Gainor & Nance
[2022] FedCFamC2F 1719
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gainor & Nance [2022] FedCFamC2F 1719
File number(s): MLC 13280 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 15 December 2022 Catchwords: FAMILY LAW – Application for default judgment – application for judgment on an undefended basis – meaning of ‘undefended’ and approach to undefended hearing – approach to take in applications for judgment in default – application to proceed on an undefended basis granted – application to seek judgment in default granted.
FAMILY LAW – Application for parenting orders – where Father has not complied with various orders to undertake drug tests and psychological testing – adverse inferences drawn against the Father – best interest considerations assessed – final parenting orders made in terms sought by the Mother.
FAMILY LAW – Application for property orders – where the mother has filed limited evidence in respect of her application for property orders – where a party is not entitled to relief sought simply because the application is not contested – where the Court needs to be satisfied any adjustment of property interests is just and equitable – where there is not sufficient evidence to enable the Court to be satisfied that the property orders sought by the Mother are just and equitable – application for final property orders dismissed – both parties given leave to file additional material in relation to the division of property
Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 1.33, 2.25, 2.26, 3.10(2), 10.25, 10.26, 10.26(2), 10.26(2)(c), 10.26(2)(g), 10.26(2)(h), 10.27, 15.19(2).
Cases cited: Binns & Palister [2021] FedCFamC1F 142
Camilli & Albini [2021] FamCA 48
Kleine & Kleine [2021] FedCFamC1F 51
Lanceley & Lanceley (1994) 18 Fam LR 71
Oberlin v Infeld [2021] FamCAFC 66
Zane & Allan [2008] FamCAFC 115
Division: Division 2 Family Law Number of paragraphs: 71 Date of hearing: 19 October 2022 Place: Melbourne Counsel for the Applicant: Ms E Clark Solicitor for the Applicant: First Step Legal The Respondent: No Appearance Counsel for the Independent Children's Lawyer: Ms M Stavrakakis Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 13280 of 2020 BETWEEN: MS GAINOR
Applicant
AND: MR NANCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BLAKE
DATE OF ORDER:
15 DECEMBER 2022
THE COURT ORDERS THAT:
Undefended/Default Judgment
1.The Applicant Mother has permission to pursue her application for parenting and property 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.
Final Parenting Orders
2.The Applicant Mother have sole parental responsibility of the children X, born in 2011, and Y, born in 2013 (‘the children’).
3.The children live with the Applicant Mother.
4.Unless otherwise agreed by the parties in writing, the children spend time with the Respondent Father on one (1) occasion each fortnight for two (2) hours’ duration (or such other times as agreed between the parties and the Family Contact Service) professionally supervised by Ms B, or her delegate, of the Family Contact Service, at the shared expense of the parties.
5.Unless otherwise agreed by the parties in writing, the children commence spending fortnightly unsupervised time with the Respondent Father when the latter of all of the following occurs:
(a)The Respondent Father provides to the Applicant Mother at his expense the result of a hair follicle drug screen test and the test result indicates the Father has not used any illicit substances;
(b)The Respondent Father provides to the Applicant Mother at his expense the results of a carbohydrate deficient transferrin (‘CDT’) test and such test result along with any explanation from a medical practitioner with qualifications to assess the CDT test result indicates that the Father is not chronically or excessively consuming alcohol;
(c)The Respondent Father provides to the Applicant Mother at his expense evidence from his treating psychologist as to his regular attendance on the psychologist or alternatively, evidence from his treating psychologist that it is no longer necessary for him to receive treatment from the psychologist; and
(d)The Respondent Father provides to the Applicant Mother at his expense following 12 consecutive fortnightly supervised visits, a written report from the Family Contact Service confirming that the Service has not identified any safety, welfare or other concerns in relation to the children in the Respondent Father’s care during supervised sessions.
6.For the purposes of order 5(a) above, the hair follicle test is to be conducted at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)the Respondent Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)the Respondent Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to all parties and their legal representatives upon receipt of such test results;
(c)the hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required,
(d)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available; and
(e)The Respondent Father is at liberty to provide AWDTS with a copy of these orders.
7.Unless otherwise agreed in writing, for the purposes of the children’s fortnightly unsupervised time with the Respondent Father on a fortnightly cycle:
(a)In week 1, on Saturday from 9.00am to 6.00pm; and
(b)In week 2, on Wednesday from the conclusion of school (or 3:30pm on a non-school day) until 8.00pm.
8.The parties are at liberty to vary the time the children spend with either parent by agreement in writing.
9.Unless otherwise agreed by the parties in writing, all changeovers that do not occur at the conclusion of school on school day, take place in the carpark of C Shopping Centre near the Supermarket D entrance at the commencement and conclusion of the Respondent Father’s time.
10.The Respondent Father communicate with the children by telephone or FaceTime/video conferencing:
(a)Between 5.00pm and 6.00pm on Mondays provided the children are not engaged in extracurricular activities during this time;
(b)Between 5.00pm and 6.00pm on Thursdays provided the children are not engaged in extracurricular activities during this time;
(c)In the event the children are not able to participate in the weekly communication with the Respondent Father provided for in these orders, the Applicant Mother notify the Respondent Father in writing and propose an alternative day/time for the communication to occur.
11.Unless otherwise provided for or otherwise agreed, the Respondent Father be restrained by injunction from communicating with the children directly while not in his care, including by telephone, electronic communication and social media.
12.The Applicant Mother be at liberty to enrol the children in counselling and facilitate their attendance and participation.
THE COURT DECLARES THAT:
13.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 Respondent Father to enable the children of the relationship X, born in 2011, and Y, born in 2013 to obtain an Australian Passport to travel internationally, the Court makes the following orders:
THE COURT ORDERS THAT:
14.The Applicant Mother of the children be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Respondent 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.
15.The Applicant Mother be at liberty to enrol the children at any school local to her home without the consent of the Respondent Father.
16.The parties shall communicate with one another about parenting issues via text messages and/or email, and for the purposes of the communications:
(a)Both parties shall ensure that they provide the other party with their up to date email and contact details; and
(b)Such communication shall be solely in relation to time arrangements or the health, welfare and development of the children.
17.Subject to order 18, each party is permitted to attend curricular or extra-curricular events at the school which the children are enrolled including, but not limited to, school concerts, school assemblies, parent/teacher interviews, sporting competitions and like occasions that parents ordinarily attend.
18.The Respondent Father is required to provide the Applicant Mother with written notice of his intention to attend any curricular or extra-curricular event at the school at which the children are enrolled no less than seven (7) days prior to his intended attendance.
19.Each party is at liberty to request that any school attended by the children provide each of them (at their own expense) copies of all school reports, notices, newsletters, application forms for school photographs and other such notices and information generally received by parents and for these purposes the parties are at liberty to provide a sealed copy of this order to the administrator of a school where the children are enrolled.
20.The parties, their servants and agents be and are hereby restrained from:
(a)Denigrating, insulting, rebuking or otherwise speaking negatively about the other party, a partner of the other party, members of the other party’s family, or their household, to or in the presence or hearing of the children, or allowing any other person to do so;
(b)Discussing these proceedings in the presence of the children or allowing another person to do so; and
(c)Posting any content on any form of social media (whether on private settings or not) concerning the other party to these proceedings or family law matters in general.
21.Subject to any appeal, the appointment of the Independent Children’s Lawyer be discharged.
Property Orders
22.The Applicant Mother’s Application for Final Orders in relation to property on an undefended basis be dismissed.
23.By 4.00pm on 31 January 2023, the Applicant Mother file a single consolidated trial affidavit setting out all of the evidence she intends to rely on in relation to her application for a division of property, an updated Financial Statement and any affidavit from any other person she intends to call as a witness with such affidavits to comply with Part 8.3 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021.
24.By 4.00pm on 28 February 2023, the Respondent Father file a single consolidated trial affidavit setting out all of the evidence he intends to rely on in relation to orders for a division of property, an updated Financial Statement, and any affidavit from any other person he intends to call as a witness with such affidavits to comply with Part 8.3 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021.
25.Within 7 days the solicitor for the Mother serve a copy of these orders on the Father.
26.The matter be listed for mention on 8 March 2023 at 10.00am before Judge Blake at the Federal Circuit and Family Court of Australia at Melbourne.
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 Gainor & Nance has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application by the Mother for final orders in respect of parenting and property. She seeks these orders on an ‘undefended’ basis pursuant to rule 1.33 and rules 10.25 to 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’).
background
On 3 December 2020, the Mother commenced proceedings in this Court seeking final orders in relation to property matters.
Some six months later, on 3 June 2021, the Father filed a Response in the proceeding. In his Response, he opposed the Mother’s application for property orders and proposed his own property orders. He also sought parenting orders in respect of the children X born in 2011 (‘X’) and Y born in 2012 (‘Y’) (collectively, the ‘children’).
Various procedural and interim orders have been made by the Court during the course of the matter. The matter is one that was actively contested between the parties from the time of its commencement until late 2021.
On 27 August 2021, the parties attended for Child Inclusive Conference. A memorandum was provided to the parties and the Court in relation to the Child Inclusive Conference.
On 22 October 2021, Judge Kelly made a range of parenting and property orders. Among other things, those orders provided for the Father to file an amended response within 14 days of the date of those orders. Order 3, and orders 12-15, provided as follows:
…
3.Upon the later of the parties receiving and exchanging the Respondent Father’s hair follicle drug screen test results, both parties’ carbohydrate-deficient transferrin test results and psychological assessment reports by the single expert psychologist appointed by the parties, the parties attend to the following:
(a)the Applicant Mother is to provide to the Respondent Father a final draft of proposed parenting orders;
(b)the Respondent Father is to respond to that final draft indicating where he agrees or disagrees and any further orders he proposes; and
(c) the parties be at liberty to apply for further directions of the Court.
…
12. The children live with the Applicant Mother.
13.Unless otherwise agreed by the parties in writing, the children spend time with the Respondent Father on one (1) occasion each week for two (2) hours’ duration (or such other times as agreed between the parties and the Family Contact Service) professionally supervised by [Ms B], or her delegate, of the Family Contact Service, at the shared expense of the parties, with each of the parties at liberty to request a report from the Family Contact Service.
14.Unless otherwise agreed in writing, the costs charged by the supervised contact service from the date of separation until the date of Final Hearing be paid by the Respondent father in the first instance and reimbursed to the Respondent Father, upon production of corresponding receipts, from the protected monies held by the parties following the sale of real property as provided for further in these orders.
15.Unless otherwise agreed by the parties in writing, the children commence spending weekly unsupervised time with the Respondent Father when the later of the following occurs:
(a)the Respondent Father’s hair follicle drug screen test is returned and provided it does not indicate illicit drug use; and
(b)the Respondent Father’s CDT test returns results that do not indicate the chronic or excessive consumption of alcohol; and
(c)the representative(s) of the Family Contact Service supervising the children’s time with the Respondent Father do not identify any welfare, safety or other protective concerns in relation to the children in the Respondent Father’s care during future sessions.
…
Judge Kelly did not set the matter down for any further court time. The parties were at liberty to apply for further directions.
The Father’s solicitors subsequently withdrew by filing a Notice of Ceasing to Act on 9 December 2021. The Father has been unrepresented since that time.
Judge Kelly subsequently retired. I subsequently listed the matter for mention on 10 June 2022 to ascertain its status given that nothing of substance had occurred for approximately 7-8 months.
The Father did not appear before me on 10 June 2022. On that date, I was informed by the Mother that the children had not seen the Father in person since November 2021 and that he had not spoken to the children by phone or Skype since Christmas 2021. I was further informed that the Mother had complied with the orders of Judge Kelly of 22 October 2021 but that neither party had completed the psychological assessment as contemplated by Judge Kelly’s October orders. I was also informed that the parties had attended mediation in October 2021 and that had failed to resolve matters between them. In light of these matters, I made, among other things, the following orders on 10 June 2022:
…
2.Within 7 days of the date of this order the Respondent Father file a Notice of Address for Service.
3.By 4.00pm on 15 August 2022 the Respondent Father file and serve an affidavit attaching evidence of his compliance with the orders of 22 October 2021 (‘October orders’) including:
(a)Compliance with order 5 of the October orders relating to his enrolment in the Tuning into Kids program;
(b)Compliance with order 7 of the October orders relating to his completion of a hair follicle test;
(c)Compliance with order 8 of the October orders relating to his undertaking for a carbohydrate-deficient transferring test
(d)His regular attendance upon his treating psychologist and that he confirm the name of his treating psychologist and the frequency of his attendances.
4.Order 1 of the orders made by Judge A Kelly on 22 October 2021 be discharged.
5.The Applicant Mother have leave to file a fully particularised further Amended Initiating Application setting out the final orders that she seeks by 4.00pm on 15 August 2022
6.Any Application in a Proceeding by the Mother in relation to interim property or financial issues must be filed and served by 15 August 2022 and accompanied by an affidavit in support.
7.The Applicant Mother serve a copy of these orders on the Father at his email address, and by message to his mobile phone number.
8.The matter be adjourned to 25 August 2022 at 10.00am for mention before Judge Blake at the Federal Circuit and Family Court of Australia in Melbourne (‘the adjourned date’).
9. The Respondent Father must personally attend Court on the adjourned date.
…
I also made orders appointing an Independent Children’s Lawyer.
On 15 August 2022, the Mother filed a Further Amended Application and a further affidavit in the Court. Among other things, in her affidavit she deposed:
(a)to her compliance with previous orders of the Court including that she had completed a Tuning into Kids Program, a Parenting after Separation course and a carbohydrate deficient transferrin (‘CDT’) test;
(b)that she had not completed psychological testing by a single expert psychologist because she had nominated three qualified psychologists to the Father, and he had not selected a psychologist as was contemplated by the orders of 22 October 2021;
(c)that she was unaware whether the Father had complied with various previous orders of the Court; and
(d)that in accordance with the orders made on 10 June 2022, she had caused her solicitor to serve a copy of the orders on the Father at his email address and also at his last known residential address. She also deposed that she had had a conversation with her solicitor who had informed her that the Father had received the orders of 10 June 2022.
The matter came before me again on 25 August 2022. The Father failed to appear before me again despite being ordered to personally attend Court and there was no evidence from him complying with the orders I made on 10 June 2022. I was informed by the Independent Children’s Lawyer that the Father was not engaging in the proceedings and that the children needed finality. Consequently, I made the following orders on 25 August 2022:
1.The matter be listed to 19 October 2022 at 10.00am for Mention before Judge Blake at the Federal Circuit and Family Court of Australia in Melbourne.
2.The Applicant file and serve an updated Financial Statement, any supplementary Affidavit and any Application to proceed on an undefended basis on or before 8 September 2022.
3.The Applicant is to serve a copy of these Orders on the Respondent within 7 days of the date of this Order.
4.The Applicant is to file and serve by 12 October 2022 an Affidavit of Service, attesting to service on the Respondent of the following documents:
(a) A copy of these Orders;
(b) An updated Financial Statement; and
(c)Any other document filed by the Applicant upon which she may rely at the next Court date.
5.The Respondent file and serve an updated Financial Statement and Affidavit outlining his compliance with all previous Court Orders on or before 29 September 2022.
Subsequent to the hearing on 25 August 2022, the Mother filed an Application in a Proceeding dated 1 September 2022 along with a supporting affidavit, in which she sought leave to proceed on an undefended basis. She has also filed an affidavit from her solicitor dated 1 September 2022, an updated Financial Statement filed 1 September 2022 and an affidavit of service dated 12 October 2022. The Father has not filed any document in this Court since 21 October 2021.
When the matter came on before me on 19 October 2022, the Mother was represented by Counsel. The Father failed to appear.
The material before the Court is as follows. The Mother has filed affidavits on 3 December 2020, 6 July 2021, 15 August 2022 and 1 September 2022. Her solicitor has also filed affidavits in the proceeding on 1 September 2022 and 12 October 2022. The Mother has also filed a Further Amended Application dated 15 August 2022, an Application in a Proceeding on 1 September 2022 and an updated Financial Statement on 1 September 2022. The Father has filed a Response on 3 June 2021, a Financial Statement on 3 June 2021 and an affidavit on 3 June 2021.
the application to proceed on an undefended basis
Principles
The 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 states:
Failure to comply with a legislative provision or order
(1)If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a) dismiss all or part of the proceeding;
(b) set aside a step taken or an order made;
(c) determine the proceeding as if it were undefended;
(d) order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
Note: This subrule does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.
The term ‘undefended’ in rule 1.33 is not defined. In Zane & Allan [2008] FamCAFC 115 (‘Zane’) the Full Court of the Family Court stated in respect of an earlier version of the rules and applications to proceed on an ‘undefended’ basis:
[8]The expression “undefended” is not defined, or otherwise explained, in the Rules. However the Explanatory Guide to the Rules (which is expressly stated not to be part of the Rules) explains the term “undefended basis” in the following way:
…the court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The court may make orders set out in the application on being satisfied by evidence that the orders should be made.
Under the current Rules, applications for default are dealt with under Part 10.6 of the Rules. Part 10.6 of the Rules deals with defaults, but unlike rule 1.33, Part 10.6 makes no reference to ‘undefended’ proceedings.
Rule 10.25 provides that nothing in Part 10.6 of the Rules is intended to limit the Court’s powers in relation to contempt or sanctions for failure to comply with an order. Rule 10.26(2) of the Rules deal with when a Respondent is in default and relevantly provide as follows:
When a party is in default
…
(2)For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a)give an address for service before the time for the respondent to give an address has expired; or
(b)file a response before the time for the respondent to file a response has expired; or
(c) comply with an order of the court in the proceeding; or
(d) file and serve a document required under these Rules; or
(e) produce a document as required by Division 6.2.2; or
(f) do any act required to be done by these Rules; or
(g) defend the proceeding with due diligence; or
(h)prosecute with due diligence any application the respondent has made in the proceeding.
Rule 10.27 of the Rules relevantly states:
…
(2) If a respondent is in default, the court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b) give judgment or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the proceeding in the time limited in the order.
(3)The court may make an order of the kind referred to in subrule (1) or (2), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the court thinks just.
In addition to the above, rule 15.19(2) of the Rules states:
(2)If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the court thinks just.
While the court cannot compel a person to participate in litigation, the court must afford a party an adequate opportunity to be heard. In Kleine & Kleine [2021] FedCFamC1F 51, Altobelli J at [21] stated:
[21]Before a matter can proceed on an undefended basis, the Court must be satisfied that all parties to the proceeding have had an opportunity to be heard: Taylor v Taylor (1979) 143 CLR 1.
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 a case. The court has a wide discretion in relation to involvement of the defaulting party. In Binns & Palister [2021] FedCFamC1F 142, Howard J stated:
[25]… The Court has a discretion as to how to conduct a hearing when a case is undefended. That this is so has been confirmed in earlier cases. I note that in the decision of the Full Court of the Family Court of Australia in Zane & Allan [2008] FamCAFC 115 – the Court did not cavil with the comments of the trial judge (Le Poer Trench J) concerning the “wide discretion to be exercised by the trial judge” in relation to, amongst other things, the involvement of the defaulting party in an undefended hearing. It was noted by Le Poer Trench J and (seemingly supported by the Full Court) that the discretion “must be tempered with regard to procedural fairness, natural justice and the requirement to do justice to all of the parties.”
A party that seeks judgment on an undefended basis under Part 10.6 of the Rules is not entitled by right to the orders he or she seeks simply because the other party fails to prosecute his or her case. In parenting proceedings, the Court is required to make orders that are in the best interests of the children. In property proceedings, the Court must be satisfied that any orders made are just and equitable. In Lanceley & Lancely (1994) 18 Fam LR 71 (‘Lanceley’) the Full Court of the Family Court of Australia at page 80 considered the implications of undefended hearings and set out why applications under the Family Law Act 1975 (Cth) cannot lead to a ‘judgment by default’:
…Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a 'judgment by default' in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
Consideration
Having reviewed the material before me, including the affidavits to which I have referred earlier, I am satisfied that 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 rule 2.25 and 2.26. He did not do 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 was used by the Court to notify the Father of the listings on 10 June 2022, 25 August 2022 and 19 October 2022
The Father was also made aware of the hearings listed on 25 August 2022 and 19 October 2022 by the Mother. The orders of 25 August 2022 were served on the Father by the Mother’s lawyer. As to the hearing on 19 October 2022, I observe the following. Paragraph [19] of the affidavit of Mr E filed 1 September 2022 refers to his service on the Father of the orders of ‘10 June 2022’. This may be a typographical error that should refer to the orders of 25 August 2022, given that at paragraph [10] of his affidavit, he refers to having previously served the orders of 10 June 2022 on the Mother. Irrespective of that however, in the affidavit, Mr E refers to a letter he wrote to the Father on 30 August 2022 informing the Father that the Mother would be seeking leave to proceed on an undefended basis the next time the matter was before the Court. A copy of the letter is not attached to the affidavit of Mr E, but is attached to the affidavit of the Mother filed 1 September 2022. That letter refers to Mr E serving the Father with a copy of the orders of 25 August 2022 on 26 August 2022. Moreover, the letter informs the Father that the matter is next listed before the Court on 19 October 2022 and that the Mother will seek leave to proceed on an undefended basis on the next occasion. Finally, a further affidavit of service filed by Mr E on 12 October 2022 confirms that he served the Father with the Application in a Proceeding to seek orders on an undefended basis, a copy of the affidavit of the Mother of 31 August 2022, a copy of the Orders made 25 August 2022 and a copy of the Mother’s Financial Statement.
In all of the circumstances, I am satisfied that the Father knew of the hearings on 25 August 2022 and 19 October 2022, had been provided with the material in relation to the Mother’s application to proceed on an undefended basis, and had the opportunity to participate in the hearing.
I next turn 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. These include the following:
(a)on 22 October 2021, the Father was ordered to file an Amended Response by 5 November 2021;
(b)on 22 October 2021, the Father was required to enrol in a ‘Tuning into Kids’ program;
(c)on 22 October 2021, the Father was required to submit to hair follicle drug testing;
(d)on 22 October 2021, the Father was ordered to submit to a CDT test;
(e)on 22 October 2021, the Father was ordered to select a psychologist from three names provided by the Mother;
(f)on 22 October, the Father was ordered to confirm in writing the name of his psychologist within 14 days of the date of the order, and the frequency of his attendances;
(g)on 10 June 2022, the Father was ordered to file a notice of address for service within seven days of the date of the order;
(h)on 10 June 2022, the Father was ordered to file and serve an affidavit attaching evidence of his compliance with orders made by the court on 22 October 2021;
(i)on 10 June 2022, the Father was ordered to personally attend court on the next adjourned date being 25 August 2022; and
(j)on 25 August 2022, the Father was ordered to file and serve an updated financial statement and affidavit.
The Father has failed to comply with all of the orders of the Court referred to above. I am satisfied that the Father is in default within the meaning of rules 10.26(2)(c). He has also failed to defend the proceeding with due diligence (rule 10.26(2)(g)) and failed to prosecute with due diligence his application in this matter as contemplated by rule 10.26(2)(h). I therefore grant leave to the Mother to proceed on an undefended basis in relation to her application for parenting and property orders.
The application for parenting orders
Principles
The Family Law Act 1975 (‘Act’) sets out the matters 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 subsection (2) or (4) apply.
Section 60CC of the Act then sets out those matters that the Court must have regard to in ascertaining what is in the children's best interest. The primary considerations in relation to what is in the children's best interests are set out in section 60CC(2) of the Act. Section 60CC (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child's parents. Section 60CC(2)(b) 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). Finally, section 60CC(3) sets out the additional considerations that the Court must have regard to in considering what is in the children's best interest.
The parenting orders sought by the Mother
The orders sought by the Mother are set out in the Further Amended Application filed 15 August 2022. She seeks, among other things, an order for sole parental responsibility for the children and that the children live with her. She proposes that the Father continue to spend supervised time with the children on one occasion each fortnight for two hours duration. She proposes a range of orders requiring the Father to undergo a hair follicle drug screening test, a CDT test and for the Father to continue to attend upon his treating psychologist. The Mother proposes that in the event the Father does these things, and receives a favourable report from a supervision service, his time with the children could progress to unsupervised time. The Mother also seeks a range of other orders.
The evidence
In her affidavit material, the Mother deposes to the following:
(a)she met the Father in around mid 2010 and shortly after moving in together, the Mother became pregnant with X. X was born in 2011 and Y was born in 2012. The parties never married;
(b)the Father worked in public relations and would consume alcohol regularly often to the point of becoming drunk and passing out, on one occasion vomiting on the lounge room rug;
(c)the Father used cocaine following his nights out;
(d)the parties agreed to separate in 2019 and the Father subsequently moved out of the family home in Suburb F into a rental property. In the period May 2019 to November 2019, the children spent about four nights a fortnight with the Father;
(e)in around January 2020, the Father threatened or attempted suicide, attaching a hose from his car exhaust into his vehicle, and live streaming the events on Facebook. He was subsequently admitted as a patient at the G Hospital;
(f)following the suicide attempt, the children spent supervised time with Father for two hours a week for a period of five or six weeks;
(g)from around February 2020, the Father sent the Mother increasingly abusive text messages. The Mother subsequently attended Suburb C Police Station and Victoria Police applied for an Intervention Order on her behalf;
(h)on 5 March 2020, the Father sent a text message to Y saying ‘tell your mum and X it’s been a great life’;
(i)she attempted to arrange counselling for the children to help them with the separation, but the Father withdrew his consent for the children to attend counselling on 28 April 2021;
(j)on 6 May 2020, the Father threatened to report her to the ATO. A confrontation between the parents in front of the children ensued;
(k)in the period around May 2020, it was not unusual for the Mother to receive a large volume of text messages from the Father each day, of which many were abusive, threatening or rude;
(l)on 12 May 2020, the Magistrates Court made an interim intervention order against the Father in favour of the Mother and the children;
(m)on 15 June 2020, the Mother reported a breach by the Father of the IVO. Criminal charges were subsequently brought against him;
(n)the August 2021 Intervention Order proceedings finalised by consent;
(o)the Father has not spent any time with the children since he disengaged from the supervision service on or around 18 November 2021. The Mother attaches to her affidavit an email from Ms B contact service dated 18 November 2021 indicating that the Father is in arrears and the services have been placed on hold until payment has been made;
(p)in the period November 2021 to December 2021, the Father attended at her home unannounced on two occasions asking to see the children. On both occasions, the children were left distressed by the incident;
(q)on 15 December 2021, the Mother applied for what she describes as a ‘no contact’ intervention order which was granted on 17 February 2022;
(r)the Father ceased participating in telephone time with the children at Christmas 2021. Despite that, the Mother continued to place calls to him on Mondays and Thursdays. He eventually answered on the evening of 14 July 2022. The Mother says that the Father then participated in calls regularly but inconsistently for a period of some weeks. She says, however, that the Father has not answered any calls since 4 August 2022;
(s)she is not receiving any child support from the Father and that she pays for all of the children’s expenses; and
(t)the children love their father and miss him and the Mother remains hopeful they can have a meaningful relationship with him in the future.
As I have noted above, the Father has not prosecuted his case. I therefore do not give any weight to his version of events contained in his only affidavit filed in this court. I therefore accept the Mothers account of what has occurred between the parties.
Finally, it is appropriate to note the content of the Child Inclusive Conference Report to the Court on 27 August 2021. I note the following from this Report:
(a)the Father acknowledged his historic consumption of drugs and alcohol;
(b)the Father reflected that while he had been linked in with drug and alcohol counselling through the G Hospital CAT Team, he was no longer seeing a counsellor;
(c)the Father acknowledged his historic suicide attempt in early 2020, stating it was a ‘situational crisis’. The Father confirmed he was on mood suppressants, but told the report writer he was unaware of the type or dosage;
(d)Y told the report writer that she loved her father and missed him. X did not wish to speak to the report writer; and
(e)the report writer expressed the opinion that ‘the children have been stuck in a deeply combative and acrimonious relationship. As such, they are likely feeling caught in the middle of their parents dispute and may be deeply confused and uncertain’.
The report writer also made the following recommendations:
37. The children remain in the primary care of [Ms Gainor].
38.It is recommended professionally supervised time between [Mr Nance] and the children start as soon as possible, with a professional supervisor’s report to be provided to the Court after no less than eight sessions.
39.Both parties would benefit from engaging in a program such as “Tuning Into Kids” to provide them with information and advice on how best to support the children moving forward.
40.[Ms Gainor] would benefit from completing a parenting after separation course, to provide her with tools to successfully co-parent with [Mr Nance].
41.It is recommended the parties consider using a co-parenting app such as “AppClose” to assist in their communication and co-parenting relationship. This would work to provide focus on developing a sustainable co-parenting relationship, whilst attending to the children’s needs.
42.It will be important for the children to be connected with some therapeutic support, to provide them with assistance regarding their trauma experience, a play therapist would be most appropriate.
43.The Court would benefit from obtaining Victoria Police records for [Mr Nance].
44.Given the allegations of [Mr Nance]’s alcohol and drug misuse, the Court may consider ordering [Mr Nance] complete a carbohydrate deficit test and hair follicle test to assess [Mr Nance] pattern of alcohol and drug use.
The best interests of the children
The principal issue that arises in this case is the extent of the risk that the Father poses to the children. He has on the evidence, a problem with alcohol that appears to predispose him, when he consumes it, to acts of aggression against the Mother. He has been given various opportunities by the Court to undertake a CDT test. He has not done so.
There is then the Father’s attempts at suicide. I accept that these attempts occurred over two years ago. There is no comprehensive evidence before the Court, however, about the state of the Father’s mental health or whether it is being treated. Once again, the Father was ordered to attend upon a psychologist but has failed to comply with that order.
Finally, there is the Mother’s evidence about the Father’s use of cocaine. The Father has also been given an opportunity to undertake hair follicle drug testing. He has not done so.
When the above matters are considered, it is the Court’s view that the proper inference to be drawn is that the Father continues to consume alcohol to excess, continues to consume cocaine 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 is required to take into account. I am required to give proper consideration to the children having a meaningful relationship with their Father. It is apparent from the Mother’s evidence that the children love their father and wish to see him. The orders proposed by the Mother contemplate that the Father will continue to have an opportunity to see the children in the future under supervision. That will provide an avenue for the children to see their Father, assuming that he wishes to see them. The evidence before the Court suggests that he is currently not interested in pursuing time with his children. It is to be hoped that that will change in the future. If it does, and if the Father can get his act together and address the risk issues to which I have referred, his time with the children will progress under the orders proposed by the Mother.
Both X and Y are young. X did not express any views to the consultant who wrote the Child Inclusive Conference Report. Y told the report writer that she loved her father. I have taken into account Y’s evidence to the report writer. I otherwise give the children’s views no weight given the state of that evidence and given their age.
It is clear from the evidence that as matters currently stand, the Father has little involvement in the children’s lives. He has not taken the opportunity on any regular or consistent basis to spend time or communicate with these children 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 making decisions for the children about major long-term issues. One inference to be drawn from this is that the Father is not taking a responsible attitude to parenting the children. The position of the Father is to be contrasted with the Mother who has care of the children, is responsible for their schooling and extra-curricular activities, who is their primary carer and has participated in these proceedings with the intention of resolving parenting arrangements.
The evidence before the Court is that the Father has not paid, and is in arrears, of child support. To that extent, the Court is satisfied that he has failed to fill his obligations to maintain the children. The same cannot be said of the Mother, who has primary care of the children and is attending to their daily needs.
Making the orders sought by the Mother would not result in any significant change in circumstances for the children. They will continue to live with their Mother. They will continue to have the opportunity to see their Father provided that he take steps to see them.
This is a case in which family violence has occurred. That violence is outlined in the Mother’s affidavit. Interim intervention orders were initially made. It is notable that the Father breached an early intervention order and was charged with that breach. More recently, in February 2022, a more comprehensive and final intervention order was made that protects the Mother and the children from the Father.
Finally, this is a case in which the children need some finality. Allowing matters to continue to drift with no involvement from the Father is not in their best interests.
The orders sought by the Mother
The Mother seeks orders that provide, among other things, for the children to live with her and for them to spend supervised time with the Father. The orders provide for a progression of the Father’s time to unsupervised time upon him returning a clean hair follicle drug screening test, a CDT test that does not show excessive consumption of alcohol, and confirmation from the Family Contact Service that there is no risk to the children in the care of the Father. It is plain in this case that the children should live with the Mother given the Father has not engaged in proceedings.
On the question of whether I should make orders for the children to spend time with the Father on a supervised basis, and make an order for telephone contact, I observe the following. Making orders in these terms would at least provide the children with an opportunity to continue to have some contact with their Father. It is clear Y in particular, loves her Father. Supervision of face to face time (and telephone time) provides an appropriate mechanism by which the children can continue to see their Father while not being exposed to any risk from him because of his mental health, excessive alcohol consumption or drug use. Against this, however, it is clear that the Father has not seen the children consistently, despite orders permitting him to do so since October 2021. There is some risk that if the Father fails to take up the opportunities afforded to him to see the children as contemplated by the orders, they may not wish to see him. There is also a risk that his not seeing the children, despite orders permitting him to do so, may have a psychological impact on the children. I have considered this issue closely. On balance, I am satisfied that I should make the orders sought by the Mother. It provides an avenue for these children to have some form of relationship with their Father if he chooses to have a relationship with them. I note the Mother’s evidence that she is supportive of the children having a relationship with the Father. Given that evidence, it is to be hoped that the Mother will be able to manage any potential impacts upon the children if the Father does not avail himself of the time provided for in the orders. Of course she also has other options available to assist her, such as to arrange counselling to help the children.
Proposed orders 15 – 17 of the Mother’s Further Amended Application are a set of stand alone orders requiring the Father to, among other things, submit to a hair follicle drug screening test, submit to a CDT test and to continue regular attendance upon his treating psychologist. I am concerned that these stand alone orders suffer the same defect that the Full Court identified in Oberlin v Infeld [2021] FamCAFC 66 (‘Oberlin’) at [51]. This issue was the subject of an exchange between the Bench, Counsel for the Mother and the Independent Children’s Lawyer. As a result of that exchange, the Court will amend the proposed orders sought by the Mother to make it clear that the Father’s progression of time to unsupervised time will only occur in the event he submits to the Mother all of the following: a hair follicle test that shows he is clear of illicit substances, a CDT test that shows he is not consuming alcohol chronically or excessively and a letter from his treating psychologist that shows he is receiving regular treatment, or alternatively, the treatment is not required. I regard it as appropriate to make these orders to ensure that the children are not exposed to any risk prior to them being given unsupervised time with the Father.
The Mother also proposed a further condition prior to the Father’s time becoming unsupervised. That condition, expressed in proposed order 19(c) of the Further Amended Application, was that ‘the representative(s) of the Family Contact Service supervising the children’s time with the Respondent Father confirm in writing that the service has not identified any welfare, safety or other protective concerns in relation to the children in the Respondent Father’s care during supervised sessions’. This proposed condition has the potential to suffer from problems similar to those identified by the Full Court in Oberlin at [42], albeit there the Full Court was dealing with a different order. For example, what is meant by ‘other protective concerns’? For these reasons, I decline to make the order sought by the Mother. I will make an order in terms similar to those sought, but it will omit the word ‘protective’.
While the Mother sought an order for telephone/video conference time with the Father, she also sought an injunction preventing the Father from communicating with the children directly by electronic means when they are not in his care. I did not receive any submissions on the form of this order. Having regard to my earlier findings, I am satisfied that such an injunction is necessary to ensure the safety of the children. I also regard it as necessary and just and convenient in the circumstances of this case to make such an order.
The Mother sought a number of other orders relating to, among other things, counselling of the children, applications for passports, liberty to enrol the children in certain schools and the like. The fact of this matter is that the Father is not engaged in any meaningful way in these children’s lives at the moment. It seems given his attitude to this litigation that he has no intention of meaningfully participating in the children’s lives. The evidence also discloses that conflict between the parents is likely to occur whenever the parties engage with each other. I therefore regard it as being in the children’s best interests to make these orders. It will enable the Mother to properly attend to the children’s needs and care for them without having to speak to or otherwise engage with the Father.
While the Mother sought an order permitting each parent to attend extracurricular events at school, sporting competitions and the like, she also sought an order that the Father be required to provide her with written notice of his intention to attend any such activity no less than seven days prior to his intended attendance. I did not receive any submissions on the form of this order. This order is, it seems to me, intended to operate as a fetter on the Father’s ability to attend extracurricular school and sporting competitions and therefore operates in the nature of an injunction. That is, the intended effect of the order (though inelegantly expressed in the Further Amended Application) is that the Father cannot attend such extracurricular school and sporting competitions unless he gives notice to the Mother. This is a case in which there has been family violence directed toward the Mother. The Father has previously been charged with contravening an intervention order. There is also a current Final Intervention Order in place issued as recently as February of this year. In all the circumstances, I regard it as just and convenient to make the order sought.
Finally, the Mother seeks a number of restraints that are to apply to both her the Father. I did not receive any submissions on this order. The restraints sought include restraints on the parties denigrating each other, discussing the proceedings, or posting content on social media. I regard it as appropriate to make those orders. The orders proposed apply equally to both parties. In my view, the orders are necessary to ensure any harm to the children is minimised, given the state of conflict between the parties, the history of conflict occurring in front of the children and other evidence before me including the most recent Final Intervention Order made in February 2022. I also regard it as just and convenient to make such an order in all the circumstances of this case.
Finally, it is appropriate to record that the Mother seeks an order for sole parental responsibility. I rely on all of the matters that I have referred to above. In my view, the usual presumption of equal shared parental responsibility is rebutted in this case. The evidence to which I have referred satisfies me that it is not in the best interests of these children for parental responsibility to be shared. The Mother should be given sole parental responsibility.
I have stepped back to consider all of the Mother’s proposed orders in light of the evidence and the matters set out in the Act. I am satisfied that making the orders I propose to make in this matter are in the children’s best interest.
the application for final property orders
The principles to be applied with respect to the determination of property applications arising from de facto relationships are well-known: see for example, the decision of Johns J in Camilli & Albini [2021] FamCA 48 at [41]-[43], [46]-[52]. Those principles apply in relation to the determination of the present matter.
At the hearing of this matter, I raised with Counsel the paucity of the evidence with respect to the application for property orders. Having now carefully reviewed the evidence before me, I have come to the conclusion that there is not sufficient evidence before the Court to enable me to be satisfied that any property order I might make would be just and equitable.
There are issues in identifying the pool of assets. While those issues arise in many cases where one party does not engage in the proceedings, the Mother has not made sufficient attempt to provide updated and comprehensive evidence of the items in the asset pool. The only time the Mother has attempted to address the asset pool in her affidavits is in the first affidavit she filed with the Court on 3 December 2020. That affidavit is plainly out of date. She has not sought to update the evidence about the content of the asset pool in the affidavit by way of further affidavit. The Mother has filed an updated Financial Statement. The Financial Statement discloses that the Mother has funds of approximately $72,000 in two bank accounts, a car which she estimates has a value of $5000, her business which she values (without formal valuation) at $5300 and superannuation of approximately $77,000. Nothing in the Financial Statement informs the Court as to what has become of those items that were listed in the first affidavit she filed, but that are now not listed in the updated Financial Statement.
The principal asset of the parties are the proceeds of sale from the former family home in Suburb F. Those proceeds amount to approximately $586,585. The property in Suburb F was owned by the Father at the time the parties commenced their relationship. There is absolutely no evidence before the Court (whether by way of formal valuation, kerbside valuation, or otherwise) as to the value of the Suburb F property at the time the parties commenced a relationship. That makes it difficult, if not impossible, to assess the initial contribution of the Father to the principal asset of the parties. No doubt that difficulty arises in part because of the Father’s non engagement in these proceedings. Be that as it may, there is nothing before me which indicates what attempts the Mother has made to identify or attribute any value to the Father’s initial contribution in the form of the Suburb F property. This, in circumstances where the Mother does not suggest that she entered the relationship with any assets of value.
The Mother seeks orders that there be a superannuation split in her favour from the Father’s superannuation account. There is no up to date evidence before the Court as to what is contained within the Father’s superannuation account or of attempts made to ascertain the superannuation balance of the Father. During the hearing, I raised with Counsel whether the Father’s superannuation fund had been provided with procedural fairness. I was told there were documents that could be given to the Court, however the Court has not received them. Currently there is no evidence before me that the Father’s superannuation fund has been afforded procedural fairness.
The Mother seeks a division of property in her favour. It seems plain that the adjustment is at least based on an assessment of her future needs. The evidence before the Court, however, in relation to her future needs is extremely limited. Much the same can be said for the evidence in relation to contributions. While the evidence before the Court on contributions (at least during the relationship) is somewhat more detailed than the evidence on future needs, it nevertheless remains limited. There is also limited evidence in respect of post separation contributions.
I have referred to the matters above as an illustration of some of the difficulties that confront the Court in relation to the application before it. What I have set out above should not be taken as an exhaustive statement of what the Court requires. It is incumbent on the parties, and in particular the Mother, to place before the Court all of the material necessary to enable the Court to make a decision.
It is the nature of undefended property hearings that the Court will be asked to make a decision based on imperfect information. Often, inferences will need to be drawn from the available evidence. Adverse inferences may need to be drawn against the non- participating party by reason of their non-participation. A party who comes to Court, however, seeking final property orders on an undefended basis must take all reasonable steps to place before the Court all of the information that the Court may need to make a decision. As noted in Lanceley above, proceedings of this type do not proceed on the basis that an applicant for undefended orders receives everything that he or she may ask for simply because the proceedings are not contested. Rather, in proceedings of this nature, the Court is ultimately required to be satisfied that any order made is just and equitable. Given the paucity of the evidence before me in relation to property matters generally, in this case, I cannot be satisfied that any property order I might make would be just and equitable.
conclusion
In so far as the Application in a Proceeding dated 1 September 2022 is concerned, the Court grants the application to proceed on an undefended basis in relation to parenting matters and will make final parenting orders largely in the terms sought. I decline to make any final property orders for the reasons set out above.
The appropriate course in relation to the determination of property matters is to make an order that the Mother file updating material in support of her application for property orders. If I am going to grant the Mother that opportunity, the opportunity should also be extended to the Father. I will therefore make an order permitting the Father to file an affidavit in respect to property matters. The parties should treat the affidavits the subject of these orders above as proper trial affidavits. That way, if both parties comply, the matter can be listed for trial as expeditiously as possible.
It remains unclear whether the Father will participate in this proceeding. I will make an order requiring the Mother’s solicitor to serve a copy of the orders made this day on the Father.
I will otherwise list the property matter for further mention before me on 8 March 2023.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 15 December 2022
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