Kay and Hunter

[2017] FamCA 664

FAMILY COURT OF AUSTRALIA

KAY & HUNTER [2017] FamCA 664

FAMILY LAW – CHILDREN – final orders – where the father seeks to withdraw his application – where the mother seeks to withdraw her application –where the parties have entered into a parenting plan for the child to live with the parents on a week-about basis – where the Independent Children’s Lawyer does not endorse or oppose the parenting arrangements – order made granting the parties leave to withdraw their applications – order made releasing the maternal grandmother from an undertaking.

Family Law Act 1975 (Cth)

APPLICANT: Mr Kay

RESPONDENT: Ms Hunter

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 7612 of 2015

DATE DELIVERED: 27 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: John J

HEARING DATE: 27 June 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

SOLICITOR APPEARING FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pierkarski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That the applicant father have leave to withdraw his Initiating Application filed on 28 March 2017.

2. That the respondent mother have leave to withdraw her Response to Initiating Application filed 5 April 2017.

3. That Ms B Hunter be released from the personal undertaking given by her on 6 April 2017 to the Family Court of Australia at Melbourne to supervise all time spent between the mother and the child and to suspend such time and return the child to the father in the event of non-compliance by the mother with the orders dated 6 April 2017.

4. That the appointment of the Independent Children's Lawyer be discharged.

5. That there be no orders as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7612 of 2015

Mr Kay

Applicant

And

Ms Hunter

Respondent

EX- TEMPORE REASONS FOR JUDGMENT

1. The matter of Kay & Hunter comes before me today in a Duty List. 

2. The history of the matter has been helpfully provided by Mr Piekarski, who is the Independent Children's Lawyer (“the ICL”).  There is one child of the parties’ relationship, C, who is nine years of age.  The mother and the father entered into final orders in relation to her care by consent in October 2015.  Those orders were made in the Federal Circuit Court.  Those orders provide that the parties have equal shared parental responsibility for C, that she live with her mother  and that she spend regular time with the father.

3. Those arrangements continued until early this year.  On 28 March 2017, the father filed an Initiating Application in which he sought urgent relief due to his concerns that C was at risk in the mother’s care.  The principal concern for him was him having notice of the mother engaging in alleged criminal activity.  There was a police attendance at her home and a male person was arrested at that time.  He has been remanded in custody on alleged drug offences, weapons offences and receipt of proceeds of crime.  The mother has also been charged with criminal offences arising from that event.

4. The matter came before the Senior Registrar on 6 April 2017.  That day, upon a personal understanding being given by the maternal grandmother, orders were made that the operation of the previous parenting orders be suspended.  Interim orders were made for C to live with the father.  Orders were made for specified time between the mother and C, and that that time be supervised by the maternal grandmother.

5. The matter was otherwise adjourned over to this day.  Orders were made for the parties in the interim to attend the Child Responsive Program for the preparation of a section 11F report.  An appointment was arranged for interviews for that report to be undertaken on 31 May 2017.

6. What has transpired since that time, I am told, is that the parties have resumed communicating with each other, and indeed, they have entered into a parenting plan which will chart the future course of their parenting arrangements.  Neither party attended the appointments with the family consultant, Ms D.  She has provided a brief report dated 31 May 2017 confirming that neither party attended the appointment.  She refers to the fact that contact was made with both parties’ legal representatives and that she was told that the parties had reached their own agreement and would not be attending.  She also communicated that day with the Independent Children’s Lawyer regarding those arrangements.

7. The parties, although represented during the course of these current proceedings, have represented themselves before me today.  Their solicitors sought and were granted leave to be excused at the commencement of this hearing before me. 

8. The father has confirmed in his oral submissions that he is in regular communication with the mother, he is satisfied that the mother is no longer associating with the person whom he believes has led her down the wrong pathway which culminated in the alleged criminal activity.  He is satisfied that the mother is able to care for C, that she poses no risk to C and further, that C is desirous of spending more time with her mother.  He informs me that the parties have entered into a parenting plan that provides that C will be living with them on a week-about basis.  It is on that basis that he seeks an order firstly that he be granted leave to withdraw his application before the Court and secondly, that I make an order releasing the maternal grandmother from the undertaking given.

9. The mother has also given brief oral submissions as to her position.  She endorses what is said by the father.  She confirmed the parenting plan had been entered into.  As to the criminal matters that she is subject to, she indicates that the matter is listed for a mention hearing on 24 July 2017.  She confirmed that she is subject to strict bail conditions which include a prohibition against her communicating or associating with the persons who are involved in the events giving rise to the criminal charges and who the father has raised concerns as to the risks that those persons may pose to C or to the mother’s ability to appropriately care for C.  The mother joins with the father in seeking to withdraw her application before the Court and to otherwise have the maternal grandmother released from her undertaking.

10. The position of the Independent Children's Lawyer is that whilst he acknowledges what is put by the mother and the father, he does not endorse and cannot endorse the current parenting arrangements.  His position is simply that he does not have enough information to be either able to endorse or otherwise oppose those arrangements.  This is particularly so given the parties’ failure to attend upon the section 11F appointments so as to have the input of the family consultant, who had been appointed to provide that insight as to the proposed arrangements and the impact of those upon C.  Whilst he does not oppose the orders sought, he cannot endorse them.

11. Having heard the submissions provided by each of the parties, I am satisfied that there is little more that the Court can do, other than to grant leave to each of the parties to withdraw their respective applications.  Further, as to the issue of the undertaking given by the maternal grandmother, there seems little utility in requiring her to be bound by such an undertaking in circumstances where the father in particular considers that there is no longer the need for the supervised time and does not seek to enforce the conditions of that undertaking.  In the circumstances, I am satisfied that it is appropriate that the maternal grandmother, Ms B Hunter, be released from the personal undertaking given by her on 6 April 2017. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 June 2017.

Associate: 

Date:  27 June 2017