Dalling & Rait
[2024] FedCFamC2F 564
•16 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dalling & Rait [2024] FedCFamC2F 564
File number(s): NCC 3181 of 2019 Judgment of: JUDGE BETTS Date of judgment: 16 April 2024 Catchwords: FAMILY LAW – Parenting – two children, aged 12 and 9 – where the parties agree on final consent orders – where the ICL opposes the orders – where the Court considers it inappropriate to make the consent orders – where the parties enter into their own Parenting Plan – where the Court dismisses all extant applications – where the ICL seeks costs – costs application adjourned. Legislation: Part VII of the Family Law Act 1975 (Cth) Cases cited: Harris & Caladine (1992) FLC 92-217 Division: Division 2 Family Law Number of paragraphs: 22 Date of last submission/s: 16 April 2024 Date of hearing: 16 April 2024 Place: Newcastle Counsel for the Applicant: Mr Graham Solicitors for the Applicant: Oliver Campbell Heslop Lawyers Counsel for the Respondent: Mr Flanigan Solicitors for the Respondent: Grant & Co Counsel for the Independent Children’s Lawyer: Mr Mooney Solicitors for the Independent Children’s Lawyer: Ashby Family Solicitors ORDERS
NCC 3181 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DALLING
Applicant
AND: MS RAIT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
16 APRIL 2024
THE COURT ORDERS THAT:
1.The Father’s Initiating Application filed 4 October 2019 be dismissed.
2.The Mother’s Response to the Father’s Initiating Application filed 2 December 2019 be dismissed.
3.The Mother provide to the Independent Children’s Lawyer, who in turn can provide a copy to the Father’s legal representatives, a copy of the text message communications that occurred between the Mother and X referred to in paragraph 6 of the Family Report of 24 February 2024.
4.The Independent Children’s Lawyer application for costs against the Father is adjourned to 10.30am on 17 April 2024, NOTING that the Court has requested that Ms C provide a copy of her file particularly with respect to her communications or attempted communications with the Father in relation to the Family Report interview.
5.The question of whether the Family Report and today’s reasons should be forwarded to the Department of Communities and Justice NSW is adjourned to 10.30am on 17 April 2024.
6.If the Mother wishes to be heard on the question of whether todays reasons and the Family Report of 20 February 2024 ought to be released to the Department of Communities and Justice NSW, the Mother is to attend Court tomorrow.
NOTATION:
A.The Court has no power to make an Order for costs against the Mother in favour of the Independent Children’s Lawyer having regard to section 117(4)(a) of the Family Law Act1975.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These Reasons were delivered orally. They have been corrected from the transcript in order to make them easier to read.
It seems to me before I hear cost applications, I should formally make orders in the matter.
I have had the opportunity, while the matter was stood down, to have a further review of the file. It is quite apparent the father filed his Initiating Application in October 2019, some four (4) years and six (6) months ago. These parties have had numerous Court attendances. I see the mother did not turn up for one on 30 March 2023; in late 2022 she had failed to provide hair strand tests that were clean, so she has clearly had difficulties. The mother turned up late for the first Family Report, but she got there. She has never filed trial material.
It is a long and sad procedural history when I look at this, really.
And it seems that the evident theme of all of it is the parents just do what they want to do and make some arrangement as between themselves even with an order for supervised time through B Contact Service. I think the father never even completed their intake forms. The parents instead just made some other arrangement with aunts and people to supervise.
So it only fortifies the view I already had that I ought to dismiss all extant applications. So I am simply going to the following things just for the record:
(a)These are parenting proceedings concerning X, born in 2011, and Y, born in 2014. They are the children of the relationship between the applicant father, Mr Dalling , and the respondent mother, Ms Rait.
(b)The parents were together between 2007 and September 2018. The children have lived with the father since 19 January 2019.
(c)In terms of the Court proceedings themselves, they have a long and tortuous history. They were commenced by way of an Initiating Application filed by the father on 4 October 2019. The mother filed her Response on 2 December 2019. The proceedings have limped along through the Court system in the succeeding four and a half (4 ½) years. There have been numerous procedural orders as well as substantive orders of an interim nature, most particularly providing for the mother to have supervised time, subject to providing some hair strand or other drug tests in order for that time to graduate further.
(d)The reality of the matter is that it remains in something of a ‘limbo’ situation because the Court finds itself without the proper evidence needed to conduct a final hearing today. Neither party has complied with Court orders. This proceeding was set down on 24 July 2023 for a trial by the Chief Justice. It was specifically ordered that the Family Report in this matter be updated and there were specific orders that the parties were to ensure that both they and the children attended the Family Report interviews.
(e)The Family Report of 20 February 2024 prepared in anticipation of the hearing noted that the father had not brought the children to the interviews. Paragraph 6 records that:
[X], aged 12 years, did not attend the family interview. The mother reported [X] had messaged her saying that she would not be attending the family interview because the father had, “forgot”. This would have occurred before 11 am where there was sufficient time for the father to contact the Family Consultant and make a later arrival. His failure to respond to the Family Consultant’s contacts that morning suggest he had chosen not to attend the family interview. Phone contact by the Family Consultant to the father’s legal service failed to evoke any response from the father. It is further noted that he had confirmed during a telephone call with the Family Consultant on 8 February 2024, that is to say, six days prior to when the interview was meant to happen, that he would be attending the family interview. Information regarding [X] was provided by the mother who has limited direct contact with her, therefore may be considered to be incomplete.
(f)The Family Report reads rather like the father frustrated the entire process by simply not attending with the children.
(g)The proceedings were re-listed before me on 29 February 2024 when I made a section 102NA order as well as specifically putting in place orders for the father to enable the ICL to meet with the children.
(h)Following that meeting, the matter was listed before me last week on 11 April 2024 at which time the Independent Children’s Lawyer (“ICL”) orally applied to adjourn the final hearing in order to update the Family Report, noting the lacuna in the evidence at this stage. I dismissed that application on the day, noting that the ICL may renew it at today’s hearing, being day 1 of the three (3) day final hearing.
(i)The matter has come before me today, and I am told by Mr Graham, who appears for the father, and Mr Flanigan, who appears for the mother, that the parents have reached some form of agreement whereby the children will remain living with the father and that the mother will spend some time with the children of a fairly limited nature subject to some further drug tests which will then see her time graduate.
(j)The ICL will not sign the orders and seeks instead that the final hearing be adjourned so that the updated Family Report can be prepared or, alternatively, that the ICL be discharged.
(k)I am going to annex to these reasons a copy of the ICL’s Case Outline which sets out the basis for the ICL’s argument in some detail.
The Court finds itself in a difficult, if not impossible, position as a result of the parents’ non-compliance with orders.
In the mother’s case she has not filed any trial material whatsoever; I invited her last week to do so. To be fair to her, her counsel has prepared a Case Outline of 12 April 2024, but apart from that all that I have is her earlier Response filed 2 December 2019, an affidavit of 2 December 2019 and an affidavit of 16 February 2021. This material is very old; it does not, for example, canvas the birth of the mother’s youngest child or any of her current living circumstances, which on the father’s case are potentially dangerous and expose the children to risk.
In the father’s case I have his Initiating Application of 4 October 2019 and a very late affidavit filed 11 April 2024. In that affidavit he sets out what he says are some healthy and appropriate living arrangements for the children, but he does raise real concerns about the mother’s longstanding drug-use issues and also about the mother’s accommodation wherein he says:
I understand she may be squatting in an abandoned [house] nearby with her new baby and partner called [Mr D].
The ICL is troubled that the mother’s lack of evidence means that the risk factors in her care cannot be properly explored. The ICL is also troubled that the father’s failure to attend the Family Report interviews means that the children have not been the subject of any independent assessment, nor has the ICL had the opportunity to undertake the usual forensic analysis which would follow a Family Report interview, that is to say, gathering of subpoenaed material and the like. The ICL contends that the final hearing really cannot proceed in any fair or appropriate way and must be adjourned or, alternatively, the ICL discharged.
The parents may have reached an agreement for the future parenting of the children but the Court is not a ‘rubber stamp’, as was made clear in the High Court decision of Harris & Caladine (1992) FLC 92-217.
I understand from Mr Graham’s submissions that the parents do have an amicable, or at least semi-amicable, relationship in this respect, which is good for the children. But it is one thing for the Court to, in the exercise of its parenting jurisdiction, arrive at an order which the Court is satisfied is in the best interests of the children. It is quite another to simply act as a ‘rubber stamp’ to sign-off on a proposed order in circumstances where, through the actions or inactions of both parents, the Court is unable in any proper way to actually come to any concluded view that the orders that the Court is asked to make would be in the best interests of the children.
To that end I invited the parents to discuss entering into a Parenting Plan instead, and I understand that they might have reached such an agreement.
Of course, it is open to the Court to adjourn this hearing today and to order an updated Family Report, but this proceeding has been on foot now for four and a half (4 ½) years; even the father says he wants it over. Ironically, had he attended for the Family Report interviews that were ordered by the Chief Justice it may be the case that I could have proceeded to conduct some sort of final hearing today, but his non-attendance means that, from the perspective of the Court, there is that lacuna in the evidence which gives rise to the very problems that have been identified by the ICL and which I echo.
As I have indicated, in the mother’s case her failure to comply is arguably even more comprehensive - save that she did at least attend for the Family Report interviews.
I have looked back through the orders made in this matter. The parties have had every resource of this Court thrown at them. There was an order for family dispute resolution on 28 October 2021. There have been interim orders made for the mother to spend time with the children, as I indicate, subject to hair strand tests. There was an occasion where the mother did not attend court at all (30 March 2023). And, essentially, we arrive at today where after four and a half (4 ½) years the matter is woefully unprepared and the final hearing is unable to be conducted.
The fact of the matter is that the parties through their own decisions have deprived the Court of the opportunity to conduct a hearing according to law.
COSTS APPLICATION BY THE ICL
I will mark as exhibit 1 the Costs Notice of the ICL handed up today by Mr Mooney.
In the circumstances, then, just to round out these reasons, I note that the ICL seeks costs of and incidental to the proceedings in the amount of $5,607.50 against each parent.
However, Mr Flanigan advises on behalf of the mother, and Mr Mooney confirms on behalf of the ICL, that at an earlier point in the proceedings the mother was legally aided. In such circumstances, the Court has no power to make an order for costs in favour of the ICL against the mother. The legislation prohibits me making any such order: see section 117(4)(a) of the Family Law Act.
The only remaining issue then, is the ICL’s claim for costs against the father in the amount of $5,607.50.
The father has, clearly, been in default of Court orders, but a serious question mark arises as to the circumstances surrounding his non-attendance at the Family Report. Mr Graham wishes to be able to put some more evidence before the Court in that respect, and to this end I will adjourn that application to tomorrow at, I will say, 10.30 am. So the ICL’s application for costs against the father is adjourned to 10.30 am on 17 April 2024, noting that the Court has requested that Ms C (the report writer) provide a copy of her file, particularly with respect to her communications or attempted communications with the father in relation to the Family Report interview.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 16 April 2024
IN THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AT NEWCASTLEFILE NO: (P)NCC3181/2019
BETWEEN: MR DALLING
(Applicant Father)
AND: MS RAIT
(Respondent Mother)
AND: INDEPENDENT CHILDREN’S LAWYER
BEFORE: JUDGE BETTS
Case Outline of the Independent Children's Lawyer
A. Proceedings
Parenting proceedings concerning the children of the relationship between the Applicant and the Respondent, namely:
·X (Born in 2011) now aged 12 years old.
·Y (Born in 2014) now aged 10 years old
There was 1 year between final separation and the filing of these proceedings. The period between final separation and hearing was 5 Years, and the time from filing to hearing has been 4 Years.
B. Documents Relied Upon
The Independent Children's Lawyer reads the following documents:
1.Family Report of Ms C dated 09 April 2021;
2.Updated Family Report of Ms C dated 20 February 2024;
The ICL has also reviewed the Child Inclusive Conference Memorandum dated 17 January 2020, and material has been produced on subpoena including from the children’s schools and DCJ, which is discussed below.
C. Brief Submissions
1.It is noted that the updated Family Report suffers from severe limitations which are set out at page 3 of the report, the most striking of which are that the father:
a.Failed to attend the family report interview;
b.Failed to respond to subsequent contact from the court child expert; and
c.Failed to present the subject children to the court child expert.
2.It is noted that the court child expert indicated[1] that the information she had received suggested that the father had chosen not to attend, despite being aware of the interview and previously confirming his intention to attend.
[1] 2024 Family Report [8]
3.The ICL is of the view that prima facie the father appears to have set out to deliberately frustrate the Family Report process.
4.The limitations to the Family Report are so severe that the Family Consultant, despite having been involved in the case for nearly four years indicated that an extensive evaluation and/or recommendations would be premature and without balance and declined to make any.[2]
[2] 2024 Family Report [38]
5.The ICL has twice had the matter relisted and attempted (unsuccessfully) to have the trial adjourned to permit a proper evaluation by the court child expert to take place.
6.The only trial material filed by either party since 2021 is an affidavit filed by the father on 11 April 2024, three business days before the trial, despite the trial directions ordered on 24 July 2023, requiring the filing of that material no later than 26 March 2024.
7.The mother has filed no trial affidavit.
8.Neither party has filed an amended application or response. The ICL does not know what orders either party seeks.
9.The ICL has had no opportunity to investigate the new information and claims made by the father in his affidavit, nor to consider the most recent adults who have apparently moved in and out of the lives of the children, specifically including a person called Ms E who the father deposes to having had a relationship with, and who “…seems to have some sort of mental health issue and she became quite erratic during our relationship”.[3]
[3] Affidavit of Mr Dalling filed 11 April 2024 (“F”) [18].
10.The father also deposes to some involvement with a female Ms G. The father deposes that despite not being in a romantic relationship with this person, she visits the father “once or twice a week” and stays overnight, but never comes into contact with the children.[4]
[4] F [19]
11.The father presents no evidence from Ms G.
12.The ICL has recently met the children and is highly concerned about the presentation of X.
13.The ICL has reviewed material produced on subpoena, including from X’s schools. It contains exceptionally concerning entries from early to mid-2023, some of which are consistent with the presentation recently observed by the ICL.
14.That material includes entries such as the following:
a.Early 2023 – (school record) “All stage 3 staff have noted that X is sad, withdrawn and disengaged. She never smiles, does not talk with staff or peers like she used to and is not as engaged in learning. We are being as supportive. Today X asked to speak to me. She said that things at home have got worse because dad is angry. She said that mum is pregnant, and dad doesn't want her to keep the baby. Dad wants her to get rid of it. Mum wants to keep the baby. Parents are fighting about it. X has not returned the note for an excursion. She said she wants to go but she can't ask her father about it because he just gets angry with her"
b.Mid-2023 (Mandatory Report) “Today […] was informed that a fake account had been set up in […]’s name. In response … made threats to … due to the messages on the account. The messages apparently told X to kill herself and that we would be better off without her. This afternoon whilst walking to […] came to talk to me. … said that she was very worried about X […] because X is suicidal. […] said they both have messages from X on their phone. They are both bringing their phones to me first thing in the morning. Last night X told them she can't take it any more and wanted to kill herself. … said that X had said she was trying to get some of her father's drugs to kill herself. … told her mother and …'s mother picked X up last night and took her home. I finished work early so I could talk to X. I told X I was very worried about her and so were her friends. I told X I was told she was having suicidal thoughts. X admitted this was true but pleaded with me not to tell her father. X said that the messages to kill herself have been happening for a while and that she has an album where she has saved them. X said that it is just everything that is making her feel that way and said her dad does not treat her well. … said that X's father calls her a “dumb cunt.” X denied she was trying to find drugs to kill herself.”[5]
[5] Pkt 16 p76
c.Mid- 2023 (Counsellor Notes) “Transition to Year 7. Very smart. Lots of social issues. Level of engagement has really decreased. Angry separation between parents. Living with Dad. Mum is pregnant. So is Dad's girlfriend. Telling peers she was going to self harm. Offered referral to counselling support which he declined.”[6]
[6] Pkt 17 p184-186
15.It also contains material including her semester 2 report at the end of 2023 which are highly praiseworthy of X as a student, including that:
a.“X has outstanding qualities as a student, which consistently define her as a respectful and well-rounded individual. She often shows kindness, creating an inclusive and positive environment by her interactions with peers and teachers. X's friendly approach allows her to collaborate with peers naturally. She has developed meaningful friendships with peers and has made the effort to connect with her teachers on a personal level. X has exceeded in her role of well-being minister, consistently demonstrating motivation and initiative to support her school. She has rightfully earned her gold award for being a safe, respectful learner and completed her diamond award for acts of citizenship and leadership. X is commended for her significant achievements representing F School in sports. She showcased her exceptional abilities and sportsmanship, highlighting her immense potential for the future. It has been wonderful teaching X and I wish her all the best in her transition to high school.”
16.The DCJ have produced 1437 pages of material, which seems to be addressed primarily to the mother’s issues. It does not appear to address the issues related to X, despite the school material indicating a mandatory report on or about 19 June 2023
17.The court child expert does not appear to have seen any of the above material.[7]
[7] 2024 Family Report p2-3
18.The ICL is not in a position to support any orders, as she is unable to be satisfied that any order would be in the best interests of X.
19.The ICL renews her application for the matter to be adjourned for an updated Family Report.
20.In the event that the court determines to proceed without an updated report, the ICL seeks that she be discharged.
Adam Mooney
Counsel for the ICL
15 April 2024
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