Macey & Hamilton

[2021] FamCA 223

FAMILY COURT OF AUSTRALIA

Macey & Hamilton [2021] FamCA 223

File number(s):	MLC 7010 of 2015
Judgment of:	BENNETT J
Date of judgment:	13 April 2021
Catchwords:	FAMILY LAW – PARENTING – permanent injunction against mother applying to relocate the children (11 years old; 9 years old) – order in best interests of children and otherwise proper – order sought by consent – order made as sought.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	12
Date of hearing:	13 April 2021
Place:	Melbourne
Counsel for the Applicant:	Mr McLeod
Solicitor for the Applicant:	B Lawyers
Counsel for the Respondent:	Ms Papson
Solicitor for the Respondent:	Heinz Law

ORDERS

MLC 7010 of 2015

BETWEEN:

MS HAMILTON

Applicant

AND:

MR MACEY

Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	13 APRIL 2021

THE COURT ORDERS THAT:

1.That the parties attend upon Victoria Legal Aid (VLA) Family Dispute Resolution Service (FDRS) in relation to parenting matters, forthwith, with the Applicant within 7 days of the date of these Orders to make an application to Victoria Legal Aid for a Family Dispute Resolution Conference.

2.That the parties agree that the children, B born … 2010 and C born … 2012 (“the children”) shall attend Kids’ Talk prior to FDRS.

3.That all interim and final orders otherwise sought in the Applicant’s Initiating Application filed 23 September 2020 be dismissed.

4.That all interim and final orders otherwise sought in the Respondent’s Response filed 20 November 2020 be dismissed.

5.That the Applicant Mother be and is and hereby restrained by injunction from issuing further proceedings seeking the relocation of the children.

6.That the Applicant pay the sum of $20 per week (the payments), commencing in the week beginning the 21st of March 2021 to the Respondent’s solicitor, Heinz Law and the payments will increase to $40 per week upon the Applicant obtaining permanent employment of more than 20 hours per week, with the Applicant to inform the Respondent’s solicitor within 7 days of her obtaining such employment, and the payments continue until the total payment of the costs order made by Magistrates’ Court in 2019 (of $3,800.70) has been received.

7.Each party bear their own costs of and incidental to these proceedings.

8.The Final Parenting Orders of 2 May 2016 remain in full force and effect, subject to the variation (if required) that any agreement between the parties in writing, including by text message, regarding arrangements about the children, will not be treated as a breach of any Intervention Order in which either party or the children are an Aggrieved Family Member, or a Respondent.  

IT IS FURTHER ORDERED:

9.That my reasons for decision this day be transcribed and, when settled, placed on the Court file and a copy provided to the parties.

10.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

11.That the minute of orders be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED THAT:

A. The father agrees that he will withdraw his Application for an Intervention Order against the mother, and so far as he is able, that any interim Intervention Order will be discharged.

B.The purpose of the FDRS is to address:

i.         The children’s views as to parenting arrangements; and

ii.The children’s secondary schooling which commences in 2023, and for which enrolment is required within the next 2 months.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BENNETT J:

1. The matter comes before me in the judicial duty list after the parties, the mother and the father, have agreed to a resolution of proceedings before this court in relation to B, who will soon be eleven years old, and C, who is eight years old.  The terms of the parties’ agreement finds expression in minutes of proposed consent orders executed on their behalf by their respective solicitors and dated 19 March 2021.  In due course, they were submitted to a Deputy Registrar of this court to be made.  The Registrar declined to make the orders pursuant to her delegated powers because, I understand,  she was concerned that paragraph 5 is expressed in the following terms:-

   That the applicant mother be and is hereby restrained by injunction from issuing further proceedings seeking relocation of the children.

2. There is, I note, no qualification that proceedings could be instituted with leave of the court or some other condition precedent, such as an order for compliance with an order for security for costs. It is expresses as a permanent injunction. 

3. The Court’s power to make parenting orders is found in section 65D of the Family Law Act 1975 (Cth) (“the Act”), which provides that:

   In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

4. Pursuant to Part VII and s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.

5. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   These objects may be regarded as the core values of the legislation.

6. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the child’s best interests:

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

7. Section 60CC of the Act provides how the Court determines what is in the childrens’ best interests. There are two primary considerations and numerous additional considerations. I take these matters into account.

8. I am mindful that this is a matter that has been resolved consensually and that the parties are both represented by legal practitioners and I do not want to dredge up old controversies.  I am informed that the mother has, on two occasions, taken steps to relocate the children either unilaterally, without the authority of the Court, or by making an application.  It is a term of the agreement to which the parties have now come that the wife will not make another application to relocate the residence of the children.  If this was an order sought in opposed proceedings, I can foresee that it would be difficult for me to make it in these terms.  However, this is a matter sought to be incorporated as an order that is sought by consent and, in my view, within power. 

9. Section 61DA provides that, when making a parenting order in relation to a child, I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the children.  In this matter, the Court made orders on 2 May 2016, and pursuant to paragraph 2 of those final orders the parties have joint parental responsibility for B and C.  In any event, there is no dispute between the parties, and the ambit of power with which I am concerned is confined.

10. As a matter of interest, I note that in vexatious proceedings (which these are not), subject to the Court being satisfied that the proceedings have been instituted vexatiously, the Court may order, amongst other things:[1]

    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

    There is no requirement for that, for such an order to be subject to a qualification for leave.  

    [1] Family Law Act 1975 (Cth) s 102QB(2)(b).

11. I will make the parenting order in the terms sought.  Having heard from the representatives for the parties, I am satisfied that the order sought is proper.  I note that this order concludes litigation, which has been on foot since last year with earlier proceedings having spanned 2015 and 2016. 

12. I wish the parties well.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       27 April 2021