Frederick & Frederick
[2022] FedCFamC2F 367
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Frederick & Frederick [2022] FedCFamC2F 367
File number(s): WOC 262 of 2019 Judgment of: JUDGE STREET Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – PARENTING – final hearing – where the Respondent Father has failed to appear – where the Court is satisfied that it is appropriate that the matter continue as an undefended hearing – allegations of family violence – where the Court has the benefit of an ICL and a Family Report – orders made Legislation: Family Law Act 1975 (Cth) pt VII; ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA(1), 61DA(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.26, 10.27
Cases cited: Goode & Goode [2006] FamCA 1346
Lancey & Lancey [1994] FamCA 94
Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 21 March 2022 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Respondent: No appearance Counsel for the Independent Children’s Lawyer: Mr White ORDERS
WOC 262 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FREDERICK
Applicant
AND: MR FREDERICK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS THAT:
1.The hearing proceed as an undefended hearing.
2.On a final basis, the Court makes Orders 1 to 11 in the Further Amended Application for Final Orders filed on 1 December 2021.
3.The Court reserves its reasons, to be published on a later occasion.
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 Frederick & Frederick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These are parenting proceedings that were commenced on 14 March 2019 and were fixed for a final hearing on 21 March 2022 as a result of orders made by this Court on 15 December 2021. Those orders included the Respondent Father being given an opportunity to file further affidavit evidence and a case outline on or before 25 February 2022. The Respondent Father has failed to do so and has failed to attend the hearing.
UNDEFENDED HEARING
Counsel for the Applicant Mother, Mr Alexander, moved for the proceedings to proceed as an undefended hearing and Mr White, of Counsel, for the Independent Children’s Lawyer (“ICL”) supported that application.
The principles relating to an undefended hearing have been identified in Lancey & Lancey [1994] FamCA 94. The Court has taken into account s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and the efficient use of judicial and administrative resources.
The Court is satisfied that there has been a default by the Respondent Father. Taking into account the provisions of r 10.26 and r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the Court is satisfied that this is an appropriate matter in which the Court should order the proceedings proceed as an undefended hearing. In that regard, the Court has taken into account that the matter was expressly adjourned on the last occasion in order to give the Respondent Father an opportunity to put on further evidence.
In determining to proceed with an undefended hearing, the Court has taken into account that the opportunities provided under the parenting orders made on 15 December 2021 for the Respondent Father to attend for certain testing have not been the subject of any steps taken by the Respondent Father to do so. The correspondence in respect of those opportunities was marked exhibit A.
The Court was satisfied that the Respondent Father was aware of today's hearing and it is appropriate, in all the circumstances, that the matter proceed as an undefended hearing.
BEFORE THE COURT
The Applicant Mother relied upon the amended application and the orders sought, as identified in that amended application, filed on 1 December 2021. Those orders, apart from the permission to travel overseas, were substantially in the form of the parenting orders made by the Court on 15 December 2021 on an interim basis.
The Applicant Mother relied upon an affidavit filed on 1 December 2021, as well as the notice of risk dated 15 March 2019, which has been marked an exhibit, and the family report prepared by Ms B dated 28 September 2020.
The relevant chronology of events, taken from the Applicant Mother’s case outline, is as follows:
Date
Event
1960
The Respondent Father is born.
1981
Applicant Mother is born.
1989
Father’s son from previous relationship, Mr C is born.
2004
Parties are married.
2013
Parties’ daughter, X, is born.
2013
While the parties are in the Country D, the Father becomes drunk and agitated. Father yells at Mother and her family. Father pushes mother into door. Father takes X from Mother and drives away with X on his lap. Police contacted by Mother. Father is found at Resort with X. Police take Father to police station and X is returned to Mother.
22 March 2016
Parties separate.
22 March 2016
Mother attempts to leave. Father holds X and refuses to let Mother leave. Father grabs Mother’s arm and drags her. Mother attempts to free herself and scratches Father’s face. Father hits mother on right ear and she falls.
23 March 2016
Mother attempts to leave the house again. Parties argue. Father grabs Mother’s arm. Father grabs Mother’s handbag. Father’s shirt is torn by Mother in the struggle.
25 March 2016
Police attend parties home. Mother is arrested for assault. Police drop charges against Mother. Father is charged with two counts of assault. Father denies assault. Results in provisional ADVO.
26 April 2016
ADVO against Father is made final.
2016
Mother rents separate residence in Town E with X.
2016
Father ceases spending time with X.
2016
Mother commences casual jobs at Employer F and Employer G.
July 2016
Father attends Mother’s home. Father is verbally abusive towards mother. Mother told by Father “Don’t go to Court…”.
Mid-2016
Mother does not attend City H Local Court for hearing. Results in charges against Father being dropped.
Mid-2016
Mother commences counselling with psychologist, Dr J. Attendance continues for a period of two years.
9 July 2018
Father writes on public Facebook page “Karma is a bitch lookout Ms Frederick it coming for you big time lol lowlife scum”.
December 2018
Father attends X’s Preschool Christmas Party.
25 December 2018
X stays with Father for Christmas morning and is collected by Mother at 11:30AM.
4-6 January 2019
Parties agree on Monday to Wednesday X would be with Father from 6:30AM-8:30AM and he would take her to school.
11 February 2019
X stays with Father from 6:30AM-8:30AM and he drops her off at school.
12 February 2019
Mother’s shift is changed. Results in X not being delivered to Father. Father picks X up from school. Mother attempts to collect X. Father says “I’ll tell you when you can come back to pick her up.” Father closes door. Parties argue through the door. Mother returns home and calls Police and requests a welfare check. Father messages Mother “X wants to stay”. Father does not return X.
13 February 2019
Mother attends X’s school and is advised X was dropped off at school.
15 February 2019
Mother attempts to collect X from school and is advised she has been collected by her Father. Mother phones Father and requests to collect X. Father refuses. Mother attends Father’s residence. Father says to Mother “Fuck off”. Father yells numerous statements at Mother. Mother contacts Police.
14 March 2019
Mother commences these proceedings.
Early 2019
Mother believes Father attempts to commit suicide.
12 March 2021
Father suffers from significant heart attack. Mother collected X from Father’s residence at 4:00PM. Later that night, Father calls Mother to speak with X.
March 2021
Father suffers from blood clot.
April 2021
X is spending time with Father and Mr C at Suburb K Shopping Centre. Mother is at Suburb K Shopping Centre. X yells out “mummy”. Mr C becomes aggressive and yells “fuck off, fuck off” at Mother. Father struggles to control Mr C.
2 July 2021
Mother drops X at Father’s residence. X is hesitant to go inside as she overhears fight. At 3:30PM Father messages Mother to collect X. Mother collects X and overhears fighting. Mother asks X what happened, X replies “Mr C is very angry”
2021
Father spends time with X from 10:00AM-5:00PM for her birthday.
5 September 2021
Father spends time with X from 10:00AM-5:00PM for Father’s Day.
4, 5 October 2021.
Father spends time with X from 7:00 am until 3:30 pm each day.
Current
Mother working as an allied health worker at Employer L.
Current
Father says he does not want X to spend time with him during lockdown. Most nights Father calls X to speak with her.
29 September 2021
Final hearing adjourned to 15, 16, 17 December.
15 December 2021
Final hearing.
The Child the subject of the parenting orders (“the Child”) was born in 2013 and has lived with the Applicant Mother at all times since separation in 2016. There is an adult child of the Respondent Father who is disabled, and the Respondent Father has been looking after him with some help from the child’s mother.
THE APPLICANT MOTHER’S SUBMISSIONS AND EVIDENCE
The Applicant Mother identified the care she has undertaken during the relationship in relation to her daughter. In her affidavit, the Applicant Mother has also identified aggressive behaviour from the Respondent Father. It reflects the Respondent Father having engaged in aggressive and controlling behaviour that can properly be described as family violence. There was a particular incident in 2013 whilst overseas in the Country D, which result in the police being called.
The Applicant Mother referred to the mood swings by the Respondent Father from happy to aggressive in a split second. The Applicant Mother refers to having been physically assaulted at the time separating in March 2016, in circumstances where the Child appears to have been present and distressed. The police attended and, notwithstanding the bruising on the Applicant Mother’s arm, it was the Applicant Mother that was placed under arrest for an assault of the Respondent Father. In due course, the charges against the Applicant Mother were dropped and two counts of assault were advanced against the Respondent Father, as well as the making of provisional Apprehended Domestic Violence Orders (“ADVOs”), which were made final on 26 April 2016.
The Applicant Mother made reference to a communication from the Respondent Father, which made her scared and afraid to attend Court in respect of the assault hearing. Consequently, the charges were dropped.
The Applicant Mother has been attending a psychologist for counselling and also attended counselling for a period of approximately two years.
The Applicant Mother referred to the absence of attempts from the Respondent Father to contact her in relation to the care of the Child following the separation. She also referred to the Respondent Father not providing any support or spending time with his Child.
The Applicant Mother identified threatening posts on the Respondent Father’s Facebook page. The Applicant Mother identified that the Respondent Father appears to, in an almost full-time capacity, be engaged in looking after his disabled son. At least, following the Child Support assessment, the Respondent Father did make arrangements to send a present to the Child for Christmas.
The Applicant Mother also referred to an inability to be able to retain a passport for taking the Child with her to the Country D, so that she could spend some time with her family.
The Applicant Mother referred to the limited interest by the Respondent Father in his Child’s schooling. The applicant referred to taking her Child to the Respondent Father on 25 December 2019 and then enrolling her in kindergarten in 2019.
There was a period during which the Respondent Father participated in taking his Child to school. Upon the commencement of these proceedings, that delivery arrangement to school was altered and there was set out an event on 12 February 2019 where the Respondent Father did not bring the child back and the police were called. The Applicant Mother, again, attempted to pick up the Child on 15 February 2019 and found that she had been collected by the Respondent Father. It is apparent that there was an aggressive exchange by the Respondent Father, reflecting no insight in relation to the best interests of his Child, and reflecting an erroneous view of entitlement and a lack of understanding of parental responsibility.
Between 2019 and June 2021, the Child spent time with the Respondent Father in accordance with Court orders. However, in March of 2021, the Respondent Father had a significant heart attack.
The Applicant Mother referred to a shopping incident that occurred in April 2021 where the disabled son of the Respondent Father engaged in abusive and aggressive behaviour, and the Child was distressed. A further incident was identified on 2 July 2021, when the Child was dropped off at the Respondent Father’s house, which ultimately gave rise to the Applicant Mother having to collect the Child. The Child then informed the Applicant Mother that the disabled son of the Respondent Father is very angry.
Between July 2021 and October 2021, the Respondent Father spent time with his Child on two occasions, however, the Applicant Mother identified abusive behaviour during the phone calls and the impact of the Respondent Father’s health condition in terms of compliance with orders.
The Applicant Mother explained that she had no intention of moving from Australia. She stated that she has a strong friendship group here and is pursuing a health care qualifications. The Applicant Mother identified the benefit of seeking to take the Child to understand her background and heritage in the Country D on a holiday.
THE FAMILY REPORT
The family report, dated 28 September 2020, which the Court has taken into account, identified what was then the competing proposals of the parties and identified risk factors and concern in relation to the Child’s safety and wellbeing. The family report referred to the risk factor of family violence and an alleged history of ongoing verbal, emotional and financial abuse. The family report also identified concern in relation to the Child being exposed to the Respondent Father’s disabled son’s violent outbursts.
The family report identified the family history of the Respondent Father and that his disabled son has been a wonderful brother to the Child who is the subject of these proceedings. It was identified that the disabled son does have significant meltdowns due to his disability and inability to express himself clearly.
The family report records that the Respondent Father denied a problem with alcohol, but acknowledged that he has struggled with depression. The family report noted that the parents appear incapable of sharing decision making and problem solving and that there is a strong lack of trust with completely different styles of parenting.
The family report reported that the Child likes seeing her dad and that her disabled brother is cranky to himself and not to her. The family report recorded that both parents care deeply for their Child, but identify that the Child had been exposed to significant conflict and verbal abuse in terms of family violence. The report writer noted that children exposed to family violence often have difficulty expressing and controlling their emotions and are at a greater risk of developing depression and antisocial behaviour, and may find it difficult to form healthy relationships long term. The report writer noted that the Child is displaying some of these behaviours.
The reporter referred to probative steps for protective measures. The tests were undertaken, which did not indicate excess alcohol intake, but identified the benefit of ongoing drug and alcohol tests. The family report writer noted that the Respondent Father had not articulated any proactive and consistent plan for monitoring his mental health.
The report recorded the parental relationship as being dysfunctional and that equal shared parental responsibility can only be successful when parents communicate respectfully and openly. The report writer expressed that shared parental responsibility does not seem possible in this matter, due to the history of family violence.
The family report identified the benefit to the Child to visit the Country D with her mother. The report recommended that the Child continue to live with the Applicant Mother, as well as other recommendations.
CONSIDERATION
The Court accepts the Applicant Mother’s submissions that there are reasonable grounds to believe that the Respondent Father has engaged in family violence under s 61DA(2) of the Family Law Act 1975 (Cth) (“the Act”), such as to rebut the presumption under s 61DA(1) of the Act: that it is in the best interests of the Child for their parents to have equal shared parental responsibility for her.
The Court has taken into account the objects of the Act and principles set out in s 60B of pt VII and the requirement under s 60CA of the Act, being that the best interests of the child are the paramount consideration when making parenting orders. The Court has taken into account the primary considerations in s 60CC of the Act and, in particular, that the Court must give a greater weight to the need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The Court has taken in account the definition of abuse in s 4 of the Act on "family violence", and s 4AB of the Act, and has given consideration to the requirements of s 60CG of the Act. The Court has also taken into account the statutory pathway as identified in Goode & Goode [2006] FamCA 1346 under pt VII. The Court accepts that the presumption of equal shared parenting has been rebutted in the present case.
The relevant incidents of family violence were summarised in the submissions of the Applicant Mother and have been referred to in the evidence identified above. The evidence referred to, including in the family report, does not support an ability to co-parent and the Court is satisfied that the presumption under s 61DA(1) of the Act is rebutted.
The Court is satisfied that it is in the best interests of the Child that she live with the Applicant Mother and that the she have sole parental responsibility for the Child. The Court is also satisfied that it is in the best interests of the Child that the Applicant Mother be able to take the Child overseas to the Country D for holiday, to enhance the Child’s understanding of her heritage and culture.
The Court accepts that the benefit of a meaningful relationship with both parents must be weighed against the risk of harm. The evidence supports that there is a risk of the Child being exposed if the Respondent Father consumes alcohol or drugs. That risk appears to be ameliorated by the confined time periods in respect of the proposed spending of meaningful time by the Child with the Respondent Father.
Whilst the Court recognises that there is a risk in relation to being exposed to a level of domestic violence by the disabled son, it does not appear to have been directed towards the Child and she appears to appreciate that. The Court regards that risk in the proposed meaningful time advanced during particular hours, as advanced in the Applicant Mother’s application, to be an acceptable risk.
The Court is satisfied that it is in the best interests of the Child to make the proposed parenting orders, as identified in Orders 1 to 11 of the further amended application filed by the Applicant Mother on 1 December 2021. The Court has also taken into account that the ICL supported the making of these orders as being in the best interests of the Child. It is for these reasons that the Court has made the orders pronounced on 21 March 2022.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street. Associate:
Dated: 17 May 2022
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