Addyson & Baylee
[2024] FedCFamC1F 164
•13 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Addyson & Baylee [2024] FedCFamC1F 164
File number(s): BRC 755 of 2023 Judgment of: BAUMANN J Date of judgment: 13 February 2024 Catchwords: FAMILY LAW – CHILDREN – Where the Respondent father has not engaged in the proceedings –Final parenting orders made in the best interests of the children – Orders made in the absence of the father Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 13 February 2024 Place: Brisbane Solicitor for the Applicant: Family Centred Law Pty Ltd Solicitor for the Respondent: Did not participate Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers ORDERS
BRC 755 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ADDYSON
Applicant
AND: MR BAYLEE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
13 FEBRUARY 2024
THE COURT ORDERS:
1.That the Applicant mother have sole parental responsibility for the child, X born in 2016 (“the child”).
2.That the child live with the mother.
3.That the child spend no time and have no communication with the Respondent father.
4.That the mother is hereby authorised to provide a copy of these Orders to any of the following:
(a)The principal (or delegate) of any school and like educational institutions which the child attends; and
(b)Any medical or allied health practitioner upon which the child attends.
5.That the Independent Children’s Lawyer serve upon the father at his last known address, a copy of the Orders made today and the ex-tempore Reasons for Judgment, upon which the Independent Children’s Lawyer shall be discharged.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Addyson & Baylee has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The parents of X, born in 2016 (now aged 7 and a half), had been separated since early 2020. The separation was preceded by a relationship that commenced in early 2003; was solemnised by a marriage in 2016; and ended with a separation on 28 April 2020. Shortly after separation, it seems that the parties, Ms Addyson born in 1986 and Mr Baylee born in 1985, tried to manage between themselves arrangements for X to spend time with the father.
However, in or about mid-2021, it is asserted that X made disclosures about inappropriate behaviour of the father directed to her. From the history, it appears that the mother, notwithstanding she had some concerns about the father, in some ways arising from the father’s conviction in 2011 (which I note was during the course of the relationship) on a charge against a woman who was the mother of his eldest child, B (who is now 15 years of age).
Time continued until approximately mid 2022 where the child made further disclosures to a clinical psychologist, Dr C. Dr C, in an affidavit filed 11 September 2023, gave details of that disclosure, which included some graphic comments made by X about alleged sexual conduct between the father and his eldest daughter, B.
As a result of these growing concerns, it was the mother who commenced proceedings in the Court by an Application filed on 24 January 2023. As I will mention again shortly, the mother’s Application filed at that stage sought final orders as follows:
1.The Applicant mother have sole parental responsibility for the child [X] born [in] 2016.
2.The child live with the mother.
3.The child spend no time and have no communication with the father.
That Application also sought orders authorising the mother to provide copies of any final orders to the child’s school and health professionals. I can only assume that the intention of such orders was to enable those persons to be aware of any order made that the father not communicate with the child.
There is limited information to suggest that the father has, in fact, sought to communicate with the child since approximately mid-2020. The father describes himself as a tradesperson living in the City D area, the same location as the mother. He is approaching his 39th birthday.
As indicated, he has a child from an earlier relationship. It seems that that child was living with him. Difficulties arose in having the father respond to the Application, and an order was made by a Judicial Registrar for substituted service. On or about 6 June 2023, the solicitor for the mother filed an affidavit setting out how she had bought this Application to the attention of the father.
In some ways the father responded to the Application but did not file an affidavit. His Response, formerly filed on 21 June 2023, sought an equal time arrangement. An Independent Children’s Lawyer was appointed, and orders were made for a family report to be prepared. On 25 and 28 August 2023, Regulation 7 Family Consultant, Ms E, interviewed the parents and the child and prepared a family report dated 15 September 2023.
After the family report was issued, and in the absence of the father, it seems that the matter was transferred by a Registrar to Division 1 because of the nature of the allegations. The father did attend for the family report interviews. Although the father has filed no evidence, he did give statements to the report writer which, if true, reveal the following issues:
(a)The father attended for the interviews by way of Microsoft Teams on 28 August. As a result, and for other reasons identified by the report writer, the child was not observed in the presence of the father for the purpose of the family report;
(b)The father was aware of the existence of a domestic violence order and said (at paragraph 14) that he had not sought to spend time with the child because of the domestic violence order;
(c)At paragraph 18, the father indicated that his position is somewhat changed now, in that he agreed that the child should live with the mother, but that he was seeking time each alternate weekend. He acknowledged that there was a domestic violence order against him from the paternal grandmother (paragraph 41) and denied the allegations of the mother that he had demonstrated a pattern of abusive and coercive behaviour towards the mother, or that he had emotionally, psychologically and physically abused the mother between 2011 to 2019.
The mother also, at paragraph 43, asserted that the father had “drained her bank account.” At paragraph 47, the father was advised that in mid 2020 (consistent with the evidence of Dr C) X had disclosed that the father had put a “dog collar” on her, physically abused her and threatened to kill her. All these claims against the father were denied by him in his interviews with the report writer at paragraphs 52 to 56.
The child was interviewed, and her comments were recorded at paragraphs 75 to 77. It is clear that the child expressed a strong view at that stage, young though she was, that she did not wish to see the father. In her evaluation, again untested evidence by Ms E, the report writer opined (at paragraph 85) that the father minimises, denies and blames others for his behaviour, and has taken limited responsibility for his behaviour.
The report writer did not see there was any way of proceeding further in this matter unless there was therapy to begin a reconciliation; supervised contact through a contact centre, and further observed at paragraph 94 that the parties had no capacity to co-parent.
The tenor of the report of the Family Consultant is that if risk was established, then she supported the mother’s position that there be no time, but if risk was found not to exist at an unacceptable level, then beginning some time between the child and the father would be in the child’s best interest.
It seems clear after that report, which I accept would have been very confronting for the unrepresented father, that he has disengaged from the process. He has not appeared in court events. He failed to comply with the Orders made by the Chief Justice at a Compliance and Readiness hearing held by telephone on 11 December 2023, that he file a Notice of Address for Service.
The father was given notice in the Order of the Chief Justice by Notation B that “in the event that the Respondent fails to appear at the adjourned date, the Applicant may be granted leave to proceed on an undefended basis subject to the discretion of the presiding judge.”
I am satisfied that the father has been given a fair opportunity and knows of the likelihood that if he failed to appear today, orders on a final basis would be made in his absence. I have explained to the Independent Children’s Lawyer, the mother and her lawyer, all of whom appear by telephone, that, of course, an order made by a Court in the absence of a party can be the subject of an application to be set aside on the basis that a party had not been heard and did not appear when the order was made.
Today, instead, I am persuaded it is in the best interest of the child that orders be made on a final basis. If the father did, at some future time, decide to engage in the process or bring a new application, the mother must be aware that the Court may, in the exercise of discretion, permit, in the best interests of the child, such further applications to be pursued.
However, the evidence given by the mother in her affidavit of 20 January 2023, supported by the family report, satisfies me that it is in best interest of the child that there be final orders made at this stage through the father’s lack of engagement. The mother’s affidavit deals with the relevant section 60CC(2) and (3) factors.
In the circumstances of this matter, I make an order on the final basis in the best interests of X in accordance with paragraph 1, 2, 3, 4A and 4C of the Application. I do not regard it is as appropriate and in the best interests of the child that the manager of any extra-curricular activity the child attends be provided a copy of the orders.
Sadly, when people in the community get copy of orders such as these, that can raise other issues which need to be managed. Certainly, however, the child’s school and medical and health professionals should be aware of the order. They, of course, have no duty or obligations in any way to enforce the order, and if the school was, for example, notwithstanding the order I make today for the mother to have sole parental responsibility, approached by the father, then they will need to deal with any such approach as they see fit.
I will direct that the Independent Children’s Lawyer served a copy of these orders upon the father at his last known address, together with these Reasons for Judgment once published, which will be in approximately two weeks’ time, upon which the Independent Children’s Lawyer shall be discharged.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 18 March 2024
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