Lake & Parnell
[2024] FedCFamC1F 225
•3 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lake & Parnell [2024] FedCFamC1F 225
File number(s): ADC 425 of 2020 Judgment of: KARI J Date of judgment: 3 April 2024 Catchwords: FAMILY LAW – CHILDREN – Ex tempore reasons – Where the father has not complied with orders and not prosecuted proceedings with due diligence – Where the father has failed to attend the hearing - Consideration of Part 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – Significant history of litigation – Where the Independent Children’s Lawyer invites the Court to finalise the matter – Final orders made. Legislation: Family Law Act 1975 (Cth) s 102NA.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Pt 10.6, r 10.26, 10.27.
Cases cited: Lake & Parnell [2020] FCCA 483 Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 3 April 2024 Place: Adelaide Solicitor for the Applicant: Ms Psarras Solicitor for the Respondent: Litigant in person – did not participate Counsel for the Independent Children's Lawyer: Ms Dichiera ORDERS
ADC 425 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LAKE
Applicant
AND: MR PARNELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
3 APRIL 2024
THE COURT ORDERS:
1.That the Amended Response for Final orders filed 12 March 2024 by the Respondent Father is dismissed.
2.That the Applicant Mother MS LAKE (“Mother”) shall have sole parental responsibility for the children X born 2015 and Y born 2017 (“the children”).
3.That the children live with the Mother.
4.That the children spend no time with the Respondent Father.
5.That the Respondent Father is restrained and an injunction is hereby granted restraining him from:
(a)Attending at or within 200 metres of the place of care, residence, employment, education, training, social activity or recreation of the mother and or the children and or any member of the children’s maternal family or household;
(b)Approaching or endeavouring to communicate with the mother and or children and or any member of the children’s maternal family or household whether directly or indirectly in person or otherwise or via any nominee other than as permitted by these Orders;
(c)Publishing to social media any photograph or information which may tend to identify the mother and or children and or any member of the children’s maternal family or household; and
(d)Causing or permitting any other person to do or solicit any of the acts set out in paragraph 5 a, b and c herein.
6.That in the event of the Respondent Father inadvertently being at or within 20 metres of the mother or the children and or member of the children’s maternal family or household, then the Respondent Father shall immediately remove himself from the vicinity without causing incident and without making his presence known to the mother and or children and or member of the children’s maternal family or household.
7.That the appointment of the Independent Children's Lawyer be discharged save and except as to any appeal.
8.That the proceedings be dismissed as finalised and all future hearing dates vacated.
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
KARI J:
INTRODUCTION
These proceedings concern the parties' two children namely, X born 2015 and Y born 2017 (collectively “the children”).
BACKGROUND
I do not propose to go through the very significant history of the litigation other than to do so in summary form. The proceedings have a significant history before the Court. They were commenced by the mother in February 2020 and indeed, started their life in the Court before me when I was a judge in the Federal Circuit Court (as it then was). At the time when I first heard these proceedings in March 2020, I delivered reasons, and made orders as set out in Lake & Parnell [2020] FCCA 483 (“Lake & Parnell”) that provided for the children to live with the father and spend time with the mother each week on Saturday from 10.00 am until Sunday at 4.00 pm with such time to be supervised by the mother's adult child, Ms B.
I have had regard to those matters as discussed in Lake & Parnell. Ultimately, I ordered the preparation of a Family Assessment Report which was undertaken and prepared by Child Court Expert Fuller on 5 August 2020. By that report, Ms P made recommendations that the children live with the mother and spend alternate weekends with the father, that the mother continue to engage in mental health treatment, that the father engage in intervention and that the parties consider residing closer to one another. I do not propose to detail the contents of the Family Assessment Report of 5 August 2020 other than to identify that I have regard to the contents for the purpose of these reasons.
The proceedings were ultimately transferred by me to the Family Court of Australia (as it was then known) on 22 February 2021. The proceedings progressed and were listed for trial before Justice Mead in April of 2022. The trial commenced before her Honour, and ultimately, final orders were made by consent during the course of the trial. The final Consent Orders provided for the parents to have equal shared parental responsibility, for the children to relocate to Adelaide and attend school in City Q from term 3 of 2022 and that, pending the children's relocation to Adelaide, the children were to live with the father in Town J and spend time with the mother. Following the children's relocation to Adelaide, the orders provided that the children were to live with the parties on a week about basis.
Notwithstanding that the final Consent Orders were made on 11 April 2022, within just over six months of those orders being made, fresh proceedings were commenced by the mother upon her filing an Initiating Application on 1 November 2022. That application came about in circumstances where, on any view, there had been disrupted living arrangements for both children outside what had been contemplated by the terms of the final Orders.
That came about, in circumstances where the father, ultimately, moved into separate accommodation to that which he had been living in Town J at the time of the final hearing. The Court understands that the father moved into accommodation with his brother in or about August 2022, however that accommodation became untenable in circumstances where the father's brother was no longer willing to have the father live in that home. Ultimately, the father moved into the mother's home with the children. The parties did not reconcile, but they lived together with the children for a period of approximately one month.
Unfortunately, in late 2022, a significant incident of family violence occurred between the parties. That incident was witnessed by the children, police were required to attend, and the father was, ultimately, removed from the premises. The mother required medical assistance as a result of the injuries that she suffered to her face and body during that incident, and the Department of Child Protection became involved.
As a result of the recommencement of the proceedings, and for a range of reasons, including the ill health of Justice Mead, the matter came into my docket. Since then, procedural orders were made to progress the matter but, in addition and of significance, the further preparation of a Family Assessment Report was undertaken. That report was recently completed and is dated 2 February 2024 and, again, was prepared by a Family Consultant, Ms P.
I do not propose to traverse in detail the contents of the further Family Assessment Report other than to say that I have had regard to it and the recommendations. The report sets out in detail a summary of the incident that occurred in October 2022 that led to these proceedings coming back before the Court.
Ultimately, the contents of that report makes for some concerning reading, particularly so far as the incident that occurred in 2022 which, on any view, can only be described as a very serious and significant episode of family violence in which the mother was the victim and which was witnessed by both of the parties’ two very young children.
Ms P summarises the incident as follows:-
20.Both parties described an incident of family violence that occurred in [late] 2022, but each described the other as the perpetrator. [Ms Lake] described having attended a friends' […] home that day to assist with collecting medication scripts from a chemist for her. While at this home, [Ms Lake] said [Mr Parnell] was observed out the front of the home ''yelling". As a result of this, [Ms Lake] said she returned home to find she had been locked out of the home. When she was able to gain entry, she reported having been punched in the face by [Mr Parnell], showing the report writer [an injury sustained] as a result. During this incident, [Ms Lake] said she was punched several times by [Mr Parnell], noting [Y] remained near her for much of this event. [X] was said to "sit out the front frozen" while holding onto her pet dog. [Ms Lake] said she was incontinent twice during this incident and said she could recall pushing [Mr Parnell] away from her. She noted Police indicated he had scratches on him which she thought was likely caused by her trying to push him away. [Ms Lake] recalled having been bitten on her finger by [Mr Parnell], noting he had bitten her harder when she screamed. [Ms Lake] disputed [Mr Parnell’s] assertion that he had bitten her because she was holding [Y], noting [Y’s] large size and her inability to hold him as alleged.
21. [Mr Parnell] discussed this incident, including that he had recorded the incident noting [Ms Lake] was "laughing and abusing" him and did not present to him as someone who was "scared/or her life ". [Mr Parnell] said "the mother came home and assaulted me" after he had discovered she was at her "dealers house" when she was supposed to be enrolling them in school. [Mr Parnell] said he had "gone to take them (the children) after ([Ms Lake]) hit (him) a few times". He added that [Ms Lake] "dragged [Y] into the bedroom ... she slipped her hand in ([Mr Parnell’s]) mouth and ([Mr Parnell]) bit down". [Mr Parnell] said he was charged with "three or four counts of assault" all of which were "dismissed". He expressed his view had he "actually assaulted her" he would have been charged by Police on the day, rather than several weeks later as had occurred. He disputed the allegation [Ms Lake] had been punched by him with a closed fist by him on six or seven occasions, stating "there were more marks on me". [Mr Parnell] said the charges were dropped against him, stating he had agreed to the DVO, without admission with [Ms Lake], adding he had "no issue" with this, but said the children were also included on the DVO
22. Both parties reported that the children went to reside with [Ms Lake’s] older son [Mr F] as a result of this incident. [Mr Parnell] noted he did not take issue with the children remaining with [Mr F], adding he provided him with financial support. [Ms Lake] noted the children remained with [Mr F] for several weeks, as she did not want the children to be exposed to her injuries and she was concerned that she could not keep them safe at her home, so sought support from DCP. In particular, [Ms Lake] worried that, based on the Final Orders in place at the time, [Mr Parnell] could come and remove the children from her care.
The report also details additional risk factors that had been identified during the litigation. In particular, I am aware that, in late 2022, a matter of less than a week or so after the incident of family violence, the mother identified that the father's sister-in-law contacted her to, amongst other things, advise the mother that she had witnessed the father assaulting the parties' child, Y. That disclosure and those allegations ultimately became the subject of an investigation undertaken by the Department of Child Protection and SAPOL. Again, those matters are the subject of discussion by Ms P in her report. As a result of those allegations, the father was ultimately charged with assault in relation to the child, Y.
All of the matters to which I have raised, ultimately and additionally, resulted in orders being made on 3 March 2023 inviting the Department of Child Protection to intervene in these proceedings. Ultimately however, the Department declined the Court's request to intervene in these proceedings.
A range of orders were made by the Court in June of last year for the parties to undertake psychiatric assessments. Those assessments were undertaken across August of last year, and I have the reports prepared by Dr R in relation to each the father and the mother.
Significantly, the psychiatric report for the father identified that he was not suffering any psychiatric disorder. In relation to the mother, while she was considered to have suffered from adjustment disorder and a depressed mood, it was identified that they were not matters which were likely to interfere with her capacity to provide appropriate and stable care to the children. Again, these are all matters that were considered and discussed in the further report of Ms P.
For the purposes of her assessment, Ms P also interviewed the parents and the children. Ms P made recommendations as follows:-
70. [Ms Lake] have sole parental responsibility for the children.
71. The children live with [Ms Lake].
72. There be no time spending between [Mr Parnell] and the children.
73. [Ms Lake] would benefit from continued engagement with drug abuse intervention services with a focus on abstinence and relapse prevention.
74. [Mr Parnell] would benefit from continued engagement with drug abuse intervention services with a focus on abstinence and relapse prevention.
75. [Mr Parnell] would benefit from engagement in intervention with a focus on men's behaviour change in the context of family violence.
Since the release of that report to the parties, the Court has been attempting to progress the matter. In particular, the matter returned before the Court on 1 March 2024. On that occasion, I set out detailed Notations that neither party had complied with orders first made in June 2023 to file and serve, their respective Amended Application or Response setting out the final orders that they sought. I also recorded the views of the Independent Children's Lawyer (“ICL”) namely, that the ICL did not support any orders for time spending between the father and the children and that, in those circumstances, the matter would not be appropriate for any dispute resolution.
At that hearing, I also made inquiries of the parties as to the status of their Legal Aid funding for trial purposes. At that juncture, the Court was advised that the mother was in receipt of a grant of Legal Aid for trial. Unfortunately, it did not appear that the father's funding arrangements had been the subject of any inquiry and/or confirmation. Ultimately, I made orders on 1 March 2024, extending time for each of the parties to file their Amended Application or Amended Response and I required the father, and his legal representatives, to make inquiries as to whether a grant of Legal Aid funding would be provided to him for trial purposes. I note that it is likely that s 102NA of the Family Law Act 1975 (Cth) (“the Act”) is to apply to these proceedings. The proceedings were adjourned to 13 March 2024.
The mother complied with the orders for the filing of an Amended Initiating Application on 12 March 2024. By that application the mother seeks the following orders:
2.That the Applicant Mother [MS LAKE] ("Mother") shall have sole parental responsibility for the children [X] born […] 2015 and [Y] born […] 2017 ("the children").
3. That the children live with the Mother.
4. That the children spend no time with the Respondent Father.
5. That the Respondent Father is restrained and an injunction is hereby granted restraining him from:
1.Attending at or within 200 metres of the place of care, residence, employment, education, training, social activity or recreation of the mother and or the children and or any member of the children's maternal family or household;
2.Approaching or endeavouring to communicate with the mother and or children and or any member of the children's maternal family or household whether directly or indirectly in person or otherwise or via any nominee other than as permitted by these Orders;
3.Publishing to social media any photograph or information which may tend to identify the mother and or children and or any member of the children's maternal family or household; and
4.Causing or permitting any other person to do or solicit any of the acts set out in paragraph 4, a, b and c, herein.
6.That in the event of the Respondent Father inadvertently being at or within 200 metres of the mother or the children and or member of the children's maternal family or household, then the Respondent Father shall immediately remove himself from the vicinity without causing incident and without making his presence known to the mother and or children and or member of the children's maternal family or household.
7.That the Applicant Mother continue to engage in professional counselling support for as long as the professional counsellor deems appropriate.
8. That in the event of any future consideration of the matter by this Honourable Court, the parties agree that the Court should have reference to the Family Assessment Report of Court Child Expert […] dated 25 July 2023.
9. That the appointment of the Independent Children's Lawyer be discharged.
10. That all extant applications stand dismissed as finalised.
11. That the Father pay the Mother's costs of and incidental to these proceedings.
12. Such further or other order as this Honourable Court deems fit.
The father also complied with the orders on 12 March 2024, albeit, at 6.09 pm. The orders sought by the father in his Amended Response were as follows:-
3.That the mother have sole parental responsibility for the children [X] born […] 2015 and [Y] born […] 2018.
4. That the children live with the mother.
5. That the children shall be at liberty to contact the father.
6.That the children spend time with the father at such times and under such conditions as may be agreement between the parties in writing.
7. Such further and other orders as this Honourable Court deems appropriate.
The proceedings came before the Court the following day. Despite the father's document having been filed at 6.09 pm the day prior, the father’s counsel, indicated to the Court that he no longer sought the orders as set out in his Amended Response.
At that hearing, it was clear to me from the father's conduct, that there were difficulties between the father and his legal representation. They are not matters that the Court needed to address in a meaningful way at that hearing, in circumstances where I considered it appropriate to grant a short adjournment to enable the father to file a further Amended Response setting out the final orders that he was now pursuing. Orders were made adjourning the matter for a period of two days to 15 March 2024.
The hearing proceeded on 15 March 2024.Unfortunately, the father had not complied with the orders for the filing of a further Amended Response. The father was present with counsel at the hearing. I recall that the father was present at least at one or both of the hearings on each 13 and 15 March with his mother. Significantly however at the hearing on 15 March 2024, the father’s counsel and his instructing solicitor sought leave to withdraw from representing the father in the proceedings. That leave was granted. I can indicate, again, that it was clear to the Court on that occasion that there had been a breakdown in the solicitor-client relationship and that this was the reason for the legal representatives being granted leave to withdraw.
The father became self-represented for the balance of the hearing on 15 March 2024. He indicated to the Court that he intended to seek to have his grant of Legal Aid transferred and that he still wished to file a further Amended Response. Despite some reservation, an order was made for the father to be granted an extension of time to file a Further Amended Response to 29 March 2024. The proceedings were adjourned to today being 3 April 2024. The orders made on 15 March 2024 required the father to personally attend the adjourned hearing, whether legally represented or not.
I also gave leave for the mother and her legal representatives to appear by MS Teams, in circumstances where the solicitor and the mother respectively have their office and live some distance away from the Registry. Again, I made an order requiring the father, if he was legally represented, to advise the Court as to the status of his grant of Legal Aid funding for trial purposes. Significantly, I made a Notation to the orders that if the father did not comply with the orders for the filing a further Amended Response, then the Court would give consideration to striking out the father's Response and either finalising the matter or listing the matter for an undefended hearing.
HEARING OF 3 APRIL 2024
That brings us to today's hearing. In the period of the adjournment, the father's legal representatives filed a Notice of Ceasing to Act on 27 March 2024. For present purposes, I note that the Notice of Ceasing to Act has an email address for the father. In advance of today's hearing and, indeed, yesterday at 1.24 pm, my associate sent a MS Teams link to each of the parties personally, the mother's solicitor, the father and the ICL. Importantly, the email address to which the Teams link was provided to the father is the same as that listed on the Notice of Ceasing to Act filed by his previous solicitors on 27 March 2024.
The matter was listed for hearing at 10.00 am however, I did not come onto the bench until a little after 10.20 am. I delayed coming onto the bench in circumstances where I was advised by my associate that there was no attendance on the part of the mother or her legal representatives and no attendance on the part of the father.
I ultimately came onto the bench and took an appearance by counsel for the ICL and I indicated that I was inclined to stand the matter down, to see if inquiries could be made as to why there had been no appearance by the mother, her legal representatives and/or the father.
I am grateful to counsel for the ICL for having made inquiries directly of each the mother, her legal representative and the father. Those inquiries, coupled with my associate emailing the office of the mother's solicitor, resulted in an appearance by a solicitor on behalf of the mother today.
That appearance, however, is limited in circumstances where the legal representative is not the file principal and she indicated to the Court that she has limited knowledge of the proceedings. The mother has ultimately, during the course of these reasons, availed herself of joining the MS Teams link.
I understand from the legal representative appearing on the part of the mother that the responsibility for their cumulative non-attendance for this hearing rests with the mother's legal representative –having inaccurately diarising the hearing and not providing the MS Teams link earlier to the mother to enable her to appear promptly and in a timely fashion today.
So far as the father is concerned, counsel for the ICL has indicated to the Court today that she telephoned the father directly and has been advised by him that his grant of Legal Aid funding was transferred to new solicitors, but that he received a communication yesterday from those solicitors indicating that they were not prepared to assist him in these proceedings.
Counsel for the ICL indicated to the father that in light of the orders made on the last occasion, and his default in not complying with the orders for the filing of an Amended Response, it would likely lead to the Court finalising the proceedings today in his absence. Counsel for the ICL conveyed to the Court that the father indicated to her, more or less, that there was “no point” in him driving all the way to court only then having to return home following the hearing.
For present purposes, I have the view that the father is on notice of these proceedings today, not only because he was present at the hearing on 15 March 2024 when I listed the matter to today, but also because he has the benefit of the MS Teams link sent to him yesterday, confirming the time and date of the hearing today, but also because counsel for the ICL communicated with him and he confirmed that he was aware of the hearing.
In all of those circumstances, I am satisfied firstly, that the father was on notice of today's hearing, but, secondly, and importantly for present purposes, that he has made a conscious decision not to participate in today’s proceedings. That is a significant matter in circumstances where, as I have already outlined, the father is in default of the orders made (and extended), requiring him to file a Further Amended Response.
While I foreshadowed, particularly to the father on the last occasion, that I would give consideration to finalising the proceedings today if he did not comply with the orders of the Court, the Court is now invited by counsel for the ICL to finalise the proceedings in accordance with the orders sought by the mother in her Amended Initiating Application filed on 12 March 2024.
In doing so, I have had regard to Pt 10.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Significantly, I have had regard to r 10.26(2) and r 10.27. As I indicated, I am satisfied that the father is in default of orders of this Court. I am also satisfied, in light of the recent summary that I have just given, that the father has not prosecuted these proceedings with due diligence. In all of those circumstances, it is open to the Court to do a range of things as provided for in r 10.27(2).
It is my considered view, having had regard to the significant history of the matter, the documents referred to herein but particularly those events which have taken place in the lead up to, and during, the incident of late 2022 in addition to having regard to the contents of Ms P's reports and Dr R’s reports, that it is appropriate not only for the Court to finalise the proceedings today but, also that the orders proposed by the mother are in the best interests of the children.
It does not serve these children for the litigation to continue endlessly without a parent meaningfully participating in the proceedings and complying with orders of the Court. If the proceedings were allowed to continue, they would unlikely to come to an end and further, would likely continue over an extended period of time.
In my view, the father has been given every opportunity to put his case meaningfully before the Court, but he has chosen not to do so. It is still unclear to me how it can be that the father filed an Amended Response less than 24 hours prior to the hearing on 13 March 2024, then attended Court that day and indicated that the orders set out therein were no longer the orders that he sought.
As I say, when having regard particularly to the contents of Ms P’s two reports, but importantly her most recent report, I am significantly concerned by the allegations made in relation to family violence and in relation to physical abuse of at least the child Y. While I accept that the Court is not bound to follow the recommendations of the report writer, in all of the circumstances of these proceedings, I am satisfied that it is appropriate for the Court to accept the recommendations that have been made by Ms P. Significantly, the mother seeks orders largely in accordance with Ms P’s recommendations.
The Court is also assisted in the knowledge that the ICL supports the orders sought by the mother. I propose to make those orders with two exceptions, which I shall now discuss.
I do not consider it appropriate or necessary to make an order in accordance with paragraph 7 of the mother’s Amended Initiating Application in circumstances where I do not consider the mother engaging in professional counselling is a prerequisite or a condition of any orders that provide for the children to live with her and for her to have sole parental responsibility.
Importantly, in circumstances where the mother herself has proposed to engage in ongoing counselling, the Court takes some comfort in the fact that it is something that she is likely to do, and to that end, no order is required compelling her to do so.
I equally do not consider it appropriate to make an order in accordance with paragraph 8 because I do not consider it necessary to confine or constrict the Court in relation to any relevant considerations if the matter was to be re-litigated.
For all of those reasons, I now make the orders as appear at the commencement of these reasons.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition, amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 8 April 2024
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