Cayson & Arvidis (No 2)
[2023] FedCFamC2F 1602
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cayson & Arvidis (No 2) [2023] FedCFamC2F 1602
File number(s): MLC 4925 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – final parenting orders – sole parental responsibility – children live with father – spend time with mother as agreed by parties – undefended hearing – mother did not participate in the hearing – injunctions on mother – suspended supervised time – father be at liberty to apply for children’s passport without mother’s consent Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.26, 10.27
Cases cited: Cayson & Arvidis [2023] FedCFamC2F 1258 Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 16 November 2023 Place: Melbourne Solicitor for the Applicant: James Brown And Associates The Respondent: No appearance Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates ORDERS
MLC 4925 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAYSON
Applicant
AND: MS ARVIDIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant Father has permission to pursue his application for Parenting Orders on an undefended basis pursuant to Order 10 of the 18 September 2023 Interim Orders, as contemplated under Rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Rules”) and permission to seek judgment in default under Rules 10.26 and 10.27 of the Rules.
Final Parenting Orders
2.Subject to Order 1 herein, all previous Orders are hereby discharged.
3.The Father have sole parental responsibility for making decisions about major long-term issues for the children X born in 2017 and Y born in 2019.
4.That for the purposes of these Orders a major long-term issue shall include, but is not limited to, issues about:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(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.
5.The children live with the Father.
6.The children spend time with the Mother at times as agreed between the parents in writing, and in the event that the children (or either of them) express a wish to spend time with the Mother, then the Father shall do all things reasonably necessary to facilitate same.
7.During time with the children, the Mother is restrained by injunction from consuming or otherwise being under the influence of any of the following:
(a)Illicit drugs; and/or
(b)Any non-prescribed or in excess of prescribed opioid or extended opioid-type prescription drugs; and/or
(c)Any non-prescribed or in excess of prescribed medication-type prescription drugs; and/or
(d)Any cannabinoid/THC type drugs.
THE COURT DECLARES THAT:
8.Pursuant to Sections 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied:
(a)That it is not practicable to obtain the consent of the Respondent Mother to enable the children of the relationship X born in 2017 and Y born in 2019 to obtain an Australian Passport to travel internationally, the Court makes the following Orders:
THE COURT ORDERS THAT:
9.The Applicant Father of the children be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Respondent Mother of the children has not signed the passport application form and furthermore the children be permitted to travel internationally without the permission of the Respondent Mother.
10.These Orders shall, without more, act as authority to each of the children’s schools, co-curricular activities organisers and outside school hours care facilities to provide the Father, Ms E and their servants and agents (at the Father’s expense) and the Mother (at the Mother’s expense) information about the children’s education progress, school-related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.
11.These Orders shall, without more, act as authority to each of the children’s medical practitioners (including counsellors and psychologists) to provide the Father, Ms E and their servants and agents (at the Father’s expense) and the Mother (at the Mother’s expense) information about each child’s treatment and any medical conditions and copies of medical reports and records.
12.The Mother is not permitted to attend school functions and events to which parents are usually invited without the written consent of the Father and further such attendance will be subject to the discretion of the school for the purpose of avoiding surprise to the children (it is not alleged that there is a risk of other harm).
13.The Father is granted leave to provide the school and outside school hours care facility attended by each of the children, and the children’s usual treating medical practitioners (including counsellors and psychologists) with a copy of these Orders.
14.The Father is at liberty to provide to the child’s usual treating medical practitioners (including counsellors and/or psychologists) a copy of the 22 May 2022 Psychiatric Assessment and Report of the Mother, prepared by Dr C, Psychiatrist, filed 15 June 2022.
15.The Mother is restrained from removing either of the children from the care of the Father, his servants or agents, or from any location where the Father, his servants or agents may place either of the children, including but not limited to either of the children’s schools.
16.The parties, their servants and agents be and are hereby restrained from:
(a)Denigrating, insulting, rebuking or otherwise speaking negatively about the other party, a partner of the other party, members of the other party’s family, or their household, to or in the presence or hearing of the children, or allowing any other person to do so; and
(b)Discussing these proceedings in the presence of the children or allowing another person to do so.
17.Both parents will keep the other informed of any changes to their contact details (including phone number or email) within 24 hours of that change.
18.The Father shall keep the Mother informed as soon as practicable of any serious illness or injury suffered or sustained by either of the children.
19.The Independent Children’s Lawyer be and is hereby discharged.
20.All outstanding applications be dismissed and the matter be removed from the pending cases list.
THE COURT NOTES THAT:
A.The Mother last spent professionally supervised time with the children on 4 June 2023.
B.The Mother’s professionally supervised time with the children was suspended by Order 3 of the Court’s Interim Orders dated 18 September 2023 (“the Interim Orders”).
C.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors and repetition have been corrected, heading, citations and/or passages of authorities and evidence added and an attempt has been made to make the orally delivered reasons easier to read. But the substance is unchanged.
The matter of Cayson & Arvidis concerns the children X, aged 6, and Y, aged 4. X was born in 2017 and Y in 2019. The Mother has not appeared at this hearing today. I need to firstly deal with the Father’s application to proceed on an undefended basis for final orders concerning X and Y. I will then deal with the orders sought by the Father and the Independent Children’s Lawyer (‘ICL’).
The tragedy of the proceedings is that the Mother obtained orders for supervised time, which were only able to be complied with by her on 7 May, 21 May and 4 June 2023. The Mother then cancelled that supervision on 18 June and 16 July and 30 July and 30 August 2023. On 18 September 2023, I made orders suspending the existing orders for supervised time because I was concerned at the impact of inconsistent and uncertain attendance by the mother at the supervision facility.
In this judgment I refer to and repeat the observations in the reasons given in the judgment of 18 September 2023 anonymised as Cayson & Arvidis [2023] FedCFamC2F 1258.
Applicable law
I recite below the relevant Rules in this matter pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), as referred to by the ICL:
1.33 Failure to comply with a legislative provision or order
(1)If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a)dismiss all or part of the proceeding;
(b)set aside a step taken or an order made;
(c)determine the proceeding as if it were undefended;
(d)order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
Note: This subrule does not limit the powers of the court. It is an expectation that a non‑defaulting party will minimise any loss.
…
10.26 When a party is in default
(1)For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
(a)comply with an order of the court in the proceeding; or
(b)file and serve a document required under these Rules; or
(c)produce a document as required by Division 6.2.2; or
(d)do any act required to be done by these Rules; or
(e)prosecute the proceeding with due diligence.
(2)For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a)give an address for service before the time for the respondent to give an address has expired; or
(b) file a response before the time for the respondent to file a response has expired; or
(c)comply with an order of the court in the proceeding; or
(d)file and serve a document required under these Rules; or
(e)produce a document as required by Division 6.2.2; or
(f)do any act required to be done by these Rules; or
(g)defend the proceeding with due diligence; or
(h)prosecute with due diligence any application the respondent has made in the proceeding.
10.27Orders on default
(1)If an applicant is in default, the court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time referred to in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(2)If a respondent is in default, the court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b)give judgment or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the proceeding in the time limited in the order.
(3)The court may make an order of the kind referred to in subrule (1) or (2), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
I also refer to and apply Rule 15.19
Notice to admit facts or documents
(1)A party to a proceeding (the first party ) may, by notice in accordance with the approved form, ask another party to admit, for the proceeding, the facts or documents specified in the notice.
(2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.
(3)The other party may, with the Court's leave, withdraw an admission taken to have been made under subrule (2).
(4)Unless the Court otherwise orders, if the other party serves a notice disputing a fact or the authenticity of a document and the fact or the authenticity of the document is later proved in the proceeding, the other party must pay the costs of the proof.
Undefended final orders
The first issue is whether the Mother has had the opportunity to participate in the proceedings.
I am satisfied The Mother has been provided with the following notice and opportunities to be heard;
(a)Order 5, 6 July 2021 Interim Orders: to file her Response and supporting affidavit no later than 7 days prior to the return date;
(b)Notation B, 6 July 2021 Interim Orders: to voluntarily provide a hair follicle test to assist the Court;
(c)Affidavit of Service by [Mr F], Process Server, sworn 21 September 2021, with special service of the following documents effected on 29 August 2021:
(i) Application for Final Orders filed 3 May 2021;
(ii) The Father’s Affidavit filed 3 May 2021;
(iii) Application for Interim Orders filed 3 May 2021;
(iv) Notice of Child Abuse, Family Violence or Risk filed 3 May 2021;
(v) A copy of the 6 July 2021 Interim Orders; and
(vi) Cover letter to the Mother dated 19 August 2021.
(d)Order 2, 22 September 2021 Interim Orders: ordinary service of the 22 September 2021 Orders by email to … from the Father’s representative on 22 September 2021 (23:02);
(e)Order 7, 28 January 2022 Interim Orders: to file any further material by no less than 30 days prior to the Interim Defended Hearing, then listed for 26 June 2022, but heard on 16 June 2022. Instead, the Mother was served with a Notice of Intention to Withdraw as Lawyer dated 15 June 2022.
(f)Order 11, 16 June 2022 Interim Orders: to file and serve any further affidavit material no less than 7 days prior to the Interim Defended Hearing listed for 21 September 2022. The Mother’s (then) solicitor filed the Mother’s Affidavit, affirmed 14 September 2022, that same day, detailing various reasons why the Mother could not show satisfactory progress towards addressing protective concerns.
The Mother has failed to provide any response to the following communications from the Court and the parties:
(a)27 September 2023 (12:14): The Court's email to the parties, attaching a sealed copy of the 18 September 2023 Orders;
(b)2 October 2023 (15:16): The Court's email to the parties, attaching a certified copy of the Court's ex tempore reasons for judgment on 18 September 2023;
(c)1 November 2023 (21:45): The Father's special service on the Mother of the 18 September 2023 Interim Orders, the Father's Amended Initiating Application and the 11 September 2023 Notice of Ceasing to Act from the Mother's former representatives;
(d)3 November 2023 (12:43): The Court's email to the parties, checking the parties' pre-hearing compliance and confirming that a Defended Hearing will proceed in Melbourne on Thursday, 16 November 2023;
(e)8 November 2023 (20:22): The reply by the Father's representative to the Court's compliance check request, copying in the parties as required;
(f) 13 November 2023:
(i)(21:07): The email from the Father's representative attaching a copy of a proposed Statement of Agreed Facts, inviting input and response;
(ii)(21:40): The email from the Father's representative to the Court and the parties confirming that the Applicant's filing fee has been paid;
(g) 14 November 2023:
(i)(15:48): The email from the Father's representative attaching a copy of the proposed Final Orders and a Statement of Agreed Facts, inviting response; and
(ii)(16:16): The email from the Independent Children's Lawyer, replying to the parties, inviting the Mother's response and requesting her indication as to whether she intends on participating in this Court proceeding further and appearing at Court at 10:00am on 16 November 2023.
The Mother was represented by lawyers until 11 September 2023, when her former lawyers filed a notice of ceasing to act. That document provided the Mother's last known email address, residential address and a phone number ending in ….
The Father's solicitor then emailed the Mother the orders that I made on 18 September 2023 and, later, the settled reasons of that day. They used the email address that was set out in the notice of ceasing to act filed on 11 September 2023.
In addition, the Father's solicitor arranged a process server to personally serve the Mother with the following documents on 1 November 2023:
·the orders of 18 September 2023;
·the Father's amended initiating application filed 17 September (whereupon he pressed for an undefended hearing of orders that the children live with him and the mother's time be subject to his agreement); and
·the notice of ceasing to act filed on 11 September 2023.
This day at 9.53 am, the ICL attempted to telephone the Mother to remind her of this court hearing and requested that she contact his office. The call went through to message bank. At about 11:00am this day in open court, my Associate called the same number, and the call went through to message bank.
I am satisfied that the ICL and the Father's solicitor have bent over backwards to give the Mother every opportunity to participate in the proceedings. Tragically, she has not and has not provided any explanation as to why she has not.
I refer to and repeat and find the matters that are described in the notations to the draft orders provided by the Father’s solicitor, which read:
(a)The Mother last spent professionally supervised time with the children on 4 June 2023.
(b)The Mother’s professionally supervised time with the children was suspended by Order 3 of the Court’s Interim Orders dated 18 September 2023 (“the Interim Orders”).
(c)The Mother has failed to seek the reportable psychological treatment required under Order 4 of the Interim Orders.
(d)The Mother has failed to provide the results of a third hair follicle test, to be undertaken between 1-31 October 2023, as required by Orders 7 and 8 of the Interim Orders.
Failure to comply with order
The Mother has also failed to comply with the following rules, regulations or procedural orders:
(a)Order 1, 22 September 2021 Interim Orders: to file and serve a Response and any Affidavit in support no later than 4:00pm on 30 November 2021;
(b)Order 4, 16 June 2022 Interim Orders: to undergo supervised urine drug screen tests within 24 hours of a random request made by the Independent Children’s Lawyer which were made on 28 June 2022, 2 May 2023 and 21 June 2023;
(c)Order 5, 16 June 2022 Interim Orders: to attend a psychologist for reportable mental health assessment and treatment;
(d)Rules 2.25 and 2.26, Federal Circuit and Family Court of Australia (Family Law) Rules 2021: to serve her Notice of Address for Service, either within the seven days prescribed under Rule 2.26 or at any subsequent time, after being served with her (then) representatives’ Notice of Ceasing to Act filed 11 September 2023;
(e)Rule 15.19(2), Federal Circuit and Family Court of Australia (Family Law) Rules 2021: to appear in person as required for the full duration of interim hearings listed for 6 July 2021, 22 September 2021 and 18 September 2023
Significant events in these proceedings
The parties commenced cohabitation in 2016 and they ended that cohabitation in July 2019.
The parties separated in July 2019 and the children were the subject of protection applications in the Childrens Court of Victoria. Interim accommodation orders were made in late 2019 effectively putting the children living with the Mother’s mother, Ms G. The interim accommodation order was confirmed again in late 2019.
The Mother spent supervised time with the children pursuant to the Childrens Court arrangements in mid-2020. The interim accommodation order was confirmed (with the children residing with the Mother’s mother) in mid-2020.
The Father re-partnered with his current partner, Ms E, in or about early 2020. The Department of Families, Fairness and Housing (‘Child Protection’) assessed Ms E and the Father as suitable persons to care for the children in about late 2020. In late 2020, interim accommodation orders were made in favour of the Father. Thereafter, the children have resided with their father and Ms E.
The Mother had sought an intervention order against the Father, but the police withdrew that application in mid-2021. In mid-2021, the Childrens Court of Victoria granted Child Protection’s application to withdraw their protection application in circumstances where the children were living with the Father full-time.
The Father issued proceedings in this Court on 3 May 2021. The first interim orders in this matter in this Court in July 2021.
The Mother was assessed psychiatrically by Dr C on 26 May 2022, pursuant to orders of this Court. By and large, that report was positive,. Relevant passages from that report include the following:
2. On assessment today there was no evidence of any major mental illness and as such [the Mother] is not in need of immediate psychiatric treatment. Her presentation today suggests a grief reaction following the recent death of her father and these grief symptoms are resolving slowly. She has a history of treatment for depression and anxiety and she takes regular antidepressant and a low dose antipsychotic with mood stabilizing properties prescribed by her general practitioner. She was hospitalized once in [mid-]2021 to an acute psychiatric inpatient unit for 3 ½ weeks for treatment of mental health difficulties and suicidal ideation and was briefly followed up by the community mental health team and then discharged back to the care of her general practitioner. Her presentation today suggests her mood disorder is well treated and her reported 12 months abstinence from illicit drugs will have contributed significantly to improved mental health. It is recommended that [the Mother] continue with her current treatment plan under the guidance of her general practitioner. [The Mother] reported her general practitioner prescribes sedating medication judiciously.
3. On assessment today, [the Mother] has a history of substance abuse and she meets criteria for [illicit substances] Disorder, in sustained remission (DSM-5), meaning that full criteria for [illicit substances] use were previously met, but none of the criteria have been met for at least 12 months; and Stimulant [illicit drugs] Use Disorder, in sustained remission (DSM-5), meaning that full criteria for [illicit drugs] use were previously met, but none of the criteria have been met for at least 12 months. [The Mother] demonstrated a strong commitment to maintain ongoing abstinence. She reports she attends regular drug and alcohol counseling with an [H Counselling] Worker. She would benefit from ongoing structured drug and alcohol counseling which should include psychoeducation and motivational interviewing so that she can maintain the abstinence she has achieved thus far.
4. On assessment today, there was no evidence to support a diagnosis of personality disorder. However, diagnosis of personality disorders should only be made on the basis of longitudinal assessment and collateral history, preferably with an appropriate diagnostic tool such as the International Personality Disorder Examination (IPDE). [The Mother’s] reported history suggests however that her personality difficulties are more likely secondary to her history of drug and alcohol use.
5. On assessment today, [the Mother’s] reported history suggests she has experienced relationship trauma secondary to family violence in her intimate relationship with [the Father] (and later with [M]), which led to a decline in her mental state and an escalation of her substance use. She may [wish] to engage with a private psychiatrist or psychologist to explore strategies that protect her from being re-traumatized by her reported family violence experiences. She may find therapeutic strategies such as cognitive behavioural therapy or mentalisation behavioural therapy useful.
In August 2022, the Mother’s Court-ordered hair follicle test tested positive for illicit drugs and codeine.
The matter had been set down for final hearing for May of 2023 but that hearing was vacated a month before it was due to start in circumstances where the Court-ordered supervised time had not commenced.
On 7 May 2023, the Mother saw the children in supervised time. That was the first time she had seen the children since May of 2020. The Mother attended for the supervised time, again, on 21 May and 4 June 2023. Thereafter, the Mother failed to attend for supervised time on 18 June, 16 July, 30 July and 30 August 2023. The Mother had the courtesy to the service to cancel those supervision sessions in advance.
In these proceedings, the Father pressed for undefended final orders when the matter was last before the Court on 18 September 2023. I did not make those orders but made interim orders suspending the existing supervised time. I made other orders that the Mother provide a report from a psychologist and that the Mother undertake a further hair follicle test. The ICL duly obtained funding for the Mother to obtain a hair follicle test and notified her of the funding and the arrangements for the test. The Mother did not respond and did not attend for the test. The ICL’s efforts to obtain funding and obtain a test to assist the Mother was in vain.
Failure to take up available time
The Mother has been provided with the following opportunities to spend professionally supervised time with the children:
(a)Order 8, 21 September 2022 Interim Orders: subject to a ‘clean’ result from a second hair follicle test, to spend professionally supervised time with the children on a fortnightly basis;
(b)the Mother cancelled and did not attend the following scheduled sessions of professionally supervised time with the children, which
(i) At 10:30am on Sunday, 18 June 2023;
(ii) At 10:30am on Sunday, 16 July 2023; and
(iii) At 10:30am on Sunday, 13 August 2023.
Key findings
Hence, at this point in time, I am not satisfied that the mother is abstinent from illicit drugs, and I am not satisfied that the mother’s mental health circumstances remain as described by Dr C in that report.
The father and Ms E have continued to parent the children and, on the occasions when the mother has not cancelled the supervision, ensured that the children attend the supervised centre to see their mother.
Conclusion
I am satisfied that it is in the best interests of the children that they continue to live with the Father and Ms E.
Tragically, I am satisfied that it is in the best interests of the children that spend time arrangements with the children and the Mother be as agreed between the Mother and the Father in writing. That effectively gives the children’s father the authority to determine whether it is proper, safe and okay for the children to spend time with their mother.
The Father acknowledges to me he believes it would be in the children’s best interests to have a relationship with their mother if her mental health was stable and she was not using illicit drugs. Tragically, he is unable to be confident of those matters. I am satisfied that if he is confident of those matters in the future, he would make sensible arrangements to facilitate the children having a relationship with their mother and maintaining connection, notwithstanding the difficult circumstances that may present.
Orders
In all the circumstances, I am satisfied that the orders as pressed by the ICL and the Father are adequate. The orders will not include the long notations that have been provided because they will be referred to in the reasons. Otherwise, I will make those final orders.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 December 2023
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