Linden and Redmonds

[2019] FCCA 1746

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDEN & REDMONDS [2019] FCCA 1746

Catchwords:
FAMILY LAW – Parenting – passport application.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.62B, 65DA(2), 69ZW

Applicant: MS LINDEN

Respondent: MR REDMONDS

File Number: MLC 887 of 2018

Judgment of: Judge Harland

Hearing date: 26 March 2019

Date of Last Submission: 26 March 2019

Delivered at: Warrnambool

Delivered on: 26 March 2019

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondent: HBH Legal

ORDERS

1. The respondent father have sole parental responsibility for the children [X] born … 2011 and [Y] born … 2013 (“the children”).

2. The children live with the respondent father.

3. The children spend time with the applicant mother as agreed between the parties.

4. The father is permitted to obtain passports for the children pursuant to s.11 of the Australian Passports Act 2005 without the consent of the mother.

5. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

6. The father’s solicitor email a copy of these reasons to the mother.

IT IS NOTED that publication of this judgment under the pseudonym Linden & Redmonds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 887 of 2018

MS LINDEN

Applicant

And

MR REDMONDS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The mother filed an initiating application on 6 July 2017. Those proceedings were later transferred to this Court. In that application, she was seeking orders for the children to live with the father and to spend regular time with her. In her affidavit in support of her application, the mother refers to her history with the Department of Health and Human Services. The mother has another child from a previous relationship, [A], born … 2008. In February 2015, all three children were removed from the mother’s care and were placed initially with the father. [A] was later placed with the maternal grandmother.

3. The mother spent time at the Correctional Facility from … 2015 to … 2017. The mother does not refer to the proceedings in the Magistrates’ Court in 2015 in that affidavit. She acknowledges that she has not seen the children since 2015 and then sets out in paragraphs 33 to 36 what she refers to as being positive changes with her life, including engaging in drug rehabilitation, engaging with a corrections officer, seeing a psychologist and attending TAFE.

4. What unfortunately has become very clear is that any positive steps the mother was making to address any issues in her life were not successful, and the mother has failed to engage in these proceedings for the past several months. The mother was represented when she commenced proceedings, and orders were made on 8 March 2018 providing for the children to live with the father, for the father to have sole parental responsibility for them, and for the mother to spend time with the children for four hours in the Town B area in April and again in June on nominated dates with the time to be supervised by the maternal grandmother. The orders also provided for the mother to contact the children via FaceTime or Skype and for the mother to provide drug screens.

5. When the matter next came before the court in 25 July 2018, Ms Maddis appeared for the mother and indicated that she had been unable to get instructions from her. The previous orders were varied and the order was also made, pursuant to s.69ZW of the Family Law Act. On 1 March 2019 I made orders in chambers releasing the s.69ZW report for inspection. The mother’s lawyer withdrew from the proceedings on 13 September 2018.

6. The mother has not filed any material since her first application and affidavit. Exhibit A is an email with proposed minutes emailed to the mother by the father’s lawyer yesterday after the father’s lawyer was able to obtain an email address for her, as currently it is not known where the mother is. The documents that had been posted to her address have come back unclaimed.

7. The father moved to Queensland with his current wife and the children in 2017. In his most recent affidavit, the father briefly outlines the history with the mother and indicates that there were concerns about the mother’s parenting capacity during their relationship. He says there were times when she would leave the children unsupervised and [A] would either escape or set fire to objects. The father says he continued to have concerns after they separated and refers to the Department’s involvement in early 2015. 

8. In June 2015, he obtained orders on an undefended basis for the children to live with him and for him to have sole parental responsibility and for the mother to have supervised time at the Town C Contact Centre. He also referred to [A] being placed with the maternal grandmother as he could not deal with his serious behavioural issues and care for the other two children. 

9. He re-partnered in … 2014 and he and his wife have another child together, [D], and his wife also has three children from a previous relationship. The father says that from March 2015 until the mother initiated the current proceedings, that she only saw the children on one occasion and sent the children a valentine’s card and a birthday card.

10. The father refers to the mother’s imprisonment for aggravated burglary and drug-related offences, and says that he has requested drug screens from the mother during the course of these proceedings but not been provided with copies. He and his wife and children moved to Queensland in November 2017 as they had job opportunities and other ties in Queensland. The father says that the time between the children and the applicant did not progress well, and that the mother had some FaceTime contact with the maternal grandmother in attendance, but that it was overwhelming for the children. I note that [Y], in particular, was so young when she last saw the mother that she would have no memory of her.

11. The father describes [X] as lashing out and having behavioural difficulties. There was a face-to-face contact session in April, where the applicant’s mother withdrew as supervisor at the last minute, so the father’s sister supervised the time. After that occasion, the mother’s contact with the children by telephone became sporadic, and by late June 2018 she had stopped contacting them.

12. One other face-to-face visit took place in Victoria with the father’s wife supervising that visit, and since then the mother has not made contact with the children. He says they have not received any phone calls, messages, packages or cards, and refers to the fact that in November 2018 the mother contacted his wife by Facebook, writing that she was letting them know that she was not going to contact them any more, as she thought the kids were better off without her disappointing them.

13. The father says that the children are well-settled in Queensland. [X] is eight years old and in grade three. He has been seeing a psychologist since his mother was reintroduced to his life, but he is now settled down after experiencing the emotional turmoil from having his mother reintroduced to him. [Y] is in her first year of primary school and is doing well. The father talks about the difficulties and stress that these proceedings have caused him and expresses concerns about the mother’s lack of consistency and lack of insight into the impact of her reintroduction and then disappearance from the children’s lives.

14. The father’s wife also filed an affidavit, and she sets out in that affidavit the contact that she has had with the mother via Facebook, which has continued into this year, and which indicates that the mother has ongoing issues with drug use and antisocial activity. The s.69ZW report dated 1 March 2019 also refers in summary to the history that the Department has had with the mother and with [A] in particular. It refers to the fact that after her release from prison in … 2017 the mother appeared to have been making positive progress and had started to have an active role in [A]’s life.

15. However, there were then concerns about the mother missing appointments with her corrections officer and other agencies, and on … 2018 the mother was arrested and tested positive for methamphetamines. [A] was in the car at the time. There have been further drug tests where she has also tested positive for methamphetamines. There were reports that she had damaged her mother’s property on 11 November 2018, and the grandmother took out an intervention order against her.

16. The Department refers to the extensive history of reports raising concerns about the mother’s drug misuse, mental health issues, family violence and her inability to prioritise the children’s needs above her own. The Department indicated that it was unable to conduct any informed risk assessment given they have not been involved with the two children and the mother’s lack of engagement, but indicated they continued to be involved with [A], and there continued to be ongoing concerns about the mother. 

17. I am comfortably satisfied that it is in the children’s best interests to make final orders for the children to remain living with the father and for the father to have sole parental responsibility. In the minute of order handed up, which was also served on the mother by email, the father seeks an order that the children spend time with the applicant mother as agreed between the parties. The reality is that before the mother should spend any time with the children she would need to establish that she has addressed the very serious, chronic and ongoing issues she has had with drugs and mental health issues.

18. It would be detrimental for the children if the mother was to make contact and be reintroduced to the children once again only for her to disappear, and it’s clear from the father’s evidence that that was quite harmful to [X], in particular. The father seeks an order that he be able to obtain passports for the children without the mother’s consent. Given that the father has the sole care for the children and has done so since 2015, and given the mother’s lack of consistency and engagement, I think that it is appropriate that he be able to obtain passports without her signature, as it is unlikely that she would cooperate with that process. He should be in a position to be able to obtain passports for the children and take them overseas for holidays or other things should he wish to do so in the future.

19. The other order that the father sought was an order restraining the mother from making any further application in respect of parenting orders without the leave of the Court. That order was not pressed after some brief discussion, and is not an order that the Court could make at this stage without more, though certainly it is understandable from the father’s point of view as to why he would prefer there not be further proceedings. If there are further proceedings then, really, they should take place where the father and the children are living in Queensland.

20. Ideally, children should have the opportunity to know and have a relationship with both their parents, but that needs to be safe for them to do so. What is clear in this case is that the children currently do not have a meaningful relationship with their mother. The children are settled with the father and his wife, and are well looked after. The mother, really over some years from 2015 until now, has not been able to show that she is able to address the very serious drug issues that she has such that she is able to put the children’s interests first, though perhaps one might say that her decision to not pursue contact could be some recognition of that difficulty, but it is hard to say.

21. I am satisfied that the father has the appropriate attitude toward the responsibilities of parenthood, and I note that it is significant the father was willing to facilitate time with the mother and did so, including with respect to telephone time. It was clear that he had serious concerns about the mother and her capacity, and those concerns are well founded. It is unfortunate that whilst the mother appeared to be starting to turn things around in 2017 that that progress was short lived; and if anything, things have deteriorated since then. In all of the circumstances, I am satisfied that it is in the children’s best interests to make the orders that the father seeks in his minute of orders, so I will make those orders numbered 1 to 4 in accordance with that minute.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  24 June 2019