KOLICH & DEMBECK

[2020] FCCA 2284

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOLICH & DEMBECK [2020] FCCA 2284

Catchwords:
FAMILY LAW – Extempore judgment – application by Independent Children’s Lawyer for summary dismissal of Mother’s application to spend time with her son- son almost 17 and expressing clear view that he does not presently wish to see his mother – application for summary dismissal granted.  

Legislation:

Family Law Act 1975 (Cth), s.45A

Applicant: MS KOLICH

Respondent: MR DEMBECK

File Number: DGC 3708 of 2019

Judgment of: Judge Burchardt

Hearing date: 10 August 2020

Date of Last Submission: 10 August 2020

Delivered at: Dandenong

Delivered on: 10 August 2020

REPRESENTATION

Counsel for the Applicant: Self Represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Self Represented

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children's Lawyer:	Ms Stavrakakis
Solicitors for the Independent Children's Lawyer:	Ruffin Lawyers

ORDERS

1. The child X born in 2003 live with the First Respondent while in Australia.

2. The First Respondent have sole parental responsibility for the child X born in 2003 while he is living in Australia.

3. The child spend time and communicate with the Mother in accordance with his wishes

4. The order appointing the Independent Children’s Lawyer be discharged.

5. Pursuant to section 45A of the Family Law Act 1975, all extant applications be dismissed.

THE COURT NOTES THAT:

A.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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3708 of 2019

MS KOLICH

Applicant

And

MR DEMBECK

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter, the Independent Children’s Lawyer seeks, in effect, the summary dismissal of the mother’s claim, which is a parenting application in respect of young X who is 16 years and 8 months old.  That is supported by his stepfather Mr Dembeck with whom he has been living for some time.  It’s noteworthy that at paragraph 21 of the 11F report;  the report writer stated:

   X is 16 years and 3 months and at an age where he is able to express his views and wishes in a mature and developmentally age appropriate way. There was no information to suggest from his narrative that he had been influenced by others, which was highlighted with his view of wanting a future relationship with his mother.

2. The views he had expressed are at paragraph 19 where it was:

   X expressed that he was not ready to see his mother at this time.  He said he would see this as a possibility in the future. 

3. A report from the Department of Health and Human Services essentially adds but little, although it is quite clear from that report that X has made it very clear that he wished to stay with Mr Dembeck and was at best, equivocal about spending any time with his mother. In circumstances where the young man, which I think is a more accurate expression to describe a boy who is almost 17, is so close to adulthood and has expressed such clear views, this is a matter in which, to quote the terminology of section 45A of the Family Law Act, the mother has no reasonable prospects of successfully prosecuting her case.  In the circumstances, I am going to make most of the orders the Independent Children’s Lawyer seeks. 

4. I do not propose to remake or expand the orders for the provision of documentation because in my opinion the past history of this matter suggests that they are not likely to be productive.  The question of X’s visa status is, in the ultimate, a matter for the competent Australian authorities.  And since Mr Dembeck will have sole parental responsibility, it will be open to him to take such steps as he may be advised to regularise X’s visa status and any necessary passport application.

5. These reasons will be revised from transcript and forwarded to the parties as soon as possible.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 17 August 2020