Keane & Keane
[2023] FedCFamC1F 177
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keane & Keane [2023] FedCFamC1F 177
File number: LNC 306 of 2018 Judgment of: MCGUIRE J Date of judgment: 8 March 2023 Catchwords: FAMILY LAW – PARENTING- Application by father that the child live with him – that the father have sole parental responsibility for the child – that the child spend supervised time with the mother – Order that father have sole parental responsibility for the child – that the child live with the father and spend supervised time with the mother at a Children’s Contact Centre – Specific Issues Orders - Injunctive Orders Legislation: Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC(2) and (3) Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 8 March 2023 Place: Hobart Counsel for the Applicant: Ms Higgens Solicitor for the Applicant: Bishops Barristers & Solicitors Solicitor for the Respondent: Litigant in person (did not appear) Counsel for the Independent Children's Lawyer: Mr Murray Solicitor for the Independent Children's Lawyer: Murray & Associates ORDERS
LNC 306 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KEANE
Applicant
AND: MS KEANE
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
8 MARCH 2023
THE COURT ORDERS THAT:
1.These proceedings be heard undefended of the respondent mother Ms Keane (‘the mother’).
2.All extant orders in respect of the child X born 2016 (‘the child’) be and are hereby discharged.
3.Mr Keane (‘the father’) have sole parental responsibility for the child.
4.The child live with the father.
5.The child spend supervised time with the mother on a fully supervised basis at the B Contact Centre as agreed between the parties or as ordered by a competent court.
6.That for the purpose of order 5 above, each party shall:
(a)contact the Centre within seven (7) days and arrange an appointment for assessment for suitability for supervised time;
(b)attend the assessment;
(c)comply with any appointments made by the Centre for supervised time;
(d)comply with all reasonable rules of the Centre; and
(e)comply with all reasonable requests or directions of the staff of the Centre.
7.The father keep the mother informed as to all significant matters concerning the child, including but not limited to matters concerning significant health/medical issues and education by providing such information to the mother by way of email by such an email address as the mother provides from time to time and the evidence of forwarding such an email shall be deemed evidence of provision by the father to the mother of the information contained therein.
8.The father be permitted to enrol the child at VV School.
9.The mother be and is hereby restrained by herself, servants or agents from attending at or within the curtilage of the child’s school.
10.Neither parent shall abuse, demean or belittle the other party or members of the other party’s extended family in the presence or the hearing of the child.
11.Both parties hereby be restrained from directly or indirectly communicating with the child, by any means, information as to the concerns of that party as to criminal and/or family violence and/or behaviour of the other party which occurred or is alleged to have occurred prior to the date of this Orders.
12.Each party shall keep the other informed as soon as practicable of any significant health or educational issues which impacts on the child.
13.In the event of a medical emergency with regard to the child, the parent who has first knowledge of it shall forthwith notify the other parent.
14.Each party shall keep the other informed at all times as to their current address and telephone number.
15.This Order acts as an authority for any school to which the child attends from time to time to provide information to both the mother by way of email including but not limited to school reports, newsletters, school photograph forms and updates as would ordinarily be provided to a parent.
16.The father agrees to provide at least one (1) photograph of the child every three (3) months to the mother in the event the mother’s time with the child occurs at a frequency less than monthly, by way of email by such an email address as the mother provides from time to time and the evidence of forwarding such an email shall be deemed evidence of provision by the father to the mother.
17.The parents will communicate with each other in relation to the child via email.
18.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED
19.A transcript of these reasons for orders be taken out, settled and placed on the Court file with copies to be provided to the solicitors for the father and the Independent Children’s Lawyer.
20.The solicitors for father serve a copy of these orders on the mother by ordinary pre-paid address to her last known postal address and also by email.
21.The appointment of the Independent Children’s Lawyer be extended for the period of sixty (60) days.
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 of Keane & Keane has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCGUIRE J:
INTRODUCTION
These are parenting proceedings in respect of the parties’ one child, X, born 2016, aged six years (‘X’). I am asked to proceed undefended the mother in these matters. I have acceded to that application where the trial has been listed for some considerable period of time, where Ms Keane (‘the mother’) has not complied with procedural orders for the filing of affidavits, and where Mr Keane (‘the father’) has complied with such orders and where the mother has not attended at the listing of this matter for trial today. The record will show that the matter was called just after 10.00am. The mother did not answer that call.
The matter was stood down for the benefit of the mother and the matter was called again near 10.30am. She has not attended and, indeed, the Independent Children’s Lawyer (‘ICL’) received correspondence just yesterday which was indicative of the fact that she might not attend at Court.
A document in similar terms has come to the Court, which indicates that the mother did not intend to take part in the proceedings. Consequently, the matter will proceed undefended the mother. I have received lengthy and helpful submissions from counsel for the father and the ICL and I adopt in full those submissions and agree with the contents of the submissions. I also have before me part of the Court file and read into evidence the following:
(1)The Judgment and Orders of his Honour, Justice McEvoy, which I will refer to again shortly, from 8 May 2020;
(2)The Reasons for Judgment in an unsuccessful appeal argued by the mother in January 2021;
(3)The Judgment and Orders of myself in respect of a Contravention Application from 3 November 2021;
(4)A Child Impact Report from Family Consultant Ms AE;[1]
(5)A Memorandum to the Court[2] from Family Consultant Ms AF, which related to direct observations from that Family Consultant who was asked by me to attend and assist at changeovers;
(6)A Child Impact Report[3] by Family Consultant Ms AF;
(7)The trial affidavit of the father;[4]
(8)An affidavit of Ms AG,[5] the father’s sister; and
(9)An affidavit of Dr UU,[6] who is the father’s General Practitioner who gives a short update on the father’s current health.
[1] Dated 31 May 2022.
[2] Dated 8 June 2022.
[3] 17 November 2022.
[4] Filed the 17 February 2023.
[5] Filed the 17 February 2023.
[6] Filed 2 March 2023.
I also read into evidence an affidavit of Ms AH[7] filed by the Independent Children’s Lawyer. Ms AH is the Principal of the AJ School where X is enrolled in the infant school division of that school.
[7] Filed 6 March 2023.
BACKGROUND
The background of this matter is nothing short of tragic and it bears some emphasis. The mother is of Country C origin. The parties met, on my understanding, when the paternal grandmother was a volunteer in a Country C refugee camp. The parties met in those circumstances, came to Australia and soon after X was brought into this world. The relationship was not a successful one and I have been asked to, and have just read into evidence, in fact, the Reasons of his Honour Justice McEvoy from a trial in May 2019 which sets out that history and where his Honour, after some lengthy consideration and considerable evidence, made orders that X live with the mother, but spend time with the father. That latter order was contrary to the argument put by the mother at the time, on my understanding. His Honour’s Reasons make some interesting, at best, reading in respect of the circumstances of X’s parents, where the mother argued vigorously matters of asserted family violence and has maintained those assertions during the time that she has participated in these proceedings.
It followed that despite his Honour’s informed and considered Reasons, the unsuccessful Appeal prosecuted by the mother, that his Honour’s orders which provided inter alia for X to spend time with the father were effectively not complied with. I assumed carriage of this matter from his Honour. I, myself, was frequently called upon to determine Contravention Applications brought by the father where the mother, from my recollection, took such opportunity to reargue essentially the argument that she raised at the original trial. In difficult circumstances in about July of 2022, and in the face of repeated contraventions and an unwillingness by the mother to accept or adhere to Court orders, I made an interim order that X live with the father.
The result of that has been, perhaps, not unexpected, but similarly tragic in that the mother has effectively not taken up the opportunity to spend time with X where my orders provided that such time be supervised at a Contact Centre. That is the background to me making the interim orders, but the particulars and the evidence that was before me then showed a propensity in the mother to be overly vigilant in respect of X evidenced by the material from Family Consultant Ms AF. The mother was unaccepting of X having any relationship whatsoever with the father and where despite some reservations, and the Reasons of his Honour Justice McEvoy as to the capacity of the father, I determined that it was then in X’s best interests in the interim to move to live with her father.
As I have said, the result has been, and solely by way of the mother’s choice, what seems to be a fracture in the relationship between X and the mother. Again, I adopt and accept the submissions and comments of Mr Murray, the ICL, that the mother was in every sense completely devoted to this child, if not obsessed in that devotion, to the stage that her objective insight was lacking. But the child had, obviously, attached to the mother. There was frequent evidence of that. Consequently, the situation must have been, and as candidly indicated by the father in his affidavit material, resulted in a difficult transition for both father and daughter and, obviously, for the mother.
By reason of her non-attendance at Court today, and the non-filing of documents, it appears that the mother has made a choice not to pursue a relationship with her daughter. I cannot think of a better word than tragic. It is. The father now seeks final orders that X live with him, that he have sole parental responsibility for X and that there be a door left open for X to spend time with the mother, albeit supervised. As I have just indicated, the likelihood of that happening is slim and will require a quantum leap in the psyche of the mother for that to occur. It is quite proper that the door be left open and, in fact, the orders originally sought by the father were more altruistic than that, to his great credit.
The orders that I am asked to make are parenting orders and that being the case I am to have X’s best interests as my paramount consideration pursuant to section 60CA of the Family Law Act 1975 (Cth) (‘the Act’). In determining X’s best interests I am to reference the probative material before me in the form of affidavit material, to the mandatory considerations set out in sections 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation provided at section 60B. I have read into evidence the material that is before me, which I am to reference to those sections and it comes entirely and, obviously, from the father and the ICL. Regardless of that, I am still obliged to make orders that I determine on balance, if I can balance it, that are in the child’s best interests.
Section 60CC(2)(a) provides that I am to make orders which assist X in having a meaningful relationship with each of her parents, that is, on the Full Court authorities a relationship that is prospective into the future and it is a relationship that deals with quality, not just quantity of time. Obviously, the circumstances are that X did, on all of the evidence, have an attached, dependent and supportive, in most ways, relationship with her mother. It was her primary sense of support. That has now moved to the father despite some assimilation difficulties which were understandable. The material now satisfies me that X has developed those similar attachments to her father.
There is no reason why, in fact, children should have attachments and bonds, and successful relationships with each of their parents. For a child of X’s age that requires direct contact and, as I have said, the mother has decided for reasons best known to her not to take up that opportunity. Inevitably, the nature of the relationship between X and her mother will fracture and will diminish accordingly.
The other primary consideration is that I am to make orders which protect children in respect of violence and abuse. The mother has, as I have said, consistently, in litigation which has taken place since X was one year old, focused argument on matters of family violence.
It is obvious that this was the complete focus of her argument at the trial before His Honour Justice McEvoy and on appeal and has been her argument before me. She is not here to prosecute that argument. I have read the father’s material, but I have also been appraised of the comments of Justice McEvoy in the original judgment. Suffice to say I am content on the material before me and particularly the Family Reports which are positive in respect of the father that X in no sense is placed in any position of lack of safety now in the care of the father. Noting that the father is supported by a strong family network of support, I am satisfied that he presents no risk now to X.
I have alluded to the nature of the relationship of X with the parents. It was a primary relationship with the mother. I expect that it is a developing and, hopefully, now successful relationship with the father.
X is not of an age where she would be expected to be or able to rationalise her own views and preferences as to her living arrangements, but I fully expect that she has suffered some real difficulties by the fact of, and the nature of her transition from her mother to her father, where, essentially, she has always been denied a relationship with one or other of her parents. When she lived with her mother the relationship with her father was infrequent at best with rare visits at a Contact Centre. Now she lives with her father, she has an infrequent and rare relationship with her mother. Tragic is the word that I used and I repeat it.
The capacity of the parents to attend to X’s physical, intellectual and emotional needs is very much at the crux of my determination here. It is fair to say that in the lengthy Reasons of Justice McEvoy in May 2020 his Honour maintained some concerns as to the capacity of the father in the sense of his background, maturity, skills and his general capacity to attend to X’s needs in all senses, physical and emotional. The material before me now satisfies me that the father has made significant progress in all of those areas. Again, I note he has the generous support of his extended family, but in respect of the father himself the reports of Ms AF are entirely positive and I accept that the father has the capacity to attend to X’s needs, including, given the submissions of his counsel, as to an understanding that X would benefit from a relationship with her mother.
Given the background of this matter, the five or so years of litigation, that is an altruistic, objective and positive viewpoint taken by the father. I now maintain considerable concerns as to the capacity of the mother, not the least by reason of her non-participation in this trial where previously she fought vigorously to be the primary carer of this child and she presented in many ways as a more than adequate parent. Nevertheless, she has also shown some difficulties in her capacity. She has shown a propensity to be over-vigilant, critical, accusative of the father in particular, all of which are not based on any sound corroborative foundation. I, taking into account the difficult background endured by the mother, harbour concerns as to her own emotional and psychological health.
I have dealt with matters of family violence. I have dealt with the transition and change for X to the father on all of the material before me and with some emphasis on the progress made by the father personally, and in his parenting capacity since 2020; I am persuaded that X’s best interests are served by living with the father. It is a simple process to follow that there should be an order that the father have sole parental responsibility for X. Again, he has demonstrated an increased understanding and insight into his daughter’s needs, where to the contrary the mother’s understanding of that child’s needs seem to have diminished over time and, again, I harbour some concerns as to her own mental health.
The relationship between the parties is completely dysfunctional, fractured, non-communicative and uncooperative. In all of those circumstances an order for equal shared parental responsibility would be unworkable and the father should have the benefit of an order for sole parental responsibility. The father was initially, as I have said, altruistic in the orders that he sought for X to spend time with the mother. Undoubtedly, X would prima facie benefit immensely by spending time with her mother. Nevertheless, given the history of this matter, my own observations of the mother, her lack of participation in this court case causes me to harbour concerns in respect of the workability of any “time-with” relationship for X with her mother into the future without that being properly assessed by the Court or, at the very least, objectively by the father.
As I have said, I am of the view that the father could now, perhaps unlike 2020, objectively make decisions in respect of his daughter. Put colloquially, if he is of the view that X would be safe and happy spending time with her mother, then that might be a decision he can make. Otherwise, it is open for the mother to come back to the Court if there is a change of circumstances. The only order that I make in respect of that is that X spend time with the mother on a fully supervised basis at the B Contact Service as agreed between the parties or as ordered by a competent court.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 22 March 2023
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