Kalinic & Franz
[2023] FedCFamC1F 653
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kalinic & Franz [2023] FedCFamC1F 653
File number(s): BRC 10946 of 2021 Judgment of: JARRETT J Date of judgment: 2 August 2023 Catchwords: FAMILY LAW – interim application by applicant mother for children to return to live with her in NSW – prior unilateral removal of the children interstate by applicant mother – children currently living with paternal grandparents following issue of a recovery order – whether applicant mother remains a flight risk – order that children live with father and spend time with the paternal grandparents on an interim basis Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 2 August 2023 Place: Brisbane Counsel for the Applicant: Mr North Solicitor for the Applicant: Barton Family Lawyers Counsel for the First Respondent: Mr Finch on direct brief Solicitor for the Second Respondent: Litigants in person Solicitor for the Third Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer HM Lawyers ORDERS
BRC 10946 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KALINIC
Applicant
AND: MS FRANZ
First Respondent
MS B KALINIC
Second Respondent
MR C KALINIC
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JARRETT J
DATE OF ORDER:
2 AUGUST 2023
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.All previous parenting orders be discharged.
2.The children X born 2009, Y born 2010 and Z born 2018 live with the applicant.
3.Z and Y spend time with the first respondent as follows:
(a)supervised at an agreed therapeutic contact centre, and in the absence of an agreed contact centre at D Contact Centre, Suburb E;
(b)with the first respondent to pay the costs of such supervised visits; and
(c)such visits not to exceed more than two hours on each occasion and not to exceed more than one visit per week.
4.The parties do all acts and sign such documents:
(a)to register and complete all necessary intake processes with the contact centre; and
(b)to facilitate the children spending time with the first respondent of not less than two hours each week, or for such times as may be facilitated and supervised by the operators of that centre.
BY CONSENT THE COURT FURTHER ORDERS THAT:
5.The applicant and the first respondent pay $550 to the mortgage off-set account relating to the Suburb F property on the 15th day of each month.
6.In the event of a notified increase in payments from the lender, the applicant and first respondent will increase their payments pursuant to paragraph 5 to half the cost of each payment required by the lender.
7.The applicant and the first respondent are, until the finalisation of these proceedings, restrained from removing funds from the mortgage off-set account relating to the Suburb F property, and from furthering encumbering the property.
8.If the first respondent should default on a payment pursuant to paragraph 5 herein, paragraph 9 herein be put into effect.
9.The parties shall do all acts and things necessary to list the Suburb F property for sale on the following terms and conditions:
(a)the applicant shall be solely responsible for meeting the rates and insurance repayments as and when they fall due;
(b)the applicant and first respondent be restrained from further encumbering the property or increasing the mortgage liability with G Finance pending the property being sold pursuant to the terms herein;
(c)the applicant is to propose a panel of 3 real estate agents to the first respondent with the first respondent to nominal a real estate agent from the panel within 7 days, failing which the applicant will select a real estate agent form the panel;
(d)the listing price be agreed by the applicant and first respondent and failing agreement as recommended by the real estate agent appointed by the applicant and first respondent;
(e)the sale price of the property shall be such amount as agreed between the applicant and first respondent and failing agreement any offer to buy the property which is at least 95% of the list price shall be accepted by the applicant and first respondent as the sale price;
(f)the applicant and first respondent are to cooperate in every way with the real estate agent in relation to the marketing of the property for sale including making a key readily available, allowing inspection of the property for sale at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(g)upon agreement being reached for sale of the property, the applicant and first respondent shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submissions to them by the agent or their solicitor;
(h)should the property not sell by private treaty within a period of four months, the said property be sold by public auction unless otherwise agreed by the parties, and for that purpose within a further 14 days from the date of expiration of the four month period referred to herein:
(i)the reserve price be set by agreement between the applicant and first respondent and failing agreement at a reserve price as recommended by the real estate agent;
(ii)the applicant and first respondent shall agree upon the auctioneer and in the event that they are unable to agree as to the auctioneer then the applicant will propose a panel of three auctioneers to the first respondent and the first respondent will elect an auctioneer from this panel within seven days of receipt of same, failing which the applicant will select an auctioneer from the panel;
(iii)the sale price of the property shall be such amount as is agreed between the applicant and first respondent and failing agreement any offer which is at least 95% of the reserved price shall be accepted by the applicant and first respondent;
(i)in the event that the property is not sold in auction or by private negotiation before or after auction within three months after the said auction, then the applicant and first respondent shall do all acts and things and sign all documents and pay all monies equally to procure a second auction within a further five weeks of the date otherwise upon the sale terms and conditions as applied to the first auction; and
(j)the proceeds of sale (whether by private treaty or auction) pertaining to the said property will be disbursed in the following manner:
(i)firstly, to meet all reasonable costs of sale including agent’s commission, legal fees, auction expenses (if applicable) and payment of all rates and usual adjustments of sale;
(ii)secondly, to discharge the mortgage held with G Finance being account #...70 and registered mortgage number …40; and
(iii)the remainder of the funds to be held in the Barton Family Lawyers Trust Account pending final property settlement.
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).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for interim parenting orders in respect of three children. They have been subject to proceedings in this court for some time now. The proceedings were stalled because, at one point during them, the respondent to the principal application left the state without informing anybody of her whereabouts. What followed from the end of 2022 was a series of location orders, which eventually led to the making of a recovery order. The three children were located in New South Wales and were recovered into the care of their paternal grandparents. They remain in the care of their paternal grandparents.
There is an order that was made at that time for the children to spend time with their father, but the order was couched in terms that their time with their father should be supervised. That order was made because, on the mother’s case, these children were at an unacceptable risk of physical and emotional harm by reason of being exposed to family violence by their father. Her case, as elucidated in her response, subsequently in her amended response, was that these children are at such risk of harm from their father that they should have no contact with him.
The paternal grandparents chose to intervene in the proceedings, and as I have already indicated, there was an order made by the court when the recovery order was issued that the children go into their care.
By the present application before me, the mother seeks interim orders setting aside all previous parenting orders and asking for an order that the children reside with her in Sydney. It is unclear what her position was when she filed this application in terms of the time that the children should spend with the father. By his response, the father seeks an order that the children reside with him and that they spend supervised time with their mother and by their response, the paternal grandparents originally sought dismissal of the mother’s application and no other orders save orders as to costs, but they now, by their amended response, seek an order that the children also reside with their father.
The independent children’s lawyer’s stance seems to be that the current orders can remain in place, or perhaps, alternatively, the children could reside with their father.
As I have indicated, the mother’s case at the outset, amongst other things, was that these children were at an unacceptable risk of harm in their father’s care and therefore they would not benefit from any time whatsoever with him. That case has turned out to be a furphy because during the course of submissions before me today, I was told by her counsel that her case now is that if the children were to live with her, they could enjoy liberal time with their father in Sydney. Her case to me now is that she and her partner would fund the travel of the children each alternate weekend from Sydney to Brisbane so that they can spend the whole weekend with their father. Alternatively, they would fund him to travel to Sydney for that purpose or, indeed, fund him moving to Sydney so that the children could spend time with him.
How one transitions from a case of unacceptable risk of harm by reason of being exposed to family violence necessitating an order in the best interests of these children that there should be no contact, to the orders I have just described defies explanation. The only explanation I can divine is that it is entirely tactical. It has no focus at all on the best interests of these children and focuses on the best interests of the mother.
That is not to say that the children residing in the care of their father or having unsupervised time with him is risk free. The allegations that the mother makes remain to be tested, and it might be that her stratagem expressed during the course of argument today is expressed out of desperation, and she is prepared to jettison her argument about unacceptable risk with the hope that the children would come to return to live with her. So it might be that, on some examination, the court comes to the conclusion that there has been family violence directed by the father to either the mother or some other member of the parties’ household. It would then be a question of assessing the magnitude of that risk and making some assessment of the likelihood of it manifesting itself in the future. But these are all matters for trial. They are not matters that can be tested and decided at an interim hearing like this.
For his part, the father says that the children are at an unacceptable risk in the mother’s care. The risk is at first identified by her flight from Queensland and her failure to tell anybody where she or the children had gone. Mr Finch made a valiant attempt to persuade me that, really, the fault for all of that does not lay at her feet and that it is really at the feet of the other parties who did not ask her where she had gone. With all due respect, that is just rubbish. She should never have done what she did, at least in a unilateral way and without approaching the court for permission to do so. The recovery order response was entirely appropriate in the circumstances.
More than that though, there is evidence before the court that tends to suggest that these children are at risk in the mother’s care. Her mental state is something that needs close scrutiny. The evidence that Mr North took me to in the Queensland Police material showing that the child Y has been found on his own earlier than 7.30am in the morning is of grave concern. It does not seem to have concerned the child protection officers too much at the time, but there is an accumulation of things. I am concerned about it.
I am concerned enough to suggest that there is an unacceptable risk of harm to these children if they were to remain living in their mother’s care in Sydney. Those things taken together mean that I am satisfied that I should make an order as sought by the first respondent father. Although there have been assessments by the Department of Child Safety in the past about risks in his care and whether these children are at an unacceptable risk of harm, so too there is presently evidence before me by the same department to the effect that the father does not present any concerns for the department in his care of the children. Just what the true position is will remain to be tested at trial. That is what trials are for.
The mother’s time with the children in the meantime should be supervised as the father suggests. I accept entirely the notion that she is a flight risk and if these children were to be in her care unsupervised, who knows where they would end up. She has demonstrated through her actions that she is prepared to take unilateral steps without reference to anybody, especially the court, to remove these children from the gaze of the court. A recurrence of that should not be tolerated.
So the orders that I intend to make are in accordance with paragraphs 1 through to 3 of the outline of case document filed by the father on 31 July, 2023.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 2 August 2023
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