Dade & Halbert
[2023] FedCFamC1F 504
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dade & Halbert [2023] FedCFamC1F 504
File number(s): BRC 11336 of 2021 Judgment of: BAUMANN J Date of judgment: 20 March 2023 Catchwords: FAMILY LAW – PARENTING – Best interests of the children – With whom the children should live –Father restrained from removing the children from the care of the mother or their school – Where the father failed to comply with any trial directions for filing of material and did not appear before the Court Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 20 March 2023 Place: Brisbane Counsel for the Applicant: Mr Foley Solicitor for the Applicant: Get Real Legals Respondent: Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer: Mr Hanlon Solicitor for the Independent Children’s Lawyer: Queensland Legal Practice ORDERS
BRC 11336 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DADE
Applicant
AND: MR HALBERT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
20 MARCH 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That the all previous Orders relating to the children, X born 2011 and Y born 2014 (“the children”) be discharged.
2.That the mother have sole parental responsibility for the children.
3.That the children live with the mother.
4.That the father be restrained and an injunction hereby issues restraining the father from removing the children from the care of the mother or from the child’s school.
5.That the children spend time with the father as agreed between the parents in writing.
6.That the parents not denigrate the other parent and or their partner to or within the hearing of the children.
7.That the parents not discuss any matters before the Court with or within the hearing of the children.
8.That the Independent Children’s Lawyer be discharged.
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 the pseudonym Dade & Halbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X, born 2011, and Y, born 2014 (now aged 12 and nine years respectively), are the two children of a relationship that came to an end between the Applicant mother, Ms Dade, and the Respondent father, Mr Halbert, in September 2014. At that time, X was three and Y was less than one year of age. Separation was associated with, on the mother’s case, a domestic violence event which caused her to file an application at that time. Subsequently, in late 2014, mutual Domestic Violence Orders for 12 months were made against each parent, in favour of the other parent. The father has not appeared today, being the start of a three day trial, listed by me in December 2022.
There is no explanation for why the father has not appeared, save to observe that:
(a)on or about 16 December 2022, he no longer sought, from that date, to spend time with his son, Y, which he had consistently been doing under various orders of the Court;
(b)on or about 24 December 2022, the father sent a letter to the Independent Children’s Lawyer (“ICL”), which speaks for itself, and it is referred to in the material at pages 185 to 187 of the tender bundle, in which he identifies both frustration, anger, and disappointment with, I suspect, not only the ICL, but the Court;
(c)on 18 January 2022, the father’s lawyers on the record, who were present when the matter was listed for trial, withdrew; and
(d)the father failed to comply with any trial directions to file material.
Notwithstanding his failure to appear today, and his failure to file material, I have read, by way of background, his affidavit filed in these proceedings on 11 October 2022.
In circumstances of the father’s failure to attend today, I was asked by Mr Foley, Counsel for the mother, to proceed on undefended basis. That was supported by the ICL, and I believe is appropriate to do so. I made the clear observation to the parties, of course, that pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), a person against whom an order is made in their absence does have rights to seek to have that order set aside, and also be heard on those orders. But before the Court would be permitting such action to occur, they would need to be satisfied there is a good reason why the father had not appeared, and that it would have made an order different than the order it is making today.
That lengthy material, apart from the father’s sole affidavit, and I have averted to are set out in the case outline. The mother had one trial affidavit which, although they do not seek leave to rely upon, the ICL relied upon the tender bundle, but also two expert reports, one from Dr B, a Psychiatrist who saw the parties. The father was also seen by Dr B some years earlier, as his report reflects. Dr B’s report was filed on 25 January 2023. I have also read and considered the affidavit and report of Dr C, filed on 23 November 2022.
The Court is not, of course, obliged to make an order as sought by a parties in the absence of other parties, without giving proper consideration to the terms of the order, and whether it does, at the time the order is made on the evidence, untested as it is, meet the children’s best interests.
I have heard the submissions of Mr Foley of Counsel and Mr Hanlon of Counsel, who urge me to make the final orders sought by the mother in her case outline, that appear at the commencement of these Reasons. I propose to do so, because I do believe – sadly, in this case – on the evidence, untested as it is, those orders have the attraction of bringing these proceedings to finality. They also represent the best interests of the children in circumstances where the father has spent no time with X since Father’s Day 2021, and now, as earlier indicated, no time with Y since December 2022.
I make the orders with the degree of regret that the father has not participated in the proceedings. As the reports of Dr B and Dr C make quite clear, this father desperately loves his children. I have no doubt that is the case. However, this is a case where the conflict between the parents, since separation in 2014, has been unrelenting and persistent. In particular, it seems that the mother’s partnering with a Mr D in 2018 was somewhat provocative to the father, and had caused him, I am satisfied on the evidence, to make many unsubstantiated allegations to police and departments, many of them hurtful, asserting that Mr D had, in some way, been guilty of sexually abusing the children.
Many of these allegations were raised before the final Orders made by Judge Turner on 27 August 2018. Those Orders provided for the children to live with the mother; for her to have sole parental responsibility, and subject to various conditions being set, which were quite onerous upon the father, the father’s initial supervised time was progressed to unsupervised time. True it is, that the mother had, at one stage, found it difficult to comply with orders. That is reflected by the decision of Judge Tonkin made 15 July 2019 when dealing with a Contravention Application filed by the father. The mother was placed on a 12 month bond and had to pay some costs to the father. No doubt, those events, and the payment of costs, did nothing to improve the relationship between the parties.
Sadly, by mid-2021, X was expressing a strong and entrenched view that she did not wish to see her father. She was said to have thoughts of self-harm. In 2021, X was 10 years of age. This caused the mother, on 28 August 2021, to recommence proceedings in this Court. It is not necessary to go to record all the stages of the proceeding, save to note that, in March 2022, with the benefit of the child impact report, a Senior Judicial Registrar formally made an Order that X spend no time with the father, but importantly, continued Y’s ongoing time with the father, with changeovers at E Contact Centre. The Senior Judicial Registrar, perhaps alert to the provocation, at least in the father’s mind, that Mr D caused, made an order restraining the mother’s partner from being present at changeovers.
The matter was then transferred to Division 1. Since then, a family report was prepared on the instructions of the ICL. I have read that report which recommended to the Court that the children live with the mother; the mother have sole parental responsibility and that the father be able to attend school functions, but that the parents remain 50 metres apart from each other. The recommendations further suggested that the children were to spend time with their father, with Y to spend unsupervised time from Thursday until Tuesday in alternate weeks, and X to spend supervised time at a suitable contact centre.
When the matter came before me, after the family report, on 13 October 2022 with the consent of the parties, the Court ordered counselling take place with F Services. I am satisfied that that attempt at family therapy was unsuccessful. X went once, and did not wish to return. When I listed the matter for trial on 12 December 2022 for today, during the course of that Case Management Hearing, I made some observations about the conflict, and the effect this was having upon the children. I note the father ceased time four days later.
It is a difficult matter and X’s entrenched resistance to spending time with the father, especially as she is now 12 years of age, would have been a difficult therapeutic journey to navigate, however Y was still spending time with the father and, in my view, there was every prospect that the Court would continue to have made that order.
However, in circumstances where the father has, for reasons totally unknown although I can assume a sense of frustration, anger, and disappointment with the Court system generally by the father, the father has elected not to spend time with his son. This has created a further hurdle to the relationship that he may have been able to enjoy and develop with his son and, perhaps in time, with X.
It is to be hoped that X and Y do not feel a sense of abandonment by the father. As I say, I am satisfied he dearly loves these children, but he must, in the best interests of the children, stand up to his responsibility if he wishes to spend time with them. I do not say that was easy for this man who, as I say, has already received a finding in his favour for the mother contravening orders some time ago, however on all the evidence that I have read for this trial, having prepared without knowing that the father would not attend, it is clear that the mother has, in very difficult circumstances, continued to provide for the emotional, financial, and intellectual needs of these children in a more than appropriate way.
The Orders that Judge Turner made way back in 2018 providing for the mother to have sole parental responsibility do not need to be altered. I invited Mr Foley, during submissions today, to indicate why it might not be appropriate to provide, at least, for the father to be able to send articles or gifts to the children. He referred me to the ongoing conflict between these parties reflected in, at the very least, some of the recent communications between the parents attached to the mother’s trial affidavit.
What we know with children is they grow up, they become independent and they can make their own choices. It is sad for these children that they do not have a father in their life; their biological father who, I am sure, has many things he could share with them and show them. Whether they build a relationship with him in their adulthood is a matter, ultimately, for the children.
In the circumstances, at this stage, it is important that the Court makes orders which are least likely to lead to further proceedings. The less prescriptive those orders are in this case, the better.
For the reasons which I have given, and I based on the evidence before me, untested though it is, I believe that the orders urged upon me by the mother today, supported by the ICL, are in the children’s best interests, and I make them. I discharge the ICL with the thanks of the Court.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 June 2023
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