Anton and Heery

[2010] FamCA 349

FAMILY COURT OF AUSTRALIA

ANTON & HEERY [2010] FamCA 349

FAMILY LAW – CHILDREN – BEST INTERESTS – Father filed application for final parenting orders after child witnessed a murder while in mother’s care – Father later filed a notice of discontinuance in circumstance of child’s strong wish to remain with mother – Parties earlier signed proposed consent orders which they anticipated would be filed but had not been lodged – Orders made in terms of the proposed consent orders – No appearance by father – Observations as to procedural fairness

APPLICANT: Mr Anton

RESPONDENT: Ms Heery

FILE NUMBER: BRC 8232 of 2009

DATE DELIVERED: 11 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 11 March 2010

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Ms Kaur
Carroll Fairon Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Shaw
Christine Vachon Solicitors

Orders

IT IS ORDERED

1. The mother’s application made by way of her response filed on 22 September 2009 is dismissed. 

AND IT IS FURTHER ORDERED ON THE MOTHER’S APPLICATION NOT OPPOSED BY THE INDEPENDENT CHILDREN’S LAWYER

1. In terms of the proposed consent parenting orders signed by the parties on 15 and 16 October 2009, exhibit 1, reproduced as Annexure A to these orders.

AND IT IS FURTHER ORDERED

1. The father within 28 days may apply to set aside the parenting orders made today.

2. The independent children’s lawyer is discharged 30 days from today.

IT IS NOTED that publication of this judgment under the pseudonym Anton & Heerey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Annexure A

1. That the Orders made by the Family Court of Australia and the Orders made on 18 September 2009 by the Federal Magistrates Court at Brisbane be wholly discharged.

2. That the child [C] born […] December 1997 reside with the mother.

3. The parents shall have equal shared parental responsibility in consultation with each other, for decisions regarding the child’s long term care, welfare and development.

4. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility in a timely manner as follows:

   4.1.they shall inform the other parent about the decisions to be made;

   4.2.they shall consult with each other on terms that they agree;

   4.3.they shall make a genuine effort to come to a joint decision.

5. That notwithstanding the provisions of Order 3:

   5.1the Mother shall be responsible for the daily care, welfare and development of the child when the child is spending time with her;

   5.2the Father shall be responsible for the daily care, welfare and development of the child when the child is spending time with him.

6. That the child shall spend time with and communicate with the father at all such reasonable times as are agreed between the parties and the child.

Exchange of Information

1. That the Mother and Father shall:

   7.1keep the other parent informed at all times of their residential address and landline contact telephone number;

   7.2keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

   7.3inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

2. That during the time the child is with either parent, that parent shall:

   8.1respect the privacy of the other parent and not question the child about the personal life of the other parent;

   8.2speak of the other parent respectfully;

   8.3not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

Dispute Resolution

1. That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:

   The parents shall consult with a Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching an agreement about changes to be made to the parenting arrangements for the child.

2. That all applications otherwise be dismissed.

3. That there be no Orders as to costs.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC 8232 of 2009

MR ANTON

Applicant

and

MS HEERY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings were commenced by initiating application filed by Mr Anton (the father) on 15 September 2009 concerning the child C born in December 1997, now 12 years.  The respondent to the application is Ms Heery (the mother). 

2. The circumstance of the father’s filing of his initiating application was that the child witnessed the murder of the mother’s partner and a violent assault on the mother each performed by a man who according to the material is called “L”.

3. The following day the father took the child into his care and promptly commenced the proceedings in which he sought a final order that the child live with him, spend time with the mother and other orders. 

4. On 18 September 2009, Federal Magistrate Howard ordered that the child be represented and that an independent children’s lawyer be appointed, that final parenting orders which had been made in the Family Court of Australia on 17 October 2002 be suspended until further order and other orders.

5. The mother by response filed 22 September 2009 sought that a recovery order issue against the father for the child’s return to her care and that the father’s initiating application be dismissed. 

6. The father’s material in support of his application contained allegations of a repeated history of violence concerning the mother’s relationships.  This caused Registrar Coutts on 19 November 2009 to seek, by way of notation to procedural orders which she made on that date, that the independent children’s lawyer request Legal Aid funding for the purpose of preparing a family report in particular addressing the mother’s relationship with the child and the issues of risk raised in the father’s affidavit filed 15 September 2009.

7. Mr Shaw was appointed as the independent children’s lawyer. 

8. He has said today that when he applied for Legal Aid to obtain funding for a family report it was refused on the basis that the father said he would not participate.  The father, as events transpired, on 12 October 2009 had filed a notice of discontinuance in relation to his initiating application.  Registrar Coutts, on 19 November 2009, set down the mother’s application contained in her response for an undefended hearing and ordered the mother to give notice of the listing to the father. 

9. That is the listing that has come before me today.

10. For the record, I should observe that the listing made was for 29 March 2010 in the Honourable Justice Barry’s Duty List.  However, he is presently on leave and the matter was brought forward to today in my list. 

11. The circumstance of the filing of the father’s notice of discontinuance is explained by reference to two of the exhibits which have been tendered today, exhibits 1 and 3. 

12. Exhibit 1 is a document identified by the mother today while giving brief oral evidence as the original of some proposed consent final parenting orders for the child which the mother signed on 15 October 2009 and which the father signed on 16 October 2009 that the 17 October 2002 orders be discharged, that the child live with the mother, that the parents have equal shared parental responsibility, a mechanism for that and other orders including relating to exchange of information and dispute resolution.  In relation to the child communicating with and spending time with the father, the then proposed consent final orders provided that she spend time with and communicate with him at all such reasonable times as are agreed between the parties and the child.

13. Exhibit 3 is a letter dated 1 October 2009 from Berck & Associates, the father’s former solicitors, to Frank Carroll Solicitors, the mother’s former solicitors, referring to their intention on the father’s behalf to file a notice of discontinuance and to file in the Court what is described in the letter as “the enclosed Minutes of Consent” which the father proposed be signed by the parties. 

14. There is an anomaly in the letter, in the third paragraph, in that it refers to this course as then disposing of the current proceedings but permitting the 2002 orders to “resume operation”.  This plainly is not the effect of the enclosed Minutes of Consent, ultimately signed on 15 and 16 October 2009, exhibit 1, to which I have referred.  However, I regard that as, plainly enough, an error of description in the letter.

15. The father has not appeared today.  I am satisfied by exhibit 2, a letter dated 9 March 2010 sent to him by the mother’s solicitors to his last known place of address, indeed, as it appears from the material to be the address at which the father lives and for several years has lived, advising of the listing today of the matter.

16. The only matter for listing however is the mother’s application contained in her response for a recovery order and that the father’s initiating application be dismissed.  Both of these have been overtaken by events, because the child already is again living with the mother and the father’s initiating application has been finalised by the notice of discontinuance. 

17. The mother sought, however, in all of the circumstances, that I make final parenting orders in the terms of exhibit 1 on the basis that both she and the father had anticipated that such had been filed as signed proposed consent orders and already made. 

18. The mother today gave brief oral evidence including that the child was returned to her care and from about the time of the proposed consent orders has lived with her at the maternal grandparents’ home, and that since then the mother, the subject child, the maternal grandmother and the mother’s other daughter, who is four and a half years, have resided there and continue to reside there.

19. There is no evidence at the moment as to when any trial concerning “L” and the mother’s partner’s death may occur.  However, the mother gave evidence today that Mr L is in prison and thus, I assume, is in custody pending a trial. 

20. The mother gave evidence today, which I accept, that the child presently does not appear to have any particular problems or difficulties and is getting on well.

21. Now, it seems to me to be plain that as a recovery order no longer is sought I should, as invited by Ms Kaur, Solicitor, who appears for the mother, dismiss the mother’s response.  That would put an end completely to the proceedings.

22. Such proposed course necessitates the observation that the interim orders made by Federal Magistrate Howard on 18 September 2009 plainly also would come to an end with effect however that the 2002 final parenting orders would then resume effect.  That, however, is not what the child’s parents would wish or intend.  If I have regard to what the child’s parents intended to occur last October, and indeed, I have no doubt on the material, they anticipated already has occurred, I would proceed now to make orders in the terms of what they proposed as consent final parenting orders last October, exhibit 1.

23. There is a procedural difficulty in that the father is not here today and has not had specific notice that the mother today would seek orders in the terms of exhibit 1.  However, I am satisfied by exhibits 1 and 3 that, more likely than not, the father has acted on the presumption that the proposed consent orders already were filed last October and thus have been pronounced and come into effect.

24. The 2002 orders are now nearly eight years old and no longer relevant to the child’s circumstances. 

25. Mr Shaw, the independent children’s lawyer, has stated that he does not oppose orders now being made in the terms of exhibit 1. 

26. The mother has said in evidence that presently the child is not spending time with the father and there is no communication.  However, there is provision in the proposed orders, ex 1, for that to occur.

27. It seems to me that the child’s best interests would be met by my making the orders which the father and the mother proposed as final consent parenting orders last year. 

28. I am satisfied that although the father does not have specific notice today of the making of those orders today, nonetheless he has intended that they be made.  Thus, I would refer to part of ex 3, which is the letter from his former solicitors to the mother’s former solicitors, 1 October 2009:

    In consideration of [the child’s] strong wishes our client reluctantly takes into account the wishes of his daughter in instructing us to discontinue his proceedings and propose that the parties enter into Consent Orders to discharge all orders made in the Federal Magistrates Court on 18 September 2009.

    We have prepared the enclosed Minutes of Consent that our client proposes be signed by the parties.  Could you please have your client sign the same and return them for signature by our client.  We will then file them in the Family Court together with our client’s Notice of Discontinuance.  These will then dispose of the proceedings and permit the Orders made in [the Family Court] in 2002 to resume operation in relation to all parenting matters.  If this can be done prior to the mention date in the Family Court on 19 November 2009, there should be no need for any appearance on that day.

29. I have referred already to the obvious error in the letter concerning resumption of the 2002 orders.  However, it is plain that the solicitors held instructions from the father to submit the orders signed by him on 16 October 2009 to the Court to be made and pronounced as final consent parenting orders.

30. In all of the circumstances, I will make those orders, dismiss the mother’s response and order that the father have 28 days to apply to set aside the orders thus ensuring procedural fairness to him. 

31. It is appropriate in these circumstances that I discharge the independent children’s lawyer in 30 days, and I will so order. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:     

Date:              6 May 2010