Wilson and Wilson

[2018] FamCA 76

FAMILY COURT OF AUSTRALIA

WILSON & WILSON [2018] FamCA 76

FAMILY LAW – PRACTICE AND PROCEDURE – application for expedited hearing – application refused.

Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 12.10A
APPLICANT:	Mr Wilson

RESPONDENT: Ms Wilson

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 12435 of 2016

DATE DELIVERED: 20 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Freeman Family Law

SOLICITOR FOR THE RESPONDENT: Hall Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

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 Wilson & Wilson 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 12435 of 2016

Mr Wilson

Applicant

And

Ms Wilson

Respondent

REASONS FOR JUDGMENT

1. Pursuant to orders made by Senior Registrar FitzGibbon on 13 December 2017 all extant applications were adjourned to a date to be fixed before me to determine whether to expedite the final hearing.

2. The father filed his summary of argument on 15 January 2018 seeking the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

3. That application is supported by the Independent Children’s Lawyer (“the ICL”) who relies on a Summary of Argument dated 23 January 2018.

4. The mother opposes the father’s application.  She relies on her Response to Summary of Argument filed 24 January 2018.

5. These are my reasons for judgment with respect to the application for expedition of the final hearing.

BACKGROUND

1. The parties have two children, C aged 13 and B aged 9.

2. The proceedings commenced by Initiating Application filed by the father on 20 December 2016. The father also filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence alleging that the mother “exhibits symptoms of personality or psychological disorder”, that the mother had verbally and physically abused him, that the mother verbally abused him in the presence of the children and that the “wife has alienated the children and involved the children in the financial dispute between the parties and has caused the children anxiety”.

3. The mother filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence on 30 January 2017 containing a number of allegations of family violence perpetrated by the husband towards the mother and children. Further it stated that the children have expressed fear of the father and have refused to spend time with him.

4. On 19 January 2017 interim orders were made by consent by Registrar Lethbridge that provided that children live with the mother and spend time with the father during the day on Sundays with his brother to be in substantial attendance at all times. An order was also made for the preparation of an s 11F report and for the parties to jointly engage Ms D to undertake reportable therapeutic counselling with the parties and the children.

5. It is common ground that the parties attended upon Ms D on only one occasion. The reason why that reportable therapeutic counselling did not continue is one of the many disputed issues between the parties.

6. On 12 April 2017 the s. 11F report prepared by Ms E was released.

7. On 2 May 2017 interim orders were  made by consent by Senior Registrar FitzGibbon which provide that from 21 July 2017 the children spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Tuesday and each alternate Tuesday from the conclusion of school until the commencement of school Wednesday.

8. On 29 June 2017 the parties consented to orders that they attend upon Dr F, or such other Psychologist as agreed, for the purposes of reportable family therapy. The parties commenced therapy with Dr F and have attended four sessions.

9. Further interim orders were made by Senior Registrar FitzGibbon on 13 December 2017 which provided for the father to spend time with the children over the long summer holiday period and for the children’s time with the father pursuant to the orders made on 2 May 2017 to resume after those holidays on 2 February 2018.  All interim applications were dismissed and the matter was placed in the list of cases awaiting allocation to a judicial docket.

Legal Principles

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

2. 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

1. Neither the submissions filed on behalf of the father nor the mother directly address the matters raised in r 12.10A of the Rules. Rather, those submissions focus on the allegations made by each in support of their respective parenting applications. From the father’s perspective, those allegations centre upon his contention that the mother is unsupportive of his relationship with the children and that she is actively alienating the children from him. The mother denies those allegations and maintains that the father has a poor relationship with the children due to his failure to engage with them in the period prior to the parties’ separation. Absent a testing of evidence I am unable to make findings with respect to the parties’ contentions.

2. Helpfully the Independent Children’s Lawyer has addressed the matters in r 12.10A of the Rules.

3. It does not appear contentious and I am satisfied that the husband has acted reasonably and without delay in the conduct of the proceedings and in making this application.

4. The Independent Children’s Lawyer submits that there would be no prejudice to the mother or the Independent Children’s Lawyer were the final hearing expedited.  In circumstances where the mother makes no submission as to any prejudice that would be suffered by her were the proceedings expedited I am satisfied that the expedition will not cause prejudice to the parties.

5. Rule 12.10A(2)(d) of the Rules also 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).

6. It is the father’s case that this is a “case of extreme parental alienation” by the mother. The father submits that prior to the proceedings the mother prevented him from seeing the children. Further he submits that despite the orders made on 2 May 2017 the children have had “sporadic and limited time” with him due to the mother’s actions. In his submissions the father also refers to behaviours exhibited by the children during the time they spend with him, including the children running away from him. The father also submits that the maternal grandparents have exacerbated the situation.

7. The Independent Children’s Lawyer relies on the following circumstances in support of the case being given priority:

   ·Pursuant to the contact ordered on 13 December 2017 changeovers have been supervised and changeovers have not “gone smoothly”;

   ·The children have lived with their mother since separation and have spent limited, intermittent time with the father since separation;

   ·The father seeks that the children live with him and the mother on a week about arrangement and the basis for seeking the change in living arrangements is “an allegation that the children are being thwarted from having a relationship with him by the Mother/maternal family”;

8. Further the Independent Children’s Lawyer and the father rely on the s 11F Report prepared by family consultant Ms E. At page 2 and 3 Ms E highlighted the following matters:

   ·The father considers the main issue to be the perceived obstruction of the children’s spend-time with him, arising out of the mother’s perceived alignment of the children.

   ·The mother considers the main issue to be the children’s expressed reluctance to spend time with the father, arising out of perceived emotional harm perpetrated by the father to them and her.

   ·The children’s main identified issue is that the father has allegedly verbally abused and neglected them.

   ·The children have been embroiled in parental distress and erratic and reactive behavior [sic] by both of the parents in the demise of their relationship and separation, rather than long term, entrenched family violence.  They are aligning with their mother in an unrealistic rejection of their father.

9. Further at page 4 and 5 of the report Ms E identified the following risk favours:

   ·The children have developed alignment with their mother and an unrealistic rejection of their father,. Unless remediated, this trend will become entrenched and will become progressively more difficult to reverse

   ·[C] is invested in protecting her mother in relation to the father and, being on the cusp of adolescence, she is at risk of the alignment becoming intractable unless she receives therapeutic intervention.

   ·[B] relies on his older sister as well as his mother to validate his position of alignment. Unless he receives therapeutic intervention, he will maintain his (unconscious) choice to support his mother.

   ·Without the opportunity to restore a meaningful relationship with both parents, the children will develop significant mental health issues from the above “splitting” behaviour [sic].

10. At paragraph 40 of her report under the heading Future Directions, Ms E noted that:-

    As a matter of urgency the family should seek a referral to a counsellor who specialises in reportable counselling regarding alignment of children post separation, such as [Dr F]. (There is a dearth of specialist counsellors and the mother refuses to continue with [Ms D]).

11. As noted above, the parties have commenced sessions with Dr F.  In the final paragraph of her submissions the ICL reports that Dr F indicated as at 27 November 2017 that it would be counterproductive to prepare a full report at that time as the parties appeared to be making progress.

12. The mother “strongly denies extreme parental alienation accusations”. It is her position that the father has “consistently damaged” his relationship with the children and his abusive behaviour has damaged the children emotionally. The mother submits that despite her encouragement of the children to spend time with the father they refuse to go “due to his aggressive conduct”. The mother’s submissions contain a number of allegations about the father’s behaviour towards the children including verbal abuse, assault and “lock down in his home”.  Again, they are allegations that require a testing of evidence at a final hearing. 

13. The mother relies on the following circumstances to oppose the father’s application for expedition of the proceedings:

    ·Dr F needs to have the opportunity to complete her intensive therapy with the children and parents;

    ·Dr F needs to write a family report after the appropriate therapy has taken place;

    ·Therapy can take up to twelve months to be completed and obtain the results needed to heal relationships.

    ·Therapy is already having a positive effect.

    ·At the time of filing of submissions the children were away with the applicant father in G Town and were due to return on 29 January 2018.

    ·The parents are taking this opportunity to rebuild their relationship as parents and friends.

    ·Dr F’s therapy is the most important tool to rebuild the family unit.

    ·There is no risk of alienation to the children, hence their current time away with the applicant father.

14. The Rules make it clear that the Court needs to balance whether the benefit that will be afforded to these parties by granting priority outweighs the detriment that will be caused to other cases similarly awaiting hearing. Some of the cases awaiting hearing involve serious allegations of family violence and child abuse and where it is alleged that children are at risk of harm. The mother submits that there has been family violence perpetrated by the father, however in May 2017 she consented to the father spending overnight time with the children, unsupervised.

15. Whilst the father contends this is a case of “extreme parental alienation” the father is currently spending time with the children. The parties have engaged with Dr F and it appears they intend to continue therapy with her. The Independent Children’s Lawyer submitted that as at 27 November 2017 Dr F expressed that a full report from her at that time would be counterproductive as there appeared to be progress.

16. At the time when the submissions were filed, Dr F was on leave and the Independent Children’s Lawyer submitted that “further indication from her as to progress in this matter is currently unavailable”. In the absence of any further updating material by Dr F against a backdrop when in November 2017 she reported there had been progress, I cannot justify affording this case priority to the detriment of other matters currently awaiting a final hearing.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 February 2018.

Associate: 

Date:  20 February 2018