Dacomb & Paddison
[2022] FedCFamC2F 262
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dacomb & Paddison [2022] FedCFamC2F 262
File number(s): MLC 4791 of 2019 Judgment of: JUDGE KIRTON Date of judgment: 17 March 2022 Catchwords: FAMILY LAW – Parenting – application for review – consideration – where the father seeks variation of shared care arrangements – consideration of Rice and Asplund – whether a variation of the shared care arrangements is in the best interest of the child – application for review dismissed – previous parenting arrangements affirmed – consideration of costs – the father to pay the mother’s costs – the independent children’s lawyer’s costs reserved. Legislation: Disability Discrimination Act 1992 (Cth), s 4
Family Law Act 1975 (Cth), ss 60CA, 60CC, 117
FederalCircuit and Family Court of Australia Act2021 (Cth), s 254
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), r 14.05, r 14.07, Schedule 4
Cases cited: Edwards and Edwards (2006) FLC 93-306; [2006] FamCA 1230
Elimi & Munro [2019] FamCAFC 138
Goode & Goode [2006] FamCA 1346
In the marriage of Rice and Asplund (1979) FLC 90-725; [1978] FamCAFC
Keats & Keats [2016] FamCAFC 156
Poisat and Poisat (2014) FLC 93-597; [2014] FamCAFC 84
Division: Division 2 Family Law Number of paragraphs: 152 Date of last submission/s: 28 February 2022 Date of hearing: 28 February 2022 Place: Melbourne Counsel for the Applicant Self-represented Counsel for the Respondent: Mr Harvey Solicitor for the Respondent: Respect Family Lawyers Counsel for the Independent Children's Lawyer: Mr Leeton Counsel for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 4791 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DACOMB
ApplicantAND: MS PADDISON
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KIRTON
DATE OF ORDER:
17 MARCH 2022
THE COURT ORDERS THAT:
1.The Orders made by the Senior Judicial Registrar on 10 December 2021 are affirmed.
2.The Application for Review filed by the Father on 17 December 2021 (Application for Review) be dismissed.
3.The Father pay the Mother’s costs of and incidental to the Application for Review.
4.The Independent Children’s Lawyer’s costs of and incidental to the Application for Review are reserved.
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 Dacomb & Paddison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KIRTON:
INTRODUCTION
This matter comes before the Court by way of an Application for Review filed by the Applicant Father Mr Dacomb (Father) on 17 December 2021, in relation to Orders made on 10 December 2021 by a Senior Judicial Registrar (Application for Review).
The Application for Review relates to the child of the relationship X, born in 2016, aged 5 (Child). The Application for Review specifies one ground of review and that is:
1. To discharge any orders relating to the removal of my daughter, [the Child], from my care due to receiving medical treatment for my disability.[1]
[1] Application for Review, filed by the Father 17 December 2021 (Application for Review), Part D, [7].
The Application for Review was opposed by the Respondent Mother Ms Paddison (Mother) and the Independent Children’s Lawyer (ICL). The hearing of the Application for Review took place on 28 February 2022 by video conference (Review Application Hearing). At the conclusion of the Review Application Hearing judgment was reserved. These are the Reasons for Judgment in relation the Application for Review.
ISSUES TO BE DETERMINED
The issues to be determined are whether:
(a)The Orders made on 10 December 2021 by the Senior Judicial Registrar (10December 2021 Orders) should be discharged;
(b)The Child should spend time with the Father in accordance with the final orders made on 30 October 2019 (30 October 2019 Orders);
(c)The Father should pay the Mother’s costs of and incidental to the Application for Review; and
(d)The ICL’s costs of and incidental to the Application for Review should be reserved.
SYNOPSIS
I have determined that:
(a)The 10 December 2021 Orders are affirmed;
(b)The Application for Review be dismissed;
(c)The Father pay the Mother’s costs of and incidental to the Application for Review; and
(d)The ICL’s costs of and incidental to the Application for Review are reserved.
BACKGROUND
The Father was born in Country B in 1988 and is 33 years of age. The Father suffers from Chronic Regionalised Pain Syndrome, clinical depression, anxiety and stress.[2] It is alleged by the Mother that the Father suffers from an opioid dependency.[3]
[2] Affidavit of the Father, sworn 23 April 2019 and filed 6 May 2019 (Father’s 6 May 2019 Affidavit), [7]; and Application for Review, Part D Orders Sought, [6].
[3] Affidavit of the Mother, affirmed and filed 5 June 2019 (Mother’s 5 June 2019 Affidavit), [4] and [5].
The Father claims that he has a disability as defined within the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act).[4]
[4] Affidavit of the Father, filed 22 December 2021 (Father’s 22 December 2021 Affidavit), [4]; and Application for Review, Part D Orders Sought, [7].
The Mother was born in Country B in 1988 and is also 33 years of age. The Mother describes her health as good, although suffering from anxiety.[5]
[5] Mother’s 5 June 2019 Affidavit, [12(b)].
The parties commenced their relationship in 2007 and married in 2011 in Country B. The Child was born in 2016 and is the only child of the relationship. The parties finally separated on 5 April 2019 when the Mother vacated the former matrimonial home in Suburb C with the Child.[6] The parties divorced on 23 June 2020.[7]
[6] Affidavit of the Mother, affirmed and filed 29 May 2020, [3] and [7].
[7] Mother’s Outline of Case Document (Final Hearing), filed 4 November 2021, Part B, Chronology of Events.
The Mother married Mr D in 2021 and in 2021 the Mother gave birth to a daughter of the relationship E (E).[8]
[8] Affidavit of Mr D, affirmed 3 November 2021 and filed 4 November 2021, [4] and [5].
PROCEDURAL HISTORY
This matter has had an extensive litigation history. A summary of the procedural history insofar as it is relevant to this Application for Review follows.
The Father filed an Initiating Application for final orders on 6 May 2019. At the time the Father commenced the proceeding he was represented by Rigoli Lawyers, who continued to represent the Father until 19 September 2019.[9] The Father has subsequently been self-represented.
[9] Notice of Withdrawal as Lawyer, filed on 19 September 2019.
On 6 May 2019 the Father filed an Affidavit from his treating psychologist Dr F (Dr F’s First Affidavit).[10] Annexed to Dr F’s First Affidavit was a psychological report and assessment in relation to the Father, dated 16 April 2019 (Dr F’s 16 April 2019 Report).[11] On 6 May 2019 the Father also filed a Financial Statement (Father’s Financial Statement).
[10] Affidavit of Dr F, affirmed 24 April 2019 and filed 6 May 2019.
[11] Affidavit of Dr F, affirmed 24 April 2019 and filed 6 May 2019, [3] and Annexure “1”.
On 25 June 2019 Judge Stewart made an Order pursuant to s.68L of the Family Law Act 1975 (Cth) (Act) appointing an Independent Children’s Lawyer for the Child and requesting Victoria Legal Aid to facilitate such appointment as soon as possible.[12] On 19 July 2019 the ICL filed a Notice of Address for Service.
[12] Orders 3 June 2020, Order 2.
The initial proceedings in the Court were settled by consent and parenting and property Orders were made by Judge Stewart in the 30 October 2019 Orders. The parenting orders made by the 30 October 2019 Orders may be relevantly summarised as follows:
(a)The parties have equal shared responsibility for the Child;
(b)The parties equally participate in the making of all long term decisions in relation to the Child; and have responsibility for making day to day decisions for the Child when the Child is in the party’s care;
(c)Unless otherwise agreed between the parties, the Child live with the Mother and spend time with the Father:
(i)In week one: from 7:00 am on Monday to 7:00 am Tuesday (1 night); and from 7:00 am Friday to 7:00 am Tuesday the following week (4 nights); and
(ii)In week two: from 6:00 pm Thursday to 6:00 pm Friday (1 night);
(d)The Father collect the Child at the commencement of his time and deliver the Child to the Mother at the end of his time;
(e)Injunctive orders restraining the Father: from consuming alcohol to excess during any time the Child is in his care; from using illicit drugs; and from the excessive use of prescription drugs, save and except as prescribed by a registered medical practitioner;
(f)Each party was required to continue to attend upon their treating psychologist (or their nominee) in accordance with the reasonable recommendations of the psychologist;
(g)For a period of 12 months from the making of the 30 October 2019 Orders the Mother may request the Father to undertake a saliva drug test, with such drug test to be administered by the paternal grandmother. A request for a drug test was not to be made more than once every 30 days; and
(h)The appointment of the ICL was discharged.[13]
[13] Orders 30 October 2019, Annexure “A”, Orders 1 to 4, 9 to 14 and 16.
Subsequent to the 30 October 2019 Orders being made by the Court the Father has filed numerous Applications in a Case and Contravention Applications with escalating frequency. The Father has not filed an Application Initiating Proceedings despite being ordered to do so by the Court.[14]
[14] Orders 22 July 2020, Order 1.
On 12 March 2020 the Father filed a Contravention Application. On 27 April 2020 Registrar Kaur Ordered that the Father had leave to discontinue the Contravention Application filed on 12 March 2020.[15]
[15] Orders 27 April 2020, Order 1.
On 26 May 2020 the Father filed an Application-Contravention. In support of the Application-Contravention the Father filed an Affidavit on 25 May 2020.[16]
[16] Affidavit of the Father, affirmed 22 May 2020 and filed 25 May 2020.
On 27 May 2020 the Father filed an Application in a Case (Father’s 27 May 2020 Application in a Case) seeking a recovery order in relation to the Child and orders that the Father be the primary caregiver of the Child.[17] In support of the Father’s 27 May 2020 Application in a Case the Father relied on an Affidavit filed by the Father on 26 May 2020.[18]
[17] Father's Application in a Case, filed 27 May 2020, Orders sought, [1] and [2].
[18] Affidavit of the Father, affirmed and filed 26 May 2020.
On 1 June 2020 the Mother filed a Response to Application in a Case, dated 29 May 2020 (Response). The final orders sought in the Response may be relevantly summarised as follows:
(a)The Father’s application for final orders be dismissed;
(b)The Mother be excused from particularising parenting orders in terms of a variation to the 30 October 2019 Orders, pending further investigation by child welfare authorities and the police; and
(c)The Father pay the Mother’s costs of the application.[19]
[19] Response to Application in a Case, filed 1 June 2020, Final Orders Sought, [1] to [3].
In support of the Response on 29 May 2020 the Mother filed an Affidavit,[20] and a Notice of Risk.
[20] Affidavit of the Mother, affirmed and filed 29 May 2020.
On 2 June 2020 the Father filed the following Affidavits:
(a)Affidavit of Dr F, Clinical Psychologist (Dr F’s Second Affidavit);[21]
(b)Affidavit of the Father’s partner Ms G;[22] and
(c)Affidavit of the paternal grandmother Ms H (Paternal Grandmother).[23]
[21] Affidavit of Dr F, affirmed 1 June 2020 and filed 2 June 2020.
[22] Affidavit of Ms G, affirmed 29 May 2020 and filed 2 June 2020.
[23] Affidavit of Ms H, affirmed 29 May 2020 and filed 2 June 2020.
On 3 June 2020 Judge Stewart again made an Order pursuant to s.68L of the Act appointing an Independent Children’s Lawyer for the Child and requesting Victoria Legal Aid to facilitate such appointment as soon as possible.[24] On 3 June 2020 Judge Stewart also made Orders (3 June 2020 Orders) which may be relevantly summarised as follows:
(a)The Father was given leave to withdraw the Contravention Application filed on 26 May 2020;
(b)The Father was restrained from physically chastising or disciplining the Child or allowing any other person to do so;
(c)The Paternal Grandmother was be in substantial attendance during any period the Child was in the Father’s care; and
(d)Pursuant to s.11F of the Act the parties attend a Child Inclusive Child Dispute Conference on 10 July 2020.[25]
[24] Orders 3 June 2020, Order 2.
[25] Orders 3 June 2020, Orders 1 and 6 to 8.
On 26 June 2020 the ICL filed a Notice of Address for Service.
On 3 July 2020 the parties and the Child participated in a Child Inclusive Conference with Family Consultant Ms J. The Family Consultant subsequently prepared a Child Inclusive Conference Memorandum to Court, dated 15 July 2020 (Section 11F Report). The Section 11F Report made recommendations that included:
(a)The Child continue to live with the Mother;
(b)The Child continue to spend substantial and significant time with the Father and that the Paternal Grandmother or Ms G be in substantial attendance;
(c)The Father submit to a hair follicle test to investigate any recent illicit drug use;
(d)The Father continue to engage with his psychologist Dr F, and the management of angry emotions or reactions be integrated into his therapy sessions;
(e)The Mother engage in specialised trauma related therapy with a registered psychologist or through the Region K Centre Against Sexual Assault (NCASA); and
(f)The parents, as well as their respective partners may benefit from attending a Parenting Orders Program as soon as practicable.[26]
[26] Child Inclusive Conference Memorandum to Court, dated 15 July 2020, [30]-[34].
On 22 July 2020 Judge Stewart made Orders (22 July 2020 Orders) that included:
(a)The Father file and serve an Initiating Application and Notice of Risk within 20 days, as the proceeding had been commenced irregularly with an Application in a Case;
(b)The 30 October 2019 Orders remained in full force and effect, save that they were varied by providing that: any changeovers not occurring at the Child’s day care take place at the McDonald’s restaurant in Suburb L; and that the Father be permitted to take the Child to day care for the conclusion of time on Tuesdays and collect the Child from day care at the commencement of time on Thursdays;
(c)The Father be restrained from physically chastising or disciplining the Child or allowing any other person to do so;
(d)Until the provision of a hair follicle test by the Father that does not disclose the use of illicit drugs or the abuse of prescribed drugs for a period of three months, the Paternal Grandmother or Ms G be in substantial attendance during any overnight period between 6:00 pm and 8:00 am when the Child is in the Father’s care;
(e)Pursuant to s.69ZW of the Act the Department of Health and Human Services (DHHS) was requested to provide a report to the Court with a summary of their file from 6 July 2020 to 30 September 2020 (or the closure of the file which ever was the earlier) with such information to include drug tests requested and the compliance with any request made, and the results;
(f)The Father continue to attend upon his treating psychologist Dr F on a monthly basis or as otherwise recommended by Dr F;
(g)The ICL provide a copy of the Section 11F Report to Dr F within seven days;
(h)On or before 24 August 2020 the Father attend an authorised collection service for the Australian Workplace Drug Testing Service for a hair follicle test;
(i)The ICL may request a further hair follicle test to be taken by the Father not less than three months after the initial test;
(j)Within seven days of request by the ICL the Father obtain and provide to the ICL a letter from his GP confirming his current medications including the prescribed dosage and instructions for use;
(k)Within seven days the Mother obtain a referral to engage in specialised trauma related therapy, with a registered clinical psychologist or through the NCASA;
(l)Each parent to enrol as soon as practicable in a parenting orders program; and
(m)The Order authorising the Mother to request the Father to undertake a drug screen for 12 months (Order 14 of the 30 October 2019 Orders) was discharged.[27]
[27] Orders 22 July 2020, Order 1 and Annexure “A” Orders 1 to 12, 14 and 16.
On 30 November 2020 Judge Stewart made Orders (30 November 2020 Orders) that may be relevantly summarised as follows:
(a)Pursuant s.13C of the Act the Father attend a Men’s Behavioural Change course as soon as reasonably practicable and upon completion provide a certificate of completion to the solicitors for the Mother and the ICL;
(b)The proceeding was listed for final hearing for two (2) days commencing 8 November 2021;
(c)The parties may inspect only and the parties’ legal representatives and the ICL may inspect and photocopy the documents produced by the DHHS in response to the s.69ZW Order made in the proceedings; and
(d)The 30 October 2019 Orders and the 22 July 2020 Orders remained in full force and effect, save that the Order requiring the Paternal Grandmother or Ms G to be in substantial attendance during any overnight period between 6:00 pm and 8:00 am when the Child is in the Father’s care, was discharged.[28]
[28] Orders 30 November 2020, Orders 2, 3 and 9 and Annexure “A” Orders 1 and 2.
The 30 November 2020 Orders included the following notations:
AND THE COURT NOTES
A. It is recommended by the ICL that Dr F consider integrating anger management components into [the Father’s] therapeutic treatment as outlined in the recommendations of the [Section 11F Report]. Noting that the DHHS report dated 1 October 2020 recommends the father undertakes a Men’s Behavioural Change Program.
B. The ICL to provide a copy of these orders to Dr F.[29]
[29] Orders 30 November 2020, Annexure “A”, Notations A and B.
On 25 October 2021 the Mother filed an Amended Response (Amended Response). The Amended Response sought final orders only. The final orders sought in the Amended Response may be relevantly summarised as follows:
(a)The final orders sought in the Response (summarised at [20] of these Reasons for Judgment);
(b)The Mother be at liberty to have the Child tested for COVID-19 and/or have the Child vaccinated, subject to receiving medical advice to do so; and
(c)The 30 October 2019 Orders, as varied by the 22 July 2020 Orders, be replaced with following, with effect from the time the Child commences school on 31 January 2022:
(i)The Child live with the Mother; and
(ii)The Child spend time with the Father:
(A)From the end of school on every second Friday commencing on Friday, 4 February 2022 until 5:00 pm every second Sunday night thereafter;
(B)From 5:00 pm Christmas Eve until 5:00 pm Christmas Day;
(C)From 5:00 pm Easter Thursday to 5:00 pm Easter Monday every second year commencing 2023; and
(D)From 5:00 pm 30 December to 5:00 pm on 31 December for every second year commencing 2021.[30]
[30] Amended Response, filed 25 October 2021, [1] to [3].
On 25 October 2021 the Mother also filed an Affidavit (Mother’s 25 October 2021 Affidavit)[31] and a Financial Statement (Mother’s Financial Statement). In the Mother’s 25 October 2021 Affidavit the Mother deposed that: she had engaged with the NCASA and had attended 14 sessions,[32] and that she had completed a parenting orders program through M Families.[33]
[31] Affidavit of the Mother, affirmed and filed 25 October 2021.
[32] Affidavit of the Mother, affirmed and filed 25 October 2021, [8] and Annexure “R5”.
[33] Affidavit of the Mother, affirmed and filed 25 October 2021, [9] and Annexure “R6”.
The Father filed Affidavits deposed to by the Father on 26 October 2021 (Father’s 26 October 2021 Affidavit)[34], 29 October 2021[35] and 3 November 2021.[36] On 29 October 2021 the Father filed an Affidavit by the Paternal Grandmother,[37] and an Affidavit by Ms G.[38]
[34] Affidavit of the Father, affirmed and filed 26 October 2021.
[35] Affidavit of the Father, affirmed 28 October 2021 and filed 29 October 2021.
[36] Affidavit of the Father, affirmed 28 October 2021 and filed 3 November 2021.
[37] Affidavit of Ms H, affirmed 28 October 2021 and filed 29 October 2021.
[38] Affidavit of Ms G, affirmed 28 October 2021 and filed 29 October 2021.
On 4 November 2021 the Mother filed an Affidavit by her Husband, Mr D.[39] The Mother also filed an Outline of Case Document (Final Hearing) on 4 November 2021.
[39] Affidavit of Mr D, affirmed 3 November 2021 and filed 4 November 2021.
On 8 November 2021 Judge Stewart made Orders by consent permitting and authorising the Mother to have the Child immunised for COVID-19 on certain terms and conditions (8 November 2021 Orders).[40] It was also Ordered that the proceeding be adjourned to 10 December 2021 for an Interim Defended Hearing before the Senior Judicial Registrar (Interim Defended Hearing), the application for which should be made on notice in writing as an Application in a Case and/or Response with supporting affidavits.[41] The final hearing listed on 9 November 2021 was vacated and the proceedings re-listed for final hearing for two (2) days commencing 29 August 2022.[42]
[40] Orders 8 November 2021, Order 1(a) to (c).
[41] Orders 8 November 2021, Order 3.
[42] Orders 8 November 2021, Orders 7 and 8.
On 2 December 2021 the Father filed a Notice of Appeal in relation to the 8 November 2021 Orders, alleging inter alia, that the 8 November 2021 Orders were not made by consent (Appeal).[43]
[43] Affidavit of the Mother, affirmed and filed 9 December 2021, [26] and Annexure “-6”.
On 9 December 2021 the Mother filed a Further Amended Response to an Application in a Proceeding (Further Amended Response). In the Further Amended Response the Mother sought interim orders which may be relevantly summarised as follows:
(a)The Father file his Initiating Application within seven (7) days pursuant to Order 2 of the 22 July 2020 Orders;
(b)The Mother file her Response to the Father’s Initiating Application within 21 days of the date of filing the Father’s Initiating Application;
(c)For the Christmas period 2021/2022:
(i)The Child live with the Mother from 5:00 pm Christmas Eve until 5:00 pm Christmas Day; and
(ii)The Child live with the Father from 5:00 pm Christmas Day until 5:00 pm Boxing Day.
(d)For Easter 2022 the Child live with the Mother from 5:00 pm Easter Thursday until 5:00 pm Easter Monday;
(e)For the New Year period 2021/2022:
(i)The Child live with the Father from 5:00 pm 30 December 2021 until 5:00 pm 31 December 2021; and
(ii)The Child live with the Mother from 5:00 pm 31 December 2021 until 5:00 pm 1 January 2022;
(f)From 4 February 2022, the Child live with the Mother and spend time with the Father:
(i)Each alternate week, from the conclusion of school (or 3.30 pm on a non-school day) Friday until the commencement of school (or 9:00 am if a non-school day) on Monday;
(ii)From 5:00 pm Christmas Eve until 5:00 pm Christmas Day each alternate year, commencing 2022; and
(iii)From 5:00 pm Easter Thursday to 5:00 pm Easter Monday each alternate year commencing 2023.
(g)The Mother have first right of refusal should the Father not be available to spend time with the Child; and
(h)The Father pay the Mother’s costs of and incidental to the application.[44]
[44] Mother's Further Amended Response to an Application, filed 9 December 2021, [4] Interim or Procedural Orders Sought, [1] to [8].
On 9 December 2021 the Mother filed an Affidavit (Mother’s 9 December 2021 Affidavit). The Mother’s 9 December 2021 Affidavit was filed with the Court in accordance with the Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees (Joint Practice Direction 2).
Relevantly for the purposes of the Application for Review, in the Mother’s 9 December 2021 Affidavit the Mother stated:
Lack of Communication
16. During a discussion over dinner on Monday, 6 December 2021 [the Child] told me that Ms G had left for Country N, and she thought that [the Father] was going to Country N on Sunday, 5 December 2021 and whilst he was away [the Paternal Grandmother] would be taking care of her. [The Father] did not inform me that he would be travelling overseas or that [the Child] would be in cared for by [the Paternal Grandmother] in his absence if he was travelling.
17. I sent an email to [the Father] on Tuesday evening 7 December 2021 asking him if he was in Country N and although he replied to my email, he did not answer my question whether he is in Country N.
18. I am not comfortable with the Child being left in the sole care of [the Parental Grandmother] as she has a history of alcohol abuse and I do not believe she has a support network.[45]
[45] Affidavit of the Mother, filed 9 December 2021, [16] to [18].
On 9 December 2021 the Mother also filed an Outline of Case Document (Interim Hearing) (Mother’s 9 December 2021 Outline of Case). The Mother’s 9 December 2021 Outline of Case identified the issues in dispute at that time as being:
(a)Whether the Mother or the Father should be the primary carer of the Child; and
(b)The spend time arrangements once the Child commences primary school on 31 January 2022.[46]
[46] Mother's Outline of Case Document (Interim Hearing), filed 9 December 2021, Part C-Issues in Dispute, [1] and [2].
The Mother’s 9 December 2021 Outline of Case sought interim orders in accordance with the Further Amended Response as summarised at [35(f)] of these Reasons for Judgment, save that the Mother sought that: the orders commence from 31 January 2022; and that the Father spend time with the Child from 5:00 pm 20 December until 5:00 pm 31 December for each alternate year, commencing from 2021.[47]
[47] Mother's Outline of Case Document (Interim Hearing), filed 9 December 2021, Part E-Minute of Orders Sought.
The issues before the Judicial Registrar at the Interim Defended Hearing were those identified in the Mother’s 9 December 2021 Outline of Case.[48] During the Interim Defended Hearing it became known to the Mother for the first time that the Father was in Country N and that the Child was being cared for by the Paternal Grandmother. There had been no prior notification by the Father to the Mother, the ICL or the Court that the Father was travelling to Country N.[49]
[48] Mother's Outline of Case Document (Interim Hearing), filed 9 December 2021, Part C-Issues in Dispute, [1] and [2]; Transcript P8:L42-P9:L2 and P10:L27-34.
[49] Mother’s 14 February 2022 Affidavit, [4]; Transcript P10:L38-42.
At the Interim Defended Hearing the Senior Judicial Registrar made the 10 December 2021 Orders listing this proceeding for interim hearing before the Senior Judicial Registrar on a date to be fixed in or about January 2022.[50] The Senior Judicial Registrar also made interim orders that may be relevantly summarised as follows:
[50] Orders 10 December 2021, Order 1.
(a)The Child live with the Mother;
(b)The Child be returned to the Mother on or before 4:00 pm on 10 December 2021;
(c)The Child’s time with the Father be suspended pending further order;
(d)The Child communicate with the Father via Zoom or other electronic means of communication as agreed in writing: on Christmas Day; her birthday and each Tuesday, Thursday and Sunday between 6:00 pm and 7:00 pm;
(e)During the Child’s time communicating with the Father in accordance with sub-paragraph (d), the Mother to give the Child privacy;
(f)The Father provide details to the ICL of the following:
(i)His return date to Australia (including health advice he has received in relation to the duration of any hotel quarantine he will be required to undertake), once he has received information regarding a confirmed returned date;
(ii)Confirmation of when he has arrived in Australia; and
(iii)A brief report from his treating medical practitioner as to the treatment he has received in Country N;
(g)The costs of the Mother and the ICL be reserved.[51]
[51] Orders 10 December 2021, Orders 4 to 7, 9, 10 and 11.
The 10 December 2021 Orders included the following notations:
THE COURT NOTES THAT:
A.The father is currently in City O, Country N, receiving medical treatment and is uncertain as to the duration of his treatment.
B.The father is currently exploring vaccination options for COVID-19 but is unclear whether these options are approved by Australian authorities and/or whether he will be required to hotel quarantine upon his return to Australia.
C.Upon the father notifying the [ICL] of the date upon which he will be released from any quarantining obligations in Australia upon his return, the [ICL] will contact the chambers of [the Senior Judicial Registrar] at […] in order to have the interim defended hearing re-listed as soon as possible after that date.
D.The Father objects to the child’s time with him being suspended while he is overseas or otherwise in hotel quarantine because this time can be utilised by members of the paternal family, who are neither parties to these proceedings nor bound by the orders of this Court.
E.In the event the Father fails to attend Court on the next occasion, the Mother and the [ICL] may propose to seek that interim orders are made on an undefended basis and/or in the absence of the Father. [52]
[…]
(Emphasis added)
[52] Orders 10 December 2021, Notations A to E.
On 17 December 2021 the Father filed the Application for Review.
On 22 December 2021 the Father filed an Application in a Proceeding (Father’s 22 December 2021 Application in a Proceeding) seeking the same order as that sought in the Application for Review, as well as a stay of the 10 December 2021 Orders. The return date of the Father’s 22 December 2021 Application in a Proceeding was 16 February 2022.
On 22 December 2021 the Father also filed an Affidavit (Father’s 22 December 2021 Affidavit).[53] The Father’s 22 December 2021 Affidavit was filed in accordance with Joint Practice Direction 2 and indicated that the Father was at that time located in City O, Country N.[54]
[53] Affidavit of the Father, signed by the Father on 17 December 2021 and filed 22 December 2021,
[54] Affidavit of the Father, filed 22 December 2021, Part E Signature.
On 23 December 2021 Justice Austin in ex tempore Reasons for Judgment summarily dismissed the Appeal in relation to the 8 November 2021 Orders.[55] His Honour said:
[55] Affidavit of the Mother, filed 14 February 2022 (Mother’s 14 February 2022 Affidavit), [39] and Annexure “-7”.
4. The Notice of Appeal, filed by the father on 2 December 2021, pleads these grounds of appeal:
1. The orders were not made on consent, I never agreed that the court has the power to make this ruling and override a HCA ruling that has been in place since 1949.
3. I refer to Section 51 (xxiiia) of the Australian Constitution 1901. In this section the government is given powers to authorise health services, BUT NOT AS TO FORM ANY PART OF CIVIL CONSCRIPTION.
4. British Medical v Commonwealth HCA 1949 - the judges in this case found that not only did Civil Conscription refer to doctors and dentists but also to patients.
5. This is a constitutional question and needs to be heard in the High Court of Australia.
(As per the original) (Bold emphasis added)
[…]
6. Given the apparent lack of any reasonable prospects of its success, the appeal was listed today to enable the Father to be heard about why the appeal should not be summarily dismissed.[56]
[56] Dacomb & Paddison [2021] FedCFamC1A 103, [4] and [6]; Dacomb & Paddison [2021] FedCFamC1A 103, [4] and [6].
The Father contended that he did not consent to the 8 November 2021 Orders. This contention was rejected as “false” by His Honour, with extensive reference to the transcript of the proceedings on 8 November 2021.[57]
[57] Dacomb & Paddison[2021] FedCFamC1A 103, [10]-[16]; Dacomb & Paddison [2021] FedCFamC1A 103, [10]-[16].
On 6 January 2022 the ICL caused to be issued a subpoena to The Proper Officer of the Department of Home Affairs seeking the following documents in relation to the Father:
2.All records relating to travel exemption application and international travel records of [the Father] from 1 January 2021 to the present including applications, documents and correspondence relating to an Australia Travel Declaration, proof of vaccination individual exemption request and response from relevant decision-maker/s.[58]
[58] Subpoena, filed by the ICL 6 January 2022, Part E, [2].
On 6 January 2022 the ICL caused to be issued a subpoena to Dr F, seeking the following documents in relation to the Father during the period from 1 May 2018 to the present:
(a)Any letter written by Dr F to the referring general practitioner or referring specialist;
(b)Any letter or report prepared by Dr F at the request of the Father; and
(c)Any report or letter of referral received by Dr F or on behalf of the Father.[59]
[59] Subpoena, filed by the ICL 6 January 2022, Part E, [2] to [4].
On 6 January 2020 the Father filed a Notice of Objection–Subpoena (Notice of Objection to Subpoena) which stated that the Father gave notice that he objected to the subpoena issued to the Department of Home Affairs on the following basis:
1.Private medical and travel information, irrelevant to the case. Medical records protected by Privacy Act 1988.[60]
[60] Notice of Objection to Subpoena, filed by the Father, 6 January 2022, Part A.
On 6 January 2022 the Father filed an Application in a Proceeding, which was subsequently sealed on 17 January 2022 (Father’s 6 January 2022 Application in a Proceeding). The return date for the hearing of the Father’s 6 January 2022 Application in a Proceeding was 16 February 2022 before the Senior Judicial Registrar. In the Father’s 6 January 2022 Application in a Proceeding the Father sought the following orders:
1. Discharge of [the ICL] as the ICL in this matter, due to impartiality which is clearly exhibited in the actions taken by the ICL thus far.
2. New ICL to be appointed, independent of Victoria Legal Aid so as to avoid undue influence from [the ICL] in this matter.[61]
[61] Application in a Proceeding, filed by the Father 6 January 2022 and sealed 17 January 2022, Part D, [1] and [2].
On 6 January 2022 the Father filed an Affidavit in support of the Father’s 6 January 2022 Application in a Proceeding.[62] This Affidavit was filed in accordance with Joint Practice Direction 2 and indicated that the Father was at that time located in City O, Country N.[63]
[62] Affidavit of the Father, filed 6 January 2022.
[63] Affidavit of the Father, filed 6 January 2022, Part E Signature.
On 18 January 2022 the Father filed an appeal in relation to the 8 November 2021 Orders in the High Court of Australia, file number (High Court Appeal).[64]
[64] Mother’s 14 February 2022 Affidavit, [44].
On 24 January 2022 the Father filed an Application in a Proceeding, which was subsequently sealed on 14 February 2022 (Father’s 24 January 2022 Application in a Proceeding). The return date of the Father’s 24 January 2022 Application in a Proceeding was 16 February 2022 before the Senior Judicial Registrar. In the Father’s 24 January 2022 Application in a Proceeding the Father sought the following orders:
1. Stay of orders made on 8 November 2021, in order for HCA appeal to be heard.
2. HCA case.[65]
[65] Application in a Proceeding, filed by the Father 24 January 2022 and sealed 14 February 2022, Part D The orders you are seeking, [6].
On 24 January 2022 the Father filed an Affidavit in support of the Father’s 24 January 2022 Application in a Proceeding.[66] This Affidavit was filed in accordance with Joint Practice Direction 2 and indicated that the Father was at that time located in City O, Country N.[67] In this Affidavit the Father deposed:
[…]
2. I have appealed the order made by Judge Stewart on 8 November 2021 relating to the vaccination of my daughter, [the Child], against COVID19 to the High Court of Australia.
3. The High Court have filed the case under case number C3/2022.
4. I hereby asked the court for a stay of orders until such time as the High Court case can be determined.[68]
[66] Affidavit of the Father, filed 24 January 2022.
[67] Affidavit of the Father, filed 24 January 2022, Part E Signature.
[68] Affidavit of the Father, filed 24 January 2022, Part D Evidence, [2] to [4].
On 10 February 2022 the Father filed an Application-Contravention (Father’s 10 February 2022 Contravention Application). The return date for the Father’s 10 February 2022 Contravention Application was 11 March 2022. In the Father’s 10 February 2022 Contravention Application the Father claimed that the Mother:
[…] Had my daughter, [the Child], vaccinated against COVID-19 despite court order 8 Nov 2021, order 1 section C.[69]
[69] Application-Contravention, filed by the Father 10 February 2022, Part D Details of alleged contravention, [7].
On 14 February 2022 the Mother filed:
(a)An Affidavit (Mother’s 14 February 2022 Affidavit). The Mother’s 14 February 2022 Affidavit was filed in accordance with Joint Practice Direction 2;
(b)An Outline of Case Document (Interim Hearing) (Mother’s 14 February 2022 Outline of Case); and
(c)A Response to an Application in a Proceeding (Mother’s 14 February 2022 Response to an Application in a Proceeding). The return date for the Mother’s 14 February Response to an Application in a Proceeding was 16 February 2022. In the Mother’s 14 February 2022 Response to an Application in a Proceeding the Mother sought orders which may be relevantly summarised as follows:
(i)The Father’s 24 January 2022 Application in a Proceeding be dismissed;
(ii)The Father’s 6 January 2022 Application in a Proceeding be dismissed;
(iii)The Father’s 22 December 2021 Application in a Proceeding be dismissed;
(iv)The ICL remain the appointed Independent Children’s Lawyer in the proceedings;
(v)The Mother have sole parental responsibility for the Child, in relation to medical decisions until further order;
(vi)Order 9 of the 10 December 2021 Orders be discharged;
(vii)The Father be excluded from filing further Applications in a Proceeding; and
(viii)The Father pay the Mother’s costs of and incidental to: the Father’s 22 December 2021 Application in a Proceeding; the Father’s 6 January 2022 Application in a Proceeding; and the Father’s 24 January 2022 Application in a Proceeding.[70]
[70] Response to an Application in a Proceeding, filed by the Mother 14 February 2022, Part B, The orders you [The Respondent] are seeking, [4].
On 15 February 2022 the Father lodged an Affidavit in support of the Father’s 10 February 2022 Contravention Application. This Affidavit was filed in accordance with Joint Practice Direction 2 and indicated that the Father was at that time located in City O, Country N.[71]
[71] Affidavit of the Father, filed 15 February 2022, Part E Signature.
On 16 February 2022 the Senior Judicial Registrar made Orders by consent that may be relevantly summarised as follows:
(a)Dismissing the Father’s 22 December 2021 Application in a Proceeding;
(b)Adjourning the hearing of the Father’s 24 January 2022 Application in a Proceeding to 10 March 2022 before the Senior Judicial Registrar; and
(c)Adjourning the Mother’s 14 February 2022 Response to an Application in a Proceeding to 10 March 2022.[72]
[72] Orders 16 February 2022, Orders [1]-[3].
The Court made further Orders on 16 February 2022 that that may be relevantly summarised as follows:
(a)Dismissing the Father’s Notice of Objection to a Subpoena;
(b)Dismissing the Father’s 6 January 2022 Application in a Proceeding; and
(c)Reserving costs.[73]
[73] Orders 16 February 2022, Orders [4]-[6].
On 16 February 2022 the Father filed an Application-Contravention (Father’s 16 February 2022 Contravention Application) wherein he alleged that the Mother had breached Orders 2 and 7 of the Consent Orders made on 30 October 2019.[74] The return date of the Father’s 16 February 2022 Contravention Application was 11 March 2022. In the statement of the alleged contravention the Father alleged:
The [Mother] has not provided the applicant equal access to the education of [the Child].
This contravenes Children’s order 2 and 7 of Consent orders 30 Oct 2019.[75]
[74] Contravention Application, filed by the Father 16 February 2022, Part D Details of the alleged contravention(s), [6].
[75] Contravention Application, filed by the Father 16 February 2022, Part D Details of the alleged contravention(s), [7].
On 16 February 2022 the Father also filed an Affidavit in support of the Father’s 16 February 2022 Contravention Application. This Affidavit was filed in accordance with Joint Practice Direction 2 and indicated that the Father was at that time located in City O, Country N.[76]
[76] Affidavit of the Father, filed 16 February 2022, Part E Signature.
On 23 February 2022 the Father emailed to my Associates Chambers a Proposed Minute of Orders (Father’s Proposed Minute of Orders), which sought the following orders:
(a)The 10 December 2021 Orders be discharged; and
(b)The Child be returned into the Father’s care pursuant to the 30 October 2019 Orders.
On 23 February 2022 the Mother’s Solicitors emailed to my Associates Chambers a Proposed Minute of Orders (Mother’s Proposed Minute of Orders) which sought the following orders:
(a)The Application for Review be dismissed; and
(b)The Father pay the Mother’s costs of and incidental to the Application for Review.
On 24 February 2022 the Mother filed a Costs Notice pursuant to r.12.06 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) (Mother’s Costs Notice).
On 28 February 2022 the Review Application Hearing took place by video conference. During the Review Application Hearing the Father informed to Court that he was still in City O, Country N.[77] On 28 February 2022 it was ordered that Judgment of the Application for Review was reserved.[78]
[77] Transcript P3:L44-P4:L1.
[78] Orders 28 February 2022, Order 1.
The following matters remained extant between the parties at the time of the Review Application Hearing:[79]
(a)Interim Defended Hearing, with a date to be listed, in accordance with the 10 December 2021 Orders (subject to the 10 December 2021 Orders being affirmed);
(b)The Mother’s 14 February 2022 Response to an Application in a Proceeding, adjourned on 16 February 2022 to 10 March 2022 before the Senior Judicial Registrar;
(c)The Father’s 24 January 2022 Application in a Proceeding, adjourned on 26 February 2022 to 10 March 2022 before the Senior Judicial Registrar;
(d)The Father’s 10 February 2022 Contravention Application, with a return date on 11 March 2022;
(e)The Father’s 16 February 2022 Contravention Application, with a return date on 11 March 2022;
(f)The final hearing before Judge Stewart on 29 and 30 August 2022; and
(g)The High Court Appeal, subject to a special leave hearing on a date to be fixed.
THE PROPOSLS OF THE PARTIES AT THE REVIEW APPLICATION HEARING
[79] Mother’s 14 February 2022 Affidavit; Transcript P7:L3-P8:L14.
The Father’s Proposal
The Father’s proposal was difficult to ascertain as it has changed throughout this proceeding. As discussed previously, the Father did not comply with the 22 July 2020 Orders which required the Father to file and serve an Initiating Application and a Notice of Risk within 20 days, as the proceedings had been commenced irregularly with the Father’s 27 May 2020 Application in a Case.[80] The Father’s 27 May 2020 Application in a Case sought an order that the Father become the primary carer of the Child.[81]
[80] Orders 22 July 2020, Order 1.
[81] Application in a Case, filed by the Father 27 May 2020, Orders Sought, [2]. Transcript P11:L1-3.
Further the Father did not comply with the 8 November 2021 Orders which required that prior to the Interim Defended Hearing, an application should be made on notice in writing as an Application in a Case with supporting affidavits.[82] Instead the Father continued to rely upon the Father’s 26 October 2021 Affidavit, where he sought a variation of the 30 October 2019 Orders that there be a shared care arrangement with the Mother.[83]
[82] Orders 8 November 2021, Order 3; Transcript P14:L10-14.
[83] Affidavit of the Father, affirmed and filed 26 October 2021, [16] and [17]; Transcript P14:L10-15.
It was not until the Father served the Father’s Proposed Minute of Orders on 23 February 2022 that it became apparent that the Father was seeking to reinstate the 30 October 2019 Orders, notwithstanding that he remained located in City O, Country N (Father’s Proposal).
Documents relied on by the Father
The Documents relied on by the Father were:[84]
(a)The Application for Review;
(b)The Father’s 22 December 2021 Affidavit; and
(c)The Father’s Proposed Minute of Orders.
[84] Transcript P3:L8-33.
The Mother’s Proposal
The Mother’s Proposal was contained in the Mother’s Proposed Minute of Orders (Mother’s Proposal).
Documents relied on by the Mother
The documents relied on by the Mother were:[85]
(a)The Further Amended Response;
(b)The Mother’s 9 December 2021 Affidavit;
(c)The Mother’s 14 February 2022 Affidavit;
(d)The Mother’s Costs Notice; and
(e)The Mother’s Proposed Minute of Orders.
[85] Transcript P9:L17-P10:L2.
The ICL’s Proposal
The ICL supported the Mother’s Proposal (ICL’s Proposal).[86]
[86] Transcript P2:L31-36; P13:L39-41.
RELEVANT LEGAL PRINCIPLES
Rice and Asplund Considerations
The 30 October 2019 Orders were Final Consent Orders. Final orders cannot easily be changed because of the rule in Rice and Asplund[87] (Rice and Asplund), which is designed to prevent parties from returning to Court to seek new Court orders unless there has been a substantial change in circumstances. This was explained in Edwards and Edwards[88] where the Full Court of the Family Court stated:
The well settled principles in Rice and Asplund (supra) were formulated to promote the best interests of children who are the subject of proceedings under the Act. The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential of abuse of the child by subjecting the child to repeat expert interviews.[89]
[87] In the Marriage of Rice and Asplund (1979) FLC 90-725; [1978] FamCAFC 128.
[88] Edwards and Edwards (2006) FLC 93-306; [2006] FamCA 1230.
[89] (2006) FLC 93-306, 81,160.
The Full Court of the Family Court in Elimi & Munro[90] (Elimi & Munro) considered the principles in Rice and Asplund. In that case the Full Court said there was no scope for doubting the correctness of Rice and Asplund. The Full Court noted that in Poisat and Poisat[91] the Full Court said (at [13]) that the principal was:
[…] intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.[92]
[90] [2019] FamCAFC 138.
[91] Poisat and Poisat (2014) FLC 93-597; [2014] FamCAFC 84.
[92] [2019] FamCAFC 138, at [25].
The Full Court in Elimi & Munro held that:
The essence of the issues to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be a reconsideration of the parenting orders.[93]
[93] [2019] FamCAFC 138, at [38].
In this case neither the Father nor Counsel for the Mother or the ICL made an application for a threshold determination as to whether there had been a material change in circumstances, for the purposes of the rule in Rice and Asplund. Nevertheless, for the reasons that follow and taking into account the relevant provisions of the Act, I have considered the principles enunciated in Rice and Asplund and I am satisfied that there has been a substantial and material change in circumstances subsequent to the making of the 30 October 2019 Orders such that it is in the best interests of the Child to warrant a reconsideration of the 30 October 2019 Orders.
Applications for Review
Powers delegated to Senior Judicial Registrars for Division 2 of the Federal Circuit and Family Court are set out in s.254 of the FederalCircuit and Family Court of Australia Act2021 (Cth) and in Schedule 4, Clause 2 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (Rules).
The Application for Review was lodged with the Court within 21 days of the date of the relevant decision being the 10 December 2021 Orders, in accordance with r.14.05(2) of the Rules.
Applications of this kind are heard de novo in accordance with r.14.07(1) of the Rules. Rule 14.07(2) stipulates the evidence that the Court may receive as follows:
14.07 Procedure for Review
[…]
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing; or
(b) any further affidavit or exhibit; or
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
Disability Discrimination Act 1992 (Cth)
The Father claims that he has a disability as defined within the Disability Discrimination Act. Section 4 of the Disability Discrimination Act defines a ‘disability’ as follows:
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the person’s body; or
(f)a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j)may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
Family Law Act 1975 (Cth)
I will turn now to the relevant legal principles governing my decision in this matter, which are set out in pt.VII of the Act.
Pursuant to s.60CA of the Act, the Court, in determining this Application for Review, must consider what is in the Child’s best interests. What this means is individual cases is determined by a number of statutory provisions. In determining what is in the Child’s best interests, the Court must consider the matters set out in s.60CC of the Act.
Section 60CC of the Act sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of children. Each of those matters, where relevant, must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Child’s best interests.
The primary considerations are set out in s.60CC(2) of the Act and the additional consideration in s.60CC(3) of the Act.
Pursuant to s.60CC(2A) of the Act, the Court in applying the primary considerations in s.60CC(2) of the Act, is to give greater weight to the considerations set out in s.60CC(2)(b) of the Act.
The Full Court in Goode & Goode [2006] FamCA 1346 mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings.[94]
[94] Goode & Goode [2006] FamCA 1346, [81]-[82].
In Keats & Keats [2016] FamCAFC 156 the Full Court held in respect of interim proceedings:
[…] that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.[95]
[95] Keats & Keats [2016] FamCAFC 156, [9].
An interim hearing is therefore, by its very nature, a curtailed hearing. Evidence is limited and the matter is decided on the papers.
CONSIDERATION
I will now consider the primary considerations in s.60CC(2) of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
In the Section 11F Report the Family Consultant reported that:
24.Overall, [the Child] was observed to have a similar and relaxed bond with both parents and no concerns were noted during either parent’s interactions with [the Child].[96]
[96] Child Inclusive Conference Memorandum to Court, dated 15 July 2020, [24].
The Section 11F Report was prepared on 15 July 2020, over 18 months ago when the Child was aged 3 years. The Child is now aged 5 years. The Mother has been the primary carer of the Child since separation. The Mother contends that the Child should maintain a meaningful relationship with both parents, however this relationship needs to be protected in the context of the conflict between the parents.[97] The Mother has stated that the Child is confused about the circumstances of the Father leaving Australia and has been unsettled by the change in her routine.[98]
[97] Outline of Case Document (Final Hearing), filed by the Mother 4 November 2021, Meaningful relationship (section 60CC(2)(a) of the Family Law Act), [1].
[98] Mother’s Affidavit, filed 14 February 2022, [14] to [19].
I determine that the Child has a meaningful relationship with the Mother within the context of s.60CC(2)(a) of the Act. I also determine that the Child has had a meaningful relationship with the Father within the context of s.60CC(2)(a) of the Act, however the current status of that relationship is not independently verified by reason of the lapse in time since the Section 11F Report and the change in circumstances with the Father leaving Australia to reside in City O, Country N.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Father left Australia to reside in City O, Country N without providing any prior notification to the Mother, the ICL or the Court.
When the Mother asked the Father directly in an email on 7 December 2021 whether he was in Country N, the Father failed to respond to this specific request. It was only during the Interim Defended Hearing on 10 December 2021 that the Father revealed to the Mother, the ICL and to the Court that he was in City O, Country N.
After the Interim Defended Hearing the Father persisted with his view that the Paternal Grandmother was entitled to spend time with the Child whilst he is in Country N, and the Father filed the Application for Review. The Father has maintained this viewpoint despite being warned by Notation D of the 10 December 2021 Orders that members of the paternal family are not parties to the proceeding and are not bound by Orders of the Court. The Father insisted on proceeding with the Review Application Hearing, notwithstanding that he remained in Country N.[99]
[99] Transcript P2:L18-30.
There are two Affidavits from the Paternal Grandmother filed in this proceeding.[100] These Affidavits do not detail the Paternal Grandmother’s capacity to care for the Child. The evidence in these two Affidavits falls a long way short of any substantive evidence in support of the Paternal Grandmother spending substantial and significant time with the Child. The Paternal Grandmother is not and has never been the Child’s carer. In the absence of evidence from the Paternal Grandmother as to her capacity to care for the Child, there is no evidence before the Court that it is appropriate for the Paternal Grandmother to step in and fulfil the Father’s role as caregiver pursuant to the 30 October 2019 Orders.
[100] Affidavit of Ms H, affirmed 29 May 2020 and filed 2 June 2020; and Affidavit of Ms H, affirmed 28 October 2021 and filed 29 October 2021.
Further, there has never been any agreement between the Mother and the Father that the Paternal Grandmother care for the Child for an extended period of time, in the absence of the Father. The Mother opposes the Paternal Grandmother being the Child’s carer whilst the Father is in Country N for the reasons enumerated in [18] of the Mother’s 9 December 2021 Affidavit.
After the Interim Defended Hearing the Father sent two emails to the Mother (copied to the ICL) on 22 December 2021, demanding that the Child be returned to the care of the Paternal Grandmother.[101] These emails are demeaning and abusive towards the Mother and are completely misconceived from a legal perspective.
[101] Affidavit of the Mother, filed 14 February 2021, [37] and Annexure “5”.
On 22 December 2021 the ICL sent an email to the Father explaining the correct legal position as a consequence of the 10 December 2021 Orders and the filing of the Father’s 22 December 2021 Application in a Proceeding. In this email the ICL requested that the Father change the “tone and content” of his correspondence. In response on 22 December 2021 the Father replied with an email to the ICL (copied to the Mother) refusing to moderate the tone and content of his emails. This email from the Father directed a high degree of abuse towards the ICL and the Mother. The Father also threatened to take the ICL and Counsel for the ICL “to Court after the constitutional argument is settled in my favour”.[102]
[102] Affidavit of the Mother, filed 14 February 2021, [38] and Annexure “-6”.
On 26 January 2022 the Father responded to the ICL’s request for information relating to the Father’s travel arrangements for his return to Australia. The Father was ordered to provide this information to the ICL in accordance with Order 10(a) of 10 December 2021 Orders. The Father refused to provide the ICL with the information that he was ordered to provide pursuant to Order 10(a) of 10 December 2021 Orders. Further, the Father refused to confirm when he was returning to Australia or provide a brief report from his Medical Practitioner as to the treatment he received in Country N. The Father was Ordered to provide this information to the ICL pursuant to Orders 10(b) and 10(c) of the 10 December 2021 Orders. The Father’s email correspondence to the ICL on 26 January 2022 was again highly abusive towards the ICL.[103]
[103] Affidavit of the Mother, filed 14 February 2021, [24] and Annexure “-4”.
During the Review Application Hearing the Father stated that he was intending to return the Australia on 19 March 2022 on a flight booked with P Airlines.[104] The Father has not filed any Affidavit with this information or any information in relation to his expected quarantine arrangements. Further, the Father declined to advise the Court during the Review Application Hearing as to his vaccination status in relation to COVID-19.[105] In these circumstances the Court is unable to make any assessment as to the period that the Father may be subject to quarantine upon arrival in the Commonwealth of Australia.
[104] Transcript P4:L3-18.
[105] Transcript P16:L17-27.
The Court has very little option in these circumstances, having regard to s.60CC(2)(b) of the Act but to take into consideration the Father’s behaviour and to act protectively in relation to the Child. The Court therefore prefers the Mother’s Proposal and the ICL’s Proposal.
I now consider the additional consideration in s.60CC(3) of the Act, to the extent that they are relevant to the Application for Review.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The Child was not interviewed to the Section 11F Report due to her young age. The Child is too young to determine what is in her best interests.
Section 60CC(3)(b) the nature of the child’s relationship with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Each of the child’s parents
I refer to an repeat the matters discussed in relation to s.60CC(2)(a).
Other persons (including any grandparent or other relative of the child)
The Child lives with the Mother and her husband, Mr D, and E. The Child has a relationship with E. Mr D has deposed that the Child:
[…] has developed a very loving and close relationship with E. She is besotted with her. She refers to E as her “baby sister” and loves playing with her.[106]
[106] Affidavit of Mr D, affirmed 3 November 2021 and filed 4 November 2021, [6].
The Child has a relationship with the Paternal Grandmother. I refer to and repeat the matters discussed in relation to s.60CC(2)(b). There is no evidence before the Court in relation to nature of the Child’s’ relationship with the Paternal Grandmother.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in decisions about major long-term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child;
Participation in decisions about major long-term issues in relation to the child;
Pursuant to Orders 1 and 2 of Annexure A of the 30 October 2019 Orders the parents have equal shared responsibility for the Child and may equally participate in the making of all long term decisions in relation to the Child.
Equal shared parental responsibility for the Child has proved to be very difficult for the parents to manage, due to the conflict between the parents. Particular problems have arisen in relation to the Father’s attitude to the Child’s vaccination to COVID-19. This issue resulted in the 8 November 2021 Orders and the Appeal. After the Appeal of the 8 November 2021 Orders was summarily dismissed by Justice Austin on 23 December 2021, the Father sent an email to the Court’s Appeals Registry and to the Mother’s personal email (copied to the ICL), which included the following:
[…] Where is the jurisdiction handed down from the High Court for your lower court to hear a constitutional matter? Austin did not have any idea nor the jurisdiction to hear this matter in the first place.
See you in the High Court.[107]
[107] Affidavit of the Mother, filed 14 February 2022, [41] and Annexure “-8”.
The Father has subsequently filed the Father’s 24 January 2022 Application in a Proceeding, the High Court Appeal and the Father’s 10 February 2022 Contravention Application.
In relation to the Child’s education, the Father filed the 16 February 2022 Application-Contravention.
I otherwise refer to and repeat the matters discussed under the heading Procedural History.
Spend time and communicate with the child.
The Father has not spent any time with the Child since early November 2021. Order 7 of the 10 December 2021 Orders ordered that the Child communicate with the Father via Zoom, or such other electronic means as agreed to in writing, at specified times. Order 9 of the 10 December 2021 Orders provided that the Mother give the Child privacy during the Zoom calls.
In the Mother’s 14 February 2022 Affidavit the Mother stated that the Child is spending time with the Father in accordance with the 10 December 2021 Orders. The Mother also stated that she is concerned about some of the comments that the Child is making to the Mother following these calls.[108] The Mother is seeking the discharge of Order 9 of the 10 December 2021 Orders.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
[108] Mother’s Affidavit, filed 14 February 2022, [20] to [23].
In the Mother’s 9 December 2021 Affidavit the Mother stated that the Father does not pay child support, despite the assessment which provided for the Father to pay approximately $635 a month. The Mother stated that there was an arrears in child support of $6,203.54. Services Australia determined that the Father’s annual income was approximately $192,000.[109]
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living);
[109] Mother's 9 December 2021 Affidavit, [23(i)] and Annexure “-5”.
Either of his or her parents
In the Mother’s 14 February 2021 Affidavit at [14] to [18] the Mother described: the Child being confused about the circumstances of the Father leaving Australia; and the improvement in the Child’s behaviour since the Child has been in the sole care of the Mother.
It is noted that the Child commenced primary school on 1 February 2022 and the Mother reports that the Child is settled in her routine.[110]
Any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
[110] Mother’s Affidavit, filed 14 February 2022, [19].
This is not a relevant consideration.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents;
(ii) any person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Each of the child’s parents
The Father’s drug and alcohol history and mental health history is reported in:
(a)The Section 11F Report, at [13] and [14];
(b)Dr F’s First Affidavit and Dr F’s 16 April 2019 Report; and
(c)Dr F’s Second Affidavit.
The Father claims that he has a disability as defined within the Disability Discrimination Act.[111] The definition of ‘disability’ in s.4 of the Disability Discrimination Act describes some disabilities, each of which could significantly impact upon the Father’s capacity to provide for the needs of the Child, including her emotional and intellectual needs.
[111] Affidavit of the Father, filed 22 December 2021, [4]; Application for Review, Part D Orders Sought, [7].
The Father has deposed that he is currently located in Country N and receiving treatment for his ‘disability’ that is “not available in Australia”.[112] The Court has no independent medical evidence in relation to the Father’s alleged diagnosis of a ‘disability’ pursuant to the Disability Discrimination Act. Further, the Court has no evidence as to what treatment the Father has been receiving in Country N.
[112] Father’s 22 December 2021 Affidavit, [4]-[5].
It is alleged by the Mother that the Father suffers from an opioid dependency.[113] Hair follicle test results collected on 24 August 2020 indicated a high level of opioids in the Father’s system at the time the test was undertaken.[114] The Father’s Medication Summary prepared by Dr Q as at 23 September 2020 indicated that the Father was prescribed oxycodone hydrochloride and targin MR on a regular basis.[115]
[113] Affidavit of the Mother, affirmed and filed 5 June 2019, [4] and [5].
[114] Affidavit of the Mother, affirmed and filed 9 December 2021, [13]-[14] and Annexure “-1”.
[115] Mother’s 9 December 2021 Affidavit, [15] and Annexure “-2”.
The Mother is concerned that the Father has again reverted to abusing prescription medication and using illicit drugs and that his mental health has deteriorated.[116] I also share those concerns, based upon the recent correspondence that the Father has been sending to the ICL and the Mother, and the number of recent proceedings the Father has filed against the Mother.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
[116] Mother’s 9 December 2021 Affidavit, [11] to [15] and [20] to [21].
Pursuant to Order 14 of Annexure A to the 22 July 2020 Orders the parents were each ordered to enrol in a parenting orders program as soon as practicable. The Mother has completed a parenting orders program.[117] There is no evidence before the Court that the Father has complied with Order 14 of Annexure A to the 22 July 2020 Orders to enrol in a parenting orders program.
[117] Affidavit of the Mother, affirmed and filed 9 November 2021, [20(d)].
Pursuant to Order 3 of Annexure A to the 30 November 2020 Orders the Father was ordered to attend a Men’s Behavioural Change Course as soon as reasonably practicable and upon completion, to provide a certificate of completion to the solicitors for the Mother and the ICL. There is no evidence before the Court that the Father has complied with Order 3 of Annexure A to the 30 November 2020 and completed a Men’s Behavioural Change Course.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
On 18 April 2019 an Intervention Order, in favour of the Mother and the Child was made against the Father. On 26 February 2019 a further Intervention Order was made against the Father in favour of the Mother and the Child at the Sunshine Magistrates’ Court.[118]
[118] Affidavit of the Mother, filed and affirmed 29 May 2020, [8].
The Intervention Order made on 26 February 2020 expired on 25 February 2021. The Father is being prosecuted for a breach of the Intervention Order made on 26 February 2020.[119]
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
[119] Affidavit of the Mother, filed 9 December 2021, [23(a)].
(i) nature of the order;
(ii) the circumstances in which the order is made;
(iii) the any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for the order;
(v) any other relevant matter;
There is no evidence relevant to s.60CC(3)(k) before the Court.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
At the time of the Review Application Hearing there were seven (7) extant applications between the parties. These are summarised under the heading Procedural History at [67]. Given the Father’s history of filing numerous Applications, Contravention Applications and Appeals (including the Review Application), I consider that the Father will continue with this behaviour unless specifically restrained by the Court.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
All matters relevant to this Review Application have been considered in these Reasons for Judgment.
CONCLUSION
After considering ss.60CC(2) and 60CC(3) of the Act and the principles enunciated in Rice and Asplund, I have determined that there has been a substantial and material change in circumstances subsequent to the making of the 30 October 2019 Orders. I therefore determine that pursuant to s.60CA of the Act it is in the best interests of the Child for the Court to reconsider the 30 October 2019 Orders.
The 10 December 2021 Orders were entirely appropriate. It is in the best interests of the Child to remain in the Mother’s sole care until the Father returns to the Commonwealth of Australia. After the Father returns to the Commonwealth of Australia, a reconsideration of the appropriateness of the 30 October 2019 Orders should take place.
Therefore for the reasons given above, the Orders proposed in the Mother’s Proposal and in the ICL’s Proposal are in the best interests of the Child. I therefore determine that:
(a)The Orders made by the Senior Judicial Registrar are affirmed; and
(b)The Application for Review be dismissed.
Orders will be made accordingly.
COSTS
The Mother seeks an order that the Father pay her costs of and incidental to the Application for Review. Counsel for the ICL sought an order that the ICL’s costs of and incidental to the Application for Review be reserved.[120] The Father made no submissions in relation to costs.
Relevant Legislation
[120] Transcript P17:L3-7.
The general rule in s.117(1) of the Act that each party to proceedings shall bear their own costs, is subject to s.117(2) of the Act.
Section 117(1) of the Act provides:
Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) of the Act provides:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) of the Act is relevant for the purposes of this proceeding. Section 117(2A) of the Act provides:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
Consideration of Costs Applications
I now turn to consider the costs applications made by the Mother and ICL.
In relation to s.117(2A)(a) of the Act, in the Mother’s 14 February 2022 Affidavit the Mother stated that her total legal fees incurred from her previous legal representatives up until 29 November 2021 totalled $46,063. The Mother relied upon the Mother’s Costs Notice in relation to her legal fees incurred since 29 November 2021.[121] The Mother’s Costs Notice states that:
(a)In relation to the Interim Defended Hearing, the Mother incurred costs of $7,000 and disbursements of $1,850, being a total amount of $8,850;[122]
(b)In relation to the hearing before the Senior Judicial Registrar on 16 February 2022, the Mother incurred costs of $6,150 and disbursements of $1,850, being a total of $8,000;[123] and
(c)In relation to the Review Application Hearing it is estimated that the Mother will have incurred costs of $3,300 and disbursements of $1,850, being a total of $5,150.[124]
[121] Affidavit of the Mother, filed 14 February 2021, [48].
[122] Mother’s Costs Notice, filed 24 February 2022, [1].
[123] Mother’s Costs Notice, filed 24 February 2022, [2].
[124] Mother’s Costs Notice, filed 24 February 2022, [3].
The financial circumstances of the Mother are set out in the Mother’s Financial Statement. The Mother’s Financial Statement states that the Mother does not have a weekly income and that the Father does not pay the child support of $115 a week, which he is required to pay.[125] I otherwise refer to and repeat the discussion in relation to s.60CC(3)(ca) of the Act concerning the Father’s failure to pay child support.
[125] Financial Statement, filed by the Mother 25 October 2021, [2], [9] and [13].
The financial circumstances of the Father are set out in the Father’s Financial Statement. In the Father’s Financial Statement the Father affirmed that he was employed as a sales representative with an average weekly income of $2,769.[126]
[126] Financial Statement, filed by the Father 6 May 2019, [2], [3] and [9].
In relation to s.117(2A)(b) of the Act, neither the Mother or the Father are in receipt of legal aid.[127] The ICL is funded by Victoria Legal Aid.
[127] Transcript P13:L17-19.
In relation to s.117(2A)(c) of the Act, the Father has issued multiple applications against the Mother which have been discussed above under the heading Procedural History. Many of these applications have been without merit and have either been dismissed by Order of the Court or by consent. A summary of the matters which remained extant between the parties at the time of the Review Application is at [67] of these Reasons for Judgment.
In relation to s.117(2A)(d) of the Act, as discussed at [68] to [70] under the heading Father’s Proposal, the Father has failed to comply with procedural orders which related directly to the conduct of the Review Application Hearing.
In relation to s.117(2A)(e) of the Act, the Father has been wholly unsuccessful in relation to the Application for Review. The Application for Review lacked any reasonable prospect of success and yet the Father insisted on proceeding with the Review Application Hearing.
In relation to s.117(2A)(f) of the Act, the Court is not aware of any matter relevant to this consideration.
In relation to s.117(2A)(g) of the Act, I take into account the highly abusive email correspondence that the Father has sent to the ICL and to the Mother, in particular the Father’s email correspondence sent on 22 December 2021 and 26 January 2022.[128] I also take into account the Father’s attempt to remove the ICL by filing the Father’s 6 January 2022 Application in a Proceeding, which was dismissed by the Senior Judicial Registrar on 16 February 2022 by Order of the Court.[129]
[128] Affidavit of the Mother, filed 14 February 2022, [24], [37] and [38] and Annexures “-4” to “-6”.
[129] Orders 16 February 2022, Order 5.
Costs Applications - Conclusion
Having considered ss.117(1), (2) and (2A) of the Act, I determine that it is appropriate to exercise my discretion and make the Orders sought by the Mother and the ICL in relation to costs as follows:
(a)The Father pay the Mother’s costs of and incidental to the Application for Review; and
(b)The ICL’s costs of and incidental to the Application for Review be reserved.
Orders will be made accordingly.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kirton Associate:
Dated: 17 March 2022
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