Yates & Woodford and Ors [2018] FamCA 112 (27 February 2018)

Last Updated: 8 March 2018

 

FAMILY COURT OF AUSTRALIA

 

Family Law Rules 2004 (Cth)

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

 

 

 

 

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 Yates & Woodford and Ors 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).

FILE NUMBER: MLC 4475 of 2017

Applicant

And

Respondent

And

Mr Calder

Second Respondent

And

Mr Eade

Third Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The mother, who is the respondent in the proceedings, seeks the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The application is opposed by the maternal grandmother, who is the applicant in the principal proceedings.
2. Orders made by Senior Registrar FitzGibbon on 29 November 2017 provided for the mother to submit a summary of argument seeking an expedited hearing by 13 December 2017. The mother relies upon her summary of argument dated 13 December 2017. The maternal grandmother relies on her response to summary of argument dated 21 December 2017. Neither the second nor third respondents, who are the fathers of the children the subject of the proceedings, have filed summaries in response to the mother’s application.
3. These are my reasons for judgment with respect to the mother’s application for priority.

BACKGROUND

4. The mother has five children. The two eldest children, B born in 2005 (age 12) and C born 8 in 2006 (age 11) are the children of the mother and the third respondent. The three younger children, D born in 2008 (age nine), E born in 2010 (age seven) and F born in 2014 (aged four) are the children of the mother and the second respondent.
5. The third respondent has not had significant time with B and C since they were infants and has not participated in the proceedings. The mother remains partnered and lives with the second respondent.
6. Currently, the three older children, B, C and D are in the care of the maternal grandmother in Victoria and the two younger children remain in the care of the mother and the second respondent, who live in Queensland.
7. In March 2017 the maternal grandmother was contacted by the mother (after not having heard from her in a number of years) and was asked to assist in the care of the children due to the mother suffering a relapse of multiple sclerosis. The maternal grandmother offered to take the three older children to Victoria to assist in their care and the mother and second respondent agreed. B, C and D have remained in the maternal grandmother’s care since that time.
8. In May 2017 the maternal grandmother filed an Initiating Application in which she sought orders for sole parental responsibility for the five children and that they live with her. On the same date the maternal grandmother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence in which she alleged the children were exposed to family violence including physical and verbal abuse at the hands of the second respondent, that they were neglected and exposed to illicit drug and alcohol abuse by the mother and the second respondent. Those allegations are denied by the mother.
9. On 11 May 2017 ex parte orders were made by Macmillan J that until further order B, C and D live with the applicant grandmother, that an Independent Children’s Lawyer be appointed and that the matter otherwise be adjourned to the Senior Registrar’s list.
10. On 23 May 2017 interim orders were made by Senior Registrar FitzGibbon that until further order the children spend time with the mother each Saturday from 10.00 a.m. to 5.00 p.m. Orders were made for a s 11F assessment and the matter was otherwise adjourned to 11 July 2017.
11. The Child Protection response to Notice of Risk dated 30 June 2017 concluded that B, C and D “would be at an unacceptable level of physical and emotional harm should they return to Queensland and reside with their mother and [the second respondent]”. That report noted that the applicant grandmother was acting protectively and supported the children remaining with the maternal grandmother.
12. On 1 August 2017 further orders were made by consent by Senior Registrar FitzGibbon which provided for the mother to spend time with the three older children on two occasions upon specified conditions.
13. Further orders were made by the Senior Registrar on 29 November 2017 which provides, inter alia, that those children spend time with the mother on the first Saturday of each month from 9.30 a.m. to 4.30 p.m. All interim applications were otherwise dismissed.

LEGAL PRINCIPLES

14. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. As set out in the Rules:

(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

15. The mother submits that the circumstances which support an expedited hearing are as follows:
    • The adverse emotional impact caused by the siblings being separated from each other and their parents;
    • The interim orders which provide for the mother and the second respondent to spend time with the three eldest children once a month are difficult to abide by because it is prohibitively expensive for them to travel to Victoria;
    • She suffers from multiple sclerosis and her health needs contribute to her financial hardship;
    • The child B requires surgery and the wait time for the surgery is lengthy in Victoria;
    • The maternal grandmother is alienating the children and denigrating her;
    • The maternal grandmother works late nights and the mother is concerned the children are not adequately cared for during those periods.
16. The maternal grandmother relies upon the following circumstances in support of her opposition to the mother’s application for expedition:
    • Expedition is not in the best interests of the children as sufficient time is required for the preparation of family reports, counselling and psychiatric assessments;
    • The children have been exposed to child abuse and family violence by the mother and the second respondent;
    • The children have expressed a strong desire to not live with the mother and the second respondent;
    • The children were neglected in the mother’s and the second respondent’s care, with the mother failing to attend to their medical, hygienic and nutritional needs.
17. I am satisfied that the mother has acted reasonably and without delay in relation to her application for an expedited hearing. The application was filed within the timeframe provided by the orders of 29 November 2017. I am also satisfied that the mother has acted reasonably and without delay in relation to the conduct of her case, responding to the maternal grandmother’s Initiating Application a little over a month later. Issues of delay and whether a party has acted reasonably are not central to my determination of whether to expedite the hearing.
18. The mother complains that she is suffering financial hardship as a result of the current interim orders which provide for her to spend time with the children in Victoria on a monthly basis. Those orders dated 29 November 2017 were made by consent. Given the mother agreed to the interim orders, I do not accept her contentions with respect to financial hardship.
19. The factors that I consider most relevant in my determination of the mother’s application for priority are the allegations of family violence, abuse and neglect of the children in the mother’s and the second respondent’s care. The Department of Health and Human Services (“DHHS”) concluded that the three older children would be at an unacceptable risk if returned to the care of the mother and the second respondent. There is a pending protective investigation being conducted by Child Protection in relation to the two younger children, E and F.
20. The disclosures of abuse, neglect and exposure to family violence made by the children to Dr G, the family consultant and reported in the Children and Parents Issues Assessment dated 7 July 2017 (“the Assessment”) are deeply concerning. The mother and the second respondent vehemently deny those allegations, save that they admit the use of marijuana. Dr G observes at paragraph 36 of the Assessment that the separation of the sibling group is unsettling and upsetting to the children. In my view, this is a significant factor which supports this matter being afforded priority.
21. The mother for her part alleges the maternal grandmother has not attended to the children’s medical care, in particular, a hernia operation for B. The maternal grandmother challenges that allegation and submits that B had this operation in December 2017. The mother also alleges that the children are at risk in the maternal grandmother’s care and that she alienates the children. The mother has applied for a Domestic Violence Order protecting herself, the second respondent and the five children from the maternal grandmother which is listed on 26 March 2018 in Queensland. The maternal grandmother has indicated she will be “vigorously” defending the proceedings. The mother is also critical of the maternal grandmother’s care, alleging that the children are not adequately cared for when she works. Again, this allegation is denied by the maternal grandmother.
22. The mother’s submissions largely focus on the many factual disputes between the parties. Until such time as the parties’ evidence can be tested at a final hearing, no findings can be made with respect to the allegations. Nonetheless what is clear from the submissions filed by both the mother and maternal grandmother is that the parties have highly conflictual and acrimonious relationships. The assessment of Dr G indicates that the children are likely aware of and have been exposed to that conflict and are affected by it.
23. Since the commencement of these proceedings in May 2017 there have been no less than six interim hearings.
24. Having regard to all those factors, I am satisfied that this is a matter that warrants priority to the possible detriment of other cases awaiting a hearing. In my view the very serious allegations of family violence, neglect and abuse, which have been substantiated by DHHS, coupled with the fact that the sibling group is currently separated, are factors which overwhelmingly support the granting of priority to this matter.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 February 2018.

Associate:

Date: 27 February 2018