Badenoch & Faldyn (No 4)
[2022] FedCFamC2F 1407
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Badenoch & Faldyn (No 4) [2022] FedCFamC2F 1407
File number: HBC 184 of 2019 Judgment of: JUDGE TAGLIERI Date of judgment: 19 October 2022 Catchwords: FAMILY LAW – children – interim – application by father for interim orders concerning parental responsibility – where mother and Independent Children’s Lawyer oppose orders sought – where allegations of family violence – where conflict between parents is apparently high - application dismissed Legislation: Division 2 of Part VII of the Family Law Act 1975 (Cth) div 2 pt VII, ss 60CC(2), 60CC(2A), 60CC(3), 61DA Cases cited: Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 18 October 2022 Place: Hobart Counsel for the Applicant: Mr Foster Solicitor for the Applicant: Murdoch Clarke The Respondents: In person Counsel for the Independent Children’s Lawyer: Ms Watson Solicitor for the Independent Children’s Lawyer: Tasmania Legal Aid ORDERS
HBC 184 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BADENOCH
Applicant
AND: MR FALDYN
First Respondent
MS FALDYN
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
19 OCTOBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 22 August 2022 and the Amended Application in a Proceeding filed 1 September 2022 are dismissed.
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 Badenoch & Faldyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment concerns an Application in a Proceeding filed 22 August 2022 and an Amended Application in a Proceeding filed 1 September 2022 made by the First Respondent Mr Faldyn (“the father”). Both applications seek orders relating to parental responsibility pursuant to Division 2 of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
At various stages in the substantive proceedings, the parties have sought property and parenting orders. The substantive proceedings were bifurcated by order made 28 March 2022 and, subsequently, the property proceedings were finalised by consent orders made on 16 May 2022.
The parenting proceedings, which have continued throughout 2022, have been subject to many case management events and interlocutory or interim applications. Notably, I conducted an interim parenting hearing on 26 April 2022 to determine an urgent Application in a Proceeding filed by the father on 21 March 2022 (“interim parenting application”). This application sought urgent removal of the child from the care of the Applicant Ms Badenoch (“the mother”) and other protective orders, but no orders concerning parental responsibility.
I delivered judgment in the interim parenting application on 1 June 2022 (“the interim judgment”),[1] and pursuant to the Court’s orders, the child remained living with and in the mother’s care subject to various orders made and an undertaking given for the child’s protection.
[1] [2022] FedCFamC2F 706.
AMENDED APPLICATION IN A PROCEEDING FILED 1 SEPTEMBER 2022
The Amended Application superseded the earlier application filed 22 August 2022, as I had made remarks about the nature and broad terms of the orders being sought. The father filed the Amended Application thereafter and only pursued it at the hearing on 18 October 2022. It seeks the following orders:
1.If the mother proposes to make a Major Long Term Issue affecting the child, the mother must first notify the father in writing and take no action affecting the child without the father’s written consent. Where the father does not provide written consent the mother must not proceed with the decision affecting the child.
2.In any circumstances where the mother is required to provide information about the child’s parents the other must provide the contact details of the father to the person or body seeking that information.
3.The mother must not write, say, encourage or mislead another person into a belief that the father is prohibited, banned or restricted from participating in Major Long Term Issues affecting the child or in those decisions affecting the child.
4.A Major Long Term Issue affecting the child means (but is not limited to) issues such as
(a)Education.
(b)Health.
(c)Organised sport, social or recreational activities that require formal registration of enrolment to participate.
(d)Changes to living arrangements of the child 7 days or longer.
The First Respondent relied upon his affidavit filed 22 August 2022 in support of his case.
The affidavit was read unopposed and attests to the mother making unilateral decisions about the child’s health and education and, amongst other things, not informing him of proposed decisions and only learning of the decisions from other sources such as the Independent Children’s Lawyer (“the ICL”). Various documents are annexed to the affidavit which tend to support the evidence in his affidavit.
The mother had filed a Response to an Application in a Proceeding on 29 September 2022 seeking dismissal of the Amended Application. She relied on an affidavit which was read unopposed, being that filed 29 September 2022. The mother’s evidence effectively tends to admit unilateral decision making and states:[2]
If matters relating to major long-term issues for [the child] could not be dealt with except with [the father]’s consent then no steps could be taken and her welfare would be harmed. [The father] is hyper-critical of everything I do and seeks opportunities for disputation with me.
[2] Affidavit of the mother filed 29 September 2022 at [3].
The mother further states that the father has committed family violence towards her and that the father continues to deny that he has done so. Further, she provides considerable information to the father through the ICL about matters relating to the welfare of the child. Finally, she states that she objects to giving health providers and schools the father’s contact details because if this occurred they would be barraged with demands and criticism. The mother states she will be seeking an order for sole parental responsibility at the final hearing.
PARTIES’ SUBMISSIONS
The First Respondent made very forceful submissions, the clear effect of which were that:
·there is a presumption of equal shared parental responsibility at law;[3]
·no order has been made to the contrary; and
·the mother’s persistent conduct is deliberately alienating him from decisions concerning the child’s issues and amounts to parental genocide.
[3] Section 61DA of the Act.
Accordingly, the father contends that the orders must be made to put a stop to the continuation of the “parental genocide”.
Counsel for the mother submitted that there was no basis for making any order about interim parental responsibility, that the Amended Application should be dismissed, and the question of what orders about parental responsibility should be made deferred to the final hearing when all evidence would be tested. He referred to very serious allegations of family violence against the father and that the Court should not speculate about the veracity of the allegations and competing claims.
The Second Respondent Ms Faldyn (“the paternal grandmother”) had not filed any evidence upon which she relied. She generally supported the submissions by the father that the paternal side of the child’s family was being excluded from the child’s life. This, she submitted, is evident from the non-compliance with orders made by the Court that the mother facilitate telephone communications between the child and paternal grandmother.
The ICL did not rely on any evidence. She made the following submissions:
·That the presumption of equal shared parental responsibility did not apply because of undisputed convictions against the father for sexual assault and family violence;
·That the father has not been involved in the child’s life and there is little evidence of his involvement in decision making about major and long term issues which have been made by the mother, with whom the child has lived for some years; and
·Referring to the decision making pathway in Goode & Goode [2006] FamCA 1346, the ICL submitted that there should be no orders about parental responsibility until the final hearing was conducted.
In reply submission, the father took strong objection to the submissions by the ICL. He stated that he disputed that he had convictions and committed family violence. Accordingly, he said that the presumption of equal shared parental responsibility was not rebutted. He submitted that the history between he and the mother was “irrelevant” and he had no desire to communicate with her. In addition, he repeated submissions about the mother’s alienation of him from the child and the paternal grandmother.
LEGAL PRINCIPLES – INTERIM PARENTING
The decision making pathway referred to in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 applies in this case. In summary, 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 child.
The orders to be made upon the Amended Application, in my view, must focus on an evaluation of the considerations in s 60CC(2) of the Act as directed by s 60CC(2A) of the Act. Further, multi-levelled evaluations of many other considerations, some of which are inter-related must be assessed on a discretionary basis according to evidence not yet tested, while following the required decision making pathway.
The risk assessment involved at the focussed level of considering sections 60CC(2) and 60CC(2A) of the Act, concern the respective proposals and various alleged risks to the wellbeing of the child said to attach to each proposal.[4] This risk assessment is not in a vacuum, but should also involve discretionary attention to all considerations in section 60CC(3) of the Act.
[4] Deiter & Deiter [2011] FAMCAFC 82; Marvel & Marvel [2010] FamCAFC 101.
EVALUATION AND DETERMINATION
There are undisputed or non-contentious facts in these parenting proceedings. They are referred to in the interim judgment.[5] They are relevant in my view to the assessment of whether any interim orders connected to parental responsibility should be made. Because of the particular nature of the orders sought by the father, the evidence relied by the parties in the affidavits read at the hearing on 18 October 2022 are highly relevant.
[5] At [39].
The latter evidence establishes that the mother has made and is making major and long term decisions for the child without consulting with the father. The merits of the reasons for this is in dispute. The father says it is because the mother is engaging in concerted conduct to alienate him and his family without legitimate cause. Conversely, the mother says it is necessary to ensure decisions are made for the child and to avoid conflict for her and third party health and education providers.
It also is apparent from the parties’ respective evidence that some information is provided to the father about decisions taken regarding parental responsibility, but only after the event.
It is not possible for the Court to make findings about the merits of the causes for excluding the father from decision making and whether it is justified, given the state of the untested evidence.
Notably, these proceedings have been on foot since 2019 and neither party has before now sought an interim order about parental responsibility.
I had listed the proceedings for final defended hearing in the week of 28 November 2022. It is now likely to occur in late March 2023 as the parties all pressed for the proceedings to be transferred to Division 1 of the Court and I made such an order on 18 October 2022.
It is impossible to assess which of the contentions are true and correct on the state of the untested evidence before me and what is not in dispute based on the reasons I gave in the interim judgment of 1 June 2022. However, it is my very distinct and strong impression from the undisputed facts referred to above and their conduct of the proceedings,[6] the parties have a completely dysfunctional and uncooperative relationship and have not co-parented at all since at least when the mother came to Tasmania in 2019.
[6] As evident from the court record.
I do not consider it to be in the best interests of the child to make the orders sought by the father on the Amended Application. It can readily be predicted from the history of the proceedings on the court record and the undisputed facts or non-contentious evidence, that it would likely lead to further conflict and dispute to which the child will be exposed.
Noting the risk of emotional harm this poses for the child and noting her already vulnerable mental health condition, I must prioritise the protection of the child from risk of further emotional harm above promotion of her relationship with the father at this stage.
If it transpires that the father’s contentions at [10] and [11] of these reasons are established on the balance of probabilities at final hearing, then that will be reflected in the final orders the Court then makes.
Furthermore, because the child has lived with the mother since at least 2019 and that the mother has exercised parental responsibility solely, with the father only now seeking to do so, I consider the status quo should remain as it is until the Court has fully investigated the competing evidence and contentions at final hearing.
For the foregoing reasons, the Application in a Proceeding and Amended Application in a Proceeding are dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 19 October 2022
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