Cafferty & Bowles

Case [2024] FedCFamC1F 314

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cafferty & Bowles [2024] FedCFamC1F 314

File number: MLC 3854 of 2023
Judgment of: STRUM J
Date of judgment: 13 May 2024
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – UNDEFENDED HEARING – Where the mother’s solicitors filed a Notice of Ceasing to Act – Where the mother has not filed any documents for the trial – Where the Court is advised that the Independent Children’s Lawyer and solicitors for the father have not had contact with the mother since her solicitors ceased acting for her – Where there is evidence of the mother’s poor mental health – Where the father filed an Application in a Proceeding seeking that the matter proceed on an undefended basis, and this Application was served upon the mother via text message – Where the mother did not appear at the trial – Trial proceeded undefended as against the mother.

FAMILY LAW – PARENTING – Consideration of amendments to Pt VII of the Family Law Act 1975 (Cth) by the Family Law Amendment Act 2023 (Cth) – Final orders made in 2022 that the child live with the father and spend time with the mother and for the parents to have equal shared parental responsibility – Where the father has filed an Initiating Application seeking to relocate to City C, Country B with the child – Where the father seeks to relocate for employment reasons – Where there is a significant change in circumstance – Where the mother’s mental health has deteriorated and she has spent minimal time with the child since the final orders – Where the Family Report Writer’s findings support the child’s relocation to Country B with the father – Where the Independent Children’s Lawyer supports the orders proposed by the father – Relocation allowed – Father to have Parental Responsibility for decision-making for the child in relation to all major long-term issues – Child’s surname, being that of the mother, to include that of the father too.
Legislation:

Family Law Act 1975 (Cth) Pt VII, 60CC, 60CG, 61C, 61D, 61DAB, 64B, 65D, 65DAAA, 68LA, 69ZT

Family Law Amendment Act 2023 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Federal Circuit and Family Court of Australia, Central Practice Direction: Family Law Case Management, 1 May 2024
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 111
Date of hearing: 8 May 2024
Place: Melbourne
Counsel for the Applicant: Mr O’Grady
Solicitor for the Applicant: Pentana Stanton Lawyers
The Respondent: The Respondent did not appear
Counsel for the Independent Children’s Lawyer: Mr Marchetti
Solicitor for the Independent Children’s Lawyer: Clark Family Lawyers

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Cafferty & Bowles [2024] FedCFamC1F 314
Case
[2024] FedCFamC1F 314
Decision Date

CaseChat Overview and Summary

This case concerns final orders sought by consent between the father and the Independent Children’s Lawyer in relation to the parenting of a child born in 2018. The mother, who had ceased to be represented by solicitors, did not participate in the trial and it proceeded undefended as against her. The primary legal issue was whether the final orders proposed by the father and the Independent Children’s Lawyer were in the best interests of the child. The court needed to determine whether the proposed orders, including the father’s relocation with the child to Country B, were appropriate in light of the mother’s poor mental health and her lack of engagement in the proceedings.

The court found that exceptional circumstances existed which justified the Independent Children’s Lawyer not performing certain duties under the Family Law Amendment Act 2023. The court considered the safety of the child, the mother’s mental health history, and the fact that the child had lived with the father since early 2020. The trial proceeded undefended by the mother, and there was no evidence presented to contradict the proposed orders. The court concluded that the proposed orders would promote the child's safety and were in their best interests.

The court made several final orders, including that the child live with the father and relocate with him to Country B, that the father have sole parental responsibility for major decision-making, and that the mother spend supervised time with the child. Communication arrangements and other provisions were set out to ensure the mother could maintain a relationship with the child. The court also noted that the mother did not attend or participate in the trial, despite being called and contacted by the court and the Independent Children’s Lawyer.

Orders

Orders of the court

MLC 3854 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CAFFERTY

Applicant

AND:

MS BOWLES

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

STRUM J

DATE OF ORDER:

13 MAY 2024

THE COURT ORDERS THAT:

Name

1. The child presently known as X born 2018 hereafter be known as X (“the child”).

2. The Applicant Father be at liberty to apply to the Victorian Registry of Births, Deaths, and Marriages to register the change of the child’s name, in accordance with order 1, and do all such acts and things necessary and sign all such documents as may be required to give effect to that registration.

Parental Responsibility

3. The Applicant Father, to the exclusion of the Respondent Mother, have Parental Responsibility for decision-making for the child in relation to all major long-term issues provided that he keep the respondent mother promptly advised of such decisions by email or text-message to an email address and/or mobile telephone number provided by her to him for such purpose.

Live With

4. The child live with the Applicant Father.

Relocation

5. The Applicant Father be and hereby is permitted to relocate the child to Country B as and from 21 June 2024.

6. The Applicant Father give the Respondent Mother not less than 14 days notice of the date on which he intends to relocate the child to Country B.

Spend Time Pending Relocation

7. Until such time as the child relocates to Country B pursuant to order 5, the child spend time with the Respondent Mother supervised by Ms D or such other supervisor agreed between the Applicant Father and Respondent Mother (“the Contact Centre”) at such times as nominated by the Contact Centre or as otherwise agreed between the Applicant Father and Respondent Mother AND FOR SUCH PURPOSES the Respondent Mother:

(a) contact the Contact Centre within 48 hours of the making of these orders and request an appointment for assessment for suitability for supervised contact;

(b) attend for assessment at times and places appointed by the Contact Centre;

(c) attend any appointments made by the Contact Centre for supervised time;

(d) comply with all reasonable rules of the Contact Centre; and

(e) comply with all reasonable requests of the Contact Centre.

8. Provided the Applicant Father has not yet relocated the child to Country B THEN within 7 days of the Respondent Mother performing her obligations in order 7(a) and (b), the Applicant Father:

(a) contact the Contact Centre and request an appointment for assessment for suitability for supervised contact;

(b) attend for assessment at times and places appointed by the Contact Centre;

(c) attend any appointments made by the Contact Centre for supervised time;

(d) ensure the child attends any appointments made by the Contact Centre for supervised time;

(e) comply with all reasonable rules of the Contact Centre; and

(f) comply with all reasonable requests of the Contact Centre.

9. If the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised time, the Respondent Mother spend time with the child at such reasonable times and frequency nominated by the Contact Centre and such time occur at the Contact Centre.

10. The time under order 9 be supervised by staff nominated by the Manager of the Contact Centre and the Applicant Father pay the reasonable fees for the supervision on each occasion of supervision AND the Respondent Mother pay for her own intake assessment.

11. The Applicant Father deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.

Spend Time and Communication Following Relocation

Communication

12. The Respondent Mother be at liberty to send letters, cards, emails and gifts to the child to an address (including email address) nominated by the Applicant Father.

13. The Applicant Father nominate an address to which the Respondent Mother may send letters, cards and gifts to the child within 14 days of him relocating to Country B.

14. The Respondent Mother communicate with the child by Zoom or other agreed technology as follows:

(a) On 18 March each year (between 5.00 pm and 6.00 pm Country B time);

(b) On 21 August each year (between 5.00 pm and 6. 00 pm Country B time);

(c) On Mother’s Day (in Australia) each year (between 9.00 am and 10.00 am Country B time);

(d) On 25 December each year (between 9.00 am and 10.00 am Country B time);

(e) On 26 December each year (between 9.00 am and 10.00 am Country B time);

(f) Each Wednesday (between 5.00 pm and 6.00 pm Country B time); and

(g) At any other dates and times agreed by the Applicant Father and Respondent Mother in writing.

15. The Respondent Mother send to the Applicant Father the link to be used for communication in order 14 not less than 24 hours prior to the communication taking place.

16. The Applicant Father be at liberty to monitor communication that takes place pursuant to order 14.

17. The Applicant Father be at liberty to audio and visually record communication that takes place pursuant to order 14.

18. The Applicant Father be at liberty to terminate communication in order 14 on any occasion if he reasonably considers the time is unsafe for the child.

Spend Time

19. From 1 January 2025, not less than once per calendar year, the Applicant Father cause the child to return to the Commonwealth of Australia (“Australia”) for a single period of not less than 10 days.

20. The Applicant Father give the Respondent Mother not less than 90 days’ notice of the dates he intends to return the child to Australia pursuant to order 19.

21. Upon the child returning to Australia pursuant to order 19, the child spend time with the Respondent Mother supervised by Ms D or such other supervisor agreed between the Applicant Father and Respondent Mother (“the Contact Centre”) at such times as nominated by the Contact Centre or as otherwise agreed between the Applicant Father and Respondent Mother AND the Applicant Mother:

(a) contact the Contact Centre within 60 days of the making of these orders and request an appointment for assessment for suitability for supervised time;

(b) attend for assessment at times and places appointed by the Contact Centre;

(c) attend any appointments made by the Contact Centre for supervised time;

(d) comply with all reasonable rules of the Contact Centre; and

(e) comply with all reasonable requests of the Contact Centre.

22. If the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised time, the Respondent Mother spend time with the child during the child’s visit to Australia pursuant to order 19 at times nominated by the Contact Centre for not less than four (4) occasions in the 10 day period and such time is to occur at the Contact Centre.

23. Time under order 22 be supervised by staff nominated by the Manager of the Contact Centre and the Applicant Father and Respondent Mother pay the reasonable fees for the supervision on each occasion of supervision in equal shares.

24. The Applicant Father cause the child to be delivered to and collected from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.

25. The Applicant Father be relieved of his obligation to cause the child to travel to Australia pursuant to order 19, unless the Respondent Mother provides the Applicant Father, no later than 60 days before the date nominated by the Applicant Father pursuant to order 20, written confirmation from the Contact Centre that the Respondent Mother and the child have been accepted by that service for supervised time.

Spend Time in Country B

26. The Respondent Mother spend time with the child in Country B as follows:

(a) Upon the Respondent Mother nominating a single ten (10) day period each calendar year during which she will travel to and be present in Country B; AND

(b) Giving not less than 90 days’ notice to the Applicant Father of the dates she will be in Country B,

on not less than four (4) occasions during each 10 day period, with each occasion being of not less than 2 hours’ duration supervised by such supervisor as the parties agree (and in default of agreement as determined by the Applicant Father) and at such venue as the parties agree (and in default of agreement as determined by the Applicant Father).

Provision of Information

27. The Applicant Father provide to the Respondent Mother the name of all schools at which the child is enrolled within 7 days being so enrolled.

28. The Applicant Father authorise all schools at which the child may attend to:

(a) Provide the Respondent Mother, at the expense of the Mother, copies of all reports, notices and applications for photographs in relation to the child; and

(b) Communicate with the Respondent Mother in writing with respect to the child’s progress.

29. Both parents be entitled to receive, at their own request and expense, any and all information in relation to the health and welfare of the child, including but not limited to details of any illness suffered by the child and treatment required AND this Order constitutes an authority to child’s medical practitioners and allied health professionals to provide that information.

30. The Applicant Father and Respondent Mother keep the other parent informed within two (2) days of any change to their residential or postal address, landline and mobile telephone numbers and email address.

31. The Applicant Father:

(a) keep the Respondent Mother informed of the names, addresses and email of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the Respondent Mother with information that they are lawfully able to provide about the child; and

(b) inform the Respondent Mother as soon as practicable of any emergency medical condition, significant health emergency issue or significant illness suffered by the child and authorise any treating practitioner to release the child’s medical information to the Respondent Mother.

Injunctions and Restraints

32. The Applicant Father and Respondent Mother be and hereby are restrained by injunction from:

(a) Abusing, belittling, rebuking or otherwise denigrating the other; and

(b) Discussing these proceedings with or in the presence of the child and from permitting any other person to do so.

Miscellaneous

33. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), a passport or travel document (within the meaning of that Act) may issue for the child upon application by the Applicant Father, and without requiring the consent of the Respondent Mother to the child travelling outside of Australia or her signing passport or passport renewal applications and for the avoidance of doubt this order expressly permits and/or authorises a passport or travel document to issue for the child.

34. The Applicant Father be and hereby is authorised to obtain a Country B passport for the child without the consent of the Respondent Mother.

35. The Applicant Father and Respondent Mother be and hereby are permitted to disclose a copy of these orders to:

(a) Any public authority or Court in Country B (together with a copy of the Reasons for Judgment);

(b) Any medical practitioner upon whom the child attends; and

(c) Any school at which it is intended the child be enrolled at or attend.

36. Within 7 days of these orders being published, the Applicant Father serve these orders (together with a copy of the Reasons for Judgment) upon the Respondent Mother with such service to be effected by:

(a) Email to the address …@...; AND

(b) SMS text message to ….

37. The Independent Children’s Lawyer (“the ICL”) meet with and advise the child of these orders by no later than 17 May 2024.

38. Upon the Independent Children’s Lawyer complying with order 37, her appointment be discharged.

39. All extant applications be dismissed and the proceedings be removed from the docket of the Honourable Justice Strum.

AND THE COURT NOTES THAT:

A. These orders are made with the consent of the Applicant Father and the Independent Children’s Lawyer.

B. The Respondent Mother did not attend at trial. She was called inside and outside of Court. She was telephoned by the Court.

C. Counsel for the Independent Children’s Lawyer informed the Court the Independent Children’s Lawyer called the Respondent Mother that day and the Independent Children’s Lawyer left her a voicemail message advising of the Court hearing and the requirement for her to be in attendance.

D. In the circumstances on the morning of the first day on which the trial was listed, namely, 8 May 2024, an order was made that the matter proceed undefended as against the Respondent Mother.

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.

Background

Background to the litigation

These are my reasons for judgment, in which final orders are sought by consent, as between the applicant father and the Independent Children’s Lawyer, undefended by the respondent mother. I must, nevertheless, be satisfied that the orders sought by the father and the Independent Children’s Lawyer are in the child’s best interests, including for the father to have parental responsibility for decision making for the child in relation to all major long-terms issues (to the exclusion of the mother); for the child to (continue to) live with the father and to relocate with him to Country B; for the child to spend supervised time with the mother; and for the father’s surname to be added to that of the child (being that of the mother). For the reasons that follow, I am so satisfied.BACKGROUND In or about early 2020, the child was placed in the father’s care by the Department of Families, Fairness and Housing. Subsequently, after the institution of proceedings in the then Federal Circuit Court (now known as Division 2 of the Federal Circuit and Family Court of Australia) in April 2020, and until October 2021, interim orders were made on a number of occasions which provided for the child to live with the father and spend time with the mother, including under supervision. On 9 November 2022, final orders were made by consent (“2022 Orders”) which, in summary, provided for the parties to have equal shared parental responsibility for the child and for the child to live with the applicant father and spend time with the respondent mother. Such time included: each alternate weekend, from Friday evening until Sunday evening; each alternate Wednesday afternoon/evening; during kindergarten and school holidays; and on special occasions. The mother’s time was provided to be:… conditional upon her receiving ongoing therapy with psychologist [Mr E] or other suitable psychologist for a minimum period of twelve (12) months or as otherwise recommended by her treating psychologist, with the Mother to provide documentary evidence of her attendance (receipt or similar) to the Father’s email […@...] within 14 days of the Father’s request to the Mother. It is clear, inter alia, from the report of the single expert consultant psychiatrist, Dr F, dated 27 November 2023, annexed to an affidavit affirmed by him and filed by the Independent Children’s Lawyer on 4 March 2024, that the mother has a long history of poor mental health, both preceding and following the making of the 2022 Orders. She has made a number of suicide attempts, including one shortly prior to separation and two within a period of some 18 months thereafter. The Independent Children’s Lawyer tendered an optimistic letter from the mother’s treating psychologist, Mr E, dated October 2022, some 10 days prior to the making of the 2022 Orders, regarding her apparent mental health at that time which, the father deposes, contributed to his consent thereto. However, it soon became apparent that the optimism of Mr E and the father in late October–early November 2022 was misplaced.

Evidence

Evidence Before The Court

The Amendment Act was assented to on 6 November 2023 and provided that the relevant amendments commenced operation on 6 May 2024. Accordingly, the Independent Children’s Lawyer should have known of the impending requirements of these provisions and that they were to commence operation prior to the trial, albeit only very shortly so. Nevertheless, s 68LA(5B)(c) provides that an Independent Children’s Lawyer is not required to perform a duty specified in that section if “there are exceptional circumstances that justify not performing the duty”. Section 68LA(5D) provides, inter alia, that if an Independent Children’s Lawyer proposes not to perform a duty because of s (5B)(c), the court must determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty. For the reasons that follow, I am satisfied that, in the particular circumstances of this case, exceptional circumstances exist that justify the Independent Children’s Lawyer not having complied with s 68LA(5A). In summary, these include, the very recent commencement of operation of s 68LA(5A); the fact that s 68LA(5B)(a) provides that an Independent Children’s Lawyer is not required to perform the duties in subsection (5A) if a child is under five years of age and the subject child is only five years of age; pursuant to the 2022 Orders the child already lives with the father and it is agreed between the Independent Children’s Lawyer and him that he will continue to do so; the father seeks to relocate with the child to Country B as and from 21 June 2024, in six weeks’ time; if the trial were to be adjourned by reason of subsection (5D)(b), it could not be relisted before me until August, at the earliest; the father seeks to relocate well prior to the commencement of the northern hemisphere academic year in September, in order for the child to commence to settle in to life in Country B; the father (and the mother, by her failure to participate at trial) does not urge upon the Court that exceptional circumstances do not exist; and, indeed, the orders proposed by the father and the Independent Child’s Lawyer provide for the Independent Children’s Lawyer to meet with the child. Indeed, the father contends that exceptional circumstances do exist. However, given the particular circumstances, this case is not the appropriate vehicle through which to consider what might otherwise generally constitute “exceptional circumstances” for the purpose of s 68LA(5B)(c). EVIDENCE The father relies upon the following affidavits: his affidavit, filed on 20 March 2024; an affidavit of his mother, Ms J, filed on 20 March 2024; and an affidavit of Ms H, psychologist, filed 21 March 2024. The Independent Children’s Lawyer relies upon the following affidavits: an affidavit of Mr K, family consultant and psychotherapist, filed 15 December 2023, annexing a Family Report dated 22 November 2023; and an affidavit of Dr F, psychiatrist, filed 4 March 2024, annexing his psychiatric assessment of the mother dated 27 November 2023.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 65D(1) of the Act (as amended) now provides:(1)In proceedings for a parenting order, the court may, subject to section 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.CONSIDERATION OF S 60CC(2) MATTERS(a) What arrangements would promote the safety (including safety from being subjected to, or exposed to family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)? As noted above, in considering this matter, the Court must include consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child) and any family violence order that applies or has applied to the child or a member of the child’s family. Given the mother’s failure to participate in the proceedings since I made trial directions on 23 February 2024, to comply therewith and to appear at trial, the trial proceeded undefended by her and there is no contradictor to the orders sought by the father, as the Independent Children’s Lawyer joins with him in seeking same. I note that an intervention order was made against the father, in favour of the mother and, initially, the child after separation. This was at a time when the child had been placed in the father’s care by the Department of Families, Fairness and Housing. The Department promptly thereafter advised the father that it supported the removal of the child from the intervention order. In any event, the fact of an intervention order, some five years later, when proverbially much water has passed under the bridge and the child has lived with the father since early 2020, is of reduced (if any) relevance at the present juncture in time. I consider that the orders sought by the father and the Independent Children’s Lawyer will have no adverse impact on the safety of the mother or him. However, I consider that they will promote the safety of the child. The mother’s psychiatric health has long been, and remains, of concern. In the absence of any evidence adduced by her from her treating psychologist or psychiatrist (as opposed to the single expert consultant psychiatrist), the Court must proceed with caution. Whilst the mother attended upon Dr F in August 2023, and he produced his report on 27 November 2023, her unexplained failure to engage in the proceeding since the trial directions hearing before me on 23 February 2024, and to appear at trial, is troubling. Dr F reports that, upon examination, over eight months ago, the mother did not display any agitation; her affect appeared within normal limits, with no evidence of depression or anxiety; there was no disorder of thought form; in terms of thought content, there were no significant depressive or anxious themes, suicidal or self-harm ideation or delusions; he could not detect any abnormality of cognition or perception; and, in terms of insight, she acknowledged she had had a psychotic episode and was (then) apparently compliant with ongoing medication, as well as antidepressants, and ongoing psychological therapy from Mr E. However, he noted that, according to a hospital file, the mother had had multiple registrations (namely, episodes of care), with ta hospital unit, between mid-2016–early 2022, preceding the 2022 Orders.