Bradshaw & Bradshaw (No 7)
[2024] FedCFamC1F 224
•5 April 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradshaw & Bradshaw has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 4 March 2024, the father filed what was his third application seeking to set aside final parenting orders made 26 May 2023.
The mother, for her part, has also sought orders seeking to vary the final parenting orders on a number of occasions.
This is the second time in which I have heard applications of a similar type to that again sought by the parties. In that respect, I refer to my Reasons for Judgment delivered 20 February 2024: Bradshaw & Bradshaw (No 5) [2024] FedCFamC1F 79.
DOCUMENTS RELIED UPON BY THE PARTIES
The father relied upon the following documents:
(1)Application in a Proceeding filed 4 March 2024;
(2)Affidavit of father filed 4 March 2024;
(3)Affidavit of father filed 15 March 2024;
(4)Case Outline Document filed 22 March 2024; and
(5)Single Expert Report dated 7 December 2022.
The mother relied upon the following documents:
(1)Amended Response to an Application in a Proceeding filed 8 March 2024;
(2)Affidavit of the mother filed 6 March 2024;
(3)Affidavit of the mother filed 26 March 2024; and
(4)Case Outline Document filed 21 March 2024.
The Independent Children’s Lawyer (“the ICL”) relied upon a Case Outline Document filed 2 April 2024.
The father sought to tender an audio recording taken by the child whilst at a hospital in early 2024. The mother opposed the admission of the recording. Having heard submissions from the parties, I admitted the recording into evidence and said that I would provide my reasons for doing so in my Reasons for Judgment.
PROPOSALS OF THE PARTIES
The father primarily seeks orders setting aside the final orders made on 26 May 2023 such that the child live with him, that he has sole parental responsibility and the child spend time with the mother in accordance with the child’s wishes.
In addition to other orders, he seeks dismissal of the mother’s application for costs, or alternatively, that it be stayed pending the final disposition of the proceedings.
The mother seeks a dismissal of the father’s Application in a Proceeding filed 4 March 2024, and for reasons that are unfathomable, seeks orders that the child live with her and she have sole parental responsibility. There are already orders to that effect made on 26 May 2023. The mother also seeks an order that the child spend no time with, nor communicate with, the father and orders pursuant to ss 68B and 68C of the Family Law Act 1975 (Cth) (“the Act”).
The Independent Children’s Lawyer (“the ICL”) supported the mother’s position submitting that the orders for the child to spend time with the father be discharged.
SUBMISSIONS OF THE FATHER
The father made similar submissions to those made when I heard this matter on 19 February 2024. He submitted the orders made on 26 May 2023 contemplated that there would be a sensitive and sophisticated transition of the child into the care of the mother and that the mother has not been able to do so. He submitted that subsequent events demonstrate that the mother is unable to properly parent the child and that the child is at a risk of harm in the mother’s care.
He submitted the evidence reveals that the child has threatened to harm himself, that the evidence of the child is clear that he does not want to and will not live with the mother. He submits the risks are significantly greater now than before and the father’s proposal provides the least risk of harm to the child. On the father’s proposal, the child will be able to have a relationship with the father, the child will be able to live in a home cared for by a parent, it accords with the child’s views and avoids the risk of harm the child has threatened. He further submits the child’s circumstances are significantly more serious now than they have been in the past and that the only viable alternative is for the child to live with the father.
SUBMISSIONS OF THE MOTHER
The mother submitted that the father has never attempted to comply with any orders. He submits the mother’s affidavit sworn 26 March 2024 and the matters identified in the aide memoire together with the video recording (Exhibit 4) demonstrate the father was actively involved in the frustration of the court’s orders. He contends that this conduct bears a remarkable similarity to the father’s past involvement in a breach of court orders that was the subject of comment by Justice Austin.
He submitted the father did not comply with the orders made on 20 February 2024 which required delivery of the child to the mother, but rather, the father simply dropped the child at McDonalds. He submitted the child’s behaviour is entirely predictable and entirely consistent with what Justice Austin anticipated could happen. He submitted that for a period of approximately five months subsequent to the final orders, the child settled in the mother’s care and that if the father’s influence is removed and the child is given a further opportunity to settle in the mother’s care, then he will do so.
SUBMISSIONS OF THE ICL
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).
Annexed to the father’s affidavit filed 15 March 2024 is a copy of the Discharge Summary from the hospital which records that the child was seen on 21 February 2024, refers to the assertion that he was going to self-harm and states that he is going to kill himself if he is discharged into the mother’s care. It records that the on-call psychiatrist was contacted and that there was no need for a psychiatric admission.
The mother said that the hospital subsequently informed her that the alleged disclosure of attempted self-harm related to an incident in 2023, was not a new disclosure and the hospital did not hold any concerns for his wellbeing or mental health.
The child continues to live with Mr R and Ms S, has not spent time with his mother, but has spent time with his father pursuant to the final orders.
The father has not returned the child to the mother at the end of each period of time the child has been with him since the orders of 20 February 2024.
Admissibility of Audio Recording
An issue arose in the course of the proceedings as to the admissibility of an audio recording made by the child on his mobile phone of a conversation involving the mother and a social worker at the hospital and whether it constituted a breach of the Surveillance Devices Act 2007 (NSW) (“the Surveillance Act”) and if so, whether it was otherwise admissible pursuant to s 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”). The father’s evidence is to the following effect:
31.During the course of driving [X] to [Mr R and Ms S’s house], [X] informed me that he had recorded a conversation between he and his mother at the hospital at a time when a social worker was present. In the course of this recording, [X] informed me that his mother said to him words to the effect that he could commence living with me once the final property settlement Orders had been made.
32.When [X] told me this, he was extremely upset and angry. [X] said to me words to the effect:
“I have been saying the whole time mum doesn't love me. She just treats me as a means to make more money in the property settlement”.
33.[X] then proceeded to text to me the audio recording of he and his mother along with that the social worker. Exhibited to Affidavit and marked “A” is a copy of the audio recording taken by [X].
(Affidavit of the father filed 4 March 2023)
The mother, in her affidavit filed 6 March 2024, in relation to this recording says:
42.About 11.55am [X] agreed to speak to me and the social worker together. I was not aware that when [X] spoke to me he was recording me.
…
57.[Mr Bradshaw’s] behaviour is escalating. [X] would never on his own think to record a social worker. I suspect that he also made other recordings that day and that it is likely [Mr Bradshaw] was present with [X] when the ICL telephoned him at the hospital.
The father’s solicitor submitted that he did not accept the truthfulness of the mother’s evidence that she was not aware that she was being recorded, alternatively that the recording was reasonably necessary to protect the child’s lawful interests and that the evidence should be admitted as the desirability of admitting the evidence outweighs the undesirability of admitting the evidence (s 138(1) of the Evidence Act).
There is no foundation for the father’s solicitor’s submission that he did not accept the truthfulness of the mother’s evidence. I will address this issue later in these reasons. I am satisfied, consistent with the evidence, that the mother did not consent to the recording of the conversation.
Section 7(1) of the Surveillance Act provides as follows:
(1) A person must not knowingly install, use or cause to be used or maintain a listening device—
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
Section 7(3) of the Surveillance Act provides that sub-section (1)(b) does not apply to the use of a listening device by a party to a private conversation if relevantly:
(b)a principal party to the conversation consents to the listening device being so used and the recording of the conversation—
(i)is reasonably necessary for the protection of the lawful interests of that principal party, or …
The solicitor for the father submitted that the recording was reasonably necessary for the protection of the lawful interest of the child. He submitted that the evidence contained in the recording would demonstrate that the mother had admitted that the child can live with the father. He further submitted that the only reasonable inference arising from the alleged conversation between the child and the mother was that the recording demonstrates that there is a deep mistrust between the child and its mother, that the child does not wish to live with the mother. The Case Outline prepared by the father’s solicitor records:
17.Moreover however, [X’s] views haven’t changed nor shifted. Having regard to the interaction between [X] and his mother at [the hospital] [in early] 2024:
…
d.[X] suspects, quite reasonably to be frank, that the mother’s insistence on him living with her is a rouse, necessary to garner more money in a property settlement, whereby at the end of that process he will be cut lose back into the care of the father.
…
27.It is clear that the mother has run a case that the father’s conduct is the cause of the broken relationship between her and [X]. The court has accepted the mother’s evidence about this and acted accordingly, however the court is now confronted with direct evidence which would demonstrates the mother’s true motivation and the acute distress for [X].
28.On any listening of the recording between the child and the mother, the maintenance of the May 2023 final Orders is untenable.
I am satisfied – despite the failure by the father’s solicitor to make a proper concession – that the evidence demonstrates that the mother did not consent to the use of the listening device. I am not satisfied that the recording was reasonably necessary for the protection of the lawful interests of the child.
In that respect, I note in DW & R (2014) 239 A Crim R 192 at [43], the New South Wales Court of Criminal Appeal cited with approval, the observations of Johnson J in Sepulveda v The Queen (2006) 167 A Crim R 108 at [139] that “reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording.”
The father’s solicitor submitted that the child’s lawful interests was that he did not want to live with his mother.
The child’s interests are represented in the Court by the ICL. It was not submitted that the ICL was not placing before the Court the child’s views. The child’s views in relation to living with the mother are well known. They are recorded in the Family Report and recognised in the judgments of Justice Austin and by me. There is no issue in the proceedings that the child wants to live with his father and does not want to live with his mother. For these reasons, I am not satisfied that the recording was reasonably necessary to protect the lawful interests of the child.
I am satisfied that the recording was made in contravention of the Surveillance Act.
The alternative submission of the father was that notwithstanding the evidence was obtained in contravention of an Australian law, the Court should exercise its discretion to admit the evidence as the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. There were various submissions put forward for doing so. I ultimately admitted the evidence having listened to the recording but do not do so for the reasons advanced by the father’s solicitor.
The recording underscores the continuing relevance of the finding made by Justice Austin in his Reasons for Judgment: Bradshaw & Bradshaw(No 2) [2023] FedCFamC1F 430 at [52] (“Bradshaw & Bradshaw (No 2)”). The child was rude and disrespectful to the mother. The recording also underscores the continuing relevance of the finding made by Justice Austin at [80] of his Reasons for Judgment. The recording, contrary to the assertion of the father, does not demonstrate that the mother’s motivations in the proceedings are financially based. Rather, I am satisfied that the recording demonstrates that she attempted to deal with the situation in a child focused, calm and measured way. The father’s summary in his affidavit of what the mother says misrepresents what she said.
The father had in his possession, at the time he prepared his affidavit, the audio recording. The audio recording does not accord with what the father says the mother said. In fact, what the mother says is quite different and on one view, the father’s summary is misleading.
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.
A reading of his Honour’s reasons identify that the length of the moratorium was somewhat arbitrary, but the need was demonstrated by the father’s evidence that he will not force the child to return to the mother if he visits him and wants to stay. There is not a scintilla of evidence that the father has taken any steps to either encourage or return the child to the mother’s care following a period of time with him. In that respect, the father’s attitude has not changed.
I am satisfied, consistent with what the Full Court observed in Freeman and Freeman, that orders are needed to support the Court’s final determination. I am satisfied that it is necessary for the court to make orders similar to those made by Justice Austin on 26 May 2023. Those orders worked for five months and were clearly in the child’s best interests. It is clear that the Court needs to return the child’s living arrangements as soon as possible to those contemplated by his Honour. If there is a breach of the orders by the father at any time during the moratorium period then the moratorium period should begin again. As identified by Justice Austin this hopefully will deter the father from any breach and send a clear message that the court expects the father to comply with its orders.
I am also satisfied that the child needs to understand that he does not make decisions about where he lives. It is not for him to assume the responsibility of determining his living arrangements. The Court has made orders, and the child needs to understand that the orders are to be complied with. Each party has filed applications and responses seeking new parenting orders. An updated Family Report has been ordered and the Court will, in due course, consider again the making of parenting orders.
However, until that happens, the child needs to understand that he needs to live with his mother as mandated by the orders. In the event that he does not, the period of time in which he does not see his father will be extended by each day that he does not live with his mother.
Consistent with the tenor of the orders as made by Justice Austin, the moratorium period will be enforced by an injunction restraining the father from any form of contact with the child pursuant to s 68B of the Act. Such order will be made as it is necessary to protect the child from the father’s emotionally abusive behaviour as found by Justice Austin. I am satisfied in circumstances where the evidence to date demonstrates no attempt by the father to comply with the orders compelling the child’s return to the mother, such an order continues to be necessary.
In making a parenting order or a further parenting order the court is required to have regard to the matters in s 60CC of the Act. It is important that the child have a meaningful relationship with both of the child’s parents, not just one. Presently, the child is not having a meaningful relationship with his mother, and I have no confidence that the orders proposed by the father will give effect to that. The Court has previously determined that it is in the child’s best interests to live with his mother, and I am satisfied that to ensure the child has a meaningful relationship with both parents, the final orders need to be given effect to and supported by the changes I propose to make.
I am satisfied based on the undisturbed findings of Justice Austin that the child will likely suffer serious psychological harm if he lived in the father’s primary care. Justice Austin found that the father allowed a situation to develop which was abusive to the child and the child needs protection from that risk of harm: Bradshaw & Bradshaw (No 2) at [47].
Not all of the s 60CC(3) considerations are relevant. I recognise that the child’s views are that he does not wish to live with his mother. He has made that clear to the father and to the Family Report writer. I accept the findings of Justice Austin that the child’s views are not necessarily free of the father’s influence: Bradshaw & Bradshaw (No 2) at [51]. I also note the findings of Justice Austin that the child’s “vehemence” of expressed views and rejection of his mother are incompatible with his character: Bradshaw & Bradshaw (No 2) at [52]. The child’s presentation on the audio recording is entirely consistent with that reported by Justice Austin at [52] of his judgment. He was overly defiant and disrespectful to his mother. I give the child’s views some weight, but they are not determinative.
I am satisfied that the child currently does not have a relationship with his mother, but it is clear on the evidence referred to in my earlier judgment that the child settled into a living arrangement with the mother for approximately five months post the making of final orders.
I have also had regard to s 60CC(3)(d) of the Act and the effect on the child of a separation from his parents. I am not satisfied that it is in the child’s best interests to be separated from his mother. A continuation of the current regime without the intervention of the Court would mean that the child will be separated from his mother in circumstances where the Court has determined that the child’s best interests are that the child live with his mother.
I have had regard to the matters in s 60CC(3)(f) and (i) of the Act and the findings of Justice Austin as to the father’s impaired capacity to provide for the child’s emotional needs. There is continuing evidence of the father’s inability to provide for the child’s emotional needs in circumstances where there is no evidence that he has exercised any parental authority in returning the child to the mother despite there being clear orders to that effect and having the capacity to do so when he chooses. I note the observations of Justice Austin and his recording of the conclusions of the Single Expert that the father is rigid, fixated, and lacking insight and her observation of the manner in which the father had involved the child in the dispute. There is no evidence before me to suggest that the father has gained any insight during the continuance of this litigation. I note the finding of Justice Austin that the father’s capacity to meet the child’s emotional needs is so impaired that he is not a suitable candidate for the role of residential parent and that if the child lived with him, he would lose the valuable relationship with his mother: Bradshaw & Bradshaw (No 2) at [85].
I am satisfied, having regard to all of the above matters, that it is necessary to support the final parenting orders that were made on 26 May 2023. I propose, therefore, to reintroduce the moratorium that was previously ordered by Justice Austin. In the event that the father breaches those orders, then the time will be extended. The time will also be extended by any period of time in which the child does not return to the care of the mother. It is necessary that a strong message be sent to the child that he does not make decisions about where he is to live. I will also provide for the orders to be explained to the child by the ICL.
I am satisfied that the orders I propose are in the best interests of the child.
FATHER’S SOLICITORS’ SUBMISSIONS
During the father’s solicitor’s submissions, I had cause to remonstrate with the father’s solicitors about a submission made without any proper foundation.
This is not the first time the Court has had cause to comment upon submissions made by the father’s solicitor. The Senior Judicial Registrar’s judgment of 4 February 2024 referred to what were clearly intemperate comments made in the father’s written submissions. The Senior Judicial Registrar described them as provocative, inappropriate, and disrespectful to the Court (at [36]). It would appear that that observation has not had any salutary effect.
The father’s Case Outline filed 22 March 2024 described orders made by the Court as “draconian” (paragraph 26). Counsel for the mother referenced correspondence from the father’s solicitor which criticised orders describing them as being made contrary to law. The father’s solicitor holds himself out as an accredited specialist.
The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provide that a solicitor is not the mouthpiece of a client and that a solicitor should not make submissions or express views to a Court on any material evidence or issue in terms which convey or appear to convey the solicitor’s personal opinions on the merits of the evidence or issue. The content of some of the submissions does not accord with this directive.
The Court is assisted by objective dispassionate submissions. It is not assisted by emotional or pejorative ones. The observations of Justice Fowler in Bosgard & Bosgard [2013] FamCA 308 are apposite and bear repeating where his Honour recorded:
39The Court is assisted in the administration of justice where the litigants and legal practitioners focus on the issues of importance to that process. It is assisted where there is a focus on objectivity among legal practitioners and a capacity for them to be independent of their clients in the fulfilment of both their duty to the Court and their duty to clients. A lack of such focus and objectivity gives rise to the possibility of the integrity of the justice system being undermined.
A solicitor’s paramount duty is to the Court and the administration of justice. I further note paragraph 1.4 of the Central Practice Direction provides that solicitors are expected to approach the proceedings in a manner directed towards identifying the issues in dispute and that unnecessarily adversarial conduct will not be tolerated.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 5 April 2024
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