State Central Authority and Ballard (No 2)

[2011] FamCA 834

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BALLARD (NO 2) [2011] FamCA 834

FAMILY LAW – PARENTING – child to live with father – means of communication specified.

Family Law Act 1975 (Cth) Family Law (‘Child Abduction Convention’) Regulations 1986 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: State Central Authority

RESPONDENT: Mr Ballard

INDEPENDENT CHILDREN’S LAWYER: Ms M. Lonergan

FILE NUMBER: MLC 7200 of 2011

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carey

SOLICITOR FOR THE APPLICANT: State Central Authority, Department of Human Services

COUNSEL FOR THE RESPONDENT: Mr Marchetti

SOLICITOR FOR THE RESPONDENT: McKean Park Solicitors

COUNSEL FOR THE ICL: Ms M Agresta

SOLICITOR FOR THE ICL Ms Lonergan, Hogg & Reid Solicitors

Orders

BY CONSENT IT IS ORDERED THAT:

1. The child B born … 1995 live with the father.

2. The child, subject to paragraph 3 below, communicate with the mother as follows:-

   (a)by electronic communication, including email, Skype, or text messaging to be initiated by the mother no more than once per fortnight;

   (b)in writing, including letters and cards, forwarded by the mother no more than once per fortnight, and the father ensure that all such correspondence be forwarded to the child; and

   (c)       at all other reasonable times as initiated by the child.

3. The communication referred to in paragraph 2 above be subject to and conditional upon the child’s expressed views and wishes, and the father shall use his best endeavours to encourage the child to communicate with her mother.

4. The father and the mother keep each other advised of their respective contact details, including their respective residential addresses, telephone contact details, and the email address for the child, and each parent update theother within 48 hours of any change to their contact details.

5. The father keep the mother advised of the child’s schooling details and further the father authorise the the child’s school to provide to the mother (at her expense) all information and materials ordinarily provided to parents.

6. Each of the mother and father be restrained by themselves their servants and agents from denigrating the other parent to or in the presence or hearing of the child.

7. The father send the information in paragraphs 4 and 5 of this Order to the independent children’s lawyer contemporaneously with sending it to the mother.

IT IS ORDERED THAT:

1. All extant applications be otherwise adjourned to 18 October 2011 at 9.00 am for the purpose of checking compliance by the father with paragraps 4 and 5 of this Order and if it has been affected, for the dismissal of the application.

2. The reasons for decision this day be transcribed and when settled a copy be provided to each of the parties.

3. Pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

4. I make orders in the terms of the minute as amended which I mark as exhibit A and direct remain on the court file and the court will engross the minute. 

5. I also direct that my reasons for judgment be transcribed in due course, and when settled, be published.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7200 of 2011

State Central Authority

Applicant

And

Mr Ballard

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before the Court as a continuation of the application filed on behalf of the State Central Authority, pursuant to which, Ms Ballard seeks communication or time or access type orders to operate between herself and her daughter, The child B, born … 1995.  This matter has previously been the subject of reasons delivered by me on 12 August 2011 which should be published contemporaneously with these reasons. 

2. On 12 August 2011 ex parte orders were made which progressed the matter to the point of having an independent children’s lawyer appointed to represent The child’s interests and an early return date.  On the early return date of 24 August 2011, the respondent father and The child attended Court, represented by counsel.  The independent children’s lawyer, Ms Lonergan had been appointed and appeared on her own behalf and Ms Carey appeared on behalf of the State Central Authority.  A family consultant had been designated to the matter and that was Ms F.  She was in the body of the court during the hearing.

3. I made orders for a family assessment pursuant to s 11F of the Family Law Act1975 (Cth) and between that hearing and today.

4. I am pleased to say the family assessment has been completed and has been distributed to all of the parties who have had an opportunity to consider its contents including of course, the requesting parent in Country E.  The assessment is dated 30 August 2011.  It is clear to me that the parties and Ms Ballard have come a long way and have achieved what seems to be a perfectly sensible resolution of the matter, having regard to the fact that The child is fifteen and a half years of age and there has been a serious dislocation of her relationship with her mother. 

5. The Family Law (Child Abduction Convention) Regulations 1986 (Cth), pursuant to which the application was brought in the first place, will cease to have applicability to the child on 28 October 2011. Thereafter the orders agreed to today will continue in full force however, by virtue of the 1980 Convention no longer applying to the child, the requesting parent would not have at her disposal the services of the Central Authorities.

6. The purpose of these reasons is essentially to make clear that the determination agreed to today does not constitute a Rice & Asplund (1979) FLC 90-725 situation whereby any party would have to show or demonstrate a change of circumstances before being permitted by the Court to re-litigate this issue. This is because the accord has been struck between the State Central Authority and the father rather than the mother and the father. That said, I do not invite, nor encourage, further litigation in relation to the child. From this vantage point, it appears to me that further litigation is likely to be counterproductive.

7. I will make the orders that are sought.

[NOTE: At the hearing on 18 October 2011 all parties acknowledged that the respondent father had complied with paragraphs 4 and 5 of this Order and the application of the State Central Authority filed 11 August 2011 was dismissed.]

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 September 2011.

Associate: 

Date:  26 October  2011