BALLAN & SANDFORD

[2018] FCCA 2436

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALLAN & SANDFORD [2018] FCCA 2436

Catchwords:
FAMILY LAW – Application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) to set aside parenting orders made in the absence of the Mother – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.16.05

Cases cited:

Clifford & Mountford [2006] 219 FLR 437

Applicant: MR BALLAN

Respondent: MS SANDFORD

File Number: DNC 445 of 2012

Judgment of: Judge Altobelli

Hearing date: 8 August 2018

Date of Last Submission: 8 August 2018

Delivered at: Sydney

Delivered on: 13 September 2018

REPRESENTATION

Solicitors for the Applicant: Carter Ferguson Solicitors and Attorneys

Counsel for the Respondent: Mr Selfridge

Solicitors for the Respondent:	O'Neill Family Law
Solicitors for the Independent Children's Lawyer:	Acorn Lawyers

ORDERS

1. The Application filed by Ms Sandford on 20 July 2018 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ballan & Sandford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

DNC 445 of 2012

MR BALLAN

Applicant

And

MS SANDFORD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These Reasons for Judgment explain why the Court has dismissed the Mother’s Application filed 20 July 2018.

Background

1. By way of an Application filed 20 July 2018 the Applicant, the Mother in this case, asked the Court to make certain orders in relation to her son [X], born 2009. The Respondent to the Application is [X]’s Father. The Application itself seeks orders discharging Orders made on 20 June 2018 on an undefended basis. Assuming that such order was granted, the Mother proposes an order that [X] live with her, and that she have sole parental responsibility in relation to her son. [X] would then spend time with his Father as agreed between the parents. The Mother also sought a recovery order. In addition, all of these orders were sought on an ex-parte basis.

2. The Father’s Response was filed 7 August 2018. He sought that the Mother’s Application be dismissed.

3. The matter came before me on 8 August 2018. Mr De Jonge, Solicitor, appeared on behalf of the Mother. Mr Selfridge of counsel appeared on behalf of the Father, and Mr Williamson as the Independent children’s lawyer. 

4. Despite the form of the Mother’s Application, her Solicitor explained that it was, in effect, an application under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth). Mr De Jonge explained that, in effect, the Mother’s case was based on the lack of procedural fairness that was extended to her, in making the Orders of 20 June 2018.

5. Despite the unusual form of the orders sought on behalf of the Mother, the Court was prepared to treat the Application as being, in substance, an application under rule 16.05. No prejudice was caused to the other parties as a result of doing so.

6. Before setting out the further background in this case, it is important to record that the Court extended to the Applicant Mother, and to her Solicitor, the opportunity to make an application to adjourn the proceedings in circumstances where it seemed to the Court that the evidence in support of the Mother’s case, her Affidavit filed 20 July 2018, may not have been adequate. In fact, the Court strongly hinted to the Mother, through her Solicitor, that she should consider making an application for an adjournment, but this was declined. The Court was, therefore, left to deal with this Application on the basis of the evidence filed, which will be discussed below. The only evidence filed in the Father’s case was his Affidavit filed 7 August 2018.

7. There is, of course, much further background material that needs to be understood.

8. On 20 June 2018 the Court made Orders which are reproduced in the first schedule to these Reasons for Judgment. In particular, and by consent as between the Father and the Independent Children’s Lawyer, Final Orders were made for equal shared parental responsibility in relation to [X], for [X] to live with the Father and spend time with the Mother for six weeks during school holiday periods in New South Wales. A Recovery Order was also made. The Mother and [X] had, hitherto, lived in New South Wales, and the Father in Queensland.

9. These Orders note that there was no appearance by or on behalf of the Mother when the matter was called at 4:00pm on that date.

10. On 31 May 2018, the Court made the Order setting the matter down for Mention or Undefended Hearing at 4:00pm on 20 June 2018, with the Hearing to take place by way of a Genesis Teleconference. There was no appearance by or on behalf of the Mother when the matter was called. Indeed, the Court noted that there had been no appearance on behalf of the Mother when the matter was listed on 30 April 2018, and that it remained unclear whether the Mother had accessed the Family Report. In addition, a direction was made that the Independent Children’s Lawyer notify the Mother of the Orders made today and the likely consequences to her of non-attendance, including that the matter may proceed on an undefended basis and Orders be made in accordance with the Respondent’s Application.

11. On 30 April 2018, the Mother, once again, failed to appear. The Court released the Family Report prepared by Family Consultant Ms O dated 10 April 2018 to the Independent Children’s Lawyer, to the Respondent Father and his legal representative, and to the Mother, but on conditions that she contact my Associate to obtain a copy of the Report in person, and at the same time as collecting the Report, that the Mother meet with the lawyer from the Family Assistance Service at the Wollongong Registry. The Mother was, of course, representing herself in the proceedings. The Family Report will be discussed in greater detail below.

12. The Court had in fact made Chambers Orders on 12 April 2018, once it received Ms O’s Family Report. That Order released the Report to the Independent Children’s Lawyer only.

13. The preceding court event occurred on 11 April 2017 when the Court made Orders for the preparation of a Family Report. There was no attendance by or on behalf of the Applicant Mother on this occasion. The matter was actually adjourned to 23 April 2018, and the parents directed to attend in person if the Report was available. The Court notes that this date was, in fact, adjourned to 30 April, with my Chambers notifying the parties of this change of date. In any event, in the Order of 11 April 2017, the matter was set down for a 2 day Final Hearing commencing 12 July 2018. One of the notations to this Order was in the following terms:-

    D. The Father’s solicitor has expressed concerns to the Court about the Mother’s inconsistent participation in these proceedings and that she might thwart the order for the Family Report by not attending the report interviews. Should the Mother fail to comply with any reasonable requests to participate in the report interviews the matter may proceed on an undefended basis.

14. As it turns out, the Mother did, in fact, attend the family report interviews, which certainly reflects her knowledge of the same.

15. The Order preceding the above Order is dated 13 December 2016. On this occasion, the Applicant Mother attended in person and a number of Orders were made. The Court noted that arrangements had been made for [X] to travel to Brisbane to spend time with the Father on 18 December 2016.

16. It is important to note that the only appearance by the Applicant Mother in this Court between 13 December 2016, and 20 June 2018, was on 13 December 2016.

17. Looking back further into the history of this matter, there was no appearance by the Mother on 16 November 2016, 21 October 2016, but the Mother did appear in person on 16 September 2016. There was no appearance by the Mother on 2 September 2016, but she did appear by telephone on 18 July 2016.

18. What the Court will describe as the original Orders of the Court are dated 12 June 2013. These Consent Orders provide for equal shared parental responsibility, for [X] to live with the Mother, and to spend time with the Father during school holidays.

19. This rather lengthy, but necessary, history of the matter clearly demonstrates the Mother’s rather selective participation in these proceedings.

The applicable law

1. This is an application under rule 16.05 Federal Circuit Court Rules, which states:-

   16.05  Setting aside or varying judgments or orders

   (1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.

   (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

   (a) it was made in the absence of a party; or

   (b) it was obtained by fraud; or

   (c) it is interlocutory; or

   (d) it is an injunction or for the appointment of a receiver; or

   (e) it does not reflect the intention of the Court; or

   (f) the party in whose favour it was made consents; or

   (g) there is a clerical mistake in the judgment or order; or

   (h) there is an error arising in the judgment or order from an accidental slip or omission.

   (3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.

2. In Clifford & Mountford [2006] 219 FLR 437 the Court discusses the relevant law:-

   [19] In this passage Kirby J emphasises that it is critically important for Courts to provide the opportunity to litigants to participate in litigation. Whether litigants take this opportunity or not is their decision, and this decision may be influenced by a range of factors such as those identified in the passage extracted above. As Kirby J also observes, the rights of other parties are commonly involved - such as the Applicant. In addition, he refers to the rights of non-parties which, in this case could embrace not just the public, but all other litigants before this Court.

   …

   [78] Kirby J referred to a number of possible explanations why litigants do not take the opportunity given to them to be heard:

   Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.

   [79] Kirby J may well have added ambivalence, indifference or insouciance. The Court does not accept that there is any evidence before it that the Respondents were reasonably confused or had reasonably misunderstood what was required of them. The Second Respondent acted unwisely in accepting the advice of Ms Zhang from Minter Ellison. The Court does not accept Mr Jiang's evidence that he then checked this advice elsewhere  The Court concludes, moreover, that it was not reasonable for Mr Jiang to have relied on Ms Zhang’s advice.

   …

   [90] The Court finds persuasive the observations made by Mason ACJ, Wilson and Brennan JJ in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 (at 3):

   The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution.  Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.

The Family Report

1. Ms O’s Family Report is dated 10 April 2018 and was based on interviews that occurred in person on 27 February 2018. Both parents attended, as did [X]. The Family Report was tendered in evidence on 20 June 2018 when the Court made the Orders against the Mother, on an undefended basis. It was also relied on by the Mother’s Solicitor in the course of the Mother’s Application.

2. The recommendations are found at paragraphs 69 to 74 and are in the following terms:-

   [69] Unless the evidentiary material should indicate otherwise;

   [70] It is recommended that a mental health assessment of Ms Sandford be prioritised by the Court

   [71] It is recommended that [X] be referred to the Anchor program and both parents complete a parenting after separation program such as the Parenting Orders Program offered by Relationships Australia, or similar program offered at Uniting Care.

   [72] It is recommended that, once Mr Ballan relocates to Canberra, that he spend time with [X] every second weekend from Friday to Sunday and half of holidays

   [73] Should the Court find that [X] is at significant risk of harm in the care of his mother it is recommended that he live with his father. The Court would need to weigh up the benefits of this for [X] as a longer term option

   [74] Should the Court find that [X] is at no risk or minimal risk in his mother’s care, he should continue to live with his mother. It is recommended that Ms Sandford continue to engage with Anglicare and undertake individual counselling.

3. The concerns about the Mother’s mental health are explained earlier in the Family Report. For example, at paragraph 59 to 61:-

   [59] Concerns have been raised in relation to Ms Sandford’s continuing capacity to care for [X]. These concerns centre on her ability to provide a stable and safe environment for him, to ensure his basic needs are met and that he attends school regularly. There are also concerns raised about her ability to provide a stable emotional climate for [X], to protect him from volatility and negativity about his father and to shield him from the parental conflict and adult issues. Mr Ballan and Ms L suggest that Ms Sandford has behaved in an erratic manner characteristic of an underlying personality disorder. There is no independent evidence to suggest that Ms Sandford has been diagnosed with a serious mental illness or disorder and no evidence available about any current child protection concerns or involvement. As recommended at the time of the CIC, a mental health assessment would assist the Court.

   [60] Ms Sandford denies that [X] is at any risk in her care or that, apart from reactive depression, she has any mental health concerns. There appears to be some evidence to support Mr Ballan’s concerns, given her labile presentation in the CIC coupled with some reference in the subpoena material to her behaving in a reactive, erratic or aggressive manner at times. The subpoena information from NSW Police and NSW Health, coupled with information from [X]’s school, raise serious concern.  Ms Sandford also appears to have little local support and to be somewhat socially isolated. When Ms Sandford was at hospital in 2017, the records reference her concern that there may not be anyone appropriate to care for [X] for her and on the day of Report interviews she did not have support available to supervise [X] during her interview. The reports that [X] may have acted as a carer for his mother during periods of her illness is also troubling. It would appear that Ms Sandford may strongly benefit from engaging in family support services, perhaps Anglicare may be able to offer such assistance.

   [61] Ms Sandford argues that she is doing her best in parenting [X], but is undermined and exhausted by Mr Ballan causing difficulty for her. She spoke of the challenges of single parenthood coupled with ongoing disputes with Mr Ballan and the ongoing Court dispute.

4. In addition, paragraph 65 is relevant to the concerns the Court had about the Mother at the time the Orders were made:

   If Mr Ballan’s account is accurate and Ms Sandford has perpetrated family violence in their relationship and she does have underlying mood regulation and personality disturbance, then [X] may be at some risk of emotional, if not physical, harm. Some of Ms Sandford’s past behaviour raises serious concern, including her actions at the time of the CIC in reporting [X] missing to the police, her reaction and statements at Centrelink and her reaction to the school recently when [X] was taken by his father to a wedding. It seems that Ms Sandford may have behaved in uncontained and verbally abusive manner in various contexts. Her capacity to be a mindful and sensitive parent and to contain her own reactions and prioritise [X]’s needs may be compromised. The risk is that [X] may become increasingly vigilant of his mother’s mood and behaviour and adjust his own reactions to avoid conflict/upset, including there being some impact on his interactions with his father. This may become increasingly difficult as [X] enters adolescence. There is also concern at the focus on [X]’s education given the pattern of lateness and absence and inattention to any home reading or homework.

5. Interestingly, no party asked the Court to provide a transcript of the ex tempore Reasons given on 20 June 2018. It might have been wise for the Mother to have done so. At least, she might have understood why the Court made the Orders that it did in circumstances where the Family Report nonetheless also very carefully, and in a balanced manner explained the benefits to [X] of remaining in his Mother’s care.

Relevant Principles

1. The Court clearly has a discretion in a rule 16.05 Application, but a discretion that must be exercised judicially and bearing in mind the public interest in there being an end to litigation. In this case, the litigation was brought to an end after nearly two years of litigation. The prior litigation between the parents which resulted in the making of Consent Orders on 12 June 2013 in fact commenced in 2012. A not inconsiderable part of [X]’s life has involved him being the centre of the litigation between his parents. It is both in the public interest, and in [X]’s interest, that the litigation be brought to an end, subject, of course, to the Orders being in his best interests. The Mother has been a party to proceedings relating to her son for over two years now, with an attendance and participation rate that is hardly acceptable. She was both Applicant, and Respondent, in these proceedings. It is hardly in the public interest to accord a litigant who appears to choose, selectively, whether and if so when she participates in a court case to which she is a party, the privilege to then seek to reopen proceedings that were concluded because she did not attend.

2. The Applicant was required to demonstrate to the Court that she had a reasonable explanation for her absence at the Hearing. Her evidence about this is found at paragraphs 25 to 33 of her Affidavit filed 20 July 2018. The Mother explains that she was representing herself in the proceedings. She found it difficult. She sought counselling, but provides no detail as to dates. She asserts that she felt overwhelmed by the process.

3. She was aware of the listing of the matter on 30 April 2018. She explains that her son [X] was ill (but provides no corroborating evidence in this regard) and that she could not obtain a substitute carer. She attaches an email she sent to my Associate on 29 April 2018 at 21:32. The email states, in its body: 

   Due to unforseen circumstances I am requesting and adjournment at 9.30 am 30th April for the matter between Ms Sandford and Mr Ballan. Any queries please contact me on.

4. She attaches the autoreply from my Chambers dated 29 April 2018 at 9.32pm which reminds her, amongst other things that it is not appropriate for any party or legal practitioner to contact a Judge in Chambers unilaterally. The Court notes that the Order made on 30 April 2018 dealt with the release of the Family Report.

5. The Mother deposes to receiving an email and attached letter from the Court dated 4 May 2018. The letter was sent to her email address. The letter is entitled ‘IMPORTANT NOTICE – CALLOVER’, and refers to a callover of cases listed for June 2018. She explains that she did not understand that a callover was important and did not recognise that she had to attend at the Court on this occasion. It is very difficult to accept this. The title to the letter was self-explanatory. The last paragraph of the letter on page 1 states: -

   Practitioners and parties are required to attend the callover. Failure to attend Court may result in orders being made in your absence including matters being struck out or otherwise dismissed.

6. The Mother deposes to receiving a letter from the Father’s Solicitors dated 16 May 2018, again advising of the callover on 4 June 2018. She explains that she was “not familiar with legal terminology and had to do an internet Google search.” She asserts she also contacted “either the officer of the Independent Children’s Lawyer, or the court to try to obtain further information.” She says that she spoke with a female person;

   …who advised me that a Call over was a quick process and although I do not remember the exact wording of the conversation I was under the impression that I did not have to attend the Call over, as it was a brief mention for the next court hearing.

   Even if the Court accepts what the Mother contends, despite its lack of plausibility, it does not detract from the very clear terms of the letter from the Court explaining the importance of the event, and the necessity for her to attend. Moreover, the letter from the Father’s Solicitors was consistent with this importance.

1. The Mother deposes to being aware of the original Hearing date as being 12 July 2018, as she was copied into an email that was sent to the Court by the Independent Children’s Lawyer on 13 April 2018. She explains that she was mistaken in not knowing that there were appearances before the Court prior to this time which may lead to the matter being finalised prior to the Hearing date. She was under the impression that the Hearing on 12 July 2018 would proceed regardless of anything that occurred prior to that date.

2. Of course, from the Court’s perspective, by 31 May 2017 it was clear that the Mother had not attended on several occasions, nor had she obtained the copy of the Report that was released to her on 30 April 2018. It is hardly surprising that, from the Court’s perspective, let alone the Father and Independent Children’s Lawyer’s perspective, the Final Hearing be avoided.

3. The effect of the Mother’s evidence is that, because she didn’t attend on 30 April 2018, she was unaware of the adjournment to 31 May 2018 and thus unaware of the listing of the matter for Undefended Hearing on 20 June 2018. 

4. A significant problem for the Mother, however, is the correspondence from the Independent Children’s Lawyer to her which was tendered at the Hearing of her Application. The first letter from the Independent Children’s Lawyer is dated 2 May 2018, and reports about what happened in Court on 30 April 2018. Specifically, it refers to the release of the Family Report and how, exactly, the Mother might gain access to it. It specifically refers to the Mention on 31 May 2018 and states: “..at which time Orders might be made in your absence in the event that you do not appear.” The Independent Children’s Lawyer goes even further, however, in his closing paragraph urging the Mother to ring him to discuss the matter, and once again reiterating that Orders would be made if she did not appear on the next occasion.

5. This was followed up with a letter dated 31 May 2018 reporting on what happened in Court that day when the Mother again did not appear. The Independent Children’s Lawyer correctly advised the Mother that, in fact, she could attend the court event on 31 May 2018 by telephone and, indeed, the Order in question provides the dial-in details. Once again, there is a clear warning that if she did not attend, Orders would be made in her absence.

6. In the Mother’s Affidavit she does not depose, for example, to not receiving mail at her address which, on the Court’s record, is (omitted). That is the address she gives in her Affidavit. That is the address to which the Independent Children’s Lawyer forwarded the correspondence.

7. During submissions on the Mother’s behalf, her Solicitor was instructed to convey to the Court his client’s instructions that she had not received the correspondence in question. This evidence is implausible. If the Mother’s non-attendance to court events were merely one or two occasions, the Court might be prepared to extend to the Mother the benefit of the doubt. The facts are, however, that the Mother did not attend her court case once from December 2016.

8. The totality of the evidence leads the Court to conclude that the Applicant has not discharged the onus on her of providing a reasonable explanation for her absence at the Hearing.

9. The Mother must also establish that she has material arguments that might reasonably lead to the making of an order different to that sought to be set aside. The Mother’s proposal was that she have sole parental responsibility for [X], that he live with her, and spend time with the Father “as agreed between the mother and the father.”  With great respect to the Mother and those representing her, given her own case, it is inconceivable that the Court would make an order that left it to the parents to agree when the Father spend time with [X].

10. The Mother’s own case, reflected in her Affidavit filed 20 July 2018 was that she was the primary carer for [X] in a relationship that was characterised by violence, abuse, control, alcohol consumption by the Father, and concerns about the Father’s mental health.

11. Notwithstanding this, on 12 June 2013 the Mother consented to an Order for equal shared parental responsibility, for [X] to live with her and to spend time with the Father during school holidays, including for four weeks over the Christmas school holidays.

12. It is very hard to discern, therefore, what arguments she might make that would reasonably lead to the Court to make the Order that she seeks in her Application. The Court concedes, however, that the issue may be framed more broadly, i.e., that the Court might be reasonably led to making an order different to that sought to be set aside.

13. The problem for the Mother in this regard, however, is the Family Report of Ms O, dated 10 April 2018, which was in evidence before the Court when it made Orders on 20 June 2018 and, indeed, substantially informed those Orders. There is no doubt that the Mother had access to this Report, because she, through her Solicitor, made reference to it in submissions. It is important to note that both parents made serious allegations against the other. This was acknowledged by the Family Consultant in the Family Report. Thus, she observed, both parents alleged that the other perpetrated significant family violence. Both parents raised concerns about the other’s capacity to adequately care for [X]. The Father raised issues about the Mother’s mental health, including mood, instability and anger. The Family Consultant’s approach to the Report was balanced, and comprehensive.

14. One would have thought, again, with great respect to the Mother and those representing her, that they would have made some attempt to deal with the quite serious concerns raised by the Family Consultant surrounding the Mother’s mental health, and capacity for [X]. Instead, these concerns were merely glossed over. There was no attempt to provide any reassurance to the Court about the concerns addressed by the Family Consultant.

15. The Court concludes, therefore, that the Applicant has not satisfied the Court that she has material arguments available to her that might reasonably lead to the making of an order different to that sought to be set aside. The fact is that the Order was made in the Mother’s absence, but was nonetheless an Order that the Court considered to be in the best interests of [X]. The Mother has not established in the evidence that she has filed that the Orders she proposes are in [X]’s best interests.

16. Another principle is that there is no prejudice to the Father, who enjoys the benefit of these Orders, that is not able to be adequately addressed by the Court. The Father addresses this in his Affidavit filed 7 August 2018. He refers, for example, to the long history of proceedings between the parents. Thus, the prejudice of re-litigation would be experienced not just by himself, but by [X] as well. He deposes to [X] having settled in to life with the Father, and at a new school. He withdrew his Contravention Application on 20 June 2018, on the basis that the making of the Orders would finalise the litigation.

17. Whilst the Father’s evidence, and the submissions made on his behalf, satisfy the Court that he would suffer prejudice if the Orders were set aside, the Court is not convinced that such prejudice could not adequately be addressed in some fashion. His Contravention Application, for example, could be reinstated. An order for costs might be made, albeit the Court knows very little about the Mother’s financial circumstances. The case could be reopened, albeit on the basis that [X] continues to live with him pending the determination of the case. The Court acknowledges that it is perhaps being optimistic in this regard, and assumes that the Mother would engage in fresh litigation notwithstanding her established track record of non-participation.

18. The Court is satisfied that the Application under rule 16.05 was brought without delay. However, the strong inference that can be drawn from the facts as they appear before the Court is that the Mother had multiple opportunities to appear and participate in the proceedings, but chose, for whatever reason, not to do so.

19. The Solicitor for the Mother urged the Court to, at the very least, consider the best interests of [X] in making a decision under rule 16.05. There are still formidable obstacles for the Mother, accepting the legitimacy of the submission that is made on her behalf. Firstly, and foremost, the Order that was made and which is sought to be set aside, was an order that was made because it was considered to be in the best interests of [X]. Moreover, the Order that is sought to be set aside continues to be one that is in the best interests of [X], even having regard to the further evidence the Mother has filed.

20. When the Mother’s recent Affidavit is taken into account, together with the totality of the material before the Court, particularly the Family Report, but also the previous material that has been filed, the following impression is created. The Mother has struggled to recognise the benefits to [X] of having a meaningful relationship with his Father. The Mother has struggled to accept that [X]’s Father is an important person in his life, and that [X] will benefit from his Father’s involvement in his life. Whilst the Mother raises issues about risk of harm in the Father’s care, she missed the opportunity of a hearing to be able to actually prove her concerns.  Moreover, the Family Report in fact raises quite serious issues about risk of harm in the Mother’s household. [X] was observed to have a good relationship with his Father. Paragraph 51 of the Family Report records as follows:-

    [X] had elected to be observed first with his father, explaining that he had not seen Mr Ballan since the last school holidays. [X] and Mr Ballan greeted one another affectionately and [X] appeared excited to see his father, embracing him. [X] led his father into the play room and showed him the sand tray he had set out with the writer earlier. [X] appeared animated and excited, calling his father’s attention to things, saying “Hey Dad! Guess what?” and demonstrating things “I can do that now you know?” Mr Ballan was good humoured and encouraging and [X] appeared excited, smiling and jumping up and down at times. Mr Ballan expressed interest in other play activities and suggested a game of Connect Four. [x] lost interest in the game after his father won two rounds and they then returned to sand play. Mr Ballan took the lead, made suggestions and organised the play, dividing responsibilities between them and [X] made a number of creative and imaginative suggestions to the play which Mr Ballan accepted. [X] and Mr Ballan worked cooperatively and remained in close proximity throughout the play.

21. The Court accepts that the Orders that it made brought about a significant change in [X]’s circumstances, both physical and emotional. It was convinced at the time, and remains convinced, that there were issues of concern in the Mother’s household which, coupled with her non-participation in the proceedings, warranted the reversal of a longstanding care arrangement. To make that change, again, as the Mother proposes, is not something the Court would consider in the absence of clear reassuring evidence from the Mother that the concerns so clearly articulated by the Family Consultant have no basis, or have been, addressed. The Court is thus not convinced that it is in [X]’s best interests to revisit the Order it has made.

Conclusion

1. It must follow from the above that the Mother’s Application filed 20 July 2018 be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:13 September 2018

Schedule One

FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA FILE NO: (P)DNC445/2012

BETWEEN:  
  MS SANDFORD  (Applicant)

AND:  
  MR BALLAN  (Respondent)

AND:
  INDEPENDENT CHILDREN’S LAWYER

BEFORE:  JUDGE ALTOBELLI

DATE:  20 June 2018

MADE AT:  SYDNEY

UPON APPLICATION MADE TO THE COURT by Mr O’Neill by telephone for the Respondent, Mr Williamson by telephone for the Independent Children’s Lawyer, with there being no appearance by or on behalf of the Applicant.

THE COURT ORDERS THAT:

1. The Application Contravention filed 13 July 2016 be withdrawn and dismissed.
2. Pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the Child [X] born 2009 and to deliver the said Child to the Respondent Father and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said Child may be found.
3. The Recovery Order at Order 2 above, lie in the Registry until notification from the Respondent Father’s solicitor on 26 June 2018 that the Father has returned to Australia.
4. By consent as between the Respondent Father and the Independent Children’s Lawyer, Orders be made in accordance with the document marked “A” dated this day 20 June 2018 and attached hereto.
5. The Solicitor for the Respondent is to forward an electronic typescript of the document marked “A” to the Court within seven (7) days.
6. Within 7 days, the Solicitor for the Respondent is to notify the Applicant Mother of the Orders made today.
7. Liberty is granted to the Independent Children’s Lawyer and the Respondent to re-list the matter on 48 hours notice by joint application to the Court in Chambers in appropriate circumstances.
8. The hearing dates of 12-13 July 2018 are vacated.

THE COURT NOTES THAT:

1. There was no appearance by or on behalf of the Applicant Mother when the matter was called at 4:00pm.
2. These orders are made in the absence of the Applicant Mother and she is at liberty to make such application as she may be advised pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001.
3. The Court has been informed that the subpoena material is currently located in the Brisbane Registry and is to be returned to the Wollongong Registry.

FINAL ORDERS

PARENTAL RESPONSIBILITY

1. That the mother and the father have equal shared parental responsibility for the child [X] born 2009 (“the child”) and they shall consult with each other about all matters concerning the child’s long-term care, welfare and development including but not limited to matters concerning:

1. Health and medical needs;
2. Education including selection of the schools the child is to attend;
3. Religion; and
4. Living arrangements in terms of any changes thereto that would be significantly more difficult for the child to spend time with the other parent.

2. The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

a.Each shall inform the other parent about the decision/s proposed to be made;

b.Each shall consult with the other with the view to reaching terms upon which they may agree; and

c.Each make a genuine effort to come to a joint decision with the other parent.

3. Notwithstanding the provisions of the above orders:

d.The father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with him; and

e.The mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with her.

4. In the event that an agreement is not reached in relation to any matter concerning the child, the parents shall take all reasonable steps to participate in either mediation or a Family Dispute Resolution Conference to attempt to resolve the matter prior to any application being made to a Court having jurisdiction in these matters.

LIVING ARRANGEMENTS

5. That the child live with father.
6. That the child spend time with the mother for six (6) weeks of the NSW school holidays per year as agreed upon in writing by both parents no later than 31^st January each year for the following twelve (12) months and failing agreement as follows:

1. for the first (4) weeks of the Christmas holidays in odd numbered years;
2. for the last (4) weeks of the Christmas holidays in even numbered years;
3. for the entirety of the June/July NSW school holidays; and

7. That providing the mother lives within a three (3) hour drive from the father’s residence, then on every second (2nd) weekend from Friday 6:00pm to Sunday 6:00pm in the school term.
8. For the purpose of the child spending time with the mother in accordance with Orders 6 and 7 herein:

a.Flights are to be booked to the closest capital city to the parent about to spend time with the child and are to arrive between 7am to 7pm;

b.The parent putting the child on the flight will be responsible for booking and paying for that flight;

c.Flight details are to be provided to the other party at least twenty-one (21) days prior to travel with flights only to be changed by the party who made the booking; and

d.If the parents are living within a three (3) hour drive of each other, the child is to be handed over at an easily identifiable public location halfway between each parent’s residential address.

9. That each parent ensure that the child has his own bedroom unless sharing with immediate family.

COMMUNICATION

10. That the father and the mother shall:
1. make the child available to communicate via telephone with the other parent in the evening at least three (3) days a week;
2. ensure that the telephone communication is to be uninterrupted and in a private area where the parent the child is spending time with is unable to hear the conversation;
3. ensure the child is available to speak with his grandparents every second (2^nd) and fourth (4^th) Sunday afternoon of the month; and
4. not repeatedly call the other parent.

EXCHANGE OF INFORMATION

11. That the father and the mother shall:

a.keep the other parent informed at all times of their residential address, landline and mobile telephone numbers, and email addresses;

b.keep the other parent informed at all times as to any third-party person that regularly resides at their residential address;

c.keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and

d.inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.

12.The parents shall communicate by way of email or text messages.

13. This Order is an authority for the mother and father to obtain information from any treating medical practitioner, hospital and/or health care professional concerning the health of the child.

INTERNATIONAL TRAVEL

14. That either parent shall be permitted to take the child out of Australia provided the following conditions are met:

a.   that the travelling parent provide the non-travelling parent with a written itinerary sixty (60) days prior to travel including dates of travel, countries and cities where the child will be staying overnight, accommodation details and emergency contact details for each location;

b.   that the travelling parent provide the non-travelling parent with proof of travel insurance for the child; and

c.   that the travel does not impact on the non-travelling parent spending time with the child in accordance with Orders 6 and 7 herein.

15. That the parent in possession of the child’s passport is to provide it to the travelling parent within twenty-one (21) days of being provided proof that it is required.
16. That if the child’s passport is lost, the parent who had it in their possession will be responsible for meeting all costs of its replacement.

EDUCATION

17. That both parents are to be included on any enrolments and be made a point of contact for the educational institution.
18. That each parent keep the other parent informed of any school or extracurricular activities which the child is involved in or which the other parent may wish to attend.
19. That the parent the child is living with predominantly through the school term be responsible for meeting any requirements of the educational institution such as books and stationary.
20. That the parent the child is living with predominantly through the school term be responsible for ensuring that the child has an appropriate device when the educational institution has a ‘Bring Your Own Device’ (‘BYOD’) policy.
21. That each parent be a liberty to contact the educational institution the child attends, without needing to notify the other parent.
22. That the parent the child is living with ensure that the other parent receives copies of any school reports or school photographs within seven (7) days of receiving same.

SPECIFIC ISSUES

23. That the mother will not attend the father’s residence, except in the company of a police officer or unless otherwise agreed in writing.
24. That the parents undertake to the Court that whilst the child is in their care they will not denigrate the other parent or their spouse or partner in the hearing or presence of the child and will use their best endeavours to ensure that others do not denigrate the other parent or their spouse or partner in the hearing or presence of the child.
25. That the parents notify each other of any medical appointments, hospital visits or stays involving the child.
26. That either parent may request the other to complete a prohibited substance test prior to taking care of the child with the cost of same to be paid by the parent making the request.