’s views to make a determination in the matter. 

10. The Independent Children’s Lawyer says that the child continues to express a strong wish not to have any contact with his father and that was a statement repeated as late as 17 January 2008.  The Independent Children’s Lawyer’s view was that the father’s application to spend time is causing the child serious distress and trauma.  That gave rise to a submission that it is in the interests of the child for the proceedings to be expedited as soon as possible and that as a consequence, there are exceptional circumstances.

11. I very much appreciate the dilemma that this little boy faces having to wait for an outcome but that is not the test. 

12. The child was struck by the applicant in September 2005.  The applicant was charged and convicted by a court of recklessly causing injury.  The parenting dispute then proceeded in April 2006 before Bennett J on an undefended basis.  No doubt, the child was entitled to presume that there was to be no contact with his father thereafter.  Whether I grant an expedited hearing or otherwise, the child will face the prospect of the distress of a hearing.  By expediting the hearing, all I would be doing is truncating that distress in some way.

13. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases.  The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given.  “Special reasons” means what it says namely something unusual or out of the ordinary.

14. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 January 2008