Wilkie & Hampshire
[2024] FedCFamC1F 266
•26 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wilkie & Hampshire [2024] FedCFamC1F 266
File number(s): BRC 15052 of 2021 Judgment of: BAUMANN J Date of judgment: 26 March 2024 Catchwords: FAMILY LAW – Review Of Senior Judicial Registrar’s Decision – Parenting – Application for Review dismissed Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 26 March 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person Counsel for the Intervener: Ms Fraser Solicitor for the Intervener: McLaughlins Lawyers Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 15052 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WILKIE
Applicant
AND: MS HAMPSHIRE
Respondent
MS WILKIE
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That pursuant to Order 4(a) of the Orders dated 2 February 2024, the time the children, X born 2015 and Y born 2018 spend with the Intervenor paternal grandmother shall recommence on Wednesday 27 March 2024.
2.That the Respondent mother’s Application for Review filed 13 February 2024 be dismissed.
3.That the Respondent mother’s Application in a Proceeding filed 29 February 2024 be dismissed.
4.That these proceedings be adjourned for Directions Hearing at 9.30am on 4 November 2024 before a Judicial Registrar in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
5.That the Directions Hearing listed 2 April 2024 be vacated.
6.That the Independent Children’s Lawyer be at liberty to apply to have the matter re-listed.
IT IS NOTED:
A.That the Application in Proceeding filed by the mother having been dismissed, the Court has informed the mother that she must immediately take steps to participate in any intake procedures to facilitate the children spending time with the paternal grandmother as outlined in the Orders made on 2 February 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
On 2 February 2024, a Senior Judicial Registrar made consent orders. The primary issue arising from those consent orders that relate to two children, X, who is now eight and a half, being born in 2015, and Y, who is nearly six years of age, being born in 2018, is that the paternal grandmother, Ms Wilkie, who is 79 years of age, has under those Orders the right to see the children in a supervised environment.
The mother presents today in support of an Application for Review that she filed within time on 13 February 2024. Subsequent to that, on 29 February 2024, the mother also filed an Application in the Proceeding, although that matter was not listed before me on that occasion, it was dealt with accordingly, so as to avoid the parties in further costs of coming back to Court.
As the transcript will reveal, I tried to identify for the clearly articulate and intelligent mother, the framework in which her Application for Review should be considered. It is not an appeal from the consent orders. It is a hearing de novo. In effect, she says, as I suspect she may have wanted to say before the Senior Judicial Registrar, but did not apparently say, that it is not in the best interests of the children that they have any time with the grandmother at this stage.
The context for the Orders is, of course, that the biological father has been charged with serious criminal offences relating to child exploitation material and indecent dealing of a child. As a result of his bail conditions and the cautious approach which a court exercising powers under the Family Law Act1975 (Cth) must exercise, there are no orders for him to spend time with the children.
The grandmother represents a connection with the paternal side of the family. She is available, willing and able to spend time. She consented to that time being supervised. That is, of course, what the Orders reflect. Apart from the fact that there is no evidence of any change, which is more relevant to the Application in a Proceeding, in my view, the mother’s Application for Review has the appearance of an attempt to merely run a different case than was run before the Senior Judicial Registrar, and, of course, she is entitled to do that, even if there was a consent order.
However, on the material, I would not change the Orders as they currently exist, and, therefore, the Review Application should be dismissed.
My reasons for that are this. Although I well accept that the charges brought against the father have been greatly upsetting for the mother at probably a range of levels, in terms of the grandmother’s application, she now having intervened in these proceedings (having brought her own proceedings earlier) which was to see the child, the Order for supervised time is taking a highly cautious approach.
It provides, as I have explained to the mother today, a supervisor who will both observe conversations that take place between the children and the grandmother and will also observe their physical interaction. Notes of those visits will be available as time moves on. That may, noting the mother will not be present during such visits, give the mother some comfort that the children are enjoying the time with the person who, the mother says, they describe as “Nan”. Sadly, as the mother explained to me this morning, her parents, I think one is living in the United Kingdom and therefore not available regularly, and one sadly has passed away. The paternal grandmother, therefore, is the only available grandparent for these children. For the reasons which I have given, including those in my exchange with the mother today, I propose to dismiss her application for review.
I should note, of course, that Ms Fraser of Counsel appeared for the grandmother today and sought orders that the Application for Review be dismissed. Importantly, the grandmother did not seek to review or seek to vary the current Orders, so I do not have to contemplate today whether I would have made the orders that the parties agreed to by consent in February. The very experienced Independent Children’s Lawyer, Ms Chan, also supported the review being dismissed at this stage, as does the father.
So the order of the Court will be that the Application for Review filed by the mother on 13 February 2024 be dismissed.
I am going to give the Independent Children’s Lawyer, under my orders, liberty to re-list.
I will, having dismissed the Application for Review and the Application in a Proceeding order that there be no order for costs. I am going to note in the order that the mother has been informed by the Court that she must immediately make steps to complete the intake procedure.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 10 June 2024
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