Wembley and Wooten (No. 2)

FAMILY COURT OF AUSTRALIA

WEMBLEY & WOOTEN (NO. 2)

[2018] FamCA 698

FAMILY LAW – PRACTICE AND PROCEDURE – application for priority – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Wembley

RESPONDENT:

Mr Wooten

FILE NUMBER:

MLC

8662

2017

DATE DELIVERED:

11 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Lopes Family Law

SOLICITOR FOR THE RESPONDENT:

Webb Korfiatis Family Law

Orders

That paragraph 3 of the Wife’s Further Amended Application in a Case filed 23 July 2018 be dismissed.
That the proceedings be added to the list of cases awaiting allocation to a judicial docket with priority from 14 March 2018.

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 Wembley & Wooten (No. 2) 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 8662 of 2017

Ms Wembley

Applicant

And

Mr Wooten

Respondent

REASONS FOR JUDGMENT

The proceedings between the parties relate to both parenting and property matters. The wife seeks the expedition of the final hearing of those proceedings pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The husband does not oppose the application for expedition.
On 31 July 2018 I made the following orders:
1. That by 4.00pm on 7 August 2018 the applicant file and serve any written submission in support of her application for expedition of the proceedings pursuant to paragraph 3 of her Further Amended Application in a Case filed 23 July 2018.
2.That by 4.00pm on 14 August 2018 the Respondent file and serve any submission in response to the wife’s application for expedition.
3.That the wife’s application for expedition be determined by the Case Management Judge in Chambers.
…
On 7 August 2018 the wife filed her submissions in support of an application for an expedited hearing. The husband filed his submissions on 14 August 2018 indicating that he does not oppose the application.
These are my Reasons for Judgment with respect to the application for expedition.

Background

The wife is aged 50. The husband is aged 53.
The parties were married for 26 years, having married in 1990 and separated in April 2016.
There is one child of the marriage under the age of 18 years, X aged 15.
The wife initiated proceedings in August 2017 seeking both parenting and property orders.
On 21 September 2017 orders were made by Senior Registrar FitzGibbon that the parties and child attend upon Dr D for the preparation of a Family Report.
On 1 November 2017 interim parenting orders were made by consent by Senior Registrar FitzGibbon which provided for X to live with the wife and spend time the husband as from 23 January 2018 for five nights in each 14 day period, subject to certain constraints. Those orders also provided for the parties to attend upon Dr D on 29 January 2018 for the purposes of assessing and agreeing to the current and future arrangements for care of the child.
Consequently Dr D has prepared two Family Reports in this matter, dated 11 October 2017 and 6 February 2018.
On 9 March 2018 the husband’s former solicitors filed an Application in a Case seeking, amongst other orders, that a Case Guardian be appointed for the husband. That application was determined by Macmillan J on 17 May 2018 and orders were made dismissing the application seeking the appointment of a case guardian for the husband. Otherwise Macmillan J made an order adjourning all extant applications to the Judicial Duty List.
On 23 July 2018 the wife filed a Further Amended Application in a Case and at paragraph 3 sought that there be an expedited Final Hearing date, listed for three days at a date to be advised by the Court. The matter came before me in the Judicial Duty List on 31 July 2018 and I made orders by consent with respect to interim property and dismissing all extant interim applications, save for paragraph 3 of the wife’s Further Amended Application in a Case.

Legal Principles

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

As to the question of whether the wife has acted reasonably and without delay in the conduct of the case and whether the application for expedition has been made without delay, the wife sets out a detailed chronology of the proceedings in her submissions. Of note, the wife submits there has been a series of adjournments due to the issue surrounding the husband’s capacity; the wife submits that those adjournments were not “precipitated by the Wife, but rather to appropriately deal with the husband’s solicitor’s application”. The wife ultimately submits that:-
…the Wife’s application for priority has been brought at the first opportunity following a determination of the issue of capacity and her conduct in the proceedings generally has been reasonable.
The wife submits that as a result of the delay occasioned by the necessity to determine the question of the husband’s capacity, the wife’s application for interim property distribution was unable to be resolved until 31 July 2018, a delay “in excess of four months”. The husband concedes that there was a “brief delay of four months” in determining the wife’s interim application for litigation funding as a result of the application made by his former solicitors in relation to the appointment of a Case Guardian. However the husband submits that that application was “determined expeditiously” by Macmillan J on 17 May 2018.
I am satisfied that the wife has acted reasonably and without delay. The proceedings were commenced approximately one year ago and there have been a number of interim hearings. Further, the progression of the matter was delayed following the application for the appointment of a Case Guardian for the husband.
The wife submits that the husband will suffer no prejudice if the trial is expedited. She submits that the husband does not oppose the application, that the husband’s solicitor is experienced and that the matter is able to be “readily prepared by the husband and his solicitor for an expedited trial”.
It is conceded by the husband, and I accept, that there is no prejudice to him if there is an order for expedition.
Rule 12.10A(2)(d) of the Rules requires a consideration of other relevant circumstances that persuade the Court to give a case priority. Importantly, the words of that provision require the Court to determine whether priority should be given to the possible detriment of other cases (emphasis added).
The wife in her submissions relies on the following subsections of r 12.10(4) of the Rules:
·whether a party has been harassing to another party or any child subject of the case (r 12.10A(4)(b) of Rules);
·whether the continuation of interim orders is causing the applicant or a child hardship (r 12.10A(4)(d) of Rules); and
·whether an expedited trial would avoid serious psychological or emotional trauma to a party or a child (r 12.10A(4)(g) of the Rules).

Alleged harassment of the wife and child, hardship of the child and the avoidance of serious trauma

The primary focus of the wife’s submissions is her contention that the husband has been harassing both herself and the child. In summary the wife submits:
·    That the husband has been harassing herself and X at a “significant and persistent level”;
·    That the involvement and harassment of X “has been particularly significant and persistent” and that it has continued despite professionals including Dr D requesting it to cease;
·    That it is likely the harassment of X will continue until the matter is determined;
·    That the continuation of the harassment of X will cause him considerable hardship; and
·    That there is a “real risk” and likelihood that X will continue to be exposed to emotional trauma if the proceedings are not expedited.
The husband in his submissions “repudiates the assertion that he has been harassing or intimidating the Wife and/or the child [X]”.
The wife in her application makes various allegations in relation to the husband’s behaviour towards X and herself. The wife refers to the content of text messages from the husband to X, which are set out in her affidavit filed 24 August 2017, which she asserts are harassing towards X. The husband does not deny forwarding those messages. The content and tone of the husband’s communications to the child certainly raise concern as to the husband’s behaviour and its impact on X.
Further, in her affidavit filed 25 July 2018 the wife deposed that X has told her that the husband “continues to ask him to express a view to the court that he wishes to live equally with each of us”. The wife also relies on various paragraphs of the reports prepared by Dr D in relation to comments that X has made to Dr D. In particular I note the following paragraphs of the report prepared in February 2018:
In summary, [X] initially supported his father’s position in relation to equal time, but, as in the earlier assessment, recanted that statement and clearly pointed to his father’s influence in considering his views…
…it was of some concern that [the husband] relentlessly attempted to use the review in order to achieve his own goals. In this, he could be viewed as ignoring [X’s] statements about only seeking change in the context of [the husband’s] attempts to influence him.
While the evidence is untested, the report by Dr D of the husband’s attempts to influence the child’s view is also troubling.
The wife submits that the two reports prepared by Dr D are confirmation of the:-
…Husband’s anger and involvement of [X] in the ongoing parental dispute and show that, despite [X’s] stated distress and [Dr D’s] strong admonishment of the husband for his actions towards [X], the husband has continued with the same actions.
Conversely the husband submits the following:
It is respectfully submitted that [Dr D’s] reports do not support the assertion that [X] has been subjected to continued and unrelenting harassment by the Husband or that the reports “confirm the Husband’s anger”.
Or the assertion “that it is highly likely [X] will continue to be harassed and he will suffer financial hardship (through that continued harassment) and he will suffer significant emotional trauma”.
(emphasis omitted)
The wife also submits that the husband’s conduct is affected by his diagnosis of Post-Traumatic Stress Disorder and Alcohol Use Disorder and that “there is potential he may be intermittently not following the direction of his treating psychiatrist”. In support of that submission the wife relies on a psychiatric assessment of the husband dated 10 September 2017.[1] That report notes as follows:
In regard to your query as to whether [the husband] ‘is following the directions of his doctors concerning his condition in regards to medication and otherwise?’, I would suggest that he attended all scheduled psychiatric appointments over 2016 but failed to attend 3 appoints over 2017, and not reduced his alcohol intake (70SD per week at last review), but previously been quite responsive to various treatment suggestions. I would have to confirm his compliance with Lexapro at next review on 16^th September.
(emphasis omitted)
[1] The wife in her submissions incorrectly refers to the date of this report being April 2016.
The wife asserts that since that report the husband has indicated he takes medication to assist with his alcohol, but notes there is no evidence before the Court regarding those matters. The wife therefore submits that during the periods when the husband is not on medication or is “drinking heavily”, the child is at greater risk of exposure to harassment and involvement in the proceedings by the husband.
Finally, the wife refers to and relies upon the judgment of Macmillan J dated 17 May 2018 in support of her application. That judgment is in my view largely irrelevant to the wife’s application for expedition. The wife attempts to draw conclusions from her Honours reasons which do not appear to be borne out by the decision. For example the wife submits that:
The Judgment of Her Honour Justice [Macmillan] shows, the wife asserts, that it is likely there has been harassment of the Wife, up to this date, if the husband’s intent includes a desire to “punish the Wife”.
(emphasis omitted)
I can discern no findings by Macmillan J in that judgment that the wife has been harassed.
Further the wife relies on Macmillan J’s summary of the matters of which the husband’s former lawyer was concerned which gave rise to the application for the appointment of a Case Guardian, which included:
…
f)His focus on proving that he is right and his legal representatives are wrong;
g)His focus on proving that he is right and the wife is wrong and his desire to punish the wife for what he considers are illegal acts;
…
i)The husband’s insistence upon there being a final hearing.
The husband did not challenge that evidence. However, none of the matters relied upon by the wife indicate that the husband has harassed the wife or the child. Whilst the husband’s former lawyer may have raised concern that the husband seeks to punish the wife there is no finding by Macmillan J that such conduct has occurred.
The wife concludes by submitting:
In all of these circumstances it is respectfully submitted if the matter is not expedited it is reasonable to say (given all that has occurred to date) that it is highly likely [X] will continue to be harassed and he will suffer hardship (through that continued harassment) and he will suffer significant emotional trauma.
Further she submits that the husbands “conduct and approach to the proceedings…is having a serious detrimental impact upon the Wife and [X]”.
The husband denies the allegations that he has harassed the wife and child. Ultimately, the assessment of the husband’s conduct and its impact on the wife and the child is a matter that requires a testing of evidence and determination by the trial judge.

Hardship

The wife also submits that due to the prolonged proceedings, in part as a result of the issue in relation to the husband’s capacity, the number of Court hearings and “the husband’s stated intent (in [Macmillan] J’s judgment)” the wife may suffer hardship due to the delay and the “cost of having to litigate the matter through a likely protracted and costly course to a Final Hearing”. I do not accept this submission. There is no suggestion that there is further need for interim orders or that the parties intend to file more interim applications.
The wife also submits that:
…if it is the case the husband is “not taking advice”, is “determined to prove he is right” and to “proceed to a Final Hearing” this also go [sic] to hardship of the Wife should the matter not be expedited as this is what she faces in the litigation which could prolong it unduly, and which will likely mean increased and undue additional legal costs for her. It also goes to why she would be emotionally distressed.
The allegations made by the husband’s former solicitors raise considerable concern as to the husband’s conduct. However the husband has since changed solicitors and there is no evidence to indicate that the behaviour his former solicitors complained of is ongoing.
The husband submits that neither party has suffered financial hardship as a result of the delay caused by the Application made by his former solicitors for a Case Guardian. There is no evidence before me as to the costs incurred by the parties as a result of the Application in a Case filed by the husband’s former solicitors. I note that the hearing with respect to that issue occurred in the absence of the wife. Hence, although she suffered some delay whilst that matter was determined it would appear that she did not incur costs as a result of that hearing.
The wife submits that the “continuation of the relationship dynamic through litigation is detrimentally affecting her health after a period of having to have lengthy psychological support” and she submits that she has had to seek treatment for Anxiety and Depression. She asserts that the husband’s conduct has caused her distress and that the stress has caused her to defer her studies. The wife in her submissions also refers to “having to live on a day to day basis with the stress of the continued harassment of [X]”.

Conclusion

Litigation in this Court is often marked by high conflict and assertions by one party, or both, of harassment and other forms of family violence. It would appear that this matter falls into that category of cases. Allegations of harassment and family violence are always deeply concerning to the Court. However, the question for determination in this matter is whether the issues in this case warrant it having priority to the detriment of other cases also awaiting a hearing.
Whilst the husband’s conduct towards the child, particularly the manner in which it is alleged he has communicated with the child regarding these proceedings, is a matter of significant concern, there are other matters awaiting hearing which involve serious allegations of child abuse and where it is alleged that children are at risk of harm. In determining the current application, it is necessary to assess and balance the circumstances in this matter as compared with other matters awaiting a final hearing.
Although the wife asserts harm is being perpetrated by the husband towards the child, and herself, it does not appear that the alleged harm is at a level which indicates that the father’s time with the child should be supervised or that there should be a cessation of time. Currently the child spends time with the husband in accordance with the interim orders, which were made by consent and provide that he spend five nights per fortnight with the husband.

Whilst the wife’s allegations as to husband’s harassment of the wife and the child are deeply troubling, the alleged conduct by the husband is not at a level that to date has warranted significant intervention by this Court.
I have no doubt that the wife (and likely the husband also) is experiencing stress in relation to these proceedings and that this may be affecting her health and functioning. Litigation is stressful and it is to be anticipated that most litigants will be impacted by that experience. However, as noted earlier, I must consider whether this case should be afforded priority to the detriment of other cases in circumstances where the Court’s resources are ever diminishing whilst its work load continues to grow. I am not satisfied that there are sufficient circumstances in this matter to justify making an order for priority.
The wife submits that if her application is not successful then the Court should exercise its discretion to place the matter in the list of cases awaiting determination as at the Conciliation Conference date (being 5 December 2017) or alternatively as from the date the Court had notice of the application by the husband’s solicitor to appoint a Case Guardian for the husband, being 14 March 2018.
There can be no doubt that that application has delayed the progression of this matter and in the circumstances I propose that the matter be placed in the list of cases awaiting allocation to a judicial docket with priority from 14 March 2018.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 September 2108

Associate:

Date: 11 September 2018

[2018] FamCA 698

11 September 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Procedural Fairness

Standing

Remedies