Mulrian & Hamblin
[2023] FedCFamC1F 421
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mulrian & Hamblin [2023] FedCFamC1F 421
File number: BRC 3937 of 2023 Judgment of: BRASCH J Date of judgment: 8 May 2023 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST- Where children’s mother passed away – Where children’s father is absent from children’s life – Where father has not engaged in proceedings – Where major long term decisions were required on an urgent basis – Where the maternal aunt sought parental responsibility for the children – Where interim orders had been made to allow the maternal aunt to access service providers for the children – Where the Department holds no concerns if child lives with the applicant – Final orders made Legislation: Australian Passports Act2005 (Cth) s 11
Family Law Act 1975 (Cth) Pt VII, s 60CC, s 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 8 May 2023 Place: Sydney Solicitor for the Applicant: Stone Group Lawyers Solicitor for the Respondent: Litigant in person (did not participate) ORDERS
BRC 3937 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MULRIAN
Applicant
AND: MR HAMBLIN
Respondent
order made by:
BRASCH J
DATE OF ORDER:
8 MAY 2023; Amended 24 may 2023
THE COURT ORDERS THAT:
1.The applicant maternal aunt be solely allocated parental responsibility for major long-term decisions in relation to the children:
(a)X born 2011; and
(b)Y born 2012
(“collectively the children”)
2.The parental responsibility allocated to the applicant maternal aunt shall extend to all major long term decision related to the children, including but not limited to:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)Requesting that Medicare issue a card/s for the children and claiming Medicare benefits for the children;
(e)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers; and
(f)Requesting a copy of the children’s birth certificate.
3.The applicant maternal aunt in exercising sole parental responsibility shall:
(a)Advise the respondent father in writing of any major long-term decisions to be made and her reasoning for that decision;
(b)The respondent father shall provide his views on the decision in writing within 7 days;
(c)The applicant maternal aunt shall take the respondent fathers view’s into
consideraitonconsideration in making the decision and will advise him of the decision she has made within 7 days in writing.
4.The applicant maternal aunt shall inform the respondent father as to any serious illness, accident, hospitalisation or medical condition with respect to either child as soon as reasonably practicable via email at an email address nominated by the respondent father to receive such information.
5.The applicant maternal aunt has responsibility for all day-to-day decisions with respect to the children.
6.These Orders are authority for the applicant maternal aunt to schedule and consent to treatment, therapy, schooling, programs, services and the like for the children, and to give and receive such information from service providers as a parent would ordinarily receive.
Passports
7.Pursuant to section 11 of the Australian Passports Act 2005, that the applicant maternal aunt has authority to cause the children to be issued with an Australian travel document and be permitted to remove the children from the Commonwealth of Australia, and the need for the father’s signature is dispensed with.
Living Arrangements
8.The children live with the applicant maternal aunt.
9.To the extent that it is not reasonably practicable for the children to live with the applicant maternal aunt to facilitate the child or children's education, the child or children live with members of the maternal and / or paternal family from time to time at the sole discretion of the applicant maternal aunt.
Time with and communication between children
10.If the children are not living together in the same residence, the applicant maternal aunt will
faciltiatefacilitate the children spending time with and communicating with each other as regularly as possible on school holidays, special occasions (such as Christmas, Easter and the children's respective birthdays) and at all other reasonable times as requested by the children directly.
Time with and communication with Father
11.The children spend no time with and have no communication with the respondent father (including via social media and online means), unless otherwise agreed in writing between the respondent father and the applicant maternal aunt.
Restraints
12.Pursuant to section 68B of the Act, the father is hereby restrained from:
(a)Taking the children into his care for any reason, except as set out in these orders;
(b)Contacting or attempting to contact the children by any means whatsoever, including through social media and any third parties, except with the applicant maternal aunt's prior written consent; and
(c)Attending or being within 100 metres of where the children live, where the children attend school and where the children partake in their scheduled extra curricular
activititesactivities.
13.The parties, their agents and/or servants be and are hereby restrained from:
(a)Denigrating, belittling, abusing, intimidating, harassing and/or rebuking any member of the children's maternal or paternal family;
(b)Discussing these proceedings or any documents prepared in relation to these proceedings save for explaining the spend time provisions of these orders, to and/or within the hearing of the children; and
(c)Knowingly permitting the children having access to any document prepared in relation to these proceedings or any associated proceedings.
Procedural
14.Pursuant to s 121 of the Family Law Act 1975 (Cth), the applicant maternal aunt be granted leave to publish a copy of these Orders to all service providers for the children, including but not limited to the children's school/s, other education providers, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the children.
15.In the event any wording in this Order constrains or otherwise fetters the maternal aunt’s ability to deal with service providers for the children, she has liberty to approach chambers by email (with an affidavit) via (…@...) under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) seeking the relevant amendment/s.
THE COURT NOTES THAT:
A.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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
B.The father’s name was called three (3) times and there was no response. These orders were made in the absence of the Father.
C.The father is able to bring an application to set aside these orders if he wishes to do so. In the event he does, the registry is requested to list the matter before the Honourable Justice Brasch.
D.These Orders have been amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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
BRASCH J:
INTRODUCTION
These are my ex tempore reasons. I have corrected the transcript for grammatical errors and to make the spoken word more amenable to reading.
This matter concerns X, born 2011. Her brother, Y, was born in 2012 (“the children”). The children’s mother passed away in late 2016. The children’s mother, Ms B, was born in 1981, and she died when the children were five and four years old. The children’s father is the first respondent in these proceedings, Mr Hamblin, born in 1972 (“the father”). The father has spent some time in incarceration, it would seem, and has had his parole transferred to the state of Victoria.
I do not have a natural contradictor here but have been assisted by, on the first return, the co‑located officer from the Queensland Department of Children, Youth Justice and Multicultural Affairs (“the Department”). I have received records from four police services, as well as the Department. The police records are from the New South Wales Police, Queensland Police, Victorian Police and the Western Australian police. On the face of those records, the father has a considerable criminal history.
Perhaps, most importantly in terms of these two children, is that the Department had a child concern response at the back of their records – an intake form, which referred to the passing of the children’s grandmother and X being in the care of the great-great-aunt Ms D, and Y being with the maternal aunt, Ms Mulrian (“the applicant”). The Department had a notification about the father trying to access the children, if he came to learn that the grandmother had passed on. However, the Department had no safety concerns with the children being placed as they have been.
To her credit, Ms Mulrian, the applicant maternal aunt, spoke of both of the parents being neglectful to the children, both abusing illicit substances and alcohol. She included her sister in those observations. To the best of her knowledge, the children have not spent time with the father since a short visit in 2020. It might have been that the children communicated with their father prior to that in late 2015. There had been previous parenting proceedings involving this family.
In 2017, proceedings were commenced by the maternal grandmother, Ms C, after Ms B, her daughter, passed away. The father Mr Hamblin, I am told, was incarcerated at the time. On 7 August 2017, the Court made final orders for the children to live with Ms C, for her to have sole parental responsibility for the children, and for the children to spend time with Mr Hamblin (their father), as agreed with the grandmother. I have been provided a copy of the final orders. The maternal grandfather passed away in 2019, and the maternal grandmother, Ms C, to whom I have referred, passed away in 2022.
The children thereafter lived with the applicant maternal aunt or other family members, as has been organised by her, and the applicant has made all decisions for the children since 2022. The testamentary intention of the grandmother, Ms C, indicated that she wished to grant guardianship of X and Y to the applicant’s brother, Mr E, and Mr Hamblin’s sister, Ms F. Ms F is a witness in the aunt’s case and is supportive of her application. However, it transpired that on 7 December 2022, the brother, Mr E, sent an email telling the applicant he was hoping:
This will free up your time, not having to be engaged with the estate, and focus on guardianship of [Y] and [X]. Thanks for all you have done up to this point.
The applicant understood Mr E’s email to mean that he was happy for her to continue to be responsible for the children. I agree. I read it that way as well.
Service
In terms of service on the father, I made orders on 5 April 2023 to bring these proceedings to the attention of the father. I also required the applicant to swear an affidavit telling me what she had done. She was not successful in personally serving the father with her court documents. As I will come to, there has been some electronic communications between the father and the applicant, but he did not provide her with a residential address or any other address upon her request.
I am told that immediately after the court appearance on 5 April 2023, the applicant sent a text message to the father’s mobile, which is included in the affidavit:
Hi [Mr Hamblin], I see from your Facebook page that you are still living in Melbourne.
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 7)
She then asked for an address to send court documents in relation to the children. In that text, the aunt advised the father that Ms C had passed away. She outlined the orders that she was seeking for the children. Otherwise, she said she would send the court material via Facebook or post them to Ms H’s address, another family member at Suburb G. It is a respectful email. It is an entirely appropriate text message from the applicant to the father.
At 12.50 pm on 6 April, so the next day, the applicant received a text message from the father which read:
See you in Court. Your not having my kids, you drug dealing scum. The truth is all about to come out how you and your family are [Suburb J’s] biggest drug dealers. Only you left to die, hurry up about it. Won't be long. Karma will get you, ya grub. See you in court soon.
(As per the original)
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 8)
It is plain from that email that the father is well aware that there are court proceedings on foot. I do not put any weight on his allegations that the applicant is “drug dealing scum”. I do not, because if the father was serious about that, then he has had plenty of time from 6 April 2023 to now, 8 May 2023, to file documents and to make his case. He has not. That afternoon, on 6 April 2023, the applicant sent a further text message to Mr Hamblin, which is again entirely appropriate and entirely respectful. She indicated in that that:
As you have not sent me your address, I will send a letter from my lawyer and copies of the Court documents via Facebook messenger and via post to your mother’s address. Please note the matter was heard urgently in the Family Court yesterday, 5 April 2023. Based on my application, the Court made interim orders for the children to live with me, for me to make decisions for them and for them to spend no time and have no communication with you except as agreed by me. The Court has restrained you from communicating with the children or coming within 100m of where they live or where they go to school. The Court has also restrained you from insulting me, belittling or harassing me, so I ask that you be respectful to me in all future messages to me. I will send you a copy of the Court orders made yesterday via Facebook message, as well as the Court documents I filed. You will need to read your Facebook messages and comply with the Orders.
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 9)
Immediately after the applicant sent that text message, Mr Hamblin sent a reply text message, which read:
All good only interim orders you’ll hear from my lawyer.
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 10)
That, again, was 6 April 2023 - more than a month ago. Nothing has been heard from the father’s lawyer. I am well satisfied, however, that the fact of these proceedings has been brought to the father’s attention.
To the applicant’s credit, the applicant then sent by Facebook Messenger on 6 April 2023 the material – the various documents that she had filed in these proceedings, including her Initiating Application, her Affidavit, the Affidavit of the father’s sister, Ms F, Notice of Child Abuse, and Genuine Steps Certificate.
The applicant outlined to him, again, very fairly, the matter had been listed urgently before me on 5 April 2023 and that I had made interim orders. I am told that the Facebook message attached the letters of service from the applicant’s lawyers to the father and enclosed the court documents. Annexed to the affidavit is a copy of the Facebook message that the applicant sent to the father, and that included thumbnails of the PDFs that she had attached. I have no reason to doubt any of that. To the applicant’s great credit, still trying to bring the matter to the father’s attention, on 11 April 2023 the applicant instructed her solicitors to send all of the court documents to Ms H (the paternal grandmother), at her Suburb G address. The parcel was sent via express post.
On 11 April 2023, the applicant spoke with Ms F, the paternal aunt (the same aunt who is on affidavit here in support of the application) and she asked that Ms F (the paternal aunt) let Ms H (the paternal grandmother) know to expect some documents. Ms F and the applicant had a conversation later that day, where it was indicated that Ms H did not take the news terribly well. She was angry. She is reported as saying words to the effect of, “I don’t want the police on my doorstep”. The applicant was able to track the express post parcel that she sent with Australia Post, and it reads as follows:
On 13 April 2023 “attempted delivery – no one in attendance”
On 13 April 2023 “awaiting collection at [Suburb G] CPA”.
On 20 April 2023 “return to sender – item not collected”
On 1 May 2023 “arrived at sorting facility [Suburb K] WA”
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 21)
I am satisfied that the applicant has done all she possibly can to bring this matter to the father’s attention. To her credit, she also let the father know by text of this afternoon’s hearings. She deposed:
As at 2 May 2023, I had not heard further from [Mr Hamblin] or a lawyer on his behalf since his text message to me on 6 April 2023.
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 23)
The applicant sent the father a further text message:
Hi [Mr Hamblin], this is a reminder that the parenting application for the children is next in Court at 2:15pm on 8 May 2023...
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 25)
The applicant goes on and gives details and indicated the matter will be heard by Microsoft Teams, and:
…If you wish to participate in the matter, you should read your Facebook messages that I sent you 6 April 2023 attaching my Court documents, the orders made on 5 April, a letter from my lawyer explaining the next court date and what you need to do, or to contact the Federal Circuit and Family Court of Australia...
(Affidavit of [Ms Mulrian] filed 4 May 2023, paragraph 25)
Again, it is a respectful message that gives the father all of the information he needed if he wished to participate in the proceedings today. I am satisfied that this matter has well and truly come to the father’s attention. However, because I will be making orders in his absence, he will have the opportunity (no doubt consulting with the lawyers to whom he has already made reference) to apply to set aside these final orders as they were made in his absence. One does not necessarily follow the other though. All I indicate by that is there is a procedure available to him where he may ask that the orders be set aside. Whether they will be or not, if he makes such an application, is an argument for another day.
The matter first came before me in the Critical Incident List whereby the applicant needed Medicare cards for the children. Ms C’s Medicare card is what she had but, obviously, Ms C has now sadly passed. The applicant wanted to obtain private health insurance by including the children on their family plan to organise some orthodontic treatment for X and some specialists for Y, as had been recommended by his GP. The applicant’s GP – Dr L – also told her that many medical specialists may refuse to speak with the applicant maternal aunt unless she has parental responsibility.
Similarly, the applicant wishes X to continue with M Organisation to see psychologists if recommended. She expresses the concern, and rightly so, that they may not engage with her as she does not hold parental responsibility. There is a desire on the applicant’s part to be included in a current Queensland Police investigation involving X. With a parental responsibility order, the applicant will then be able to assist X in whatever is happening with that investigation.
The applicant has also been told, and quite rightly so, that N School and P School would not be able to prevent the father from removing X or Y from their schools.
Y is described as a happy 10 year old boy in grade five at P School. Y has, in reality, been living with the applicant since he was four years old, despite the 2017 parenting orders. Y requires developmental support. He is otherwise described as having poor memory and some processing capacity, and there is a concern that he may have a developmental disorder or other processing issues. The maternal aunt is doing what she needs to and all things a parent ought ordinarily do to provide Y the supports he needs. Y lives with the maternal aunt.
Despite the maternal aunt having parental responsibility, it is agreed that X lives with her paternal aunt, that is, Mr Hamblin’s sister, Ms F, for the purpose of attending N School. X is in grade seven. It is of considerable comfort to the Court that both paternal and maternal identity figures are involved in both of the children’s lives. Having a link to one’s identity is an important part of a child growing up. It is also of considerable comfort to the Court that the maternal aunt and paternal aunt have been able to focus on the children and the children’s best interests and make decisions for them.
I have no doubt and encourage both the maternal aunt and paternal aunt to keep going with that cooperative approach. I accept the maternal aunt and paternal aunt have had their own grief in their lives, particularly with the passing of the maternal aunt’s sister and mother; and, it would seem that the paternal aunt has had difficulties with the father as well. The one thing these two children need (who, themselves, have had considerable instability with their mother and their father) is consistency and stability in their lives.
Ms F, as I said, is on affidavit. She tells me she last saw the father when the paternal grandfather died in 2017. She said his previous parole was transferred to Melbourne the same year, and he moved there. She tells me that in late 2020, she was talking to X on the phone and X was telling her about a visit that Mr Hamblin had had to Ms C’s house in 2020. X referred to her father having three paper bags from a chemist with three syringes, but “Dad needs nine syringes”. She said:
Dad keeps falling asleep in the toilet and the bathroom and we couldn’t get in…
(Affidavit of [Ms F] filed 28 March 2023, paragraph 53)
The paternal aunt also deposes to her last contact with Mr Hamblin in March 2022. Someone texted her, that is, the paternal aunt, asking for Mr Hamblin’s number because there were problems with (another) daughter, Q. She texted Mr Hamblin, asking, doing the right thing, if she could pass on his phone number to help out his daughter, Q. So this is a different daughter. The father seems to have three other children. In what seems to me to be an entirely appropriate request – could she pass on his mobile number – the father’s response to his sister was:
ESAD…[which is said to be an acronym for, “eat shit and die”]
Your (sic) not my sister. We are not of the same blood, so my kids are nothing to you. Claim all you like, I’ll be sure to let them know. I’ve already told them you are nothing to me. I’ll remind them next time we speak. Go back to treating [Mr R] like a dog and stay out of my life. Get your own. Lol. Have another pill, put on a patch have a ciggie or two. Lifes good. Lol
(As per the original)
(Affidavit of [Ms F] filed 28 March 2023, paragraph 55)
Understandably, the paternal aunt felt concerned for her safety. This is a similar kind of tone and tenor of a communication that I have already described with respect to the applicant maternal aunt reaching out to the father. I am also told by the paternal aunt that the police attended upon her home three times in late 2022 looking for the father. The paternal aunt was told that Mr Hamblin had listed her home as his address. Patently, that was not correct.
Legal Principles – Part VII of the Act
I now turn to Part VII of the Family Law Act1975 (Cth) (“the Act”), which requires, ultimately, that I must make orders that are in the best interests of the children.
Many of the orders in Part VII of the Act and, particularly, in s 60CC, refers to parents. In the sad circumstances of this case, I have one parent who is deceased, and I have another parent who, for whatever reason, has not involved himself in these proceedings. It is therefore very hard to deal with the primary consideration, which is the children having a meaningful relationship with both parents, but that meaningful relationship is conditioned on one that is safe.
I am satisfied, even though the paternal aunt and maternal aunt are not parents, that the children are indeed safe with each of those women and with Ms Mulrian having sole parental responsibility for them.
As for the additional considerations in s 60CC(3) of the Act, again, many refer to parents. There is one parent here who is unavailable and one parent here who has chosen not to participate.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
I have no doubt these are children who if, unhappy with their respective placements with the maternal aunt and paternal aunt, they would be letting people know. I have no such evidence before me.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child);
When I look at (b), the nature of the relationship of the children with each of their parents but, more so, (ii), other persons, the evidence before me is that the children know and are properly cared for by the paternal aunt and the maternal aunt in their respective households. That the paternal and maternal aunt have joined together, each in support of each other, to support the children speaks volumes to the nature of the children’s relationship with these maternal and paternal figures.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Subsection (c) is irrelevant. That is about parents taking the opportunity, or not, to participate in decision-making, spending time with and communicating. This is obviously, unavailable to the mother, and I have already set out the steps that have been taken to bring this matter to the father’s attention. The extent to which the children’s parents has fulfilled or failed to fulfil obligations to maintain the children is not one that really looms here, other than in the negative. It is the maternal aunt who cares for the child in her care and provides for him. It is the paternal aunt who cares for the child in her care, but it will be the maternal aunt who is looking to provide private health for both children.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The likely effect of any changes in the children’s circumstances, including separation from parents or other children, is one that is a tragedy in this matter. The children are, and will be forever, separated from the mother. The children have, for a long time, been separated from their father. They do however have a bond with each of the aunts who are in their lives and providing care for them.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The practical difficulty and expense of the children communicating does not really arise, dealing with parents, as it does. Yet, I am confident that the two aunts will ensure that the children see each other as often as they can.
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
Capacity to parent is not a matter that looms here for the reasons I have already stated, at least in terms of parents. Again, I have no difficulty with the capacity of either Aunt to provide for the children’s emotional and intellectual needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The maturity, sex and lifestyle background of the children is not a matter that looms.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
The children, I am told, are not Aboriginal children or Torres Strait Islander children.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I will not repeat what I have already said under the heading, Capacity to Parent, under this subheading.
Whilst that section specifically refers to parents, and I have already made reference to the situation here, I am nevertheless satisfied Ms Mulrian and Ms F are responsible people bringing the application that has been brought, and the paternal aunt supporting it speaks volume to that.
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
Family violence and family violence orders is something that would have loomed large when the parents were together. The records that are before me from the s 69ZW information raises those concerns but, again, child safety and the co-located officer had no difficulties at all with the children being in the care of the respective aunts and the ultimate decision-making with Ms Mulrian.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The second last consideration is whether it would be preferable to make the order that would least likely lead to the institution of further proceedings. It is a reality that under the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth), the father can apply to set aside this order on the basis it was made in his absence. If he does so, then so be it. That will be a matter for consideration for another day. I will make a further order that should the father bring an application, I will request the registry list the matter before me.
(m) any other fact or circumstance that the court thinks is relevant.
The final matter is any other fact or circumstance the Court thinks is relevant. The maternal aunt and paternal aunt need to be focused on providing the supports that are needed for each of these children. On all of the evidence before me, the last thing they need is to have to come back to court another few times to secure a final order. That is the whole point of the Critical Incident List - to get people, when appropriate, in and out of the Court system as expeditiously as possible, but so long as the children’s best interests are met. I am satisfied that the orders I discussed with Ms S this morning ought be made on a final basis and that they are in the children’s best interests. If the father applies to have the orders set aside, then that can be considered then.
The final order I will make is a slip rule order Should any of the wording in the final orders prove constraining, for example, if Births, Deaths and Marriages would prefer a different form of words, then I will make an order that the applicant has liberty under the slip rule to email my chambers. I will include the email address for my associate in the order. It is to be accompanied by an affidavit, indicating what the wording problem is with whatever the order and with a suggestion to a cure.
An affidavit will need to be sworn to and, ideally, any supporting documents, for example, Medicare or Births, Deaths and Marriages indicating what the problem is with the orders as I have formulated them. I do so on the basis that Ms Mulrian does not need to be troubled by filing an Initiating Application, Affidavit and all the documents that go with that, simply to get some words changed so services can be provided to the children. I will make the orders on a final basis and the additional orders. I will also add a notation that the father’s name was called three times and he did not respond.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 24 May 2023
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