KELLAR & STRANG

[2019] FCCA 1390

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLAR & STRANG [2019] FCCA 1390

Catchwords:
FAMILY LAW – Notice of risk – failure to adequately serve the other party.

Applicant: MR KELLAR

Respondent: MS STRANG

File Number: DGC 3163 of 2018

Judgment of: Judge McNab

Hearing date: 9 May 2019

Date of Last Submission: 9 May 2019

Delivered at: Dandenong

Delivered on: 9 May 2019

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Mr Lok

Solicitors for the Respondent: Rayner Song Family Lawyers

ORDERS

1. Pursuant to s 68L(2) of the Family Law Act1975 [X] born … 2008 and [Y] born … 2010 (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they makes such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

   (a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;

   (c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at ( and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (d)The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.

2. The Independent Children’s Lawyer take steps to arrange for the Applicant to be psychiatrically assessed.

3. Orders 3, 4 and 5 of the orders dated 26 February 2019 be discharged.

4. The Court requests that the Australian Federal Police remove the names of children [X] born … 2008 and [Y] born … 2010 (“the children”) from the Airport Watch List at all points of international arrivals and departures in Australia.

5. The mother be permitted to travel with the children to Country A in two of the following three time periods, with the mother to use her best endeavours to travel during school holiday periods:

   (a)18 June 2019 to 25 July 2019;

   (b)11 September 2019 to 16 October 2019;

   (c)10 December 2019 to 9 February 2020

6. Within seven (7) days of these orders, the father do all acts and sign all documents necessary to enable an Australian Passport to be issued (or renewed or replaced) for each child, with the passports to be held by the mother.

7. The mother provide the father with at least twenty one (21) days written notice of the proposed itinerary for any travel permitted under order 5, including date of departure, date of return, mode of transport, destination(s), address(es) of accommodation and emergency contact number.

8. The parties have equal shared parental responsibility for the children.

9. The children live with the mother.

10. The children spend time and communicate with the father as agreed between the parties in writing, and in default of agreement, as follows:

    (a)every alternate weekend from the conclusion of school on Friday (or 3.30pm if a non-school day) to the commencement of school on Monday (or 9.00am if a non-school day); and

    (b)every Wednesday from the conclusion of school (or 3.30pm if a non-school day) to 8.00pm.

11. The children spend time with the parents during the July and September school holidays at times as agreed between the parents in writing and in default of agreement:

    (a)with the father from the conclusion of school on the last day of the term (or from 3.30pm on a non-school day) to 5.30pm on the subsequent Friday; and

    (b)with the mother for the balance until the commencement of the next term (or until 9.00am on the first day of the next term).

12. Order 10 and 11 be suspended during the operation of order 5.

13. The resident parent facilitate the children to contact the other parent at reasonable times as may be requested by either child via telephone, skype or similar technology.

14. The changeover occur at a location as agreed between the parties in writing, and in default of agreement, at school if it coincides with the commencement or conclusion of school or otherwise at the residence of the parent whose time is commencing with the children.

15. Each parent advise the other of any change of telephone number, email address or residential address within forty-eight (48) hours of such change occurring.

16. Each parent inform the other as soon as practicable of any serious injury or illness sustained by either child whilst the children are in that party’s care and further provide particulars of any treatment required or received by either child together with the name an address of the treating provider.

17. Each parent is hereby authorized to obtain from the children’s childcare, kindergarten and/or school all notices, letters, reports and invitations and to attend parent/teacher interviews or other activities to which parents are ordinarily invited.

18. The parents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other or their respective family members to or in the presence or hearing of the children and from permitting any other person to do so.

19. The matter be adjourned to the Duty List of Federal Circuit Court of Australia at Dandenong on 22 October 2019 at 10.00am for Directions.

20. The Applicant’s application in a case file 17 April 2019 be dismissed.

AND THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

2. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

3. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

4. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

5. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Kellar & Strang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3163 of 2018

MR KELLAR

Applicant

And

MS STRANG

Respondent

REASONS FOR JUDGMENT

(REVISED FROM EX-TEMPORE REASONS)

1. The father, when the matter first came before the Court on 26 November 2011, was seeking an airport watch list order.

2. The matter was adjourned to 26 February 2019. The Court ordered that within 7 days the father ensure that a sealed copy of the order be personally served on the mother.

3. By the return of the matter on 9 May 2019, the applicant’s mother had filed an affidavit of service. The applicant’s mother deposed that she attempted to hand the documents to the mother at Street B, Suburb C.

4. The respondent has given evidence by an affidavit sworn 3 May 2019. She deposed that she did not have notice of the hearing on 26 February 2019 and only became aware of it subsequently (see [38]-[40] of this affidavit).

5. The mother also says that she only became aware of the application in a case which was returnable today as a result of checking the ComCourts Portal and did not receive notice of that.

6. She denies the accuracy of an affidavit of service by Mr D on 25 April 2019, noting that she was out of the house most of the day on 25 March 2019 and that she “was never served with any documents on that, or any other day”: [40] of her affidavit. I accept the evidence of the mother in this regard.

7. The application in a case is for [X] and [Y] (‘the Children’) to live with the father and for the children only spend time with the mother as agreed by the father. The father relies upon an affidavit filed 17 April 2019, and in particular, at [9] of the affidavit. That paragraph speaks for itself and I will not repeat what is said there.

8. I am of the opinion that if a child had revealed the matters that are revealed in that paragraph to a parent, it would have resulted in an immediate report to the police and immediate action to have any phone owned by the mother to be forensically examined by police. This would particularly be the case where there is an allegation that a young child has viewed a snuff movie on the mother’s telephone. The absence of a report to the police and any action taken other than filing a notice of risk indicates to me that there are real doubts as to the veracity of that material.

9. Another ground that the father refers to is the fact that the children seem to be spending a lot of time playing the game Fortnight. That is a notoriously popular game for teenagers or young children. Whilst people might spend a lot of time doing it, I do not necessarily think it is indicative of a necessity to change residence.

10. I have significant concerns arising from the demeanour of the father and the nature of the allegations. Because of his behaviour, I believe it is appropriate for an Independent Children's Lawyer to be appointed and that the father be psychiatrically assessed.

11. The mother has filed a very detailed response which recounts her regular trips back to Country A since they arrived here in 2013. She deposes that she came to Australia so as to better educate her children. She remains in Australia and is working.

12. She has returned to Country A regularly and subsequently returned to Australia. She does depose that her mother is ill and wishes to visit her mother with her children.

13. At [13] of her 3 May 2019 she deposes that:

    On … 2017, the children and I were due to travel to Country A to attend my brother’s wedding and visit our relatives. In early … 2017, I had sought Mr Kellar’s consent to go back to Country A with the children and he agreed. The children and I were waiting in the check-in area at Tullamarine Airport at … when Mr Kellar unexpectedly appeared and demanded that I transfer $1,000 into his bank account otherwise he would stop the children from travelling to Country A. I was scared of what Mr Kellar would do so I made an EFT of $1000 into his bank account. Mr Kellar then left us alone and the children and I travelled to Country A that night. We stayed there for six weeks with my family before returning to Melbourne at the start of the school year.

14. The mother denies the allegations made by the father and has given comprehensive evidence. I accept that the father has not had an opportunity to respond to this material but on an interim basis, however I am prepared to make the orders proposed by the mother. The father still has significant time with the children on an interim basis, spending alternative weekends with the boys and one evening on the other week. And otherwise the orders that are made are  sensible.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 23 May 2019