Encela & Rillo
[2022] FedCFamC2F 1696
Federal Circuit and Family Court of Australia
(DIVISION 2)
Encela & Rillo [2022] FedCFamC2F 1696
File number(s): MLC 2204 of 2016 Judgment of: JUDGE BLAKE Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – Undefended hearing – judgment in default – where Father presents as a real risk to the children – best interests– warrant making orders in the form sought by the Mother – children live with the Mother and spend time with the Father according to their wishes – best interests of child that Mother have sole parental responsibility. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 61DA(40, 61DA(4), 68Q
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.33, 2.25, 2.26, 3.10(2), 10.6, 10.26(2)(c), 10.27, 15.19(2)
Cases cited: Kleine & Kleine [2021] FedCFamC1F 51
Oberlin& Infield [2021] FamCAFC 66
Zane & Allan [2008] FamCAFC 115
Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 5 December 2022 Place: Melbourne Counsel for the Applicant: Mr Moore Solicitor for the Applicant: Ryan Carlisle Thomas Advocate for the Respondent: No Appearance Solicitor for the Respondent: None Advocate for the Independent Children's Lawyer: Mr Bult
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS
MLC 2204 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RILLO
Applicant
AND: MR ENCELA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BLAKE
DATE OF ORDER:
5 December 2022
THE COURT ORDERS THAT:
1.The Applicant Mother has permission to pursue her application for parenting orders on an undefended basis as contemplated under rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) and permission to seek judgment in default under rules 10.26 and 10.27 of the Rules.
2.All previous Orders be and are hereby discharged.
Parental Responsibility
3.The Mother have sole parental responsibility for the children X, born in 2007 and Y, born in 2009 (“the children”).
4.For the purposes of Order 3 herein, in the event that the Mother proposes to make a major, long-term decision in relation to the children, she is to:
4.1
3.1advise the Father of her proposal in writing, allowing at least 14 days before the decision has to be made (unless in a time-sensitive situation, where maximum reasonable notice is to be given);4.2
3.2consider any written response she has received from the Father, provided such response is either sent within 14 days of issuance of her proposal or, if a time-sensitive situation, within the identified maximum period for a response; and4.3
3.3inform the Father in writing of any decision she has made or action/s she has taken in relation to the children within three days of taking said action.
Live with/Communication
5.The children live with the Mother.
6.The children spend time and communicate with the Father in accordance with their wishes.
7.The Father shall communicate with the children as follows:
7.1
6.1via letters, photos and e-mails on no more than two occasions per month noting that the Father is not permitted to otherwise contact the children persistently if they do not respond to the Father’s overtures to try to elicit a response from the children; and7.2
6.2at all such reasonable times as initiated by the children themselves, either via text messages, e-mail, social media or otherwise.
8.For twenty-four (24) hours immediately prior to the commencement of any time spent with the children (including any period during which the children are in his care), and during all such time spent, the Father be restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of alcohol or any legal or illegal drug or substance.
9.The Father be restrained by injunction from knowingly allowing the children to be in the presence of other persons who are ingesting, consuming, using or otherwise under the influence of alcohol or any legal or illegal drug or substance.
Medical, Education and Change of Contact Details
10.That the children participate in a full assessment of their cognitive capacity as well as an assessment of Y’s social, psychological, educational and emotional needs through Aspect (Autism Spectrum Australia) and the parties do all acts and things and sign all necessary document to enable the assessment to take place and ensure all recommendations from the assessments are implemented in a timely manner including the provision of that assessment to the children’s school and/or health professionals working with them.
11.The Mother authorise the children’s school to provide the Father, at the Father’s expense (if any), all information in relation to the children’s education (including but not limited to school reports, school photograph order forms and notices).
12.On or before the expiration of seven (7) days, the Mother inform the Father in writing of the details of each of the children’s treating medical and/or health practitioners, and she keep him updated of any changes to same.
13.The Mother authorise the children’s treating medical and/or health practitioners to provide the Father, at the Father’s expense (if any), all information in relation to the children’s health.
14.In the event that the Mother creates MyHealth records on MyGov for the children (or either of them), she provide access details to the Father for same.
15.Except in the case of an emergency, the Mother inform the Father of any significant medical illness suffered by the children (or either of them).
16.The parties notify each other of any change in residential address, telephone numbers or email addresses within 24 hours of such change.
17.The parties exchange information concerning the children by way of text message.
18.The Mother be at liberty to provide a copy of these Orders to any school at which the children may attend.
19.The Mother be at liberty to enrol the children in any school within her zone/region.
Travel
20.The Mother may travel with the children within Australia and outside of the Commonwealth of Australia and in relation to any overseas travel, the Mother give the Father at least 30 days’ written notice of said travel, including destination, flight itinerary and contact details while overseas, unless it is impracticable to do so.
Passport
THE COURT DECLARES THAT:
21.Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied:
(a)That it is not practicable to obtain the consent of the father to enable the children of the relationship X born in 2007 and Y born in 2009 to obtain an Australian Passport to travel internationally, the Court makes the following orders:
THE COURT ORDERS THAT:
22.The mother of the children be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the father of the children has not signed the passport application form and furthermore the children be permitted to travel internationally without the permission of the respondent father.
23.For the purposes of Order 22 hereof, liberty is granted to the legal representatives for the Mother, Messrs Ryan Carlisle Thomas Lawyers to provide a copy of these Orders to the Department of Foreign Affairs and Trade.
24.The Mother shall hold possession of the childre n’s passports.
Intervention Order
25.These orders are to operate and are made in accordance with section 68P and section 68Q of the Family Law Act 1975 notwithstanding the Final Intervention Order made by the Magistrates Court of Victoria at Melbourne in proceedings numbered … (‘REGISTRY Order’).
26.This order is inconsistent with the REGISTRY Order and prevails over the REGISTRY Order.
27.A copy of this Order is to be provided to the Registrar of the Magistrates Court of Victoria at Melbourne, the Chief Commissioner, Victoria Police, and the Department of Families, Fairness and Housing, marked to the attention of Ms B.
Injunctions
28.The parties, their servants and agents be and are hereby restrained by injunction from:
28.1
24.1abusing, insulting, belittling, rebuking or otherwise denigrating the other to, or in the presence or hearing of the children, and from permitting any other person to do so;28.2
24.2iscussing these proceedings with, or in the presence or hearing of the children, and from permitting any other person to do so;28.3
24.3discuss or otherwise comment on the choices of the children as to which parent they wish to live or spend time with, to or in the presence of the children, and from permitting any other person to do so;28.424.4 involving the children, in any form of conflict, between the parents or otherwise.
Other Orders
29.The Mother is to serve a copy of these Orders on the Father within 7 days of the date of these Orders.
30.Pursuant to Rule 2.34 Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the usual requirements for the Applicant to effect service on the Respondent are dispensed with.
31.Service on the Respondent is to be effected as follows:
(a)Forwarding a sealed copy of the Orders dated 5 December 2022 herein to the Respondent via his email address: …
32.The appointment of the Independent Children’s Lawyer made by Court Order on 29 March 2021 be and is hereby discharged.
AND THE COURT NOTES:
A.The Father has not undertaken a second Hair Follicle Test as per the Orders of 27 August 2021 and of 24 August 2022 (as amended 25 August 2022).
B.The Independent Children’s Lawyer met with the children this morning by Zoom communication.
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 Encela & Rillo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)
judge blake
On 25 September 2020, the Mother commenced proceedings in this Court for parenting orders. The children the subject of this application are X, born in 2007, and Y, born in 2009. The Mother now seeks to press her application, as amended, for final orders on an undefended basis.
background
The application made by the Mother followed previous trial orders that had been made by this Court on 5 December 2016 between these parties (‘2016 orders’). The 2016 orders relevantly provided for the children to live with the Mother and to spend time each alternate weekend, and on school holidays and special occasions, with the Father.
The application filed by the Mother in September 2020 was filed because of increasing concerns the Mother had about the children's safety and wellbeing in the care of their Father. The Father eventually filed a response to the application, some six months later, on 24 March 2021.
The matter came before the Court on 29 March 2021. Consent orders were made providing that the children live with the Mother and that the 2016 final orders, in effect, be suspended. The Father's time was limited to phone or video call. The Father was also ordered to undergo random supervised drug and alcohol urine testing.
On 11 August 2021, further orders were made amending the orders of 29 March 2021. Among other things, the parties were ordered to enrol in an agreed public supervision service so that the children could ultimately spend supervised time with their Father.
On 27 August 2021, further orders were made. These included an order for the Father to undergo hair follicle drug and alcohol testing. Orders were also made for the matter to be listed for final hearing on 14 July at 10.00am, and associated trial directions were also made. That trial date was subsequently amended by an order of 18 November 2021. The new trial date was 24 August 2022 at 10.00 am.
On 24 August 2022, the Father failed to appear in Court before me. Various things became apparent at that hearing, including that he had become unrepresented and that section 102NA applied to the proceedings. Accordingly, an order was made under section 102NA. The Father was directed to make an application to Victoria Legal Aid for funding and the matter was adjourned to today's date. Further orders were made requiring the Father to once again undergo hair drug testing. Leave was granted to the applicant Mother to file an amended application and supplementary affidavit on or before 21 September 2022. Leave was also granted to the Father to file and serve an amended response and trial affidavit on or before 19 October 2022. The Mother was ordered to serve a copy of the orders on the Father within seven days of the date of the order. An order for substituted service was also made in respect of the Father.
The Father has not filed any trial material at all, either in relation to the initial trial directions orders made on 27 August 2021 or in relation to the orders I made on 24 August 2022. The Father has once again not appeared before me today. The only affidavit filed by the Father in the proceeding is that which accompanied his initial response on 24 March 2021.
The Mother now seeks to press for final orders. She relies on her further amended application dated 21 September 2022, the affidavit of the same date, as well as her earlier affidavit of 19 August 2022 and the later affidavit of 25 November 2022.
It is relevant to note here the contents of the 25 November 2022 affidavit. In that affidavit, the Mother deposes to various interactions that she has had with the Father. Those interactions include the Father querying, on 14 October 2022, why he continued to receive correspondence from the Independent Children's Lawyer, the Father's non-engagement with various steps in the proceeding, and/or failure to respond to correspondence sent to him, and C Contact Centre’s decision to close the family supervision file at the children's contact service because they had not received an application from the Father. The Mother's affidavit culminates with an attachment which would appear, on its face, to be an email from the Father to the Mother's solicitors, in which he states: “I Mr Encela, consent and agree to the final orders the Mother Ms Rillo, is seeking”.
On one view, given the content of this email, it is open to the Court to proceed to make the orders sought by the Mother on a consent basis. I decline to do this. The Father has not appeared before me to confirm such consent. It is not clear, on the face of the email, exactly which orders, in which application or amended version of the application he refers to.
Of course, in cases such as this, the Court also needs to be satisfied that any orders made are in the best interests of the children. For these reasons, the appropriate course is for this Court to now consider the Mother's application for orders to be made on an undefended basis.
the application to proceed on an undefended basis
Principles
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) provide mechanisms that allow the Court to determine a case if a party does not comply with the Rules, Family Law Regulations or procedural orders. Rule 1.33 relevantly provides at paragraph (c) that if a party to a proceeding does not comply with the Rules, the Family Law Regulations or a procedural order, the Court may determine the proceeding as if it were ‘undefended’.
The term ‘undefended’ is not defined in the Rules. In Zane & Allan [2008] FamCAFC 115, the Full Court of the Family Court gave meaning to that term at paragraph [8] of its reasons. Under the current version of the Rules, applications for default are dealt with under Part 10.6. Part 10.6 of the Rules deals with defaults, but unlike rule 1.33, it makes no reference to the term ‘undefended’ or ‘undefended proceedings’.
Rule 10.26(2) of the Rules deals with when a respondent is in default. It relevantly provides that a party would be in default if that party fails to give an address for service before the time required, fails to comply with an order of the Court, fails to file and serve a document as required by the Rules or fails to defend the proceedings or prosecute the proceedings with due diligence.
Rule 10.27 of the Rules relevantly provides that if a respondent is in default, the Court may give judgment or make any other order against the respondent.
In addition to the above, rule 15.19(2) of the Rules relevantly provides that if a party is absent from a Court event, the Court may make orders of the kind referred to in rules 10.27(1) or (2).
While the Court cannot compel a person to participate in litigation, the Court must afford a party an adequate opportunity to be heard: see Kleine & Kleine [2021] FedCFamC1F 51 at [21].
There is then the question of how the Court is to approach its task in an undefended hearing. The authorities' indicate that the manner in which an undefended hearing may be conducted will vary, depending on the circumstances of the case. The Court has a wide discretion in relation to the involvement or otherwise of a defaulting party. A party that seeks judgment on an undefended basis is not entitled by right to the orders that he or she seeks simply because the other party fails to prosecute his or her case. In parenting proceedings such as this one, the Court is required to make orders that are in the best interests of the children.
Consideration
Having reviewed the material before me, including the affidavits to which I have referred earlier, I am satisfied the Father has been given an opportunity to participate in these proceedings.
The Father, upon becoming unrepresented, was required to file an address for service pursuant to rules 2.25 and 2.26. He has not done so. By operation of rule 3.10(2) his address for service is taken to be his last known email and residential address. The email address last notified to the Court is the email: …. This email address was used by the Court to notify the Father of the listings. It is also the email address that is the subject of the substituted service order made on 24 August 2022. It appears to be the email address still used by the Father. It is the email address he used to communicate to the Mother on 22 November 2022 that he consented to the orders that she sought.
The Court has before it an affidavit of Ms D filed 30 November 2022. In that affidavit, she deposes to the following. First, that on 25 August 2022 she served a copy of the orders of this Court on the Father. Second, that on 21 September 2022, she served the further amended initiating application and affidavit of the Mother of that date on the Father. Third, that on 25 November 2022 she served the Mother's affidavit of that date on the Father. All service was to the Gmail address of the Father to which I have referred.
In all these circumstances, I am satisfied the Father knew of the hearings on 24 August 2022 and today. I am satisfied he has been provided with all of the material in relation to the Mother's application to proceed on an undefended basis and I am satisfied that he has had every opportunity to participate in the hearing today.
Turning next to the Father's non-engagement with the proceeding, the Court has made a number of orders in this matter with which the Father has not complied. He has not complied with numerous orders to undertake hair follicle drug tests. He has not complied with orders to file material, either in August or today. He did not apply to Victoria Legal Aid for legal aid. He has not appeared before me today and did not appear before me in August.
Given all of those matters, I am satisfied the Father is in default within the meaning of the Rules, particularly rule 10.26(2)(c). He has also failed to defend the proceeding with due diligence and failed to prosecute with due diligence, his application in this matter. I therefore grant leave for the Mother to proceed on an undefended basis in relation to her application for parenting orders.
THE APPLICATION FOR PARENTING ORDERS
Principles
The Family Law Act 1975 (Cth) (‘Act’) sets out the matters that the Court must have regard to when making a parenting order. Section 60CA of the Act provides that when deciding whether to make particular parenting orders, the Court must regard the best interests of the child as the paramount consideration. Section 61DA of the Act contains a presumption in parenting matters that parental responsibility is to be equally shared unless the grounds set out in subsections (2) or (4) apply.
Section 60CC of the Act then sets out those matters that the Court must have regard to when ascertaining what is in the children's best interests. The primary considerations in relation to what is in the children's best interests are these. Subsection (2)(a) of section 60CC provides that a primary consideration is the benefit to the child of having a meaningful relationship with both parents. Subsection (2)(b) of section 60CC provides that a primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. By section 60CC(2)(a), the Court is to give greater weight to the considerations set out in section 60CC(2)(b). There are then the additional considerations that the Court must have regard to set out in subsection 60CC(3).
I now turn to consider the application for the orders sought.
Consideration
The orders sought by the Mother are set out in her further amended application of 21 September 2022. I was also provided with a minute which proposes minor amendments to those orders, but no amendment substantively alters the orders sought. Among other things, what the Mother seeks by her application is as follows:
(a)an order for sole parental responsibility of the children - that order is coupled with an order requiring the Mother, in the event she is able to make long-term decisions in relation to the children, to advise the Father of the proposal, allow him 14 days to respond, to consider any response from him and then inform him of the outcome;
(b)that the children live with the Mother and communicate with the Father as they wish;
(c)that the Father communicate with the children by letters, photos and emails and at such other times as initiated by the children themselves;
(d)that the Father be restrained from ingesting alcohol or other drugs 24 hours prior to spending time with the children and he be restrained from allowing the children to be in the presence of others who might be doing those things;
(e)that the children participate in a full assessment of their cognitive capacities and that the parties sign all documents to enable those assessments to occur;
(f)a range of other orders relating to the provision of information to or from schools, health practitioners and the like;
(g)an order that she be permitted to travel with the children inside and outside of Australia and that she be authorised to apply for passports on their behalf;
(h)an order under section 68Q of the Act in order to supersede the terms of a Magistrates' Court intervention order;
(i)the usual restraints in relation to abuse, denigration, discussing the proceedings in the presence of the children, or involving them in such conflict.
Evidence
Turning then to the evidence, in her affidavits, the Mother deposes to, among other things,
(a)that she was subject to family violence throughout the relationship, which was in existence from 2007 until separation occurred in September 2010;
(b)that she and the children are protected persons under a final intervention order which expires on 24 February 2023;
(c)that the children have been reluctant to spend time with their Father following the 2016 final orders;
(d)that the Father uses illicit substances, including ice, and has a history of consuming alcohol excessively (among other things, the Mother notes that the Father has been intoxicated while the children have been in her care);
(e)that the Father has been placed into a psychiatric ward by police on several occasions and that he has suicidal tendencies;
(f)the Father has a history of unstable accommodation;
(g)that the Father has been inconsistent with fortnightly visits that were provided for under the 2016 orders;
(h)that the children have told the Mother that they do not wish to spend time with the Father;
(i)that X has experienced bullying at school and that this has affected her mental health and that she has subsequently been diagnosed with autism. The Mother notes that in 2021, X swallowed 12 Panadol tablets with the intention of harming herself and that X currently sees a mental health social worker;
(j)that Y may have autism and is on the waitlist for such an assessment;
(k)that the Father has not paid any child support;
(l)that her recent marriage has broken down and she has moved into a rental property in Suburb E, where both children attend F School.
There is then the Family Report in this matter. Among other things, the Family Report writer notes:
(a)that the children have not spent any face-to-face time with their Father since May 2020;
(b)that the Father told the report writer that he was giving up the fight for the children;
(c)that the Father told the report writer he was a user of ice;
(d)that X told her she was able to negotiate her own arrangements with her Father and that she only wants to see him once every few months and that she does not know what he is like when he is sober;
(e)that X's wishes should be given substantial weight;
(f)that Y told the report writer she had no interest in seeing her Father or in communicating with him.
The report writer observed the interactions between the Father and the children at paragraphs [111] and [112] as follows:
[111]Whilst all parties were amiable and friendly during this observation, there were multiple long silences. [X] and [Mr Encela] frequently missed cues for engagement with one another, which resulted in stilted and awkward pauses between them. Both parties were noticeably uncomfortable throughout the observation. [X] eventually texted her Mother and looked out the window to see when she arrived. As the session concluded, [Mr Encela] stood up and said, “well I’m gonna steal another hug.” [X] reciprocated briefly and then offered [Ms J] a hug too. When the report writer escorted [X] outside, she exclaimed “wow, that was awkward!”
[112]No observations were able to be undertaken between [Y] and her Father, [Mr Encela] due to [Y]’s refusal to engage in this process. Y departed the report writer’s consulting rooms prior to [Mr Encela’s] scheduled arrival.
I also note that the children's expressed views to the report writer are consistent with the views they expressed to the Independent Children's Lawyer who checked with them this morning, prior to today's hearing.
At paragraphs [127] and [128] of the Family Report, the report writer noted the risks concerning time between the children and their Father as follows:
[127]In summary, the report writer remains unconvinced that [Mr Encela] has satisfactorily addressed issues in relation to drug use, family violence, parenting and his understanding of [X’s] social and emotional needs. These risk issues – either individually or combined - can all impact upon a child’s psychological and physical safety. Alongside increasing a child’s anxiety and posing the threat of physical danger, such issues can also culminate in parental neglect and inadequate supervision. Whilst these issues may prove to be unfounded, such concerns need to be ameliorated before [X] and [Y]’s relationship with his Father can be expected to develop any further.
[128]It is the assessment of this report writer that until these issues are addressed, that family therapy is unlikely to be of benefit to any of the parties (or children) involved in this matter. Furthermore, until [Mr Encela] can consistently demonstrate his commitment to treating and managing these issues, then it is highly unlikely that there will be any improvement in the relationship between [Mr Encela] and his daughters.
The Family Report writer made the following recommendations:
[129]That [X] and [Y] remain in in the primary care of [Ms Rillo].
[130]That [Ms Rillo] retains parental responsibility for both [X] and [Y], save for their health / medical needs. [Mr Encela’s] responses to [Ms Rillo’s] communication about [X] and [Y]’s health / medical needs should occur in a timely manner.
[131]That the parties engage in a further mediation session, given the issues in dispute are narrow.
[132]That an updated psychiatric assessment of [Mr Encela] would be helpful to the Court in making Final Orders.
[133]That [X] and [Y] should both participate a full assessment of their cognitive capacity, as well as an assessment of [Y]’s social, psychological, educational and emotional needs. This could be undertaken by Aspect (Autism Spectrum Australia). Both parties should ensure that all recommendations from these assessments are implemented in a timely manner.
[134]That [Mr Encela] would benefit from engaging with an Alcohol and Other Drugs (AOD) Service via [Region G Health].
[135]That [Mr Encela] should engage with a Men’s Behaviour Change Program (via [H Community Support]).
[136]That once [Mr Encela] can demonstrate engagement with such services, that spend time arrangements could progress. This could occur on a monthly basis, should not incorporate overnights and should be activity based (as determined by [Mr Encela] in conjunction with [X] and [Y], [Mr Encela’s] son, [K] and partner, [Ms J] could also be encouraged to attend these visits.
[137]That spend time arrangements between [X]and [Y] should be supervised by an independent, professional supervisor, until [Mr Encela] is able to demonstrate his sobriety from alcohol and substance use. This could be evidenced by an additional HFT, or via multiple consistent UDS.
[138]That regardless of any face-to-face contact, [Mr Encela] should be responsible for initiating and maintaining consistent contact with [X] and [Y] via letters, photos and e-mails 1-2 times per month.
[139]That [Ms Rillo] should support and encourage [X] and [Y] to initiate and respond to any form of contact with [Mr Encela] – including attending face to face contact – dependent upon [Mr Encela’s] engagement with services and provision of evidence of his sobriety.
Insofar as the Department of Fairness, Families and Housing (‘Department’) is concerned, the Court has before it a report under section 69ZW of the Act, noting various reports that were closed at intake phase, with the Department electing not to intervene in these proceedings.
The best interests of the children
Turning to the best interests of the children, the principal issue that arises in this case is the extent of risk that the Father poses to the children. There are two principal risk issues. He has, on the evidence, a problem with alcohol and drugs. He has not undertaken the tests ordered by the Court. One test he has undertaken is positive. I therefore draw the inference that the Father continues to consume alcohol excessively and continues to take illicit substances, including ice.
There is also evidence before the Court of the Father's mental health issues. There is no current evidence before the Court of the treatment received by the Father or the current state of his mental health. I note that the mental health issues, within the evidence I have seen, appear to be serious and include threats of self-harm and previous attempts of suicide.
When the above matters are considered, the Court cannot be satisfied that the Father poses no risk to the children's physical or psychological health because of his consumption of alcohol, consumption of illicit substances and mental health. It is the Court's view that as matters stand and given the Father's failure to comply with Court orders, that the proper inference to be drawn is that the Father continues to consume alcohol to excess, continues to consume ice, and that his mental health remains untreated and potentially unstable. The conclusion to be drawn from this is that the Father presents a real risk to the physical and psychological health of the children.
Of course, there are other matters that the Court must take into account. I am required to give proper consideration to the children having a meaningful relationship with their Father. The difficulty here is at least twofold. First, the Father has told the report writer that he is not interested in fighting for the children. He certainly has not engaged with these proceedings and he reportedly consents to all of the orders sought by the Mother. From these things, I infer that he is not interested in pursuing any relationship with his daughters. The children, of course, have expressed strong views about their Father, with Y not wanting to see him and X wanting to see him on her terms.
While the attitudes of the Father and the daughters persist, it seems that there is little prospect of there being any meaningful relationship between them in the short term. That is unfortunate. The Court recognises that a meaningful relationship with both parents is, for children, important. There are no orders, however, that this Court can make to facilitate any change to the attitudes, given the attitudes that are in evidence before me.
The children's views, particularly X's views, are important in this case. I give X's views significant weight, given her age. I also give some weight to the view of Y, particularly as it is strongly held. It is clear from the evidence that as matters stand, the Father has little involvement in these children's lives. He has not taken the opportunity on any regular or consistent basis to spend time or communicate with them in the last year. He has not sought to participate in these proceedings, which would give him the opportunity to seek orders that on a long-term basis provide for his involvement in the making of decisions in respect of his children.
One inference to be drawn from this, and I draw it, is that the Father is not taking anywhere near a responsible attitude to parenting. The position of the Father is to be contrasted with the Mother, who has the care of the children, is responsible for their schooling, day-to-day needs and extracurricular activities, who is their primary carer and has participated actively in these proceedings with the intention of resolving the parenting arrangements.
The evidence before the Court is that the Father has not paid and is in arrears in respect of child support. To that extent, the Court is satisfied he has failed to maintain his obligations to the children. The same cannot be said of the Mother, who has the primary care of the children and is attending to their daily needs.
I note that making the orders sought by the Mother would not result in any significant change to the circumstances of these children. They will continue to live with her. They will continue to have the opportunity to see their Father if they choose to do so.
The orders sought by the Mother
The Mother seeks orders that the children live with her and spend time with the Father as they wish. Particular arrangements are proposed for the Father to send letters and emails to the children under the proposed orders. These are appropriate orders, given the matters to which I have referred. It makes little sense to impose upon the children some other regime when the Father has not pursued this case and when he continues to present as a risk.
Proposed orders 7 and 8 purport to restrain the Father in relation to his consumption of drugs and alcohol prior to seeing the children, and also to ensuring that he does not expose the children to others who may be engaging in such activities. I have considered whether these orders are standalone orders that would run foul of the view expressed in Oberlin& Infield [2021] FamCAFC 66. I am satisfied, based on the submissions of Mr Moore that they are not. At the end of the day, the orders provide for the children to spend time with their Father and it is appropriate that there be some protection given to them by orders in the form of proposed orders 7 and 8.
There are other orders proposed by the Mother relating to assessments and provision of information in respect of health and education matters. They are appropriate orders. The Mother has primary responsibility for those things currently. They simply provide an avenue for the Father to be informed about what is going on, should he choose to avail himself of that information.
The Mother seeks passport and travel orders. It is appropriate to make those orders so that this family can travel and holiday together without having to chase the Father for permission, either for the passport or to go on holiday.
I regard it as appropriate under section 68Q to make the orders sought, given there is a final intervention order in place. I regard it as appropriate to make the usual injunctions contemplated by proposed order 24 in the Mother's further amended initiating application, given the risk issues to which I have referred.
Finally, there is the issue of parental responsibility. In all the circumstances of this case, I am satisfied that the presumption as to equal shared parental responsibility is rebutted and that it is in the best interests of the children for their Mother to have sole parental responsibility. This essentially reflects what the arrangement today is, in any event, that is, that the Mother has taken complete care of these children. The orders proposed by the Mother provide for the Father to have input into long-term decisions affecting the children if that is what he chooses to do. That gives him an opportunity to participate should he wish it, though that seems unlikely given his present non-engagement.
I have stepped back to consider the orders that are sought. I am satisfied that they are in the best interests of the children. Accordingly, the Court will make the orders set out in the minute of orders that have been handed to me, with the notations and amendments that have been discussed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 9 December 2022
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