Harrington and Harrington & Anor

[2016] FamCA 1134

FAMILY COURT OF AUSTRALIA

HARRINGTON & HARRINGTON AND ANOR [2016] FamCA 1134

FAMILY LAW – PARENTING – Where proceedings have previously been undefended by the mother – where the father filed an application in a case for the return of the children or alternatively a recovery order – where the children have been living with their older step-sister – where the step-sister became an intervenor – where interim consent orders were made for the children to remain with the step-sister and spend time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harrington

RESPONDENT: Ms Harrington

INTERVENOR: Ms Bitar

INDEPENDENT CHILDREN’S LAWYER: Ms G Dee

FILE NUMBER: BRC 8692 of 2012

DATE DELIVERED: 30 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 30 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Clutterbuck

SOLICITOR FOR THE APPLICANT: Milburns Law

FOR THE RESPONDENT: No appearance

FOR THE INTERVENOR:

In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms G Dee, Cooper Grace Ward Lawyers

Orders

IT IS ORDERED THAT:

1. Leave is given to Ms Bitar to intervene in these proceedings.

1. Leave is given to the Intervenor to file a Notice of Address for Service.

IT IS ORDERED BY CONSENT (AS BETWEEN THE APPLICANT FATHER, THE INTERVENOR AND THE ICL) UNTIL FURTHER ORDER THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

NOTATION:

The Independent Children’s Lawyer will use her best endeavours to serve a copy of these Orders on the Respondent Mother as soon as practicable.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

1. That MS BITAR born … 1989 intervene in these Proceedings.

1. That the children B born … 2002 and C born … 2004 live with the Intervenor.

1. That the children spend time with the Father at all times as agreed between the Father and the Intervenor or as expressed by the children but failing agreement at least:

a.   By telephone at all reasonable times with the Father to initiate the call and the Intervenor to ensure the children are made available and have privacy during the calls.

1. That the Intervenor will use her best endeavours to ensure that the children spend time with the Father.

1. That none of the Parties denigrate any other Party to or in the presence or hearing of the children and remove the children from any environment where that is occurring.

1. That pursuant to S11F of the Family Law Act the Parties attend, and cause the children to attend a Child Inclusive Conference at 9.00 am on 17 February 2017 or at such time as Directed by the Family Consultant.

1. That each Party be restrained by injunction from bringing the children into contact with the Mother MS HARRINGTON.

1. That the Intervenor file and serve her material within sixty (60) days from the date of Order.

1. That the matter be adjourned for mention before the Honourable Justice Kent on a date to be advised to the parties by the Family Court of Australia Registry.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8692 of 2012

Mr Harrington

Applicant

And

Ms Harrington

Respondent

And

Ms Bitar
Intervenor

And
Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. Proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning the children, B born in 2002, who is currently 14 years of age, and C born in 2004, who will thus shortly turn 12 years of age, proceeded as between the children’s father and their mother and an independent children’s lawyer (“the ICL”), appointed to represent the children’s interests in the proceedings, to an undefended hearing on 13 October 2015.

2. The proceedings on that occasion were on an undefended basis, given that the  mother had repeatedly failed to comply with orders and directions in relation to a trial of those proceedings.  The mother, however, appeared on that occasion and was afforded the opportunity of making submissions. 

3. I regret the delay that then elapsed in which my judgment from that hearing remained reserved.  In the event, however, the matter returns to Court today on the father’s application in a case filed on 22 November 2016, which application essentially sought an order for return of the children to live with the father, or, in the alternative, a recovery order being issued by the Court.

4. In support of his application, the father filed two affidavits, but, relevantly, his affidavit filed on 22 November 2016 sets out from his perspective recent events concerning the feature that the children have, since October of this year, been living with their older step-sister, Ms Bitar. 

5. Ms Bitar attends the proceedings today initially represented by the duty lawyer, Ms Fox, and currently she is self-represented. Initially this morning, the matter was stood down to enable discussions to take place between the father, Ms Bitar, and with the assistance of the ICL. That has resulted in agreement between those parties for them to attend a child inclusive conference pursuant to s 11F of the Act, which is scheduled to occur at 9:00 am on 17 February 2017.

6. The parties have been able to agree upon some consent orders to be made in the interim period until further order.  The orders provide for Ms Bitar to intervene in these proceedings, and I would simply record that, to the extent that it is necessary to do so, the Court would waive compliance with the relevant rules in terms of the filing of an application and an affidavit in support for a party seeking to intervene in proceedings.  That is, to the extent that it is necessary for the Court to dispense with any formal requirements to enable Ms Bitar to intervene, that can be taken to be done.

7. The consent orders provide for the children to live with the intervenor and for her to facilitate and use her best endeavours to ensure that the children spend time with the father, until further order.  I am satisfied, given that the father is represented today by experienced counsel, the earlier involvement of Ms Fox as duty lawyer, a likewise experienced lawyer to assist Ms Bitar, and the feature that the children’s interests are independently represented by an ICL, that the orders by consent agreed to by the parties ought be made.

8. Order 9 of the orders will provide that the matter be adjourned for mention before me on a date to be fixed, as advised to the parties by the Registry.

9. I make orders in terms of the draft as amended.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 November 2016.

Associate:

Date:  2 December 2016