SIMON & EDWARD

[2017] FamCA 836

FAMILY COURT OF AUSTRALIA

SIMON & EDWARD

[2017] FamCA 836

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT:	Ms Simon
RESPONDENT:	Mr Edward
INDEPENDENT CHILDREN’S LAWYER:	Ms Kourtis
FILE NUMBER:	MLC	2809	of		2016
DATE DELIVERED:	19 October 2017
PLACE DELIVERED:	Melbourne
PLACE HEARD:	Melbourne
JUDGMENT OF:	Johns J
HEARING DATE:	Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Kenna Teasdale Lawyers
SOLICITOR FOR THE RESPONDENT:	Taussig Cherrie Fildes
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	McKean Park

Orders

1. 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 Simon & Edward 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 2809  of 2016

Ms Simon

Applicant

And

Mr Edward

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By submissions filed 19 September 2017 the Independent Children’s Lawyer (“the ICL”) seeks the expedition of the final hearing of this matter pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The ICL’s submissions were filed pursuant to orders made by consent by Senior Registrar FitzGibbon on 30 August 2017 that provided that the parties file any application for priority within 14 days. Although the ICL’s submissions were filed out of time, neither the applicant mother nor the respondent father takes issue with the late filing of the application.

2. The ICL’s application for an expedited hearing is supported by the respondent father. By letter to the Registrar dated 4 October 2017, the father’s lawyer confirms the father’s support for the ICL’s application for expedition and agrees and adopts the contents of her submissions.

3. The mother opposes the application for priority.  By letter dated 13 October 2017 her lawyer submits that her client does not support the application for an expedited hearing in circumstances where:-

• The time between the father and the child B is proceeding well; and

• Disclosure is not yet complete and a conciliation conference or mediation has not yet been conducted.

1. The proceedings, which commenced in April 2016 (with respect to property only) are in relation to both parenting and property. In December 2016, the father filed an amended Response to Initiating Application in which he seeks parenting orders.

2. The parties have two children, C (aged 5) and B (aged 3).  The father was spending time with the children by agreement until December 2016 when the mother ceased making the children available for such time. On 17 February 2017 the mother filed a Notice of Child Abuse in which she alleged that B has been sexually abused by the father and as a consequence, both C and B are at risk in the father’s care.  The mother relies upon disclosures alleged to have been made to her by B in August 2016 in support of that allegation.  The father denies those allegations.

3. Orders were made for the appointment of the ICL and the preparation of a family report on 20 February 2017.  That day orders were also made for the father to spend supervised time with C.

4. On 30 August 2017 interim orders were made by consent for the father to spend time with C, subject to conditions and for him to have supervised time with B. That day all interim applications were dismissed and the matter was placed in the list of cases awaiting final hearing.

5. Given the allegations raised by the mother, a number of expert reports have been prepared, including mental health assessments of both parents, a psychosexual assessment of the father, a family report and an addendum family report.  The ICL submits that those reports are current and enable the matter to be listed for the first day of  hearing before a judge.   

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge.

10. 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

11. The ICL submits the circumstances which support an order for expedited hearing are as follows:

·The parties have acted reasonably and without delay;

·There is no prejudice to either of the parties;

·There are allegations of child sexual abuse;

·The expert evidence indicates that the child B’s relationship with her father is affected by the parental dispute and is continuing to deteriorate;

·The parenting aspect of the dispute can be prepared relatively quickly and further delays may result in the expert reports becoming stale.

12. The ICL was appointed pursuant to orders made on 20 February 2017; that day the proceedings were otherwise adjourned to 2 May 2017.  At the time of the ICL’s appointment, the sexual abuse allegations were already known and orders were made for the preparation of a family report and assessment of the parents.

13. On 2 May 2017 orders were made for the preparation of an addendum report to the family report to enable the report writer to consider the mental health assessments of the parties, as well as documents produced under subpoena. The addendum to the family report was released on 29 August 2017 and all interim issues were dispensed with on 30 August 2017.

14. The application for priority was filed six days after the timeframe provided in the orders of Senior Registrar FitzGibbon.  However, neither the mother nor the father takes issue with the late filing of that application and the delay is not significant.  It is clear from the ICL’s submissions that the ICL has undertaken significant work to ensure that all relevant expert evidence was before the Court to enable a timely disposal of the interim issues. Accordingly, I am satisfied that the ICL has acted reasonably and without delay in the conduct of the matter.

15. The ICL submits there is no prejudice to either parent in the granting of expedition in circumstances where the expert reports have been obtained; a delay in the listing of a final hearing will result in additional cost in obtaining updated reports.

16. The mother submits she may suffer prejudice given that financial disclosure is incomplete and the parties have yet to attend mediation.  In contrast, the father submits that the parties are in the process of exchanging updated financial disclosure which is anticipated to be completed within the next month and that the joint valuations which were prepared in 2016 are able to be updated prior to trial.

17. In circumstances where the financial proceedings have been on foot for a period of approximately 18 months and there are no outstanding interim proceedings with respect to those matters, I am satisfied that there will be no prejudice to the parties if the proceedings were expedited.   

18. Further, the expedition of the proceedings will result in the matter being listed for a first day before a judge in either late 2017 or early 2018 with a trial date in 2018.  That will provide ample time for the completion of disclosure, updating of valuations and attendance at mediation prior to the final hearing.  Indeed, it would seem that both parties would likely be advantaged by the expedition of the proceedings, as they will not be put to the expense of the preparation of further expert reports and it will enable them to finalise all outstanding issues.   

19. Rule 12.10A(1)(d) requires a consideration of other relevant circumstances that persuade the Court to give a case priority to the possible detriment of other cases (emphasis added).

20. The allegations of child sexual abuse raised by the mother is a factor that may be considered pursuant to r 12.10A(4)(f). Those allegations have significantly impacted upon the parents and B, who has:-

·been subjected to a forensic examination;

·attended sessions with a child psychologist;

·attended Mr D twice for the purposes of preparing a family report;

·ceased spending time with the father between December 2016 and September 2017 and has only recently resumed spending time with the father on a supervised basis.

21. The parents have also attended family therapy with Dr E and have been subjected to mental health assessments and in the case of the father, a psycho-sexual assessment.

22. The ICL submits that the evidence of Mr D indicates that the dispute between the parents is negatively affecting B’s relationship with the father. Notably, the relationship between the father and B was described in positive terms at the time of the first family report in late March/early April 2017.  However, at the second interview with the family report writer in August 2017, the child was described to not look at the father and would passively resist his attempts to engage with her.   In addition, B could not be persuaded to attend for a supervised visit with the father on 13 September 2017.

23. Having regard to the evidence of Mr D, the ICL submits that should there be no finding of unacceptable risk at the conclusion of the proceedings, there is a concern that B’s relationship with her father will already have been irreparably damaged.

24. The ICL also submits that it is the mother’s contention that the father has an alcohol problem and has been emotionally and verbally abusive to her. These are relevant circumstances which may be taken into account pursuant to r 12.10A(4)(b).

25. At age three B has experienced a great deal of upheaval and intrusion in her life as a result of the alleged disclosures.  There has also been disruption to C’ time with the father.  Whether or not the allegations can be substantiated or there is a finding of unacceptable risk are matter to be determined upon a final hearing, where the evidence of all witnesses can be tested.  I am satisfied having regard to the history of the proceedings that any further delays in a final hearing will serve only to perpetuate the upheaval and uncertainty in the children’s lives and would be contrary to their best interests.

26. In all of the circumstances, given the nature of the allegations raised in the proceedings, the impact of the proceedings on the children and the fact that all relevant expert evidence has been obtained, I consider that it is in the best interests of the children that the matter be determined as quickly as possible.

27. Accordingly, I propose to expedite the matter and order that it be allocated to a judicial docket as soon as is practicable.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 October 2017

Associate: 

Date:  19 October 2017