Garrod & Harbig
[2024] FedCFamC1F 464
•4 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garrod & Harbig [2024] FedCFamC1F 464
File number(s): NCC 3839 of 2021 Judgment of: SMITH J Date of judgment: 4 July 2024 Catchwords: FAMILY LAW – PARENTING – Where previous final orders were made in the then Federal Circuit Court of Australia – consideration of section 65DAAA – parties consent to reconsideration of final orders – in circumstances where prior orders were made on an undefended basis – significant change of circumstances – in child’s best interests to reconsider final orders Legislation: Family Law Act 1975 (Cth) Pt VII s 65DAAA Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 3 July 2024 Place: Newcastle Solicitor-Advocate for the Applicant: Ms Ziayee Solicitor for the Applicant: Supreme Justice Lawyers Solicitor-Advocate for the Respondent: Ms Woods Solicitor for the Respondent: Koulouris & Associates Pty Ltd Solicitor-Advocate for the Independent Children's Lawyer: Ms Matheson Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 3839 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GARROD
Applicant
AND: MS HARBIG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
4 JULY 2024
BY CONSENT, THE COURT DECLARES THAT:
1.Pursuant to section 65DAAA it is in the best interests of X (date of birth 2013) for the final parenting order dated 16 December 2019 to be reconsidered.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Garrod & Harbig has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short oral reasons for decision in relation to the preliminary issue pursuant to s 65DAAA of the Family Law Act1975 (Cth) (“the Act”) where there are current parenting orders, and the applicant has filed a further Application asking the Court to reconsider those final parenting orders.
The proceedings concern X (“the child”), born 2013, who is now 10.
The applicant mother, Ms Garrod, was born in 1991. She is the child's biological mother. She now lives in City F with her new partner, Mr G, and their daughter, H.
The respondent mother, Ms Harbig, born in 1986, is listed on X's birth certificate as his other parent. Ms Harbig lives in Queensland with her new partner, Ms J, together with X. The respondent has two adult children to her ex-husband.
The parties met in 2008, had a highly conflicted relationship, and finally separated in 2017, when X was just four.
In December 2019, final orders were reached in the Federal Circuit Court of Australia, as it then was, for X to live with Ms Harbig and spend no time and have no communication with Ms Garrod. It was ordered that Ms Harbig have sole parental responsibility for decision making.
Those final orders were entered on 16 December 2019. The circumstances in which those orders were made are relevant. They were made on an undefended basis with the concurrence of the Independent Children’s Lawyer (“ICL”). Without unnecessary detail being required at the moment, the applicant was allegedly experiencing mental health issues, substance use issues, and had insecure accommodation. The judge made the following notations:[1]
A. These orders have been made in the applicant mother's absence.
B.If the applicant wishes to seek an order to spend time with the child she may do so but she will need to file an affidavit addressing the issues of her drug use, housing, mental health and aggression/family violence so that the court can properly assess whether it is in [X's] best interests for the court to make an order for the child to spend time with the applicant.
[1] Proceedings NCC451/2019, Orders dated 16 December 2019.
While those notations do not bind the parties or the Court, they are clearly a relevant issue on the question of whether the Court should exercise its jurisdiction and determine that it is appropriate to reconsider the current final parenting orders pursuant to s 65DAAA.
On 19 November 2021, the applicant filed an Initiating Application. A Family Report dated 5 October 2023 was prepared by the Family Consultant, Ms K.
On 22 November 2022, consent orders were made allowing the applicant to have phone and video communication with the child or vice versa. However, after four calls, the child did not want this to proceed.
The applicant's circumstances, as set out in the material relied upon by the expert in her report, substantially changed. The evidence addressing the factors identified in the notations to the orders, which are currently in place, as well as the other factors required to be considered by the Court if a final hearing occurs, have been addressed in the applicant’s evidence.
I note the child's stated position to the expert was that he wants no time or communication with the applicant. However, the expert noted at paragraph 131 of the Family Report that:
131.At the moment [X] reported that he is concerned about contact with the mother. While it is important to take this into consideration, I am not convinced that [X] has not been influenced by his exposure to negative conversations about [Ms Garrod].
The respondent mother denies that she has influenced X.
The applicant seeks a review of the current parenting orders and a regime which would allow her to communicate with X, and possibly spend time with X.
The respondent mother's position is that the present orders should not be varied. However, the respondent mother, very fairly and sensibly in my view, conceded through her legal practitioner that she could not reasonably oppose the Court reconsidering the current parenting orders, given the history of the matter and the evidence before the Court, and provided consent for the purposes of s 65DAAA(3).
The ICL also consented to a reconsideration, and the applicant, of course, seeks the reconsideration.
Whilst that may deal with the issue, I have also considered the material, and I am independently satisfied that there has been a significant change of circumstances since the final parenting orders were made. I am satisfied that it is in the child's best interests for the parenting orders to be reconsidered, noting the content of the Family Report and, in particular, the applicant's circumstances and potential parenting capacity have significantly changed since 2019; that the applicant’s then situation was a substantial factor in and basis of the current parenting orders; that the orders were entered on an undefended basis with the possibility of a review if the applicant was able to address identified issues; and also noting the potential benefit to the child of being able to, to some extent at least, repair his relationship with the applicant and, perhaps, having a meaningful relationship with her and his half-sibling or, at least, have sufficient relationship with her so that he is not adversely affected by the permanent long term termination of that significant potential relationship.
I note that it may ultimately be that there will be no change in the current orders. However, on the material before me, there is certainly a real possibility that some form of communication and/or time between X and the applicant may be considered appropriate, and weighing all the issues and available material, I am comfortably satisfied that it is in the child's best interests that the matter proceed to a reconsideration of the final parenting orders.
In these circumstances, noting both the consent and my view, I am satisfied that the precondition for a reconsideration of the final parenting orders as required by s 65DAAA has been met. Those are my reasons.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 11 July 2024
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