Foreman & Bradgate (No 2)
[2023] FedCFamC1F 1029
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Foreman & Bradgate (No 2) [2023] FedCFamC1F 1029
File number(s): PAC 2637 of 2021 Judgment of: BERMAN J Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where upon the conclusion of the trial, the matter was adjourned for 6 months to enable the father to engage in a therapeutic process – Where the father did not engage – Where final orders can now be contemplated – Where the father made an oral application acceding to the orders sought by the mother – Orders sought by the father for the provision of sending letters and gifts – Consideration of the frequency – Orders. Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 23 November 2023 Place: Heard in Sydney, delivered in Adelaide Counsel for the Applicant: Ms Hayward Solicitor for the Applicant: Walter & Elliott Family Lawyers Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Walkden Law and Mediation ORDERS
PAC 2637 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FOREMAN
Applicant
AND: MR BRADGATE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.Ms Foreman (“the mother”) have sole parental responsibility for X born 2018 (“the child”), provided that the mother will advise Mr Bradgate (“the father”) in writing in respect of any long-term issues and provide her view and intention to make decisions in that regard.
3.The child live with the mother.
4.The child spend no physical time with the father.
5.The mother is permitted to relocate the primary residence of the child to within a 120 kilometre radius of Suburb B train station.
6.Until further order and pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained from:
(a)Approaching the child or mother or being within 100 metres of their place of residence, employment, day-care, school or extracurricular activity;
(b)Contacting or communicating with or attempting to communicate with the mother or the child by any means other than is provided by these orders; and
(c)Removing or attempting to remove the child from the care of the mother or the mother’s nominee.
7.The father be at liberty to send a card, letter and/or a gift to the child upon the following terms and conditions:
(a)That the frequency of any card, letter or gift is to be not more than six (6) occasions per year provided that two (2) of the occasions shall coincide with the child’s birthday and Christmas with the frequency of each occasion to be not less than two (2) calendar months;
(b)That any card, gift or communication shall be sent to the residence of the maternal grandparents in Suburb B or at such Post Office Box as may be nominated in writing by the mother;
(c)That the mother is required to ensure that the child shall receive any letter or gift unless in her discretion she considers that the communication or gift is not child focussed and/or seeks to denigrate the mother, her partner or extended family noting that the exercise of the mother’s discretion is not to be exercised frivolously, vexatiously or capriciously.
8.Should the child request to communicate with the father, the mother will do all things necessary to facilitate the child having either FaceTime, video contact or communication by telephone with the father.
9.Each party is to refrain from making critical or derogatory remarks in relation to the other parent or a member of the parent’s family on electronic platforms such as, but not limited to, Facebook, WhatsApp, Instagram or other social media.
10.The appointment of the Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Ms Foreman (“the mother”) and Mr Bradgate (“the father”) have not been able to reach agreement in respect of the future parenting arrangements for X, born 2018 (“the child”).
The proceedings reached a final hearing in October 2022 with judgment reserved on 8 November 2022. Judgment was delivered and orders were made on 17 March 2023 summarised as follows:-
(1)That the mother have sole parental responsibility for the child.
(2)That the child live with the mother.
(3)That the father spend no physical time with the child.
(4)That the father is to have FaceTime or other video contact with the child between the hours of 5.30 pm and 6.00 pm with the father to initiate the FaceTime call PROVIDED THAT the mother can terminate the call if the father denigrates the mother, her partner, or extended family.
(5)That the mother is permitted to relocate the primary residence of the child to within a 120-kilometre radius of Suburb B train station.
(6)That each party is to refrain from making critical or derogatory remarks in relation to the other parent on electronic platforms and other social media platforms.
(7)That the father is restrained from:
(a)Approaching the child or mother or being within 100 metres of their place of residence, employment, day-care, school or extracurricular activity;
(b)Contacting or communicating with or attempting to communicate with the mother or child by any means other than is provided for by these orders; and
(c)Removing or attempting to remove the child from the care of the mother or the mother’s nominee.
(8)That the child and be the subject of a Family Law Watch List order for a period of 5 years.
At the conclusion of the proceedings, I did not consider that I was able to make final orders that could confidently reflect the best interests of the child. Accordingly, on 17 March 2023, I adjourned the proceedings for mention and/or further trial directions to 9.30 am on 27 October 2023 and made the following orders:
10.The father file and serve any further affidavit material in relation to his therapeutic engagement by 4.00 pm on 4 September 2023.
11.Leave is given for the father to provide a copy of the report of [Dr D] dated 21 October 2022, and anonymised copy of this judgment, to any health provider instructed or engaged by the father to provide therapeutic assistance.
The basis for the orders made is set out in the following extract of Foreman & Bradgate [2023] FedCFamC1F 156:-
233. The parties have been before the Court since 2021.
234.Whist there is a temptation in all matters to seek finality of outcome, I am not able to do so in this case.
235.There is uncertainty as to whether the father will be willing to engage in the therapeutic intervention as recommended. If he does, then there will need to be some further consideration by way of evidence of change should the mother maintain her current level of scepticism of the father’s ability to accept help and advice.
236.Equally, the father needs to have some certainty that if he undertakes the process with genuine intent and the necessary diligence, then the Court will be able to further consider the possibility of a resumption of physical contact with the child.
237.Upon delivery of judgment, I propose to adjourn the proceedings for a period of six months to further assess what efforts, if any, the father has made to assist him in re-establishing a relationship with the child. If the evidence supports a finding that the father has made appropriate steps, then further orders can be contemplated. If it appears that the father has not engaged in a meaningful way with the therapeutic process, then consideration of final orders can be undertaken.
238.It does seem appropriate however, that orders be made to enable the child to maintain a knowledge and a relationship with the father. That cannot be done by way of physical time spent but I see no reason why the father should not be permitted to resume video time with the child providing the sessions are conducted respectfully and with the father to be entirely child focused rather than the opportunity being used for an ulterior purpose.
…
243.I will adjourn the proceedings for a period of six months during which there will be a focus on the therapeutic intervention by the father with the hope of reinforcing his insight into the disastrous impact upon the child of his family violence directed to the mother, members of her family, and those who are in a position of authority.
244.The focus of the father should be to conduct himself in a way that ameliorates the mother’s heightened anxiety.
245.The future progress of the proceedings is very much to be left in the hands of the father to establish that on the adjourned date, he longer presents as a risk to the child and the mother and has gained insight into the detrimental effects of his behaviour on the mother and the child.
The proceedings were listed for trial directions to 27 October 2023. On that date, the father appeared as a self-represented litigant.
The Court accepted a tender bundle of the Independent Children’s Lawyer (“ICL”) comprising emails from the father to the legal representatives of the mother and the ICL (Exhibit “14”) and a Provisional Apprehended Domestic Violence Order dated 3 April 2023 (Exhibit “15”).
Orders were made listing all applications for final orders for hearing on 23 November 2023 in the Sydney Registry.
Liberty was given to each party and the ICL to relist the matter at short notice with a further direction that any affidavits of the parties were to be filed by 4.00 pm on 13 November 2023.
Whilst it was noted that the father had not undertaken any therapeutic process or assistance as foreshadowed in the judgment and orders made, the father indicated that it was unlikely he would do so, that he had not made any further or other enquiry as to either engaging in a therapeutic process or utilising the opportunity pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) to obtain legal representation. To the extent that the father’s presentation was consistent with an application to further adjourn the proceedings, I declined to do so.
The father communicated with chambers and asked that the matter be brought on at short notice. On 9 November 2023, the father again appeared as a self-represented litigant. He made an oral application for the proceedings to be adjourned and for reasons that were delivered on that day, the father’s application was dismissed, and the proceedings remained listed for final hearing on 23 November 2023.
The mother filed a further affidavit on 15 November 2023. Whilst the affidavit was not filed in compliance with the order requiring filing and service to occur on or before 13 November 2023, I did not consider that any significant prejudice would be occasioned to the father. The affidavit reflected the mother’s evidence as to the circumstances of each and every FaceTime occasioned between the father and the child, and the annexures predominantly included correspondence passing between the father and the mother’s solicitors.
On 23 November 2023, the mother and the ICL were represented by counsel however the father appeared unrepresented.
An initial issue arose because the father submitted that he had not received the mother’s affidavit dated 15 November 2023.
He did concede that he received an email from the mother’s solicitors which purported to annex a copy of the affidavit but that he was unable to open the file.
I accept that the father advised the mother’s solicitors of his difficulty and that they then forwarded by letter a hard copy of the affidavit. The father asserts that he did not receive the letter and affidavit whereas the best information available to the mother’s solicitors was that the document was sent to the father’s address.
To avoid any unintended prejudice to the father, the proceedings were stood down for a period of two hours to allow him to read the affidavit.
The father was made aware of the predicament in which he found himself. He had not taken the advantage of orders made allowing him to file further affidavit material and as such the only further material that was available to the Court were exhibits “14” and “15” as described, and the mother’s affidavit of 15 November 2023.
The ICL did not seek that either of the parties be called for cross-examination. The mother did not seek to have the father cross-examined. The father was prevented from cross-examining the mother by reason of the provisions of s 102NA of the Act.
Given my earlier finding that the father had engaged in family violence involving the mother and members of her family, there was no circumstance where I would have been prepared to permit the father to cross-examine the mother. The issue was put to rest by the father being the subject of a Provisional Apprehended Domestic Violence Order made in early 2023. The imposition of the order was put in place in early 2023, as a result of the father attending at the child’s Early Learning Centre and engaging with the child and other children.
It appears that the father was escorted from the premises. In early 2023 the father was apprehended by the police, placed under arrest and charged with breaching an Apprehended Domestic Violence Order made in late 2021.
The further affidavit of the mother was read into evidence and the father was advised that in circumstances where he was not able to cross-examine the mother and he was not to be the subject of cross-examination, his involvement in the proceedings was limited to submissions on the evidence.
It is a reasonable observation that both the mother and the father presented as being overcome with emotion.
The father left the courtroom however, upon his return he conceded that he did not wish to be heard and would not oppose the orders sought by the mother which would finalise the proceedings in terms of the mother’s application.
The father did however enquire as to whether orders could be made that would enable him to provide gifts, cards and presents to the child on some regular basis.
Initially the proposal was not supported by the mother and the ICL.
After some further reflection, the mother considered that in circumstances where the orders she sought would constitute a complete termination of any relationship between the child and the father, it was not unreasonable and likely to be in the child’s interest that the child remained aware of her connection with the father.
The ICL also reflected on, and reconsidered her previous opposition, and indicated that there was now support for the broad proposition of the father being able to provide letters, gifts and cards to the child.
There then followed a discussion as to the nature of such an order with the mother proposing that the father’s ability to communicate with the child be restricted to the Christmas period and her birthday. The father however, sought to expand the number of permitted opportunities to include a cultural holiday and a day significant to the father’s cultural heritage given that New Zealand is the father’s birthplace.
The remaining issue between the parties is the frequency upon which the father is permitted to send gifts, cards and presents provided they are appropriate. Whilst it will be the mother who will vet the appropriateness of the gifts and communication forwarded by the father, I am satisfied from the submissions of counsel that the mother accepts that she is not entitled to be frivolous, capricious or malicious in the exercise of her discretion and that she must positively promote the child receiving communication and gifts from the father.
Even though the remaining issue between the parties is of narrow compass, I nonetheless apply the principles relating to parenting as set out in the interim judgment delivered 17 March 2023 and bring to account the parenting considerations as discussed.
This is not a case where there is no relationship between the child and the father. A careful consideration of the mother’s affidavit highlights that the child knows the father and has a relationship with him. The child’s reaction during various video calls as recorded by the mother must be tempered by the age of the child and the difficulty of a young child engaging via a video call.
It is a dramatic order that has the effect and consequence of either terminating a relationship between a child and a parent or so significantly limiting it that in reality, no relationship of significance or substance remains.
I did not find that the father would necessarily present as a risk to the child but for his aggressive interaction with the mother, her solicitors, and the Court. I do not find from the mother’s evidence that the father was aggressive with the child. His interaction when speaking to the child was appropriate. It is difficult to foretell the future.
I am obliged to consider the advantages and the disadvantages to a child of the orders sought by each of the parties. At present, there is limited evidence as to how the child may be disadvantaged by orders which have the effect of severing or terminating the child’s relationship with the father.
There are cultural issues which are important to the father and are likely to be of benefit to the child in her later life.
It is also a matter raised by the ICL that the father may well reassess his circumstances as time passes and it is not beyond his ability to undertake the therapy and assessment that may be necessary for him to gain an appropriate level of insight into the damaging consequences of his aggressive conduct and at times a baseless focus on perceived conspiratorial conduct of the mother, her solicitors or the Court.
I consider that it is not unreasonable for the father to be able to send gifts and/or communication to the child on six occasions per year to include the child’s birthday, the Christmas period and four other occasions as may be chosen by the father providing that the frequency is not less than two calendar months.
If appropriately supported by the mother, there remains the potential for the child to ask about the father and there remains the possibility that she may express to the mother that she would wish to speak and/or communicate with the father given that she will receive gifts and written communication from him.
It would be appropriate that if a request is made by the child to communicate with the father, that the mother facilitate same.
I make orders as appear at the commencement of these reasons.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 1 December 2023
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