Ashmore & Marsh
[2023] FedCFamC2F 1034
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ashmore & Marsh [2023] FedCFamC2F 1034
File number(s): MLC 6491 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 August 2023 Catchwords: FAMILY LAW – where children’s court proceedings commenced whilst judgment reserved – where section 69ZK of the Family Law Act 1975 (Cth) applied – proceedings dismissed. Legislation: Family Law Act 1975 (Cth), s 69ZK. Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 24 July 2023 Place: Melbourne Solicitor for the Applicant: Ms Gassanova, Cathleen Corridon & Associates Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Webb, Danielle Webb Lawyer ORDERS
MLC 6491 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ASHMORE
Applicant
AND: MR MARSH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 AUGUST 2023
THE COURT ORDERS THAT:
1.All extant applications are dismissed.
2.A transcript of the proceedings that were concluded where judgment was reserved be made available to the parties.
3.The parties be at liberty to provide the following documents to the Department of Families, Fairness and Housing (“Child Protection”) and/or the Children’s Court:
(a)Any relevant part of the transcript of these proceedings;
(b)Copy of the Family Report by Ms E dated 12 March 2020; and
(c)A copy of these Orders.
AND THE COURT NOTES:
A.After the hearing of the Father’s application for an order that the children spend time with him, and while judgment was reserved, Child Protection intervened in the children’s lives and Children’s Court orders were made. In those circumstances, because of the provisions of section 69ZK Family Law Act 1975 (Cth), this court no longer has jurisdiction.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter has had a lengthy history, including the substantial delay in release of the judgment in this court. I apologise to the parties for the delay. Whilst awaiting final judgment in this matter, the Department of Families, Fairness and Housing (“Child Protection”) intervened with the family.
On 17 April 2023 my chambers were contacted by the Mother’s lawyer to notify the court that Child Protection had placed the children, currently aged 12 and 11 years, on an Interim Accommodation Order to the Maternal Grandmother. The Mother’s lawyer indicated in that email that the matter was next before the Children’s Court of Victoria for a conciliation conference on 12 May 2023.
On 24 July 2023 I mentioned this matter via Microsoft Teams to obtain an update as to the status of Child Protection involvement. At that time, the Mother’s solicitor indicated that the children remained in the care of the Maternal Grandmother and it was understood Child Protection intervened on the basis of the Mother’s mental health. I was informed that pursuant to orders made in the Children’s Court on 26 June 2023, the children were to spend time with the Father four times per year, virtually. It was unclear to me what time, if any, the children were spending with the Mother.
On the basis of the Children’s Court proceedings, the Mother made application in this court to strike out these proceedings, with leave to obtain any documents from the proceedings including previous affidavits and the transcripts of the final hearing to rely on should proceedings be commenced in this court again. The Independent Children’s Lawyer did not indicate opposition to the Mother’s position. The Father informed me that his understanding was that Child Protection intended to make a Permanent Care Order in favour of the Maternal Grandmother, and in those circumstances, he also sought that these proceedings be struck out. He did not agree to the previous records of the court sought by the Mother to be kept for future proceedings.
I am prevented, pursuant to section 69ZK of the Family Law Act (1975) (Cth), from exercising jurisdiction for the further advancement of this case on the basis of intervention by Child Protection. In the circumstances as expressed to me by the parties, I consider it appropriate to dismiss all applications. In the event of further proceedings in this court, the use of already filed documents and record of these proceedings could be a matter for the court at that time. I make orders in the terms sought by the Mother and not opposed by the Independent Children’s Lawyer.
Those are my reasons.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 August 2023
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