Gaylor & Vogel

[2021] FamCA 476

FAMILY COURT OF AUSTRALIA

Gaylor & Vogel [2021] FamCA 476

File number(s):	SYC 763 of 2021
Judgment of:	HARPER J
Date of judgment:	24 May 2021
Catchwords:	FAMILY LAW – PARENTING – Review of a registrar’s decision to reject consent orders regarding parenting orders sought by the applicant mother – Where parties have reached agreement – Where mother has sole care of children – Where father has gambling problem and proposes to move from Sydney – Where parties have agreed to co-operate to work out time children may spend with the father.
Legislation:	Family Law Act 1975 (Cth) ss 10G, 62B, 65DA(2)
Number of paragraphs:	15
Date of hearing:	24 May 2021
Place:	Sydney
Solicitor for the Applicant:	Uther Webster & Evans
The Respondent:	No Appearance

ORDERS

SYC 763 of 2021

BETWEEN:

MS GAYLOR

Applicant

AND:

MR VOGEL

Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	24 MAY 2021

THE COURT ORDERS THAT:

1    Orders be made in accordance with the document titled "Consent Orders" and marked "Exhibit A" dated 4 February 2021.

THE COURT FURTHER ORDERS THAT:

2   The orders made on 24 May 2021 be stayed, until up to and including, 5:00pm on 21 June 2021.

3   Leave be granted to the Respondent (Father) to apply to discharge the Orders on 3 days' notice at any time up to and including close of registry filing on 21 June 2021.

4   That upon any such application being filed and served by the Respondent (Father) prior to 5:00pm on 21 June 2021, the stay is extended pending further order of the Court.

5   That upon publication of a sealed copy of these orders the Applicant (Mother) is to take all necessary steps to notify the Respondent (Father) of the Orders and serve a sealed copy.

6   The process to be used for resolving disputes about the interpretation, implementation or enforcement of Order 1 shall be as follows:

(a)The Applicant (Mother) and the Respondent (Father) shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) ("the Act") or by the Commonwealth Attorney General; or

(b)The Applicant (Mother) and the Respondent (Father) shall participate in family dispute resolution with a person authorised under section 10G of the Act.

7   Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the mother or the father:

(a)The Applicant (Mother) and the Respondent (Father) shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or

(b)The Applicant (Mother) and the Respondent (Father) shall participate in family dispute resolution with a person authorised under section 10G of the Act.

8 Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

THE COURT NOTES THAT:

A.  In the event that an application is made in accordance with these Orders by the Respondent (Father), in the time limited, that appropriate orders will be made in Chambers for the listing of the proceedings for the purpose of making further directions to progress them to finality.

“A”

FAMILY LAW ACT 1975

CONSENT ORDERS

FAMILY COURT OF  NO. SYC      of 2020

AUSTRALIA AT SYDNEY

BETWEEN

Ms Gaylor

Applicant Mother

AND

Mr Vogel

Respondent Father

Dated:  4/2/21

RECITALS

A.The Father was born in Australia in 1976 and is presently aged forty four (44) years.

B.The Mother was born in Australia in 1979 and is presently aged forty-one (41) years.

C.The parties commenced cohabitation in 2013-2014.

D.The parties separated in November 2020.

E.There are two (2) children of the relationship: X, born in 2018 (aged 2), and Y, born in 2019 (aged 12 months).

F.The Father is subject to a final ADVO made in the Suburb B Local Court in November 2020. The ADVO is in force until November 2021.

G.The children are very young and are in the full-time care of the Mother.

BY CONSENT THE COURT ORDERS:

Parenting Orders

1.That the Mother have sole parental responsibility for the children of the relationship, X, born in 2018, and Y, born in 2019 ("the children").

2.That the children live with the Mother.

3.That the Father spend time with the children by agreement between the parties.

Notation

4.It is noted that the children are very young and that the parties may revisit the parenting arrangements when the children are older and after the expiration of the ADVO.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaylor & Vogel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J

1. In proceedings SYC 763 of 2021, the parties entered into proposed consent orders regarding the children subject of the proceedings. 

2. An application for consent orders was filed and considered by a registrar of the Court.  The registrar was not satisfied that the orders on their face were necessarily in the best interests of the children and requisitioned further information from the parties. 

3. The proposed consent orders provide for the Applicant Mother (‘the mother”) to have sole parental responsibility for the children to live with the mother and for the Respondent Father (“the father”) to spend time with the children by agreement between the parties.

4. The proposed orders include a notation that the children are very young, being X, born in 2018, and Y, born in 2019, and that the parties may revisit parenting arrangements when the children are older, and after the expiration of an existing ADVO which was made against the father in the Suburb B Local Court in November 2020.  In accordance with a requisition by the registrar, the mother filed a further affidavit and sought an affidavit from the father. 

5. The mother's evidence, which is brief, discloses that the father suffers from a gambling problem, which played a part in the grant of the ADVO, ordered against the father.  According to the mother's evidence, the father has refused to get assistance for his gambling addiction, that he is about to lose his employment and may move back to a house that he owns in C Town. 

6. The mother has also given evidence that she supervised the father's time with the children with a family member and has tried to persuade the father to go to professional counsellors and psychologists about his gambling problem, but he has refused to do so and exhibited significant anger towards her.

7. The mother gives evidence that she is the sole full time carer of both children.  The mother has also given evidence that she respects the father's role in the children's lives.  The father's affidavit, which is even briefer, states that he has been informed by the mother of the requisition by the registrar, and that the mother has asked him to do a statement.  In his affidavit at paragraph 3 the father says:

   I have an issue with gambling and I might be moving out of Sydney shortly.  I do not want the Court or anyone else to know about my issues.  It is private.

8. He goes on to say:

   I do not want to see a lawyer.

9. And:

   Ms Gaylor and I will work out ourselves what is best for our kids.

10. The matter came before me on 24 May 2021 after the mother filed an Application in Case seeking review of the registrar's decision. 

11. I'm satisfied that the Court should do what it can to assist the parties to resolve their parenting dispute as quickly and cleanly as possible in the best interests of the children. 

12. The proposed final consent orders, in effect, place the children in the full time care of the mother and give her a discretion about agreeing to what time they may or may not spend with the father.  On the basis of the evidence which I have been taken to, this strikes me as an appropriate outcome in the circumstances of this case.

13. The difficulty that faces the Court on 24 May 2021 is that the mother, by reason apparently of her level of distress brought about by the requisitions from the registrar, failed to notify the father of the listing on 24 May 2021.  Consequently, the Court cannot be satisfied that the father has had an opportunity to appear and make any submissions that he may wish to make in relation to the proposed final consent orders.  I note, however, that his own evidence suggests that he agrees to the proposed orders, and that he proposes to cooperate with the mother to work out what is best for the children.

14. The evidence satisfies me, also, that there is probably little point in compelling the parties to go to much time, cost or effort to focus on additional parenting orders at this stage in the children's lives, bearing in mind how young they are, and that the consent manifested in the proposed orders is for the mother to be their full time carer with the protection of an ADVO. 

15. In those circumstances, I'm prepared to make the consent orders subject to a period of stay together with some additional orders providing for the manner in which the parties are to engage in a mediation process in the event any dispute about the implementation of the orders or for their variation.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       6 July 2021