Bonnaire & Schubert
[2024] FedCFamC1F 692
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bonnaire & Schubert [2024] FedCFamC1F 692
File number(s): MLC 4866 of 2021 Judgment of: JOHNS J Date of judgment: 8 August 2024 Catchwords: FAMILY LAW – PARENTING – best interests – undefended hearing – where the father withdrew from proceedings – where the matter is part-heard – where there are allegations of family violence and sexual abuse – where the father denies the allegations – where the mother seeks sole decision-making on major long-term issues and live with – where the mother seeks orders for no communication between the children and father – where the parties engaged in family therapy in the adjourned period – where the family therapist reported the matter cannot be progressed any further – where the phone communication between the father and children has not been positive – where the Independent Children’s Lawyer supports the mother’s application – order that mother have sole decision-making on major long-term issues – children live with mother – no orders for time with father Legislation: Family Law Act 1975 (Cth) ss 60CA & 60CC Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 8 August 2024 Place: Melbourne Solicitor for the Applicant: Mr Raniga of RRR Lawyers Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Ms Pandelli of Barbayannis Lawyers ORDERS
MLC 4866 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BONNAIRE
Applicant
AND: MS SCHUBERT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.That all previous parenting orders be and are hereby discharged.
2.That the Mother have sole parental responsibility of the Children;
(a)X born 2013;
(b)Y born 2015; and
(c)Z born 2017
(hereinafter referred to as the Children)
3.That the Children live with the Mother.
4.That the Children spend no time or communication with the Father.
5.That pursuant to section ss7 and 11 of the Australian Passports Act 2005 and upon the court being satisfied that it is not practicable to obtain the consent of the father to enable the children to obtain an Australian Passport to travel internationally, the court makes the following orders:
(a)the Mother be permitted to apply for and/or renew an Australian Passport or any other document to enable the children to travel internationally without the Father’s consent;
(b)the children be permitted to travel outside the Commonwealth of Australia and interstate without the permission of the Father;
(c)for the purpose of Orders 11a or 11b hereof, liberty be granted to the mother to provide a copy of these Orders to the Department of Foreign Affairs and Trade or any other relevant person, organisation, statutory authority or body.
6.That the Mother, Father and their servants or agents are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party.
(b)Discussing any subject matter of the proceedings or any other relevant proceedings with, or in the presence and hearing of the children, or permitting any other person to do so.
7.That the Independent Children’s Lawyer be and is hereby discharged.
8.That all extant applications are otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today for a case management hearing. The proceedings relate to the future care arrangements for the parties’ three children, Z, who is aged almost seven years, Y, who is aged almost nine years and X, who is aged almost 11 years.
The proceedings have had a long history before the Court; they commenced in 2021. The father, who is the applicant in the proceedings, sought orders that he have time with the children. That application was opposed by the mother.
A final hearing commenced before me on 13 February 2023 and then proceeded for a period of some five days. On the fifth day of hearing, being 16 March 2023, the parties entered into consent arrangements insofar as it was common ground that they wished to pursue a therapeutic pathway, to see whether they could resolve the outstanding issues between them.
That day, I made orders for the parties to engage with a therapeutic process. Orders were also made for the father to be permitted to send cards, gifts and letters to the children, and further, to have communication with the children by telephone and video, that communication to occur each Saturday at 5.00 pm.
The matter was adjourned for a period of some eight months to enable that process to unfold. The matter returned to Court before me on 9 October 2023. At that stage, the parties were not optimistic, and further orders were made for a relisting of the part-heard final hearing. When the matter next came before me on 6 February 2024, I was told that the parties sought to engage in reportable family therapy with Mr B, Psychologist. Orders were made to that effect and otherwise the matter was adjourned to this day.
The parties have attempted therapy with Mr B. He has produced a report dated 6 August 2024. Mr B details in that report particulars of the sessions he has engaged in with the mother, the father and with the children. Unfortunately, Mr B has assessed the family as not being in a position to progress the matter any further. His report has been provided to the Court (Exhibit ICL1).
The central issues in the case related to allegations that the father had perpetrated family violence and abuse against the mother and the children, and indeed, that he had behaved in a sexually inappropriate manner with some of the children. He denies those allegations. As a result of those allegations the father has had no face-to-face time with the children for a period of more than three years.
Following the most recent family therapy, the father has reviewed his position and ultimately determined that there is no benefit to the children in him pursuing his applications before the Court. He has instructed his solicitor to file a Notice of Discontinuance. That notice was filed yesterday.
His solicitor attended Court this morning and informed the Court of his client’s position. He described the difficulties with the family therapy. As to the orders for telephone communication, he described them as a “disaster” from the father’s perspective. It is against that backdrop that the father has formed the view that there is no benefit to the children in pursuing his application.
I have granted leave to the father’s solicitor, Mr Raniga, to withdraw, and obviously, in light of the Notice of Discontinuance, the father’s Amended Application for Final Orders filed on 11 July 2022 has been discontinued.
That leaves before the Court the mother’s Amended Response to Application for Final Orders, filed on 20 September 2022. What she seeks in that application is orders that she have sole parental responsibility in relation to major long-term issues for the children, that the children live with her, and that they have no time or communication with the father.
She also seeks orders that she be permitted to apply for and renew Australian passports for the children and that she be permitted to travel outside the Commonwealth of Australia and interstate without the father’s permission. Finally, she seeks injunctions restraining both she and the father from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or discussing any subject matter of the proceedings in the presence or hearing of the children. The orders sought by the mother are supported by the Independent Children’s Lawyer, who also seeks an order that her appointment be discharged.
In deciding parenting matters, the best interests of the children is the paramount consideration. This is so, as confirmed by section 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining what is in a child’s best interests, I must have regard to the considerations identified at section 60CC of the Act. Those considerations include:-
·What arrangements would promote the safety of the children;
·Any views expressed by the children;
·The developmental, psychological, emotional and cultural needs of the children;
·The capacity of each person who has, or is proposed to have, parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs;
·The benefit to the children of being able to have a relationship with their parents and other people who are significant to them; and
·Any other relevant circumstance in the matter.
I have had the benefit of reading the material filed in the proceedings. I have also read the most recent report of Mr B. There are certain realities in this matter, given the difficulties the father has experienced in his attempts to re-engage with the children. He has attempted to do so in a supportive environment with Mr B. Those efforts have not borne fruit. It is evident that to further press his claims would likely impose greater pressure and stress upon the children, and that clearly would not be in their best interests.
In the circumstances of this case, and having regard to the report of Mr B as to his engagement with the family and his observations of the children and the parents, I am satisfied that the orders as sought by the mother and supported by the Independent Children’s Lawyer are in the children’s best interests. Those orders reflect what has largely been the children’s reality for some years now. Those orders will ensure that the children can continue to grow and progress, well-supported by their mother, without the pressures of these ongoing proceedings, which no doubt impacts the mother and therefore, has an impact upon them. Accordingly, I will make parenting orders as sought by the mother and the Independent Children’s Lawyer.
The mother, in her application, also sought orders that the father make available to her a portable hard drive upon which the father had uploaded digital photographs and videos of the mother and the children. Her position is that the father has retained digital images and videos of the children and her spanning a period of some 24 years. Mr Raniga addressed the Court in relation to that issue and indicated that his client’s position was that the hard drive was no longer in existence and therefore, the father no longer retains those images. Unsurprisingly, the mother does not accept that position. She asserts that the images are likely retained by the father in a digital format in “iCloud” or a similar program. However, given the submissions made by Mr Raniga, the mother did not press that part of her application, recognising the difficulties in successfully pursuing those matters. Accordingly, that application will be dismissed.
Nonetheless, she requests that the Court note her request for those images and that it be recorded that, in the event that the father does locate the images, they be made available to her for the children’s benefit, it being her position that the children on occasions ask for those images. The mother would like to be able to provide the children with those documents which record the history of their young lives.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 16 October 2024
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