Kori & Georgene (No 3)
[2024] FedCFamC1F 381
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kori & Georgene (No 3) [2024] FedCFamC1F 381
File number(s): BRC 16543 of 2020 Judgment of: BAUMANN J Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – PARENTING – Where final orders had been made for a change of residence for the child to live with the father and interim orders for the child to spend supervised time with the mother – Where the mother has subsequently failed to adequately engage in the proceedings – Where the mother unlawfully removed the child from school causing a second recovery order to issue – Final parenting orders made with no prescription as to any particular arrangements for the child to spend time or communicate with the mother – Harmful proceeding order made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Kori & Georgene [2023] FedCFamC1F 989
Kori & Georgene (No 2) [2024] FedCFamC1F 328
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 23 May 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person (did not participate) Solicitor for the Respondent: Turnbull Mylne Solicitor for the Independent Children's Lawyer: Aylward Game Solicitors ORDERS
BRC16543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KORI
Applicant
AND: MR GEORGENE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders be discharged.
2.That the father have sole parental responsibility for major long term decision for the child, X born 2015 (“the child”) but in the exercise of his sole parental responsibility he must inform the mother of any major long term decisions that he has made within five (5) days of doing so.
3.That notwithstanding the provision of Order 2, the father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.
4.That in the event of an emergency, the parent the child is with will send a text message to the other parent informing them that there is an emergent situation and then telephone the other parent providing them with all relevant information including details of treating practitioner and/or hospital with the notifying parent to send an email within twenty four (24) hours confirming what has taken place.
Living arrangements
5.That the child live with the father.
Parental communication
6.That for the purposes of exchanging information with each other, the parents shall:
(a)communicate by telephone matters of an urgent nature in relation to the child; and
(b)communicate by email about day-to-day matters in relation the child.
7.That the parents keep each other informed of:
(a)any medical problems or illnesses suffered by the child whilst in their care;
(b)any medication that has been prescribed for the child; and
(c)any other matter relevant to the child’s welfare.
8.That the parents advise each other of their current contact telephone numbers and inform each other of any changes to these details within seven (7) days of such change occurring.
9.That pursuant to s 114S of the Family Law Act 1975 (Cth) (“the Act”), the father be granted leave and shall provide to the child’s general practitioner and therapist a copy of these Orders and the Reasons for Judgment delivered 11 December 2023 and 6 June 2024.
Other orders
10.That during the time the child is with either parent, that parent shall:
(a)actively promote the child’s relationship with the other parent and speak of the other parent respectfully;
(b)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not-denigrate or insult the other parent in the hearing or presence of the child and shall remove the child from the presence and hearing of any third party who is doing so;
(d)not denigrate or insult the other parent on social networking media or sites, and
(e)not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence of the child and use their best endeavours to ensure that others do not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence of the child;
(f)not use any form of physical discipline on the child;
(g)not smoke in the presence of the child nor in confined spaces or a vehicle in which the child is located; and
(h)remove the child from the presence of any person who is using or under the influence of any illicit substance.
Airport Watch List
11.That until further Order or else subject to the written consent of both parents, each parent, MS KORI born in 1971 and MR GEORGENE born in 1981, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child, X born 2015 from the Commonwealth of Australia until the child attains the age of sixteen (16) years.
12.That the Deputy Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court, or authenticated written consent of both parents.
Injunctions
13.That the mother is hereby restrained from attending at the child’s residence, any school at which the child attends or other place where the mother knows the child is or may be.
14.That the mother is hereby restrained from communicating with the child by any means without the written consent of the father first had and obtained.
15.That the mother is hereby is restrained from removing the child from the care of the father without the written consent of the father first had and obtained.
16.That the mother is hereby restrained from obtaining an Australian or New Zealand passport for the child.
17.That pursuant to s 102QAC(1) of the Act, the mother, or any person acting in concert with the mother, is prohibited without leave from the Court, from instituting proceedings under the Act in a court having jurisdiction under the Act, against or in relation to the father.
18.That should the mother seek leave to institute proceedings pursuant to s 102QAE of the Act, the father is to be notified by the Court (by email):
(a)that an application has been made; and/or
(b)the outcome of the application.
19.That the Independent Children’s Lawyer be discharged.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Kori & Georgene has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
After Reasons were published on 11 December 2023, in this matter (see Kori & Georgene [2023] FedCFamC1F 989), a number of further events have taken place, namely:
(a)although the Court had ordered on 9 November 2023 for the mother to bring the child X (born 2015) to the Court on 11 December 2023, she failed to do so;
(b)the Orders made on 11 December 2023 changed the residence of the child from the mother to the father;
(c)on 14 December 2023, the Court made a Recovery Order which was executed by Police on 12 January 2024;
(d)on 24 January 2024, the Court suspended the interim Orders made 11 December 2023 so far as they permitted the child to spend supervised time with the mother;
(e)on 17 April 2024, and with the benefit of a report from Psychologist Ms T relating to the therapy that she had provided to the child since she began living with the father on 12 January 2024, the Court listed the proceedings for an undefended hearing on 24 May 2024 and directed the father to file and serve an amended Response setting out the final orders he proposed for the child to spend time with the mother;
(f)as a result of the events at the child’s school in mid-2024, the mother removed the child from the school contrary to specific Court Orders and injunctions. An urgent Application for a Recovery Order was filed and considered by the Court ex parte. A Recovery Order was made for the reasons explained in brief Reasons published thereafter (see Kori & Georgene (No 2) [2024] FedCFamC1F 328). The child was recovered on the following day, from the care of the mother as she approached the State border near the regional town of Town U;
(g)despite Orders to attend personally before the Court and also Orders to file affidavits, the mother (save for one occasion on 24 January 2024 when she appeared by telephone), has not engaged in the Court process – other than to send emails in which, as a sovereign citizen, she makes claims that the Court has no jurisdiction and, most recently sought orders for the return of “her property”, being her daughter. Strangely, she also sought to rely upon an Australian Capital Territory Statute to assert she was being asked to pay monies (I assume a standard administrative request once the matter was listed for a final undefended hearing), which she opposed. Although the Court has no information as to her current financial situation, it is likely the mother (as the original Applicant in these proceedings) would be entitled to a fee waiver, if in fact she has not already paid the fee for the original hearing on 19 and 20 July 2023 and 8 and 9 November 2023.
THE HEARING ON 24 MAY 2024
At this hearing, where the mother did not attend personally or by electronic means (for reasons explained later in these Reasons), the father was represented by Mr Mylne (his solicitor) and the Independent Children’s Lawyer Mr Field also appeared. Submissions were made (both orally and in the Independent Children’s Lawyer’s case, in writing), with the father relying on the history as earlier set out and also:
(a)the further amended Response filed 21 May 2024;
(b)the father’s affidavit filed 21 May 2024.
The final orders sought in the further amended Response are set out fully at Appendix One to these Reasons.
Although final Orders were made on 11 December 2023 (see Orders 1 to 18), the father seeks to slightly vary some of those Orders now, in addition to seeking some further final orders. In seeking to slightly vary some of the earlier Orders, it is my view such application enlivens s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) which came into effect on 6 May 2024. It is also appropriate to note that because final orders had not been made in respect of the time the child shall spend with the mother by 6 May 2024, the new legislative pathway applies to that part of the father’s application.
SHOULD THE HEARING PROCEED IN THE MOTHER’S ABSENCE?
The father says that he believes “that [Ms Kori] was placed on several charges by QPS including abduction of a child and was held in custody to appear in Court in mid-2024. I do not know of her appearance and the progression of the charges against her”.
The Independent Children’s Lawyer made a search of the Corrective Services website, which he said confirmed that the mother is incarcerated, although the reason for her incarceration is not revealed on the website.
The mother, before she appears to have been arrested around mid-2024, has failed to engage properly with the Court; file material as directed and/or appear as ordered (leaving aside her failure to appear on 24 May 2024).
The father is not in receipt of legal aid representation. The mother’s unexplained behaviour (causing a number of appearances by the father and two Recovery Orders) strongly suggests she does not accept the jurisdiction of the Court.
The father, under the earlier final Orders, has not only the day-to-day exclusive care of X, but also the full responsibility for her needs, including extensive counselling.
As the orders I make will effectively be made in the absence of the mother, she has rights under Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to seek to set aside the orders, but to do so she will need to file an Application, as the leave given is a matter of discretion. In my view, in the circumstances of this case, it is appropriate to make final orders in the mother’s absence.
ORDERS MUST BE IN THE CHILD’S BEST INTERESTS
Even though the mother has filed no evidence or appeared, the Court is not empowered to make the orders the father seeks – just because he seeks them.
The Court must be of the view, on the evidence, that the orders are in the child’s best interests. In that regard, the objects now prescribed in s 60B of the Act must be considered as well as the new s 60CC(1) and (2), which I recite in these Reasons:
60B Objects of Part
The objects of this Part are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
As earlier alluded to, as the father seeks to slightly amend the final Orders made 11 December 2023, s 5DAAA of the Act is also enlivened, which provides as follows:
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
In respect of the limited further evidence now before the Court, I make the following findings:
(a)Although the Court regarded a change of residence to the father for X was in her best interests, it was hoped that the Orders for supervised time made 11 December 2023 would ultimately lead to a sharing of care and unsupervised time between the child and the mother. I rely upon my earlier Reasons to demonstrate the Court’s approach;
(b)Although the evidence at the trial from Psychiatrist Dr K (see paragraphs 66 and 67) was not entirely accepted, the evidence raised some serious issues that the family report writer Mr J opined meant the mother would be assisted in seeking some psychological support and assessment. There is no evidence the mother has done so. The final Orders contained a notation as follows:
A.That in the event the mother seeks a change to the arrangements for supervised time between herself and the child, the Court would be assisted by evidence that she has engaged with treating professionals and that that she has attained insight into the impact of her previous conduct, and that if the Orders for supervised time were changed to provide for unsupervised time between the child and the mother, that the mother has insight and strategies that indicate she would comply with these Orders without supervision.
(c)The mother’s conduct in firstly not complying with Orders to allow the change of residence to occur, and her attending at the child’s school and removing her, demonstrate a real concern about the mother’s insight and capacity;
(d)The father submits, and the Independent Children’s Lawyer supports this submission, that until more evidence is provided by the mother, any time which the child spends with the mother could again result in her being taken away. The school was not able to prevent the mother and any attempts at supervised time would need to have clear restrictions, capable of being enforced;
(e)The mother’s actions and the emails (some of a similar vein as were uttered orally to the Court by the mother on 24 January 2024) all persuade the Court at this stage that the mother is acting erratically and may be a risk to X. I regret it is necessary to make this comment, when there was a lot of evidence before the Court, at the trial, of the dedication and commitment to X’s care the mother had demonstrated. The issue was the mother’s fixation that the father had sexually abused the child, and further her view that the father offered no value at all to the child’s life – such that her position at the trial was that no time should occur between the child and the father; and
(f)Whilst I have no relevant evidence, apart from that of the child’s therapist Ms T, as to how the father is managing the care of X, I have no doubt it has been challenging. I draw comfort that although the child has been distressed and confused, and no doubt longs to spend time with the mother, the father is doing the best he can and is taking appropriate professional advice.
In conclusion, I am of the view, at this time, it is not in the best interests of the child to prescribe any particular arrangements for the child to spend time or communicate with her mother.
As to the other orders the father now seeks, to the extent they may be a slight “reconsideration” of final parenting orders, the actions of the mother satisfy me there has been a significant and material change since the Orders of 11 December 2023, and that it is in the best interests of X for the final parenting Orders, in some collateral aspects, to be reconsidered.
FORM OF ORDERS
After a consideration of the final Orders made on 11 December 2023 (the reasons for which were fully explained in the Reasons published at that time), and the orders that the father now proposes as set out in his amended Response filed 21 May 2024, I make the following further findings:
(a)Although I will make no prescribed order for time between the child and the mother at this time, Order 2 should not alter. The mother is still entitled to know of a major long term issue, although communicating with her is likely to be problematic;
(b)Although the father seeks, by his further amended Response, that all the Orders made 11 December 2023 “be discharged”, some will be incorporated in the orders made today, namely 3(b), 4, 5, 7, 8, 9, 15, 16, 17;
(c)The earlier Orders contained an Airport Watchlist order (Orders 23 and 24). The father, who has family in Country D, has wanted to travel to his homeland, particularly to allow the child to spend time with the paternal grandmother and extended family. The Court has no evidence about any imminent trip. In the earlier part of the proceedings, the mother expressed a fear that the father would not return from Country D if allowed to remove the child from Australia;
(d)The father’s relationship with the child is in the earlier months of reunification. She has been through a number of stressors. She is only nine years of age. Even though there will be no orders prescribing time for the child to spend with the mother, I have little evidence to support a conclusion that the child will cope with and benefit from a trip to Country D, and further, if there are still sufficient ties with Australia to encourage the father to return from Country D – which is not a Hague Convention country. In the circumstances, the Airport Watchlist Orders will continue until the child is 16 years of age unless otherwise varied;
(e)The continuance of the Airport Watchlist Order means if the father has a certain proposal to travel, with a clear itinerary and evidence of why he will return, he can bring an application to travel that the Court can consider;
(f)I will discharge Orders 3(a), 6, 10, 11, 12, 13 and 14 of the final Orders made 11 December 2023;
(g)As earlier indicated, Orders 23 and 24 will be incorporated in the new orders;
(h)I will make the injunctions pursuant to paragraphs 5, 6, 7 and 8 of the amended Response; and
(i)The father seeks to invoke s 102QAC of the Act prohibiting the mother from instituting proceedings without leave of the Court. The Independent Children’s Lawyer supports the making of the said order. I am prepared to make the harmful proceedings order, as it is important that the mother carefully consider any future applications to spend time with X and supports that application with appropriate evidence – including evidence explaining her conduct and failure to comply with Court Orders since 11 December 2023.
It is my hope that the mother will actually read these Reasons and consider some therapeutic support. Of course, the Court has no information about whether she will face criminal charges; what those charges are and the likely outcome if she were found guilty.
However, if this mother was functioning well, she has the capacity to add value to the life and development of X – but not at the risk of destroying the child’s growing relationship with the father. I hope that the mother will deal with the many issues which seem to confront her, and if she brings an application for leave, it will certainly be considered on the evidence she produces then.
The Independent Children’s Lawyer shall be discharged with the Court’s gratitude in this difficult case.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 6 June 2024
APPENDIX ONE
1.That the orders made on a final basis on 11 December 2023 as amended on 14 December 2023 be discharged.
Parental Responsibility
2.That the father have sole parental responsibility for all major long term decisions for the child, X born 2015 (“the child”).
Living Arrangements
3.That the child live with the father.
Provision of Orders
4.That pursuant to s 121 of the Family Law Act 1975 (Cth), the father and his legal representatives be granted leave to provide a copy of these Orders and the reasons for judgment delivered 11 December 2023 (as amended 14 December 2023) and any supplementary reasons to: any school, education institution, or care provider;
a.any treating medical practitioner, hospital or health care professional for the child; and
b.any government department or instrumentality,
that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian privacy principles as set out in Schedule I of the Privacy Act 1988 (Cth).
Injunctions
5.That the mother be and is hereby restrained from attending at the child’s residence, any school at which the child attends or other place where she knows the child is or may be.
6.That the mother be and hereby is restrained from communicating with the child by any means without the written consent of the father first had and obtained.
7.That the mother be and hereby is restrained from removing the child from the care of the father without the written consent of the father first had and obtained.
8.That the mother be and hereby is restrained from obtaining an Australian or New Zealand passport for the child.
Harmful Proceedings
9.That pursuant to section 102QAC of the Act, the mother be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 without the leave of the Court pursuant to section 102QAG of the Act.
Airport Watch
10.That until further order MS KORI born in 1971, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child X born 2015 from the Commonwealth of Australia until 2033; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.
11.That the Deputy Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court or 2033.
NOTATION:
A.These orders do not provide for the mother to spend time or communicate with the child.
B.That pursuant to s 65DA(2) 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 the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
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