HAWKING & HAWKING

[2014] FamCA 772

FAMILY COURT OF AUSTRALIA

HAWKING & HAWKING [2014] FamCA 772

FAMILY LAW – CHILDREN – Where interim parenting orders were made – Where neither parent has actively participated in any parenting proceedings since the interim orders were made – Whether the interim orders remain in the children’s best interests – Where the Court is satisfied that the interim orders ought be made as final orders

Family Law Act 1975 (Cth)
APPLICANT:	Ms Hawking

RESPONDENT:	Mr Hawking
INDEPENDENT CHILDREN’S LAWYER:	Ms Bint

FILE NUMBER: BRC 167 of 2011

DATE DELIVERED: 8 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 September 2014

REPRESENTATION

FOR THE APPLICANT:	No appearance
FOR THE RESPONDENT:	No appearance
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	C M Bint Family Lawyers

Orders

It is ordered that:

1. The Order made by Registrar Brooks on the 10 July 2013 now be made as a final Order, with the exception of the following:

   a.     Orders (14) and (29) are discharged;

   b.    all and any Orders relating to the child, J born … February 1996 (and who has now attained her majority) be discharged.

2. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 NOTED that publication of this judgment by this Court under the pseudonym Hawking & Hawking 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 167 of 2011

Ms Hawking

Applicant

And

Mr Hawking

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern the four children, namely J born in February 1996; H born in September 2002, C born in December 2005; and T born in March 2010 (“the children”).

2. The parties to the proceedings are the children’s mother, Ms Hawking (“the mother”), their father Mr Hawking (“the father”) and the Independent Children’s Lawyer (“ICL”) appointed pursuant to s 68L of the Family Law Act 1975 (Cth) to independently represent the interests of the children in the proceedings.

3. It seems that the parenting proceedings have some history in that they were originally instigated in 2011, leading to at least interim or final resolution of the initial proceedings some time in 2012.  Further proceedings ensued, which likewise resolved, and then finally the current proceedings leading to the making of an order, on an interim basis, on 10 July 2013. 

4. In summary, then, this would seem to be what might conveniently be described as the third round of parenting proceedings prior to the making of the orders on 10 July 2013.  The orders of 10 July 2013 were expressed to be interim orders.

5. In general terms, they provided for the parents to have equal shared parental responsibility for the children; provided for the children to live with the mother and to spend time with the father, as set out in the orders.  I should say that the provision for time being spent was restricted to the three younger children I have referred to. 

6. It appears that the orders were intended to be trialled by the parties, given a notation to that effect that appears on the orders.  There is also consistently a notation to the effect that should the parties be able to reach agreement, they could submit terms of settlement prior to a further directions hearing that was listed to occur following the orders of 10 July 2013.

7. I note also a notation to the effect that the parties advised that their relationship had improved significantly, and it was on that basis that they sought to “trial” arrangements with the making of those consent orders.  It appears, as is submitted by Ms Bint, the ICL this morning that since the orders were made on 10 July 2013, neither parent has actively participated in any ongoing parenting proceedings.  They did not appear when the matter was listed before the Registrar on recent occasions.  The order of 10 July 2013 provided for the matter to be listed for further directions before Registrar Brooks on 16 July 2014, and neither party attended that appearance.

8. Exhibit 1, being correspondence forwarded by the ICL to the parties, confirms to the parties that the Registrar adjourned the applications for yet a further mention on 20 August 2014, and Ms Bint pointed out to both parents that they were required to appear in person at the Court on that date.  In the event, neither appeared.

9. I am satisfied that the orders made on 10 July 2013 were made with the benefit of expert evidence available to the parties and the ICL including the family report of Ms M and the expert report of Dr A.

10. Given that the parties were able to reach consent, and there was the involvement of an ICL, it is not reasonably open to doubt that the orders made on 10 July 2013 were the orders that were in the best interests of the children the subject of them.

11. In circumstances where neither parent has sought to agitate any different orders, and the ICL maintains that these orders, in the circumstances remain in their best interests, I am satisfied that the orders made on 10 July 2013 ought now be made as final orders, bringing an end to these proceedings.

12. I simply add that, as is drawn to the Court’s attention by the ICL, the child J attained her majority in February of this year, and on that basis parenting orders with respect to J ought not be made. 

13. On that basis, the orders that I make as and by way of final orders today will be with respect to the three other children to whom I have referred.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 September 2014.

Associate: 

Date:  8 September 2014