THOMAS & HOGAN

[2013] FCCA 1108

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMAS & HOGAN [2013] FCCA 1108

Catchwords:
FAMILY LAW – Application for making of consent parenting orders – where mother failed to appear at final hearing – where parties now agree to orders made a final hearing being set aside – where other orders proposed – where no evidence that orders are in the best interests of child – where mother in contravention of final orders – whether court should further consider application.

Legislation:  

Family Law Act 1975, ss.60CA, 60CC
Federal Circuit Court Rues 2001, r.16.05(2)(a)

Fahmi [1995] FLC 92-637
Garning & the Department of Communities, Child Safety and Disability Services [2012] FamCA 354
Hogan & Thomas [2012] FMCAfam 960
Malpass & Mayson [2000] FamCA 1253
Thomas & Hogan [2012] FMCAfam 1004

Applicant: MS THOMAS

Respondent: MR HOGAN

File Number: CRC 250 of 2010

Judgment of: Judge Jarrett

Date of Last Submission: 24 May 2013

Delivered at: Brisbane

Delivered on: 1 August 2013

REPRESENTATION

There being no appearance by the Applicant

Solicitor for the Respondent: Mr Caldwell

Solicitors for the Respondent: MBT Lawyers

Solicitor for the Independent Children’s Lawyer: Ms Steiner

Solicitors for the Independent Children’s Lawyer: Burridge Harris & Flynn

ORDERS

1. The parties’ application for the Court to make orders by consent is refused.

IT IS NOTED that publication of this judgment under the pseudonym Thomas & Hogan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

CRC 250 of 2010

MS THOMAS

Applicant

And

MR HOGAN

Respondent

REASONS FOR JUDGMENT

Ex Tempore

(revised from the transcript)

1. On 22 May, 2012 an application for parenting orders by Mr Hogan came before me for final hearing.  Ms Thomas, the respondent to the proceedings, did not appear at the trial.  The application concerned the parenting arrangements for one child, [X], born [in] 2002. An Independent Children’s Lawyer appeared at the trial.

2. After hearing evidence and submissions for Mr Hogan and the Independent Children’s Lawyer, on 23 May, 2012 I made final parenting orders, the gravamen of which was that:

   a)[X] should live with his father;

   b)his father should have sole parental responsibility for [X];

   c)[X] should  spend supervised time with Ms Thomas; and

   d)a recovery order should issue, requiring that [X] be recovered from his mother’s care and placed in his father’s care.

3. My reasons for judgment were published: Hogan & Thomas [2012] FMCAfam 960.

4. It appears to be common ground between the parties and the Independent Children’s Lawyer that Ms Thomas took [X] into hiding either shortly before or shortly after the making of the final parenting orders.  She took that step so that [X] could not live with his father as the Court had ordered.  She took active steps to conceal [X]’s whereabouts.  She continues to do so. 

5. On 4 June, 2012 Mr Hogan filed an application in a case seeking orders that:

   a)[X]’s name be placed on the airport watch list;

   b)a location order be made, directed to various organisations; and

   c)there be a publication order pursuant to s.121 of the Family Law Act 1975.

6. On 6 June, 2012 orders in the terms sought by Mr Hogan were made. 

7. On 27 June, 2012 Ms Thomas filed an application in a case seeking that:

   a)the orders of 23 May, 2012 “be set aside pending appeal”;

   b)[X] remain living in her care, “pending appeal”; and

   c)Mr Hogan be restrained from removing [X] from her care. 

8. On 10 July, 2012 Ms Thomas’ application in a case came before the Court. There was no appearance by or on her behalf and the application was adjourned until 12 July, 2012.  On that day, all parties appeared by telephone link and the application was further adjourned to 26 July for hearing.

9. On 26 July, 2012 all parties appeared by telephone link.  For reasons that I delivered on that day, Ms Thomas’ application in a case was dismissed, and she was ordered to pay Mr Hogan’s costs: Thomas & Hogan [2012] FMCAfam 1004. Not much happened between that date and 17 January, 2013 when Ms Thomas filed another application in a case, this time seeking orders that:

   a)the final parenting orders made on 23 May, 2012 be set aside;

   b)the recovery order of 23 May, 2012 be set aside;

   c)the location order of 6 June, 2012 be set aside; and

   d)Mr Hogan be restrained from entering or attending Ms Thomas’ place of residence.

10. The application was listed to 8 April, 2013.  On 4 April, 2013, joint correspondence was received by the Court seeking an administrative adjournment of the application on the basis that the parties were “negotiating terms of settlement”.  The application was adjourned to 22 April, 2013. 

11. On 18 April, 2013, further joint correspondence was received by the Court seeking another administrative adjournment to allow the parties to execute terms of settlement.  The application was adjourned to 17 May, 2013. 

12. On 17 May, 2013, Ms Thomas’ application came before the Court for hearing.  All parties and the Independent Children’s Lawyer appeared by telephone.  The legal representatives for each of the parties informed the Court that the parties had reached consent about the orders that should be made, but the Independent Children’s Lawyer did not agree to the orders that the parties had themselves agreed upon.  In particular, the Independent Children’s Lawyer expressed concern because she had not spoken with [X] since before the final hearing almost a year earlier and had no information about his welfare. 

13. The matter was adjourned to 24 May, 2013, to allow Ms Thomas time to make [X] available to speak with the Independent Children’s Lawyer.  It was expressed during the course of that hearing, both by the Independent Children’s Lawyer and me that face-to-face contact between [X] and the Independent Children’s Lawyer was preferable, but at the very least, there ought to be some telephone communication.

14. On 24 May, 2013, the matter came again before the Court.  Both parties were again legally represented, and the Independent Children’s Lawyer appeared.  The Independent Children’s Lawyer informed the Court that despite her endeavours, she had not been able to speak with [X]. 

15. I was urged at that hearing to make orders in the terms to which the parties had agreed, but to which, the Independent Children’s Lawyer would not agree. 

16. The terms of the orders the parties asked me to make are these:

    1.That the respondent’s application pursuant to rule 16.05(2) be discontinued.

    2.That all previous parenting orders be discharged.

    3.That the child, [X] born [in] 2002, live with the respondent mother.

    4.That the child spend no time with the applicant father unless the parties from time to time agree otherwise.

    5.For the period from 18 December 2007 to the date of this order, the total amount of child support to be paid by the applicant father be set equal to the moneys paid for that period, including the value of non-agency payments credited for the same period, with the effect that no arrears remain payable and no overpayment is created.

    6.For the period from 18 December 2007 to the date of this order, the total amount of child support to be paid by the respondent mother be set equal to the moneys paid for that period, including the value of non-agency payments credited for that same period, with the effect that no arrears remain payable and no overpayment is created.

    7.That each party pay their own costs of these proceedings.

17. The application that was then before the Court, as order 1 of the consent orders sought by the parties recognises, was an application pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 which permits the Court to set aside orders that have been made in the absence of a party. 

18. It was Ms Thomas’ case that the final parenting orders made in May, 2012 ought to be set aside because she was not present at that hearing.  But as the authorities show, it is not simply enough to apply for an order under rule 16.05(2)(a):  it is necessary to demonstrate that the Court should exercise its discretion and set the orders aside.  A number of factors are generally thought to be relevant to that exercise.  The first is an explanation for the failure to appear, and the second is some material which demonstrates that different orders to those now sought to be set aside might be made if the matter was litigated again. 

19. In support of her application, Ms Thomas filed an affidavit by her solicitor, Mr Potkonjak, and herself.  There was also an earlier affidavit filed by her in these proceedings in support of the earlier interlocutory application filed by her on 27 June 2012.  None of those affidavits address the issues that need to be addressed in any detail. 

20. Her last affidavit, that is, the one filed on 17 January, 2013 has a number of paragraphs that appear under a heading: “Explanation for my failure to appear at the final hearing”.  Paragraphs 4, 5, 6, 7, 8 and 9 set out her evidence about that.  In my view, however, there is nothing in that evidence which provides an explanation for why Ms Thomas failed to appear at the final hearing.  There is, in my view, nothing which would suggest that there was any reason why Ms Thomas was not able to appear. 

21. In any event, the application to set aside those orders was probably bound to fail because Ms Thomas placed no material before the Court that would suggest that orders different to those sought to be set aside would be made.

22. However, the issue that I have to consider at the moment is whether I ought to make the consent orders now presented for the Court’s approval. 

23. The orders that I am asked to make go beyond merely disposing of Ms Thomas’s application under rule 16.05(2)(a).  They go beyond merely setting aside the orders that were made on 23 May, 2012.  They seek to put in their stead different final parenting orders.  They are not simply procedural orders, they are orders of substance. 

24. When the Court comes to make parenting orders under the Family Law Act, it must do so in accordance with Part VII of the Act. That requires the Court to apply the paramountcy principle set out in s.60CA of the Act. How a Court works out what is in a child’s best interests is determined by s.60CC and the matters set out therein. Section 60CC(5) provides that if the Court is considering whether to make an order with the consent of all of the parties to the proceedings, the Court may, but is not required to, have regard to all or any of the matters set out in ss.60CC(2) or (3).

25. Thus, if the orders were not to be made by consent, the Court is required to have consideration or give regard to those matters set out in sections 60CC(2) and (3). But in the case of consent orders, the Court may, not must, have regard to them.

26. Notwithstanding the provisions of s.60CC(5), it must be the case that the making of these orders, consent or otherwise, is nonetheless an exercise of the Court’s jurisdiction to make parenting orders. Only those orders which the Court considers on the evidence before it are in the best interests of the child should be made.

27. There is no evidence before me which would suggest that these orders are in [X]’s best interests.  The mother has filed no evidence which sets out his current arrangements, or the matters that are in place for his welfare.  The very fact that the Court came to the conclusion based upon objective evidence before it in May, 2012 that [X]’s best interests demand that he live with Mr Hogan suggests that there is a requirement upon Ms Thomas – and Mr Hogan to the extent that he joins in the application for the making of the consent orders – to place before the Court some evidence which suggests that the orders are in [X]’s best interests.  But there is none.

28. I cannot be satisfied that the orders I am asked to make are in [X]’s best interests.  The Independent Children’s Lawyer does not support them.  I refuse to make them. 

29. There is another reason to refuse to make the orders.  Ms Thomas is in contravention of the orders made on 23 May, 2012.  She concedes as much, and her noncompliance with those orders is wilful. 

30. In Garning & the Department of Communities, Child Safety and Disability Services [2012] FamCA 354, Forrest J of the Family Court of Australia discussed the earlier decisions of the Full Court of the Family Court of Australia in Fahmi [1995] FLC 92-637 and Malpass & Mayson [2000] FamCA 1253. His Honour concluded that he should not consider the application then before him as a matter of discretion because the applicant was in contravention of earlier orders made by the Court.

31. Whether a Court hears a party who is in contravention of earlier orders is a discretionary matter.  There is no absolute rule that such a person has no right to prosecute an application before the Court or be heard in any proceedings before the Court. 

32. In this present case Ms Thomas’ contravention is longstanding, wilful and there is absolutely no attempt by her to place any evidence before the Court as to [X]’s current circumstances or welfare.  In those circumstances, it seems to me that the Court should be slow to lend its assistance to a party who so clearly has treated the orders made by the Court and the Court itself, with such contempt.  The relevant discretion ought to be exercised against determining any application, even an oral application for the making of consent orders as presently stands before the Court.

33. In my view, the Court ought not make the consent orders that have been presented.  In summary, I come to that conclusion for these reasons:

    a)the material before the Court is insufficient to satisfy the Court that the making of the orders is in [X]’s best interests; and

    b)as a matter of discretion, I would nonetheless refuse to hear Ms Thomas further on the application, given that she is presently in wilful contravention of the orders made on 23 May, 2012, and there is no evidence from her about the current circumstances of the child.

34. I refuse to make the consent orders presented by the parties. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  15 August 2013