Larkin & Neale (No 2)

[2024] FedCFamC1F 14

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Larkin & Neale (No 2) [2024] FedCFamC1F 14

File number:

SYC 3539 of 2021

Judgment of:

CHRISTIE J

Date of judgment:

24 January 2024

Catchwords:

FAMILY LAW – PRACTICE & PROCEDURE – Adjournment application –– Where the needs of the child are finality and stability – Where resources have been allocated to the matter by the Court and legal aid for the child’s representation – Where there is no evidence when the party seeking the adjournment would be ready to proceed – Where the party seeking the adjournment has participated in the hearing and has had the opportunity to be heard – Application dismissed.

FAMILY LAW – PARENTING – Where the child presently lives with neither parent but extended family in Australia – Where the mother has engaged in family violence towards the child – Where physical abuse causes psychological harm – Where there has been family violence by the mother towards the father – Where the father is best placed to provide a meaningful relationship for the child with the mother – Children’s views – Where the orders made are consistent with the child’s expressed views – Change of circumstances – Where child is to return to Country D to live with the father – Where there is a need for continued supervision.

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer makes an application for each party to pay half of the costs of the Independent Children’s Lawyer – Where the father has to date incurred substantial costs and will continue to incur substantial costs in relation to time – Where there is little information about the mother’s financial circumstances – Application dismissed.  

Legislation:

Family Law Act 1975 (Cth) s 4AB and s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Gensealio & Gensealio (No 2) [2023] FedCFamC1A 197

Keighley& Keighley [2023] FedCFamC1A 146

Larkin & Neale [2023] FedCFamC1F 1054

Rowe v Stoltze (2013) 45 WAR 116

Sali v SPC LTD (1993) 116 ALR 625

Division:

Division 1 First Instance

Number of paragraphs:

158

Date of hearing:

22 & 23 January 2024

Place:

Sydney

Counsel for the Applicant:

Dr Barnett SC

Solicitor for the Applicant:

ALP Lawyers

The Respondent:

Litigant in Person

Counsel for the Independent Children's Lawyer:

Mr Fermanis

Independent Children's Lawyer:

Phillip A Wilkins & Associates

ORDERS

SYC 3539 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LARKIN

Applicant

AND:

MS B NEALE

First Respondent

MS C NEALE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	24 JANUARY 2023

THE COURT ORDERS THAT:

1.The father have sole parental responsibility for the child of the relationship, X, born 2015.

2.X lives with the father in Country D.

3.X spend time with the mother when she is in Country D, as agreed between the parties in writing and failing agreement, for 2 hours on the last Sunday of each calendar month, and providing X agrees and on a supervised basis by the father or someone appointed by the father.

4.The father will bring X back to Australia at least once a year to visit her family members including the child’s mother, grandparents, and other relatives.

5.X spend time with her mother when she is in Australia as agreed between the parties in writing and failing agreement, for 2 hours on every weekend, supervised by the father or someone appointed by the father.

6.For the purpose of facilitating Order 3, the father will facilitate the visitation and provide a safe space for the visitation.

7.Time in Orders 3 and 5 will be subject to the following conditions:

(a)The father will not be obliged to facilitate time with the mother if it is contrary to X’s wishes.

(b)The time will be immediately terminated if there is intimidation, verbal or physical abuse towards X or any behaviour that may cause her distress.

(c)The visit may resume if X agrees to continue.

8.Pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) the Father, Mr Larkin, born 1976, is permitted to travel with the child X, born 2015 outside the Commonwealth of Australia.

9.Any required consent of the mother, for the child X, regarding travel documents for the said child is dispensed with and the father shall be solely permitted to do all acts and things and sign all documents as may be necessary to cause the issue of a passport or other travel document to X, including but not limited to signing any declaration on the application in the form approved by the relevant Minister, to enable X to leave the Commonwealth of Australia.

10.Pursuant to section 67ZD of the Family Law Act 1975 (Cth), the mother surrender forthwith to the Registrar of this Court X’s passport or any other travel document relevant to X, in her possession which would enable X to be removed from the Commonwealth of Australia.

11.In the event that Country D authorities require the signature of the mother on any application to issue travel documentation for X including a Country D passport then the mother sign any such application as may be provided to her by the father within 7 days of receipt of same and return it to the father forthwith.

12.The father provide the mother a mobile telephone number for X.

13.X communicate via Facetime, or any other audio-visual communication platform, with the mother pursuant to these Orders at periods and frequencies as agreed between the parties and, in default of agreement, the following shall apply:

(a)X have audio-visual communication with mother every Friday from 5pm until 5:30pm City F time.

(b)The father ensure that X have access to a charged, Wi-Fi/data accessible device with audio-visual communication capabilities;

(c)The father afford X privacy and not allow any other person to interfere in her communication with the mother.

14.The father endeavour to encourage X to communicate and maintain a relationship with the mother but shall not be required to force X to communicate and maintain a relationship with the mother against X’s wishes.

15.The mother and father are to notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to X when she is in their respective care as soon as practicable and in any event within 24 hours, and together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that has provided any medical treatment for X.

16.The father provide the mother information about X’s school attendance and progress, photographs and copies of any correspondence, newsletters or other written material produced by the school every six months upon request by the mother.

17.The mother and father be permitted to telephone and/or make video call using WhatsApp or other similar applications to communicate with X at any reasonable time when she is in the care of the other parent or other person.

18.The mother and father keep each other informed of their email address and contact telephone numbers including landline, telephone numbers and mobile telephone numbers and changes to the same within 48 hours.

19.In the event either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders then the Registrar of the Court be appointed pursuant to Section 106A of the Act to execute such deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or instrument.

20.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

THE COURT NOTES THAT:

A.These Orders contain an order which permits the father, who has sole parental responsibility for X to obtain an Australian passport for X. No such order was made in respect of a Country D passport but that should not prevent Country D authorities from issuing a passport for X on the sole application of the father if the laws and regulations of Country D so permit.

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 Larkin & Neale has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CHRISTIE J:

1. The proceedings concern parenting orders for X who is turning nine years of age. The father commenced proceedings seeking orders for X to live with him. The Response filed by X’s mother seeks orders that would see X live with her. X currently lives with the maternal grandparents who are not parties to the proceedings but who are aware of the proceedings and have chosen not to participate.

2. On 20 April 2022 X’s maternal aunt became the second respondent to the proceedings in circumstances, discussed in more detail below, where X was living with her. The maternal aunt did not seek orders at the final hearing, nor did she wish to remain a party and she was released. She gave evidence in the father’s case.

   PRELIMINARY ISSUES

3. On application by the father, supported by the Independent Children’s Lawyer (“ICL”), I determined to hear the matter on an undefended basis, in circumstances where the mother had not filed affidavit material in accordance with the Court’s directions. It is necessary for me to set out the basis upon which I elected to take that course.

4. On 24 November 2023 I made orders releasing a report by a Court Child Expert and listed the matter for a final hearing commencing 22 January 2024.

5. On 8 December 2023 I heard and determined an application by the mother to adduce expert evidence in respect of the father’s health.

6. The parties were due to file their affidavit material by 15 January 2024.

7. The father filed his primary affidavit on 16 January 2024.

8. The mother did not file her affidavit.

9. On 19 January 2024 an email was sent from my Associate to the mother (and copied to all parties) drawing her attention to the fact that she had not complied with her obligations under the orders to file an affidavit or case outline document and asking her to do so forthwith. At about 1.43 pm court records indicate the mother uploaded an unsworn affidavit which document (because unsworn) was subsequently voided.

10. On 21 January 2024 my Associate received an email at 10.43 pm which was copied to the ICL which said “I have been trying to file so many times unsuccessfully”. That email came from an email address of the mother. The attachment referred to an affidavit by the mother sworn/affirmed 19 January 2024 and included a screenshot saying “[y]our upload was unsuccessful”, “[t]he upload was cancelled. Invalid file size or type” and another screenshot of an attempted outgoing email indicating “[a]ttachments too large”.

11. On 22 January 2024 at 7.02 am a further email was received by my Associate from the mother. It read “I am self represented and. I have been trying to file so many times unsuccessfully”. It was also copied to the ICL. The attachment referred to an affidavit sworn/affirmed 14 January 2024 and another sworn/affirmed 19 January 2024.

12. On the same date, a further email was received at 9.48 am by my Associate from the mother. It read:

    I refer to a telephone conversation I had this morning with a representative agent from Family Law Court of Australia […]. I am unable to attend court as I am unwell.

    My previous lawyers. [G Lawyers] have withdrawn since December 2023, and I have been looking for alternative representation unfortunately I have not been able to obtain another lawyer to represent me in such a short period. Therefore currently, I am a self represented litigant.

    Please advice [sic].

13. This was the first correspondence from the mother which had raised ill health.

14. The hearing was due to commence 22 January 2023 at 10.00 am.

15. Upon the hearing commencing, I advised the present parties of the correspondence received by my chambers. I was made aware that those parties similarly found out that morning that the mother would not be attending, the ICL having had a telephone conversation with the mother prior to 10.00 am.

16. The matter being called outside and there being no appearance by the mother, I indicated that one way to proceed would be to attempt to contact the mother to ascertain whether she seeks to make an adjournment application. I temporarily adjourned the matter to allow that to happen.

17. The ICL attempted to speak with the mother and I was informed left two telephone messages. The ICL tendered a copy of text messages from her to the mother, the first of which was sent at 10.24 am which read “[c]an you please call me. Olivia Wilkins”

18. An email was sent by my Associate to the mother and with the other parties copied in at 10.26 am in the following terms:

    Further to her Honour’s comments and the matter recommencing at 11.00 am with [Ms B Neale] attending electronically or by telephone, please find below the Microsoft Teams link/call-in details.

    [Microsoft Teams link and instructions on how to join the hearing]

19. The ICL sent a text message to the mother which read “[c]an you please advise if you will join the teams link the court sent you at 11am?”

20. Upon the matter resuming at 11.00 am with no appearance by the mother, the applicant made an application for the matter to proceed undefended, which was supported by the ICL. I made the following orders:

    1.        The hearing of the application for final orders be adjourned to 2.15 pm today.

    2.Leave is given to the first respondent to appear at that time either in person or electronically, to either seek an adjournment or participate in the hearing.

    IT IS NOTED THAT:

    A.In the event that the first respondent fails to attend at 2:15 pm today either electronically or in person the hearing may proceed on an undefended basis in her absence.

    B.The Independent Children’s Lawyer in this case has agreed to alert the first respondent to the making of the Orders this morning by text message.  

21. The Orders were sent by my Associate by email to the mother at 12.07 pm, again including the Microsoft Teams Link and instructions on how to join the hearing.

22. The ICL sent a further text to the mother which read:

    Dear [Ms B Neale], the matter will be proceeding to an Undefended hearing at 2.15pm today. orders may be made on a final and Undefended basis. Olivia Wilkins (ICL)

23. At 1.11pm the mother sent a text to the ICL:

    Dear Ms Olivier [sic] Wilkins,

    Sincere apologies [sic] I am so unwell I am unable to attend.

24. The ICL replied enquiring if the mother could confirm she “received the email and orders from the court which also contains a link” to which there was no response.

25. At 2.15 pm when the hearing resumed, the mother joined the hearing. The mother told the Court that she would be seeing a doctor but was unable to say when she first become unwell. She indicated that she had “flu-like” symptoms.

26. The mother confirmed that she would like to seek an adjournment. The matter was adjourned to the following morning at 10.00 am to allow the mother to forward her affidavit to my Associate’s email and join the link.

27. I made the following orders.

    1.        The final hearing is adjourned until 10:00 am on Tuesday 23 January 2024.

    2.        Leave is granted to the first respondent to file an affidavit by email.

    3.Leave is granted to the first respondent to appear at the final hearing by Microsoft Teams.

    …

    IT IS NOTED THAT:

    A.If the first respondent fails to appear on the adjourned date, the matter may be dealt with on an undefended basis.  

28. At 3.20 pm, my Associate forwarded the orders to the mother and the email further read:

    Please find attached Orders made by her Honour Justice Christie in court this afternoon.

    The matter will resume tomorrow at 10am.

    You may appear in person or by Microsoft Teams.

    If you are appearing by Microsoft Teams please use the link below.

    [Microsoft Teams link and instructions on how to join the hearing]

29. Further email was received by my Associate from the mother at 5.40 pm on 22 January 2024 which said “My files are too large and not able to attach via email, Please see attachments below.” The mother’s email included a screenshot of her phone of a pop-up that said “Attachments too large” and “Attachments must be 25MB or smaller”.

30. The following morning, the mother did not join the link at 10.00 am and the matter was called three times outside the court room – the mother did not appear.

31. The mother had not forwarded the foreshadowed medical certificate to the Court.

32. At 10.12 am, my Associate received an email asking for the “telephone audio conference ID” and an email in response at 10.18 am was sent forwarding the details the mother sought, which had otherwise been sent to her in previous emails.

33. At 10.21 am, the mother sent my Associate, in reply, an email which read:

    I am not able to log on to Microsoft, there is a technical issue on my end.

    could you please let me know what ia [sic] the telephone conference id, I will try that

34. At 10.30 am, my Associate forwarded the previous email of the details the mother sought and advised that the “telephone audio conference id is highlighted in yellow located below this email”.

35. The mother joined the call at 10.34 am.

36. The mother was informed that the hearing had commenced and she would, in due course, be called upon to make submissions.

37. The mother did not make any formal application for an adjournment but it is appropriate in circumstances where she is self represented that I treat her representations as an oral application for an adjournment. In proceeding to hear the matter on an undefended basis, I was effectively dismissing her application for an adjournment after weighing the various competing considerations.

38. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) sets out, in “Division 4 – Case Management”, guidance about the overarching purpose of the family law practice and procedure provisions in s 67 as follows:

    (1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

    (a)       according to law; and

    (b)       as quickly, inexpensively and efficiently as possible.

    Note 1: See also paragraphs 5(a) and (b).

    Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

    (2) Without limiting subsection (1), the overarching purpose includes the following objectives:

    (a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);

    (b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

    (c)       the efficient disposal of the Court’s overall caseload;

    (d)       the disposal of all proceedings in a timely manner;

    (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

    (3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

    (4) The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

    (a) the Rules of Court;

    (b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).  

1. Section 68 of the FCFCOA Act sets out provisions which require parties to their litigation to act consistently with the overarching purpose.

   (1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

   (2) A party’s lawyer must, in the conduct of a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) (including negotiations for settlement) on the party’s behalf:

   (a)       take account of the duty imposed on the party by subsection (1); and

   (b)       assist the party to comply with the duty.

   (3) The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:

   (a) the likely duration of the proceeding or part of the proceeding; and (b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:

   (i)        the costs that the lawyer will charge to the party; and

   (ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.

   Note: Paragraph (b)—the Federal Circuit and Family Court of Australia (Division 1) may make an order as to costs under section 117 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.

   (4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 1) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).

   (5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 1) or a Judge may order a party’s lawyer to bear costs personally.

   (6) If the Federal Circuit and Family Court of Australia (Division 1) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.

2. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) at r 1.33 make provision for what can occur where there is a failure to comply with directions:

   (1) If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.

   (2) If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:

   (a)       dismiss all or part of the proceeding;

   (b)       set aside a step taken or an order made;

   (c)       determine the proceeding as if it were undefended;

   (d)       order costs;

   (e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;

   (f) make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).

   Note: This subrule does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.

3. There are well established principles governing the interplay between case management and procedural fairness drawn from the High Court in Sali v SPC LTD (1993) 116 ALR 625 and, later, Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, and usefully summarised in Rowe v Stoltze (2013) 45 WAR 116 at 127:

   51.… In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant’s head for an undue period.

   (Citations omitted) (Emphasis added)

4. In this case, I was weighing a number of competing considerations which included:

   (a)The need to address a situation of some urgency from the child’s perspective;

   (b)A need to finalise litigation which had been commenced in May 2021;

   (c)The fact that the father had travelled to Australia for the purpose of the hearing;

   (d)The fact that the father and the ICL were in a position to participate in the trial;

   (e)The allocation of resources to a Court Child Expert report which had been released and was current;

   (f)The allocation of legal aid resources to representation of the child;

   (g)The interests of other litigants awaiting allocation of hearing dates;

   (h)The fact that the father’s witness was available and had attended court;

   (i)The lack of any cogent evidence as to when the mother would be ready to proceed; and

   (j)The lack of any receipt of evidence to support an adjournment until after judgment had been reserved.

5. I will consider each of the above factors giving the most significant weight to the needs of the child the subject matter of the litigation for finality and stability.

6. On 22 November 2023, I released a Court Child Expert report which said at [66]:

   [X] has experienced much loss and abuse in her young life, and she requires a home that can support both her emotional needs as well as assist her to heal from the abuse she has experienced. It is imperative that [Mr Larkin] seeks ongoing therapeutic support for [X], as well as continue [X’s] connection with her maternal family. To ignore [X’s] needs would only cause [X] to experience long term negative mental health concerns.

7. At the time of the hearing, X had been in Australia for four years. During that period she has enjoyed love and support from the maternal family. Given the issues identified by the subpoenaed material and the expert evidence, a prompt resolution of the circumstances which have seen her living outside her country of origin, in the care of neither parent, is indicated.

8. If the matter were to be adjourned, it would be difficult to find hearing dates in the first half of 2024.

9. The father has travelled to Australia for the purpose of the hearing. The father’s senior counsel informed the Court that the father was due to return to Country D at the end of the month. The father is employed in Country D and has no right to remain indefinitely in Australia.

10. The Court Child Expert in that part of her report entitled “Evaluation” said:]

    63.[X] experiences distress at not being able to reside with her father as well as when he leaves to return to his home in [Country D]. [X] has continued to experience a sense of loss every time her father has to leave her, and she is unable to go with him. [X’s] relationship with her father has been observed to be high in physical nurture and care, and [X] is secure and comfortable in her father’s presence. It is noted the allegations made against [Mr Larkin] regarding child sexual abuse and domestic violence however, [X] does not behave in any way with her father that would indicate she is scared of him or his behaviour. Instead, [X] behaves with a high level of fear and anxiety when spending time with her mother.

11. Those unchallenged opinions underline the importance to the child of timely adjudication of the dispute.

12. As set out in the above list, it is necessary to consider the position of each of the parties to the litigation which arises from delay. Both the ICL, who is publicly funded (solicitor and counsel) and the father who had a solicitor and senior counsel were prepared and ready to participate in the final hearing.

13. The Court had set aside hearing time for this matter which could otherwise have been allocated to other cases awaiting determination. The Court had also allocated resources to the preparation of both a Child Impact Report and a Family Report.

14. As against those matters, I need to consider the mother’s opportunity to participate in the hearing of a matter with significant consequences for her.

15. At present the child is not spending other than supervised time with her mother pursuant to an order of this Court. That order is substantially in keeping with the protections provided by the five-year final Apprehended Domestic Violence Order (“ADVO”) made in the Local Court of NSW. I accept that the mother wished to challenge the position whereby the child lived with the father (and left the country).

16. Against that it must be remembered that: the mother has participated in the litigation. She was represented when the Family Report was released and the direction made for trial affidavits. Her lawyers did not file a Notice of Ceasing to Act until 18 December 2023. The mother did not offer a reason for her failure to comply with the direction to file an affidavit save that she had not been able to secure new representation.

17. The mother indicated a difficulty uploading an affidavit after the time for filing had passed. The mother was offered the opportunity to email an affidavit. The mother’s correspondence suggested that she had difficulty due to the size of the documents.

18. I accept that the mother may have faced technical challenges but at the end of the day it is the responsibility of the litigant to make sure their evidence is filed in accordance with the orders of the Court and not a matter for which the Court can assume responsibility.

19. The result was that the matter proceeded without evidence from the mother. That said – the mother participated in both the Child Impact Report and the Family Report and so her perspective and position were represented in the evidence.

20. The mother has now filed a medical certificate which has been marked as an exhibit in the proceedings with the consent of the parties. The mother did not file a medical certificate as she had foreshadowed until after the matter had been reserved. On 23 January 2024, after the matter had been reserved, my Associate received an email from the mother which attached a certificate dated 22 January 2024 which indicated a diagnosis of Covid-19 infection.

21. The mother joined the Microsoft Teams link on 23 January 2024 and did not refer to the certificate. I have not received any formal application to re-open although I accept that the mother is self-represented.

22. The period for which the certificate says the mother is “unfit to continue her usual occupation” is to end on 2 February 2024 – that is a date after which the father is due to return to Country D.

23. The medical certificate is not evidence which addresses whether the mother is able to participate in the hearing. The situation whereby a party, lawyer or judge has participated in a hearing via Microsoft Teams because he or she has Covid-19 and does not wish to expose others is now not unusual. The Court expects a medical certificate in support of an application for an adjournment to address in an admissible fashion why the diagnosis precludes participation in a hearing. It is not plain what “unfit for her usual occupation” means. It is a similar situation to that which prompted the observations of Austin J in Gensealio & Gensealio (No 2) [2023] FedCFamC1A 197:

    4.…its probative value is vitiated because it does not say how the applicant’s medical condition hampers his participation in this appeal proceeding (Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]–[50])…

24. In addition, the medical certificate may adequately explain the failure to attend in person but says nothing about the failure to file an affidavit.

25. After joining the Microsoft Teams link on 23 January 2024, the mother remained online until I invited her to make submissions. When I invited the mother to make submissions she was silent. The mother had previously spoken audibly on the connection that day. After a few moments had passed the ICL indicated she had received a text message from the mother asking if she could be heard. I indicated to the mother that we could see she remained connected and unmuted and if she was having difficulty, she should join the Teams link on another device as she had done the previous day. That did not occur and the mother did not make oral submissions.

26. After the matter had been listed for judgment the mother provided a document to my Associate by email (copied to the other parties). I have now obtained the parties’ consent to consider the mother’s written submissions and I will, as discussed below, take into account the matters she has raised.

27. In weighing the competing interests involved I must give greatest weight to the need to determine final parenting arrangements for a young vulnerable child. It therefore follows that I intend to hear and determine this matter to finality notwithstanding the fact the mother has not filed evidence. The mother has participated in the hearing to the extent that her views are contained in the expert evidence and she has had the opportunity now to make written submissions.

    BACKGROUND

28. The following background is drawn from the documents and is largely uncontroversial.

29. The child’s parents married in Country D in 2012 and lived in Country D together until early 2020. The child the subject of the proceedings was born in Country D in 2015.

30. In early 2020, following a family holiday to Country H, the mother and child travelled to Australia. The father says that, from his perspective, it was intended by the parties that the travel to Australia was a vacation – for the purpose of the mother and child spending an event in Australia with the maternal family.

31. The mother and child lived with the maternal family and, when the father made contact with them, the maternal family facilitated the father’s telephone contact with the child.

32. The Covid-19 pandemic impacted on the father’s capacity to travel to Australia.

33. Notifications were made to the Department of Communities and Justice (“DCJ”) in late 2020.

34. In late 2020, the mother moved out of the home of her parents and the father lost contact with X.

35. The father commenced proceedings in the Federal Circuit Court of Australia on 14 May 2021 seeking orders that X live with him in Country D.

36. The father travelled to Australia in late 2021.

37. Four days later, the parents attended upon the NSW Police. During that attendance upon the police, the police spoke to X away from both the parents. The record says:

    Police spoke to the [child] away from both parties where the [child] stated that she was fearful of the [mother] as she sometimes locks the door and hits her on the top of the head. DET[ective] […] attended and interviewed the [child] in the presence of the father, where it was disclosed that the [mother] uses an open palm to lightly punish the [child] to the top of the head. From discussions between all three parties, there are conflicting version[s] that will come to resolution with the Federal Court matter where custody will be regulated. Police however have fears for the safety of the [child] and have applied for an appropriate Apprehended Domestic Violence Order to mitigate this risk.

38. A further interview took place with X the following day. The police records state:

    Upon review of the Child interview there was a disclosure of a history of assault. With the most recent incident occurring on Sunday […]. The details of the assault is difficult to decipher due to the age of the child and comprehension and ability to recall information. However, from what can be interpreted, it appears that the most recent incident, the child stated that there were issues between her and the [mother] regarding the messy state of the bedroom that they share together in the household. On one occasion, the child recorded “hurting herself (by stepping) on a plastic [item], that she (the [mother]) bought for me” and that “somebody go and tell mummy… she hit me on the head, because I got in trouble.” Whilst saying this the victim pointed toward the top of her head above the temple on her right side. The child and [mother] resides […] in a share house type situation, and it is likely that somebody is a room mate who has heard shouting and arguing between them and knocked on the door to check on them. Shouting and arguing was not uncommon behaviour, and police verified this by obtaining statements from the previous tenants that shared accommodation with the [mother] in the past. During the interview the child was asked how the accused hit her on the head, and the child replied, “her hand” and simulated an open hand slap to the top of her head. The child also declared that “sometimes it gets bruises and bumps and that she could “still feel some over here” pointing toward the back of her head. The child also informed that she tried to protect herself by placing her hands on top of her head while the accused hit her. The child indicated when she gets hit on the head that “it hurts so much”, and as a result feels “sad”.

39. The next day, X commenced to live with the father at the home of the maternal grandparents. The father was unable to stay later than January 2022, because of the terms of his Visa and upon leaving Australia in January 2022 intended to return in February.

40. In early 2022, the father was diagnosed with an illness and was, in those circumstances, unable to return to Australia as planned.

41. On 20 April 2022, the Court made an order, which provided that X live with the father when the father is in Australia, and otherwise live with X’s maternal aunt when the father was not in Australia.

42. The mother was charged with common assault against the child in relation to the events of late 2021 but that charge was withdrawn by the police at the request of the father. An interim ADVO was issued.

43. In late 2022 a final ADVO was made for the protection of the child naming Ms B Neale as the person bound by the order. That order is in place for a period of five years, and provides as follows:

    1.You must not do any of the following to [X] anyone she has a domestic relationship with:

    A)       assault or threaten her

    B)        stalk, harass or intimidate her, and

    C)intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [X]

    …

    6. You must not approach [X] or contact her in any way, unless the contact is:

    A.        through a lawyer

    C.        as ordered by this or another court about contact with children

    E.as agreed in writing between you and the parent(s) and the person with parental responsibility for the child/ren about contact with the child/ren

    …

    9.        You must not go within 100 Metres of:

    A)       where [X] lives, or

    B)        any place where she works, or

    C)        any place listed here

    Any place where she goes to school or [J Street, Suburb L], NSW, […] except as permitted by order of this Court or another Court about contact with [X].

44. In 2023, the father travelled to Australia on six occasions to spend time with X.

45. The father has telephone communication with X each night.

46. The mother has had supervised contact with X, a topic I will return to in more detail.

    CONSIDERATION

1. The position taken by the father in the litigation was supported by the ICL as being consistent with the evidence and in the best interests of X.

2. The father seeks an order for sole parental responsibility of X. I read the mother’s submissions as requesting that parental responsibility be shared.

3. I propose to make an order for sole parental responsibility in favour of the father. Any presumption in favour of equal shared parental responsibility is rebutted by evidence of family violence and the findings which I set out below concerning family violence also make plain that an order that parental responsibility be shared is not an order which would operate in the best interests of X.

4. X is recorded to have been anxious when her mother made repeated contact with her school. It is appropriate that the parent with whom X lives have parental responsibility subject to the requirement that the other parent is given medical and educational information.

5. I turn then to consider orders about where and with whom X should live and what time she should spend with the other parent. This is a case which squarely raises both primary considerations.

6. It is consistent with the statutory mandate to give greater weight to the necessity to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. That does not mean that I will not take into account the benefit to X of having a meaningful relationship with both parents.

8. There are some relevant additional considerations in this case as well. They include:

   (a)X’s views;

   (b)the nature of X’s relationship with each of her parents and other family members, especially the maternal family;

   (c)the extent to which the parents have fulfilled their obligation to maintain X;

   (d)the likely effect of a change of circumstances on X;

   (e)the practical difficulties proposed by both parties’ proposals in terms of difficulty and expense of facilitating regular time; and

   (f)issues in respect of the capacity of each of the parents to provide for X and factors which may impact upon that, in particular the father’s health.

   Family violence involving the child

9. As set out above, it is uncontroversial the X has the protection of an ADVO arising out of her reports to the police in late 2021, which ADVO expires in 2027. Absent an order for time (from this Court or agreement of the father), the terms of the ADVO prevent contact between the mother and X.

10. I have considered the mother’s suggestion that the child’s reports are the product of coaching by the father. Senior counsel submitted that this can be easily rejected given the extremely limited time which the father had had with X at the time X raised the concerns about the mother. I accept that at the time X made her disclosures to the NSW Police, she had not seen or spoken to her father for about a year. Given her age, it is not credible that her reports were the product of coaching on the part of the father.

11. Similarly, the mother contended the child’s complaints about her may have been the product of coaching on the part of the maternal family. Similarly, that contention can be dismissed because there is no evidence to support it. On the contrary, the evidence is that the maternal family have acted carefully in an effort to protect X while endeavouring not to further estrange themselves from the mother.

12. The assaults which X reported were supported by the following collateral information:

    (a)There was a report to the DCJ in late 2020. The report alleged “[X] had been heard to have “cried out loudly” when in the room with her mother. If [X’s] grandparents take her out of the room, her mother is reported to “forcefully” try to put her back. On one occasion, the mother has even “lunged at her mother, and hit her in the leg really hard” whilst she was crouched over protecting [X]. This behaviour was likely to have resulted in serious physical injury. The report also screened in for “Excessive discipline’. The report alleged [X] disclosed that her mother “pulls her hair, and pinches her”. [X] was reported to have red marks on her side, that “looked like knuckle marks” and were “still visible around 30 minutes after occurring.”

    (b)There was a further report to the DCJ in late 2020 where it is recorded:

    …The report screened in for symptoms of significant psychological harm for [X] who was reported to be fearful of her mother, to beg family members to take her out, to be reluctant to go home, to not want to spend time with her mother, to not want to sleep in the same room as her mother, to have a stutter which she didn’t have before, and to lie when her mother urges her to. [X’s] mother was reported to keep [X] confined to the bedroom they share, to break her toys if she displeased her, to threaten to leave her, and to physically force [X] to stay in the room when she tried to leave. The report alleged [X’s] mother was actively keeping [X] from the extended family and isolating her by not enrolling her in school and by preventing her from contact with the family. There are concerns that [X’s] psychological symptoms may increase due to the ongoing arguments which occur between her mother and maternal grandparents when they try to intervene. The report also screened in for dangerous behaviour given that [X’s] mother is reported to have fought with her over control of the bedroom door, which resulted in bruising to [X’s] hand when the door slammed on it. Considered for other non-accidental injury however there is no evidence that [Ms B Neale] deliberately harmed her. The mark on [X’s] side which was caused by her mother trying to keep her from leaving the room and was reported [in late] 2020 …

    (c)The mother’s family contacted police in late 2020 when the mother left the home of the maternal grandparents with X as they were concerned about the child;

    (d)There was an email from the maternal aunt to Ms K (from the DCJ) dated 4 December 2020 which outlined her concerns (and those of the maternal grandparents) for X’s welfare. Part of that email reads:

    As time passed during [Ms B Neale] and [X’s] stay with mum and dad, we grew more and more concerned at [Ms B Neale’s] lack of ability to take care of [X’s] basic needs such as meals and other proper care. Mum and dad then took over this responsibility however [Ms B Neale] did not like it. We also grew very concerned that [Ms B Neale] was being abusive to [X] – emotionally (telling [X] she would leave her, throwing [X’s] toys away as punishment, forcing [X] to stay in the room with [Ms B Neale] for prolonged periods of time) and physically ([X] used to run and hide from [Ms B Neale], we found marks on [X’s] body which looked like knuckle marks as if she had been punched and [X] told us [Ms B Neale] hit her and pulled her hair). We also suspect that [Ms B Neale] has been giving the sleep aid which [Ms B Neale] was taking to [X] as well. This sleep aid is for allergies and contain sinus drying effect and we think that’s the reason [for X’s symptoms].

    …

    Attached are some proofs (I have to send them over more than 1 email):

    1.that [X] is afraid (more than normal) of [Ms B Neale] and that [X] misses [Mr Larkin] and wishes to see him.

    2.        Knuckle marks on [X’s] body.

    3.        […] Sleep aid which we suspect [Ms B Neale] gives [X]

    4.Videos [redacted] trying to protect [X]. [Ms B Neale] on several occasions would drag [X] to force her to be in the room with her and then mum and dad would hear [X] crying hysterically in the middle of the night. Coupled this with marks they have seen on [X’s] body and what [X] told them, they were very concerned.

13. The father gave evidence at the hearing and was cross-examined. In response to questions posed by the ICL, the father indicated that the most recent occasion of supervised time, which occurred in January 2024, was terminated about one hour early as X was upset and, according to the oral report provided by the supervision agency to the father, while the mother endeavoured to reassure X, X reported to the supervisor (while the mother was in the bathroom) that the mother had been placing pressure on her forearm while repeatedly stroking it from forearm to wrist in a manner which made X feel uncomfortable.

14. X told the Court Child Expert: “she hits me on the head with her knuckles” and “when she sees me she holds my hand tight and pinches my hand when I ask her for my passport.”

15. I accept that the evidence from a number of sources establishes that the mother has engaged in acts towards X which satisfy the definition of “family violence” in s 4AB of the Family Law Act 1975 (Cth) (“the Act”).

16. The Court Child Expert recommendation was for the mother to engage in therapy and a behavioural change program. I accept it would be desirable for the mother to address her conduct towards X and its impact on X to enhance the quality of the interaction between X and the mother. I do not propose to make an order because I am concerned that being engaged in a behavioural change program is likely to be productive if undertaken on a voluntary basis by a person who sees its utility.

    Physical abuse which has caused psychological harm.

17. Senior counsel for the father drew the Court’s attention to the evidence which supported the conclusion that X is fearful of her mother. She submitted that in some cases the incidents of physical abuse were relatively minor – pinching, pulling or too much pressure in the physical touching – yet they have caused X to approach time with the mother with trepidation. The expert evidence characterised the child’s response as one of anxiety, high level distress and trauma. The submission, which I accept, is that the cumulative effects of these negative interactions is a cause not just of physical harm but attendant psychological harm. That conclusion is supported by those who are treating X, whose reports were before the Court.

    Family violence between the parents

18. Each of the parents alleged that the other had been physically violent.

19. The mother told the Court Child expert who prepared the Child Impact Report that the father threatened to kill her and made threats to distribute photos of her and the child taken in the bath. That report does not contain any other allegations by the mother. The mother told the Court Child Expert who prepared the Family Report that the father had hit her with “a stick” and sexually assaulted her during the relationship. DCJ records state:

    Both [Mr Larkin] and [Ms B Neale] have indicated tnat there were relationship issues prior to [Ms B Neale] coming back to Australia. During the interview [in late] 2020 [Ms B Neale] became emotional when asked whether there had been any violence however did not wish to talk about it. [Ms B Neale] did indicate that there had been a certain level of control of her and [X] by [Mr Larkin]. The father denies all allegations which the mother makes concerning family violence perpetrated by him.

20. The father raised significant allegations of family violence by the mother towards him in his interviews with the court child experts and his affidavit material. He told the Court Child Expert preparing the Family Report, “[Ms B Neale] attempted to “kill me” by stabbing [me] with a knife”. In the father’s affidavit he provides detail about the mother threatening suicide and demanding AUD600,000 for debts in 2015. The father says the mother was holding X and a kitchen knife and he suffered minor cuts when he secured X’s release from her mother’s arms by biting the mother. It is not plain from the material before the Court whether or not that description is the same incident which he reported to the Court Child Expert.

21. The father recounts a series of arguments between himself and the mother in Country D relating to either money or the involvement of the paternal family in the parents’ lives which he says involved the mother throwing items, including in the car – during which the windscreen broke.

22. I am unable to discount entirely the mother’s evidence concerning the father but that is not the same as accepting her account. In contrast, the evidence which the father gives about family violence perpetrated by the mother is consistent with the accounts of the child about her experience, accounts by the mother’s flatmates to the police about interactions between the mother and child and consistent with the concerns raised by the mother’s family. I accept that there has been family violence by the mother towards the father.

23. The orders which the father seeks will offer the best opportunity for X to be protected from exposure to family violence either directly or indirectly.

24. In discussions with the Court Child Expert, the mother raised obliquely that there may have been child sexual abuse perpetrated by the father towards X. There is no evidence to support that assertion and I reject it.

    The importance of a meaningful relationship with both parents

25. The mother’s submissions refer to the importance to X having a meaningful relationship with both parents. Those submissions say:

    If [X] is to live in [Country D], I would want to be able to have a meaningful relationship with her and would like the following. I love her very much and it is for her good too to still have a meaningful relationship with her mother.

26. The Act refers to the uncontroversial theoretical value of a meaningful relationship with both parents. The content of meaningful will be dictated by the child’s facts and circumstances. Here neither parent proposed that they would be living in the same country as the other and accordingly the time between the child and parent will be curtailed.

27. Because of the significant safety concerns discussed above orders will be made for X to live with her father in Country D. The mother’s written submissions tacitly acknowledge that this is the likely outcome – accordingly it is necessary to examine the means by which X and the mother will have a meaningful relationship in that context.

28. The mother’s submissions sought “shared custody”. That is not an expression which is used in the Act but I understand what the mother intended in context. The mother says she wants to be able to sign documents and she wants to be able to have X in her care should something happen to the father.

29. The orders I propose to make will include supervised face to face time in Australia and Country D. The mother is free to travel to Country D to exercise time and the father is obligated to bring X to Australia yearly. There is no legal prohibition on the mother residing in Country D and the father’s evidence was to the effect that the mother had travelled to Country D in January 2024.

30. The supervision of time is designed to protect X and hence should be viewed as being more likely to assist with the possibility of a meaningful relationship between mother and child.

31. The orders also provide for regular and frequent communication which, if conducted by the mother in a child focused manner, is likely to also increase the possibility that the parent-child relationship will be meaningful.

32. The father will be obliged to provide the mother with information about X’s schooling. This information will allow the mother to engage with X about her day to day life in Country D.

33. The father’s evidence about providing information to the mother appeared genuine and consistent with the manner in which he has acted to date.

    Child’s views

34. X told the Court Child Expert preparing the Family Report that if she could change something she would “live with [her] dad”. The report also recorded:

    I asked [X] that if she was not able to live with her father, who she would want to live with. [X] replied, “definitely not mum”. I asked [X] if there was someone else that she thought would be able to look after her, and she said “someone in [Country D] like my dad’s sister.”

35. The father’s evidence is that the child will have the father and paternal aunt as members of her household.

36. The orders which I propose to make are consistent with the child’s expressed views.

    Nature of child’s relationship with parents and other persons

37. X has a close relationship with her father. The observation sessions of both Court Child Experts demonstrated that the interactions between father and child were spontaneous and warm.

38. X has maintained this close relationship notwithstanding the geographical distance in large part due to daily communications between parent and child.

39. X’s relationship with her mother has been affected by the mother’s conduct towards her and also because from X’s perspective her mother has prevented her from returning to Country D and returning to the father’s care. When X was initially interviewed by the Court Child Expert for the Child Impact Report she indicated she cares about her mother and does not want her to be upset.

40. Ironically, one of the key advantages of X returning to Country D may be to assist the relationship between mother and child.

    Failure to fulfil obligation to maintain child

41. The father has sent money to Australia to assist the maternal family to provide for X. The mother has not contributed. While I appreciate that the mother may feel aggrieved that X is not in her care she remains, as a parent, obliged at law to assist to provide for her child. This is a relevant factor but in the circumstances of this case it is of very little moment given the much more significant factors which have informed my determination.

    Likely effect of a change of circumstances

42. It is unlikely that X is aware of how different life will be on her return to Country D. When she arrived in Australia she was almost five years old – she is now almost nine. She will undoubtedly miss the maternal family with whom she has lived. School will be different.

43. However, X has consistently expressed a desire both to live with her father and to return to Country D. She was sad when her grandmother in Country D died. She understands she will see her paternal aunt.

44. Her father has agreed to obtain continuing psychological support for her which will assist with the transition and also no doubt with the complicated feelings she is likely to have about being separated from her mother.

45. X’s father has indicated that she will attend an international school, which will be of assistance since the education will be conducted in English.

    Practical difficulty and expense

46. The father lives in City F and it would appear as though the mother intends to remain in Australia. The mother may (at her election) live in Country D. Either the mother’s plan or that of the father would have posed identical issues of practical difficulty and expense. The father will meet the costs. Because there is no option where the parties live in proximity available to the Court, this consideration is neutral.

    Issues in respect of capacity

    The father’s health

47. In early 2022, the father was diagnosed with an illness. It was submitted, that this was a factor among others that limited the father's ability to travel to Australia to spend time with X.

48. The mother previously disputed the evidence that the father is in recovery and asserted that his illness is terminal. The mother remains concerned about a potential relapse on the part of the father. On 8 December 2024, I heard and dismissed an application of the mother to appoint an expert to adduce evidence and express an opinion about the father's health: Larkin & Neale [2023] FedCFamC1F 1054.

49. Part of the context in which I dismissed the mother’s previous application challenging the status of the father’s health was that it was represented to me by the father that he intended to rely on evidence from his treating doctor at the final hearing (at which point the evidence would be open to challenge). The father belatedly filed an affidavit of Dr E following the conclusion of the first day of hearing. It annexed the medical reports previously disclosed to the mother and the Court and hence was not novel in respect of content.

50. Dr E’s unchallenged evidence was as follows:

    3.[Mr Larkin] was diagnosed with [an illness] and subsequently underwent [surgery] in [early] 2022.

    4.He underwent [treatment] and [tests in late] 2023 indicates […] complete [recovery].

    5.At the present time, [Mr Larkin] is expected to have a normal life expectancy and his previous […] diagnosis is not expected to reduce his life span.

1. A letter authored by Dr E dated late 2023 also expressed that the father is in recovery. I further had before me copies of the father's recent test results, the most recent being a scan result dated late 2023 which read in part:

   Impression:

   •There was still no local recurrence […].

   •There were still no [indicators of the illness].

   •There were still no [other indicators].

   This featured was still suggestive for complete metabolic response.

   (As per the original)

2. Senior counsel for the father submitted that any concern the Court has regarding the father being unable to care for X because of the diagnosis was put to rest by the affidavit of Dr E. I agree. The evidence before me does not allow me to conclude otherwise.

3. I accept that the mother has a genuine concern about what may occur if the father were to become ill. She sought “shared custody” with a view that if the father were to become unwell she might assume X’s care. Given the evidence, this is hypothetical. The Court would not usually make orders about what happens in the event of the death of a currently healthy parent because of the inability to assess the best interests of the child at the future time.

4. As previously indicated, the mother was living in Country D until her decision to remain in Australia in 2020 and accordingly should the father become unwell there would be no reason (on the evidence before me) why she should not return to Country D.

   Mother’s capacity

5. The father and the mother’s family have raised concerns about the mother’s mental health historically as potentially impacting on her parenting capacity.

6. It is not clear that the mother is currently unwell. It may be that her conduct towards X could be explained by a diagnosis but the evidence does not allow me to make that finding.

7. I do find that there have been issues which have impacted on the mother’s parenting capacity in Australia which on X’s account have included screaming, hitting, isolation from the maternal family and times when she was hungry and without food.

8. The consideration of the above statutory matters informs the orders which I propose to make.

   FORM OF ORDER

9. The mother, through the vehicle of the written submission, sought that the position be reviewed in two years time. One of the factors I am obliged to consider is whether it is preferable to make the order that would be least likely to lead to the institution of further proceedings. The intention of this statutory provision is to create stability for children and to prevent repeated litigation regarding their arrangements. I understand the mother’s desire to change the current situation – one in which her time with X is significantly limited. However, the Court’s focus is on what would meet X’s needs. X needs certainty and stability which will ideally flow from the making of a final order.

10. The orders themselves are expressed somewhat flexibly. If the father forms the view that X will be best served by additional time with the mother in the future, the orders permit the parties to reach agreement.

    Need for continued supervision

11. As discussed above, the child appears to have an ongoing fear of the mother. Supervision functions protectively to prevent incidents of physical harm, to reassure the child and to provide a mechanism by which time can be brought to an end if it is distressing to X.

12. I accept the summary of the approach to the making of supervision orders at a final hearing as articulated by the Full Court in Keighley& Keighley [2023] FedCFamC1A 146 at [130]:

    … the Court is not usually persuaded to make long-term supervision orders, including by reason of the artificiality, sustainability and costs of the arrangement, as well as the issue of whether such a situation is capable of supporting a meaningful relationship between the children and the supervised parent. Her Honour referred to B & B (1993) FLC 92-357 (see at p 79,780); Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19]; and Bielen & Kozma (2022) FLC 94-123 at [67], and to the dicta of Tree J in the penultimate case, that these reservations “are not legislative edicts and each case must be decided on its own facts”…

13. Even if the mother has not behaved inappropriately during supervised contact the child’s reactions are consistent with what the child has experienced in her interactions with the mother historically.

14. I was taken to the M Contact Centre reports of late 2023 by which I am satisfied that the father’s approach to resistance on the part of the child to time with the mother is to respond in a reassuring fashion.

15. The father indicated an intention to continue to utilise the services of a professional supervision agency in Australia and in Country D to supervise himself or have a member of family or a member of his staff (or private security). Usually, supervision of time between a child and a parent by the other parent is unlikely to function successfully. Particularly in this case where each parent makes allegations of family violence, it is probably unwise. I trust that the father will elect the supervisor who best suits the child’s needs. The father’s presence may hinder the child spending time with the mother as she may be more naturally inclined to gravitate towards the father. I have left the father in the order as a possible supervisor in order to ensure the best chance of time occurring but I do so with reservations.

16. The father’s approach is child focused. It also gives the Court comfort that he understands the importance of time occurring for X even if it is not ideal. This is important because the mother is understandably concerned that if X returns to Country D it may be difficult to secure compliance with the orders and ensure that time occurs. The father’s desire to act in the best interests of his child has been demonstrated by his persistence despite significant obstacles.

    Communication

17. The father had sought a more flexible order about telephone/audiovisual communication than he had previously proposed. Given the lack of face to face time between the child and the mother, other forms of communication assume greater importance. If X is safe and the communication is not anxiety provoking, then she should ideally have regular and frequent communication with her mother. Orders which are certain as to date and time have a greater likelihood of establishing a pattern whereby communication occurs and hence I indicated that I preferred to make an order which set a date and time if agreement could not be reached. There are also orders which provide that X is free to communicate with her mother by WhatsApp on a liberal basis.

    Passport

18. The father had initially sought an order about issue of a Country D passport in a form which on one reading purported to bind Country D authorities. Senior counsel for the father recognised that such an order would be beyond power and sought a notation dealing with the same subject matter and an order in personam requiring the mother to sign documents for the issue of a passport if required.

19. There was no evidence about the requirements for issue of a Country D passport before me so I have endeavoured to make orders and notations which would assist the process for the benefit of the child.

    ICL COSTS APPLICATION

20. Counsel for the ICL made an application for costs as he was obliged to do given the terms of the grant of legal aid. The order sought was that each party meet half the costs of the ICL. The father’s senior counsel asked that in the circumstances of this case I dismiss the application.

21. The discretion to award costs is broad and informed by the provisions of s 117 of the Act.

22. The usual rule is that each party bears his or her own costs.

23. Where there are justifying circumstances, I can depart from the usual rule.

24. Here I am concerned that the father has to date incurred substantial legal fees, supervised contact fees, and travel to Australia (in 2023 alone on six occasions). Going forward he will meet the costs of supervision and travel for X to Australia. Those factors will impact on his financial position. I have very little detail about the mother’s financial position. I take the view that it would not be appropriate against that background to depart from the usual rule. This conclusion has been reached notwithstanding the appropriateness of the application and the gratitude of the court for the assistance of the ICL.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie.

Associate:

Dated:       24 January 2024