Bradshaw & Bradshaw (No 7)

Case [2024] FedCFamC1F 224

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bradshaw & Bradshaw (No 7) [2024] FedCFamC1F 224

File number: NCC 535 of 2022
Judgment of: SCHONELL J
Date of judgment: 5 April 2024
Catchwords:

FAMILY LAW – PARENTING – Where the father seeks that the final parenting orders be set aside and that orders be made for the child to live with him – Where the Court is not satisfied that there has been a change of circumstances subsequent to the making of the final orders – Where both parties have filed applications seeking to vary the final parenting orders on a number of occasions – Father’s application and mother’s response are dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father’s solicitor sought to tender an audio recording made by the child – Where the mother did not consent to the recording of the conversation – Where the father’s solicitor claimed that the recording was reasonably necessary for the protection of the lawful interests of the child – Where the Court admitted the evidence on the basis of s 138 of the Evidence Act 1995 (Cth).

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 68, 69ZL

Evidence Act 1995 (Cth) s 138

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Surveillance Devices Act 2007 (NSW) s 7

Cases cited:

Bosgard and Bosgard (2014) 49 Fam LR 612; [2013] FamCA 308

Bradshaw & Bradshaw (No 2) [2023] FedCFamC1F 430

Bradshaw & Bradshaw (No 5) [2023] FedCFamC1F 79

DW & R (2014) 239 A Crim R 192; [2014] NSWCCA 28

Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23

Sepulveda v The Queen (2006) 167 A Crim R 108; [2006] NSWCCA 379

Division: Division 1 First Instance
Number of paragraphs: 68
Date of hearing: 2 April 2024
Place: Sydney
Solicitor for the Applicant: Mr White, Powe & White Family Lawyers
Counsel for the Respondent: Mr Duane
Solicitor for the Respondent: Gillard Family Lawyers
Solicitor for the Independent Children’s Lawyer: Mr Leishman, Legal Aid NSW

ORDERS

NCC 535 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BRADSHAW

Applicant
AND:

MS BRADSHAW

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 APRIL 2024

THE COURT ORDERS THAT:

1.Orders 6 and 7 made 26 May 2023 are suspended subject to Order 4(c).

2.For three months from the date of these orders, for the personal protection of the child and the mother, the father is restrained other than for the purposes of complying with Order 5 from:

(a)spending time with or communicating in any way with the child, either by initiating communication with or responding to communication initiated by the child, and from causing a third party to engage in communication with the child;

(b)attending at, entering upon, or approaching within 500 metres of the mother’s residence;

(c)attending at, entering upon, or approaching within 500 metres of the mother’s place of work; and

(d)attending at, entering upon, or approaching within 500 metres…

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AGLC
Bradshaw & Bradshaw (No 7) [2024] FedCFamC1F 224
Case
[2024] FedCFamC1F 224
Decision Date

CaseChat Overview and Summary

In Bradshaw & Bradshaw (No 7), the father applied for the final parenting orders to be set aside and for orders to be made for the child to live with him. The Independent Children's Lawyer (ICL) submitted that the Court should suspend the father's time, referencing previous judgments. The mother opposed the father's application, and the Court had to decide whether there had been a change of circumstances since the final orders were made. The Court also had to determine the admissibility of an audio recording made by the child without the mother's consent. The father's solicitor argued that the recording was necessary for the child's protection under section 138 of the Evidence Act 1995 (Cth).

The Court considered whether the circumstances had changed since the final parenting orders were made on 26 May 2023. The father did not comply with the orders, and the child left the mother's care, leading to a police intervention. The mother argued that the child's self-harm disclosures and refusal to live with her did not constitute a change of circumstances. The Court agreed, noting that the Full Court in Freeman and Freeman had established that once a custody order is made, it should be supported unless there is a significant change of circumstances. The Court found that the father had not demonstrated such a change, and the previous orders were still suitable for protecting the child from the father's abusive conduct.

The Court admitted the audio recording of the child's conversation with the mother on the basis of section 138 of the Evidence Act. The father's solicitor argued that the recording was reasonably necessary for the protection of the child's lawful interests. The Court found the interpretation the father sought to put on the mother's words was not supported by the evidence. The Court dismissed both the father's and mother's applications seeking to vary the final parenting orders. The Court suspended the father's time and imposed other restrictions to protect the child and mother.

The final orders suspended the father's time for three months, restrained him from contacting the child or approaching certain locations, and required the child to be delivered to the mother at a specific location. The Court also set out detailed arrangements for the father to spend time with the child, subject to compliance with the orders. The father's and mother's applications were dismissed, and the Independent Children's Lawyer was directed to explain the effect of these orders to the child.

Orders

Orders of the court

NCC 535 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BRADSHAW

Applicant

AND:

MS BRADSHAW

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 APRIL 2024

THE COURT ORDERS THAT:

1. Orders 6 and 7 made 26 May 2023 are suspended subject to Order 4(c).

2. For three months from the date of these orders, for the personal protection of the child and the mother, the father is restrained other than for the purposes of complying with Order 5 from:

(a) spending time with or communicating in any way with the child, either by initiating communication with or responding to communication initiated by the child, and from causing a third party to engage in communication with the child;

(b) attending at, entering upon, or approaching within 500 metres of the mother’s residence;

(c) attending at, entering upon, or approaching within 500 metres of the mother’s place of work; and

(d) attending at, entering upon, or approaching within 500 metres of D School.

3. Should the mother prove the father’s default in compliance with Order 2 in subsequent contravention or enforcement proceedings, then Order 2 shall apply for another three months from its initial expiration or the proof of its breach, whichever is the latter.

4. In the absence of proof of the father's default of Order 2 for a further three continuous months, the parties shall take all reasonable steps to ensure the child spends time with the father as follows:

(a) for an initial period of two months, each Wednesday from 4.00 pm to 6.00 pm, for which purpose:

(i) the father and child must remain at the McDonalds Restaurant at Suburb E, NSW; and

(ii) the mother is not restrained from remaining at or in the near vicinity to the McDonalds Restaurant at Suburb E, NSW.

(b) for a further period of two months, each Sunday from 9.00 am to 5.00 pm, commencing on the first Sunday after expiration of Order 4(a);

(c) thereafter in accordance with Order 6 (c) made 26 May 2023.

5. The father shall cause the child to be delivered to the mother at Suburb E Mc Donald’s at midday on Saturday, 6 April 2024 and thereafter shall immediately leave.

6. The duration of Order 2 shall be extended by such further periods of time that the child does not live with the mother.

7. The Independent Children’s Lawyer is to explain to the child at the earliest possible opportunity the effect of these orders.

8. Changeovers pursuant to Orders 4(a) and (b) are to occur at the McDonalds at Suburb E.

9. For the sake of clarity, the Recovery Order made 20 February 2024 continues to be in force.

10. The father’s Application in a Proceeding filed 4 March 2024 and the Mother’s Amended Response to an Application in a Proceeding filed 8 March 2024 are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The ICL submitted that the Court should discharge the orders for the father’s time. The ICL referenced various paragraphs of my earlier judgment. He indicated that the moratorium imposed by Justice Austin had, in the past, worked and that the Court should, consistent with the best interests of the child and pending the determination of a report, make orders suspending the current time arrangements.BACKGROUND The context to this matter can be gleaned from the judgments and orders made by Justice Austin on 26 May 2023 and by myself on 20 February 2024. I do not propose to repeat the history of the matter, or the findings referred to and made in those judgments. On 20 February 2024, I determined that there had not been a change of circumstances sufficient to warrant a reconsideration of the parenting arrangements. The orders made that day required the father to deliver the child to the mother at Suburb E McDonalds. His affidavit makes clear that he did not do what was required of him by the orders. He says that upon arrival at McDonalds, the child got out of his car and walked to the mother’s car. He then drove off. The evidence appears not to be in issue that the child then left the McDonalds and proceeded to walk along the road. The mother followed the child for a while but then lost contact with the child. The mother says that at about 4.30 pm that day, being 21 February 2024, she received a telephone call from Region J Police who indicated that the child was with them. The mother says that the police told her that they would bring the child to her at McDonalds. She then says that she got another telephone call from the police that the child had indicated self-harm and disclosed that he had tried to self-harm, but someone stopped him and that, by law, the police had to then take him to hospital (mother’s affidavit filed 6 March 2024, paragraph 25). The mother attended at the hospital and while there spoke to a doctor. She says that the doctor informed her that they did not have any concerns for the child with respect to suicidal ideation and that the only risk was the child running away. The mother says that the hospital agreed for the child to stay the night. The mother says that she returned to the hospital at 8.30 am the next morning and had a conversation with the child in the presence of a social worker. She says that the child said to her “I don’t give a fuck about the court orders” (mother’s affidavit filed 6 March 2024, paragraph 38). The mother says she became aware during that meeting that the child had changed her name in his phone from “[Ms Bradshaw]” to “Dad’s ex”. She says that at no time was she informed before leaving the hospital that the father had been at the hospital. The mother says that she was not aware at the time of the meeting with the social worker that the child was recording the conversation. She says the child refused to leave the hospital and she agreed, as an interim measure, he could stay with a Mr R and Ms S. The mother says she attempted to arrange for the child to see a psychologist and an appointment was made for his attendance. The child apparently informed the mother by way of text message that he would only see a psychologist if he could record the session as he “cannot trust anyone” (Annexure “G” to the mother’s affidavit filed 6 March 2024).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied having listened to the recording that the interpretation that the father seeks to put on the mother’s words is not available in these circumscribed proceedings.DISCUSSION AND CONCLUSIONS These are interlocutory proceedings and consequently I am unable to make findings on the disputed facts of which there are many. Consistent with the provisions of s 69ZL of the Act, I set out in short form my reasons. I refer to my judgment of 20 February 2024 and the summation of the law. I do not propose to repeat all of those matters but have had regard to them in reaching my determination and in making my orders. Each of the parties contend that there has been a change of circumstances that warrants a variation to the existing court orders. In my earlier judgment, I referred to the judgment of the Full Court in Freeman and Freeman (1987) FLC 91-857 (“Freeman and Freeman”). In particular, and relevant to this particular application, are the observations of the Full Court where their Honours said:Once the court … has settled the question of custody it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support.(Emphasis added) It is clear that the Full Court contemplates that circumstances can arise that require the making of further orders for the purposes of giving effect to a determination without that amounting to a change of circumstances. I am not satisfied that there has been a change of circumstances that warrants this Court changing who the child lives with, parental responsibility or for that matter, an entire suspension of the father’s time. What is necessary are orders to support and give effect to the final determination. The matters that have transpired subsequent to the making of Justice Austin’s orders were clearly contemplated by his Honour and referenced in his Honour’s earlier determination. The child’s statements that he will run away and not live with his mother are not new. In that respect, I refer to [67] of my earlier judgment dated 20 February 2024. Nor is the child leaving the mother’s care a new fact or circumstances. In that respect, I refer to [68] of my earlier judgment dated 20 February 2024. Nor am I satisfied that the child is at some psychological risk if the child is returned to the mother’s care. In that respect, I refer to [69] of my judgment dated 20 February 2024. Nor am I satisfied that the father’s application for the child to be returned to his care is one that is in the best interests of the child. Nothing has happened subsequent to 26 May 2023 that suddenly makes the father a suitable primary carer of the child. Justice Austin found the child needed protection from the “psychological harm he experiences by subjection or exposure to the father’s abusive conduct”: Bradshaw & Bradshaw(No 2) at [94(b)]. It is clear that the orders made by his Honour worked for a period of time. His Honour observed as follows:96The mother and the ICL, with the support of the single expert, proposed a moratorium upon any form of contact between the child and the father once the child is moved to live with the mother – the theory being that such absence of contact will give the child a better chance of settling with the mother without interference by the father. The single expert said the length of the moratorium is relatively arbitrary, but did not disagree with the proposal of three months. The proposal is adopted. The need for the moratorium was demonstrated by the father’s evidence in cross-examination, as he said he would not force the child to return to the mother if he visits him and wants to stay.

Ratio Decidendi

Legal Principle Established

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