FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENDEL & MENDEL | [2018] FCCA 3256 |
| Catchwords: FAMILY LAW – Parenting – consideration of the child’s best interests – where the father is incarcerated and his personal attendance at Court is required in order to facilitate due process and justice – interpretation of section 77 of the Crimes (Administration of Sentences) Act 1999 – where the absence of an inmate may prejudice the rights of a party – application of section 3A(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) – serious family violence – where physical attendance at Court of a perpetrator of family violence will negatively impact the victim – the Court’s obligations under sections 69ZN and 67ZBB of the Family Law Act 1975 – COSTS – interpretation of section 117 of the Family Law Act 1975 – where the parties currently are or have previously been in receipt of legal aid – where an order to pay the costs of the Independent Children’s Lawyer would cause financial hardship on a party. |
| Legislation: Crimes (Administration of Sentences) Act1999 (NSW) s.77 Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) s.3A(1) |
| Cases cited: Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812) Other articles cited: |
| Applicant: | MS MENDEL |
| Respondent: | MR MENDEL |
| File Number: | PAC 1977 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 10 September 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 10 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Todd of Counsel |
| Solicitors for the Applicant: | Lamrocks Solicitors |
| Counsel for the Respondent: | Ms Hamilton of Counsel |
| Solicitors for the Respondent: | Glenn R Walters & Co |
| Counsel for the Independent Childrens Lawyer: | Ms Morton of Counsel |
| Solicitors for the Independent Childrens Lawyer: | Morton Family Lawyers |
ORDERS
By consent, as between Ms Mendel and Ms M, Orders are made in accordance with terms of settlement executed by the parties, Ms Mendel and Ms M, and the Independent Children’s Lawyer marked Exhibit A.
Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
THE COURT NOTES that the above Orders are made on an undefended basis and without objection by Mr Mendel, but not by consent, thus preserving his right to make further Application for parenting Orders should he so wish.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to…
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- Mendel and Mendel [2018] FCCA 3256
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- [2018] FCCA 3256
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were to determine the final parenting arrangements for the children, including issues of parental responsibility, living arrangements, and contact. The court was also required to consider the father's restrictions regarding contact with the children, the role of the paternal grandmother, and the implications for international travel and passport applications. Furthermore, the court needed to address the conduct of the parties and the paternal grandmother in relation to the children and the father's incarceration.
The court's reasoning was largely guided by the consent orders reached by the parties, as detailed in Exhibit A. These orders established that the mother would have sole parental responsibility and that the children would live with her. Significant restrictions were placed on the father, including a prohibition on approaching the children or their school and all forms of direct or indirect contact. The paternal grandmother was granted specific, supervised time with the children, with stringent injunctions preventing her from facilitating any contact between the children and the father or his romantic partners, or discussing the father's incarceration or court proceedings with the children. The court also made provisions for the mother to obtain passports for the children and to travel internationally with them.
By consent, the court made final orders in accordance with the terms of settlement. These orders included the mother having sole parental responsibility and the children living with her, with significant restrictions on the father's contact. The paternal grandmother was granted limited time with the children, subject to strict conditions. The court also granted leave for the Independent Children’s Lawyer to apply for costs and dismissed the application, noting that the orders were made on an undefended basis without objection from Mr Mendel.
Orders
Orders of the court
1.
By consent, as between Ms Mendel and Ms M, Orders are made in accordance with terms of settlement executed by the parties, Ms Mendel and Ms M, and the Independent Children’s Lawyer marked Exhibit A.
2.
Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
3.
THE COURT NOTES that the above Orders are made on an undefended basis and without objection by Mr Mendel, but not by consent, thus preserving his right to make further Application for parenting Orders should he so wish.
4.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
5.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
6.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
7.
Grant leave to the Independent Children’s Lawyer to make an Application for contribution towards costs of the Independent Children’s Lawyer.
8.
Dismiss the Application.
EXHIBIT A
BY CONSENT, AND ON A FINAL BASIS, IT IS ORDERED:
1.
That the applicant mother have sole parental responsibility for the children [X] (DOB 2011) and [Y] (DOB 2012).
2.
That the children live with the mother.
3.
That pursuant to S.68B the father be restrained from approaching the children or coming within 100 metres of their school.
4.
That the father have no contact with the children, either in person or by written or verbal communication.
5.
That it is noted pursuant to S.11 of the Australian Passport Act 2005 that:
(a) The mother is the sole person with parental responsibility for the children for the purpose of both that legislation and the Family Law Act 1975;
(b) The mother is the sole person required to make application for the issue of a passport for the children.
6.
That the mother be given leave to provide a copy of these orders to the Department of Immigration for the purpose of applying for passports for the children.
7.
That pursuant to S65Y of the Family Law Act 1975 the mother shall be at liberty to cause the children to travel outside of the Commonwealth of Australia.
8.
That the paternal grandmother spend time with the children on the last Sunday of each calendar month for a period of six hours from 10:00am to 4:00pm.
9.
That the paternal grandmother’s time with the children shall be suspended at the following times:
(a) On Mother’s Day each year;
(b) On Easter Sunday;
(c) On Christmas Day in the event that Christmas Day falls on a Sunday;
(d) On the children’s birthday’s in the event that either of their birthday’s fall on a Sunday.
10.
That in the event that the paternal grandparents or either of them are unable to care for the children whilst the children are in their care in accordance with these orders, the paternal grandparents shall immediately contact the mother and return the children to her care.
11.
That for the purpose of the grandmother spending time with the children, the mother shall deliver the children to and collect from the grandmother’s home, at the commencement of the children’s time with the paternal grandmother and the conclusion of each period with the paternal grandmother.
12.
That each party refrain from denigrating, harassing, or belittling one another at all including within presence or hearing of the children.
13.
That each party ensure that they speak with or about one another in any situation with civility and respect.
14.
That the paternal grandmother shall not discuss with the children the reasons for, or the nature or circumstances of the father’s incarceration with, or within the presence of, the children, including as to his emotional state, or permit any third party to do so.
15.
That the paternal grandmother shall be restrained by injunction from causing or allowing the children to have contact or communication with the father, whatsoever, including but not limited to:
(a) Taking the children to any correction facility at which the father may be held from time to time.
(b) By providing the children with, or permitting the children to read, receive or possess any written, verbal or electronic communication from the father (whether addressed to the children or otherwise); or prepared on the father’s behalf, or permitting a third party to do the same, whether such are written, photographic, pictures or otherwise;
(c) Causing or allowing the children to hear the voice of the father or see him on any electronic devices;
(ca) Passing messages along to the children or communicating to the children on the father’s behalf;
(d) Leaving the children in the presence of any third party who facilitates or attempts contact between the father and the children in any way or by any means, including but not limited to the matters set out in orders 15(a) to 15(ca) herein.
16.
For the avoidance of doubt, order 15 extends to forms of contact or communication prepared or which were in existence prior to the making of these orders.
17.
That the paternal grandmother must not bring the children into contact with or facilitate any communication with, whether it be face to face, by telephone or other electronic means, with any person with who the father is, or has been, in a romantic relationship.
18.
That the paternal grandmother shall be restrained by injunction from discussing with the children any allegation made in the proceedings or any other court proceedings and shall ensure no third party discusses any allegations made in the proceedings or other court proceedings in relation to the mother and the father.
19.
That subject to the availability of a Mental Health Plan the mother shall engage with a suitably qualified psychologist to assist with both explaining to the children and answering any questions that they may have, relating to the Father’s incarceration.
Notation
20.
Order 15(b) does not require the grandmother to dispose of family photographs containing images of the Father, nor to remove same from her walls at home or the like, but extends to not putting any further photographs up.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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