Weaver & Hemburn

[2009] FamCA 604

FAMILY COURT OF AUSTRALIA

WEAVER & HEMBURN [2009] FamCA 604

FAMILY LAW – PRACTICE AND PROCEDURE – Applicant for expedited hearing – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Weaver

RESPONDENT: Ms Hemburn

FILE NUMBER: DGC 4417 of 2008

DATE DELIVERED: 9 JULY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: IN CHAMBERS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: BAYSIDE SOLICITORS

SOLICITOR FOR THE RESPONDENT: ANDERSON PARTNERS

Orders

1. That all outstanding applications be forthwith placed before the co-ordinating registrar to be allocated an expedited docket directions hearing for ultimate allocation to a judge for trial.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 4417  of 2008

MR WEAVER

Applicant

And

MS HEMBURN

Respondent

REASONS FOR JUDGMENT

1. This is an application for an expedited hearing.

2. It is a parenting dispute between the parents of a child who was born in November 2002.

3. The parties had lived together but separated in 2001.

4. The file shows that there were proceedings in the Family Court of Australia culminating in orders made on 24 July 2007.  Those orders were made by consent of the parties after what the father described as 18 months of litigation.

5. On 23 December 2008, the father filed an application in the Federal Magistrates Court of Australia seeking time with the child.  That was notwithstanding the fact that he already had time pursuant to existing orders.  In an affidavit that he filed with those proceedings, he said that he was not having any contact since November 2008.  Importantly, he also alleged that there were threats against his life made to him by both the mother and her current partner or husband. 

6. On 11 February 2009, the mother responded to the proceedings in the Federal Magistrates Court seeking that the father’s time be “reserved” whatever that means or in the alternative, that he have two hours per fortnight supervised.  Her affidavit said “numerous issues” had arisen since July 2007 when the orders were made.  She set them out in the affidavit including the fact that there had been disclosures made by the child of sexual abuse.

7. Apart from setting out her concerns about previous unsatisfactory supervision of the contact of the child by the father as she saw it, the mother had a different view about the alleged threats on the father’s life.  She too made allegations against the father but of a different nature.

8. On 16 February 2009, Turner FM by consent of the parties transferred the proceedings to this Court.  It is important to note that the parties consented to the father having time with the child supervised by Gordoncare but that they also attend upon psychologist Mr P.

9. On 27 February 2009, the mother filed a Notice of Child Abuse. That was necessary because of the provisions of s 60K of the Family Law Act 1975 (Cth) (“the Act”) and Chapter 2 of the Family Law Rules.

10. Upon the matter coming to this Court, it was listed on 13 March 2009 before Senior Registrar FitzGibbon.  Again, the parties reached some form of compromise.  By consent, orders were made that all interim applications be dismissed but the Senior Registrar set in time a timetable for the parties to complete various documentation for an expedited hearing.  In addition, an Independent Children’s Lawyer was appointed.

11. The father did not file his application for an expedited hearing within time but sought an extension which was later granted. 

12. In his application for the expedited hearing, the father said that litigation had continued for approximately four years during which time he and his daughter had been restricted in their contact.  He sought that the child be able to enjoy a normal relationship with him as soon as possible.  He contended that the earliest resolution of the matter was in his daughter’s best interests as well as in the interests of a long-term relationship between father and daughter.

13. The mother filed a simple objection to the expedited hearing saying that the father was spending supervised time with the child already which allowed her to have a meaningful relationship with him whilst at the same time giving appropriate consideration to the risk of harm from sexual abuse.  She therefore contended that there were no exceptional circumstances to necessitate the expedition of the hearing. 

14. Section 60K(2) provides:

    The court must:

    (a)consider what interim or procedural orders (if any) should be made:

    (i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

    (ii)to protect the child or any of the parties to the proceedings; and

    (b)make such orders of that kind as the court considers appropriate; and

    (c)deal with the issues raised by the allegation as expeditiously as possible.

15. Whilst compliance with s 60K occurs when a court examines the issues and makes interim or procedural orders, there is still an obligation on the Court to deal with the substantive issues expeditiously.

16. Where a notice as required by s 60K has been given and a party:

    (a)acts reasonably and without delay; and

    (b)can show that the continuation of the interim or procedural orders until the case can be heard in the Court’s normal list is not in the child’s best interests,

    a reasonable basis then exists to seek to expedite the final hearing.

17. The determination of how the interim or procedural orders impact upon what is in the child’s best interests is a matter that must be determined on a case by case basis but a court must also take into account that the granting of an expedited hearing places the case ahead of others.

18. Many of the cases which this Court deals with are parenting matters and whilst there may not be the same urgency in every one, the interests of children are still the very core of the Court’s business. But it is also fair to say that in many financial cases, the interests of children are also affected by cases not being determined.

19. As such, for a case to be elevated above others on an application for an expedited hearing, the Court is obliged to contemplate what is particularly special, unusual or just different in the facts of the applicant from others cases. An applicant for such a hearing needs to highlight that difference.

20. In previous Rules, the Court allowed expedited hearings on the basis of exceptional circumstances which were defined as including facts affecting the competence or availability of a party or witness, whether there has been violence, intimidation or harassment of a party of a witness or where there were allegations of child sexual assault or abuse. Importantly, the previous rules referred to a situation where an expedited trial would avoid serious emotional or psychological trauma for a party or child. All of those matters can be covered by the requirement to show that the continuation of the interim or procedural orders until the case can be heard in the Court’s normal list is not in the child’s best interests.

21. In this case, not only has the Court put in place both interim and procedural orders but in respect of the father’s time with the child, there was an agreement between the parties. The primary requirements of s 60K have been met.

22. The issue upon which I therefore focus is whether the continuation of those orders in the long run is not in the child’s best interests. Where the evidence points to a child being unsure as to why the supervision is happening and questioning why the restriction is so, there is a basis to have some concern.

23. To avoid possible psychological effects later, the Court has an obligation under s 60K to deal with the issues raised by the allegations as expeditiously as possible. The Court needs to give the parties an opportunity to test the evidence properly.

24. The mother’s position is that the interim orders are in place and the child is appropriately supervised for her protection but that does not answer the need to deal with the issue comprehensively and quickly.

25. The father’s submission quotes from the report of Mr P which amongst other things recommends:

    On purely face value, [the child] should be seeing more of her father for longer periods and unsupervised.

    It is that point that I have found troubling if the case was not given a fixture earlier than it might otherwise. I can only presume that Mr P as an expert witness, has concerns about the continuation of the existing orders based on what he saw noting at all times that he too needs to know what findings a court makes about the facts that gave rise to the allegations in the first place.

26. I am therefore satisfied:

    (a)      this case involves allegations of sexual assault;

    (b)      there are allegations of harassment;

    (c)the continuation of the interim arrangements albeit made by consent and satisfying s 60K, needs to be re-examined in the light of the recommendation of Mr P.

27. This case therefore warrants an expedited hearing.

I certify that the preceding Twenty Seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 July 2009