Blain & Blain (No 2)
[2023] FedCFamC1F 649
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Blain & Blain (No 2) [2023] FedCFamC1F 649
File number(s): WOC 731 of 2019 Judgment of: CHRISTIE J Date of judgment: 7 August 2023 Catchwords: FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Sole parental responsibility – Suspension of time with one parent – Injunctions – Where there have been multiple continual ADVO breaches –Where there is evidence of excessive alcohol consumption – Where the children have witnessed family violence – Where a child is diagnosed with ADHD – Where a child is diagnosed with autism spectrum disorder – Undefended hearing – Where remaining parties agree to have the hearing proceed undefended after a Notice of Discontinuance is filed – Where the children want to have a relationship with both parents but it is not in the best interests of the children to see one parent. Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61DA, 68B, 68C, 117
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 7 August 2023 Place: Sydney Solicitor for the Applicant: Litigant in person (did not participate) Counsel for the Respondent: Mr Steward Solicitor for the Respondent: Culleton Lawyers Pty Ltd Counsel for the Independent Children’s Lawyer: Mr Sperling Solicitor for the Independent Children’s Lawyer: Walkden Law and Mediation ORDERS
WOC 731 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLAIN
Applicant
AND: MS BLAIN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
7 AUGUST 2023
THE COURT ORDERS THAT:
1.The children X born 2013 and Y born 2015 (“the children”) live with the Mother.
2.The Mother have sole parental responsibility for the children.
3.The children spend no time with the Father.
4.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of Ms Blain, X and Y the father is restrained from:-
(a)Communicating with, or contacting by any means, including through any third person, the mother and/or either of the children; and
(b)Approaching the mother and/or the children at their place of residence, school and any other institutional place of regular activity or engagement should the father become aware of same; and
(c)Attending any place of residence, school and any other institutional place of regular engagement including any sporting or extracurricular activities where the mother and/or either of the children are attending.
(d)Contacting by any means, including through any third person, any place of education or residence of the mother and/or the children; and
(e)Removing or attempting to remove or taking or attempting to take possession of either of the children from any place where the children may be from time to time including but not limited to, their place of residence and/or education and/or at any sporting or extracurricular activities;
(f)Harassing, molesting, stalking, threatening to cause harm to the mother and/or the children or any person in whose care either of the children may be in from time to time.
5.Pursuant to s 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the Father has breached any of the injunctions in Order 4, the police officer may arrest the Father without warrant and the Father may be brought before the registry of the Court or any other court exercising jurisdiction under the Family Law Act 1975 and it is noted that pursuant to s122AA of the Family Law Act 1975 a person who is authorised or directed by a provision of the Family Law Act 1975, to arrest another person may use such reasonable force as it is necessary to make the arrest or to prevent the escape of the person under the arrest.
6.Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005, the children X born 2013 and Y born 2015 are each entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the Mother is permitted to complete, sign and lodge any application for issue and/or renewal of each child’s Australian Passport, or any other document required to allow each child to travel outside the Commonwealth of Australia, without the need to obtain the Father’s consent.
7.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for each child upon application of the Mother alone in accordance with Order 6 above.
8.That for the purposes of s 65Y(1)(c)(ii) of the Family Law Act 1975, the Mother is permitted to take or send the children (or either of them) outside the Commonwealth of Australia without the need for the Father’s consent.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings for final parenting orders in respect of the children X born 2013 and Y born 2015 (“the children”).
The proceedings were commenced by the children’s father. On 2 August 2023 the father filed a Notice of Discontinuance, being the week before the matter was listed for final hearing. The father had, at that stage, not complied with the directions to file his final trial affidavit.
The mother and Independent Children’s Lawyer (“ICL”) sought that the matter remain listed for final determination on an undefended basis as against the father. The matter was called outside the court today and there was no appearance by the father.
There is a single expert report by the psychologist, Dr C, which became an exhibit in the proceedings. The report writer was not required for cross-examination. Dr C conducted the interviews in August 2020 and her report was dated 7 October 2020. At a case management hearing the parties indicated they did not intend to have that report updated.
THE LAW
Applications seeking parenting orders fall to be determined in accordance with the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The paramount consideration is that the orders must be in the best interests of the subject children.
In determining what orders will be in the best interests of the children I am required to consider all relevant considerations set out in s 60CC of the Act.
It is generally appropriate to consider what orders for parental responsibility (decision making responsibility) are appropriate before turning to consider orders about what time (if any) children should spend with their parents.
In this case I am being asked to make injunctions. The making of injunctions in a parenting matter is reliant upon the provisions of s 68B which provides:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
CONSIDERATION
This is a difficult case because after separation in 2019 the children had two parents with whom they had a positive relationship and, according to the single expert report, two parents with a considerable amount to offer their children.
Because the proceedings are being conducted undefended as against the father it is not necessary to examine the evidence in the detail which might be required if the proceedings were fully contested. However, I must independently of any agreement between the mother and the ICL satisfy myself that the orders I make are orders which are in the best interests of the children and accordingly it is necessary to have regard to the evidence which is before the Court.
The ICL supports the orders sought by the mother save that she is agnostic about the order which the mother seeks concerning the issue of passports.
Parental Responsibility
The mother seeks an order for sole parental responsibility.
It is necessary to consider whether or not the presumption in favour of equal shared parental responsibility has been rebutted or displaced. In this case the presumption does not apply because of the operation of s 61DA(2). I will turn later in these reasons to discuss the evidence by which I am satisfied that presumption does not operate.
Even if the presumption applied, the history of post-separation communication between the parties would give me no confidence that an order for equal shared parental responsibility would operate in the interests of the subject children.
As counsel for the mother submitted the issue is also compounded by the father’s actions post‑separation in undermining the decisions of the mother made in consultation with the children’s treating medical practitioners.
I take into consideration Dr C’s observation at [276]:
276. The other significant concern in terms of the parents’ relationship and communication is that the mother may continue to be re-traumatised and experience challenges with her own mental health and recovery if she is exposed to repeated verbal abuse or emotional manipulation by the father. This may mean that she is unable to make appropriate parenting decisions, or that her tolerance for the children is compromised.
I pause to note that I can see no evidence to date that continuing to be exposed to the father’s communication has undermined her parenting but I see no reason to allow that situation to continue.
It is uncontroversial that the children’s father has had a longstanding and problematic history with excessive alcohol consumption. It is not important to attach any particular label to this conduct. I am only concerned about the manner in which this has historically impacted on his parenting capacity and post-separation on his capacity to parent with the children’s mother and from that history what might be predicted about the future impact on both those areas.
It follows that I am comfortably satisfied that an order for sole parental responsibility in favour of the children’s mother will be the order which operates in the best interests of the subject children. The material contained in Exhibit 1 demonstrates that she has at all times acted consistently with the best interests of both children in making decisions relating to both health and education.
Passport
An order for sole parental responsibility is precisely that – it gives one person (in this case the mother) the sole authority for long term decisions. That includes the issue of a passport pursuant to s 11 of the Australian Passports Act 2005 (Cth).
For abundant caution, the mother seeks an order that she be permitted to be the sole parent on any application for a passport to issue and consent for travel outside Australia.
On balance I think it is best to make an order, even absent any evidence of a concrete travel plan. Otherwise the mother may have to return to court if the opportunity for the children to travel arises. In the absence of evidence however, I have not made orders requiring the father to sign documents or substituting the Registrar to sign them as the evidence does not support these orders and the father is not on notice of them. However, I will make the remainder of the orders because of the need for finality, as the ICL submitted, the proceedings need to come to an end.
Order for no time
It is necessary to canvas the relevant matters in s 60CC of the Act to inform the decision about what time, if any, the children should spend with the father.
Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
A final apprehended domestic violence order (“ADVO”) was made for the protection of the mother and the children for a period of two years commencing late 2019.
In mid-2019, late 2019, late 2020 the father was convicted of breaches of the ADVO.
Perhaps the most serious incident of family violence was described by the mother to Dr C as recorded at [49]:
49.I asked [Ms Blain] about physical violence in the relationship. She was extremely reluctant to discuss this topic with me and began crying. I pressed her a little and said that I had read in one of the father’s diary excerpts a reference to him apologising for strangling her. [Ms Blain] became extremely upset and said that she did not feel safe or comfortable talking about this topic. She said through tears “I am so afraid of what he will do to my family”.
The father’s diary entries appear to suggest that he accepted that he had engaged in the conduct complained of. Dr C wrote at [247]
247.Her account [and the record in the diary entry] suggests an episode of severe form of family violence that is most commonly associated with dangerous forms of coercive and controlling violence.
Dr C wrote about the father’s communication with the mother concluding: “I am concerned that the father's attitudes towards the mother are consistent with perpetrators of controlling and manipulative forms of coercive violence” (at [246]).
The mother’s affidavit contains numerous examples of contact from the father which were in breach of orders preventing same. The father has not complied with orders including ADVOs and continues to contact the mother.
As recently as 22 June 2023 the father sent the mother a text message which said:
and you think subpoenaing my hospital record will help you? You’re so fkn stupid you have no idea why I was there I know they told you I was wasted… you’re a fkn awful person and mother… you should be scared of your future cos the children will ruin it for you cos you’ve ruined their childhood for them.
(As per the original)
The email to the ICL and the mother’s lawyer on 31 July 2023 is equally troubling:
I’m sick of the mother trying to just completely underwrite my character. I’m no appealing because I have anything to hide, the stupid bitch doesn’t realise I attended hospital last year due to an anxiety episode caused by the mother’s behaviour of stealing my kids. I took, under observation, a psychedelic because if the mother understood her behaviours, it is becoming a treatment for anxiety and depression, which in my case is ALL caused by the mother.
Fu off [Ms Blain] out of my life, give me my kids back and stop encouraging the damage that only one parent is doing to the children, please? I’m fun sick of this filthy bitch ruining three male lives whilst she continues to be rewarded for such poor parenting behaviour.
She better hide. She better be scared. Not of me. Of OUR children’s future cos I promise she is going down.
(As per the original)
As is the email to the mother’s solicitor on 22 June 2023: “And janine, you’re a dog for supporting this. A DOG”.
I am conscious that Dr C stated at [193]:
193.There is no evidence that the children have been exposed to any abuse. However, I am firmly of the view that the children have been exposed to family violence and think that there is a strong possibility that they have been exposed to risk and neglect.
Dr C stated at [241]:
241. There is a considerable body of evidence that children are highly sensitised to these interactions between their parents and exposure to any form of the above violence can lead to psychological distress, behavioural dysregulation and a range of short and long-term psychological problems for children.
Given the diagnosis of X with attention-deficit/hyperactivity disorder (“ADHD”) and autism spectrum disorder (“ASD”) (as discussed below) it is particularly important that the orders which are made pay due regard to protecting him from behavioural dysregulation which may flow from exposure to such interactions.
Children’s age, maturity and characteristics
X is nearly 10. In June 2021 he was diagnosed with ASD, without intellectual or language impairment and ADHD.
X has experienced considerable challenges but the evidence suggests that his recent transition to a new school has been to his benefit (although there have been recent setbacks).
Y is eight years of age. Y and his brother now attend different schools and this change, according to his mother, seems to be an advantage to Y.
Nature of the relationship
Dr C recorded at [186]:
186. I have formed the view that [X] and [Y] love both of their parents, enjoy spending time with each of them and derive many benefits from their relationships with their mother and with their father. In my view, the children’s love and affection for each of their parents is very strong and they have an expectation and understanding that their parents love them, care for them and are involved in their lives.
I am aware that two years have passed since the single expert made these observations and the children’s father has not been part of their lives. It is not important that I determine whether he has failed to take advantage of the orders for time deliberately or because he is not capable of meeting the preconditions for time (for example remaining sober). The effect for the children has been the same – an extended period where they have not seen or spent time with him.
The mother has, to her credit, continued to facilitate the children’s time with the paternal family and placed appropriate boundaries around that time.
Parental Capacity
There is no challenge to the mother’s parenting capacity.
The mother’s evidence recounts a history of problematic excessive drinking by the father which did not abate after the birth of the parties’ first child. That history placed the children at risk on the mother’s account as the level of the father’s inebriation from time to time meant that he fell into X’s bassinet when he was an infant or fell asleep when he was supposed to be providing the children with dinner.
The mother’s affidavit states that in 2017 the father went to collect the children from child care after he had been drinking alcohol. He had a car accident on the way to collect the children. He left the scene of the accident and returned home where he consumed more alcohol but subsequently returned to the scene of the accident.
Following the car accident the father had a period of in-house alcohol rehabilitation at D Hospital.
He left rehabilitation with a commitment to abstinence and attended an alcohol support group. He returned to problematic consumption and while from time to time recognising the need to abstain was either reluctant or incapable.
Throughout the proceedings there have been orders for carbohydrate deficient transferrin (“CDT”). Those results, at least in so far as they have been produced on subpoena, indicated continued drinking at problematic levels.
In mid-2022, the mother was contacted by the local hospital as she was listed as the father’s next of kin. They indicated to her that he was intoxicated. She informed the hospital that they had separated and she was removed as the father’s next of kin.
Dr C wrote at [234]:
234.I think that many of these areas of poor parenting capacity can best be understood by examining the father’s alcohol use patterns and understanding his personality and propensity to conflict with the mother or others with whom he disagrees.
The evidence about past conduct fairly supports a finding about future risk and the orders for no time are – in those circumstances – appropriate.
Effect of change
Dr C wrote at [225]:
225.Overall, I think that both children have come to expect and understand that they will see both parents on a regular basis and that both of their parents will be involved in their lives. In my view there would be very deleterious impacts on the children if they were to suffer a loss of a relationship with either parent, particularly given the previous and cumulative losses that they are dealing with.
Time has passed now and while it is natural that the children will be curious about the ongoing absence of their father that is the only choice available on the evidence before this court.
Injunctions
The final ADVO which was made in late 2019 would have expired in late 2021.
On 17 November 2021, as part of a larger suite of orders, I made the following order:
18.The father is not to contact the mother or the children unless it is in writing or in the case of an emergency or, attempt to contact the mother or the children using a third person without the mother’s prior written consent.
Less than a week later, the children’s school alerted the mother that the father had attended upon the school searching for the children. The principal reported to the mother that the father’s breath smelt of alcohol.
In mid-2022, the mother’s affidavit says that the father attended her property uninvited, smelling of alcohol and refusing to leave.
In late 2022, the mother said that the father drove past her home.
Between March and July 2023, there have been text messages and Facebook messages from the father to the mother requesting time with the children, sending the mother a 14 year anniversary video, sending her news articles concerning a mother who was jailed in respect of family law matters, accusing the mother of having taken the children away, requesting to see the children and as discussed above objecting to subpoenas that had been issued.
I accept that the injunctions which the mother and the ICL seek are appropriate, and adapted to the personal protection of the mother and the children and necessary, having regard to all of the factual circumstances set out above.
I remain concerned that the father has to date paid little attention to the existence of court orders including ADVOs. As discussed with counsel during the hearing, I have added a reference to the powers of arrest which are provided in s 68C of the Act
Referral
Both counsel raised the father’s conduct in allegedly doctoring CDT results as the proper basis for a referral of the papers for consideration of prosecution. I accept that the evidence raises very serious concerns. On balance I am not persuaded that I ought to take such an action in the circumstances of this case.
DISPOSITION
The situation for these children is that the need to protect them from harm must take precedence over the importance of a meaningful relationship with their father. If in due course objective evidence demonstrates he has addressed the matters which create that risk then the situation may be different but for the foreseeable future it is necessary to act protectively and cautiously both in respect of the children but also in respect of the wellbeing of their caregiver.
COSTS APPLICATION
Before me is an application for costs arising out of the final parenting proceedings. The discretion which is conferred by s 117 of the Act is broad to the extent that if it is invoked there must be justifying circumstances. However, even when there are justifying circumstances it is still within the discretion of the court to decline such an application. In the circumstances of this case particularly having regard to some of the matters in my earlier decision, I decline to make an order.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 7 August 2023
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