Simplot and Deene

[2008] FamCA 742

FAMILY COURT OF AUSTRALIA

SIMPLOT & DEENE [2008] FamCA 742

FAMILY LAW – PRACTICE AND PROCEDURE – PRIORITY HEARING – Application granted

Family Law Act 1975 (Cth)

APPLICANT: MR SIMPLOT

RESPONDENT: MS DEENE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11902 of 2007

DATE DELIVERED: 1 SEPTEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

MARSHALLS & DENT

Orders

1. That all extant applications be placed before Justice Dessau or at her nomination, a registrar, to be listed on a date to be fixed as soon as possible for procedural orders to be made and the matter to be given a final hearing date.

2. That my reasons for judgment this day be brought to the attention of the Honourable Justice Dessau.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC11902 OF 2007

MR SIMPLOT

Applicant

And

MS DEENE

Respondent

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 issues.

3. The proceedings began on 30 October 2007 by the husband seeking orders that the parties’ child, born in September 2001, live with him and that the wife be psychiatrically examined.

4. The wife responded on 20 December 2007 also seeking that the child live with her and that the husband be psychiatrically examined. 

5. The matter came before Senior Registrar FitzGibbon on 14 August 2008 whereupon orders were made that an application be made for a priority listing.  The Senior Registrar otherwise adjourned proceedings to a date to be fixed. 

6. As a consequence, an application by the Independent Children’s Lawyer has been made to expedite the hearing.

7. The Independent Children’s Lawyer reports that he has significant concerns about the welfare of the child pending any determination.

8. No other party filed any submissions in the matter. I am determining this upon what I have read from the Independent Children’s Lawyer and the documents on the court file.

9. The child was born into a marriage relationship that ended on 26 September 2004.  There is some confusion about exactly when the parties came to Australia but prior to that, they were living in Britain.

10. There are arguments about what occurred in Britain including violence.  There is also evidence of problems that gave rise to personal injunctions there.

11. The parties attended upon psychiatrist Dr K who had no concerns about the husband.  However, he suspected that the mother was delusional.  He said that the mother needed psychiatric intervention and once the child was in a settled environment, there would need to be some assessment of the child.  There appears to be significant professional concern about change at the moment because it may be traumatic for the child. 

12. Psychiatrist Dr A also examined the situation and believed that the child suffered from attention deficit hyperactivity disorder.

13. The Independent Children’s Lawyer’s submission was that if the factual issues raised by the husband were true, it indicated that the wife had a lack of insight and her inconsistent behaviour would have a “psychological and psychiatric” effect upon the child.

14. It is to be noted however that both parties make accusations against the other.

15. This is a matter that does warrant some attention. 

16. It is the policy of the Court to try and hear every matter expeditiously and 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.

17. In this case, I am satisfied that the child is at risk and that that is a special reason to give the case priority. No simple determination about the child’s future can be made until there are findings of fact as to exactly what has occurred here.  The possibility of interim orders changing the current situation having regard to the impact they may have on the child is not a prospect that can be done simply.  This is a matter that requires procedural orders so that the parties can have an opportunity to flesh out the issues and file material once the Courts determined what the issues are that need to be litigated.

18. Accordingly I propose to order an expedited hearing.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:  Elizabeth Hore

Date:  1 September 2008