Kilmartin & Porter
[2023] FedCFamC1F 57
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kilmartin & Porter [2023] FedCFamC1F 57
File number: ADC 2897 of 2018 Judgment of: KARI J Date of judgment: 28 February 2023 Catchwords: FAMILY LAW – PARENTING – Where the father was not present at the hearing – Where the matter was finalised on an undefended basis – Where the father’s counsel opposed an oral application to finalise proceedings Legislation: Family Law Act 1975 (Cth), s 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 10.26, 10.27
Division: Division 1 First Instance Number of paragraphs: 96 Date of hearing: 5 May 2022 Place: Adelaide Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Andrew Hill & Co Counsel for the Respondent: Ms Ross Solicitor for the Respondent: Pascale Legal Barristers & Solicitors Counsel for the Independent Children's Lawyer: Mr Frazer Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2897 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KILMARTIN
Applicant
AND: MS PORTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.That the mother shall have sole parental responsibility of the child X (born 2016) (“the child”).
2.That the child live with the mother.
3.That the father be restrained and an injunction be granted restraining the father from:
(a)contacting the mother directly or indirectly;
(b)removing the child from the mother’s care, or the care of any person into whose control the mother has placed the children or the children’s place of education or permitting any other person to do these things.
4.That the appointment of the Independent Children’s Lawyer be discharged.
5.That the proceedings otherwise 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).
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 Kilmartin & Porter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
PREAMBLE
These proceeding relate to the parties’ child X (born 2016).
While the proceedings have been before the Court since their inception on 18 July 2018 the issue for present purposes is that which arose on the application of the mother at a hearing on 5 May 2022 for the proceedings to be brought to their conclusion, either by listing the matter to proceed on an undefended basis or by finalising the matter that day, again on an undefended basis.
Orders were ultimately made at the hearing on 5 May 2022 to finalise the proceedings.
These are the reasons for the making of those orders. Whilst these reasons were contemporaneously drafted, by oversight the reasons were not published proximate to the hearing.
BACKGROUND
The parents of the child and their background and details are as follows.
The applicant, is the child’s father. The father was born in 1993 and at the time of the hearing he was 28 years of age.
The mother of X was born in 1995 and she is presently 27 years of age.
The parties were in a de facto relationship between 2014 and 2016.
The parties separated before their child X was born in 2016.
There is a Final Intervention Order that exists between the parents made in the Adelaide Magistrates’ Court in late 2017 naming the father as the Defendant and the mother and the child as the Protected Persons.
THE LITIGATION HISTORY
These proceedings were commenced by the father when he filed an Initiating Application in the Federal Circuit Court of Australia (as it then was) on 18 July 2018.
By that application the father sought orders which can be summarised as follows:
(1)That the parents have equal shared parental responsibility for the child;
(2)That the child live with the mother; and
(3)That the father spend regular time with the child to incorporate alternative weekends, school holidays and special occasions.
At the time that the father commenced these proceeding he deposed that following the child’s birth in 2016 and up to early 2017 he spent “short periods of time every couple of days for the first month and then short periods of time each Sunday”[1] with the child.
[1] Applicant Father’s Affidavit filed 18 July 2018, paragraph 5.
The father also deposes to there having been time spending described by the father as “several times each week”[2] between sometime in early 2017 after the making of the Interim Intervention Order and the end of the 2017 year.
[2] Applicant Father’s Affidavit filed 18 July 2018, paragraph 10.
The father thereafter deposed that he has not seen or spent time with the child since that time.
When the proceedings first came before the Court before a registrar on 11 September 2018 orders were made by consent in the following terms:
(1)That the child live with the mother;
(2)That the mother file responding documents within 7 days;
(3)That the parties participate in an 11F process with a Family Consultant of the Court; and
(4)That the proceedings be adjourned for further directions to 23 November 2018.
The mother complied with the orders for the filing of responding documents on 19 September 2018. In those documents the mother sought final orders that provided for the child to live with her and that she have sole parental responsibility. In addition the mother sought orders that the father spend time with the child “as ordered by this Honourable Court”.[3]
[3] Respondent Mother’s Response to Initiating Application, paragraph 3.
In the same document the mother also sought a raft of interim parenting orders including orders that the father produce a current psychological or psychiatric report prior to spending time with the child, that he attend anger management counselling and parenting courses, that he undergo supervised urine drug screening, and that an Independent Children’s Lawyer be appointed.
In her affidavit in support, the mother deposed that she had bumped into the paternal grandmother at around the same time and that the paternal grandmother had disclosed to her that the father was on home detention bail and was facing serious charges in relation to his former partner “Ms B”.
The mother went on to depose that she ultimately became aware that the father had been charged with serious offences in relation to Ms B, who she was aware was now residing interstate for safety reasons related to the father.
Significantly, the mother confirmed that which the father had asserted, namely that he had not spent time with the child since New Year’s Eve of 2017. She however deposed that the father last saw the child in early 2018 when he approached the mother at the child’s sports lesson, but that he left the facility without further incident after being asked to leave by the maternal grandmother who was also present.
Significantly, the mother annexed to her Affidavit of 19 September 2018 the statement that had been given by the father’s then estranged partner Ms B for the purposes of the criminal charges the father was then facing in relation to her.
On 22 November 2018, the father filed an Affidavit responding to the allegations made by the mother. While the father admitted that he and the mother had a volatile relationship which included heated arguments he denied any allegations of physical violence, he denied that he was a prolific taker of drugs together with the taking of any other illicit substances or abuse of prescription medication but he admitted taking prohibited substances during the relationship.
So far as the allegations in relation to Ms B, the father deposed that he had been in a relationship with her for a brief period of approximately two weeks. He admitted that he had been charged with a number of offences and that he had been on home detention bail in relation to those charges. The father however denied the allegations that had been made by Ms B but confirmed that there was an Intervention Order naming him as the Defendant and Ms B as the Protected Person, which he deposed he had consented to whilst denying the allegations that had been made by her.
The father otherwise denied the mother’s allegation that he had been diagnosed with mental health conditions and indicated that he was prepared to attend any parenting course or courses relating to anger management as ordered by the Court.
The father additionally deposed that he would consent to random urine analysis testing and an injunction restraining him from consuming illicit substances 24 hours prior to and during any time with the child.
Ultimately the father’s position and pathway forward in the matter as set out in that Affidavit was that he spend supervised time with the child with such time supervised either by the paternal grandfather or at the C Service Centre.
The matter then came before Judge Mead as she then was, on 23 November 2018. On that day the Court made the following orders:
1.That on or before 21 December 2018 the father obtain, file and serve a report from his general practitioner as to the history of the father’s attendance on him, the issues upon presentation, any current treatment or medications prescribed, the current state of the father’s mental health and recommendations as to ongoing treatment including medication.
2.That the father forthwith us his best endeavours to obtain a mental health care plan for the purpose of attending upon an expert in anger management at [D Agency] and that prior to any attendance upon such expert the father’s solicitor provide to the expert copies of the father’s affidavits filed 18 July 2018 and 22 November 2018 and that of the mother filed 10 September 2018.
3.The matter be adjourned to 11 January 2019 at 2:15pm to enable the Court to consider the report from the father’s general practitioner prior to the commencement of the supervised time referred to in the consent order made herein today.
On the same day, the Court made the following further orders:
THE COURT ORDERS BY CONSENT:
1.That the child [X] (sic) born […] 2016 do live with the mother.
DURING THE PERIOD THE ADJOURNMENT IT IS ORDERED:
2.That the father do submit to two random supervised drug urine and alcohol screen tests within 24-hours of receiving a written request from the mother’s solicitor for him to do so, with the test to be performed in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 and with the father to bear the sole cost of the test and to release a copy of the test results to the mother’s solicitors within seven days of the father receiving the results.
3.That the parties do enrol within the next seven days at the [C Service] Centre.
4.That the father spend time with the said child on six occasions supervised at the [C Service] Centre at times and on occasions as organised by the [C Service] Centre.
5.That the father cause a report to be prepared by the [C Service] Centre with respect to the time spending and to cause it to be before the court on the next adjourned occasion.
6.That the mother and father do enrol in a Circle of Security parenting course at the earliest possible occasion during the period the adjournment.
By the time of the hearing on 11 January 2019 the father had not complied with the order that had been made on 23 November 2018 for the filing of a report from his General Practitioner.
An Affidavit was however filed by the father on 14 January 2019. It is not clear to the Court whether that Affidavit was before Mead J for the purposes of the hearing on 11 January 2019.
Be that as it may, the Affidavit filed by the father on 14 January 2019 had annexed to it a report which had been prepared by the father’s treating practitioner, together with a report from a Dr E, a consultant psychiatrist to whom the father had been referred sometime prior to mid-2017 being the date of the letter of report from Dr E.
Significantly those documents identified among other things, concerns in relation to the father’s mental health, anger outbursts together with the use of recreational drugs, which had been picked up on urine drug screen testing. The father’s GP Dr F concluded as follows:
“[Mr Kilmartin] is a young patient who can be impulsive at times. He has reasonable rapport with myself and I have adopted a harm minimisation strategy for his management. I have explained the risk & benefits of each medication he uses. If we withhold certain treatment which [Mr Kilmartin] thinks are helping him he can get his treatment via alternative means and this may put him in further harms’ way. He may not always be forthcoming with his illicit drug use, but will tell me when he needs too. The recommendation for [Mr Kilmartin] at present is to avoid illicit substance use, keep to prescribed doses and continue to engage with the health care system.”
The report of Dr E identified among other things, that in Dr E’s opinion the father was suffering from a number of mental health conditions.
Dr E also identified the following:
“[Mr Kilmartin] was uninterested in psychology as an option of treatment for him.
On balance, [Mr Kilmartin] should benefit from ongoing formal psychotherapy for his anxiety symptoms and personality difficulties where cognitive behavioural, psychodynamic and interpersonal therapy techniques are all likely to be beneficial. He could be referred by yourself under MH care plan…
… You may also consider a referral to the [G Centre] at [H Medical Centre], for [Mr Kilmartin’s] anxiety and mood symptoms the ([G Centre]) is a […] health service that treats anxiety disorders, depression and other mental health conditions. The [G Centre] team offers a range of evidence based therapies including cognitive behavioural therapy (CBT) to adults aged 18 to 65.
I would recommend re-referral if [Mr Kilmartin] does not maintain a level of stability and functioning in his life and does not derive benefits from the medication changes and psychosocial measures outlined above.
At the hearing on 11 January 2019 Mead J made the following orders:
1.Directions and interim issues to enable the Court to consider a brief letter of report from [D Agency] prior to the commencement of supervised time referred to in the consent order made herein on 23 November 2018 be adjourned to 4:15pm on 4 March 2019.
2.That the father forthwith do all things necessary to arrange to attend on [Mr J] or such other expert with specialty in issues of anger management on two occasions during [early] 2019 NOTING the terms of paragraph 2 of the order of 23 November 2018 and the obtaining since then by the father of a mental health plan and tentative appointment arrangments [sic].
3.That the father and/or his solicitors ensure that prior to the first such appointment the relevant expert be provided with the documents referred to in paragraph 2 of the non-consent order of 23 November 2018 together with the father’s affidavit sworn 10 January 2019 and to be filed forthwith.
4.That immediately following upon the second session the father’s solicitors obtain a brief letter of report from the relevant expert as to the dates of the father’s attendances on the expert, the issues canvassed during the appointments, the extent of the father’s engagement with the expert and grasp of the issues discussed and recommendations of the expert as to future appointments.
5.That during the period of the adjournment paragraph 2 of the non-consent order of 23 November 2018 continue in full force and effect but only as to one random drug test.
6.That during the period of the adjournment the father file and serve a one page affidavit annexing his mental health plan.
Following the hearing on 11 January 2019 the father filed a raft of documents annexed to affidavits that he had sworn including:
(1)A Mental Health Care Plan which had been signed by Dr F in late 2018;
(2)A report from Mr J from D Agency.
The father terminated his involvement with Mr J after two sessions.
The matter then came before me when I was a judge of the Federal Circuit Court of Australia on 26 April 2019, significantly since that time the proceedings have otherwise been solely heard either by me as a judge of the Federal Circuit Court of Australia or a Justice of the Federal Circuit and Family Court of Australia, Division 1 or otherwise a registrar.
Prior to the adjourned hearing the mother’s solicitors filed an affidavit on 24 April 2019 deposing to circumstances which had taken place relating to the orders made on 23 November 2019, for the father to undertake urine analysis drug testing.
From that affidavit the Court understands that requests were made for the father to undergo urine analysis testing by correspondence sent to his solicitor on each 20 December 2018, 21 January 2019, 13 February 2019 and 24 April 2019.
None of those requests for urine analysis testing were ever complied with by the father.
At the hearing on 26 April 2019 orders were made for the father to commence time spending with the child at the C Service Centre.
However certain matters were to be attended to by the father before that time commenced.
The orders that were made were in the following terms:
1.That the father spend time with the child [X] (sic) born […] 2016 for six (6) visits at the [C Service] Centre with such time to be supervised by the Centre and the father to provide a report in relation to that time at the end of the six (6) visits.
2.The commencement of the time in paragraph 1 be subject to the following conditions:-
(a)The father provide on Affidavit an account of his motor vehicle accident along with a copy of the Intervention Order in relation to [Ms B] and the Court Record in respect of the same.
(b)The father provide any drug tests from his general practitioner in the last twelve (12) months and continue to provide drug tests on a monthly basis NOTING THAT such testing is conducted weekly.
(c)The father engage with and attend all recommended appointments and provide a report from such mental health professional in relation to the issues raised in [Dr J’s] report dated 22 February 2019 with the said report of [Dr J] and documents filed in these proceedings to be provided to the mental health practitioner by the solicitors for the father.
3.The father be restrained, and an injunction is hereby granted restraining him from taking any non-prescription drug or alcohol in the twelve (12) hours preceding and during any time with the said child.
4.The father file and serve a copy of the report referred to in paragraph 2(c) herein within seven (7) days of receipt of same.
5.That this matter be adjourned for Directions on 10 December 2019 at 9.30am.
The proceedings then next came back before the Court on 10 December 2019. The reason for such a lengthy adjournment between the hearing of 26 April 2019 and 10 December 2019 was on the expectation that the father would have complied with paragraph 2 of the orders made on 26 April 2019 for the filing of various documents and that in addition the father’s time at the C Service Centre would have commenced and a report would be available.
Unfortunately, when the matter came before the Court on 10 December 2019 the father had not complied with paragraph 2 of the orders made on 26 April 2019 and accordingly his time spending with the child at C Service Centre had not commenced.
As a consequence, shortly prior to the hearing on 10 December 2019 the mother filed an Application in a Case on 4 December 2019 in which she sought orders to discharge paragraph 1 of the orders made on 26 April 2019 and significantly that the father’s Initiating Application filed on 18 July 2018 be dismissed.
At the hearing on 10 December 2019 the Court made orders for the father to file responding documents in relation to the mother’s Application in a Proceeding and thereafter listed the application for an Interim Hearing on 13 February 2020.
The father complied with the Court order for the filing of documents in response to the mother’s Application in a Case on 19 December 2019. From that affidavit the Court understands that at that juncture:
(1)The father had been charged with, but was contesting a charge of driving under the influence of a drug together with another driving charge.
(2)The father had undertaken urine analysis testing on 26 April 2019 which detected prohibited substances.
(3)That the father had undertaken urine analysis testing on 3 September 2018 which was negative for all substances other than one prohibited substance.
(4)That the father had undertaken urine analysis testing on 2 November 2018 which was positive for prohibited substances.
(5)The father had undertaken urine analysis testing on 14 February 2019 that was positive for prohibited substances.
(6)That the father had undertaken urine analysis drug screening on 17 May 2019 which was positive for prohibited substances.
(7)That the father had undertaken urine analysis drug testing on 24 May 2019 which was positive for prohibited substances.
(8)That the father had undertaken urine analysis drug testing on 23 August 2019 which was positive for prohibited substances.
(9)That the father had undertaken urine analysis drug testing on 16 December 2019 which was positive for prohibited substances.
(10)The affidavit further identified that the father had been referred pursuant to a further Mental Health Care Plan for four psychological sessions.
(11)That a request had been made of Mr K of L Psychology Services to prepare a report for an independent psychological assessment noting that the father was scheduled to have a first appointment in early 2020.
(12)The report from Mr K was ultimately prepared on 16 January 2020 and was filed on 24 January 2020. In that report Mr K concluded that that his provision diagnosis was that the father had anxiety mental health disorder, that he would benefit from cognitive behavioural in approach including six sessions with a review.
The matter next came before the Court on 13 February 2020. At that hearing:
(1)An Independent Children's Lawyer was appointed.
(2)The proceedings were adjourned for a Call-over and possible Trial listing to 26 August 2020.
(3)A report pursuant to S62G was ordered to be prepared by a Family Consultant of the Court on the basis that there be no observed interactions between the father and the child noting that the mother opposed any introduction of the father to the child in all of the circumstances.
The report of the Family Consultant was ultimately prepared by Ms M and is dated 21 August 2020. In the lead up to that assessment and report process, documents had been produced pursuant to orders that had been made by the Court directed to SAPOL pursuant to s 69ZW of the Family Law Act in relation to the father’s criminal records.
The documents that were produced pursuant to the orders made pursuant to s 69ZW were annexed to an affidavit filed by the mother’s solicitors on 30 June 2020, and included documents pertaining to the allegations of family violence made by the mother and her reports to police in that regard, documents pertaining to the allegations of family violence made by Ms B and documents pertaining to allegations of verbal abuse made by a third party Ms N.
In the Family Report dated 21 August 2020, Ms M raised significant concerns in relation to the father.
Significantly Ms M recorded the following:
(1)“It remains the view of the writer that the presentation of the father at interview, both by the unsatisfactory performance of the mobile phone communication, and by his personal presentation which suggests that he was either effected by mental health issues or drugs, may have been an attempt to only provide information of which he was in control.”
(2)“The father appears not appreciate that parents learn the majority of their parenting practices from their own parents until they learn, in maturity, what has been good and what they need to change for the benefit of their child.”
(3)“By avoiding parenting training, by his unwillingness or inability to undertake therapy/training, he is not seeking to provide the best care for his child.”
(4)“The father does not appear to have demonstrated his commitment to the welfare of his child. While he has no communication with the mother, and is unaware of what [X’s] needs are and what progress [X] has made during the time that he has been separated from him, he appears to have not furthered his knowledge and skills in relation to parenting, or made progress in his counselling or therapy.”
(5)“It is unclear how the father is willing or able to manage the challenges of a child on the autism spectrum. It is unclear whether with the challenges the father has had in his life, and his current challenges, that positive management and role-modelling by him towards [X] is likely at least in the short term.”
(6)“For this to change, the father would need to undertake and complete the recommended parenting programs, undertake and complete a therapeutic program such as the one offered by [Mr J]. He would also need to ensure that he has changed his behaviour in relation to his criminal history, and shown a pattern of being drug free.”
Ultimately, Ms M recommended that any time spending between the father and the child be delayed until such time that the father has completed the O Support Service and Circle of Security parenting programs, Anger Management therapy with Mr J to Mr J’s satisfaction, that he undertake a psychiatric assessment, that he attend for an assessment with P Addiction Services, that he engage with Autism SA in understanding the child’s particular needs and that there be some form of community based reunification therapy.
Following the release of Ms M’s report, and at the Trial Call-over hearing on 26 August 2020 the Court made orders listing the matter for Trial on 16 March 2021, together with procedural orders to ensure that trial listing would proceed.
In addition, the Court made an order that no later than 30 October 2020 the father file and serve a report from an independent psychiatrist together with a report from P Addiction Services.
The proceedings were otherwise adjourned for a further mention hearing on 9 December 2020 to consider a possible transfer of the matter to the Family Court of Australia.
At the hearing on 9 December 2020, the Court transferred the matter to the Family Court of Australia. At that hearing the Court was informed that the father had complied with the orders made for him to attend an independent psychiatrist and for some counselling with addiction services (‘P Addiction Services’), however reports in relation to those attendances were not yet before the Court as they had been filed out of hours the night before the hearing and had not yet made the court file.
The court however understands from a report produced by Dr Q on 4 December 2020, that the father had consulted on Dr Q in late 2020. Significantly, the court also understands that the father had failed to keep his original appointment with Dr Q a short time earlier, in 2020.
In his report Dr Q variously identified:
(1)That the father is using “a lot of medication”.
(2)That the father’s “pattern of drug use suggests that he is using the medication to numb his emotional experience” and that in his view the father was using prescription medication for its mood altering affect as the medication has a mood numbing effect.
(3)That the Court obtain a report from the father’s treating psychologist Mr K together with a report from his treating psychiatrist.
(4)That Dr Q believed that the appropriate diagnosis of the father was that he has anti-social personality traits and a substance use disorder in the form of prescription medications.
(5)That in his opinion “as a result of his personality and medication use, he is at increased risk of harm to himself” but ultimately concluded that the risk of harm to self was low. Dr Q however did go on to comment in the following terms:
“deliberate harm of one’s own child, is fortunately an uncommon event, but is clearly very tragic in every instance. [Mr Kilmartin] has the type of personality that would place him at increased risk of such an outcome but, as in my reasoning about his suicide risk, similar would apply, as he reports no history of violence (although that is a matter of evidence)”.
(6)Dr Q ultimately recommended that any ongoing treatment of the father include “developing psychological skills to manage normal emotions without the use of medications. It would be a challenge for treating practitioners to manage [Mr Kilmartin], who would be very insistent about taking medication.
(7)The prognosis is that there is unlikely to be any significant change in his personality or behaviour in the future.
(8)[Mr Kilmartin] disputes an anger management problem, however such problems would be commonly found in people with his personality and medication use”.
The father has also filed a report from P Addiction Services dated 8 December 2020. That report set out that the father had attended four appointments with P Addiction Services in late 2020.
The report identified that during his appointments work had been focussed on abstinence from various drugs.
The report indicated that the father had reported at his most recent appointment in late 2020 that he had been abstinent from prescription medication use for 15 days and that his volume and frequency of prohibited substance use had decreased, however urine analysis testing was yet to confirm the father’s assertions in that regard.
When the matter came before the Court on 9 December 2020 the proceedings were transferred to the Family Court of Australia for a trial listing on a date to be fixed. While the matter came before a registrar in the Family Court of Australia following its transfer, it ultimately was referred to the pool of matters awaiting trial.
Orders were made on 8 February 2022 listing the matter for a First Day Hearing on 28 February 2022.
Between the hearing on 9 December 2020 and the First Day Hearing on 28 February 2022, no further documents were filed.
THE HEARING ON 28 FEBRUARY 2022
Significantly, when the matter came before the Court for the First Day Hearing on 28 February 2022, the mother made an oral application for the proceedings to either be finalised or that the matter be listed for trial on an undefended basis.
The main basis for the making of that application by the mother was that in her submission nothing had occurred in the proceedings since the documents filed by the father on 8 December 2020 and in particular there was uncertainty as to what (if anything) the father had done to address the concerns raised in the report of Ms M, the report of Dr Q and the report of P Addiction Services to which previous reference had been made.
In addition, there remained a lack of clarity at the mother’s end as to what (if any) further criminal charges had been laid against the father and/or the resolution of any criminal charges.
At the hearing on 28 February 2022, the Court made a raft of orders essentially to give the father a chance to put further information before the Court, rather than finalising the matter as sought by the mother that day.
The particular orders made by the Court on 28 February 2022 were as follows:
1.That no later than 4.00pm on 28 March 2022 the father do file and serve any Affidavit that he intends to rely on to update the court as to how he has addressed the risk factors that have been identified.
2.That during the period of the adjournment and no later than 15 April 2022 the father do make an application for legal aid for trial funding and be in a position to advise the court at the adjourned hearing as to the outcome of such application.
3.That the court make an enquiry with the co-located SAPOL officer and upon receipt of the same make an order in chambers releasing a copy of any response to the parties.
4.That the court give consideration to making a S69ZW order directed to SAPOL and/or giving leave to the Independent Children's Lawyer to issue a subpoena to SAPOL in chambers following the release of the response from the co–located SAPOL officer.
5.That the proceedings be adjourned for Mention only to 5 May 2022 at 10.30am (1 hour allowed) NOTING that the mother is likely to revive her application referred to in the notations to these orders with such hearing to be conducted on a face to face basis.
THE HEARING ON 5 MAY 2022
Unfortunately, the father did not comply with the orders made on 28 February 2022 and in particular he did not comply with paragraph 1 of the order that was made.
The father did however file an Affidavit at 3.24pm on 4 May 2022 being the day prior to the adjourned hearing. That Affidavit had annexed to it a raft of historical records that it appears the father and/or his solicitors had obtained. Those documents relate to appointments attended upon by the father between 2017 and approximately late 2021.
While the Affidavit filed by the father on 4 May 2022 presumably purports to be compliance with the orders made on 28 February 2022, it cannot be said that the Affidavit satisfied the obligations created by the order.
As a consequence at the hearing on 5 May 2022 the mother re-agitated her application that the proceedings be concluded.
That application was opposed by the father’s counsel.
It is significant to note however that the father was not present at the hearing before the Court.
More importantly arrangements were made between the father’s counsel and the Court prior to the matter being called on for the father to participate in the hearing virtually.
The father however again did not participate.
The father’s counsel variously submitted in answer to questions from the bench that the father had not engaged with his solicitors between the hearing on 28 February 2022 and the hearing on 5 May 2022 save and except as follows:
(1)That an appointment had been made for the father to attend his solicitors on 23 March 2022 but the father did not attend that appointment;
(2)That the father did not see his solicitor until 4 May 2022.
All of those recent events are not insignificant in the context of the history of these proceeding.
The mother’s position put quite simply is that the proceedings should be brought to a conclusion because the father has not actively engaged in the litigation, he has not complied and/or complied late with various orders made in the proceedings. More importantly that since the release of Ms M’s report the father has done nothing to allay the Court’s concerns that he presents a risk and indeed an unacceptable risk of harm to the child.
The mother’s application for the proceedings to be finalised was supported by the Independent Children's Lawyer.
In particular the Independent Children's Lawyer referred the Court to rules 10.26 and 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which provide as follows:
10.26 When a party is in default
(1)For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
(a) comply with an order of the court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Division 6.2.2; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(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.
10.27Orders on default
(1) If an applicant is in default, the court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time referred to in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(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 all of the circumstances in these proceedings as identified in these reasons, there is some significant merit in the Court bringing the proceedings to a conclusion.
The concerns raised in all of the documents before the Court in relation to the father, his illicit drug use and the potential risk that he poses to the child as a result of a range of factors, are all ones which are highly concerning for the Court.
More importantly, it would appear that the father has done very little to address the concerns that have been raised.
The father’s failure to comply with orders of the Court at this juncture and given the history of the matter, are ones which are persuasive in the determination to bring these proceedings to a conclusion.
In doing so, however the Court must be satisfied that any orders that are to be made in relation to the child are in the child’s best interests.
At this juncture the Court is satisfied that it is in this child’s best interests to continue to live with the mother. This is particularly so, when regard is had to the fact that the father’s own application before the Court has always been that the child continue to live primarily with the mother, and orders were made by consent to that effect from the inception of these proceedings on 11 September 2018.
Equally and in circumstances were the Court must have some serious concerns that the father presents a risk and indeed an unacceptable risk to the child as a result of the combination of the factors discussed in these reasons, it would appear at this stage that it is appropriate that there be no time spending between the father and the child.
As appropriately identified by both counsel for the mother and the Independent Children's Lawyer at the hearing on 5 May 2022, if at some point in the future the father is able to satisfy the Court that he has addressed the myriad of risk factors which have been identified, then there is nothing to prevent him bringing further proceedings before the Court.
At this juncture however the Court must have some concerns as to the ability of the mother to continue to meet the child’s needs while these proceedings continue to hang over her head with little engagement by the father in pursuing his application.
Accordingly and for all of the reasons identified the Court is satisfied that it is appropriate to conclude the proceedings and to make those orders as sought by the mother and supported by the Independent Children’s Lawyer.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 28 February 2023
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