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").
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- Casilda & Annice [2023] FedCFamC1F 992
- Case
- [2023] FedCFamC1F 992
- Decision Date
CaseChat Overview and Summary
The court was tasked with deciding several critical legal issues, including whether the relocation was in the children's best interests, the extent of parental responsibilities, and the need for protective orders against the father due to the alleged family violence. The court considered extensive evidence, including testimonies and expert reports, to assess the dynamics of the family situation. The compelling evidence of family violence and coercive control presented by the mother led to a settlement on the eighth day of the trial. Both parents agreed to the terms after reviewing the evidence, and the court approved the settlement, providing short oral reasons to support its decision.
The final orders granted the mother sole parental responsibility for the children, allowing her to relocate them to Country B. The children were to live with their mother, and the father was to have no unsupervised contact with them, with any contact strictly controlled by the mother. The father was also restrained from contacting the mother and children except as permitted by the court's orders. Furthermore, the father was ordered to pay substantial indemnity costs and spousal maintenance until the mother relocated. The court's orders included provisions to facilitate the enforcement of these orders in Country B, ensuring that any future court in Country B would have the necessary information to uphold the Australian court's decisions.
Orders
Orders of the court
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
AT
File No. (P)SYC5388/2021
BETWEEN
MS CASILDA
(Applicant)
AND
MR ANNICE
(Respondent)
and
INDEPENDENT CHILDREN'S LAWYER
FINAL 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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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