Wilde & Clives

[2008] FamCA 50

FAMILY COURT OF AUSTRALIA

WILDE & CLIVES [2008] FamCA 50

FAMILY LAW – PROCEDURAL – Application for priority listing

Family Law Act1975 (Cth)

APPLICANT: MS WILDE

RESPONDENT: MR CLIVES

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9494 of 2007

DATE DELIVERED: 7 FEBRUARY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: DONALD LAMPE

SOLICITOR FOR THE RESPONDENT: HARWOOD ANDREWS LAWYERS

Order

1. That all extant applications be placed before 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 proceed to a final hearing date before a judge.

2. That my reasons for judgment this day be brought to the attention of the coordinating registrar.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Wilde & Clives.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC9494 of 2007

MS WILDE

Applicant

And

MR CLIVES

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.

3. The proceedings began with an application by the mother filed on 22 August 2007 seeking a recovery order in respect of two children; an older son who was born in August 1994 and who is therefore aged 13 years and a younger son who was born in February 1999 and who is therefore almost nine years of age.  There had been orders made by the Federal Magistrates Court of Australia on 14 November 2005 under which those two children were to live with the mother and the father was to have time with them on two weekends out of three.  It is noted that there were also non-denigration orders made at the same time.

4. It would appear that there were disputes between the older son and his mother which gave rise to the intervention of the police and now the Department of Human Services but none of that seems to have been significant. 

5. The respondent filed material on 29 August 2007 opposing the granting of the recovery order but only seeking that the older child live with him.  However on 13 November 2007, the father filed a response document seeking that both children live with him.  In essence that is the current dispute.

6. The recovery order application came on before Guest J on 29 August 2007 and the parties agreed to a splitting of the two children so that the older son lived with his mother and the younger son lived with his father.  An Independent Children’s Lawyer was then appointed.

7. On 17 October 2007 and 15 November 2007, the matter was heard before Senior Registrar Fitzgibbon who effectively continued the splitting arrangement.

8. On 3 December 2007, an affidavit was filed by Mr M who is a psychologist.  In his recommendation, he said that both children should live with their father and that the mother see the boys initially on a supervised basis with an appropriate adult supervising.  The time he recommended was limited to day time.  Having regard to the fact that this recommendation was completely inconsistent with what the parties had consented to, the issue is one not so much of the splitting of the siblings but rather whether it is appropriate for the mother to be caring for the younger son.

9. In his report attached to the affidavit, Mr M said that the younger son told him that he wanted to live with his mother.  Mr M said that the degree of antagonism between the younger son and his mother was not as high as that of the older son but that if the alleged physical abuse pattern in the older son’s case followed for the younger son, there would obviously be a similar problem. 

10. As a consequence, an application by the mother has been made to expedite the hearing.

11. The applicant for the expedited hearing says that the existing orders provide for the splitting of the siblings and that is not in the best interests of the children.

12. The respondent to the application for the expedited hearing says he has no objection to that course of action.

13. The Independent Children’s Lawyer did not file a submission in the matter.

14. In this case I am satisfied that there is a professional report alluding to concerns about the care of one of the children and making recommendations that are completely inconsistent with the arrangements that the parties themselves have agreed upon.  Those recommendations however are based on evidence which has not been tested.  I have noted that the Department of Human Services has been made aware of the family’s circumstances but has not taken any steps to intervene. 

15. This is a matter that does require expedition even though that will place the case ahead of other matters.

16. I propose to order that the matter be immediately managed by a registrar who will prepare the matter for a hearing.  In the course of that preparation however, it may be apparent that the matter can be more appropriately determined by the Federal Magistrates Court of Australia and if that is so, in the discretion of the registrar, the case may very well be transferred to that court for an expedited hearing.

17. Finally, the mother in her submissions said that a further family report should be obtained from a person other than Mr M who has, according to the mother, left himself open to criticism because of his partiality.  I certainly do not read the material that way and it would be an unusual circumstance for the Court to put the children through another psychological examination in circumstances where they have already developed a rapport with Mr M.  I do not intend to fetter the discretion of the registrar and/or any other court in the preparation of this matter for trial but an examination of that report of Mr M would not lead me to conclude that he was biased in any way.  As he said, the evidence needed to be tested.

18. I intend to direct that the matter be listed for an expedited final hearing as soon as possible.

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

Associate: 

Date: