Carter & Hendry (No 2)
[2022] FedCFamC1F 1070
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carter & Hendry (No 2) [2022] FedCFamC1F 1070
File number(s): SYC 7503 of 2019 Judgment of: KARI J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – PARENTING - Final Orders – Ex Tempore Reasons - Where the Mother did not participate in the hearing – Where the Court is satisfied that the mother was on notice of the hearing and the Final Orders promoted by the Independent Children’s Lawyer – Where the children are battle-worn and battle-scared– Where a resolution of the proceedings is in the best interests of the children - Final Orders made Cases cited: Carter & Hendry [2022] FedCFamC1F 1069 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 19 December 2022 Place: Adelaide (via videolink) The Applicant: Did not participate The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Phillips ORDERS
SYC 7503 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARTER
Applicant
AND: MS HENDRY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
19 DECEMBER 2022
UPON NOTING:
A.The Independent Children's Lawyer will explore options for family therapy or individual therapy for Z and will provide each of the parents some information about those options, within three months of the date of these orders.
B.That the Independent Children's Lawyer has indicated to the court that she will both email and send by post a copy of the final orders made this day to the Mother.
C.That the court shall send the Mother a copy of the orders made this day by email.
THE COURT ORDERS THAT:
1.The parenting orders made by the Federal Circuit Court in B Region on 31 July 2017 are discharged.
2.The registration of the overseas orders (being the orders made by the Family Court at City C on 24 September 2019 and registered in the Family Court of Australia on 27 November 2019) is cancelled pursuant to s 70(L)(5)(a).
3.The name of the child, Y born 2008, be removed from the Family Law Watch List in operation at all Australian international points of arrival and departure AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the child from the Airport Watch List upon presentation of the child for boarding.
4.The name of the child, Z born 2009, be removed from the Family Law Watch List in operation at all Australian international points of arrival and departure AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the child from the Airport Watch List upon presentation of the child for boarding.
Parental responsibility
5.The father have sole parental responsibility for Z.
Live with
6.That Z shall live with the father.
Time with
7.That Z will spend time with his mother as agreed between the parties in writing, and in accordance with Z's wishes.
Registration of orders in New Zealand
8.(a) The Registrar of the Federal Circuit and Family Court of Australia at Sydney shall forthwith provide to the Secretary of Justice, the Ministry of Justice, New Zealand:
(i)A certified copy of these orders;
(ii)A statement that the orders are currently enforceable in Australia, and
(iii)A written statement confirming that the mother, and Y, are present in New Zealand.
(b)The Court notes that this order is intended to effect the process for registration of overseas parenting orders in New Zealand where either parent may seek to enforce, vary or discharge an order under the relevant law in New Zealand pursuant to s 81 and s 82 of the Care of Children Act 2004 New Zealand.
(c)The Registrar of the Federal Circuit and Family Court of Australia at Sydney has leave to provide a copy of this order to the Australian Central Authority.
9.There be liberty to the independent children’s lawyer to apply to the Court, within 48 hours’ notice to the parties, in relation to the registration of these orders in New Zealand.
Travel
10.Provided the father has received confirmation that these orders have been registered in New Zealand, he shall be at liberty to remove Raphael from the Commonwealth of Australia for the purpose of taking him on an international holiday and the consent of the mother is not required for such removal.
Other orders
11.The father is to ensure that the mother has his residential address, mobile telephone number and email address, and advise her of any change to those details within forty eight (48) hours of any change.
12.The father shall notify the mother forthwith of any hospitalisation or serious injury suffered by Z.
13.The father shall authorise any school that Z attends to provide the mother with a copy of his school report.
14.The order appointing the Independent Children's Lawyer will be discharged within three months of the date of these orders.
15.There be liberty to the Independent Children's Lawyer to apply to the Court, within 48 hours’ notice to the parties, in relation to the registration of these orders in New Zealand.
16.That the Mother is restrained and an injunction is granted from coming within a 500 metre radius of the Father’s home.
17.That the proceedings otherwise be dismissed as finalised.
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 Carter & Hendry has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
INTRODUCTION
These proceedings relate to the parenting arrangements for the parties’ children Y, born 2008, and Z, born 2009.
These are the oral reasons delivered at the conclusion of a hearing on 19 December 2022 wherein I considered it appropriate to make orders finalising the parenting proceedings.
The hearing on 19 December 2022 proceeded in the absence of the mother.
Prior to the hearing on 19 December 2022 the matter had been before the court on both 15 and 16 December 2022. The mother participated in the hearing on 15 December 2022. The mother did not participate in the hearing on 16 December 2022.
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
MOTHER ON NOTICE OF HEARING & PROPOSED FINAL ORDERS
Before I come to the reasons as to why I am prepared to finalise the matter today, I first record that I am satisfied that the mother is on notice of today's hearing and that she has chosen not to participate.
I am satisfied that this is the case because I have the benefit of an affidavit filed and served by the Independent Children's Lawyer (‘ICL’) today, being 19 December 2022. With regard to that affidavit, it is to the ICL’s credit, that she has frankly, gone above and beyond to ensure that the mother has been on notice of all that has occurred in the proceedings since the hearing on 15 December 2022. That includes providing the mother with the draft minute of proposed final orders, there being an earlier version and then an updated version of those orders, prior to the hearing on 16 December 2022. In addition the ICL wrote to the mother after the hearing on 16 December 2022 advising her of the outcome of that hearing and the adjournment to today's hearing.
I note that in relation to the hearing on 16 December 2022 and the provision by the ICL to the mother of the draft minute of proposed final orders prior to that hearing, the mother, responded to that communication from the ICL. A copy of that communication is annexed to the affidavit from the ICL on page 15 of 28 of that document. In that communication the mother, on 16 December 2022 (Friday afternoon of last week), indicated that she did not agree to the draft minute of proposed final orders; especially paragraphs 5, 6 or 7. The mother additionally went on in that communication to make some further comments, some of which are disparaging of the Independent Children's Lawyer, the Court, the Court process, and the father.
In response to that communication from the mother, the ICL responded and indicated that it was incumbent upon the mother, in circumstances where she did not agree to the draft minute of proposed final orders prepared by the ICL, that she attend the hearing on 16 December 2022. The mother failed to attend that hearing.
I am certain that the mother was aware of the hearing on 16 December 2022 because she was present in Court (virtually) on 15 December 2022 when I adjourned the matter to 16 December 2022.
The mother failed to attend the hearing on 16 December 2022.
In terms of additional notice of the hearing on 16 December 2022, I note that I also had my associate email the mother during the course of the hearing asking her to join the Microsoft Teams hearing. Again, the mother failed to do so.
During the hearing on 16 December 2022, I delivered ex tempore reasons. I note that following the hearing my associate provided to the parties, including the mother, a copy of the Orders that I made. Those Orders not only advised the mother of today's hearing but they also made it clear to the mother that I would give consideration to finalising the proceedings at today’s hearing if the mother did not participate and seek to be heard.
I note that all of the communications to the mother have gone to the same email address to that which the ICL was successfully able to receive a response from the mother.
In all of those circumstances, I am satisfied, firstly, that the mother is on notice of today's hearing; secondly, that she is on notice of the Orders that the ICL proposes be made on a final basis, to which the father consents.
Against that background I am content to proceed to finalising the matter today
DISCUSSION
Turning to the substantive parenting issues before the Court, as I indicated in my reasons delivered on 16 December 2022 (Carter & Hendry [2022] FedCFamC1F 1069) and during my conversations with the parties and the Independent Children's Lawyer when I heard submissions on 15 December 2022, these proceedings have had a very long and tortured trajectory.
While I am sure each of the parents have their own views as to why the circumstances have arisen, what is undeniable from the Court Child Expert Report prepared on 25 August 2022 is that these children are battle-worn and battle-scarred and that they require these proceedings to come to a conclusion.
At the present moment, Y lives with her mother in New Zealand and Z lives with the father in Australia. Y has not seen either her father or her brother since 2019, and, vice versa, Z has not seen the mother or his sister since 2019.
The parenting relationship between the mother and Z, at this stage, appears to have irretrievably broken down.
So far as Y is concerned, while there has been some significant difficulties in her relationship with the father, I note the father's submissions that that relationship appears to be making very small steps in a positive direction such that they have resumed some level of communication.
I do not propose to say much more about the history of the matter at this juncture given I traversed those matters in the ex tempore reasons I delivered on 16 December 2022, which are fresh in my mind, to which I have had regard.
As I indicated last week, and as I have already repeated today, a resolution of these proceedings is, frankly, the obvious and only outcome for these children. Given the contents of the Child Impact Report, the reality is that it is unlikely that Z will travel to see the mother and Y in New Zealand in the foreseeable future. Equally, it is unlikely that Y will travel to Australia to see her father or Z in the foreseeable future.
In my view, what appears more likely is that when these children turn 18, they will take control of their own relationships, be it with each other and/or with their parents.
For all of those reasons, I am satisfied that it is in both children's best interests to bring these proceedings to a conclusion.
INJUNCTION SOUGHT BY THE FATHER
In addition to the orders proposed by the ICL I am conscious that the father asks the Court to make an injunction restraining the mother from attending within a 500 metres radius of his home. That is an order that I am content to make, albeit I note that, at this juncture, I consider it unlikely that the mother will come to Australia. Be that as it may, if it provides the father and, importantly, Z with a level of comfort, then I am prepared to make that order.
I am satisfied that the mother is on notice that the father proposed the making of such an injunction, given the orders that I made on 16 December 2022 drew her attention to the fact that the father would be seeking an order in those terms. I accordingly consider it appropriate to make that order.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 19 January 2023
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