Casilda & Annice
[2023] FedCFamC1F 992
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Casilda & Annice [2023] FedCFamC1F 992
File number(s): SYC 5388 of 2021 Judgment of: SMITH J Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – CHILDREN – International relocation – Family violence - Final hearing – Settlement on day 8 of Trial – Compelling evidence of family violence through financial and other coercion and control – Single expert and ICL support mother’s proposal in light of evidence at Trial – Father consents in light of evidence at Trial – Orders may be registered in Country B - Short oral reasons provided for approving settlement to give to any Country B Court which may be asked to reconsider children’s best interests at a future time.
FAMILY LAW – CHILDREN – Orders: Mother to have sole parental responsibility; Children live with mother; Mother may relocate children internationally; s 68B injunction on father; Father to have no time and no communication other than as determined by mother. Father to pay mother $250,000 indemnity costs of these proceedings, interim spousal maintenance until relocation and ICL’s costs.
Legislation: Australian Passports Act 2005 (Cth) Pt 2, s 11
Family Law Act 1975 (Cth) Pt VII, ss 68B, 68C
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.2, r 10.04
Cases cited: Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 7 – 16 November 2023 Place: Newcastle Counsel for the Applicant: Mr Bateman Solicitor for the Applicant: Bryant McKinnon Lawyers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Tang Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
SYC 5388 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CASILDA
Applicant
AND: MR ANNICE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.A copy of these Orders and the Reasons for Judgment may be given to any legal practitioner assisting a party, Court, Government Agency or other person in Country B who reasonably needs access to them in order to register or otherwise give effect to these Orders in Country B.
2.All extant interim parenting orders be discharged.
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
3.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Final Orders be made in accordance with the document attached hereto.
4.The matter be removed from the list of matters awaiting finalisation and all future listing dates be vacated.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
ATFile No. (P)SYC5388/2021
BETWEEN
MS CASILDA
(Applicant)AND
MR ANNICE
(Respondent)
and
INDEPENDENT CHILDREN'S LAWYERFINAL CONSENT ORDERS
BY CONSENT, ON A FINAL BASIS:
1.The mother have sole parental responsibility for the children of the marriage namely X born 2018 and Y born 2020, collectively referred to as ("the children").
2.That the children live with the mother.
3.That the mother be at liberty to relocate the residence of the children outside of Australia.
4.The children shall spend time with the father at the mother’s sole discretion.
5.The children shall have video communication, and at the mother’s sole discretion, on the following special occasions, using the Country B calendar:
5.1.On each of the children’s birthdays
5.2.On the father’s birthday
5.3.On Easter Sunday
5.4.On Christmas Day
5.5.On New Years Day
5.6.On Father’s Day
5.7.At any other times as expressly agreed between the mother and father in writing.
6.That for the purposes of Order 5 above, the mother is to initiate the video call to the father’s device and is at liberty to monitor any video call between the father and the children.
7.That the father be permitted to send cards and presents to the children for the purpose of the special occasions referred to in Order 5 above by sending them to the mother at an address that the mother nominates from time to time.
8.Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Minister may issue an Australian passport in the name of X born 2018 and Y born 2020 to the mother without the necessity of obtaining the consent of the children's father for that purpose, and the mother shall have custody of the children’s Australian passports.
9.The relevant official in Country B may issue a Country B passport in the name of X born 2018 and Y born 2020 to the mother without the necessity of obtaining the consent of the children's father for that purpose, and the mother shall have custody of the children’s Country B passports.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father MR ANNICE be restrained from:
10.1.attempting to contact the mother by any means including through a third party, except as otherwise in accordance with these Orders, or as determined by the mother in writing;
10.2.attempting to contact X born 2018 and Y born 2020 (“the children”) by any means including through a third party, except as otherwise in accordance with these Orders;
10.3.approaching or coming within 100 metres of any place where the mother or the children might reside from time to time without the mother’s express written consent to do so;
10.4.approaching or coming within 100 metres of any place where the children might attend day care, school or extracurricular activity without the mother’s express written consent to do so;
10.5.approaching or coming within 100 metres of any place where the mother might work from time to time without the mother’s express written consent to do so;
10.6.approaching or coming within 100 metres of C Street, Suburb D NSW.
11.Pursuant to Section 68C the injunction in Order 10 above pursuant to Section 68B of the Family Law Act 1975 (Cth) is for the personal protection of MS CASILDA, X and Y.
12.If a Police Officer believes on reasonable grounds that MR ANNICE, at which the injunction is directed, has breached the injunction they may arrest them without warrant.
13.Order 1.2 and Order 1.3 of the Orders dated 1 November 2021 are discharged and the children are forthwith removed from the Airport Watch List also known as the Family Watch List and each parent must do all acts and things and sign all documents necessary to give effect to this Order.
14.The children are able to travel and/or reside outside of Australia with the mother without the consent of the father.
15.The mother is to take reasonable steps to ensure that the children have a connection with their Australian Aboriginal culture.
16.That the mother is permitted to provide a copy of these Orders to any law enforcement officer, or pre-school, school, carer, hospital, or treating medical/health practitioner that either of the children attend from time to time.
17.That neither parent shall denigrate the other parent in the presence or hearing of the children and shall remove the children from the presence or hearing of a third party denigrating the other parent.
18.That neither parent shall discuss these proceedings with the children except for these orders.
Spousal maintenance
19.That the Order 1 November 2021 requiring the respondent father pay the applicant mother spousal maintenance is varied such that the respondent father shall pay the applicant mother $1,000 per week, paid weekly to an account nominated by the mother with first payment within 7 days of this Order.
20.That Order 19 shall be discharged upon the mother’s departure with the children from Australia but not later than 31 August 2024, with the mother to cause her lawyer to notify the father of her departure from Australia with the children.
Costs
21.By way of costs, that the Respondent Father pay to the Applicant Mother the sum of $250,000 as follows:
21.1.The amount of $150,000 within 14 days of the settlement of the property of either 1 E Street, Suburb F NSW (Title Folio …) or 2 E Street, Suburb F NSW (…).
21.2.The amount of $100,000 on or before 16 November 2024, together with any interest accrued pursuant to the Federal Circuit and Family Court Rules (2021).
22.In the event that the Respondent Father fails to comply with Order 21 above, the Applicant Mother is appointed trustee for sale of 1 E Street, Suburb F NSW (Title Folio …) and shall be at liberty to cause the sale of 1 E Street, Suburb F NSW (Title Folio …) by public auction and after payment costs of sale including agents fees and commission and upon discharging any mortgage, distribute to herself a sum required for her to receive the principal payment referred to in Order 21 above plus any interest accrued pursuant to Federal Circuit and Family Court Rules (2021) and the balance to be paid to the Respondent.
23.That the Respondent is restrained from further encumbering or diminishing his equity in the property at 1 E Street, Suburb F NSW (Title Folio …) pending its sale without the prior written consent of the Applicant.
24.That until such compliance with Order 21 above, the Respondent must keep the property at 1 E Street, Suburb F NSW (Title Folio …) insured to a value of not less than $800,000 and provide evidence of insurance upon demand.
25.That until such time as the Applicant is paid the monies pursuant to Order 21 above, she shall be at liberty to lodge a caveat on the properties 1 E Street, Suburb F NSW (Title Folio …) or 2 E Street, Suburb F NSW (…) and this Order shall constitute an equitable charge on each of the properties.
26.That within 28 days, the father shall pay the sum of $12,538.521 to Legal Aid NSW on account of the Independent Children’s Lawyers costs of these proceedings.
AND THE COURT NOTES
A.The mother is at liberty to facilitate communication for the children with members of the extended paternal family at her sole discretion provided that such contact excludes the father and for this purpose such communication shall not be construed as a breach of Orders 10.1 and 10.2.
B.The mother is at liberty to contact the father to give effect to these orders and such communication shall not be construed as a breach of Orders 10.1
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 the pseudonym Casilda & Annice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These are short oral reasons for decision on the approval of Consent Terms of Settlement on day eight of the Trial.
The Trial was to determine what final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) are in the best interests of X (born 2018) aged five years, and Y (born 2020) aged three years (collectively “the children”) and in particular whether they should live in Country B or the Commonwealth of Australia (“Australia”).
The applicant, Ms Casilda (“the mother”) was born in Country B and is aged 43. The respondent, Mr Annice (“the father”) was born in Australia and is aged 41. They met in about late 2015 while working for G Organisation in City H, Country J. They commenced cohabiting sometime between 2015 and 2016. In 2017 they travelled back to City K, Australia together. They married in 2017. They had the children. They separated on either 26 May 2020 or 1 June 2020.
The major factual issue at this Trial was whether the father had engaged in family violence both pre-separation and up to and including the Trial as alleged by the mother and denied by the father.
The matter has settled on terms which are substantially those I would have made, including not only the order allowing the mother to relocate with the children to Country B and the section 68B injunction preventing the father spending time with or communicating with the children except as permitted by the mother, but also the orders of interim spousal maintenance and for the father to effectively pay the mother’s indemnity costs of these proceedings and the costs of the Independent Childrens Lawyer (“ICL”).
The parenting orders reflect the emphatic oral evidence of the single expert Ms L after she was shown the evidence of family violence which emerged at Trial. That evidence included the CCTV video evidence of the father stalking the mother’s friends’ house to intimidate them into no longer helping her with the children.
Ms L’s evidence was that the father presented such an unacceptable risk to the children that no time with them, not even supervised time, would be safe due to physical risk and nor would communication due to psychological risk. She urged the Court to take the unusual step of immediately implementing those orders on an interim basis, even though there was still one day of the Trial to go and an anticipated delay to a final Judgment.
The uncontested evidence of a single expert in Country B law, and of the mother’s Country B lawyer, was that these Orders can be registered and enforced in Country B. I consider it necessary to provide these very short reasons on the approval of the settlement in case there is an equivalent provision to Rice & Asplund (1979) FLC 90-725 in Country B law which might allow the father to effectively re-litigate the matter before the Country B Courts in a few years’ time, on the basis that the children’s needs and interests may change as they age.
If that occurs, it will be useful for this Judgment to accompany the Orders, and for any Country B Court to know that after a full trial the mother’s case of long-term family violence was overwhelmingly established by the evidence.
The father has engaged in a long and calculated campaign of family violence, including in particular through extensive financial coercion and control, attempts to manipulate and destabilise the mother, excessive physical chastisement of the children, attempts to socially isolate the mother in Australia by threatening and intimidating her limited social contacts in Australia to attempt to drive them away, and unfortunately through systems abuse in these proceedings.
The overwhelming nature of the evidence has caused the father, sensibly, to accept the consent orders proposed by the ICL. These orders were inevitable given the weight of the evidence.
The parenting orders leave open the possibility that should the father be able to persuade the mother at some future time that he has adequately addressed his mental health concerns, and behavioural issues, and is not a risk to the children that she might, at her absolute discretion and in the exercise of her sole parental responsibility, allow the children to spend time and communicate with the father in any circumstances she deems safe and at any times she determines appropriate.
To her very great credit the mother has indicated that, despite all that has happened, she hopes the father will get treatment and do what is necessary to address his issues so that he may, at some future time, be a part of the children’s lives. The Court hopes the father will take the opportunity to do the work required for that to happen, for the children’s sake.
I am comfortably satisfied that the children’s best interests are served by the consent orders proposed by the ICL and accepted by the parents and I make those orders.
The indemnity costs order is one I had in mind and appropriately flows from the financial abuse and the abuse of this Court’s processes, as do the interim spousal maintenance orders. The ICL’s costs flow from the usual principles.
In addition to the consent orders, as indicated to the parties, I will make an order that a copy of this decision and the Orders may be given to any legal representative of the mother in Country B, and to any Court or public officer in Country B who reasonably requires access to this original judgement or Orders, or a translation, to give effect to the registration and enforcement of the orders in Country B.
Those are my reasons for approving the consent orders.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 20 November 2023
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