Attwater & Franklin

Case [2021] FamCA 470

FAMILY COURT OF AUSTRALIA

Attwater & Franklin [2021] FamCA 470

File number(s): BRC 11325 of 2014
Judgment of: FOSTER J
Date of judgment: 2 JULY 2021
Catchwords: FAMILY LAW – CHILDREN – Undefended Parenting – where the father is currently in custody – where appropriate the matter proceed on an undefended basis – where consideration of applicable principles – where orders made providing the mother with sole parental responsibility – where orders made for the children to live with the mother – where orders made for the father to be restrained from contacting the mother and children
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN

Family Law Rules 2004 (Cth) rr 11.02, 16.07

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Goode and Goode (2006) FLC 93-286

Jarrah & Fadel [2014] FamCAFC 14

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Niem & Tong [2016] FamCA 1089

Niem & Tong [2018] FamCA 1072

Number of paragraphs: 85
Date of hearing: 15 June 2021
Place: Parramatta
Applicant – self-represented litigant: The Applicant did not attend
Counsel for the Respondent: Ms Knight
Solicitor for the Respondent: Bell Lawyers
Counsel for the Independent Children's Lawyer: Mr Cook
Solicitor for the Independent Children's Lawyer: Mr Ng of Adams & Partners Lawyers

ORDERS

BRC 11325 of 2014
BETWEEN:

MR ATTWATER

Applicant
AND:

MS FRANKLIN

Respondent
AND:

MR NG

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

15 JUNE 2021

UPON NOTING IT IS 10.20 AM AND THERE IS NO APPEARANCE BY OR ON BEHALF OF THE APPLICANT FATHER AND UPON NOTING HE HAS NOT OTHERWISE ENGAGED WITH THE COURT SINCE DECEMBER 2019, THE COURT ORDERS THAT   

1.The father’s Initiating Application filed 12 December 2014 be struck out and dismissed.

2.The mother’s application for final parenting orders as contained in her Response proceed to undefended hearing forthwith.

3.Leave is granted to the parties and the Independent Children’s Lawyer to have access to all documents produced on subpoena by City B Local Court (Sleeve 38) in these proceedings.

4.All previous parenting orders be discharged.

5.The mother have sole parental responsibility for the children, X born … 2007 and Y born … 2009.

6.The children live with the mother.

7.The children spend no time with the father.

8.The children, X born … 2007 and Y born … 2009, are permitted to have an Australian travel document and to travel internationally.

9.The mother may apply for an Australian travel document (passport) for X born … 2007 and Y born … 2009 without first obtaining the consent of the father.

10.Pursuant to Section 68B of the Family Law Act 1975 (“the Act”), the father be restrained by injunction from:

(a)Approaching or coming into contact with the mother;

(b)Approaching the mother’s home, treating health care facility, place of work or study or any other premises that the mother may be from time to time;

(c)Approaching or coming into contact with…

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AGLC
Attwater & Franklin [2021] FamCA 470
Case
[2021] FamCA 470
Decision Date

CaseChat Overview and Summary

In the matter of *Attwater & Franklin*, Foster J of the Federal Circuit and Family Court of Australia considered parenting orders concerning two children. The applicant father, Mr Attwater, had not engaged with the proceedings since December 2019 and failed to appear at the final hearing. The respondent mother, Ms Franklin, sought final parenting orders, with the Independent Children’s Lawyer, Mr Ng, also participating.

The court was required to determine whether it was appropriate to proceed with the parenting proceedings on an undefended basis, given the father's absence and lack of engagement. It also had to consider the applicable principles under the *Family Law Act 1975* (Cth) to make final parenting orders, particularly in light of the father's history of violence and abuse towards the mother and the children, and the children's lack of relationship with him.

Foster J reasoned that the father's prolonged absence and failure to engage with the court since December 2019, coupled with the longstanding nature of the proceedings (over six years) and the father's lack of contact with the children since 2010, justified proceeding on an undefended basis. The court applied the best interests of the children as the paramount consideration, referencing the additional considerations under section 60CC(3) of the *Family Law Act 1975*. The evidence presented detailed a history of significant violence and abuse by the father towards the mother and the children, including physical abuse of the children and pets, and instances of the father taking the children without explanation. The court found that any contact or relationship with the father presented an unacceptable risk to the children and would not be in their best interests.

Consequently, the court made orders discharging all previous parenting orders. The mother was granted sole parental responsibility for the children, and the children were ordered to live with her, with no time to be spent with the father. The father was restrained by injunction from contacting the mother and children, and from approaching their residences or places of care, under section 68B of the *Family Law Act 1975*. The father's initiating application was struck out and dismissed.

Orders

Orders of the court

BRC 11325 of 2014

BETWEEN:

MR ATTWATER

Applicant

AND:

MS FRANKLIN

Respondent

AND:

MR NG

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

15 JUNE 2021

UPON NOTING IT IS 10.20 AM AND THERE IS NO APPEARANCE BY OR ON BEHALF OF THE APPLICANT FATHER AND UPON NOTING HE HAS NOT OTHERWISE ENGAGED WITH THE COURT SINCE DECEMBER 2019, THE COURT ORDERS THAT

1. The father’s Initiating Application filed 12 December 2014 be struck out and dismissed.

2. The mother’s application for final parenting orders as contained in her Response proceed to undefended hearing forthwith.

3. Leave is granted to the parties and the Independent Children’s Lawyer to have access to all documents produced on subpoena by City B Local Court (Sleeve 38) in these proceedings.

4. All previous parenting orders be discharged.

5. The mother have sole parental responsibility for the children, X born … 2007 and Y born … 2009.

6. The children live with the mother.

7. The children spend no time with the father.

8. The children, X born … 2007 and Y born … 2009, are permitted to have an Australian travel document and to travel internationally.

9. The mother may apply for an Australian travel document (passport) for X born … 2007 and Y born … 2009 without first obtaining the consent of the father.

10. Pursuant to Section 68B of the Family Law Act 1975 (“the Act”), the father be restrained by injunction from:

(a) Approaching or coming into contact with the mother;

(b) Approaching the mother’s home, treating health care facility, place of work or study or any other premises that the mother may be from time to time;

(c) Approaching or coming into contact with the children, X born … 2007 and Y born … 2009;

(d) Approaching the children’s home, treating health care facility, place of work or study, if applicable, and any other premises at which the children may be from time to time.

(e) From assaulting, harassing, molesting, intimidating or threatening the mother and/or the children or any other person that the mother and/or children may live with.

11. For the purposes of the previous order, the said Order is made as an injunction in force under s 68B of the Act for the personal protection of the mother and the said children to which the provisions of s 68C of the Act as to arrest without warrant shall apply.

12. Pursuant to section 65DA(2) of the Act, 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” attached hereto and these particulars are included in these orders.

13. The hearing dates of 16, 17 and 18 June 2021 are vacated.

14. All outstanding applications be dismissed.

15. The matter be removed from the active pending cases list.

16. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

17. Reasons for judgment are to be published on a date to be fixed.

THE COURT NOTES THAT

18. In the circumstances of this matter there is no application for costs in relation to this matter.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The father failed to attend the final hearing on 15 June 2021 and has not filed any documents or engaged in the proceedings since December 2019. Having regard to the fact these have been extremely longstanding proceedings which have been ongoing for over six years and given the father has had no contact with the children since 2010 and they are now aged 12 and 13 respectively, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis in the father’s absence on the date it was listed for final hearing. The mother’s evidence The parties’ relationship was characterised by violence and abuse from the commencement of the relationship, with significant abuse being perpetrated by the father towards the mother’s child from a previous relationship, who was aged 10 at the commencement of cohabitation. The father would often shove and push the child from her previous relationship, including on one occasion pushing him through a window. The father would throw objects at the child and belittle him, often including racial taunts. For his protection, the mother sent the child to live with his paternal grandparents until the birth of the parties’ older child. When the parties’ older child was born the father became violent towards the child soon after his birth. When the child was a baby and would cry through the night, the mother alleges the father would scream at the child, shake the bassinette violently and verbally abuse her to attend to the child. The father was frequently violent towards the parties’ pets. This would often include hitting the parties’ dogs with a shovel or stick or kicking them. The mother recounts seeing the father hit the head of a kitten and states that she found one of her cats dead in the driveway on the same day the father confessed to killing a previous partner’s cat. On one occasion the father placed a leash on the parties’ dog and swung him in the air and threw him on a chicken wire fence several times after the father discovered the dog had damaged one of the father’s marijuana plants. This incident occurred in the presence of the children. Prior to separation, the mother fled to a domestic violence refuge with the children on two occasions. The first occasion occurred prior to the birth of the parties’ younger child and at this time the mother spent two weeks at the refuge before returning to the former family home. The mother became pregnant with the parties’ younger child shortly after her return. An incident took place when the parties left the hospital following the birth of the parties’ younger child. The father became enraged when installing a car seat and baby capsule in the parties’ car and as a result the father threw the car seat several metres away. When the parties’ younger child was an infant, following an argument between the parties the father took the children from the former family home and drove off without explanation. The father telephoned the mother the next morning informing her he had taken the children to his uncle’s home because he wanted her to know how it feels. He returned the following evening with the children.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In circumstances where the children have no relationship with the father and any contact or relationship presents an unacceptable risk, it would not be in the best interests of the children for this reason alone and for the reasons discussed below to make any positive order for time between them and the father. The additional considerations: s 60CC(3) Section 60CC(3) sets out the additional considerations:(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;(b) The nature of the relationship of the child with: (i) Each of the child's parents; and (ii)Other persons (including any grandparent or other relative of the child);(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity: (i)To participate in making decisions about major long-term issues in relation to the child; and (ii) To spend time with the child; and (iii) To communicate with the child;(ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; (d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) Either of his or her parents; or (ii)Any other child, or other person (including any grandparent or other relative of the child); (iii) With whom he or she has been living;(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;(f) The capacity of: (i) Each of the child's parents; and (ii)Any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; (h) If the child is an Aboriginal child or a Torres Strait Islander child: (i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii)The likely impact any proposed parenting order under this Part will have on that right; (i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; (j) Any family violence involving the child or a member of the child's family; (k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) The nature of the order; (ii) The circumstances in which the order was made; (iii) Any evidence admitted in proceedings for the order; (iv) Any findings made by the court in, or in proceedings for, the order; (v) Any other relevant matter; (l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and(m) Any other fact or circumstance that the court thinks is relevant.