Che & Don
[2021] FedCFamC1F 133
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Che & Don [2021] FedCFamC1F 133
File number(s): CAC 600 of 2021 Judgment of: GILL J Date of judgment: 13 October 2021 Catchwords: FAMILY LAW – ENFORCEMENT OF ORDERS – Location order – Such order to be in the best interests of the child – Order to provide information in relation to location of child made under Family Law Act 1975 (Cth) s 67M. Legislation: Family Law Act 1975 (Cth) ss 67L and 67M Division: Division 1 First Instance Number of paragraphs: 4 Date of hearing: 13 October 2021 Place: Canberra Solicitor for the Applicant: Legal Aid ACT Solicitor for the First Respondent: No appearance Counsel for the Second Respondent: Ms Davis Solicitor for the Second Respondent: Infinity Legal Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers Solicitor for the Intervener: No appearance ORDERS
CAC 600 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHE
Applicant
AND: MR DON
First Respondent
MS TRACH
Second Respondent
MS HUYNH
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS THAT:
1.Pursuant to section 67M of the Family Law Act 1975, the second respondent mother Ms Trach, born in 2000, shall provide to the Court, by way of correspondence from herself or her solicitors, as soon as practicable such information she holds about the location of the child X, born in 2020.
IT IS FURTHER ORDERED THAT
2.The contempt proceedings regarding Ms Trach are adjourned to 10 am on 24 November 2021 in the Canberra Registry of the Federal Circuit and Family Court of Australia - Division 1.
3.Ms Trach is required by court order to attend the Canberra Registry of the Federal Circuit and Family Court of Australia for the proceedings at 10 am on 24 November 2021.
IT IS NOTED THAT
4.In the event that Ms Trach fails to appear in accordance with the above orders she may be liable to have a warrant issued for her arrest to secure her future attendance.
IT IS FURTHER ORDERED THAT
5.Ms Trach is to make all necessary applications in a timely manner with the relevant ACT / New South Wales authorities to obtain such permissions as are necessary to enable her to attend court as required and in making such applications shall provide the relevant authorities with a copy of these orders.
6.It is acknowledged that Ms Trach is currently residing in an area that may be affected by the COVID-19 virus and any quarantine requirements are matters that should not be taken by the relevant health authorities to prevent her attendance in accordance with these orders.
7.It is requested that a Judicial Registrar of the Court make contact with the ACT Health Directorate to secure any other permissions that are necessary for Ms Trach’s attendance on the day.
8.In the event that a party seeks to be released from the obligation to attend in person or seeks an adjournment of the hearing date, then such parties are to file and serve such application by 4 pm on 17 November 2021.
9.The requirement for an in-person attendance does not oblige either the Independent Children’s Lawyer or a solicitor appearing for any party to appear in person.
10.Noting that a location order has been made that requires Ms Trach to provide information to the Registry Manager, all parties are at liberty to seek the relisting of this matter at short notice to agitate the making of an order to require Ms Trach’s attendance at the Registry for the purposes of being subjected to cross-examination in relation to information that might indicate the whereabouts of X, born in 2020.
IT IS NOTED THAT
11.An order authorising publication of the details of this matter in an attempt to secure information as to the whereabouts of X, born in 2020, was made on 30 April 2021 and that such order remains in force and that continued publication of such matters is allowed.
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 Che & Trach has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
The applicant proposes the making of a location order pursuant to s 67M of the Family Law Act 1975 (Cth). The parties were not on notice that such an application might be made when the matter came before the court today for contempt proceedings being conducted against the second respondent Ms Trach.
The proceedings were stood in the list for a period to allow Ms Trach to consider the making of such an order where the location order is to be directed against her solely. During the period in which the matter was stood down, enquiries were made of the intervener who indicated her agreement to the making of the order, the Independent Children’s Lawyer, who indicated her agreement to the making the order, and, having considered the matter, Ms Trach indicated her consent to the making of the order. The proposed order was also drawn to the attention of the first respondent father, Mr Don, by the Independent Children’s Lawyer. He has not indicated either that he consents to or opposes such an order and, although provided with dial in details, has not contacted the court at 2 pm today. An issue arises as to whether, under those circumstances, the order should be made.
It may be accepted that the requirements of natural justice should be met in the Court determining any matters. The content, however, of the requirements of natural justice will vary depending upon the nature of the application made and the surrounding circumstances. Here, where the application is sought pursuant to s 67M, the matter which guides the making of the order as set out at s 67L is that the best interests of the child are the paramount consideration.
Those best interests have been considered on a number of occasions, particularly in the then Federal Circuit Court where it was determined that the child the subject of the proceedings would live with the applicant, Ms Che, on an interim basis and under circumstances where the child was not provided to Ms Che both Mr Don and Ms Trach were dealt with for contempt of that court and sentenced to terms of imprisonment. It may be taken as axiomatic that the best interests of the child is served by the court understanding the whereabouts of the child. Here the obligations that will be cast by the order do not touch upon Mr Don as the obligations are only addressed to Ms Trach. Accordingly, despite Mr Don not being in attendance today and noting that he is at least at this point in time on notice of the possibility of the making of such an order, it appears to me that the necessary requirements of natural justice have been met, that the proposed order at exhibit C1 is in the best interest of the child and accordingly I make orders in accordance with exhibit C1.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 October 2021
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