Talone and Hanks

[2020] FamCA 776

FAMILY COURT OF AUSTRALIA

TALONE & HANKS [2020] FamCA 776

FAMILY LAW – CHILD – With whom the child lives – Where the child is diagnosed with level 3 autism  – Forced return – Where the mother unilaterally and against Court orders relocated, initially intrastate, then New Zealand – Where a Federal Circuit Court judge ordered the mother to return the child and the mother has wholly refused to comply with that order – Mother’s defiance of authority and flagrant disobedience of orders – Where risk of mother terminating father’s time is real and substantial – Mother to sign an Undertaking to comply with orders or matter to be relisted. 

Family Law Act 1975 (Cth) Part VII ss 60B, 4, 60CA, 60CC, 61DA, 65DAA(1), 65DAC

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Franklyn & Franklyn [2019] FamCAFC 256
Mauldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
S v Australian Crime Commission (2005) 144 FCR 431; [2005] FCA 1310
Wacando v The Commonwealth (1981) 148 CLR 1; [1981] HCA 60

APPLICANT: Mr Talone

RESPONDENT: Ms Hanks

INDEPENDENT CHILDREN’S LAWYER: Ms Taifalos

FILE NUMBER: CSC 666 of 2014

DATE DELIVERED: 18 September 2020

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns (via Microsoft Teams)

JUDGMENT OF: Tree J

HEARING DATE: 5 and 6 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Eylander

SOLICITORS FOR THE APPLICANT: Wallace & Wallace Lawyers

COUNSEL FOR THE RESPONDENT: Ms Earl

SOLICITORS FOR THE RESPONDENT: Bassano Law

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Jacobs

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Taifalos

ORDERS

1. That within 14 days, the mother is to make file and serve any written undertaking, in such terms as she may be willing to proffer, to strictly comply with the proposed orders annexed to the Reasons for Judgment of Tree J published 18 September 2020 in the event that such orders are pronounced.

2. That in the event that the mother files an undertaking as contemplated by order 1 hereof, the court’s decision in this matter stands further reserved, noting that, if the undertaking is in terms acceptable to the court, orders will thereupon issue without the necessity for further reasons, but if the undertaking is not in terms acceptable to the court, then the matter will be relisted for further submissions on a date to be advised.

3. That in the event that the mother files no undertaking as contemplated by order 1 hereof, then the matter will be relisted for further submissions on a date to be advised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS VIA MICROSOFT TEAMS

FILE NUMBER: CSC666/2014

Mr Talone

Applicant

And

Ms Hanks

Respondent

REASONS FOR JUDGMENT

Introduction   

1. These proceedings relate to the parenting arrangements for the parties’ only child, Z (“the child”) who was born on … 2014 and therefore is presently six years of age. For her part, Ms Hanks (“the mother”) in the first instance seeks orders that existing final parenting orders in relation to the child made in 2017 should continue to prevail. Under those orders, she has sole parental responsibility for the child, who lives with her, and spends time with Mr Talone (“the father”) “at times and places as agreed to in writing by the mother.” The mother also has the discretion as to whether to insist upon the child’s time with the father being supervised.

2. In the alternative, the mother sought orders for sole parental responsibility, that the child live with her in New Zealand, and that the father spend time with the child during New Zealand school holidays, although in her exclusive discretion, she could require such time to be supervised by her and further, she would be entitled to withhold the child from spending time with the father if he is “too distressed” on any particular day. She also proposed a regime of communication.

3. For his part, the father primarily pressed for orders affording the mother sole parental responsibility, but which would require her to return with the child from New Zealand to Australia. Whilst he proposed that the child would live with the mother, he sought orders that the child spend four nights a fortnight with him.

4. The Independent Children's Lawyer in large part supported the position of the mother, in that she advocated for sole parental responsibility in the mother’s favour, and for the child to live with the mother in New Zealand, but spend time with the father during school holidays in that country. However, mindful of the extraordinary arrogance which the mother has shown in these proceedings, she contended that those arrangements must be dependent upon the mother executing an undertaking that she would comply strictly with the orders. In the event she was not prepared to execute such an undertaking, then, with palpable reluctance, the Independent Children's Lawyer supported orders requiring the child’s return to Australia. I shall discuss the highly unusual facts which led to those submissions in due course.

5. On 5 August 2020 I reserved my decision in relation to this matter. This is that decision and the reasons for it.

Background

The mother

1. The mother was born in Australia on … 1988, and hence is presently 32 years of age. Although born in Australia, she has Maori ancestry via her mother. Her parents separated when she was very young, and thereafter she remained living with her mother, moving to New Zealand when aged seven. Unfortunately, her mother was a long term methamphetamine addict, which, when the mother was 14 years of age, led to her moving into the care of a close family friend.

2. When she was 19 years of age, the mother returned to Australia and resided with her father in the B Region, although she later moved to live in City A. It was at that stage of her life, when she was aged 24, that she met the father in in 2013, and commenced a relationship with him.

The father

1. The father was born in North Queensland on … 1982, and hence is presently 38 years of age. It seems likely that, even when he was a child, his parents and other family members were regular users of drugs. Certainly he commenced using marijuana from an early age, and in due course moved to stronger drugs. After completing year 12 at a school in the B Region, ultimately he operated a r farm there. It was at that stage of his life, in March 2013 when aged 30, that he met the mother.

The relationship

1. The parties’ relationship commenced in March 2013, and concluded on 5 May 2017. It appears as though they never formally cohabited, although they would regularly spend overnights in each other’s homes.

2. The child was born relatively early into their relationship, on … 2014.

3. It is conceded by both parties that their relationship had family violence and excessive drug use as prominent features. Further, notwithstanding the subsistence of the relationship (seemingly on an on-again / off-again basis) the parties litigated in 2014, which culminated in final parenting orders being made by consent on 17 December 2014 for equal shared parental responsibility, and for the child to live with the mother and spend time with the father.

4. By then the father had been charged with several breaches of a DVO protecting the mother made in 2014, and was placed on parole. However he regularly breached that parole by continuing to ingest drugs, and in May 2016 he was imprisoned for 20 days for breach of parole.

5. The father thereafter commenced further proceedings in relation to the child, which concluded on 7 February 2017 in the further consent final parenting orders referred to above, which provided for the mother to have sole parental responsibility and for the father to spend supervised time with the child at the mother’s sole discretion.

Post-separation

1. In June 2017 the mother moved from the B Region to City C, although she did not advise the father of that fact, or her new contact details.

2. In August 2017 the father sold his farming business and instructed a solicitor to write to the mother seeking mediation in relation to contact with the child. The mother insisted upon the father first producing a clean drug test result, and further insisted any time between the father and the child be at a Contact Centre.

3. The father asserts that in September 2017 he ceased using drugs. At around this time, he also moved from the B Region to the City D region.

4. In January 2018 the father travelled to City C to spend time with the child, in response to the mother’s request for his assistance. In evidence before me, the mother said she asked the father to assist her, as her parenting capacity had diminished, because she was grieving the death of a dog. The father stayed with the mother in her and the child’s home.

5. On 8 January 2018, with the mother’s consent, the father took the child with him to his home in City D. The child stayed with him until 14 April 2018, when he returned to the mother. By then, the father had moved to live in H Town, and whilst there, organised for the child to be assessed for learning and behavioural issues. That resulted, in May 2018, in the child being diagnosed with level 3 autism, and he was found to require substantial support. However by the time of that diagnosis, the father had returned the child to the mother, who subsequently refused any contact between the father and the child.

6. On 4 June 2018 the father commenced the present iteration of these proceedings. Initially the mother failed to engage in them, and in her absence on 27 July 2018, interim orders were made by a Federal Circuit Court judge, providing for the child to spend time with the father on a four day/three night block in accordance with his work roster. The matter was next listed for further mention on 19 September 2018.

7. However before then, on 16 August 2018, the mother took the child to live permanently in New Zealand, without the father’s knowledge or consent, or court sanction.

8. In September 2018 the father moved to live in E Town, a small community in the broader City D region.

9. On 24 September 2018, again in the mother’s absence, a Federal Circuit Court judge ordered her to return the child to City A by no later than 28 September 2018. The mother has wholly refused to comply with that order, and all attempts to enforce it have borne no fruit.

10. Eventually, on 26 June 2019, the mother filed her response material. In that, she sought orders permitting the child to live in New Zealand with her, and for her to have sole parental responsibility.

11. On 5 July 2019 the matter was transferred to the Family Court of Australia.

12. In due course, a Family Report was prepared, however because the mother failed to attend the Family Report interviews, it was necessarily prepared without any direct input from, or observation of, her or the child.

13. On 11 March 2020, I listed the matter for trial to commence on 4 and 5 August of that year. Only two days later, by arrangement with the mother, the father travelled to New Zealand to spend time with the child. During that visit, he spent approximately four days, including one overnight, with the child, albeit always in the mother’s presence, including during the overnight visit, when the parties and child all slept in the same motel room.

14. By then the COVID-19 pandemic had gathered pace. Although I had initially insisted upon personal attendance at the trial by the mother, the pandemic meant that the trial was ultimately ordered to be conducted by Microsoft Teams, and hence the physical attendance of the mother in Australia was not required.

15. Likewise, the COVID-19 pandemic meant that the court’s Child Dispute Services had to implement protocols for preparing Family Reports remotely. In light of that protocol, I made orders for the updating of the Family Report, with interviews of the mother and the child to be undertaken using Microsoft Teams. That occurred. On 14 July 2020 an updated Family Report was completed by the writer, Mr F.

Current situation

1. As at the time of trial, the father remains living in E Town, where he works on a week on/week off roster. He remains single, and lives alone in a rented three bedroom house. As at the time of trial, he reported being largely abstinent from drugs, although he identified that since 2017 he has had two relapses, involving both the use of methamphetamine and marijuana. Further, at the time of trial, he was undertaking an anger management course.

2. For her part, the mother remains living in rented accommodation in New Zealand, in a location in the broader City G district. She has not re-partnered either. She is in receipt of New Zealand Government benefits, although she has commenced a vocational course in January 2020 at a polytechnic.

3. The child is presently six years of age and attends primary school. That said, he has markedly delayed development in many spheres, and is non-verbal. Apparently he cannot independently feed or toilet himself.

The issues

1. Unlike most parenting trials which I conduct, a formal Trial Management Hearing was not conducted in this matter, but rather it was peremptorily listed for trial during an occasion when the mother participated in the litigation, in view of her continued and plainly articulated determination not to comply with orders of the Federal Circuit Court. Therefore the usual process of distilling a list of issues in the trial, with the parties’ input, did not occur in this case. Nonetheless I identify the following as the issues relevant to this case:

   1.What is the nature of the relationship between the child and each of the parties;

   2.Would the child benefit from a meaningful relationship with both of the parties, and if so how might it best be effected;

   3.What, if any, risks do each parties pose to the child, and what means, if any, are available to mitigate those risks;

   4.What is the likely impact upon the child of each of the parties’ proposals.

2. Once I have outlined the relevant statutory provisions and legal principles, but in advance of a traverse of any other relevant s 60CC factors, I will address those issues, and proceed to consider the appropriate parenting orders in this case.

Relevant Statutory Provisions And Legal Principles

The statutory regime

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the relevant statutory provisions dealing with children. Section 60B of the Act specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of 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.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a 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).

2. Section 61DA(1) of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks (2015) FLC 93-637 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

1. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

2. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

3. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

Forced return

1. Recently the Full Court had regard to unilateral relocation and summarized in Franklyn & Franklyn [2019] FamCAFC 256 the “principle proscribing the power to make orders which are, in effect, mandatory injunctions, forcing parents to live in places against their will” as follows:-

   27.There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.

   28.While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).

2. In Sampson & Hartnett (No 10) (2007) FLC 93-350, the Full Court said as follows:

   58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:

   (i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

   (ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent.  If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous.  If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.

   59. The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement.  What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent?  Will the primary parent be punished?  The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times.  Enforcement is discretionary and may be rare in the situation exemplified.  On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.

   …

   74. As preface to this discussion, we make the following observations.  A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving.   In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually  be  arrangements  in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court.  If there are not, that fact would normally be a relevant consideration.

   75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court.  It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.

   …

   83. The orders that her Honour made were in effect at the extreme end of the discretionary range.  Strong and well-defined support for them was necessary.  While Moore J made reference to some factors such as the impact on the wife’s parenting, she did not for example explore all avenues of lesser impact on the mother’s freedom of choice.  For example, though she thought the father could not move permanently to Geelong, whether contact in Geelong or Sydney would advance the relationship to such that if the mother chose not to live in Sydney the children could move to the father’s primary residential care.

Issue 1 – nature of child’s relationship with each of the parties

1. The unchallenged evidence of the Family Report writer is that the child’s primary attachment is with the mother, from whom he derives comfort, nurture and support. Importantly, the writer thought that the child listened to the mother, and took some degree of direction from her. That said, of course his observation of the mother and child was only undertaken using Microsoft Teams, and only for a relatively brief period of time.

2. On the other hand, the writer noted that the father had spent no significant time with the child. In those circumstances it seems unlikely, at least to me, that the child has a primary attachment with the father, although I note that he did spend nearly four months of time with him in 2018. Rather I am satisfied that the child recognises the father, although in 2020, when spending time with him in New Zealand, took a little while to warm up and fully engage with him.

Issue 2 – benefit of meaningful relationship

1. It was not in contest that the child would benefit from a meaningful relationship with the mother, and that she is presently providing good care for him in all respects. Plainly he is entirely dependent upon her for his day-to-day needs. I am satisfied that the benefits of that relationship will best flow to the child by him spending as much face-to-face time with the mother as is possible in the circumstances.

2. On the other hand, the Family Report writer, thought that the principal benefit which the father brought to the child’s life was his involvement in the formation of the child’s personality, and that the father was practically and symbolically relevant in that respect. He emphasised that although the child very much has a “here and now” focus, he thought that the father’s engagement with the child could for substantial periods nonetheless be adequately undertaken by electronic means.

3. When questioned by me as to the benefits of physical interaction between the father and the child, he did not appear to suggest that tactility was a particularly important consideration here. Indeed other material notes that the child, when suffering meltdowns, prefers to avoid physical touch, and reacts strongly and adversely to it.

4. As to how the child might best benefit from a meaningful relationship with the father, Mr F thought that a combination of face-to-face time, as well as electronic communication, would suffice.

Issue 3 – risk of harm to child posed by parties

1. Turning firstly to the father, Mr F identified two sorts of risks which the father posed to the child. The first arose from an asserted lack of insight which the father has into the needs of a level 3 autistic child. As an example, he pointed to an episode during the March 2020 visit between the father and the child, when he had soiled his pants, and the father reacted poorly to that. (That said as Mr F indicated, the mother did not react well to it either). He thought the best means of mitigating such risk would be for the father to undertake a parenting course specifically designed for the parents of autistic children. He also suggested that, for some initial period, the father’s time with the child should be professionally supervised.

2. The second risk which he identified that attached to the father, was the risk of him relapsing to drug use. Ultimately it did not prove particularly controversial that the father has, essentially by removing himself from the B Region to E Town, been able to remain reasonably abstinent of drugs. In part, that might be because his employment requires regular drug testing, which it appears he has never failed. That said the father concedes he has twice relapsed, and in doing so, used both methamphetamine and marijuana, and has as recently as July of this year produced a positive drug test to cannabis.

3. Also relevant to this risk is the fact that the father has never formally sought either inpatient treatment, or any form of counselling, for his drug abuse. Mr F’s unchallenged evidence was that people who undertake either, or both, of those options, tend to have better prospects of avoiding relapse.

4. Ultimately I assess both of the risks identified by Mr F as real, but not of themselves, or in combination, creative of an unacceptable risk of harm to the child. I am particularly mindful that, seemingly without incident, the father was able to care for the child for approaching four months in 2018. It does not seem to me that the lack of insight or the risk of relapse into drug abuse produced an adverse outcome for the child on that occasion. Even accepting that the child is now two years older, and will continue to grow older and larger, I do not assess the magnitude of the risk of harm which the father poses to the child as either precluding him from having a meaningful involvement in his life, or requiring his time with the child to be supervised. I am conscious that this latter conclusion does not follow the recommendation of Mr F, however in the circumstances I regard supervision as too cautious. On the other hand I am satisfied that the father should be required to undertake a parenting course designed for parents of autistic children, and further should be required to continue with his anger management course to completion.

5. Turning then to the mother, there were three risks associated with her identified by Mr F. The first was that she may deprive the child of any relationship whatsoever with the father. The second was that she is likely to be non-compliant with any imposition upon her by authority which does not accord with her views. The third is the risk which she poses to the child from her admitted, and ongoing, long term use of marijuana.

6. As to the first risk, there is plenty of evidence which would support a conclusion that the mother does not see any benefit whatsoever in the child having a relationship with the father. Her unilateral moves, without forewarning to the father, initially to City C, and then to New Zealand, speak volumes in that regard. Indeed the mother’s own words, written as recently as 3 December 2019 in an email to the Independent Children's Lawyer and the father, came back to haunt her. In that email she said:

   No I don’t intend on [the child] having a relationship with his father. Did you forget you agreed to mother having full custody and making all decisions NOTWITHSTANDING FATHER’S OPINIONS. Sorry not sorry. Good for you, you got off drugs and got a job but too little too late mate. Until your (sic) able to talk and show some respect towards me, I will not respect you or acknowledge you as his parent because final orders said I don’t have to and until final orders are made I will continue to make decisions NOTWITHSTANDING FATHER’S OPINIONS. This is your problem not mine. I asked for permission to go to NZ, that’s how I got his passport, remember? I think you both have forgot that too.

   Merry Christmas.

   (Emphasis in original)

7. Whilst during her cross-examination, the mother occasionally protested that she did intend the child to have a relationship with the father, ultimately it was clear that she would act in accordance whatever she thought was in the child’s best interests, and I have little doubt that, if at any time she considers that the child should not have a relationship with his father, she will without hesitation terminate it.

8. I assess this risk as real and substantial.

9. The means of adequately mitigating that risk in this case are fraught. In effect, the father says that it is best mitigated by requiring the mother and child to return to Australia, which he thinks will maximise his chance of having a relationship with the child. On the other hand, the Independent Children's Lawyer says that risk is best mitigated by requiring the mother to formally undertake to the Court to comply with any orders which see the father having an opportunity to build and maintain a relationship with the child. I will consider those two means of mitigation in due course. However plainly the risk which the mother poses to the child in this respect does need mitigation.

10. Somewhat related to the first risk, is the mother’s defiance of authority. Not only has she flagrantly disobeyed orders of the Federal Circuit Court, but she made it clear in her cross-examination that she would continue to do so if she did not agree with any further orders I make. In this respect, the mother’s arrogance and defiance were breathtaking. However I have little doubt that she was being honest, rather than merely showing off, when giving that evidence, in part because I was left with the firm impression that she believes she has outsmarted the Australian family law system, and will continue to be able to outsmart it, should she so wish.

11. The third risk posed by the mother was her continued drug use. However in this regard it is critical to note that the Independent Children's Lawyer diligently issued subpoenas to many New Zealand organisations, and there was apparently no suggestion in any of the material thereby obtained that the mother’s continued and admitted marijuana use has ever been brought to the attention of authorities, in the context of her posing any risk to care of the child.

12. The mother’s evidence was that she only used marijuana about once a month, when a friend would come over. However, I confess to some serious doubt about the mother’s honesty in that respect, notwithstanding her frank and candid admission of continued drug use. I suspect her usage of marijuana is likely to be higher and more frequent than that, as she likely continues to move in circles where marijuana use is common. It might also be the case that those circles involve the use of other drugs. However beyond suspicion, the evidence would not possibly permit me to conclude that the mother uses drugs more regularly than she admits, or that she uses drugs other than marijuana.

13. Ultimately I assess the risk which the mother poses to the child in relation to her continued drug use as of no significant moment.

Issue 4 – effect on the child of the parties’ proposals

1. The mother’s primary proposal was to revert to the 2017 final consent orders. Mr F was not in favour of those orders, because they ran the risk of the mother being able to wholly exclude the child from the father’s life, since any time and communication with the father is wholly dependent upon the favourable exercise of her discretion to allow either to occur.

2. As to the mother’s alternative proposal, Mr F’s evidence was that he thought it would be good for the child, although as I have earlier mentioned, he thought that the father’s time, for at least a period, should be supervised. As has been seen, I am not satisfied that supervision of the father’s time is necessary to mitigate the risks which he poses to the child.

3. As to the father’s proposal, leaving aside the impact on the mother and child of relocation, Mr F thought that it was counter-intuitive to contemplate the child spending a block of four nights per fortnight with the father, as it would simply not work for this child. He emphasised that the child particularly needs continuity of routine, and stability. He thought that the father’s figure of four nights out of fourteen was more about his needs, than being reflective of the child’s needs.

4. Turning then to the question of forced return, Mr F identified an important issue that did not appear to have previously occurred to the parties, and that is that if the child were required to relocate to Australia, it would potentially take a significant period of time for the same level of supports which he presently has available to him in New Zealand, to be replicated here. Whilst initially venturing two years as the length of time that might be required, Mr F rapidly back-peddled, and said that was not a matter that he was particularly cognisant of, but nonetheless he identified that there was certainly likely to be a lag time between the child arriving in Australia, and the relevant supports being made available to him. Indeed by reference to that concern, he thought that if return were to be ordered, the best place might be in Brisbane, primarily because it, unlike North Queensland, has schools specifically for autistic children. In any event he thought that the economic cost of that relocation, particularly procuring housing, would be significant for the mother. Inevitably that would flow through to her quality of care for the child.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have addressed both primary considerations, and many of the additional considerations, in traversing the issues. Nonetheless by reference to those additional considerations which have not thus far been addressed, I comment as follows.

2. The child is too young to express any views, and in any event, the child’s autism diagnosis would make their expression impossible.

3. The father has been consistent in his attempts to seek to take up the opportunities to spend time with the child. To the extent the evidence enables such a conclusion to be drawn, he does not appear to have ever failed to take up an opportunity to be involved in the child’s life.

1. There is nothing to suggest that the father’s child support obligations have not been maintained.

2. Particularly given the COVID-19 pandemic, there is likely to be practical difficulty. There will also be difficulties in relation to expense of the child spending time with the father, so long as he resides in New Zealand.

3. Whilst the child is not an Aboriginal or Torres Strait Islander, he does enjoy Maori heritage, and it is likely that he will only experience that via his mother.

4. There has been family violence as discussed earlier in these reasons, and family violence orders have not merely applied, but have been considerable breaches by the father from time to time. I can draw little by way of relevant inference from those bald facts, save that it appears as though both parties may have a propensity to violence, particularly when under the influence of illicit drugs.

5. Plainly it would be preferable to make an order that would be least likely to lead to further proceedings in this matter, given the extensive litigious history to date. However that consideration cannot subvert the child’s best interests, insofar as they are informed by other considerations.

6. The mother, subject to relevant domestic law, has the right to live wherever she may choose.   

THE RICE & ASPLUND ISSUE

1. Ultimately this did not appear to be really pressed by the mother, but to cover the eventuality that it was not wholly abandoned, I should say that plainly the unilateral move of the child to New Zealand is a significant change from that contemplated by the parties in 2017, sufficient to justify re-litigation in relation to the child’s parenting arrangements. I am therefore satisfied that the father should be permitted to re-litigate in relation to the child’s circumstances. In any event, given that the trial has now been concluded, the evils which the rule in Rice & Asplund seeks to outflank have already come to pass. It is not in the best interests of this child that this matter now be dismissed without a fresh consideration of what parenting orders are in his best interests.

PARENTAL RESPONSIBILITY

1. The father concedes that during the relationship there were occasions when he was violent towards the mother, although he asserts that at times she was violent towards him as well. That said, he seeks to explain his own violence by reference to him being under the influence of drugs, particularly methamphetamine, at the time. Whatever be the case, plainly there are reasonable grounds to believe that there has been family violence, and therefore the presumption does not apply.

2. As to whether or not equal shared parental responsibility would be in the child’s best interests, I am firmly of the view that it is not. Indeed, although having long pressed for equal shared parental responsibility, in his ultimate proposed orders, even the father conceded that the mother should have sole parental responsibility. That was sensible, in that the parties have, with the exception of a few occasions, not been able to achieve any civil post-separation communication, and indeed it seems, frequently that was the case during the course of the relationship as well.

3. The mother says that the father operates from a position of entitlement, and seeks to control her. That may be so, however my impression of the mother is that she, too, operates from a position of entitlement, and seeks to control situations and people. A combination of those two personalities being required to make joint decisions in relation to the child is simply too horrible to contemplate. This is a child who needs decisions made, and on occasions they will need to be made quickly; it would be to invite a lifetime of unworkable mayhem for this child, were the parties to be required to share parental responsibility.

4. I am well satisfied that the only viable outcome here is that the party with whom the child is primary resident, should be given sole parental responsibility. That said, there should be an obligation on the party with sole parental responsibility to consult with the other, and genuinely consider their views.

WITH WHOM SHOULD THE CHILD LIVE

1. The child has, with the exception of about three and a half months in 2018, always lived with the mother. His primary attachment almost certainly lies with her. She is taking good care of him at the moment, and appears to generally be a good mother at a day-to-day care level. Further there is no suggestion that she has not organised appropriate supports for the child in New Zealand.

2. On the other hand, with the exception of the three and a half months discussed above, the father is an untested primary carer of the child, or indeed any child. Cognisant of the high needs of the child, the father recognised that, if he were to become the primary carer of the child, then he would need to resign from his present employment, and move to (probably) City D. At present the father earns nearly $110,000 a year; if he were to move to City D, his evidence was that he would initially seek government benefits, but then part time employment. He has some qualifications which he says would make him employable there, and I note he has a history of work in the maritime industry.

3. The father likely has the best interests of his child at heart, as demonstrated by firstly arranging for the child’s assessment in 2018 which led to his diagnosis of autism, and secondly, his taking care of the child for the several months in 2018. However the fact remains that the father is, by and large, an untested primary carer for the child, and to require him to now become such would be something in the nature of an experiment.

4. That said, the significant risk which attaches to the mother is that she may yet again seek to exclude the father from the child’s life. It is a risk which, if not appropriately mitigated, in my view is sufficiently great to justify the change of primary care to the father, if that is what is required. However that change of primary care is not the father’s first choice, but rather he wishes the mother and child to return to Australia. It is only if she does not herself return that the father seeks to become the primary carer of the child.

5. In her evidence, the mother refused to countenance the prospect that the child would be required to relocate to Australia, and so refused to answer questions as to whether she would also return, although on occasions, she appeared to say that she necessarily would have to.

6. Upon balance, providing that the risk which the mother poses to the child of denying him a relationship of any substance with his father, can be mitigated, then I am satisfied that the child’s best interests lie in remaining in her primary care. It is only if the risk which the mother poses cannot be adequately mitigated that the child’s primary care should pass to the father.

FORCED RETURN

1. This was the great focus of the case. With the assistance of the parties, I identified the following as points being in favour of ordering the return of the child to Australia.

   (a)It may prove to be the only way the child will enjoy a meaningful relationship with the father, from which he would derive benefit;

   (b)The mother will otherwise gain from her contemptuous actions in unilaterally moving without notice to New Zealand, contrary to, or at least thwarting, court orders;

   (c)An order for return might, to some extent, mitigate the risks that the mother poses to the child of denying him a relationship with his father, and her continued and admitted drug use;

   (d)The child spending time with the father may give the mother some respite from his care, and may provide an alternative primary carer if the mother’s parenting capacity were to diminish, subject to the father’s skillset enabling him to do so, and accepting that the mother may already  have such supports in New Zealand;

   (e)COVID-19 may forbid the father from visiting as articulated to New Zealand or risk quarantining and hence any orders to spend time with the child practically unenforceable.

2. On the other hand, again with the assistance of the parties and Mr F, I identified the following as points favouring against ordering return:

   (a)The child is likely settled in New Zealand, and has established supports there;

   (b)If the mother does facilitate the child’s relationship with his father, then, albeit perhaps not meaningful, the child would nonetheless have a relationship of some substance with the father;

   (c)The child remaining in New Zealand may to some extent, mitigate the risks which the father poses to the child by virtue of his lack of insight into the child’s special needs, and his potential relapse to drug use;

   (d)An order for return of the child would likely occasion hardship to the mother, (albeit self-inflicted) both financial and emotional;

   (e)Not ordering the child’s return accords with the mother’s wishes, and subject to domestic law and court orders, she has the right to choose where she wants to reside;

   (f)Return would require the child to change home, location, schools, supports, climate and friendship groups;

   (g)There is some risk that the mother may not also return to Australia (especially given the possibility of criminal charge/s against her) which would mean the child would no longer live with his likely primary attachment figure, or spend much time with her;

   (h)There may be significant delay in the child attaining the same level of supports in Australia as he currently has in New Zealand;

   (i)If return was to a place other than where the father is residing (ie Brisbane), the father may not take up the opportunity to spend time with the child, and the return would be futile.   

3. Providing that the mother does not seek to again terminate the child’s relationship with the father, then in my view the significant matter which tips the balance against an order for return of the child, is the interruption in the provision of the services which the child presently has available to him in New Zealand to help his with his autism. If the lag time were the two years initially postulated by Mr F, then that would simply be intolerable. The only circumstances in which that could be contemplated as being in the best interests of the child, would be if the cost of his continued access to his present New Zealand services was to deprive him of a relationship with his father.

4. Therefore, subject to the significant caveat which I have flagged in relation to the prospect that mother will again seek to terminate the child’s relationship with the father, then I am satisfied that an order requiring return of the child to Australia is presently not in his best interests, which would be best served by him continuing to live in New Zealand.

TIME AND COMMUNICATION WITH FATHER

1. The father’s proposal in the event that the child was not ordered to be returned to Australia was as follows:

   17. That the father spend time and communicate with the child at all times as can be agreed, but failing agreement as follows:

   (a)For up to three block visits in New Zealand per year, with such time to occur during the school holiday period;

   (b)That such visits will be for a minimum of 5 nights, with the father to provide no less than 14 days’ notice if he is able to spend additional time with the child, in which case he will be permitted to spend to 5 night blocks with the child with 5 nights in between;

   (c)In the event the mother travels to Australia, she will provide the father with no less than 28 days’ notice and the father will be given the opportunity to spend time with the child during this time;

   (d)By Skype between 5:00pm and 6:00pm (New Zealand time):

   (i)each Sunday, Tuesday and Thursday; and

   (ii)on the child’s birthday, the father’s birthday, Father’s Day, Easter Sunday and Christmas Day;

   (iii)with the mother to ensure that the call takes place in an environment free of distraction and encourage and support the child to communicate with the father.

2. On the other hand the mother’s proposal was as follows:

   4. The child is to spend time with the father, in New Zealand at all times as agreed to by the mother in writing and failing agreement as follows:

   a.        CONDITIONAL UPON:

   i.the father giving the mother at least 21 days written notice of his intention to come to New Zealand to spend time with the child during the New Zealand gazetted school holidays; and

   ii.any time the father spends with the child is to be in the presence of the mother or any agent nominated by the mother should the mother consider such supervision is required;

   iii.once it is safe to travel from Australia to New Zealand NOTING such ability to travel may not be until 2021;

   1.For the first year between five and seven consecutive days per visit;

   2.On the condition that the child has been spending regular time with the father in accordance with the above order and such time has occurred so that the child has spend at least four periods with the father, and the mother is of the opinion the child is able to cope with the time with the father, then the child will spend between 5-7 consecutive days from 9am until 5pm with up to three non-consecutive nights to be considered to occur during this period;

   5. In the event the mother deems the child is too distressed to attend the time with the father, such time for the day will not occur.

   6. The child is permitted to speak with the father, by such electronic means up to three times per week but at a minimum once per week with the father to call the mother’s nominated account using Skype and between the hours of 5pm to 6pm New Zealand standard time or if daylight savings time between 5pm-6pm New Zealand daylight savings time.

3. Finally the Independent Children's Lawyer’s proposal was:

   4. That the child spend block time with the father in New Zealand as follows:

   (a)Year 1, during each New Zealand school holiday period, namely, April (Autumn) July (Winter) October (Spring) and December (Summer) for 5 consecutive days (between 9.00am -5.00pm);

   (b)Prior to the father commencing overnight time with the child, the father is to undertake a course or training to educate himself and skill himself in the needs of Autistic children, and undertake an anger management course, And drug counselling;

   (c)Subject to the Father completing the courses referred to above, then the father shall spend time with the child as follows:  Year 2, during each NZ school holiday period, namely, April, (Autumn) July, (Winter) October, (Spring) and December, (Summer) for 5 consecutive days, to include 3 overnights;

   (d)Year 3 and thereafter, during each NZ school holiday period, in April, (Autumn) July, (Winter) October (Spring) and December (Summer) for 5 consecutive days and nights.

   5. The mother and father are to ensure that such calls occur on the child’s birthday, the father’s birthday, Father’s Day, Easter Sunday and Christmas Day.

4. The mother’s proposal can be dismissed out of hand. Supervision is not required, and to leave her the opportunity to impose it, or to refuse to present a “too distressed” child is to invite her high handed use of any such power.

5. I have already identified Mr F’s evidence that he did not favour the length of time that the father contemplates as being in the child’s best interests. I accept that evidence.

6. On the other hand I am satisfied that the proposal of the Independent Children's Lawyer is more in keeping with the child’s best interests, and subject to what follows, will order it.

Other orders

1. Otherwise I am satisfied that the orders proposed by the Independent Children's Lawyer, with the exception I will discuss shortly, are in the child’s best interests. Subject to what follows, I propose to make them.

The critical issue – how to mitigate the mother’s risk of harm to the child

1. I have already adverted to the serious risk which the mother poses to the child by virtue of the prospect that she will again seek to exclude the father from his life. In my view, the risk is sufficient that, if it proves incapable of adequate mitigation, it would likely justify an order for his return to Australia. The critical issue in this case then, is whether that risk can be sufficiently mitigated.

2. The Independent Children's Lawyer proposed, as a means of mitigation, that the mother be required to provide an undertaking “that she will comply with these orders and in particular to facilitate a meaningful relationship between the father and the child” as a condition of the child continuing to live in New Zealand. The mother appeared to acquiesce to that proposal, which, if so, probably avoids the need for any consideration of whether, in parenting proceedings, I have the power to require a party to proffer such an undertaking.

3. However as I indicated to the parties during the course of the hearing, the proposed wording of that undertaking is vague in the extreme. Moreover, given that the mother is impecunious, and has the primary care of a high needs child, if she were to breach the undertaking, there are not many practical options for punishment. A fine would impose real hardship upon the child; community service (assuming that is available for an Australian court to impose in New Zealand, which seems problematic) would likely impact upon her care of the child. To send her to jail (again, assuming it possible) would probably see the child placed into some species of foster care, albeit perhaps with a relative. Placing her on some species of bond would likely only defer the choice between those consequences.

4. During the course of the trial I raised with the parties the prospect that in the final orders I would include an order affording the Independent Children's Lawyer liberty to apply within 12 months, to enable her to seek to revisit the orders if it transpires that the mother is again incapable of facilitating a relationship between the child and the father. The benefit of it being the Independent Children's Lawyer vested with that power, is that there is a degree of objectivity likely to be brought to bear in making a decision whether to seek to have the matter revisited, which the father may not have in making that decision himself. I do not overlook that the Independent Children's Lawyer would require Legal Aid funding in order to bring such an application pursuant to the liberty to apply, but in that event, that problem itself could be the subject of liberty to apply.

5. I am therefore satisfied that the best means available to adequately mitigate the risk which the mother poses to the child, in a way that outweighs the risk to the child of moving to Australia and losing his present level of supports for some period of time, are those discussed above. I therefore propose that there be orders to that effect.

6. To accommodate that, before pronouncing any orders, I will direct that the mother execute such undertaking that she may be prepared to enter into, to comply with the proposed orders set out in the attachment to these reasons which, if she proffers the undertaking in satisfactory terms, I will then make.

7. If the mother does not offer an undertaking, either at all, or in satisfactory terms, then I shall invite further submissions as to the appropriate orders in this case.

CONCLUSION

1. For these reasons there will presently be no orders pronounced, and the matter will otherwise remain reserved.            

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 September 2020.

Associate:

Date: 18 September 2020

ANNEXURE “A”

PROPOSED Orders

Prior orders

1. All previous parenting orders are forthwith discharged.

Parental responsibility

1. The mother have sole parental responsibility for the Z born … 2014 (“the child”).

2. In the exercise of parental responsibility, before making a decision the mother shall first communicate to the father the details of the decision to be made whereupon the father shall have 7 days within which to provide his written input. Thereafter, the mother shall give genuine consideration to the father’s input and make the decision and inform the father in writing within 24 hours of making the final decision.

With whom should the child live

1. The child shall live with the mother in New Zealand.

Father’s time with the child

1. That the child spend time with the father in New Zealand between 2020 and February 2022 during each New Zealand school holiday period, namely, April (Autumn) July (Winter) October (Spring) and December (Summer) for 5 consecutive days (between 9.00am -5.00pm).

2. Prior to the father commencing overnight time with the child, the father is to undertake a course or training to educate himself and skill himself in the needs of Autistic children, and undertake an anger management course.

3. Subject to the Father completing the courses referred to in order (6) hereof, then the father shall spend time with the child as follows: 

   (a)Between February 2022 and February 2023, during each NZ school holiday period, namely, April, (Autumn) July, (Winter) October, (Spring) and December, (Summer) for 5 consecutive days, to include 3 overnights;

   (b)Thereafter, during each NZ school holiday period, in April, (Autumn) July, (Winter) October (Spring) and December (Summer) for 5 consecutive days and nights.

4. The father is to advise the mother of his intended times with the child at least one calendar month prior to the commencement of the relevant school holidays.

Communication and Reports

1. The child is to communicate with the father by electronic means at least once, and no more than three times per week, with the father to call the mother’s nominated account using Skype or telephone, with calls to occur between the hours of 5pm to 6 pm New Zealand time, whether standard New Zealand time or daylight saving time.

2. The mother and father are to ensure that such calls occur on the child’s birthday, the father’s birthday, Father’s Day, Easter Sunday, and Christmas Day,

3. The parties will use a communications app to communicate.

4. The mother shall provide to the father within 3 days of receipt of the child’s school and progress reports.

5. The mother shall provide to the father as they are received, and in any event, at least twice per year, reports relating to the child’s medical and health issues, including any progress reports when received from any doctor or other health professional.

Restraints, injunctions and obligations

1. Unless otherwise provided for in these Orders, or as agreed to in writing between the mother and father, the father is restrained from removing the child from the mother’s care, and/or New Zealand, during the time the child is spending with the father.

2. The parents shall register these Orders in New Zealand pursuant to s.81 of the Care of Children Act 2004 ( New Zealand) and the parties shall do all acts necessary to ensure the Registrar of the Family Court of Australia is able to send to the Secretary for Justice ( New Zealand) the documents necessary to register this Order in New Zealand.

3. The parents are restrained from and an injunction issue restraining the parents from denigrating the other parent, the other parent’s partner and/or the other parent’s family members while in the presence or hearing of the child and shall remove the child from the presence and hearing of any third party who is doing so.

4. The parents are restrained from and an injunction issue restraining the parents from using or being under the influence of any illicit substance whilst the child is in their care and the parents must remove the child from the presence of any third person who is using or under the influence of any illicit substance.

5. The parents are restrained from and an injunction issue restraining the parents from being under the influence of alcohol above the legal driving limit whilst the child is in their care.

6. During the time the child is with either parent that parent shall:

   (a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)Speak of the parent respectfully, not denigrate or insult the other parent or other family members in the presence or hearing of the child;

   (c)Use their best endeavours to prevent any other person denigrating or insulting the other parent or other family members in the presence or hearing of the child.

7. Both parties shall be restrained by injunction from discussing these proceedings or the contents of any affidavits or reports filed or intended for use in these proceedings with the child other than with the leave of the Court.

Liberty to apply

1. The Independent Children’s Lawyer has liberty to apply in relation to these orders for a period of 12 months from their pronouncement.

Independent Children's Lawyer discharge

1. Unless the Independent Children's Lawyer exercises her liberty to apply under order 20 hereof, then she is discharged with the thanks of the court upon the expiration of 12 months from the date of these orders.

Conclusion of proceedings

1. Otherwise, all extant application are dismissed, and the matter is removed from the list of active pending cases.