Claybrook & Black
[2025] FedCFamC2F 220
•10 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Claybrook & Black [2025] FedCFamC2F 220
File number(s): MLC 1802 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 10 February 2025 Catchwords: FAMILY LAW – Parenting – Where detailed and careful affidavits of service filed – regional circuit matter – where the matter was listed for mention – where the father did not appear at the hearing – where the court was satisfied the father had been recently released from prison – where the mother made an application to proceed undefended – where the mother sought final orders – where the court is satisfied the father had an opportunity to participate in the proceedings – where there is serious allegations of family violence – where the court proceeded on an undefended basis – where a family violence intervention order was already in place – application for personal protection order refused because of section 114AB(2) – where the orders made were otherwise in line with the mother’s amended application. Legislation: Family Law Act 1975 (Cth) s 114AB(2) Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 10 February 2025 Place: Warrnambool Counsel for the Applicant: Ms Bonney Solicitor for the Applicant: Sexual Assault and Family Violence Centre The Respondent: No Appearance Solicitor for the Independent Children's Lawyer: Mr Kennedy of Melvin Orton & Lewis ORDERS
MLC 1802 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CLAYBROOK
Applicant
AND: MR BLACK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
10 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Mother have sole decision-making power in relation to all major long-term decisions for the child of the relationship, X born in 2020 (“the child”).
2.The child live with the Mother.
3.The child spend no time with the Father.
4.The Father have no communication with the child.
5.The Child previously known as X BLACK, born in 2020, now be known as X CLAYBROOK.
6.The Applicant apply to the Victorian Registry of Births Deaths and Marriages to register the change of the Child’s name, in accordance with Order 5 and do such acts and things and sign all such documents as may be required to give effect to that registration.
7.For the purposes of section 11(1)(b) of the Australian Passport Act 2005 (Cth) (“the Passport Act”) the Mother be permitted to apply for and have issued to her an Australian passport for the child in absence of consent or otherwise of the Father AND IT IS REQUESTED that the Australian Passport Office of the Department of Foreign Affairs and Trade issue a passport in the name of the child upon the filing of the appropriate completed application form.
8.The Mother is permitted to provide a copy of these orders to:
(a)Any school, after school care provider, or extracurricular activities provider that the child attend from time to time;
(b)Any medical practitioner and any other allied health professionals including counsellors, psychologist and/or psychiatrists treating the Mother and/or the child;
(c)Any government or non-government agency in relation to any matters concerning:-
(i)Parental responsibility;
(ii)Care of the child;
(iii)Changing the child’s name;
(iv)The personal protection of the child and/or the Mother; and
(v)Applying for and obtaining a passport for the child.
AND THE COURT DIRECTS THAT:
A.The Independent Children’s Lawyer provide a copy of these orders to the Respondent Father via email to …@....
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
In the matter of Claybrook & Black, concerning the child X, formerly known as Black, but to be known as X Claybrook, born in 2020 (‘X’). I am asked to make final orders on an undefended basis.
Proceeding on an undefended basis
Knowledge of proceedings
I must take into account if X's father, Mr Black (‘Mr Black’), has had the opportunity to participate in the proceedings and has had some reasonable opportunity to know of today's date. In terms of the issue of knowing of today's date, because Mr Black has been imprisoned for most of 2024, being released from prison this year, greater care needs to be taken to ensure that Mr Black has had an opportunity at least to know of today's date.
In this case, because of the efforts of the mother of X, Ms Claybrook (‘Ms Claybrook’), when a litigant in person, and her attempts to bring documents to the attention of Mr Black, notwithstanding that he was in jail, I am satisfied that Mr Black has actually been informed of this court case date today.
On 30 September 2024, whilst he was imprisoned, Mr Black appeared on video link at a directions hearing or mention of this matter of this court. On that day, the matter was ordered by the Court to be adjourned to this court at Warrnambool, "in the week commencing 10 February 2025 at 10 am for mention". Also, on that day, the mother and counsel and independent children's lawyer attended the hearing.
I am satisfied that Mr Black would have heard the Court announce that the matter would be adjourned to the sittings commencing this day. In any event, whether that is so or not, I am satisfied by the remarkably comprehensive affidavit of service of Ms Claybrook, filed on 31 October 2024, that evidences on 18 October 2024, whilst in prison, Mr Black was handed a bundle of documents that included a hard copy of the order of 30 September 2024. That order recited the date of this hearing.
Mr Black’s email account
It may be, but the evidence is not such that I can make a finding, that Mr Black received emails on 8 January 2025 and 9 January 2025 advising him of the hearing this day and that advice the matter would proceed undefended.
I am not satisfied that I have a sufficient evidentiary basis to have a comfortable satisfaction and find, on the balance of probabilities, that Mr Black had an operating email account that starts with the word '…' at any relevant time approximate to 8 January 2025 or 9 January 2025. However, nothing turns on that because of the efforts or the combined efforts of Ms Claybrook and the prison authorities to hand him the documents that recorded this date.
Mr Black’s release
The Court has received a letter confirming that he has been released from jail and that will be marked as an exhibit in these proceedings that he was released from jail in early 2025. That was a month ago.
Mr Black has had the opportunity to attend or arrange for someone to attend on his behalf or do anything about it whilst out of jail for some time now. I am told and accept that this is the eighth court event of these proceedings. I am satisfied that the Court and Ms Claybrook and the independent children's lawyer have bent over backwards to enable Mr Black to participate in the proceedings if he wanted to or intended to.
Why proceed undefended?
Mr Black, notwithstanding that he has been in jail, has had the opportunity to participate in the proceedings previously. He participated in the sense that he consented to orders when he appeared electronically from prison on 30 September 2024. He also appeared before the Court electronically on the first return date on 17 April 2024 and at the next mention date in June.
I am satisfied that Mr Black has been served with the relevant documents, including court orders, the amended application setting out the precise orders that would be sought, and the detailed affidavit of evidence-in-chief. The amended application served on Mr Black on 18 October 2024, and on the 18 September 2024, make clear the orders that would be sought, including the application to change the last or surname of X. In all those circumstances, it is an overwhelming case for the matter to proceed undefended.
Orders sought
I now turn to the issue of whether it is in the interests of X that the orders as sought by Ms Claybrook should be made.
I was asked to make an order, pursuant to section 68B(1) of the Family Law Act 1975 (Cth) (‘the Act’), that was a very wide restraint on Mr Black contacting the mother and/or the child or being within or nearby to her and so on. I am satisfied that the existing intervention order that was last made in early 2024, that extended an intervention order till early 2028, cannot be made because of section 114AB(2) of the Act.
Section 114AB Operation of State and Territory laws
…
(2)Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a) where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b)where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
I am also satisfied from Ms Claybrook's affidavit of unchallenged evidence that she cares very well for X and herself has convincingly, thoroughly undergone a significant process of rehabilitation from the life she shared with Mr Black, and has been able to undertake significant study and advancement in life.
Ordinarily, matters are rarely expressed in such blunt terms, but in the circumstances of the life and ordeal that Ms Claybrook endured with Mr Black, that is appropriate so that there can be no doubt or wriggle room about what is the state of matters.
I am satisfied, for those reasons, that those orders sought (save as to the personal protection orders) are in the best interests of X.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 7 March 2025
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