Consent Orders Sought with Respect to Disputed Parenting Order
Federov & Millington (No. 2) [2022] FedCFamC1F 18 (21 January 2022)
Orders were made discharging the UK order. However, pursuant to Family Law (Child Protection Convention) Regulations 2003 (Cth) such orders were cancelled. The Court, determining whether or not the Independent Children’s Lawyer should be discharged, considered the provisions of reg 15(2)(c).
Facts:
X and Y, born in 2009, have been in the care of the First Respondent paternal aunt (“aunt”) and Second Respondent paternal uncle (“uncle”) since 17 May 2017. The Court made an order under reg 15(1)(b) of the Family Law (Child Protection Convention) Regulations 2003 (Cth), the effect of which is to discharge the only relevant final order in this matter, being an order that was made in the Central Family Court, London, in 2017 (“the UK order”). On 17 May 2017, the aunt and uncle returned to Australia, with the children. The UK orders were registered in Australia on 11 September 2017. The parents of the children relocated to Sydney in 2020, and the present proceedings commenced in May 2021. There are orders on 17 June 2021 that provide for the children to spend time with the Applicant mother on a supervised basis.
The Independent Children’s Lawyer made an application to be discharged and an order to that effect has been made. The intention of the Applicant and Third Respondent is for the children to live with them in their rented home situated at Suburb D in Sydney and continue to attend school at B School in Suburb C in the State of New South Wales. The Applicant and Third Respondent intend to remain living in Australia. The Applicant and Third Respondent have expressed no opposition in principle to the First and Second Respondent communicating or spending time with the children in accordance with the children’s wishes.
Issue:
Whether or not the Independent Children's Lawyer should be discharged.
Applicable law:
Family Law (Child Protection Convention) Regulations 2003( Cth) reg 15 - pursuant to which orders were made the effect of which is to discharge the only relevant final order in this matter, being an order that was made in the Central Family Court, London, in 2017 (“the UK order”).
Analysis:
The provisions of reg 15(2)(c) apply, and that is that the registration or enforcement of the measure in Australia (that is, the enforcement of that order) is contrary to public policy, taking into account the best interests of the children concerned. The children have been cared for in the most loving of ways, and provided with parenting that was not available to them from their parents at the time. The pragmatic reality in this case is that whether the Court makes the present order or not, the children will be living with their parents in Australia. That is a consensual arrangement between the adults who have cared for them (their aunt and uncle), and the adults who now propose to care for them (their parents).
Conclusion:
The Independent Children’s Lawyer is discharged. Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders are made by consent in accordance with the document marked “A” dated this day and attached hereto. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders. All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.
