Laidler & Pallister
[2024] FedCFamC2F 507
•23 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laidler & Pallister [2024] FedCFamC2F 507
File number(s): BRC 6243 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 23 April 2024 Catchwords: FAMILY LAW – PARENTING – Ex-Tempore Reasons for Judgment - Application for Review filed by the Independent Children’s Lawyer – Where orders made by a Senior Judicial Registrar were beyond the scope of the powers conferred in section 67ZC of the Act – where it is unclear what head of power is relied upon to ground such orders being made – Where the father seeks to reagitate such interim orders by way of a further Application in a Proceeding – Where no material change in circumstances is demonstrated by the father – Interim orders the subject of the Review Application discharged – Review Application otherwise dismissed – Application in a Proceeding filed by the father dismissed. Legislation: Family Law Act 1975 (Cth) s 67ZC.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190.
Federal Circuit and Family Court of Australia, Central Practice Directions, Family Law Case Management, (2021) 5.21, 5.22.
Cases cited: Edwards v Edwards [2006] FamCA 1230
Marsden v Winch [2009] FamCAFC 152
Poisat & Poisat [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90 – 725
Rikki & Rikki [2023] FedCFamC1F 1003
Division: Division 2 Family Law Number of paragraphs: 28 Date of hearing: 23 April 2024 Place: Sydney Solicitor for the Applicant: Litigant in Person Solicitor for the First Respondent: Litigant in Person Solicitor for the Second Respondent: Litigant in Person, did not participate Solicitor for the Independent Children’s Lawyer Ms Keyworth, Keyworth Harris & Love Family Lawyers ORDERS
BRC 6243 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAIDLER
ApplicantAND: MS PALLISTER
First RespondentMS PALLISTER
Second RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
23 APRIL 2024
BY CONSENT THE COURT ORDERS THAT:
1.The second respondent Maternal Grandmother is removed as a party to the proceedings.
2.Orders 11, 28, 29, 30 and 31 made on 13 March 2024 are discharged.
THE COURT ORDERS THAT:
3.The Application for Review filed by the Independent Children’s Lawyer on 2 April 2024 is otherwise dismissed.
4.The Application in a Proceeding filed by the Father on 11 April 2024 is dismissed.
THE COURT NOTES THAT:
A.There was no appearance on behalf of the second respondent when their appearance was called at 10:03am.
B.The mother did not appear at court until after 10:20am this morning. She has been reminded that in the event she does not appear in court at the listing time at future court events the matter may proceed in her absence.
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).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
These are parenting proceedings commenced by the father on 18 May 2023 with respect to the parties two children, X who is 8 years of age and Y who is 2 years of age.
The maternal grandmother is listed as the Second Respondent in the proceedings. There is no appearance by her at court today. On 13 March 2024 she was directed to file a Response and any material in support by 4:00pm on 12 April 2024. The maternal grandmother has not filed a Response in accordance with those Directions. On 8 April 2024 she filed an Affidavit deposing that she does not wish to be a party to the proceedings.
She seeks no orders with respect to the subject children. She did not seek to be joined as a party. She has agreed that the mother live with her for the next three to six months to enable her to “get her life back in order” but she is not up to the task of raising the three children. She asks that she be removed as a party to the proceedings. It appears this request was attempted to be formalised by the maternal grandmother by way of her filing on the same date a Notice of Discontinuance of a Response to an Application in a Proceeding filed on 13 March 2024 being the date the orders were made by the Senior Judicial Registrar.
Each of the parties are litigants in person. An Independent Children's lawyer was appointed on 10 July 2023.
Listed before me today are two applications: -
·An Application for Review filed by the Independent Children's Lawyer on 2 April 2024 seeking to review the orders made by a Senior Judicial Registrar on 13 March 2024.
·The father's fifth Application in a Proceeding filed on 11 April 2024. Such Application seeks to vary the orders made on 13 March 2024.
I will deal with the Application for Review filed by the Independent Children’s Lawyer first.
The Independent Children's Lawyer seeks that orders 28- 31 made on 13 March 2024 (“the interim orders) be discharged. The father during the course of the hearing today advised his consent to such application. The mother when she attended at court today also advised of her consent to such application.
In light of the Independent Children’s contention as contained in her Case Outline that Orders 4 and 11 of the interim orders conflict, I granted leave to the Independent Children’s Lawyer to amend the Application for Review so as to further seek that Order 11 of the interim orders be discharged. The father consented to leave being granted as did the mother.
In addition, all parties agreed with me that Order 11 conflicts with Order 7 of the interim orders and thus this should be dealt with today by consent also.
In support of the Review Application of the Independent Children’s Lawyer I have read:
·The Case Outline filed 17 April 2024;
·The orders of the Senior Judicial Registrar on 10 August 2023, 7 March 2024 and 13 March 2024; and
·The affidavit of the Independent Children’s Lawyer filed 29 February 2024.
I have further read and marked into evidence as Exhibit A the Protection Order made for the protection of the mother and restricting the behaviour of the father in Court in early 2023.
The relevant orders being the subject of review are as follows:
Time Arrangements
4. Commencing the 22 March 2024, the children shall spend time with the Father every alternate weekend from Friday after school or 3.00pm if a non-school day until Sunday at 4.00pm.
Changeover
7. Changeover is to occur at the children’s school, day care or vacation care.
Restraints
11. The Father is restrained from:
(a) approaching, following, locating or surveilling the mother and/or children or allowing any other person to do so;
(b) attending within 100 metres of the children's school or daycare;
(c) attending within 100 metres of the mother’s home or place of work
Queensland Police Service
28. The Independent Children’s Lawyer is to provide to the Commissioner of Police the following documents:
a. Exhibit 3 p. 8,9,10 19 – 26; and
b. This order.
29. The Independent Children’s Lawyer is to request Commissioner of Police consider whether the protection order made at Court in early 2023 has been breached.
30. The Independent Children’s Lawyer must provide to Commissioner of Police the following documents:
a. Exhibit 3 p. 17; and
b. The affidavit of [Mr B].
31. The Independent Children’s Lawyer is to request Commissioner of Police consider whether [Mr C] has breached his reporting conditions or committed any offence.
In support of the relief sought by the Independent Children’s Lawyer as to Orders 28-31 of the interim orders, she submits that: -
·The making of orders 28-31 is beyond the scope of powers conferred in s67ZC of the Family Law Act 1975 (Cth) (“the Act”) to make orders for the welfare of children.
·The documents ordered to be provided to the Commissioner of Police save and except for the orders of the court are not identifiable. Even if they were, it is outside the scope of the role of the Independent Children's Lawyer to provide untested documents to the Commissioner of Police.
·Mr C is not a party to the proceedings. The mother asserts she is no longer in a relationship with him.
I accept the submissions of the Independent Children's Lawyer as contained in her Outline of Case. The exercise of delegated power by the Senior Judicial Registrar is curious. The absence of identification in the orders and/or the provision of reasons does little to distil the enquiry as to the head of power relied upon to ground the orders made with respect to orders 28 to 31.
On one view, the delegated judicial officer has adopted a process whereby the Independent Children's Lawyer will also become a witness in the proceedings giving evidence.
The orders require the Independent Children’s Lawyer to indirectly make a complaint to the Police of alleged conduct by the father and indirectly of alleged conduct of a third party on behalf of the father, such complaints being implicitly promoted by way of an order of this court. The inappropriate and improper exercise of a delegated judicial function is self-evident and requires no further elaboration.
Orders 28- 31 will be discharged.
It is plain that orders 4, 7 and 11 are in conflict. Both the Independent Children's Lawyer with the consent of the mother and the father submit that the mother is properly protected by the provisions of the current domestic violence order which contains exceptions to enable the father to spend time and attend changeovers for the children pursuant to the existing interim orders.
I am satisfied that the existing orders made in the Local Court properly protect the mother and will accordingly discharge Order 11 of the interim orders made by the Senior Judicial Registrar on 13 March 2024 in circumstances where they clearly conflict with Orders 4 and 7.
I turn now to the Application in a Proceeding filed by the father on 11 of April 2024 seeking to vary the interim orders. I have read such Application in a Proceeding together with the affidavit in support filed by the father on this date. Neither the mother nor the Independent Children’s Lawyer sought to make any submissions with respect to this Application. I requested the father to make submissions as to what material change in circumstance there has been since the orders were made by the Senior Judicial Registrar. The father was unable to articulate any submissions with respect to same.
Whilst the Act recognises that no parenting order can ever be truly immutable, it is well established that the court should only hear an application to vary an earlier parenting order if it is satisfied that there has been a change in circumstances that is sufficiently significant to warrant doing so. This is often identified by the principle arising from the judgment of the Full Court in Rice v Asplund (1979) FLC 90 – 725; It is a manifestation of the paramountcy principle: Poisat & Poisat [2014] FamCAFC 128. As recorded by the Full Court in Edwards v Edwards (2006) FLC 93 – 306:
The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews.
If the father’s evidence was able to demonstrate a material change in circumstances, I must then consider whether the asserted need to vary the orders outweighs the potential detriment to the children of fresh litigation: Marsden v Winch (2009) FamCAFC 152.
I am not satisfied having regard to the affidavit material filed by the father and the inability of him to vocalise today his position as to there being any significant change in circumstances, that there is such a significant change in circumstances in the five-week period since the interim orders were made by the Senior Judicial Registrar which justify this court again reviewing the interim orders as sought by the father in his Application in a Proceeding. I note there appears to be some issue with respect to Order 8 made on that date but there is no Application before me with respect to same. The parties are at liberty of course to file the appropriate Application if such issue exists. It will be for judicial officer hearing any such application to determine whether in light of the evidence filed in support that there has been a material change in circumstances.
The father’s Application will be dismissed.
The father has, in the eleven months this matter has been on foot, filed five applications seeking interim orders. Practice Direction 5.21 states that, unless a relevant exemption applies, a party may not file an Application in a Proceeding seeking interim orders without making a reasonable and genuine attempt to settle the issue to which the application relates. There is no evidence of such attempts made by the father prior to filing the current Application in a Proceeding.
Practice direction 5.22 of the Central Practice Directions, Family Law Case Management, (2021) (“the Central Practice Directions”) states that other than in urgent circumstances relating to issues of high risk, parties may each file a maximum of two Applications in a Proceeding without leave. Leave of the court must be sought as part of any relevant interlocutory application.
The Central Practice Directions underscore the overarching purpose of the court as set out in section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Parties and lawyers have a mandatory obligation to act consistently with this overarching purpose. As stated in Rikki & Rikki [2023] FedCFamC1F 1003 at paragraph 14:
Parties to a proceeding are not entitled to consume an unlimited amount of public resources in the pursuit of their own interests. A course adopted by the Court consistent with its obligations to properly apply public resources is eminently sensible and reasonable.
Having regard to the overarching purpose of the court the father is clearly put on notice that in the event he files a further Application in a Proceeding that is dismissed by the judicial officer hearing it, summarily or otherwise, he may face cost consequences.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 23 April 2024
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