Judd & Romijn
[2024] FedCFamC1F 688
•8 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Judd & Romijn [2024] FedCFamC1F 688
File number(s): DNC 579 of 2021 Judgment of: KARI J Date of judgment: 8 October 2024 Catchwords: FAMILY LAW – CHILDREN – Where the father is not present at the hearing – Where the father has not complied with orders – Where the father is not present in Australia and is unable to indicate when he may return – Where the matter is not in a position to proceed to trial because the father is not present in Australia – Where the court considers the father has not been prosecuting his case with due diligence – Where the father’s Application for Final Orders is struck out – Orders made in accordance with the mother’s Amended Response to Final Orders Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 68B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.6, rr 10.26, 10.27,
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 8 October 2024 Place: Adelaide by Webex Solicitor for the Applicant: Ms Gray of Grays Legal NT The Respondent: No appearance ORDERS
DNC 579 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JUDD
Applicant
AND: MS ROMIJN
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
8 OCTOBER 2024
THE COURT ORDERS THAT:
1.That the mother have sole parental responsibility for X born 2019, the child.
2.That the child shall live with the mother.
3.That the child shall not spend any time with the father.
4.That pursuant to s 68B(1) of the Family Law Act 1975 that MR JUDD the father of X born 2019 shall be restrained and injuncted from:
(a)Contacting or communicating with Ms Romijn and X directly or indirectly except in accordance with court orders;
(b)Entering or remaining at any place that Ms Romijn is living, staying or working;
(c)Entering or remaining at any place that X is living, staying or located;
(d)Contacting or communicating with a work colleague of Ms Romijn;
(e)Contacting or communicating with a member of Ms Romijn’s family.
5.That the proceedings be dismissed as finalised.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Judd & Romijn has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
These proceedings come before the Court in relation to the parenting arrangements for the parties' child, X, born in 2019. The parties to the proceedings are the applicant father, who commenced these proceedings on 30 November 2021 and the respondent mother.
The proceedings have had a very significant history before the Court, and it is with some regret that the proceedings have not yet proceeded to trial. There are a range of reasons for the current state of affairs, including but not limited to an attempt at a trial in the middle of 2023 before Riethmuller J, that was unable to proceed in circumstances where the father was incarcerated. Since that time, the proceedings have been, effectively, in abeyance, awaiting the father's release from custody and a new trial listing.
The proceedings proceeded to a judicial settlement conference before McClelland DCJ on 4 September 2024. The proceedings did not resolve at that judicial settlement conference and, ultimately, His Honour made an order on 4 September 2024 listing the proceedings for case management before me on 18 September 2024.
The orders made by the Deputy Chief Justice on 4 September were reinforced by orders made by Judicial Registrar Farantouris on 12 September 2024, which confirmed the case management hearing on 18 September 2024, but in addition, provided for the parties to each file case outlines preparatory to that case management hearing. Those outlines were to have been filed by the parties by 17 September 2024, being the day prior to the hearing. The orders for the filing of a case outline included that the outline set out; a brief summary of the issues in dispute, together with a minute of the specific final orders sought, a trial plan identifying the witnesses to be relied upon at trial, an estimated length of trial, any subpoena which will be issued, details of the costs incurred to date and anticipated costs for trial, and any interlocutory disputes that are likely to require determination. For reasons which are unclear, neither of the parties complied with the orders made on 12 September 2024 for the filing of an outline.
The hearing on 18 September 2024 proceeded, with the mother's legal representative and the mother present at the hearing and the father attending remotely; as recorded in the notations to the orders made on 18 September 2024. The father was not in the country and had travelled to Country B in mid-2024. At the hearing, he was unable to indicate to the Court when he might return to Australia to enable the proceedings to be listed for trial. I indicated to the parties at the hearing that I was unimpressed with the lack of compliance with the orders for the filing of a case outline because I had intended to give the matter trial dates to bring the proceedings to a conclusion. In addition, and in light of the fact that the father had informed the Court that he was presently in Country B and the Court having knowledge that there are potential visa issues in relation to the father, from documents filed earlier in the proceedings, an order was made, directing the father to file an affidavit by 4.00 pm on 2 October 2024, setting out his current circumstances, his travel to Country B and when he proposed to return to Australia, and the current status of his visa and ability to return to Australia. The proceedings were otherwise adjourned to a hearing on 8 October 2024 for further case management.
The father, in principle, complied with the order made 18 September 2024, by the filing of an affidavit on 2 October 2024. The father however has still not complied with the orders for the filing of a case outline first made by Judicial Registrar Farantouris on 12 September 2024, albeit I note that in the affidavit that he filed on 2 September 2024, the father sets out both the final and the interlocutory orders that he seeks in relation to the child.
The mother has now complied with the orders made on 12 September 2024 for the filing of an outline of case. That outline was filed by her on 4 October 2024, and I have had regard to that document.
The proceedings are parenting proceedings in relation to the parties' almost five-year-old child. They have been before the Court for almost three years. For reasons which I shall shortly come to, in light of the father's non-compliance with orders, his lack of appearance today and the fact that he is not in the country, and in my view, not prosecuting these proceedings with due diligence, it is my considered view that the father's Initiating Application for Final Orders first filed on 30 November 2021 ought to be struck out and the proceedings finalised.
I do not propose to go into significant detail in relation to the history of the proceedings other than so far as it is presently relevant to the matters that have led me to the conclusion to take the course of action that I have foreshadowed.
I pause here to note that there is power for the Court to proceed in the fashion in which I have proposed, pursuant to s 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), together with the provisions in Part 10.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular r 10.26(1), together with r 10.27, setting out firstly, when a party is in default and secondly, the orders available to the Court if the Court considers a party is in default.
I have already indicated that the father is not present today. I have additionally indicated that he has not complied with the orders made by the Court on 12 September 2024 for the filing of a case outline. While the father's lack of attendance today and the non-compliance with the orders are sufficient for me to proceed in default, I additionally, however, have come to the considered view that the father is not prosecuting these proceedings with due diligence.
I have come to this view for a range of reasons. In the first instance, it is my understanding that a Family Report in these proceedings was prepared by Mr C on 15 December 2022. I have had regard to the contents of that report. Significantly, the father did not participate in that process with Mr C. Ultimately, Mr C came to the considered view and made a range of recommendations as to the appropriate parenting arrangements for the child. Significantly, Mr C formed the view that the mother ought to be granted sole parental responsibility for the child and that orders ought to be made providing for the child to live with the mother; noting that the mother has always been the primary carer for the child. Mr C did not support the father's application for equal time spending. Indeed, Mr C considered that any prospect of time spending between the father and the child should be approached with great caution. The reasons for this are multivarious and include matters pertaining to significant family violence perpetrated by the father against the mother, the father's parenting capacity, mental health and other issues.
I pause here to record that it is apparent that the mother has been the victim of significant family violence perpetrated by the father. I am able to come to that view in light of the fact that the father, in early 2020, pleaded guilty in relation to at least one violent offence pertaining to the mother. In addition, there has been a domestic violence restraining order naming the mother as a protected person and the father as the defendant.
As I have said, the father did not participate in the assessment process with Mr C. Importantly, however, in recent times the father has not complied with the orders made by the Court, as I have earlier identified. In addition, the father is not present at the hearing today.
As to the father’s non-attendance at today’s hearing, I note that the father was present at the last hearing in these proceedings before me on 18 September 2024, when orders were made assigning the current hearing date and time.
Additionally, and moments prior to the scheduled commencement of today's hearing, my associate sent an email to the parties indicating that the matter was ready to be called on and asking the parties to join the hearing as a matter of priority. There has been no response to that email from my associate nor is the father present at the hearing today.
As I indicated earlier, the father has filed an affidavit purportedly in compliance with the orders that I made on 18 September 2024. I say purportedly because the information conveyed in the affidavit filed by the father is scant and limited.
(a)Importantly, however, the father sets out in that affidavit a couple of matters of significance. Firstly, he sets out that he has travelled to Country B in mid-2024. He also says:
32. …I am presently unable to decide the date of my return back to Australia, given my father's present state in medical condition and his care being their only child…
(b)The father attaches to that affidavit what he purports to be a medical certificate in relation to his father.
(c)The father goes on to depose that he is currently not able to seek legal advice and representation.
(d)The father attaches to his affidavit a copy of a document he has obtained reportedly from the Department of Foreign Affairs and Trade, setting out his visa conditions, which indicate that he has a visa providing “provisional residency” and that the same expires in 2044 and allows the father multiple entries to and from Australia during the validity of his visa.
I made it clear to the parties on the last occasion that I wanted to list the matter for final hearing because it was in the child's best interests that the proceedings be brought to a conclusion. Despite me stressing these matters to the parties on the last occasion, the father has filed material that puts beyond doubt that the proceedings are not in a position to proceed to trial. They are not in a position to proceed to trial because the father is not present in Australia, and he is unable to give any indication to the Court of when he might be in a position to return to Australia.
That circumstance is entirely unsatisfactory. It is not in this child's best interests, nor any child's best interests, that proceedings be protracted and drawn out inordinately and indefinitely.
It is the father's application for parenting orders. He is not pursuing his application in any meaningful way, and it is for all of the reasons that I have identified that I have come to the view that he is not pursuing these proceedings with due diligence. In all of those circumstances, I have come to the considered view that it is appropriate that the Court strike out the father's Application for Final Orders filed on 30 November 2021.
I am conscious that the mother has a Response to Final Orders, which was amended and filed on 4 August 2023. I am satisfied that the father is on notice of the orders sought by the mother, first and foremost, because he has been participating in the proceedings until now, but secondly, and importantly, because I drew the response and the orders pursued by the mother to the father's attention in the orders that I made at the last hearing on 18 September 2024.
I propose to make orders as sought by the mother in her Amended Response to Final Orders filed on 4 August 2023.
Those orders are that the mother have sole parental responsibility for the child, that the child live with the mother, that there be a declaratory order that there be no time spending between the child and the father and that in addition, there be a range of orders, pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), restraining the father from a range of acts in relation to the mother and the child - being orders for the personal protection of the mother and the child.
It is my view that the orders proposed by the mother are in the child's best interests. As I indicated earlier, I have had regard to the report of Mr C of 15 December 2022. I am also conscious that there are a myriad of very significant risk issues that attach to the father. As I indicated earlier, there is no doubt that the mother has been the victim of family violence perpetrated by the father. I am mindful that aside from the conviction to which the father entered a guilty plea, there are a range of very serious and significant allegations that the mother makes in relation to family violence perpetrated by the father towards her.
The family violence takes the form of extreme physical violence, together with coercive and controlling behaviour, together with behaviour that has isolated the mother. All of these allegations fall within the definition in s 4AB of the Act. I am conscious that aside from the matters to which the father has pleaded guilty, no findings, at this stage, have been made in relation to the balance of allegations made by the mother. Regardless of these lack of findings, the fact that the father has entered a guilty plea in relation to at least one charge of physical abuse of the mother, satisfies me that the father has perpetrated significant family violence against the mother.
The mother has been this child's primary carer since her birth. While there were short periods of time when the father spent time with the child, there has not been time spending now for a significant period of time.
I have had regard to s 60CC of the Act and in light of the matters set out therein, it is my considered view that it is in the child's best interests that the proceedings be finalised, that her living arrangements be secured by orders providing for the child to live with the mother.
I additionally consider it appropriate, particularly in light of the family violence to which the father has admitted and otherwise, the seriousness of the allegations made by the mother, that it is appropriate that there be orders providing for the mother to have sole parental responsibility. There is no doubt that to date, the mother has been meeting the child's needs and that she has been doing so sufficiently and appropriately.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 24 October 2024
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