Geddings & Batie (No 2)
[2023] FedCFamC1F 571
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Geddings & Batie (No 2) [2023] FedCFamC1F 571
File number(s): CSC 76 of 2022 Judgment of: JUSTICE BAUMANN Date of judgment: 13 June 2023 Catchwords: FAMILY LAW – PARENTING – With whom the child shall live – Where the father has not complied with procedural Orders of the Court to file material – Where the matter was listed for undefended hearing – Where the father attended the hearing and made oral submissions – Where the father submits that his current mental and physical health is not optimal and may improve in the coming years – Final orders made in the best interests of the children Legislation: Family Law Act 1975 (Cth) ss 60CC, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 133
Cases cited: Hall & Hall (1979) FLC 90-713
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 13 June 2023 Place: Brisbane Solicitor for the Applicant: Hartley Whitla Lawyers Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Lehmann Featherstone ORDERS
CSC76 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GEDDINGS
Applicant
AND: MR BATIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUSTICE BAUMANN
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders in relation to the children, W born 2008; X born 2010; Y born 2012 and Z born 2017 (“the children”) be and hereby are discharged.
2.That the Applicant mother have sole parental responsibility for the children.
3.That the parents shall communicate only via the Talking Parents App.
4.That the mother shall keep the father informed as to significant matters concerning the children's health, education and wellbeing by written reports via Talking Parents every three (3) months, including copies of school reports and medical reports (with identifying information as to residence or school redacted).
5.That the children live with the mother.
6.That in the event that any of the children express a wish to spend time with or communicate with the father, then the mother will facilitate such contact/communication as per the children’s wishes.
7.That the father be permitted to send gifts and cards to the children to a post box nominated by the mother on special days including Christmas, Easter, and each child's birthday and the mother shall, after ensuring same is appropriate, ensure that the children receives same.
8.That pursuant to s 68B of the Family Law Act 1975 (Cth) the father be restrained from:
(a)approaching the children and the mother and from coming within ten (10) kilometres of the children's home, school/sand the mother's work place without the prior written consent of the mother;
(b)removing the children from any school or extracurricular activity or from the care of any person, the mother has placed the children in the care of;
(c)publishing any information or photos regarding the children or the mother on any social media platforms; and
(d)from placing the children on the Airport Watch List, preventing the children from leaving the Commonwealth of Australia as referred to in these Orders.
9.That the mother may apply for passports or apply for renewals of passports for each of the children without first obtaining the consent of the children’s father and the passport is to issue notwithstanding that the father has failed to sign all documents necessary to do so.
10.That the mother is permitted to remove the children or authorise their removal from the Commonwealth of Australia for the purposes of a holiday or educational experience at all times at her sole discretion.
11.That the Independent Children's Lawyer be discharged.
IT IS NOTED:
A.That the Court proceeded today pursuant to r 10.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on an undefended basis because the father had failed to comply with directions to file material.
B.That the father appeared by telephone and made submissions.
C.That in the circumstances, therefore, these Orders were not effectively made in his absence, however, the Court accepts, as must the mother, that if the father is able to put evidence before the Court of an improved mental health capacity from the position today, at some future date, it will be open to the Court to consider whether it is in the best interests of the children that the current Orders be reconsidered through such Application by the father. With that evidence not being available today, and not likely to be available before the end of this year at best, the Court has decided to bring these proceedings to an end and make final Orders as above.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Geddings & Batie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
These proceedings in relation to parenting orders for four children, Z who is approaching her sixth birthday, Y who is now 10 years of age, X who has turned 13 and W who is now 15 years of age, have been ongoing since the parties separated in April 2021. It has had a difficult history. In many ways, in my view, as the evidence of Dr C at least identifies, without accepting Dr C’s psychiatric assessment of the father completely, the family that lived in Town E has not included their father, who is an educator by occupation, because it is apparent the father has had some significant mental health issues to deal with. Such are the issues that the father, some months ago, moved to New South Wales where, as I understand his position, he has had the support of his family.
Although the mother commenced proceedings in the Federal Circuit Court of Australia (as it was then known) on 4 February 2022, and the father responded shortly thereafter, these proceedings were transferred to Division 1 of this Court after the release of a concerning psychiatric report prepared by Dr C. It was released by me to the parties, but not the father initially, in August last year, that is, over nine months ago, after the matter had been transferred on 30 September 2022 by Judge Cope who sits in Queensland in Division 2 this Court.
I have now on three separate occasions directed the father to file material in this Court. Those occasions being on 20 October 2022, 18 January 2023 and 14 March 2023. On 14 March 2023, having once again ordered the father to file a Response and affidavit in support, I published some short Reasons indicating that if the father failed to do so, the Court would consider pressing on with this matter in the interests of the children on an undefended basis. The Court has the jurisdiction to do that pursuant to Rule 1.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which in part provides that if a party to a proceeding does not comply with these Rules, the Family Law Regulations 1984 (Cth), or a procedural order, the Court may determine the proceedings as if it were undefended.
I propose, in view of the power provided by r 1.33 of the Rules, to proceed today. In so doing of course, the Court must still be satisfied that the orders I am being asked to make are in the best interests of the children on the evidence at this time. In that regard, the Independent Children’s Lawyer (“ICL”), in a case outline filed by her on 8 June 2023 which has been provided to the father, sets out the orders that are sought. Those orders are supported by the mother whose solicitor advocate today, Ms Hartley, referred to a case outline that had been filed by her on 9 June 2023. I have read and considered the material identified in those case outlines.
The effect of the orders sought really are that the children continue to live primarily with the mother in Queensland and that she have the responsibility to make major long-term decisions at this stage. The orders sought by the ICL provide that the mother will keep the father informed as to significant matters concerning the children’s health, education and wellbeing.
The orders clearly express, and the submissions are, that the Court should not make an order that the children do not spend time or communicate with the father, but rather that when the children express a wish to spend time or communicate with the father, the mother will facilitate such time occurring. The father will be permitted to send cards and gifts to the children to a post box nominated by the mother for special occasions, and when otherwise appropriate. The father has earlier in these proceedings filed affidavits in support of an initial Response that he filed, but sadly despite many endeavours to have him file more recent material, the last affidavits are in March and May last year (2022). Again, it seems to me that that is totally consistent with the poor mental health the father currently experiences.
To that end, I also take on board the submissions the father has made today which are, effectively, that he is recovering from surgery; that he is bereft of funds and therefore cannot secure his own lawyer and he is also, it seems to me, unable to engage with a lawyer for the purpose of making an application for legal aid. During the course of this morning’s hearing the father, who appeared by telephone, was very respectful to the Court and, in my view, as the transcript will reveal at the commencement, indicated that he felt that he had in the past acted somewhat inappropriately and he apologised for his conduct (if true, an insightful remark). He says he will be better by the end of the year and then perhaps he can file something. He said on more than one occasion that he is distressed by not having spent any physical time with his children now for nearly two years.
I can have no confidence, nor frankly does the ICL and the mother, that the father’s mental health condition will be sufficiently robust by the end of this year for him to participate in these proceedings. That would be the hope and, as I explained to the father today, if he is able to regain some of his mental health robustness and considering his past life as an educator, there is every reason to believe that he could well still play an important role in the life of his children. There is no real understanding of the Court as to why he continues to now live so far from his children who are in Queensland while he continues to reside in New South Wales – save for his family support.
In considering whether the orders being sought are in the best interest of the children, I have also turned my mind to what the father’s only Response filed in these proceedings said, that was prepared by a lawyer at the time and filed on 7 March 2022. In that Response, the father said he would seek leave to particularise the final orders at a future time. He has never done so, despite being requested to do so. He sought interlocutory or interim orders that the parties have equal shared parental responsibility and that the children live with the mother. In that application at that time, he proposed that the children spend supervised time with him for the “upcoming Easter 2022 school holidays” on the basis that he would come to City F. There is no evidence that the father has the intention, desire or ability to travel to Queensland to even spend supervised time with his children now. As I say, at best, on his submissions today, he may be in a position, at the end of this year, to formulate an actual proposal.
Considering the requirements of Section 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”), I am satisfied that it is in the best interest of the children, and it is currently not even disputed by the father, the children live with the mother. I am satisfied that there is a principal reason why the presumption of equal shared parental responsibility should be departed from and that there should be an order that the mother have sole parental responsibility for major, long-term decisions (Vallans & Vallans (2019) 60 Fam LR 193). That principled reason is not only the lack of communication between the parties, but sadly, at this stage, the inability of the father to effectively be involved in discussions about major long-term decisions about his children, even though I accept at some level he would want to be so involved.
There is no basis on the evidence produced by the father to suggest that any options for time between the father and the children, supervised in Queensland or otherwise, are really practically available. I accept, doing the best she can, the ICL’s proposal that the children initiate both physical and/or electronic communication with the father is the appropriate order at this time.
The orders under s 68B of the Act, being injunctions relating to the care, welfare and protection of the children, are appropriate in circumstances where I am satisfied that in the mother’s role of primary carer, she needs to have the comfort, as do the children, that the father, who is not otherwise restrained from coming to Queensland, from actually taking steps, in the absence of an injunction, of removing the children from the mother’s care or from their school. The children do not need to have that fear, if in fact it is one that one or either of them still hold, hanging over their head.
For the reasons given, I propose to make the orders proposed by the ICL, supported by the mother, on a final basis. I propose however, consistent with my discussion with the unrepresented father today, to include the following notation to the order in these terms:
(a)The Court proceeded today pursuant to r 1.33(2) on an undefended basis because the father had failed to comply with directions to file material;
(b)The father appeared by telephone today and made submissions; and
(c)In the circumstances, therefore, these orders were not effectively made in his absence, however the Court accepts, as must the mother, that if the father is able to put evidence before the Court of an improved mental health capacity from the position today at some future date, it will be open to the Court to consider whether it is in the best interest of the children that the current orders be reconsidered through such an application by the father.
With that evidence not being available to the Court today and not likely to be available before the end of this year, at best, the Court has decided to bring these proceedings to an end and make final orders as above. I will discharge the ICL and publish these Reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice . Associate:
Dated: 10 August 2023
0
0
0