Darley & Darley (No 3)
[2022] FedCFamC1F 1061
Federal Circuit and Family Court of Australia
(DIVISION 1)
Darley & Darley (No 3) [2022] FedCFamC1F 1061
File number(s): BRC 2317 of 2013 Judgment of: SMITH J Date of judgment: 15 December 2022 Catchwords: FAMILY LAW – PARENTING – Ex tempore – Application in a Proceedings for recovery and other parenting orders – Change of child’s primary live with parent – Change in breach of current Orders – Dispute concerning reasons for change - Another Justice is reserved on Applications relating to the same child – Other Justice has not been made aware of the change of living arrangements or of this Application in a Proceeding – Other Justice to be notified of change of child’s primary live with parent and of this Application – Application adjourned awaiting reserved decision. Legislation: Family Law Act 1975 (Cth) Cases cited: Darley & Darley(No 2) [2022] FedCFamC1F 906 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 15 December 2022 Place: Newcastle The Applicant: Self-represented The Respondent: Self-represented ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DARLEY
Applicant
AND: MR DARLEY
Respondent
order made by:
SMITH J
DATE OF ORDER:
15 DECEMBER 2022
THE COURT ORDERS THAT:
1.The matter be stood over for further mention on 24 February 2023 at 9:30 a.m., by way of Microsoft Teams.
2.The costs for today are reserved.
THE COURT NOTES THAT:
A.The mother has filed an Application in a Proceeding on 4 November 2022 seeking, inter alia, a recovery order in respect of Y born 2009 (“the child’).
B.The Application was filed pursuant to leave under s. 102QE of the Family Law Act 1975 (Cth) granted by Justice Hartnett on 15 November 2022 (see Darley & Darley (No 2) [2022] FedCFamC1F 906.)
C.Leave was granted as the child commenced residing with the father on about 3 November 2022 contrary to the current Orders of the Court of 12 December 2018 made by Justice Hogan.
D.The Application was dismissed by a Senior Judicial Registrar and then listed before me today for Review.
E.The parties today confirmed that the child is still living with the father contrary to the current Orders.
F.The reasons why the child is living with the father are in dispute.
G.I understand that Judgment is currently reserved in relation to Applications filed by each of the parties and heard by Justice Hogan on 14 September 2022.
H.The parties advised that they have not informed Justice Hogan of the child’s change of residence.
I.It is considered inappropriate that one Justice embark upon the hearing of a contested Application for Recovery when other interim Applications are reserved before another Justice of the Court, being the Justice who made the current Orders.
J.It is considered appropriate that Justice Hogan be notified of the existence of this Application and in particular of the fact that the child is now residing with the father contrary to the current orders, as this may be a change of circumstance relevant to Her Honour’s approach to the disposition of the Applications before her.
K.I have adjourned the Application to a later date, rather than dismissing it, so that a recovery application is on foot in relation to the prima facie breach of the current live with orders, should that be relevant to the Applications currently before Justice Hogan, or at a later date.
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).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
This matter comes before me today by way of a review of a decision of a Senior Judicial Registrar to dismiss an Application in a Proceeding filed by the mother on 4 November 2022 seeking, inter alia, a recovery order in respect of Y born 2009 (“the child’).
The Application was filed pursuant to leave under s. 102QE of the Family Law Act 1975 (Cth) granted by Justice Hartnett on 15 November 2022. The relevant background is set out in the decision granting leave, Darley & Darley (No 2) [2022] FedCFamC1F 906.
The parties have confirmed today that the child has recently commenced living with the father, contrary to the current Orders of the Court made by Justice Hogan on 12 December 2018.
The question of whether the father has retained the child or the child has self-placed is in dispute.
The parties are both self-represented and were only able to offer limited assistance.
I am told that the matter is before Justice Hogan in relation to applications for proposed parenting orders concerning the child and that there are a number of applications before her filed by both parties. Her Honour is reserved.
The mother’s Application before me covers substantially the same ground as the applications currently reserved before Justice Hogan. Apparently Justice Hogan has not been made aware of the recent change of residence.
In my view it is not appropriate for me to embark upon an interim hearing in respect of the appropriate parenting orders to make concerning the child while a different Judge is reserved on a decision dealing with the same child.
However, it seems to me this apparently significant change of circumstances and this Application arising out of them should be brought to Justice Hogan’s attention, in case Her Honour is of the view that it impacts on the matters on which she is reserved.
In these circumstances, all I can do today is adjourn the matter, with notations being made to the Orders summarising the situation, and noting that I advised the parties that I will provide today’s Orders to Justice Hogan to bring to Her Honour’s attention the change of living circumstances of the child in case that is relevant to her, and no-one objected to that.
I will stand the matter over for further mention only to 9.30 am on 24 February.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 23 December 2022
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