Draper & Roiland - [2021] FedCFamC1F 110

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(Division 1)
Draper & Roiland [2021] FedCFamC1F 110

File number(s): DGC 1915 of 2015

Judgment of: MACMILLAN J

Date of judgment: 8 October 2021

Catchwords: FAMILY LAW – CHILDREN – where the matter proceeded on an undefended basis – where the father failed to comply with directions for the filing of trial material – where the father sent a letter to chambers on the day of the trial withdrawing his application – where the ICL opposed the mother’s proposal to change the children’s surname – where the mother’s proposed orders were otherwise unopposed – where orders made that the children spend no time with the father – where orders made restraining the mother from changing the children’s surname and requiring the mother to file the change of surname documents for the youngest child of the relationship.

Legislation:
Births, Deaths and Marriages Registration Act 1996 (Vic) s 26(3)-(4)

Family Law Act 1975 (Cth)

Cases cited: Reynolds v Sherman (2015) FamCAFC 128

Division: Division 1 First Instance

Number of paragraphs: 34

Date of hearing: 14 & 17 September 2021

Place: Melbourne

The Applicant: No Appearance

Counsel for the Respondent: Ms Swart

Solicitor for the Respondent: Schetzer Papaleo Lawyers

Counsel for the Independent Children's Lawyer: Ms Agresta

Solicitor for the Independent Children's Lawyer: Taft Lawyers
ORDERS

DGC 1915 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DRAPER

Applicant

AND:
MS ROILAND

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

8 OCTOBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act1975 (Cth)) related to the children B born 2008, C born 2010, D born 2011 and E born 2013 (“the children”).
3.The children shall live with the mother.
4.The parties shall forthwith take all reasonable steps to ensure that the Register of Births, Deaths and Marriages kept by the Registrar pursuant to the provisions of the Births, Deaths and Marriages Registration Act 1996 (Vic) is amended so as to:
(a)Disclose the father’s paternity of the youngest child, E (if not already recorded);
(b)Change the youngest child’s surname from “E Roiland” to “E Draper”; and
(c)Ensure a fresh birth certificate is issued for the youngest child, E, disclosing the father’s paternity and his new surname.

5.The parties are at liberty to provide a sealed copy of these orders to the Registrar appointed under the Births, Deaths and Marriages Registration Act 1996 (Vic).
6.The parties are restrained from causing or permitting the children to be known by any surname other than “Draper”.
7.The mother is restrained from allowing any of the children to remain in any car, house, or other confined space in the presence of any person who is smoking.
8.The mother is restrained from causing or permitting the infliction of corporal punishment upon the children.
9.The mother is restrained from denigrating the father in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Draper & Roiland

Details

AGLC: Draper & Roiland [2021] FedCFamC1F 110
Case: [2021] FedCFamC1F 110
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Draper & Roiland involved a dispute between the parties regarding parenting arrangements and the impact of the children’s non-association with their father. The father sought modifications to the existing parenting orders, arguing that they were no longer in the best interests of the children following a series of events that led to their estrangement. The mother, on the other hand, opposed these changes, asserting that the existing arrangements were still suitable.

The court was tasked with determining whether the current parenting orders were in the best interests of the children, given the circumstances that had unfolded since the original orders were made. This included assessing the impact of the sexual assaults on the children, the subsequent estrangement, and the father's reduced involvement in the children's lives. Additionally, the court had to weigh the children's relationships with both parents, particularly the father, as found by Austin J in 2017.

The Family Court found that the original parenting orders were no longer in the best interests of the children, particularly B, C, and E, who had ceased regular contact with their father. The court noted the importance of the children's relationships with their father, as highlighted in previous findings, and recognised the detrimental effect of their estrangement. Consequently, the court made new orders that provided for a more balanced and active role for the father in the children's lives, with specific arrangements for contact and communication.

The final orders included provisions for the father to have more frequent and structured contact with the children, including overnight stays, to facilitate the re-establishment of their relationship. The court also mandated that the children communicate with the father regularly and participate in supervised contact sessions to support their reconnection.

Orders

Orders of the court

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Background

Background to the litigation

Whilst the mother may consider that her application has been successful, hopefully the success of that application will not have the negative impact upon the children, that is one of the possible outcomes when children for whatever reason do not have a meaningful relationship with both of their parents. This is particularly concerning given Austin J’s finding in 2017 that so far as their relationship with the father was concerned “only one inference is reasonably open; they love him dearly and they regard their relationships with him to be immeasurably important.”BACKGROUND The mother was born in 1982 and is 39. The father was born in 1979 and is 42. The parties cohabited in 2007 and married in 2008. The length of the relationship and the date of separation is disputed, the father’s case being that they separated on 13 May 2015 whereas the mother alleges that they separated in January 2011. The parties divorced on 8 September 2016. There are four children of the relationship, B born in 2008 and is 12, C born in 2010 and is 11, D born in 2011 and is 9, and E born in 2013 and is 8 (“the children”). The mother also has an adult child, Ms H, from a prior relationship and three year old X born in 2018 with her fiancé Mr O (“Mr O”). The father has an adult child, Mr K, from a previous relationship. The mother deposes that the father has been in a relationship with and has lived with Ms J (“Ms J”) since 2016 and that although he briefly separated from Ms J in January 2019, she deposes in her Affidavit filed 14 February 2020 that the father has resumed his relationship with Ms J. Ms J has two children from a previous relationship, Mr P (“Mr P”) and Q who live with her. The proceedings commenced in 2015 when the applicant father filed an Initiating Application for parenting orders and property settlement. On 22 August 2017, Austin J made orders inter alia that:(1)the mother have sole parental responsibility;(2)the children spend time with the father each third weekend from 5.00 pm on Friday until 5.00 pm on Sunday, first week of the term school holidays, and each alternate week during the long summer school holidays; (3)the child E’s surname be changed from Roiland to Draper; and (4)the children communicate with the father via FaceTime each Wednesday at 6.00pm. Between August 2017 and December 2018 the children spent time with the father pursuant to the orders, however in December 2018, B and C were sexually assaulted by Ms J’s son Mr P. Charges were laid in January 2019 however it was only after the criminal trial commenced in January 2021 that Mr P plead guilty and entered into a bond to be of good behaviour for 12 months. According to the family report writer B, C and E have not spent regular face to face time with the father since December 2019 and the father has no active involvement in their lives. D is reported to have had minimal communication with the father since December 2018 and the father similarly plays no active part in her life.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	DGC 1915 of 2015
Judgment of:	MACMILLAN J
Date of judgment:	8 October 2021
Catchwords:	FAMILY LAW – CHILDREN – where the matter proceeded on an undefended basis – where the father failed to comply with directions for the filing of trial material – where the father sent a letter to chambers on the day of the trial withdrawing his application – where the ICL opposed the mother’s proposal to change the children’s surname – where the mother’s proposed orders were otherwise unopposed – where orders made that the children spend no time with the father – where orders made restraining the mother from changing the children’s surname and requiring the mother to file the change of surname documents for the youngest child of the relationship.
Legislation:	Births, Deaths and Marriages Registration Act 1996 (Vic) s 26(3)-(4) Family Law Act 1975 (Cth)
Cases cited:	Reynolds v Sherman (2015) FamCAFC 128
Division:	Division 1 First Instance
Number of paragraphs:	34
Date of hearing:	14 & 17 September 2021
Place:	Melbourne
The Applicant:	No Appearance
Counsel for the Respondent:	Ms Swart
Solicitor for the Respondent:	Schetzer Papaleo Lawyers
Counsel for the Independent Children's Lawyer:	Ms Agresta
Solicitor for the Independent Children's Lawyer:	Taft Lawyers

DGC 1915 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DRAPER Applicant
AND:	MS ROILAND Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	8 OCTOBER 2021