Abramson & Mills

Case [2024] FedCFamC1F 414

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Abramson & Mills [2024] FedCFamC1F 414

File number: BRC 6455 of 2023
Judgment of: CAREW J
Date of judgment: 20 June 2024 
Catchwords: FAMILY LAW – CHILDREN – Whether the father or paternal grandmother should have time and/or communication with the child – Where the father has an extensive criminal history involving illicit drug use and child exploitation – Where the father poses an unacceptable risk of harm to the child that cannot be ameliorated by supervision – Where even if the paternal grandmother was minded to restrain the father from coming into contact with the child if he were in her care, she likely not have the physical or mental strength to withstand any pressure brought to bear upon her by the father to see the child – Where the potential benefit of the child spending time with the paternal grandmother is posed against the risk of exposure of the child to conflict and/or to the father – Where the father will play no role in the child’s life and as such the mother should have sole decision-making power – Where the child will live with the mother and the father is restrained from spending time or communicating with the child – Where the paternal grandmother will have monthly electronic communication with the child and be at liberty to send a gift and/or card and/or letter with a photograph once per month.
Legislation:

Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 65DA

United Nations Convention on the Rights of the Child

Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley (2022) FLC 94-094

Isles and Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93–344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Number of paragraphs: 80
Date of hearing: 3 – 5 June 2024
Counsel for the Applicant: Ms Davison
Solicitor for the Applicant: CK Family Lawyers
For the First Respondent: Litigant in person
For the Second Respondent Litigant in person (did not participate)
Counsel for the Independent Children’s Lawyer: Ms Murphy
Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland

ORDER

BRC 6455 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ABRAMSON

Applicant
AND:

MS MILLS

First Respondent

MR TAYLOR

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

20 JUNE 2024

THE COURT ORDERS THAT:

1.Ms Mills (“the mother”) have sole decision making responsibility for all major long‑term issues for the child X born 2018 (“the child”).

2.The child live with the mother.

3.Mr Taylor (“the father”) be restrained by injunction:

(a)from spending any time or communicating in any way with the child either directly or indirectly;

(b)from requesting a third party to…

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AGLC
Abramson & Mills [2024] FedCFamC1F 414
Case
[2024] FedCFamC1F 414
Decision Date

CaseChat Overview and Summary

The case of Abramson & Mills involved a dispute between the father and the mother of a child born in 2018, concerning the father's and paternal grandmother's right to time and communication with the child. The father had an extensive criminal history, including illicit drug use and child exploitation, and was deemed to pose an unacceptable risk of harm to the child that could not be mitigated through supervision. The paternal grandmother, who has been diagnosed with multiple physical and mental health conditions, was also deemed unlikely to withstand any pressure from the father to see the child if she were in her care. The court had to decide whether the father and the paternal grandmother should have any time or communication with the child, considering the potential benefit of the child spending time with the grandmother against the risk of exposure to conflict and the father.

The court held that the father should have no role in the child's life and that the mother should have sole decision-making power. The father was restrained from spending any time or having any communication with the child. The paternal grandmother was permitted to have monthly electronic communication with the child and to send an age-appropriate gift and/or card and/or a letter with a photograph once per month. The court was satisfied that the paternal grandmother would prioritise the interests of her grandchild over those of her own child, the father, and would have the physical and mental strength to withstand any pressure from the father to see the child if she were in her care. The court also held that limiting the calls to telephone only would likely cause confusion to the child in circumstances where he had had no contact with the paternal grandmother for nearly two years.

The court made several orders, including that the mother have sole decision-making responsibility for all major long-term issues for the child, that the child live with the mother, and that the father be restrained from spending any time or communicating in any way with the child either directly or indirectly. The paternal grandmother was permitted to spend time with and communicate with the child as agreed in writing with the mother and failing agreement as follows: the paternal grandmother is at liberty to send to the child, no more frequently than once per month, an age-appropriate gift and/or card and/or one page letter with a photograph; by FaceTime or such other electronic video communication as agreed in writing, on the first Sunday of each calendar month, between 5.00pm – 5.30pm, with the paternal grandmother to initiate a call to the mobile telephone number provided by the mother pursuant to paragraph 10 herein, and the mother shall ensure the child is available to receive such call, and the mother be at liberty to supervise or be in the vicinity of the call. The mother prepare the child for the call by explaining to him that he will receive a video call from the paternal grandmother referred to as “[…]” and the mother take all reasonable steps to facilitate and encourage the child participating in the call with the paternal grandmother. The paternal grandmother inform the mother by text message if she is unable to make the call as provided for by paragraph 4(b) of this Order. The paternal grandmother be restrained by injunction from causing or facilitating the child coming into contact with the father during her video calls with the child either directly or indirectly and, without limiting the foregoing, the paternal grandmother is restrained by injunction from taking any screen shot photograph of the child during any video call with the child and providing it to the father. The mother be permitted to read and view all communication sent by the paternal grandmother to ensure that it is age appropriate. The mother otherwise provide to the child all cards and gifts received from the paternal grandmother, and show the child any photograph and/or letter received from the paternal grandmother, and further, hold all such cards, photographs and letters received from the paternal grandmother in safe keeping for the child until the child attains the age of 18 years. Within 14 days of the date of this Order, the mother inform the paternal grandmother of a telephone number to which calls can be made pursuant to paragraph 4(b) of this Order, and an address to which the items identified at paragraph 4(a) may be sent to the child, which address may include a Post Office Box. The mother keep the paternal grandmother informed of any changes in writing of her telephone number, email address, and the Post Office Box or her nominated address to which cards, gifts, photographs and letters can be sent. The mother assist the child, if he so requests, to reply and communicate with the paternal grandmother. The mother is at liberty to take the child from the Commonwealth of Australia to a place outside of Australia. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the child may be issued with an Australian passport (including any renewals for such passport) and the need for the father’s consent to the issuing/renewal of the passport is dispensed with. All applications be otherwise dismissed. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order. 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.

Orders

Orders of the court

1. Ms Mills (“the mother”) have sole decision making responsibility for all major long‑term issues for the child X born 2018 (“the child”).

2. The child live with the mother.

3. Mr Taylor (“the father”) be restrained by injunction:

(a) from spending any time or communicating in any way with the child either directly or indirectly;

(b) from requesting a third party to contact the mother (other than by a solicitor acting on his behalf); and

(c) from approaching or requesting a third party to approach the mother, the child, Mr B, and/or C.

4. Ms Abramson (“the paternal grandmother”) spend time with and communicate with the child as agreed in writing with the mother and failing agreement as follows:

(a) The paternal grandmother is at liberty to send to the child, no more frequently than once per month, an age-appropriate gift and/or card and/or one page letter with a photograph;

(b) By FaceTime or such other electronic video communication as agreed in writing, on the first Sunday of each calendar month, between 5.00pm – 5.30pm, with the paternal grandmother to initiate a call to the mobile telephone number provided by the mother pursuant to paragraph 10 herein, and the mother shall ensure the child is available to receive such call, and the mother be at liberty to supervise or be in the vicinity of the call.

5. The mother prepare the child for the call by explaining to him that he will receive a video call from the paternal grandmother referred to as “[…]” and the mother take all reasonable steps to facilitate and encourage the child participating in the call with the paternal grandmother.

6. The paternal grandmother inform the mother by text message if she is unable to make the call as provided for by paragraph 4(b) of this Order.

7. The paternal grandmother be restrained by injunction from causing or facilitating the child coming into contact with the father during her video calls with the child either directly or indirectly and, without limiting the foregoing, the paternal grandmother is restrained by injunction from taking any screen shot photograph of the child during any video call with the child and providing it to the father.

8. The mother be permitted to read and view all communication sent by the paternal grandmother to ensure that it is age appropriate.

9. The mother otherwise provide to the child all cards and gifts received from the paternal grandmother, and show the child any photograph and/or letter received from the paternal grandmother, and further, hold all such cards, photographs and letters received from the paternal grandmother in safe keeping for the child until the child attains the age of 18 years.

10. Within 14 days of the date of this Order, the mother inform the paternal grandmother of a telephone number to which calls can be made pursuant to paragraph 4(b) of this Order, and an address to which the items identified at paragraph 4(a) may be sent to the child, which address may include a Post Office Box.

11. The mother keep the paternal grandmother informed of any changes in writing of her telephone number, email address, and the Post Office Box or her nominated address to which cards, gifts, photographs and letters can be sent.

12. The mother assist the child, if he so requests, to reply and communicate with the paternal grandmother.

13. The mother is at liberty to take the child from the Commonwealth of Australia to a place outside of Australia.

14. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the child may be issued with an Australian passport (including any renewals for such passport) and the need for the father’s consent to the issuing/renewal of the passport is dispensed with.

15. All applications be otherwise dismissed.

16. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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.

Background

Background to the litigation

The father was not present when the matter was set down for trial but did participate in the family report interviews in September 2023. At the commencement of the trial, I determined that the matter should proceed to a final hearing on all matters, despite the father’s absence, and provided reasons for same. In short:(a)The father is clearly aware of the proceedings and has elected not to participate;(b)On 17 April 2024, the father was emailed a copy of the mother’s Amended Response to Initiating Application filed 17 April 2024 in which, among other things, she sought to restrain him from approaching or coming within 100 metres of the child and her family, and from having any “visitation or communication” with the child “by proxy”;(c)On 29 May 2024, the ICL emailed the father a copy of her Outline of Case, which set out a proposed final order including that the father spend no time and not communicate with the child;(d)The father responded to the ICL’s email as follows:Without prejudice, I confirm I will not be participating nore [sic] attending this witch hunt, joke of a trial. Parties may feel free to paint any picture of me they wish however this trial should be about My son [X] & what's in HIS best interest- (not his mothers.) - Regarding his relationship with [the paternal grandmother] (My Mother.)I Will lodge litigation applications under my own name when I feel it is appropriate & in my Son's best interest.(e)The Order made by a Registrar on 28 May 2024 included notice that if the father did not attend the trial, the matter may proceed on an undefended basis and final orders made.BACKGROUND Before turning to consider the issues, it will be helpful to set out some background to the matter. The mother and father commenced a relationship in or about 2016 and separated in or about early 2020. There is one child of the relationship, namely X born 2018. The paternal grandmother was born 1971 and is 53 years of age. She is not employed and is in receipt of a disability pension. The paternal grandmother has been diagnosed with multiple physical and mental health conditions. The paternal grandmother is currently receiving ongoing treatment for these conditions. She currently lives in Victoria with her partner, Mr E. The paternal grandmother contends that she and Mr E are planning to move to Queensland after his retirement in late 2024. Mr E has several other grandchildren. The paternal grandmother contends that she and Mr E are “meaningfully involved in their lives”, including attending birthday parties and sporting events, and contributing to a trust account for their collective benefit upon turning 21 years of age. The mother was born 1990 and is aged 34 years. The mother is employed as a professional, a position she returned to after her maternity leave expired in 2024. The mother lives in a four‑bedroom property in Region D. The mother has re-partnered with Mr B. He was born 1985 and is aged 39 years. Mr B works six days a week as a tradesperson. The mother and Mr B commenced cohabitation in late 2022, and have a child, namely C born in 2023.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not persuaded that it is in the child’s best interests to change his surname. WHETHER AN ORDER SHOULD BE MADE IN FAVOUR OF THE MOTHER FOR SOLE DECISION MAKING RESONSIBILITY? The father will not play any role in the child’s life and as such the mother should have sole parental decision making power. There is no opposition to that course, and it is supported by the ICL. WHAT PARENTING ORDER IS IN THE BEST INTERESTS OF THE CHILD? There is no dispute that the child will continue to live with the mother, and she will have sole parental decision making power. The father has not participated in the proceedings, and I have found he poses an unacceptable risk of harm to the child which cannot be ameliorated by supervision. Accordingly, an order will be made enjoining him from spending any time or having any communication with the child. The paternal grandmother has been something of an apologist for the father, preferring to remain in some respects wilfully ignorant of the extent of his offending behaviour. The paternal grandmother does not consider the father a risk to children let alone a risk to his own child. While I can understand a parent wishing to support their own child above all else, I am not satisfied that the paternal grandmother would prioritise the interests of her grandchild over those of her own child, the father, if she were to spend face-to-face time with the child. Even if the paternal grandmother were motivated to comply with a court order, I do not consider that she would have the physical or mental strength to withstand any pressure brought to bear upon her by the father to see the child if he were in her care. Accordingly, there will be no face‑to‑face time between the child and the paternal grandmother. The ICL recommends that the child nevertheless maintain a connection with the paternal family via the paternal grandmother by monthly video calls and written communication. After hearing the evidence of the family report writer, the mother withdrew her opposition to all forms of contact between the child and paternal grandmother but wishes to limit their contact to telephone calls rather than video calls as proposed by the ICL. It seems that the mother’s reason for opposing video calls was to guard against ‘screen shots’ being taken of the child during video calls and given to the father. That risk can be addressed by enjoining the paternal grandmother from doing so. I agree with the ICL that limiting the calls to telephone only would be likely to cause confusion to the child in circumstances where he has had no contact with the paternal grandmother for nearly two years. The benefits for maintaining some connection with the paternal grandmother were expressed by the family report writer to include enhancing the child’s sense of self and identity, minimising the prospect of the child forming unrealistic or extreme views about the father and his family (whether positive or negative), and minimising the prospect of the child’s relationship with the mother being compromised by a belief that she had deprived him of that relationship. I accept her evidence.

Ratio Decidendi

Legal Principle Established

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