Archer & Murray (No 2)
[2022] FedCFamC2F 884
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Archer & Murray (No 2) [2022] FedCFamC2F 884
File number(s): MLC 10226 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 11 July 2022 Catchwords: FAMILY LAW – Review of Senior Judicial Registrar’s decision – where Senior Judicial Registrar refused adjournment and made final parenting orders on an undefended basis at interim hearing – final orders discharged and interim orders made for mother to have sole parental responsibility – father’s time to be limited to electronic communications – orders for hair follicle drug test and restraints – order to list for final defended hearing in default Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia Act 2021 s 254
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sch 4 cl 2, pt 14.3, rr 1.21, 1.33, 5.01, 10.27, 14.05, 14.07,
Cases cited: Allesch v Maunz [2000] HCA 40
Beaton & Beaton [2020] FamCAFC 297
Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
Haddon & Banos [2019] FCCA 2865
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
W (Sex Abuse: Standard of Proof) [2004] FamCA 768
Division: Division 2 Family Law Number of paragraphs: 68 Date of hearing: 16 June 2022 Place: Hobart Counsel for the Applicant: Ms Dellidis Solicitor for the Applicant: Hargreaves Family Lawyers For the Respondent: Self- represented litigant ORDERS
MLC 10226 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARCHER
Applicant
AND: MR MURRAY
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
11 JULY 2022
THE COURT ORDERS THAT:
1.The time for filing of the Application for Review is extended to 25 March 2022.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
2.The Court Orders dated 13 December 2012 and 1 March 2022 are discharged.
3.The Mother MS ARCHER (“the Mother”) have sole parental responsibility for the children X, born in 2006, Y, born in 2007 and Z, born in 2010, (“the children”).
4.The Mother keep the Father MR MURRAY (“the Father”) updated and advised, as soon as practicable, as to major long-term decisions she has made relating to the children.
5.The children live with the Mother.
6.The Father’s time with the children is limited to electronic communication by telephone call, for half an hour each Sunday and subject to the following terms:
(a)The Father is to initiate the call to the mother’s mobile phone number at 5.30pm AEST or within 5 minutes before or after that time;
(b)The three children are to be present and the call taken on loud speaker so collective discussion can occur; and
(c)The Mother facilitate the taking of the call by ensuring the phone is available and charged to receive the call and the children are present.
7.By 4.00pm on 12 August 2022, the Father must:
(a)File and serve an affidavit of evidence relied upon in support of the parenting orders he seeks;
(b)Submit to hair testing for the detection of illegal and/or unprescribed substances in the body upon the following conditions:
(i)The Father is not to cut, colour or otherwise interfere with his hair prior to submitting to the hair testing;
(ii)The testing shall test for the presence of opiates, amphetamines, methamphetamines, benzodiazepines, cocaine, and cannabis over the period of 3 months preceding the collection of the hair samples;
(iii)The cost of the collection and testing of the hair samples is to be borne by the Father;
(c)File and serve on the Mother a copy of the written results of the hair follicle drug test; and
(d)Obtain, file and serve a letter from his treating Psychiatrist reporting as to:
(i)The Psychiatrist’s opinion of whether the Father suffers a psychological disorder or condition or trait(s) and, if so, what?
(ii)What medication(s) he has prescribed for the Father and when;
(iii)Whether the Father has been compliant with treatment and medication;
(iv)Whether he has made observations of the father or has information about him suggestive that the Father is consuming illicit substances and, if so, what;
(v)Whether in his opinion the father suffers from any disorder, condition or trait or behaviour that causes him to be unsuitable for appropriately caring for the children or spending time with the children (whether supervised or unsupervised).
8.The Father is to provide a copy of this order to his treating Psychiatrist within 7 days of the date of the order.
Communication
9.Each of the parties at all times:
(a)Keep the other party informed of their contact details, including residential address, landline and mobile telephone numbers and email addresses;
(b)Keep the other party informed of the names and addresses of any treating medical or any other allied health practitioners, including psychologists and counsellors, who treat the children and authorise such practitioners to provide the other party with all information that they are lawfully able to provide to parents about the children;
(c)Inform the other party as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner(s) to release information concerned the said condition, health issue or illness to the other parent;
(d)Authorise the Principal of the schools attended by the children from time to time to provide the other party all information provided by the school to parents or students, including copies of all school reports, school notices and school photographs in relation to the children; and
(e)Authorise the principal of the schools attended by the children from time to time to communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children's progress at their respective institution.
Restraints
10.The Father, his servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the Mother or any member of her household or family in the presence or hearing of the children or any of them or from permitting any other person so to do;
(b)Discussing these proceedings or the issues raised therein in the presence or hearing of the children or any of them or from permitting any other person so to do and from discussing these proceedings verbally or by any other means of communication with any school that the children may attend from time to time;
11.The parties be at liberty to provide a copy of these Orders to any of the following:
(a)The Principal or delegate of the Principal of the school attended from time to time by the children; and
(b)Any Medical Practitioner and /or allied health professional attending upon the children, or upon who the parties may attend.
12.Upon compliance with all of Order 7, the proceedings be listed for Case Management before a Senior Judicial Registrar.
13.Upon failure of the father to comply with Order 7 by 4.00pm on 12 August 2022, the proceedings be listed before a Senior Judicial Registrar for an undefended final parenting hearing.
Independent Children’s Lawyer
14.Pursuant to section 68L(2) of the Family Law Act 1975 (Cth) the children X born in 2010 and Y born in 2007 and Z born in 2006 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
15.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
16.Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
17.The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
18.The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the final hearing.
THE COURT NOTES THAT:
A.The Father is put on notice that if he does not comply with Order 7 of these Orders, by virtue of Order 13 of these Orders, a final undefended hearing will likely occur on a date to be fixed.
B.The Court previously requested the appointment of an Independent Children’s Lawyer by Orders made 4 May 2022, and the request was declined by Victorian Legal Aid. As the parenting proceedings involve issues of family violence, drug and alcohol abuse, serious mental health issues, the Court requests that reconsideration of refusal to appoint an Independent Children’s Lawyer.
C.The proceedings are referred to National Assessment Team for allocation of a date for case management before a Senior Judicial Registrar, noting Orders 12 and 13.
D.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.
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 a pseudonym Archer & Murray has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION AND BACKGROUND
This judgment relates to an Application for Review regarding final parenting orders made by a Senior Judicial Registrar on 1 March 2022 (“the final orders”). The final orders concern three children, X born in 2006 (“the eldest child”), Y born in 2007 (“the middle child”), and Z born in 2010 (“the younger child”) (collectively “the children”).
The parents Ms Archer (“the mother”) and Mr Murray (“the father”) engaged in previous parenting proceedings, which were finalised when final parenting orders were made by consent on 13 December 2012 (“the previous orders”).[1] The previous orders provided, in summary, that the mother and father have joint parental responsibility for the children, and that the children spend regular and significant time with the father.
[1] In file number MLC10396/2011.
On 15 September 2021, the mother filed an Initiating Application seeking both interim and final orders. The final orders she sought were that the previous orders be discharged, that she have sole parental responsibility for the children, and that the children live with her and spend time with the father each alternate weekend subject to the father meeting certain conditions around mental health and drug/alcohol testing. On an urgent interim basis she sought that the father’s time with the children be suspended and that service of the proceedings be dispensed with.
On 18 October 2021, the matter was first mentioned before a Judicial Registrar for directions. There was no appearance on this occasion by the father, presumably because of the urgent and ex-parte nature of the mother’s application. Orders were made adjourning the matter to a Senior Judicial Registrar and for the mother to file evidence of service. The only order directed to the Respondent was in the following terms:
6.In the event the Respondent [father] does not file and serve any material in these proceedings and/or attend at the next hearing date, the Applicant [mother] has liberty to apply to have their Initiating Application proceed on an unopposed basis.
There was also a notation on the orders made on 18 October 2021 as follows:
A.In the event the Respondent [father] fails to comply with these orders and/or fails to attend Court on the next occasion, the Applicant [mother] proposes to seek that the Final Orders sought in the Application filed on 15 September 2021 be heard on an undefended basis and/or in the absence of the Respondent [father].
On 3 November 2021 both parties appeared before a Senior Judicial Registrar, but the father had not filed or served any materials. At this time, it is not apparent whether the father had been served as the affidavit filed by the mother on 29 October 2021 attested to multiple attempts to serve, but sought an order dispensing with the requirement of service.
On 3 November 2021, the Senior Judicial Registrar made orders that:
(a)Suspended the previous orders made in 2012 for the father to spend time with the children;
(b)The father to undergo hair follicle drug testing by 31 January 2022;
(c)The father file responding material, including a report from his treating psychiatrist;
(d)A Child Impact Report be prepared; and
(e)The matter be set down for an interim hearing on 1 March 2022.
The court record does not show the existence of an order dispensing with service, but on 18 October 2021, an order was made that service of the orders made that day be served on the father by email to … com. It can be inferred that the father received notice of the hearing on 3 November 2021 because he received a copy of the order made on 18 October 2021. It is not possible to be satisfied that the father had been served with the Initiating Application or that an order dispensing with service had been made.
By 1 March 2022, the father had not filed any responding material in accordance with previous orders. The father had participated in interviews for preparation of the Child Impact Report and had appeared in person on 3 November 2021.
On 1 March 2022, the Senior Judicial Registrar made final orders, relevantly and in summary, that:
·The mother have sole parental responsibility for the children;
·The children live with the mother;
·The children’s time with the father is suspended pending the father:
·Producing a clear drug test and a letter from his treating psychiatrist that he is compliant with all treatment and medications;
·For a period of two years, the father undergo random urinalysis at his own expense at the mother’s request; and
·Once the preconditions are met, the children spend time with the father on alternate weekends from Friday to Sunday and for half of the school holidays.
It transpires that the Senior Judicial Registrar gave oral ex tempore reasons for making the final orders made on 1 March 2022. This became apparent because the mother made a request for the reasons to be given in writing after the first mention of the Application for Review before me on 4 May 2022. This appears to have resulted because I questioned how it had arisen that the Senior Judicial Registrar made final orders, noting that he was to conduct an interim hearing and his powers were limited in parenting proceedings.
THE APPLICATION FOR REVIEW
The father’s Application for Review was accepted for filing by the Melbourne Registry of the Court on 25 March 2022. He provided evidence that he had tried to file the documents earlier, but had used the wrong email address. The review application was ultimately filed by Registry staff on his behalf as the father indicated that he had issues accessing the Commonwealth Courts Portal. The father also provided a copy of a short letter from his treating psychiatrist Dr B dated 2 March 2022 to the Melbourne Registry. My Associate subsequently ascertained that the letter had been filed as correspondence by Registry staff.
On 4 May 2022, the review application was listed before me for hearing. Both parties attended by Microsoft Teams. The mother indicated that she had not been served with the Application for Review, however had become aware of the hearing and had obtained a copy of the application from the Commonwealth Courts Portal. She did not object to the matter proceeding. I made an order dispensing with personal service of the Application for Review, as the mother plainly had notice of it.
The mother did not have the letter of Dr B and the father had not filed any affidavit evidence. As noted at [11], I questioned how final orders could have been made on 1 March 2022 and raised my preliminary view that a Senior Judicial Registrar may have been without power to make final rather than interim parenting orders, except if by consent. As the father had appeared and opposed the orders on 1 March 2022, it did not seem as if the Senior Judicial Registrar was proceeding with an undefended hearing. As non-lawyers, both parties were ill equipped to address these issues.
I determined that the Application for Review was not ready to proceed, encouraged both parties to obtain legal advice and adjourned the hearing of the Application for Review to 16 June 2022. I also made orders directing the father to file a Notice of Address for Service by 11 May 2022, and a Response to the Initiating Application along with accompanying affidavit by 18 May 2022.
The father filed a Notice of Address for Service in hardcopy at the Melbourne Registry of the Court on 10 May 2022. The father asserts that around this time he experienced issues with the Commonwealth Courts Portal which prevented him from electronically filing documents in the usual manner. He sought an extension of time to file the remaining documents. The father was granted an extension of time to 2 June 2022 to file his Response and affidavit material as this was not opposed by the mother. The issues relating to the Commonwealth Courts Portal were not resolved until 9 June 2022. I informed the parties of this during the hearing before me on 16 June 2022.
THE REVIEW HEARING
I conducted a hearing of the Application for Review on 16 June 2022 (“the review hearing”), at which time the mother was represented by counsel and the father represented himself. On 15 June 2022 the father had filed a Response to Final Orders, but no accompanying affidavit.
The Parties’ Cases
The Mother’s Case
The mother relied upon the following documents:
(a)Her Initiating Application filed 15 September 2021;
(b)Her affidavit filed 15 September 2021;
(c)Her affidavit filed 14 June 2022
(d)Her Notice of Risk filed 15 September 2021;
(e)The ex tempore Reasons for Judgment of Senior Judicial Registrar Glass delivered 1 March 2022, which was received into evidence as Exhibit R-1; and
(f)The Child Impact Report dated 10 February 2022, which was received into evidence as Exhibit R-2.
The key contentions by the mother for seeking dismissal of the Application for Review were that:
·The Senior Judicial Registrar had power to make the final parenting orders he did pursuant to Rule 14.05 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2001 (Cth)(“the Rules”) due to the father’s failure to comply with court orders;
·The Application for Review is made out of time; and
·The final orders do not prejudice the father as they provide the means by which he can resume spending time with the children.
The Father’s Case
The father relied upon his Application for Review filed 25 March 2022, and also sought to rely on the letter from his treating psychiatrist Dr B dated 2 March 2022. Dr B’s letter was received into evidence unopposed after my Associate provided a copy of it by email to the mother’s instructing solicitor. It was marked as Exhibit A-1.
His contentions put in a somewhat convoluted way, but understood by me, were that the Senior Judicial Registrar should not have made final parenting orders on an undefended basis. The father had sought an adjournment of the hearing on 1 March 2022 and had told the Senior Judicial Registrar that he disputed the mother’s evidence and allegations.
REVIEWS - RELEVANT PRINCIPLES
The powers delegated to Senior Judicial Registrars and Judicial Registrars for Division 2 of the Federal Circuit and Family Court are provided for in section 254 of the Federal Circuit Court and Family Court of Australia Act 2001 (Cth) (“the FCFCOA Act”) and in Schedule 4, Clause 2 of the Rules by adoption.[2]
[2] By virtue of Rule 5.01 of the Federal Circuit and Family Court of Australia (Division 2 )(Family Law) Rules 2021.
Section 256 of the FCFCOA Act provides the Court with power to review decisions made by Senior Judicial Registrars and Judicial Registrars and the procedure for the reviews are contained in Part 14.3 of Chapter 14 of the Rules. In this instance, the application was not made within the required timeframe of 21 days, and was 3 days overdue.[3]
[3] Rule 14.05(2).
A brief submission was made by Counsel for the mother about this, but she did not press any specific prejudice caused by the late filing. It was submitted that the prolongation of the parenting dispute was likely to be harmful and prejudicial to the mother and the children. This was very much the flavour of the evidence contained in the mother’s affidavit.[4]
[4] Affidavit of the mother filed 14 June 2022 at [36].
Due to the difficulties referred to at [12] above, I consider the father’s delay should not deprive him of the ability to pursue review of the Senior Judicial Registrar’s orders, particularly because of the absence of specific prejudice, the delay being short and the fact that the previous spend time with orders had been suspended on 3 November 2021. To the extent necessary, I order pursuant to Rule 1.31 of the Rules that the time for filing of the Application for Review is extended to 25 March 2022.
The procedure for the review is governed by Rule 14.07 and I am to determine the parenting proceedings that were before the Court on 1 March 2022 on a de novo basis.
BASIS UPON WHICH FINAL ORDERS WERE MADE
It was common ground that the Senior Judicial Registrar did not make the final orders by consent. The written reasons marked as Exhibit R-1, that the Senior Judicial Registrar proceeded on an undefended basis. His reasons for doing so were as follows:[5]
4.Pursuant to Rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Rules”), given [the father]’s non-compliance with the Court’s orders, and indeed, its Rules, I have a discretion to proceed to determine the application on an undefended basis. In effect, [the father] opposes that course. He seeks an adjournment of the matter, in circumstances where he says, broadly, there are escalating security concerns, that they have arisen over the last three days as a result of those concerns arising over the last three years. He intends to engage legal counsel. That submission is no answer to why it is that [the father] has failed to comply with the Court’s earlier directions made last year, given that the matters to which he refers have arisen as indicated only very recently.
Despite the application having now been before the Court for five months, [the father] appears to have taken no steps either to engage legal counsel, or to comply with the Court’s directions in any way. Pursuant to section 69ZN of the Family Law Act 1975 (Cth), I am required to proceed in parenting matters without undue delay. I am not satisfied of the explanation [the father] has given for his failure to comply with the Court’s directions and I do not consider it to be in the children’s best interests to continue to be exposed to litigation in circumstances where [the father] continues to fail to comply with the Court’s directions to facilitate his participation in the proceedings. For those reasons, I will grant leave to [the mother] to proceed on an undefended basis this day. It will be open to [the father] to apply to set aside orders made on that basis, in the event he can satisfy the court of the matters as prescribed in rule 1.34 of the Rules.
[5] [2022] FedCFamC2F 745.
The provisions of section 254 of the FCFCOA Act and Schedule 4, Clause 2 of the Rules, only delegate to Senior Judicial Registrars the power to make final parenting orders in two instances: if the proceedings are undefended or the final orders are sought by consent.
EVALUATION
The review application requires me to determine two issues. First, if I am persuaded to proceed to make final parenting orders either on an undefended basis or due to the father’s default in complying with court orders. Second, to determine what parenting orders should be made, and if on a final or interim basis.
The Senior Judicial Registrar stated in his reasons that the father had not complied with the court directions to facilitate participation in the proceedings in any way. I disagree, as the court record demonstrates that the father had appeared at the 1 November 2021 hearing, had also participated in the process for preparing the Child Impact Report, and then appeared on 1 March 2022 to seek an adjournment of the interim hearing that day.
The father had not filed a Response or affidavit and had not undertaken the ordered hair follicle test as ordered on 3 November 2021. However, it is material that there is considerable evidence attesting to significant mental health issues of longstanding, which had deteriorated in the last 12 months.[6]
[6] Affidavit of the mother filed 15 September 2021 at [80].
In assessing the extent of non-compliance and whether to proceed undefended in March and now, it is relevant that the father’s mental health issues may reasonably explain or contribute to the father’s non-compliance. Further, the deterioration in the father’s mental health/drug use may be temporary and amenable to treatment.
The matters at [31] and [32] are important because the father did appear and had sought an adjournment and did oppose the final orders being made. It appears that the Senor Judicial Registrar did not accept the father’s limited explanation for non-compliance.[7] But, the explanation given by the father is entirely consistent with a person suffering mental illness in my view.
[7] [4] of written reasons of SJR
The mother has filed an abundance of material raising concerns about the risk of the children being exposed to emotional or possibly physical harm when spending time with the father. She has also attested to concerns that the father’s mental health has deteriorated and that she suspects he is again abusing drugs. She relies on this evidence on the review.
No doubt the evidence referred to above was and is critically relevant to assessing what is in the best interests of the children at interim hearing. However, the evidence is untested and at times hearsay in nature. Although the rules of evidence do not apply to parenting proceedings, this is an additional factor to consider when determining if it is appropriate to grant an adjournment, make interim orders or proceed undefended. Also relevant is the extent of non-compliance with orders.
The mother’s affidavit filed 14 June 2022, states as follows at [18]:
On 1 March 2022, we were listed before Senior Judicial Registrar Glass for an Interim Defended Hearing. Senior Judicial Registrar Glass was extremely patient with [the father] and asked him repeatedly if he understood that the matter was proceeding on that day. [The father] confirmed that he did understand.
This demonstrates that both parties had a reasonable expectation that on 1 March 2022 that they were appearing for an interim parenting hearing and that interim orders may be made either on a defended or undefended basis. Indeed, the order made on 3 November 2021 was to set the matter down for an interim defended hearing on 1 March 2022. No prior notice was given on this occasion that an undefended final hearing would or could proceed on 1 March 2022 if the father failed to comply with the 3 November 2021 orders.
DISPOSITION AND ASSESSMENT
I must determine afresh what parenting orders should be made at this juncture.
On this review, the father has again only partially complied with orders of the Court, but I consider he has attempted to comply. The difficulties at [16] above caused serious and worrying obstacles to the father accessing and filing documents on the Commonwealth Courts Portal. Notwithstanding, the father has filed a Notice of Address for Service and a Response.
On both occasions the father appeared before me, he presented as polite and mostly responsive, albeit at times confused about events, dates and what was required of him. He did not satisfactorily explain why he had not undertaken the hair follicle testing after it had been ordered in November 2021. His explanation for why he did not prepare and file an affidavit after the Commonwealth Court Portal issues referred to at [16] were resolved in June 2022 or after November 2021 was that the task was too large and difficult given the content of the mother’s affidavits and the limited time between resolving the Commonwealth Courts Portal difficulties and the hearing. His explanation of why he had not engaged a lawyer did not make sense to me and suggested he did have traits of paranoia or conspiracy. This is unlikely to have been alleviated by the Commonwealth Courts Portal issues that arose and were not of his making.
Despite the reasons at [40], his statements taken as submissions during the hearing were to dispute much of the contents of the mother’s affidavits. The father’s persistence in filing the Application for Review despite the technological issues and his continued participation in the proceedings, albeit incompletely, are suggestive that he intends to participate in the proceedings and opposes the final orders sought by the mother.
I do not consider it appropriate in my discretion to proceed on an undefended basis to make final parenting orders. I accept the mother has genuine concerns about the father spending time with the children and is burdened by the proceedings continuing. But in my view it is unfair, pre-emptive and unnecessarily harsh to make final orders as sought by the mother on an undefended basis[8], when:
·The father had been spending time with the children for years until time ceased in April 2021, albeit that this may have been inconsistent;
·The parties had agreed to equal shared parental responsibility in the previous proceedings;
·The father is said to be suffering serious mental health difficulties, which may have impacted on his capacity to comply with requirements to file documents and respond to the enquiries made of him by the Senior Judicial Registrar;
·The father has partially participated in the proceedings, albeit that he had apparently refused to have a hair follicle drug test;
·The extent of non-compliance with the orders was not to comply with the orders of 3 November 2021 for filing a Response and Affidavit and undertaking hair follicle testing rather than repeat non-compliance;
·The previous orders providing for the father to spend time with the children had already been suspended in November 2021, so there was no chance of manifestation of risk of harm to the children; and
·The father appeared and sought an adjournment previously, but it was in my view unreasonably refused and the proceedings should not have proceeded to undefended final hearing.
[8] Allesch v Maunz [2000] HCA 40, especially at [35] to [41].
I took considerable time to ascertain if the father pursued an adjournment of the review hearing, as he made remarks suggestive that he wanted more time to file and serve a responding affidavit. Ultimately, the father indicated that he was agreeable to the Court hearing the review application.
In view of the above reasons, I consider that orders made upon this Application for Review should be interim parenting orders, based on the evidence currently before the Court and the submissions made to me. Such orders are capable of providing for the welfare of the children while affording procedural fairness to a party who apparently has mental health issues, has partly participated in the proceedings and has had a meaningful relationship with the children for many years in the past.
I consider that the father should be afforded one further opportunity to put his case before the Court entertains proceeding by default or on an undefended basis to make final orders.[9]
[9] Rule 10.27 or Rule 1.33 of the Rules respectively.
I disagree with the submission that the orders made by the Senior Judicial Registrar do not prejudice the father. They are final orders and, contrary to the previous orders, give sole parental responsibility to the mother on a final basis and immediately deprive the father of any time with the children when he previously was entitled to unsupervised time on a regular and substantive basis.
It is well-established that courts should be hesitant to deprive a child of any contact or time with their parent. For example, in Haddon & Banos [2019] FCCA 2865, the Court cited with approval W (Sex Abuse: Standard of Proof) [2004] FamCA 768 in the following terms:
217.Cases in which one parent seeks an order that there be no time between the children and the other parent are very serious. Such an order can only be made if the situation is dire. Additionally, all other options and alternatives should be explored. An order for no time is an order of last resort. Their Honours in Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 at paragraph 19:-
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
INTERIM PARENTING ORDERS TO BE MADE
The decision making pathway referred to in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 applies as this is an interim parenting application determined de novo.
On the basis of undisputed evidence or agreed facts the Court is to make an assessment of what is in the best interests of the children, guided by the relevant statutory provisions.
Multi-levelled evaluations of multiple considerations, some of which may be inter-related, must be assessed on a discretionary basis according to undisputed or uncontentious or agreed facts, cognisant that the evidence has not yet been tested.[10]
[10] Goode & Goode [2006] FamCA 1346 at [68]; Deiter & Deiter [2011] FAMCAFC 82 at [61]; Marvel & Marvel [2010] FamCAFC 101 at [121].
The parties’ respective proposals need to be assessed to identify what is in the children’s best interests, including having regard to relevant risks of harm to the wellbeing of the children noting limits of the evidence before the Court.[11] The evaluation should give attention to all considerations in section 60CC of the Family Law Act 1975 (Cth). However, sometimes there is little alternative to weigh probabilities of competing claims on untested evidence and the likely impact on the children should the adverse allegations materialise.[12]
[11] Deiter & Deiter [2011] FAMCAFC 82 at [61]; Marvel & Marvel [2010] FamCAFC 101 at [121].
[12] Beaton & Beaton [2020] FamCA 297.
The Response seeks that the Court make orders in the terms of the previous orders made in 2012. Given the evidentiary content of the mother’s affidavits[13] and the Child Impact Report, which are not presently refuted or rebutted by evidence and merely disputed, I am not persuaded that it is in the best interests of the children to revert to the 2012 orders on an interim basis.
[13] Particularly the affidavit of the mother filed 15 September 2021 at [19] to [33] and [35] to [49].
As to the primary consideration in s 60CC(2) of the Act, despite the conclusion at [52], I am not persuaded that the father poses an unacceptable risk, such that no time or communication with him whatsoever is warranted. The Child Impact Report[14] suggests that the children have insight into their father’s difficulties and notwithstanding those wish to spend time with him providing it is consistent and safe.[15] They are also of an age where they are able to self-protect and report adverse events.
[14] Exhibit R-2.
[15] Child Impact Report at [4] and [5].
Given the impression gained from the mother’s affidavit evidence and the views of the Court Child Expert,[16] it is not likely to be in the children’s best interests to be in the father’s care overnight, in person for long periods, or unsupervised at present or in the immediate future.
[16] Especially in the Child Impact Report at [14] to [18].
However, noting the well-established principle referred to at [47] of these reasons, the children should be afforded the opportunity to communicate on a regular basis and spend time by phone with the father. In arriving at this view, I have turned by mind to the relevant consideration in s 60CC(3) of the Act and do not strongly disagree with the summation of the evidence concerning those in the reasons of the Senior Judicial Registrar.[17] None of that evidence warrants depriving the father of all or any contact with the children because interim orders can be crafted now which address the need to promote the well-being of the children while also preserving some relationship with the father.
[17] The Senior Judicial Registrar’s reasons for decision at [9] to [17].
Further, if in preparation for final hearing, the father puts evidence before the Court which either refutes the allegations against him by the mother, or demonstrates that his mental health and drug use issues are under treatment and adequately managed, it may well be appropriate for the children to spend time with their father in person in an environment where they are physically and emotionally safe.
The father does not appear to be living with his parents and his residential circumstances are presently unknown, but he has provided a residential address to the Court. It will be important for the Court to be informed of the type of accommodation and living environment the father can provide if the children are to spend time with him in person.
Counsel for the mother submitted that the father had failed to demonstrate any pathway to addressing the best interests of the children. That may be the case to date, but the Court Child Expert sets out what I consider to be a clear pathway, one which the father had little opportunity to comprehend and implement due to the short passage of time between release of the Report and the making of final orders on 1 March 2022.
The Court Child Expert stated:[18]
19.It is the assessment of the writer that [the father] must engage with the Court process by providing the Court with the ordered [hair follicle drug testing], along with a psychological assessment to address the concerns regarding his mental health and drug and alcohol abuse.
20.Once this information is provided, and if the Court has assessed it is safe to do so, it is recommended the children spend professionally supervised time with [the children]. Given the ages of [the elder and middle child], it would be appropriate for them to spend time with [the father] as per their wishes. For [the younger child], it may be initially appropriate for her to spend supervised time with [the father] once a fortnight.
[18] Child Impact Report at [19] and [20].
The father ought to be afforded opportunity to engage with these recommendations and the pathway identified by the Court Child Expert and the interim orders that I make will be consistent with her views.
I do not ignore that there is voluminous and detailed evidence about the father’s inability to presently safely care and provide for the children’s emotional and physical needs. If the father does not comply with the interim orders made upon this Application for Review, there will be good cause to proceed with an undefended final hearing and the father will have been afforded procedural fairness. Further, by the terms of these reasons for decision, he will also have unambiguous notice that this is his final opportunity to ensure that he puts his case before the Court.
In the interim, there will be orders consistent with the views of the Child Court Expert at [18] to [23] of the Child Impact Report. It is also necessary to ensure that the mother as the children’s primary carer has ability to make decisions concerning long-term issues that likely will arise in view of their ages and stages of maturity. It is appropriate that there be an interim order that the mother have sole parental responsibility as, on the only evidence presently before the Court, there is no effective communication between the parties and she has made the relevant decisions due to the father not engaging.[19]
[19] Affidavit of the mother filed 15 September 2021 at [64] to [68].
I am acutely aware of the allegations of drug use and deteriorating mental health and the impact this is capable of having on the children. The orders to be made on an interim basis will not provide for in person time between the father and the children, so I consider there will be no material or likely risk of harm to the children eventuating.
The father is now on clear notice that the Court will not continue to further unnecessarily draw out the final conclusion of these proceedings. He may be suffering a condition that impairs his ability to prepare documents, respond to allegations, recall and action what is required of him, he should seek the assistance of a lawyer or the Family Advocacy and Support Service workers assigned to the Court who will be able to assist and direct him.
I had previously made an order requesting that there be an Independent Children’s Lawyer appointed, but legal aid for appointment was refused. Given the allegations by the mother and the risk issues they raise, it is highly desirable that an appointment be enabled by legal aid, particularly given the age of the children and the value of putting third party documents from police and mental health records before the Court.[20] I will renew the order for appointment of an Independent Children’s Lawyer.
[20] Child Impact Report at [21] and [22].
I am mindful of the mother being exposed to possibly futile legal proceedings. She may be correct that the father simply will not participate and will act in a manner to obstruct, but that is not clear to me at present.
The father should spend time with the children on a regular basis by phone pending the final hearing to enable some maintenance of his relationship with the children.
To limit the possible adverse effects or risk of emotional harm that may arise due to the matters referred to by the mother[21] and the Court Child Expert, there should also be orders restraining the father from:
[21] Affidavit of the mother filed 14 June 2022 at [22] to [25]; Child Impact Report at [15] to [17].
·discussing these proceedings or the parenting dispute with the children; and
·denigrating or insulting the mother; and
·facilitating the provision of information from and to third parties who are involved in the children’s health and education.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 11 July 2022
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