Laguna & Keever
[2023] FedCFamC2F 1035
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laguna & Keever [2023] FedCFamC2F 1035
File number(s): MLC 6254 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 August 2023 Catchwords: FAMILY LAW – final orders – application to proceed undefended – where father failed to comply with court orders for filing material – where father did not attend court – where father was called with no answer – order for sole parental responsibility – order permitting the mother to travel internationally with the child – order for costs. Legislation: Family Law Act 1975 (Cth), ss 60CC, 69ZL, 117.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 10.26, 10.27, 15.15, 15.19.
Division: Division 2 Family Law Number of paragraphs: 36 Date of hearing: 14 August 2023 Place: Melbourne Counsel for the Applicant: Ms E. Crotty Solicitor for the Applicant: Solution Focused Separation Solicitor for the Respondent: No appearance ORDERS
MLC 6254 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LAGUNA
Applicant
AND: MR KEEVER
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 AUGUST 2023
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the child X born in 2018 (‘the child’).
2.The child live with the Mother.
3.The child spend time and communicate with the Father as agreed between the parties in writing, text message or email.
4.The Mother is solely appointed to give consent to the issue of a passport for the child under the Australian Passports Act 2005 (Cth) and for the renewal of the child’s passport at the Mother’s cost from time to time.
5.The Mother be at liberty to travel with the child outside of the Commonwealth of Australia for the purposes of holidaying.
6.For the purposes of order 5 herein, the Mother notify the Father of any intended travel in writing no less than 14 days prior to same and of the child’s return within 14 days of return.
7.Pursuant to sections 68Q and 68P of the Family Law Act 1975 (Cth) the Court declares that, to the extent that any of these orders conflict with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the inconsistency.
8.The Father pay the Mother’s costs on scale in the sum of $4,720 payable on or before 1 December 2023 with such payment to be made to the Mother’s solicitors Solution Focused Separation.
9.All extant applications are dismissed.
AND THE COURT NOTES THAT:
A.The Mother intends to travel in 2023 between September 2023 and October 2023.
B.The Father was called outside the court room at 10:13am. The Father was called by telephone on the mobile number he provided on his Notice of Address for Service filed 26 June 2023 at 10:15am and 10:21am.
C.The Father be at liberty to make an application to set aside these orders pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 within 28 days.
D.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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
The question I must answer in these proceedings is whether the Mother, Ms Laguna (‘the Mother’), of X born in 2018 (‘X’) should be permitted to travel overseas with her mother immediately or very shortly over the September/October Victorian school holidays to visit her very ill grandmother in Country B or not.
The further questions that arise in these proceedings because X’s father, Mr Keever (‘the Father’), although filing a notice of address for service and sending a long and detailed letter to the Mother’s lawyers and the Court on 21 July 2023, has not filed any documents as he was directed to do and further, has failed to appear this day.
Counsel for the Mother pressed that orders, as set out in the Mother’s initiating application, be made due to the following reasons:
·the Father is in default of compliance with the Court rules, namely to file responding material and an affidavit in support;
·the Father is in default of the order of a Judicial Registrar of 25 July 2023 that required the Father to file one consolidated affidavit to rely on at this hearing by 7 August 2023;
·the Father is in default of the order of a Judicial Registrar of 25 July 2023 that required the Father to file an outline of case by 3 August 2023;
·the Father failed to attend Court this day.
I am satisfied that the Mother’s initiating application was served on the Father and the Father is therefore aware of the orders the Mother sought on an interim and final basis. In those circumstances I am satisfied that I should proceed on an undefended basis.
I refer to the following rules of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’)
10.26 When a party is in default
…
(2)For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
…
(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.
10.27 Orders on default
…
(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.
15.15 Party's attendance
(1)Unless the court otherwise directs, a party and the party's lawyer (if any) must attend each court event.
(2) Subrule (1) does not apply to:
(a) an Application for Consent Orders; or
(b)a divorce hearing that does not require a party's attendance under the Family Law Act ; or
(c) a hearing in chambers in the absence of the parties.
15.19 Failure to attend a court event
(1)If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
(a) adjourn the court event to a specific date or generally;
(b) order that there is not to be any court event, unless:
(i) a new date for the court event is fixed; or
(ii) any other steps that the court directs are taken;
(c) if the absent party is an applicant--dismiss the application;
(d)if the absent party is a party who has made an interlocutory application--dismiss the interlocutory application;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the court thinks just.
I accept that in those circumstances it is appropriate the matter be dealt with on a final basis, notwithstanding the terms of the order of 25 July 2023 and Notation A therein that provided only the Mother’s application to travel to Country B in the September/October period be heard on an interim defended basis and the Father’s request for time with X on an interim basis be heard this day.
Within those questions is the question of whether it is appropriate to proceed in the absence of the Father. The agent solicitor for the Mother has given evidence today and satisfied me that the outline of case and the affidavit filed 7 August had been served on the Father by email. I am satisfied that the Father has had abundant opportunity to participate in the proceedings if he chose. It is not compulsory in Australia to participate in a Court case against you, save for rare circumstance. In this case, the Father has chosen not to participate and it appears, because of what, for him, are very strong reasons.
The correspondence between solicitor and the Father and his emails and text messages to the Mother demonstrate he has a strong view and belief that he is entitled to equal time with X as a matter of his right and of X’s right and that that is the starting point. The theme of his correspondence, his letter marked as exhibit M2 and his communications with the Mother, contains the theme that the Mother’s position of seeking to engage in mediation with him about when X should see her father, because it lacks an acknowledgement of the certainty of equal time, should be regarded as cruel and abusive.
It also appears that the Mother obtaining an intervention order against the Father back in June 2022 is a matter of significant upset to him. The Father is entitled to hold the opinions of the Magistrates Court and of this Court and of the State of Victoria and of the Commonwealth of Australia as he sees fit. Nonetheless, I am satisfied that he has had every opportunity to participate in these proceedings and none of the evidence of the Mother is contradicted, and I therefore accept that evidence.
The Father was born in 1976 and is now 47. The Mother was born in 1978 and is now 44. The Father has two children from a prior relationship, now aged 14 and 13 years respectively. The Mother was born in Country B and came to Australia in 2010. She became an Australian citizen in 2015. X’s parents met in 2016 and commenced to live as husband and wife, although not married to each other, in 2017. At that time, the Father’s children from a previous relationship spent time with him at his home and the Mother in these proceedings participated in their lives at that time.
X is now four and a half years old. The Father did not attend X’s birth, notwithstanding that he was X’s father and had the opportunity to do so. X’s parents separated on 4 December 2018 when the Mother took X from the home following an incident where she was satisfied that there had been serious trouble, while she was away, at the home. The Father had many reasons to be unhappy, from his perspective, with his family constellation.
On the evidence I have, it appears the Mother was both sensible and acting protectively to remove X from the home at that time, and it appears that the spend time relationship between the mother of the Father’s older children, or the parenting relationship between the mother of the Father’s older children and the Father also broke down at around that time. Final Orders were made, on an undefended basis, between the Father and the Mother of his older children in April 2019. It appears, sadly, that the Father has not been able to participate in his older children’s lives since that time.
After moving to separate accommodation with X, the Mother attempted to facilitate the Father’s relationship with X. X, of course, was merely months old at the time of separation. Whilst X was still a baby, the Father agreed to mediation proposed by X’s mother, but only if he could see X in the meantime before the mediation. When the Mother inquired of him what he had in mind and advised him that it was not her intention to exclude him from X’s life, he did not respond for many months.
Notwithstanding the poor state of the relationship and what the Mother had endured during the relationship, she facilitated the Father seeing X on a few occasions in 2019, but in her presence. The last time that occurred was in December 2019. The Mother cannot have been implacably opposed to the Father because around this time in September 2019, she loaned him $3,000 because he had said he was in strife and might be evicted. An email was sent by the Father to the Mother, not long after the Mother had sent him a job application hoping he would get a job and repay the money. He responded in terms that indicated that he had no intention of being involved in X’s life.
Not long after the loan there was email communication between the parents in January 2020. The communication can be described as a “rant” where the father described that he was “beyond exasperated” with the Court that dealt with his older children. However, no request or inclination to be involved in mediation or progressing a parenting relationship for X was referred to.
Then, in May 2021, the Father did the right thing and commenced a process to repay the loan to the Mother over some time and he did so. Hence, in some ways, the Father is a man of his word. In November 2021 he made contact again after the Mother learnt that the Paternal Grandmother had passed and, upon providing her condolences, she received what could also be described as a “rant” about how the Father really was X’s father. But no inquiry as to X or her welfare was made.
Until agitation of the current application, the last communication between X’s parents was in December 2021 that included the Father’s response or statement:
At some point, we’re all hoping sooner rather than later, you will accept that I am [X]’s father and that [X] has a fundamental human right, not to mention need, to equal access. My parenting methods are different to yours and you may not like my attitude, but you’re going to have to learn to get over yourself and accept it … Your parenting style is deeply offensive to me. It is unacceptable. Your parenting style would be offensive to any reasonable human being.
Notwithstanding that communication, there was no further request for engagement in X’s life.
In 2023 the Mother’s solicitors wrote to the Father requesting that he consent to travel arrangements so that X and the Mother could visit X’s grandmother in Country B. The Father responded on 29 March 2023 to that request for consent to visit X’s grandmother with statements that included the following:
A child’s right to equal time with each parent is a fundamental human right. In the event that one parent feels unable to cohabit with the other, equal time becomes all the more important and it is surprising that [the Mother] views the deteriorating health of a parent to be an important life event demanding of [X]’s participation. It was and is disappointing that you did not display that same view recently upon my mother’s passing … It is most certainly not in [X]’s interests that her mother seeks or be granted further or unlimited control over her life. On considering [X]’s interest I am unable to support the proposed orders. I am unable to support the passage of any orders that support and facilitate the abuse of my daughter, [X]’s, fundamental human rights as those proposed.
The orders that the Father refers to in that letter was from of a proposed minute of order that is in identical terms as that provided in the initiating application and the orders pressed before me this day.
The Mother issued proceedings on 8 June 2023. The evidence is that the Mother needs an order of the Court to facilitate that appropriate visa for X to travel to Country B. Not only to travel to Country B but to ensure that she is able to return to Australia without difficulty. The first return of the Mother’s application was 25 July 2023. A few days before the first return, on 21 July 2023, the Father sent a letter to the Registrar of the Court setting out his view of arrangements:
I remain disappointed and saddened at the applicant’s consistent unacceptable conduct regarding our daughter [X]. The applicant’s behaviour is cruel, selfish and unacceptable to me, [X]’s father. I never imagined a concept as basic as sharing could be such a tall order. I was stupidly naïve and my children pay an intolerably high, ongoing price for that.
I am stunned to realise and saddened to live in a place where a child’s relationship with their mother is viewed by the state as unalienable, yet their relationship with their father, some sort of optional nicety at the discretion of the mother and the state.
…
It is clear that the Father regards the Mother as being responsible for the deterioration of his relationship with his older children and their mother, at least when he communicates with the Mother, and he maintains:
Notwithstanding the conduct of the applicant and the eager acquiescence of the court, I remain a proud father.
The Father did file a notice of address for service in the appropriate form on 26 June 2023, well prior to the 25 July 2023 Court date. The matter proceeded on 25 July 2023 by video conference and the Father appeared, and the orders I have referred to earlier were made on that day.
Come 7 August 2023 the Mother filed a consolidated affidavit in substantially the same terms as the one initially filed as she had been ordered to do by the Registrar. That order was made, I infer, because it was clear on 25 July 2023 from what the Father said, that he intended to attend Court and defend the proceedings and to seek orders in his own regard.
Had he not done so, the first affidavit filed would have been sufficient to prove the Mother’s case. It is clear that the Mother has been put to that extra expense, because of the Father’s position to the Court on 25 July 2023 that he would attend Court, file documents, participate in the proceedings, oppose the orders sought by the Mother and press for orders himself to see X, notwithstanding his more or less absence from her life over the last four and a half years.
In those circumstances, the matter was called this morning and there was no appearance for the Father. My associate then called the Father outside the court this morning and there was no appearance. At 10:15am a telephone call was made to the number available on the Father’s notice of address for service by my associate in open court. The response was a recorded message that the Father was not available. The same process was undertaken at 10:20am in open court and the same message was received.
In all those circumstances, counsel for the Mother moved to have the orders sought on a final basis. I am satisfied that the Father is in default in accordance with rule 10.26(2)(b) failing to file a response at the appropriate time, (c) failing to file a response or affidavit as ordered by the Court, and (g) defend the proceedings with due diligence of the Rules.
I accept the evidence of the Mother and notwithstanding the absence of the Father, I must make orders that are in the best interests of X. I must apply Part VII of the Act and I do.
Counsel for the Mother has drawn my attention to section 60CC(3)(g) of the Act and I recite that here:
60CC How a court determines what is in a child's best interests
…
(3) Additional considerations are:
…
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
I am satisfied that it is very much in X’s interest to meet her Maternal Grandmother when she is likely to pass before there is an opportunity to do that again. The benefits to X of meeting her Maternal Grandmother are very significant for X’s emotional and psychological development. It is important that X knows who she is and where she is from, and meeting her grandmother and the maternal family in Country B is an important part of her make up that will be with her for the rest of her life.
Further, it is important that X have the opportunity to observe firsthand the lifestyle, culture and traditions of Country B that are part and parcel of who she is. I also take into account section 60CC(3)(i), ‘the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents’. I am satisfied that the Mother has demonstrated a splendid attitude to X and to the responsibilities of parenthood in difficult circumstances and I am grateful to her and I pass on my gratitude to her for that, from the community generally and the Court.
In all of those circumstances, I am satisfied that the orders that are pressed, with minor alterations, are in X’s best interests. That minor alteration is to impose an obligation on the Mother to notify the Father of X’s return within 14 days of when she returns. Further, I want to make it clear that these orders are intended to permit the Mother to travel with X over the coming school holidays somewhere in the period between September 2023 and to return about some time before October 2023, but also in the future to travel to Country B at other times as the Mother sees fit upon the provision of 14 days’ notice to the Father.
In other words, these orders do not just authorise one trip to Country B, but trips in the future to the extent that that may be able to be organised by the Mother. In all the circumstances I am satisfied that there is no risk whatsoever that X will not be returned to Australia. Further, having regard to the Australian Government advice of travel to Country B that a high degree of caution is required, I am satisfied that the Mother will apply that high degree of caution as recommended. So I will make those orders.
At the conclusion of those reasons costs were sought. In the circumstances I think that an order for costs should be in two-thirds of the sum sought by the Mother (on scale), which is $4,720. I understand the Mother will have spent a lot more than that. The ordinary rule is that each party pays their own costs and there has to be substantial reasons to depart from it, but in this case, for the reasons I have discussed there are substantial reasons. The sum is $4,720 is payable by the Father to the Mother’s solicitors on or before 1 December 2023. I take into account and discussed with counsel all of the provisions of section 117 of the Act. The major consideration is that the Mother’s request for court orders to travel to Country B should have been readily agreed to, not opposed. The opposition put the Mother to unnecessary expense. I regard the Father as being entitled to make application about time with X and to some extent the Mother’s costs were incurred dealing with that foreshadowed, but not made, application.
Those are my reasons.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 August 2023
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