Vermeer and Vermeer

[2018] FamCA 81

FAMILY COURT OF AUSTRALIA

VERMEER & VERMEER [2018] FamCA 81

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Mr Vermeer

RESPONDENT: Ms Vermeer

INDEPENDENT CHILDREN’S LAWYER: Taft Lawyers

FILE NUMBER: DGC 486 of 2014

DATE DELIVERED: 21 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

SOLICITOR FOR THE RESPONDENT: Perry Weston Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Taft Lawyers

Orders

1. The father’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

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 Vermeer & Vermeer 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: DGC 486  of 2014

Mr Vermeer

Applicant

And

Ms Vermeer

Respondent

REASONS FOR JUDGMENT

introduction

1. The father, who is the applicant in this case, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). That application is opposed by the mother.

2. The mother submits that the father’s application for expedition is not necessary, as the proceedings have already been afforded priority.  In support of that submission she relies upon the orders made on 25 August 2017 which adjourned the matter to the list of cases awaiting allocation to a judicial docket with priority from 19 July 2017.   

3. Orders made by Registrar Jenkins on 1 December 2017 provided for any party seeking expedition of the final hearing to provide a summary of argument by 8 December 2017 and any response to be filed within seven days.  The father relies upon his summary of argument dated 5 December 2017. The mother relies on her response to summary of argument dated 15 December 2017.

BACKGROUND

1. There are three children of the parties’ marriage, B born in 2004 (age 13), C born in 2006 (age 11) and D born in 2007 (age 10).

2. Final parenting orders were made by consent by Judge O’Sullivan on 21 September 2016.

3. The father alleges that the mother has contravened the final orders made on 21 September 2016.  As a result of the alleged breaches by the mother, the father has spent time with C and D twice and with B once since December 2016.

4. The mother in response states that following the final parenting orders being made in September 2016, the children made serious and consistent disclosures that the father had subjected them to family violence. The mother alleges that she has acted protectively in response to those disclosures and has not allowed the children to spend time with the father. The mother filed a Notice of Risk on 29 March 2017.

5. The matter has since been dealt with on an interim basis as a result of the father filing a Contravention Application on 19 December 2016. That application was listed in the Federal Circuit Court on 3 April 2017. The Department of Health and Human Services responded to the mother’s Notice of Risk and requested the Federal Circuit Court to suspend the father’s time with the children pending the outcome of their investigation. On that day, interim orders were made suspending the father’s time with the children and the proceedings were otherwise adjourned to 19 July 2017.   

6. On 19 July 2017 the proceedings were transferred to this Court. The orders suspending the father’s time with the children remain in force.

7. The matter was first listed in this Court on 16 August 2017 and on that day Registrar Jenkins made orders placing the matter in the list of cases awaiting allocation to a judicial docket with priority from 19 July 2017.

8. On 25 October 2017 the father filed an Application in a Case seeking orders that the matter be listed with priority. That application was listed before Registrar Jenkins on 1 December 2017. On that day, Registrar Jenkins made orders for the filing of written submissions with respect to the father’s application and otherwise made orders that the application be adjourned to a date to be fixed and for the determination of the applications to be heard and finalised in chambers. 

9. These are my reasons for judgment with respect to the father’s application for an expedited hearing.

Legal Principles

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

   (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

1. The father submits the circumstances that support his application for an expedited hearing are as follows:

   ·    He has acted reasonably and without delay, in that he has allowed Child Protection over three months to conduct their investigation and has made numerous requests for expedition;

   ·    There will be prejudice to both parties if the matter is not expedited as they will incur substantial legal costs;

   ·    He has not seen his children since 12 December 2016 due to the mother’s alleged contravention of the final orders and her false allegations against him.  As a result of the suspension of his time, the father is continuing to miss the children’s significant life events;

   ·    The children are being alienated from him, the mother is systematically abusing Court processes and this is causing the children emotional and psychological harm;

   ·    The father has been granted an interim intervention order;

   ·    The father is suffering financial hardship due to the on-going litigation and has lost two jobs.

2. In response, the mother relies upon the following circumstances in support of her opposition to the father’s application for expedition of the proceedings:

   ·    Orders have already been made affording the proceedings priority. The orders made on 25 August 2017 adjourned the matter to the list of cases awaiting allocation to a judicial docket with priority from 19 July 2017;

   ·    She opposes the proceedings being listed for any further interim events.

3. I am satisfied that the father has acted reasonably and without delay in the conduct of the case and in relation to the application for expedition. His application for an expedited hearing was made without delay and within the timeframe prescribed by the orders of 1 December 2017.  The mother does not contest that the father has acted reasonably and without delay.

4. The mother has not indicated and I am satisfied that there will not be any prejudice to her if the matter is expedited. She objects to the proceedings being listed for further interim events and submits that a final hearing is required to test the evidence.

5. Rule 12.10A(1)(d) requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision also require the Court to determine whether priority should be given to the detriment of other cases (emphasis added).

6. Rule 12.10A(4)(b) allows the Court to consider whether a party has been violent, harassing or intimidating to another party.  The mother submits that the children have been exposed to family violence at the hands of the father.  It was the alleged disclosure by the children of those matters that resulted in the mother refusing to make the children available for time with the father.  The mother maintains that she was acting protectively in not making the children available to spend time with the father.

7. In support of that position the mother relies upon the s 67Z report of the Department of Health and Human Services dated 6 July 2017.  Paragraph 100 of that report concludes that it is the writer’s opinion that the children have been exposed to physical and psychological abuse by the father.  At paragraph 104 it is noted that the children have consistently repeated that they do not feel safe with their father.  The recommendation at the conclusion of the report is that the children should not be forced to spend time with the father and that their individual wishes be respected.  Following the release of that report, on 19 July 2017, the Federal Circuit Court maintained the suspension of the father’s time with the children.

8. The father in his summary of argument for expedition denies the allegations of family violence. He submits that the mother has taken out 23 intervention orders against him and that the children are named in the intervention order of 22 March 2017.  The father also alleges that the mother has reported over 127 breaches of intervention orders. It is the father’s submission that the mother is abusing the Court processes by consistently alleging breaches and that this is an attempt to alienate the children from him.

9. The question of whether there has or has not been family violence or whether the allegations are fictional and the mother is attempting to alienate the children from the father are matters that will be determined by the trial judge at a final hearing upon a testing of evidence. 

10. Nonetheless, having regard to the allegations made by each parent against the other, coupled with the ongoing litigation in this Court as well as the Federal Circuit Court and the Magistrates’ Court, I am satisfied that the children have been exposed to the conflict.  I accept that the acrimony between the mother and the father has likely impacted upon the children and is a matter relevant to the determination of whether the proceedings should be afforded priority.

11. In addition to the impact of the litigation on the children the subject of the proceedings, the father submits that the continued litigation has caused him to lose two jobs.  He submits that a further delay of the proceedings will cause him financial hardship. While litigation is stressful, costly and taxing on the parties, this does not necessarily equate to financial hardship. The father has not adduced evidence as to how the proceedings have caused him to lose two jobs or as to his current employment situation. In any event, I am not satisfied that a failure to expedite the proceedings will cause further financial hardship; it will simply mean the trial will commence at a later date than requested or desired.

12. The father submits that the delay in the final trial is causing the children to become further alienated from him and that an expedited trial would avoid psychological and emotional harm. The father also submits that the purpose of the case will be lost if it is not heard quickly, because he has missed significant events in the children’s lives, such as Christmas, birthdays and Holy Communions. I am not satisfied that the loss of opportunity to share in such events is a matter contemplated by r 12.10A(4)(e).  That one party is aggrieved that important milestones or events in a child’s life are missed due to the unresolved dispute between parents is a tragic by-product of litigation in parenting matters.  That factor in and of itself does not justify the matter having priority over other matters where similar factors are present.  

13. It is clear that the parties and the children will benefit if the proceedings are concluded sooner rather than later. However, in circumstances where this case is already in the list of cases awaiting allocation to a judicial docket with priority from 19 July 2017, I am not satisfied it should be afforded further priority. The reality is that very little has changed in the parties’ circumstances since 25 August 2017 which would justify the Court affording it additional priority to the detriment of other cases similarly awaiting a final hearing.  In those circumstances, the application for expedition is refused.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 February 2018

Associate: 

Date:  21 February 2018