Kline & Anthony
[2022] FedCFamC2F 734
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kline & Anthony [2022] FedCFamC2F 734
File number(s): MLC 725 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 May 2022 Catchwords: FAMILY LAW – undefended application – final parenting orders. Legislation: Family Law Act 1975 (Cth) s 60CC. Cases cited: A & Z (2006) FLC 93-257
Hiron & Tourle [2021] FCCA 1270
Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 16 May 2022 Place: Shepparton (Via Microsoft Teams) Solicitor for the Applicant: Ms Van Der Schoor Solicitor for the Respondent: No appearance ORDERS
MLC 725 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KLINE
Applicant
AND: MR ANTHONY
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 MAY 2022
THE COURT ORDERS THAT:
1.The Mother be granted leave to proceed on an undefended basis.
2.The Mother have sole parental responsibility for the children:
(a)X born in 2016; and
(b)Y born in 2018
3.The children live with the Mother.
4.The Father have no contact with the children.
5.The Father, by himself or his servants and/or agents, be restrained by injunction, pursuant to section 68B of the Family Law Act 1975 from:
(a)Save for by a lawyer or a police officer, contacting or attempting to contact the Mother or children, whether face-to-face or by any electronic means of whatsoever nature and kind;
(b)Attending at or near the respective schools/kindergarten/day-care on any school day between 8:00am and 5:00pm, or any other place where the children live or frequent from time to time;
(c)Attending at the Mother and the children's home;
(d)Remaining in the presence of the children and the Mother in the event that for any reason the Father and the children and Mother may come into contact.
6.The Mother be at liberty to provide a copy of these Orders to any of the following:
(a)Any school/kindergarten/day-care at which the children may attend from time to time
(b)Any medical professional, counsellor or other like professional the children may attend from time to time;
(c)Victoria Police and/or the State Magistrates Court; and
(d)The Department of Families, Fairness and Housing.
7.The Father be at liberty to provide a copy of the Orders to any counsellor or like health professional he may attend from time to time.
8.The solicitor for the Applicant serve a copy of these orders upon the Respondent, either in person or via registered post
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kline & Anthony has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter comes before me on the first day of the May 2022 Shepparton circuit concerning Ms Kline (‘the Mother’) and Mr Anthony (‘the Father’). The parents have two children aged 5 years old and 3 years old (‘the children’). The parties commenced cohabitation for the first time in 2014, and finally separated in June 2020. The Mother issued these proceedings on 28 January 2022.
The Father was personally served with the Mother’s original application and affidavit in support on 4 February 2022. That notified him of the first return date of the proceedings on 28 February 2022. On 28 February 2022, notwithstanding that the Father had been personally served, he did not attend the proceedings or provide any communication to the Mother's solicitor as to why he would not be attending, nor did he file any documents.
On 28 February 2022, I ordered that he file any document in response to the allegations the Mother made by 28 March 2022. That order together with the Mother's amended application was served personally on the Father on 12 April 2022. The orders of 28 February 2022 adjourned the matter for hearing to this circuit. The amendment in the amended application provided that the Mother sought a new order that the Mother be granted leave to proceed on an undefended basis.
The background is that the Mother alleges between 2014 and 2020 she was subjected to very substantial and considerable violence at the hands of the Father, including in the presence of the children.
The first question I must determine is whether I should proceed undefended as the Mother seeks. The Father was served personally with the originating documents some 18 months after the parties separated, and then was served with my order of 28 February 2022 and the further amended application on 12 April 2022. I am satisfied that the Father is well and truly on notice of these proceedings and has chosen not to participate. In those circumstances, it is sadly appropriate that the matter proceed without involvement of the Father and proceed undefended.
I place in evidence the section 67Z response of the department of Families, Fairness and Housing (Child Protection) dated 24 February 2022. That document corroborates the allegations that the Mother makes in these proceedings. However, because it is merely a recording of past allegations and not any finding or investigation, I place very little weight on it. The circumstances then are that the only evidence before me is of the significant violence that the Mother has suffered at the hands of the Father and that the Father has not spent any time with the children or sought to do so since separation.
The Mother asserts, and I accept, that for a short time after separation, the Father was still talking to the children. In July of 2020, shortly after separation, the Mother invited the Father to attend a family dispute resolution conference and it was agreed that the children could spend time with the Father at B Children's Contact centre. However, following that agreement, the Mother changed her mind and the Father has not spent any time with the children at the contact centre.
In April of 2021, the Father applied for an intervention order against the Mother, and that application was dismissed.
This hearing is what is known as an undefended application. I refer to my previous decision in the matter of Hiron & Tourle [2021] FCCA 1270 at [14] below:
[14] An undefended hearing is a difficult matter. It means that there is no assistance obtained from the other side. All important aspects of the matter must be proved on admissible evidence. Ordinarily in an undefended hearing it is expected and assumed that the other side that is not participating in the hearing will have had the opportunity to look at such evidence as has been provided to them. Then the court can more readily proceed on the basis of the non appearing party having been provided with all of the evidence and draw the inference that party has chosen not to participate in the proceedings or to make any application.
The Full Court of the Family Court in A & Z (2006) FLC 93-257 set out why Family Law Act 1975 (Cth) (‘the Act’) applications cannot lead to a 'judgment by default':
[66] The term undefended proceedings was also referred to in Lanceley and Lanceley (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
…Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a 'judgment by default' in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
I must determine on the evidence before me the order that is in the best interests of the children. I take into account all of the matters under Part VII of the Family Law Act1975 (Cth). And in particular, section 60CC(1) and (2) and (2A). On the evidence before me, it is appropriate that I give greater weight to the need to protect the children from harm or abuse than to the benefit of having a continuing relationship with their father.
The Mother alleges that during the relationship, the Father had a significant consumption of alcohol, and that his violence and behaviour was considerably worse at times when drinking. The allegations of family violence include serious physical and sexual violence as well as emotional violence of threats of suicide. On the evidence I have before me, it is not appropriate that I apply the presumption of equal shared parental responsibility as there is evidence of family violence. On the evidence before me, it is in the best interests of the children that the Mother has sole parental responsibility and that the children live with the Mother. The Mother seeks, and on the evidence I have, it is appropriate that the Father have no contact with the children.
I note the Mother seeks an order that the Father be at liberty to provide a copy of these orders to any counsellor or health professional he may attend from time to time. It may be that the Father would attend a health professional which may assist him with his many problems, including his capacity for violence within an intimate relationship. I note the Father is absent, and I intend to note upon the orders the usual alert to an absent parent of the circumstances where they may be able to seek, but not necessarily obtain, a re-hearing of the matter. It may be that the Father is able to significantly change his personal circumstances, including his alcohol consumption and use of violence within a relationship such that the Court would be able to reconsider the matter in the future.
I indicated in discussion some minor amendments to the Mother’s proposed order for a section 68B injunction for the protection of the children. In circumstances where I do not know where the parties live and work, I am not prepared to make orders that prohibit them being within 100 metres or 50 metres or any other distance from each other.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 7 June 2022
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