Shoretsky and Shoretsky

[2014] FamCA 265

FAMILY COURT OF AUSTRALIA

SHORETSKY & SHORETSKY [2014] FamCA 265

FAMILY LAW – Parenting – priority application – Application in Federal Circuit Court and adjourned various times – Respondent wife fails to comply with orders for filing response – Husband having no contact – Significant allegations of family violence – Family report recommends “reservation” of husband’s time – Discussion about inappropriateness of reserving time – Application for priority refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Shoretsky

RESPONDENT: Ms Shoretsky

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 390 of 2013

DATE DELIVERED: 16 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 April 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

1. That the application in a case filed 2 April 2014 is dismissed.

2. That all outstanding applications are adjourned to a date to be fixed for listing before a judge for trial.

3. That the wife file and serve a response by 4.00pm on 2 May 2014.

4. That the comprehensive reasons for the refusal of the priority application this day be given as soon as practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shoretsky & Shoretsky 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 390  of 2013

Mr Shoretsky

Applicant

And

Ms Shoretsky

Respondent

REASONS FOR JUDGMENT

1. By written application filed on 2 April 2014, Mr Shoretsky sought an order that his application now in this Court be expedited to a first day before a judge.

2. On 16 April 2014, I refused the application indicating briefly then why and making other orders particularly in relation to the obligations of the wife Ms Shoretsky. I said at the time that because of other matters, I would give the parties some more comprehensive reasons. These are those reasons.

3. Mr and Mrs Shoretsky were married in 1988 and three children were born thereafter. B is 14, C, 10 and D, 8. All three children live with their mother.

4. The parties separated in May 2011. There were problems between the parties after that because the Suburb E Magistrates Court made a family violence order in November 2012. The husband consented to an order without any admission as to the complaints of the wife.

5. On 22 January 2013, the husband (assisted by a solicitor from Victoria Legal Aid) filed an application in the Federal Circuit Court for parenting orders.  Perhaps surprisingly having regard to the state of the relationship between the parties, he asked for equal shared parental responsibility. In essence, he then sought limited time with the children thereafter.

6. On 14 March 2013, the matter came before Connolly FM (as his Honour then was). Interestingly, both parties were represented. The wife had not filed any responding material. That day has some significant impact on my determination. Connolly FM simply adjourned the matter to 5 August as a duty list matter (that is, it was not expected to proceed as a contested final hearing) and otherwise made orders in terms of the minutes that were drawn by the parties’ lawyers. The husband consented to the children living with the wife and that both parents enrol at a contact centre so that the husband could have “supervised” time with the children. The order which I again stress was drawn by the lawyers then read:

   That supervised time at the contact centre not commence without the written agreement of the parties or order of the Court.

7. The wife was required by the order to file a response within 7 days. She never did. Her explanation before me was that she had to care for her mother who suffered dementia and then of course, she had the children. She said she went to lawyers but they were going on holidays and could not see her for 6 weeks and ultimately, she was too busy. She now understands that absent some proper indication as to what she sees as appropriate orders, the Court is bereft of another side to the complex story. For that reason, the order now requires her to immediately file a proper response.

8. In August, the husband appeared by counsel but there was no appearance of the wife. The Court adjourned the proceeding and required the wife to attend on the return date. Rather than suggest that if she did not appear, the Court might proceed in her absence, the Court indicated she might be arrested.

9. On 3 September 2013, the husband appeared, represented by his solicitor, and the wife appeared in person. A family report was ordered and again, the wife was ordered to file a response. She again failed to do so. The orders appear to have been drawn by the lawyer for the husband and include a specific order that the wife attend a conference of a mediation type under the auspices of Victoria Legal Aid. With the hindsight of the family report, the wisdom of that sort of conference would seem questionable. There are concerns raised by the family consultant about the mental health of the husband let alone serious family violence.

10. The case came back before Judge Connolly on 7 November 2013 at which time, the husband was without legal representation; but so was the wife. His Honour adjourned the case for a week and ordered the appointment of an Independent Children’s Lawyer.

11. On 14 November, presumably because the wife was ill, the case was adjourned again but this time to 28 January 2014. What is concerning is that there is no suggestion that the case was being set down for trial. Equally concerning is the fact that despite having had the various appearances with legal representation, no application seems to have been made for any interim determination. Again, with the wisdom of hindsight, it may have been an unsuccessful application but that is not to the point.

12. When the case returned to Judge Connolly on 28 January 2014, it was transferred to this Court without any specific request for priority but with the notation that the husband’s “capacity” to conduct the litigation was “somewhat uncertain”. No interim application was made by either party but if it was, it is not noted anywhere in the file.

13. Thus, it can be seen:

    (a)The parties had been separated, by the end of 2013, for 18 months;

    (b)The case had been before the Federal Circuit Court 6 times and no doubt used up a lot of resources regardless of who, of the parties, was at fault.

14. The transferred file was given an urgent mention as set out above.

15. Before me, both husband and wife appeared without legal representation and both with interpreters. The wife did not need her interpreter and although the husband said he did, he spoke fluently in English when he did not seem to be getting what he wanted. I asked the husband’s interpreter to literally translate what he was saying because she told me she was having difficulty understanding what he meant. It was not a cultural problem. It seems that the interpreter was indicating that the husband’s thought processes were not clear and that is something that troubled the family consultant.

16. Whilst the husband said that he was a good citizen and had a right to his children, there was nothing in his affidavit that would enable me to say that this case was urgent other than that he had not seen the children now since separation.

17. In the family report, the writer recommended the husband’s time with the children “be reserved”. I am not entirely clear what that means. On the basis of the report, it sounds like a euphemism for an injunction precluding contact.  Whilst reservation of time might also mean the reservation of a right to resume stalled litigation, absent some vexatious litigant order, parents may bring applications at any time.  If reservation means no time, the Court (and indeed the expert) should say so.  The other potential problem with reserving contact or time is that absent an injunction, there is nothing to preclude a parent attending any place where his children might be.  It seems that the family consultant was saying that, at least for the moment, no contact should be taking place.  If so, “reserving” time does not achieve that end.  Thus “reservation” of contact as a concept should be discouraged. 

18. The basis of the concerns of the family consultant were that on what she saw, read and heard, there were significant family violence concerns and the wife was protecting the children. The family consultant thought the prognosis in relation to the husband’s mental health was poor. She set out why she thought that so. The children were described as “ambivalent” about their father which she thought was reflective of emotional harm to them.

19. All of this evidence needs to be tested and the husband needs to have his day in court. His evidence in the originating affidavit sits in stark contrast to that observed by the family consultant. On any view of the present evidence before the Court, the type of orders being pursued by the husband seem unrealistic and much more needs to be done by him to address the issues in the family report. Those are matters that go to the question of the priority that this case should be given. Absent some specific change in the husband’s position supported by evidence, the prospect of time with the children is not looking hopeful. There is therefore not so much urgency about a court case but rather about the husband getting his health and understanding of his obligations towards his children right.

20. Rule 12.10A(1) of the Family Law Rules 2004 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 the matters set out in sub-rule (2). Those include things relating to the way in which the parties have approached the expeditious disposal of their case. There is also the consideration of whether or not there would be any prejudice to the respondent. In this case, the respondent does not dispute that an expedited hearing should be granted but for the reasons I outlined, she would not support any parenting orders. Counsel for the Independent Children‘s Lawyer supported the priority but acknowledged that there was really nothing special about the case and in any event, would not support any contact orders taking effect.

21. In a parenting case, the Australian legislation requires that the Court consider the welfare of the child as the paramount consideration.  That does not mean it is the only consideration but the Court’s focus will be on the interests of the child. 

22. An important consideration set out in the rules also is whether or not there are any relevant circumstances justifying the case being given priority to the detriment of other cases. The relevant circumstances must be examined within the light of the description in the Family Law Rules. The rules provide:

    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.

23. If the Court is satisfied that some or all of the criteria apply and it or they justify the case being given priority to the possible detriment of other cases, the rules provide for a discretionary determination to

    (a)set an early first day before the Judge; and

    (b)make procedural orders for the further conduct of the case.

24. There is little doubt that by expediting this hearing, particularly as it has already had some months in the Federal Circuit Court, the parties would still wait a considerable period if it was not placed ahead of other cases in this Court. 

25. The children seem settled and there were no indications of them wanting a relationship. The husband has had his opportunities to run an interim application but did not do so. He can still do so. It is apparent to me but no doubt disputed by the husband that the case is not ready for trial. I say that even though the husband might think he is ready to start but he must understand that the things he needs to address are not apparent.

26. To the extent that the Federal Circuit Court Judge discerned a need for a case guardian, it may be that consideration should be so given but who would take on that role? It is not my task to decide that issue at the moment and if wife or the Independent Children’s Lawyer have ongoing concerns, an application should be made and the issue of an appropriate person then considered.

27. I am satisfied that there is no prejudice to the wife but to expedite this case would prejudice other people. Based on the matters set out above which I accept may have been beyond the husband’s control, there is no basis for me to put this case ahead of others.

28. There is an extant family report and if an application for interim orders was made, the Court would have the benefit of that evidence even if it was untested. Thus, on what I read, it would be unlikely that any interim order would be made.

29. I accept that there are numerous cases in this Registry that require a hearing and the Court’s resources are finite.  I am of the view that this application does not warrant being granted priority over other cases.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 April 2014.

Associate: 

Date:  16 April 2014