Bass & Mandel

[2021] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bass & Mandel [2021] FCCA 2054

File number(s):

TVC 420 of 2021

Judgment of:

JUDGE BOWREY

Date of judgment:

24 August 2021

Catchwords:

FAMILY LAW – parenting – matter proceeded on undefended basis – Father disengaged with proceedings – Mother have sole parental responsibility of the children – significant history of family violence

Legislation:

Family Law Act 1975 (Cth), Part VII, ss 60B, 60CC

Federal Circuit Court Rules 2001 (Cth), rr 13.03A, 13.03B, 13.03C

Cases cited:

Australian Securities Commission & Macleod (1994) 130 ALR 717

Baghti & Baghti [2015] FamCAFC 71

Melton & Hurley [2017] FamCA 346

Narkis & Narkis (No 4) [2017] FamCA 200

Tate & Tate [2000] FamCA 1040

Number of paragraphs:

54

Date of hearing:

20 August 2021

Place:

Townsville

Solicitor for the Applicant:

Legal Aid Queensland

Respondent:

There being no appearance by or on behalf of the Respondent

ORDERS

TVC 420 of 2021

BETWEEN:

MS BASS

Applicant

AND:

MR MANDEL

Respondent

ORDER MADE BY:	JUDGE BOWREY
DATE OF ORDER:	24 AUGUST 2021

THE COURT ORDERS THAT:

1.All previous orders regarding the children W, born in 2014, X born in 2015, Y born in 2020 and Z born in 2021 are discharged.

2.The children shall live with the Mother.

3.The Mother shall have sole parental responsibility for making long-term decisions (as that expression is defined in the Family Law Act 1975) with respect to the children.

4.After the Father has provided to the Mother a negative test result following a Hair Follicle Drug test, the children shall spend time with the Father at all times as agreed in writing between the Mother and the Father.

5.The children shall communicate with the Father by telephone or video call at all times as agreed in writing between the Mother and the Father.

6.All outstanding Applications are otherwise dismissed and the case is removed from the Active Pending Cases List.

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 under the pseudonym Bass & Mandel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT DELIVERED EX-TEMPORE

JUDGE BOWREY

1. This matter came before the court on 20 August 2021.

2. The applicant Mother is MS BASS. She is 26 years old, having been born in 1995.

3. Ms Bass was represented by Legal Aid Queensland. Ms Derbyshire appeared for her.

4. The respondent Father is MR MANDEL. He is 35 years old, having been born in 1986.

5. The parties have four children namely W, born in 2014, X born in 2015, Y born in 2020 and Z born in 2021.

6. The children are in the Mother's care.

7. The present proceedings were commenced by an Initiating Application (Family Law) filed on behalf of the Mother on 29 March 2021. That application sought that final orders be particularised at a later stage. The application sought on an interim basis that the Mother's application be heard urgently, that time for service be abridged, that the requirement for a s.60I certificate be dispensed with and that the Father return the child Y who was at that stage just under 12 months old, to the Mother.

8. At the time of the Mother's application and since, the other three children of the relationship were with her. The Mother’s affidavit filed with her Initiating Application said that the Father had very little involvement in the children's care, that there had nevertheless been an agreement between the parties in late January and early February this year that the Father would assist in caring for the children while the Mother was in hospital giving birth to the child Z and that the Father had held the child Y and was refusing to return Y to the Mother.

9. The Mother's affidavit gave considerable detail about the Father’s drug use and family violence.

   DOMESTIC VIOLENCE ORDERS

10. By reference to paragraph 7 of the Mother's affidavit filed in March this year, the following domestic violence orders were made during the relationship:

    (a)A temporary protection order made on 17 August 2016 followed by a final protection order on 9 September 2016. It expired on 9 September 2018.

    (b)A final protection order made on 24 June 2020. It expires on 24 June 2025 and therefore is current.

    (c)A variation to the protection order referred to in (b) was made on 26 August 2020. The varied order still has the 24 June 2025 expiry date.

    (d)Another variation to the protection order was made on 17 February 2021 as a result of the Father breaching the 2020 order. A further varied protection order was made on 17 February 2021, the expiry date remaining as 24 June 2025.

11. All of the above mentioned orders were made in favour of the Mother as aggrieved. The Father was the respondent.

12. On 2 March this year the Father filed an application to vary the varied protection order made on 17 February 2021. This resulted in a temporary protection order being made on 11 March 2021. Relevant for the order of this court made on 1 April this year, the temporary protection order includes the four children as named persons, says that the respondent Father must be of good behaviour towards the Mother, says that the Father must be of good behaviour towards the children and provides in paragraph 5 that the Father is prohibited from locating, attempting to locate or asking someone else to locate the children W, X and Z.

13. The Father is allowed pursuant to the order to have contact with the child Y while that child is in the care of the Father’s Mother.

14. As referred to above, the Mother's Initiating Application sought the urgent return to her of the child Y.

15. When the matter came before the court on 1 April, I ordered that the four children live with the Mother, that the Father be prohibited from removing any of the children from the care of the Mother without the prior written consent of the Mother or a court order, that the Father have a hair follicle test for drugs and that the parties attend a Child Inclusive Conference. The Mother’s application was then adjourned to 14 July 2021 with the Father being ordered to file and serve a Response, Affidavit and Notice of Risk by 22 April 2021.

16. At the 1 April hearing, Ms Derbyshire represented the Mother and the Father appeared by video link on his own behalf.

17. When the matter came before the court on 14 July, Ms Derbyshire again represented the Mother. There was no appearance by or on behalf of the respondent Father.

18. Following submissions by Ms Derbyshire, I ordered on 14 July:

    (a)The applicant Mother file and serve an Amended Initiating Application and any updated Affidavit by 6 August.

    (b)The applicant serve a copy of this order and any Amended Initiating Application and Affidavit, on the respondent.

    (c)It was noted that the respondent Father had not complied with the order of 1 April 2021 in that no Response, Affidavit and Notice of Risk had been filed and/or served.

    THE MOTHER’S DOCUMENTS

19. When the matter came before the court on 20 August, a Case Outline was filed on behalf of the Mother. The Case Outline said that the following documents were read in the Mother's case:

    (a)Amended Initiating Application filed 6 August. The application particularised final orders sought as being that the Mother have sole parental responsibility for the four children of the relationship, that the children live with the Mother, and that the children spend time with the Father and communicate with the Father by telephone or video call at all times agreed in writing between the Mother and the Father.

    (b)Affidavit of Mother filed 29 March (the original Affidavit).

    (c)Affidavit of Mother filed 6 August. This Affidavit referred to the Father seeing the children in recent months on two occasions, having phone and video calls with them and now being in prison. I refer to this below.

    (d)Affidavit of Service of Ms B an employee of Legal Aid Queensland, filed 19 August. It said that copies of the Mother’s Amended Initiating Application, Affidavit and the court orders of 1 April and 14 July 2021, were posted to the Father on 6 August by sending them to D Correctional Centre.

    (e)Affidavit of Service of process server Mr C filed 18 August. Mr C said in his Affidavit that he served the Mother's Amended Initiating Application, Affidavit filed on 6 August and copies of the court orders, on a prison officer at D Correctional Centre, on 9 August. The prison officer confirmed that she was authorised to accept the documents on behalf of the Father.

20. I am aware that prisoners are entitled to attend Court by telephone link. They have to organise this with the prison authorities. This did not occur as far as the Father is concerned, on 20 August.

    CHILD INCLUSIVE CONFERENCE

21. As referred to above, I ordered on 1 April that the parties attend a Child Inclusive Conference on 24 June 2021.

22. The Mother attended the conference. A memorandum signed by the family consultant is dated 9 July.

23. The memo from the family consultant for the Child Inclusive Conference has its first paragraph as follows:

    The family consultant phoned the Father on the morning of the Child Inclusive Conference. He immediately stated he had not received the court order in place. The Father’s speech was rapid, he was swearing and he spoke in an aggressive tone about the court system and the order not being provided to him. He continually spoke over the top of the family consultant. The family consultant offered the Father the phone number to the National Enquiry Centre to enquire about his order and to ask questions about the court process however he declined. The family consultant attempted to explain her role and the purpose of the interview and the Father stated that he was “not in the mood” to complete an interview about (and) would not be taking part. The family consultant again offered the NEC phone number and the client declined. The family consultant acknowledge this and the phone call was terminated.

24. I am not able to make a finding about whether the Father’s demeanour on 24 June was caused by drug use (the Mother said in her original Affidavit that the Father uses drugs including “ice”) or whether the Father was being belligerent, as indicated by the number of family violence orders which have been made.

    FATHER'S PRESENT CIRCUMSTANCES

25. The Mother's Affidavit filed 6 August 2021 refers to the Father spending short periods of time with the children in recent months, namely about twenty minutes on 12 June and about five minutes on 14 June. The 14 June visit by the Father to the Mother's house was unannounced.

26. The Mother says that the Father has not undergone hair follicle drug testing as far as she is aware. The Mother and her solicitor at Legal Aid Queensland have not been provided with a hair follicle test result.

27. At paragraph 15 of her Affidavit filed 6 August, the Mother says that on or about 12 July 2021, she received a phone call from the Suburb E Police who advised her that the Father had been arrested and remanded in custody in relation to 17 breaches of a domestic violence order which name the Mother as the aggrieved. 17 breaches is a very large number and does no credit at all to the Father. This must have been frightening and traumatic for the Mother and children.

28. At paragraph 16 of her Affidavit filed on 6 August, the Mother says that the Father has called her twice from the D Correctional Centre, once during the week commencing 19 July and once during the week commencing 26 July. The Mother says that on both occasions, the Father spoke only to her and did not speak to the children. The Father told her that he will be remanded in custody for twelve months but also said that he would see the Mother and the children in “a couple of weeks”.

29. In any event as referred to above, the Father is in breach of various parts of the 1 April 2021 order including that he has not filed and served response documents and has not undergone a hair follicle drug test. Further, the Father has continued to breach the current protection order which is in favour of the Mother.

    THE MOTHER'S POSITION AND ORDERS SOUGHT

30. The Mother seeks in her Amended Initiating Application that she have sole parental responsibility for the four children of the relationship and that they live with her. In all of the circumstances taking into account the Father's behaviour described in the Mother's Affidavits, the Father's dealings with the family consultant at the Child Inclusive Conference and in particular taking into account the history of significant family violence, it is my view that it is in the children's interests that:

    (a)An order be made in accordance with the Mother's Amended Initiating Application.

    (b)The order be made on an undefended basis now, given the Father's breaches and given the need for the Mother and the children who are young, to have stability in their lives.

31. Ms Derbyshire in her Case Outline for the applicant Mother set out a detailed chronology of the relationship and referred to relevant cases.

32. In the following paragraphs, I summarise the cases and Federal Circuit Court Rules which will apply to the orders to be made.

33. In Tate & Tate [2000] FamCA 1040, the court referred to the prominence given in recent times to case management. Although case management rules are and must always remain subject to and never prevail over the attainment of justice, they take into account the limited resources of the court and are designed to facilitate the ends of justice. The Full Court held that it is fundamental that case management directions and orders of the court in preparation for trial (or settlement) must be respected and obeyed. Where non-compliance with the orders and directions of the court defeat the attainment of justice, suitable remedies must be found. In Tate, that remedy included excluding the Husband from any further participation in the proceedings. While the court referred to such cases as being exceptional, the court held that no litigant whether legally represented or not, should harbour any doubt that manipulation of the court process through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the court. The court said that the exclusion of the defaulting party becomes a regrettable necessity.

34. In Narkis & Narkis (No 4) [2017] FamCA 200, the Full Court referred to Australian Securities Commission & Macleod (1994) 130 ALR 717 where in that cited case, it was said that a failure to defend a Federal Court proceeding does not necessarily end in a default order. The Full Court in Narkis held that this view applies in the Family Court. The applicant party still has to prove his or her case. I would comment that in the present case, I am satisfied that the applicant Mother has proved her case.

35. In Melton & Hurley [2017] FamCA 346 the Full Court held that:

    (a)Part VII of the Family Law Act 1975 sets out the objects, principles and matters that must be considered when determining what parenting order is proper.

    (b)The court is not required to make findings of fact on every factual dispute raised by the parties – this view is referred to in Baghti & Baghti [2015] FamCAFC 71.

    (c)The object of the Act are set out in s. 60B and are to ensure that the best interests of the children are met.

    (d)s. 60B provides that the principles underlying the objects in Part VII of the Act are that except when it would be contrary to a child's best interests, children have the right to know and be cared for by both parents, children have a right to spend time on a regular basis with and communicate on a regular basis with, both their parents and parents jointly share duties and responsibilities concerning the care, welfare and development of their children and parents should agree about the future parenting of their children.

36. Melton & Hurley discusses the relevant considerations set out in s. 60CC of the Family Law Act 1975. I refer to this below.

37. It is my view and I find, that the children's best interests are served by making orders set out in the Mother's Amended Initiating Application. This will not prevent the Father from spending time with the children and/or communicating with them. However as the Mother is to be the sole carer of the children with parental responsibility, the time the Father spends with the children and communicates with them, should be as agreed between him and the Mother. This will achieve the best outcome for the children including protecting them from family violence. A starting point for the Father’s interaction with the children should be a clean (negative) drug test result.

    FEDERAL CIRCUIT COURT RULES

38. Federal Circuit Court Rule 13.03A(2) provides that a respondent (to an Initiating Application) is in default if the respondent:

    (a)       Has not satisfied the applicant’s claim; and

    (b)(ii)   Fails to file a response before the time for the respondent to file a response has expired; or

    (b)(iii) Fails to comply with an order of the court in the proceeding; or

    (b)(iv) Fails to file and serve a document required under these rules; or

    (b)(vii) Fails to defend the proceedings with due diligence.

39. As will be seen from the numbering in the sub-paragraphs referred to above, not all have been listed. I have listed the sub-rules where I find that the respondent Father is in breach and/or default.

40. Rule 13.03B(2)(d) provides that if a respondent is in default, the court may give judgment or make any other order against the respondent.

41. Rule 13.03C(1)(e) provides that if a party to a proceeding is absent from a hearing, the court may proceed with the hearing generally or in relation to any claim for relief in the proceeding.

42. In this case, the respondent Father:

    (a)Failed to appear on 14 July 2021 when the matter came before the court.

    (b)Failed to appear on 20 August 2021 when the matter proceeded before the court.

    And having been served with notice of the two abovementioned hearings.

    (c)Failed to file a Response, Affidavit and Notice of Risk despite being ordered on 1 April 2021 to do so by 22 April 2021.

    (d)Failed to undergo a Hair Follicle Test in relation to drugs, ordered on 1 April 2021.

    (e)Did not partake satisfactorily in the Child Inclusive Conference held on 24 June 2021, as ordered in paragraph 10 of the order of 1 April 2021 – see the section of this judgment under the heading Child Inclusive Conference.

    (f)Did not avail himself of the opportunity of spending time with the children each Sunday (but on the condition that the Father had first provided the Mother with at least one clean hair follicle drug test result) pursuant to paragraph 7 of the 1 April 2021 order.

43. In all of these circumstances I am satisfied that the Father is in default in every way, with the order made by this court on 1 April 2021.

    SECTION 60CC OF FAMILY LAW ACT

44. The primary considerations for determining what is in a child's best interests pursuant to s. 60CC of the Family Law Act 1975, are:

    (a)The benefit to the children of having a meaningful relationship with both of the children's parents; and

    (b)The need to protect the children from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.

45. In this case, the Mother has a meaningful relationship with the children. The children are young, particularly the youngest two. The Mother has been their primary carer since each of the children were born. The Mother has been responsible for the children's development to date and for their daily care.

46. Ms Derbyshire submitted in her written outline on behalf of the Mother, that the children do not at present enjoy a meaningful relationship with the Father due to:

    (a)His illicit drug use.

    (b)A long history of family violence including that the Father has verbally and physically abused the Mother in the presence of the children, abused the oldest three children and physically abused X.

    (c)The Father has been guilty of a range of criminal offences including assaults and breaches of family violence orders. He has also been charged with driving a vehicle while under the influence of drugs and possession of drug utensils. He has been charged with choking and/or suffocation of the Mother. The Father has spent time in prison either serving sentences or on remand.

    (d)The Father has little experience in caring for the children or providing for them, whether short-term or long-term. One could easily assume that the Father's drug use and violent tendencies prevent him from being capable of parenting the children properly.

1. In my view, the Father’s drug use and history of family violence mean that he is an unacceptable risk for the children suffering physical and/or psychological harm.

2. The Father's lack of parenting skills (and I note that the Father left Y with his Mother earlier this year when he held over Y’s return to the Mother) pose an unacceptable risk to the children.

3. The Father's mental health is likely to have been affected negatively by his drug use. As a result, this is or is likely to be a significant risk to the children.

4. It is not appropriate for the Father to share in decision-making about the children, given his drug use and history of family violence. The Father's failure to comply with the order of 1 April that he have a hair follicle drug test, is of considerable concern.

5. There is no evidence that the Mother is a risk to the children either physically or psychologically. There is no evidence that the Mother has not cared for the children appropriately. There is no evidence that the Mother has exposed the children to harm or harmful behaviour by her.

6. The Mother deposes in her Affidavit filed with her Initiating Application, that in May this year she completed a Circle of Security parenting course. The Mother has had voluntary dealings with the Department of Child Safety in relation to counselling for the older children and to obtain secure housing.

7. In my view, it is in the children's best interests that they reside with the Mother and that she have sole parental responsibility for making decisions about the four children. It is also my view that no benefit for the children is served in delaying a final order in this case.

8. As I have referred to a previously, the Father is not excluded from spending time with the children or communicating with them. However, this should be done in conjunction with the Mother so that there is a joint agreement about parenting issues.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bowrey.

Associate: 

Dated:       24 August 2021