Federal Circuit and Family Court of Australia
(DIVISION 2)
Abberley & Clement (No 2) [2023] FedCFamC2F 1508
| File number(s): | CAC 2180 of 2019 |
| Judgment of: | JUDGE W J NEVILLE |
| Date of judgment: | 29 November 2023 |
| Catchwords: | FAMILY LAW – Parenting – significant history of family violence – significant and independent evidence from the Mother regarding her deep-seated anxiety regarding any contact with the Father including any introduction of contact between the Father and the young child – the child does not know his Father at all or even of his existence – Mother agrees to some type of recognition contact between Father and son subject to guidance from child psychologist to inform the child of the [biological] Father’s existence. |
| Legislation: | Family Law Act 1975 (Cth), ss 60CC(2A) |
| Cases cited: | Collu & Rinaldo [2010] FamCAFC 53 Fox v Percy (2003) 214 CLR 118 Isles v Nelissen (2022) 367 FLR 338; (2022) 65 Fam LR 288 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 Partington v Cade (No.2) (2009) 42 Fam LR 401 Sigley v Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 Vontek & Vontek [2017] FamCAFC 28 |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 170 |
| Date of last submission/s: | 27 September 2023 |
| Date of hearing: | 5 – 6 July 2023 |
| Place: | Canberra |
| Counsel for the Applicant | Mr J Masters |
| Solicitor for the Applicant | KPW Lawyers |
| Counsel for the Respondent | Ms M Davis |
| Solicitor for the Respondent | KJB Lawyers |
| Independent Children’s Lawyer | Legal Aid ACT |
ORDERS
| CAC 2180 of 2019 | |
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | |
| BETWEEN: | MR ABBERLEY Applicant |
| AND: | MS CLEMENT Respondent |
order made by: | JUDGE W J NEVILLE |
DATE OF ORDER: | 29 November 2023 |
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
The Mother have sole parental responsibility for the child X born in 2019 (‘the child’).
THE COURT FURTHER ORDERS THAT:
The child live with the Mother.
The child spend no time with the Father.
Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) the child, X born in 2019, be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by Section 6 of the Australian Passports Act 2005 (Cth) and be permitted to travel internationally.
The Mother’s exercise of sole parental responsibility in Order 1 includes that the Mother is at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to Section 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the child without the signature or consent of the Father, including that the Mother is authorised to sign such documents as may be required on behalf of the Father.
The child’s Australian travel document shall be held by the Mother.
Pursuant to Section 68B of the
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CaseChat Overview and Summary
The court had to determine several legal issues, including the allocation of parental responsibility, the living arrangements for the child, and the nature and extent of contact between the father and the child. The court also needed to consider the mother's concerns about the father's potential to cause harm and the appropriate measures to protect the mother and child. Another significant aspect was the issuance of an Australian passport for the child and the implications of the Australian Passports Act 2005.
Judge W J Neville ruled that the mother would have sole parental responsibility for the child, who would live with her and have no contact with the father. The court also issued an injunction restraining the father from contacting the mother or the child, except as provided for in the orders. The mother was authorised to obtain an Australian passport for the child without the father's consent. Additionally, the court ordered that the father could communicate with the child under specific conditions, including sending emails or parcels twice a year with prescribed content. The mother was to inform the child about his biological father with the assistance of a child psychologist and to update the father on the child's development and interests. The orders were made for the personal protection of the mother and the child and would remain in force until the child turned 18 years.
Orders
Orders of the court
CAC 2180 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ABBERLEY
Applicant
AND:
MS CLEMENT
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
29 November 2023
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
1.
The Mother have sole parental responsibility for the child X born in 2019 (‘the child’).
THE COURT FURTHER ORDERS THAT:
1.
The child live with the Mother.
2.
The child spend no time with the Father.
3.
Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) the child, X born in 2019, be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by Section 6 of the Australian Passports Act 2005 (Cth) and be permitted to travel internationally.
4.
The Mother’s exercise of sole parental responsibility in Order 1 includes that the Mother is at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to Section 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the child without the signature or consent of the Father, including that the Mother is authorised to sign such documents as may be required on behalf of the Father.
5.
The child’s Australian travel document shall be held by the Mother.
6.
Pursuant to Section 68B of the Family Law Act, the Father is restrained by injunction from the following:
a.Contacting or attempting to contact (including by text message, telephone, email or any other means including but not limited to via social media) the Mother and/or the child other than as provided for in these Orders;
b.Doing an act or thing in order to locate or attempt to locate the whereabouts of the Mother and/or the child including but not limited to their place of residence, the Mother’s place of employment and/or any school, or educational institution attended by the child from time to time.
c.Approaching the Mother and/or the child, or being within 100 metres of the Mother and/or the child;
d.Dwelling in or frequenting the locale of the child’s place of residence, school or extracurricular activity if it becomes known to the Father;
e.Removing or attempting to remove the child from the care of the Mother or third-party carer of the child; and
f.Engaging, encouraging or allowing any other person to do any of the above.
g.The above Order is an order made for the personal protection of the Mother and the child and is an order pursuant to Section 68C of the Family Law Act to which the power of arrest without warrant attaches.
h.The Section 68B order is made for the personal protection of the Mother and the child and will remain in place and in force until the child turns 18 years.
i.The Mother shall forthwith identify and attend upon an appropriately qualified child psychologist (“the psychologist”) to assist her and the child in identifying his biological Father.
j.Upon obtaining the assistance of the psychologist as per Order 10 above, the Mother shall inform the child that the Father is his biological Father having regard to any recommendations of the psychologist regarding how and when this information is shared with the child.
k.The Mother shall inform the Father via email within 14 days of the child being informed that the Father is his biological Father.
l.On two occasions each year, prior to the child’s birthday and in the weeks prior to Christmas, the Father is at liberty to send to the child an email or parcel containing a photo of himself, a letter, a card and/or gift.
m.When writing to the child as per Order 13 above, the Father is to ensure his communication does not refer to any dispute he has with the Mother and does not contain any negative or otherwise derogatory content regarding the Mother, her partner or the Mother’s extended family.
n.In the event the Father chooses to send the child a letter or card by mail, he is also to email the Mother a digital copy of that communication so that a record can be retained by both parents.
o.The Mother is at liberty to review the contents of any email or parcel she receives from the Father for the child pursuant to Order 13 above to ensure that that the Father has complied with the requirements of Order 14 above.
p.Upon the child being informed that the Father is his biological Father as per Orders 10 & 11 above, the Mother must give any email or parcel received in accordance with Order 13 above to the child within 3 days of receipt and explain to the child that the email or parcel is from his biological Father (and only where any communication contained therein complies with Order 14 above).
q.In the event that the Mother decides not to provide any email or parcel from the Father (or some part thereof) to the child, within 14 days of receiving the email or parcel she is to advise the Father of that decision and the reason for that decision via email.
r.On two occasions each calendar year, being no later than 30 January and 30 July, the Mother will send to the Father an email that provides a brief outline of the child’s education, health and development as well as any current interests of the child to assist the Father in his communication to the child.
s.To facilitate the above communication to and about the child, the Mother will within 14 days of the date of these Orders nominate an email address and a postal address for the delivery of any parcels NOTING that at the time of this order, the Mother nominates DD Street, Suburb EE, for the delivery of parcels and intends to set up a new dedicated email contact.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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