Dixon & Young
[2023] FedCFamC1F 153
•9 February 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dixon & Young [2023] FedCFamC1F 153
File number(s): SYC 7372 of 2019 Judgment of: KARI J Date of judgment: 9 February 2023 Catchwords: FAMILY LAW – EX-TEMPORE REASONS – Where the matter was listed for an interim hearing – Where the father’s counsel and solicitors were given leave to withdraw during the hearing – Where the father indicated he intended to file a notice of discontinuance – Where final orders were made by consent Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 9 February 2023 Place: Adelaide (via video link) For the Applicant: Litigant in person Counsel for the Respondent: Ms Vohra SC Solicitor for the Respondent: Pearson Emerson Family Lawyers Counsel for the Independent Children's Lawyer: Ms Smith Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 7372 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YOUNG
Applicant
AND: MS DIXON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.That all previous parenting Orders be discharged.
2.That the mother have sole parental responsibility for:
2.1X (born 2009) (“X”);
2.2Y born (born 2011) (“Y”); and
2.3Z (born 2013) (“Z”).
3.That X, Y and Z (“the children”) live with the mother.
4.That the children spend time with the father as agreed between the parties in writing and on conditions as agreed between the parties in writing.
5.That for the children, X and Z, the father be at liberty to attend X and Z’s sporting matches (excluding trainings) and the school events that parents ordinarily attend, provided that the father, his servants and agents be and are hereby restrained by injunction from approaching X or Z or the mother or any of them, save with the mother’s prior written agreement, including via text.
6.That the father, his servants and agents be and is hereby restrained by injunction from attending the child, Y’s sporting events and school events, save with the mother’s prior written agreement, including via text.
7.That the father do all acts and things and sign all documents necessary, within 7 days of being requested by the mother, to make an application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005 to enable X (born 2009), Y (born 2011) and Z (born 2013) to be issued with an Australian travel document.
8.That in the event the father refuses or neglects to sign any document necessary to issue X (born 2009), Y (born 2011) and Z (born 2013) or any of them with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005, give considering to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
THE COURT FURTHER ORDERS:
9.That within 7 days the father do file and serve a Notice of Discontinuance as foreshadowed during the hearing this day.
10.That all future hearing dates be and are vacated.
11.That the appointment of the Independent Children's Lawyer be discharged save and except as to any appeal.
12.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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
I propose to make some preliminary comments before I formally pronounce the orders the parties have invited the Court to make.
It is clear to me that this matter has been very difficult for both of the parties and the children. The father clearly has come to a very difficult, but I assume considered decision today. Before his legal representatives were given leave to withdraw, the father had the benefit of legal advice in discontinuing the proceedings. While I am sure that has been a difficult decision for him, it is undoubtedly likely to be a difficult outcome for the mother and the children as well. There is, however, as the Independent Children's Lawyer (‘ICL’) has properly identified, great benefit to both of the parents, but particularly the children in having these proceedings come to an end.
The current proceedings have been on foot for some significant time now since 1 November 2019 and, as I say, they have been difficult and complex proceedings so far as the parenting issues are concerned. While these orders will see the children living with the mother and her having sole parental responsibility, there is some limited capacity for the father to continue his relationship with the children by attending, X and Z's, school events upon giving notice to the mother, as well as attending Y's school events upon the mother's consent to that occurring.
While I am sure from the father's perspective that this is a far more reduced regime than he might have ever hoped or imagined for, there is I suspect some admission and acknowledgement on his part in taking the position that he has today, that these children would benefit from the proceedings coming to an end.
In the context of the interim hearing that was listed today, I have heard lengthy submissions on behalf of both the father and the mother. Today’s hearing was listed to deal with the father's application to expand upon his time spending with the children such that, ultimately, there would be an unsupervised time spending regime.
The notification to the Court that the father wished to discontinue the proceedings and to finalise the matter today, came after hearing both the father's counsel's submissions and partway through the submissions of the mother's counsel with respect to the interlocutory applications before the Court.
In those circumstances, and, indeed, when the matter was stood down and over the luncheon adjournment, I have now had regard to the material that I had been referred to during the course of submissions.
What is clear to me from all of the material I have read, is that this matter is difficult and that these children would certainly benefit from a conclusion of the proceedings.
It is also clear to me that there are significant issues that have led to the current circumstances for these children and the attitudes that they each are presently displaying towards their living arrangements and the time spending that they wish to take up with the father.
The father to his credit appears to have reflected on those matters over the adjourned period partway through the hearing and, it is to his credit that he has formed the view, in my words, to “back off” and give the children the breathing space that they clearly need and require in order to rebuild some trust with the father, with a view hopefully, I am sure from the father's perspective, to ultimately finding a path back to him and a more meaningful relationship with him.
One can only hope that the father takes on board the various criticisms and concerns and risk factors that have been identified, such that he is able to provide a safe and meaningful relationship with the children in the future. Only time will tell if those matters will be able to come to pass.
From my perspective however, I have no difficulty in forming the view that the orders that I am now being invited to make to finalise the proceedings are certainly in the children's best interests, and that I have no difficulty in making the orders that I am now jointly asked to make by each of the parties and the ICL.
Note: These reasons have been corrected from the transcript. Grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read. These reasons should also be read in conjunction with the transcript of the hearing in circumstances where the court was asked to make orders by consent and the terms of the proposed orders were canvassed with the parties.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 14 March 2023
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