Calwell & Degrave

[2021] FCCA 1257

FEDERAL CIRCUIT COURT OF AUSTRALIA

Calwell & Degrave [2021] FCCA 1257

File number:	MLC 10853 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	27 May 2021
Catchwords:	FAMILY LAW – Final parenting – undefended – where mother seeks to proceed undefended – where mother seeks sole parental responsibility – where mother seeks for child to live with her – where mother is to determine what time father spends with child – where father has failed to comply with orders – where father has failed to attend court – allegations of family violence.
Legislation:	Family Law Act 1975 (Cth) ss 4, 60CA, 65DAC.
Number of paragraphs:	24
Date of hearing:	27 May 2021
Place:	Melbourne
Solicitor for the Applicant:	Ms R Oldham of Cathleen Corridon & Associates
The Respondent:	No Appearance

ORDERS

MLC 10853 of 2020

BETWEEN:

MS CALWELL

Applicant

AND:

MR DEGRAVE

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS THAT:

1.The Mother, Ms Calwell, have sole parental responsibility for the child X born in 2013 ('the child').

2.The child live with the Mother.

3.The Father spend time and communicate with the child at times and on conditions as agreed between the parties in writing by text message or email and in the event of a dispute as to whether or not any particular time, circumstance or condition has been agreed, then the Mother's last communication is to be determinative of that dispute.

4.All extant applications are otherwise dismissed.

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 under the pseudonym Calwell & Degrave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the reasons for judgment ex tempore.  In this case I am asked to make orders on an undefended basis for the Applicant, Ms Calwell (‘the Mother’) with respect to the child X (‘the child’), who is now aged seven, but will soon be eight.  The orders sought are:

   (a)that the Mother have sole parental responsibility for the child;

   (b)that the child live with the Mother; and

   (c)that the child spend time and communicate with the Respondent, Mr Degrave (‘the Father’) as agreed between the parties in writing.

2. As discussed with the solicitor for the Mother, the order that is sought in regard to the third order being; “the child spend time with the Father, as agreed between the parents in writing” at the court's suggestion, the Mother seeks that that order have added to it, the words, “in writing by text message or email and in the event of a dispute as to whether or not any particular time, circumstance or condition has been agreed, then the Mother’s last communication is to be determinative of that dispute.”

3. In this matter, the Mother is aged 33 and the Father is 26.  The Mother issued proceedings on 6 October 2020.  The Father was served personally with those proceedings on 2 December 2020 by a process server.  He was served with the suite of documents that the Mother had issued on, or about, that time.  Those proceedings, as issued, had a return date on 8 December 2020.  On that occasion, the Mother appeared represented by her solicitor and there was no appearance for the Father.  Orders were made that the Father file material and the proceedings were adjourned to 11 March 2021.

4. Pursuant to the order of 8 December 2020, on 4 January 2021 the Mother's solicitor sent to the father a section 67Z response, prepared by the Department of Health and Human Services (‘DHHS’) (as it then was), the interim order of 4 December 2020, and the order of 8 December 2020.  The documents were sent by registered post and included a letter to the Father at the same address as he had been personally served on 2 December 2020.  He was urged to obtain independent legal advice and he was advised that, if he did not attend the court hearing, orders may be made in his absence.

5. Attached to an affidavit of service is a document that evidences that the documents were sent to the Father and that they were collected by him.  They were collected with a signature from an “Mr Degrave” on 12 January 2021.  When the proceedings came on before me, on 11 March 2020, I am told that the day before the hearing, the Mother's solicitor had contacted the Father by telephone to inform him of the hearing the following day.  On the day of 11 March 2020, my associate telephoned the Father and assisted him to participate in the hearing by telephone. 

6. As a result of matters that he told me, I made orders on 11 March 2021 that included an order that the Father undertake a hair follicle test, not before 30 days, but within 42 days of those orders.  The time of that order was negotiated with the Father.  It was negotiated between the Father and myself on the basis that I did not wish to set him up to fail by ordering him to take a hair follicle test that would test positive for illicit substance use.  From what the Father told me, it was clear, that unless he was given a period of time such a test would be positive.  The Father had told me when he was confident that any hair follicle test would be clean, provided the order was made that he not undertake the test before 30 days. 

7. At the time, that was a sensible and mature attitude on behalf of the Father.  The Father was in the hearing by telephone and heard the orders pronounced which adjourned the matter to this day.  The orders of 11 March 2021 noted, at notation B:

   B.On 11 March 2021, the Mother sought that, in the event that the Father does not comply with the order as to the filing of material, that she have leave to proceed on an undefended basis,  but the application was refused and the Court explained to the Father the consequences of an undefended hearing.

8. Hence, I did not fix the matter as undefended on 11 March 2021 but the Father was alerted to the possibility that that may occur.  When the matter came before me today on 27 May 2021 the Mother's solicitor told me two things, which I accept:

   (a)Firstly, that the Mother's solicitor had telephoned the Father on his mobile phone and left a voicemail message for him informing him or, effectively reminding him of the proceedings this day.

   (b)Secondly, that the Mother and the Father had been in communication and the Father exercising, as arranged by the Mother, face time, by electronic communication, with the child, but not face-to-face or personal time. 

9. Hence, I am satisfied that the Father well knows of these proceedings and, for reasons known to him, has chosen not to participant in them.  Further, the Father has not complied with the hair follicle test, either within the timeframe of order number 3, or at all.  Hence, in those circumstances, I determine that it is appropriate for the matter to proceed undefended.  The proceedings relate to the welfare of a child, however, it is not in the child's interests, or the community's, that this matter drift on just in case the Father one day participates in the proceedings or is able to provide a clean hair follicle test. 

10. Turning then, to what is in the best interest of the child, I indicate that I proceed on the basis that the matters is set out in the Mother's affidavit, of 2 October 2020, are true and correct.  I accept the evidence that is contained therein and these reasons and my findings about the child's best interests are based upon what is set out in that affidavit in addition to what is set out in the section 67Z response from the DHHS dated 4 November 2020.  I mark that report as the Court's exhibit C1, 27 May 2021.

11. The child's early life was troubled.  The parents commenced co-habitation in 2011.  The parties lived together until the Father was incarcerated for drug offences soon thereafter.  Family violence commenced between the parties in the second half of 2012, after the Father had been released from prison.  Whilst pregnant with the child, the Mother made the decision to separate from the Father in or about May 2013.  The Mother then recommenced a relationship with the Father later on in about mid-2014 when the child was about one year old.  Family violence continued to mar that relationship.

12. The Mother attempted to leave the Father in about June 2015 and the Father smashed a window and removed the child from the care of the Mother's mother at that time.  At around that time, the Father was incarcerated for a further nine months.  The Father was in prison twice between 2011 and 2013.  On one occasion, he was convicted of trafficking methamphetamines.  He has also been imprisoned for being in breach for a family violence order, criminal damage, assault and other offences.  The Mother asserts he was convicted of firearm offences and breach of bail conditions. 

13. Significantly, the child has had significant involvement from child protection in her life.  I recite the first two paragraphs of the section 67Z response from DHHS dated 4 November 2020 below:

    There has been a total of 13 previous reports made to the DHHS Child Protection relating to X between 2013 and October 2019, with a number of these reports having proceed to investigation and beyond, including one Protection Order in March 2018 to June 2019.  Past concerns for X have related to parental substance abuse; parental acrimony surrounding X's custody causing her instability; a pattern of Ms Calwell entering into relationships with drug users and violent partners and X being exposed to the violence; Ms Calwell’s having untreated mental health issues related to her then illicit substance use and being a recidivist victim of family violence; and X's inappropriate home environment with mother in 2016. 

    It is noted that during the period of involvement in 2018 and 2019 during which X was placed on a Protection Order, Ms Calwell showed indications of positive progress and sustained positive change, and X was reunited with Ms Calwell following a short placement with her Aunt. Despite attempts made by Child Protection to engage Mr Degrave, he failed to engage with Child Protection during this time. 

14. The section 67Z response from DHHS also includes the following paragraphs:

    Reportedly the child has been adversely emotionally impacted by Mr Degrave having failed to attend for scheduled access visits with the child in the past.  It is further reported that Mr Degrave had historically failed to engage with Child Protection or undertake recommended programs and counselling to address his aggressive behaviour and substance abuse issues, thus suggesting that these issues are likely to remain unresolved.

    …

    The information gathered indicates that concerns exist regarding the impact of harm to X related to her trauma history, for which she is receiving relevant professional treatment.  It is noted that as reported, Mr Degrave had in fact failed to engage with Child Protection for investigation and assessment during the previous period involving in 2018 – 2019. 

    A current criminal record check of Mr Degrave has indicated that he may be continuing to engage in a lifestyle that could be detrimental to X’s safety and wellbeing. 

    Given that an assessment has not been possible of Mr Degrave by Child Protection in the recent past, it is respectfully recommended that should the Court consider granting Mr Degrave contact with the child in the future, a new report be made to Child Protection for the purpose of conducting a comprehensive investigation and assessment of Mr Degrave.

15. It is significant that during the involvement of child protection the Father did not engage with child protection at all.

16. The Mother deposes that, for a time, she too used methamphetamines.  Unfortunately, the child was not in the Mother's care from about March 2018 to December 2018.  The Mother attended a drug rehabilitation program between June 2018 and September 2018, and she asserts, and I accept she has not used illicit drugs since that time.  In December 2018, the DHHS returned the child to the Mother's full-time care.  The Mother continued, thereafter, to obtain support which assisted her orderly care of the child.  The child has been in the Mother's full-time care since December 2018, and DHHS supervision of that care has ended in June 2019. 

17. The Mother deposes, and I accept, that the Children's Court ordered that the Father undertake the following:

    (c)a men's behaviour change course,

    (d)attendance upon a psychologist,

    (e)completing an alcohol and drug counselling course,

    (f)complete regular supervised urine screens for illicit drugs.

18. The Mother asserts, and I accept, that the Father failed to undertake those matters as ordered.  The Mother asserts that the Children's Court has not permitted the Father to start spending supervised face to face time with the child until he was clean from illegal drugs.  That is self-evidently a sensible and child-focused approach.  It is the Mother's position in these proceedings that the Father should not have supervised or unsupervised time until she was satisfied that he was clean from illegal drugs. 

19. Given that the Mother knows firsthand the devastation that the use of drugs such as methamphetamines can have upon the drug user's life, as well as all of those around that person including the children.  I am confident that she will, not permit the Father to have supervised or unsupervised time unless she is satisfied, to an appropriate degree, that the Father is clean and not using all illicit drugs.

20. Section 65DAC of the Family Law Act1975 (Cth) (‘the Act’) sets out the consequences of joint parental responsibility and I recite that now:

    Effect of parenting order that provides for shared parental responsibility

    (1)      This section applies if, under a parenting order:

    (a)       2 or more persons are to share parental responsibility for a child; and

    (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

    (2)      The order is taken to require the decision to be made jointly by those persons.

    Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

    (3)      The order is taken to require each of those persons:

    (a)to consult the other person in relation to the decision to be made about that issue; and

    (b)       to make a genuine effort to come to a joint decision about that issue.

    (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

21. Section 4 of the Act defines major long term issues and I recite that below:

    “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

    (a)       the child's education (both current and future); and

    (b)       the child's religious and cultural upbringing; and

    (c)       the child's health; and

    (d)       the child's name; and

    (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

    To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

22. In the circumstances of the Father's violent history, and what appears to be continued drug-use and failure to undertake treatment or therapy for it, it is self-evident that the Mother not only could not, but could not be expected to, consult with the Father before a decision about a major long-term issue is made and make a genuine effort to come to a joint decision.

23. Hence, it's impossible, in the circumstance of this child's life, for section 65DAC to be complied with. Hence, in those circumstances, it is unfortunately necessary that the child only has the input of one parent into decisions concerning major long-term issues.

24. In all of those circumstances, I am satisfied that it is in the best interest of the child for the mother to have sole parental responsibility.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       7 June 2021