ZAMMIT & ZAMMIT AND ANOR

[2018] FamCA 533

FAMILY COURT OF AUSTRALIA

ZAMMIT & ZAMMIT AND ANOR [2018] FamCA 533

FAMILY LAW – PRACTICE AND PROCEDURE – application for expedition – application granted.

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

RESPONDENT: Ms A Zammit

SECOND RESPONDENT: Ms B Zammit

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 10480 of 2016

DATE DELIVERED: 20 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Collins House Legal

SOLICITOR FOR THE RESPONDENT: McNamaras Barristers & Solicitors

SOLICITOR FOR THE 2^ND RESPONDENT: DSA Law

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

Orders

1. That all extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

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 Zammit & Zammit 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 10480 of 2016

Mr Zammit

Applicant

And

Ms A Zammit

First Respondent

And

Ms B Zammit
Second Respondent

REASONS FOR JUDGMENT

1. The husband who is the applicant in the substantive proceedings seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).

2. On 18 April 2018 Registrar Sudholz made orders that all extant applications of the parties be adjourned to a date to be fixed before me to determine whether to expedite the final hearing. Registrar Sudholz also made the following orders:

   2. That by 4 pm on 2 May 2018, the party seeking the expedited hearing file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.

   3. That within 7 days of receipt of the applicant’s summary of argument, the responding parties, file and serve a document indicating his or her support of or objection to the application for expedition.

   4. That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at …

   5. That unless Her Honour directs otherwise, determination of the issue of priority be heard and finalised in chambers.

   6. That in the event the matter is not expedited, it be referred to the docket Registrar for re-listing.

3. The husband emailed his summary of argument to my associate on 1 May 2018 in compliance with those orders.

4. Neither the first nor the second respondent has filed any document indicating their support of or objection to the application for expedition.

5. The Independent Children’s Lawyer was not ordered to file any documents indicating their support of or objection to the application for expedition, and accordingly has not filed any document.

6. These are my Reasons for Judgment with respect to the husband’s application for expedition.

Background

1. The husband is aged 45 and the wife is aged 43. They commenced cohabitation in February 2006, married in the same year and separated in March 2016.

2. The second respondent is the husband’s mother. She is aged 69.

3. There are two children of the relationship between the husband and the wife, X aged 10 and Y aged six.

4. On 27 October 2016 the husband filed an Initiating Application in the Federal Circuit Court seeking orders relating to parenting and property.

5. The wife filed her Response to Initiating Application on 14 December 2016.

6. Interim orders were made by consent on 19 December 2016 by Judge Jones which provided for the children to live with the wife to spend time with the husband.

7. Further interim orders were made by consent on 19 April 2017 by Judge Harland which provided for the children to spend supervised time with the husband. Supervised time commenced between the husband and the children in April 2017 and continued until 7 October 2017. 

8. On 5 September 2017, almost one year after the commencement of the proceedings, the final hearing listed 26 February 2018 was vacated and the outstanding applications were transferred to this Court.  Notation A to that order notes that the matter was transferred to this Court due to:-

   …third parties seeking to be joined, constructive trust arguments with respect to property, and the parenting issue also remains ongoing.

9. That day interim orders were made by consent suspending the operation of order 2 of the orders dated 19 April 2017 in relation to the children spending supervised time with the husband and it was ordered that any further time to be spent between the husband and the children be by agreement and in writing.  Further orders were also made that the parties and the children attend upon Ms C for reportable family therapy. 

10. Following the transfer of the matter to the Family Court of Australia, on 8 November 2017 orders were made by Registrar Sudholz by consent that the Independent Children’s Lawyer be at liberty to appoint an alternative therapist to give effect to the orders for reportable family therapy. 

11. That day orders were also made for the second respondent to be joined as a party to the proceedings.

12. Orders were made by Registrar Sudholz on 18 April 2018 that within 21 days the second respondent (being the husband’s mother) file an Amended Statement of Claim. That document was filed on 9 May 2018. The orders also provided that any defence to the amended statement of claim be filed 21 days after the Statement of Claim is filed.   The husband’s defence was filed out of time, on 28 June 2018.  To date the wife has filed no defence to the second respondent’s amended statement of claim.

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. The husband’s summary of argument only addresses the parenting aspects of the proceedings.  In circumstances where there has been no order to bifurcate the proceedings I must consider all outstanding applications when determining the application for expedition.

2. The husband’s submissions do not address any of the considerations the Court must take into account under rr 12.10A(2)(a)-(c) of the Rules.

3. Doing the best I can absent any submissions with respect to those matters, I note that the husband commenced proceedings in the Federal Circuit Court in October 2016. The husband filed his submissions seeking that the matter be expedited in May 2018 in compliance with the orders of Registrar Sudholz.  To that extent, I am satisfied that the husband has acted reasonably and without delay in the conduct of the matter.

4. The wife and second respondent have not filed any argument in support of or opposing the application for expedition. In circumstances where the wife and second respondent are silent as to any prejudice that would be suffered by them were the proceedings expedited, I am satisfied that the expedition will not cause prejudice to the parties (r 12.10A(2)(c) of the Rules).

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. The father relies on the report of Ms D, the family therapist appointed pursuant to the orders dated 8 November 2017.  That report is dated 29 January 2018 and filed 16 April 2018. He submits that the report confirms that the mother is “emotionally and psychologically harming the children” and that the mother’s “toxic parenting style” could be causing the children long term emotional and psychological damage.

7. In particular the father relies on parts of paragraphs 57, 59, 62 and 63 of Ms D’s report. For completeness and context I have set out those entire paragraphs below:

   57. Even if it was possible to create circumstances where the children could spend some time with their father, as occurred during the first set of appointments, the girls have to return to their mother and be confronted with her reactions. They have to show their loyalty to her and conform to her views. They cannot possibly be able to enjoy a visit with their father knowing what will happen on return. This too was demonstrated after the first session when the children did spend a pleasant time together. The mother was visibly angry at the rooms. The children’s report to her was the opposite of what actually happened. It resulted in the mother’s further anger. The most significant consequent was that it was even more difficult for each of the girls at the next session. [X] was angry, distressed and more entrenched in her stance and irrational explanations and [Y] steadfastly refused to leave her mother’s arms, hiding her face and hiding from having to be confronted with the issue. The consequent was ultimately more harmful for the children.

   …

   58. These circumstances raise the question as to whether the mother’s parenting is in the best interests of the children. The girls are being led to believe they were abused and that they have good reasons to be frightened of their father. There was a history of spending time with the father after the alleged abuse was said to have occurred and without these alleged grievances being relevant. The children do not appear to have a memory of abusive behaviour of their own accord, and [X’s] grievances apart from purportedly being hit with a belt which was vaguely remembered, were trivial. She, more than [Y], is developing anxious responses to non-threatening situations and encouraged to perceive non-threatening situations as harmful or as provoking fear. This has led the child to develop irrational responses and to make illogical statements. Together, these can be the foundations of an anxiety disorder. The mother’s histrionic, and reactive personality have also been a role model for the children and, from the father’s past examples, the children have been encouraged to act in a similar manner. I am of the opinion that the mother’s behaviour is detrimental to the children and of itself emotionally abusive.

   …

   62. [The father] presented as generally reasonable and even-tempered. In contrast to the wife, his temperament appears stable and he demonstrated good abilities to understand and to be empathic. Despite the circumstances, he tended to be moderate in his comments. I would have few if any doubts about his parenting abilities and capacity to care for the children. He has not applied for residence but for shared or equal parenting and will give further thought to his future directions for the Court proceedings.

   63. The purpose of the therapeutic counselling was to assist the children to spend time with their father and for them to resume their relationship with him. I have reluctantly come to the unfortunate, though very clear conclusion that the children cannot spend time with [the father] through psychological intervention given the circumstances of their living arrangements and the influence of their mother.

8. The husband submits that the children’s living arrangements with the wife are a “major problem” and this harms the children. He asserts that it is clearly not in the children’s best interests to live with the wife.

9. The husband further submits that the longer the children live with the wife the more “alienated” they will became from him and the greater the risk of harm occurring to their emotional and psychological wellbeing.

10. In conclusion, the husband submits that an expedited hearing is required to test Ms D’s conclusions as “if such conclusions are found to be sound, the risk of harm to the children by not expediting such hearing is very real and could have lifelong adverse repercussions for the children and their wellbeing”.  The determination of the parenting dispute, including the issues raised by Ms D is ultimately a matter for the trial judge.

11. However, the concerns raised in that report support the expedition of the final hearing. In particular, Ms D’s report as to the mother’s presentation and influence on the children raises significant concern. Ms D’s evidence, whilst untested, indicates that the mother’s behaviour may be detrimental to the children and emotionally abusive. That evidence raises concern that the current interim orders may be visiting hardship upon the children (r 12.10A(4)(d) of the Rules). Further, that evidence supports a finding that an expedited trial may protect the children from serious emotional or psychological trauma or limit such trauma (r 12.10A(4)(e) of the Rules).

12. While the evidence of Ms D is untested, neither the wife nor the second respondent make any submission against the proposed expedition of the proceedings.  In the circumstances, where is no evidence of prejudice to the other parties in the event of expedition, where the husband has acted reasonably and without delay in bringing his application, and continuation of interim orders gives rise to a situation where the children are currently spending no time with the husband, I am satisfied that this matter should be afforded priority.

13. There is no suggestion that the parenting and property applications should be bifurcated. In those circumstances it is appropriate that all issues be listed to a judicial docket as soon as is reasonably practicable.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 July 2018.

Associate: 

Date:  20 July 2018