Faldyn & Badenoch (No 2)
[2023] FedCFamC1F 260
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Faldyn & Badenoch (No 2) [2023] FedCFamC1F 260
File number: HBC 184 of 2019 Judgment of: MCGUIRE J Date of judgment: 28 March 2023 Catchwords: FAMILY LAW – PARENTING – Application by mother that child live with her and spend time with the father as agreed – Application opposed by the father – Final orders by consent between the mother and the Independent Children’s Lawyer Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC and 102NA Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 27 and 28 March 2023 Place: Hobart Solicitor for the Applicant: Litigant in person Counsel for the Respondents: Ms Sayer Solicitor for the Respondents: Murdoch Clarke Solicitor for the Respondents: Litigant in person Counsel for the Independent Children's Lawyer: Mrs Mooney S.C Solicitor for the Independent Children's Lawyer: Tasmania Legal Aid ORDERS
HBC 184 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BADENOCH
Applicant
AND: MR FALDYN
First Respondent
MS FALDYN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
28 March 2023
THE COURT ORDERS THAT:
1.This matter proceed to final hearing and determination undefended the first respondent father Mr Faldyn and the second respondent paternal grandmother Ms Faldyn.
FINAL ORDERS
2.BY CONSENT orders be made in accordance with the minute of consent order signed by the mother and the Independent Children’s Lawyer and undefended the first and second respondents, dated today’s date, exhibited to the court file marked Annexure “A”, an engrossed copy attached hereto and marked Exhibit “1”.
3.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED
4.
A copy of the reasons for these orders be taken out, placed on the court file and be made available to solicitors for or any party acting for the parties.
EXHIBIT “1”
1.That all extant parenting orders be discharged.
Parental responsibility
2.That the Mother Ms Badenoch and the Father Mr Faldyn each have parental responsibility for all and any medical decisions directly relating to any actual or anticipated diagnosis of gender dysphoria in relation to their child X born 2010 (“the Child”).
3.That otherwise the Mother have sole parental responsibility for the Child including but not limited to the obtaining of a passport for the Child.
4.It is a condition for the Mother’s sole parental responsibility for the Child that she do the following:
(a)advise the Father of any decision she makes pursuant to her sole parental responsibility within 2 days of making that decision to his email address being …@… or any updated email address with which the Father provides her; and
(b)in advising of that decision, provides the Father with the name and contact details of any relevant doctor, therapist, teacher, religious official, or other professional who can provide the Father with more information about the relevant decision, together with details of the circumstances surrounding the relevant decision.
Authorities
5.This order acts as an authority for the Father to obtain all the information usually available to parents from any of the persons who fall into the category referred to in paragraph 4(b) above or from any medical or therapeutic care provider, teacher or sports coordinator involved in the Child’s activities and care.
6.This order acts as an authority for the Father to obtain all information usually available from the school the Child attends, including but not limited to school reports, school photos and year books.
7.The Court hereby grants leave to the Independent Children’s Lawyer to provide a copy of the Report of Dr J filed in these proceedings to any person providing therapeutic care to the Child.
8.Should the Child be seen by any other mental health professional other than Ms W the Mother must provide a copy of the Report of Dr J filed in these proceedings to that professional, and has leave to do so.
9.The Court hereby grants leave to the Independent Children’s Lawyer to provide a copy of the Report by Dr Y filed in these proceedings to the mother’s therapist Ms Z.
10.Should the Mother be seen by any other mental health professional other than Ms Z the Mother must provide a copy of the Report by Dr Y filed in these proceedings to that professional, and has leave to do so.
Live with
11.The Child shall live with the Mother.
12.Should the Mother become unwell and arranges for the Child to be cared for by a third party, including but not limited to her sister Ms CC, she shall inform the father of that fact within 48 hours at his email …@… or any updated email address with which the Father provides her.
Spend time with
13.The Child shall spend time with and communicate with the second-named respondent paternal grandmother Ms Faldyn as follows:
(a)at all times, as reasonably agreed between the mother and the grandmother taking into account the Child’s expressed wishes;
(b)in addition, until the child turns 14 years of age, the mother will ensure that the Child initiates texts or calls to the grandmother on her telephone number … or such other number advised by the grandmother, at least once a week on a Sunday between 5 and 6pm to initiate a conversation with the grandmother AND the mother will do reasonable acts and things to encourage, promote and facilitate a relationship between the Child and the grandmother;
(c)in addition the mother will ensure that the Child has available to them at all reasonable times a charged smartphone, tablet or other electronic device for the purpose of such communication; and
(d)in addition should the grandmother visit Tasmania or should the Child express a wish to travel to Sydney to spend time with the grandmother, the Mother will take all reasonable steps to ensure this occurs AND IT IS NOTED that “reasonable” includes but is not limited to ensuring the Child does not miss any school and ensuring that that the father is not present at such time if that is consistent with the Child’s wishes but does not include supervision of time. The spend time in Tasmania is to be no more than six (6) times a year, unless agreed otherwise between the Mother and Paternal Grandmother, and is to occur on a weekend with the Grandmother to provide at least two (2) weeks’ notice in writing to the Mother.
14.The Child shall spend time with and communicate with the first-named respondent father Mr Faldyn as follows:
(a)at all times, as reasonably agreed between the mother and the father taking into account the Child’s expressed wishes;
(b)the Mother will ensure that the Child has available to them at all reasonable times a charged smartphone, tablet or other electronic device for the purpose of such communication; and
(c)should the Father visit Tasmania and the Child expresses a wish to see him, OR should the Child express a wish to travel to Sydney to spend time with the Father, the Mother will take all reasonable steps to ensure this occurs AND IT IS NOTED that “reasonable” includes but is not limited to ensuring the Child does not miss any school but does not include supervision of time.
Therapy
15.The mother shall do all acts and things necessary to ensure that at her expense, the Child remains engaged with a psychologist or other appropriately qualified mental health professional for as long as that it is considered necessary AND IT IS NOTED that the Child is currently engaged with Ms W.
16.The mother is hereby restrained from allowing or causing the Child to receive therapeutic care from social worker Ms Z.
17.The mother must continue to engage in treatment with Ms Z or another appropriately trained mental health professional at least once every 8 weeks to assist her with issues relating to her alcohol use disorder with dependence, currently in remission.
IT IS NOTED given the unacceptable risk to the child should there be a relapse in the mother’s alcohol use disorder the Court has ordered for the mother to continue with regular therapy in accordance with paragraph 17 of this order for the duration of the Child’s minority.
Section 68B Injunctions
18.Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the child X born 2010 each of the father MR FALDYN and the mother MS BADENOCH are restrained by injunction from denigrating or speaking negatively about the other parent in the Child’s hearing, or allowing the Child to remain in the presence of any third party who is so doing.
19.Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the child X born 2010 the mother MS BADENOCH is restrained by injunction from consuming alcohol whilst the Child is in her care, or during the 48 hours before the Child comes back into her care.
Miscellaneous
20.Each party will notify the other party of any change to their residential address, email address or telephone number within seven (7) days of the change.
21.If the father or paternal grandmother post any communication or items to the mother’s address for the Child the mother will:
(a)acknowledge receipt of the communication or item to the relevant sender;
(b)facilitate the Child’s receipt of the communication or item; and
(c)if the Child declines the communication or item the mother is to store the correspondence or item and present it to the Child when the child requests or if the Child does not make a request, in the month prior to the Child attaining the age of 18 years.
22.The appointment of the Independent Children’s Lawyer ceases on the 14th day after the date of this Order.
23.The mother shall cause the child to meet with the Independent Children’s Lawyer after school on Friday 31 March 2023.
AND THE COURTS NOTES THAT:
A.Pursuant to s 68C of the Family Law Act 1975 (Cth) a police officer may arrest without warrant if s/he holds reasonable belief that the order for personal protection in orders 18 and 19 above have been breached.
B.A copy of this order will be provided by Chambers to the Tasmania Police Liaison Officer assigned to the Court and to the Child Safety Services Liaison Officer assigned to this Court.
C.An undertaking in proper form from Ms CC and the Court directs a copy of the final orders and these reasons, once settled, be provided by the Court to the police liaison officer.
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 Faldyn & Badenoch (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
In the circumstances, and despite the consent between the Independent Children’s Lawyer and Ms Badenoch (“the mother”), I should give some short reasons, and I read into those reasons the immediate background of this matter. These are parenting proceedings in respect of a child whose birth name is X, born 2010. The child is 13 years of age. In respect of X, it is proper to point out, as we did at the start of the trial, that the child has endured some gender identity issues of late and has voluntarily chosen male Christian names. The child currently goes by a name of the male variety and that is an issue of gender identity that features in the material before the Court.
The matter was listed for trial of at least five days duration to commence yesterday. It had previously been seized by a judge in Division 2 of the Court, and was transferred to me because of its anticipated timeframe or perhaps because of some complexity. The procedural course of the matter was interrupted seven working days ago, by an application filed by Mr Faldyn (“the father”), to adjourn the proceedings on the basis of a previous order made under section 102NA of the Family Law Act 1975 (“the Act”), for him to be afforded representation. It is now well documented that, that relationship with the lawyer broke down. He is in dispute with the Legal Aid Commission of Tasmania.
That was the essence of the adjournment application for matters that are now, again, well documented. The application was refused, and there was an appeal against my refusal of the application. That appeal was summarily dismissed by the Full Court sitting as a single judge on Friday of last week. Hence, the matter, again, remained listed for trial commencing yesterday. At the commencement of the trial, there was no appearance by or on behalf of the father or, indeed, the second respondent, Ms Faldyn, (“the paternal grandmother”). There has been no application to conduct the trial by any form of media. Nevertheless, an email shortly before the trial from the father indicated his understanding that he was to appear at the trial by some medium.
It appeared his technical abilities limited that appearance to the telephone. That proceeded with the consent of counsel for both the Independent Children’s Lawyer and the mother. There was no appearance by the paternal grandmother despite the father and the paternal grandmother sharing a common address and address for service. The matter commenced after some preliminary issues.
BACKGROUND
The mother was the applicant. She went in the witness box and was cross-examined appropriately, albeit somewhat vigorously in the circumstances, by the Independent Children’s Lawyer and, with some interjecting questions by me, entirely appropriate where the father was not able, because of the statute, to cross-examine the mother himself.
So in that sense, the questioning of the mother was perhaps more vigorous than what it might be by the Independent Children’s Lawyer and myself. Otherwise, the matter continued until the luncheon adjournment. The father was advised of the luncheon adjournment. He responded in a civil sense to that advice and requested he reconnect by telephone after lunch at 2.15pm. He did not do so. He was repeatedly contacted by my associate through email and telephone calls, including to the paternal grandmother’s number. There was no response. As a precaution, the matter was stood over until today, this being the second day of the trial. Again, my associate attempted to make contact through email and telephone, and there has been no response by the father or, indeed, the paternal grandmother.
That being the situation, I determined that the matter should proceed to its logical conclusion undefended by the father, and it has done so. I have now been presented with a minute of proposed orders to be made by consent of the Independent Children’s Lawyer and the mother and, obviously, undefended, by the father and the paternal grandmother, and that is the immediate background.
THE LAW
I have perused the orders over the last 30 or 40 minutes, and I have received submissions from counsel for the Independent Children’s Lawyer and the mother, and for the record, I fully adopt the submissions of each.
This is a parenting matter, and, that being the case, the orders that I am to make must have the child’s best interests as my paramount consideration, pursuant to section 60CA of the Act, and, for the record, simply because there is the consent of two parties to these proceedings, does not finalise the matter where, in my role, I am still obliged to make findings consistent with the child’s best interests as to her living and parenting arrangements. I determine the best interests of the child by referencing the probative evidence before me and the parties’ proposals, such as they are prosecuted in this Court, to the numerous factors set out in section 60CC(2) and (3) of the Act, against a background of the objects and principles of the legislation set out at section 60B of the Act, and in doing so, I read into evidence the following material.
EVIDENCE
First of all, having already been read into evidence, the affidavit of the mother, Ms Badenoch, affirmed 20 March 2023, and as I have already indicated, that affidavit and the mother generally, has been subjected to cross-examination by the Independent Children’s Lawyer. I read into evidence the affidavit and report of Dr Y, who is quite properly called a forensic psychiatrist. The affidavit is sworn 18 November 2022 and annexes a report of the same date. I read into evidence a family report by Court Child Expert Ms CC dated 23 March 2022, and I read into evidence, and with some emphasis, I might say, a report of a Dr J, who is a Forensic Child and Adolescent Psychiatrist.
The contents of those three documents are of significance to my determination, as I have said. I read them into evidence. I am to consider the section 60CC factors of the Act here, and I do as follows, albeit briefly in these circumstances. There are two primary considerations for the Court to consider at section 60CC(2) of the Act. Firstly, at subsection (a), I must make orders which benefit a child having a meaningful relationship with each of the child’s parents. In these circumstances, the relationship between the child and the mother is a primary one by reason of the child habitually living with the mother in circumstances where, the child was born during a time that the father was incarcerated for a serious offence of a violent nature, albeit perpetrated on a victim other than the mother, and in circumstances where, again, the first four years, or thereabouts, of the child’s life occurred in the mother’s care when the father was incarcerated.
The parties separated in about 2016, and the child has lived primarily with the mother since then, and it is fair to assume, therefore, that the child’s primary attachment and sense of support rests with the mother. The child’s relationship with the father has been sporadic and problematic, in part, by reason of the entrenched conflict, dispute and mistrust between the parents, and where each of the parents have carried with them some personal difficulties. The mother has admitted a history of alcohol use, abuse and dependency, and the father has an acknowledge diagnosis of autism. The recipe has not been good for the child.
The difficulty for the father and the child, therefore, has been the establishment of an attachment and bond and a high-frequency and regularity in that relationship. I have had the opportunity to hear the father, albeit peripherally, in his various applications. He did not file a trial affidavit, nor did the paternal grandmother, but from what I have heard, I am able to conclude that the father has a strong desire to establish and maintain a relationship with his daughter. The functionality of that coming about is of some difficulty to all concerned. Similarly, despite her non-participation in this trial, the paternal grandmother has been fairly consistent in her desire to establish a relationship with the child.
I am also to consider at section 60CC(2)(b) of the Act any issues of family violence or abuse which impact on the orders I make in respect of the child. There have been issues, and serious issues, of family violence between the parents resulting in a further charge and conviction of assault against the father separate to the matters I mentioned previously. The child herself has been subjected to, I cannot think of a better word, neglect in the care of the mother due to the mother’s history of alcohol abuse, consumption and dependency. The reading of the reports and the history given, some by the child herself but via the mother, sets out a tragic history for this young child, and no doubt brings about many of the problems that she manifests now as a 13 year old.
The additional consideration I am to take into account, although not in a determinative way, is the preferences of the child. It makes for interesting reading, the history of this child’s preferences in respect of her parents. There was a time, albeit, through supervised time, when there was something of a positive relationship between child and father, and where I can again assume that there may have been a preference in this young child to continue to establish and to maintain such a relationship. Similarly, with the paternal grandmother, there has been a relationship for the child separate from her relationship with the father, but one which has at least the potential and some traits of being a very beneficial relationship.
To put it bluntly, there have been strong possibilities of beneficial relationships for the child with each of her father and paternal grandmother. That situation has changed. The child is 13 years of age, and the evidence before me suggests that there has been either an inability, probably an inability rather than an unwillingness, by the father in particular, to acknowledge and address the changes that have been occurring in his child, and the problems which the child herself brings to her everyday life. That is unfortunate. It is not a situation that cannot potentially be rectified, although it is now fairly entrenched in the child’s mind, and her preferences are negative and hesitant in respect of an actual relationship with her father. In respect of the grandmother, it may well be issues such as generational differences where the grandmother prefers to speak directly to the child, whereas the child prefers to use the facility of texting.
Again, I would hope that these are issues that are not insurmountable and may well be addressed, because there is prima facie for all children, but particularly for this child, of having a form of a relationship with her paternal family, where she can understand her identity and establish relationships with extended members of the family, such as cousins, which have been mentioned in cross-examination. The capacity of the parents is something that I need to consider, and I have already mentioned the difficulties which each of these parents carry personally which extends onto their capacity to attend to the physical, intellectual and emotional needs for their daughter. The mother will, by these orders, assume or continue to be the primary parent for the child.
The mother has made statements that she has addressed the issues which have caused her difficulties in the past. She has the benefit of a supportive family, in particular, her sister, Ms CC, who has previously provided formal support by way of an undertaking to intervene should she become aware of the mother manifesting the difficulties that she previously suffered. That undertaking will continue, and Ms CC has given that undertaking today in the face of the Court, something, on behalf of the child, for which I am very grateful, and I am sure the Independent Children’s Lawyer is too.
The father’s capacity is compromised I expect, but without hearing him give his evidence and just considering the background, unfortunately, by the autism diagnosis that he carries. He has difficulty in flexibility. He has difficulty in understanding the changes that his child undergoes by simply her age, let alone the other difficulties that she brings to court. He appears to be a man who is single minded, but with that comes inflexibility. Again, it is difficult, and I understand the difficulties that both he and the paternal grandmother suffer, where they seriously desire a relationship with their daughter and granddaughter, but those very matters impact on my findings as to the father’s capacity to attend to the child’s needs and, in particular, her emotional needs.
This is a matter where change is important for this child. The reports indicate that by her own personality, she is not a child that desires change. She wants certainty and routine. I read, for instance, that she is not keen to travel. She is not keen to move. She thrives on certainty and routine. Again, the difficulties that the father’s application and the grandmother’s application bring, impact on the child’s personality and desires accordingly. There are issues of family violence which I have mentioned, and they have already been dealt with, and I have already referred to the nature of this child’s relationship with each of her parents. It has become something of a distant relationship with her father.
Although there was material on which the mother was cross-examined as to a course of text communications between the daughter and father in about late 2021, which were, again, indicative of a father who deeply desired a relationship with his daughter, and a daughter also desirous of a relationship, but wanting her father to understand her developing maturity, her personal traits, her interests and the like. Unfortunately, those personalities have not been able to meet. The nature of the relationship for the child with the mother is a dependent one. She has suffered previously through not being able to achieve that dependency, and I take it at face value what the mother said in the witness box yesterday as to her acknowledging and addressing her personal issues, where she wishes to assume responsibility for a 13-year-old and, in many ways, vulnerable child, but I accept what she says.
FINDINGS AND CONCLUSIONS
In all of those circumstances, I am satisfied that it is in the best interests of the child that she remain living with her mother. Of some concern in the mother’s evidence was of an objective understanding of the need for her daughter and any child to have a relationship with her other parent and extended family, subject, of course, to her best interests. On reading the orders that have been presented to me today, and where acknowledging that the mother’s responses were made as against some vigorous cross-examination, these orders cater for and allow the opportunity for this child to establish those important relationships with her father and her grandmother if they desire to do so.
I am asked to make an order, effectively, that the mother have sole parental responsibility for the child. In circumstances where the father has chosen for his own reasons not to prosecute his case before this Court, which is an important factor in the child’s life, then it is almost inevitable that I would move to make such an order, but in any event, these two parents have not shown any ability or, indeed, intent from what I have heard, to settle their own personal residual difficulties so as to cooperatively and communicatively parent their child. An order generally for equal shared parental responsibility would, in my view, almost inevitably result in further litigation in these Courts, and as a general order, the mother should have sole parental responsibility of the child appropriately, on notice provisions to the father, which are set out in the draft orders before me.
I mentioned at the start of these Reasons that the child on her birth certificate is known as X, but now preferring to use a male Christian name, has experienced issues of gender identity confusion, which I think is the best way to put it. The very, very helpful report of Dr J suggests that this is not, and I do not have it before me, at this stage gender dysphoria. I do not claim to be an expert in a field such as this, but the contents of Dr J’s report are enlightening and illuminating in respect of the confusion suffered by a child who wears on their shoulders the conflict and dispute of their parents, not just in this case, but in the many cases that come to this Court.
But in any event, I am asked to make an order at proposed order two of the Reasons, that the mother and the father, indeed, each have parental responsibility, that is not to be confused with equal shared parental responsibility, for all and any medical decisions directly relating to any actual or anticipated diagnosis of gender dysphoria in respect of their child. In my view, that is an entirely appropriate order against what I have just said with emphasis on what I have just said, that the expert Dr J, does not conclude that this child suffers a diagnosis, if that is the right word, of gender dysphoria, but it would be entirely appropriate if that was to develop that the father have all the responsibilities and obligations that go with the status of a parent in respect of a child having those issues.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 28 April 2023
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