Linden & Linden
[2023] FedCFamC2F 1340
•16 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Linden & Linden [2023] FedCFamC2F 1340
File number: SYC 7715 of 2021 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 16 October 2023 Catchwords: FAMILY LAW – PARENTING – Family violence – Where the father has disengaged from the proceedings – Where there are instances of inappropriate and aggressive communication from the father – Where there was a Final Apprehended Domestic Violence Order in place to protect the mother and children – Father has not spent time with the children in at least two years – Where one child has expressed a view to spend time with the father – Mother granted sole parental responsibility – Children to spend time with the father subject to the father providing evidence that he has addressed his anger management issues. Legislation: Family Law Act 1975 (Cth) ss 61DA, 60CC Division: Division 2 Family Law Number of paragraphs: 26 Date of hearing: 16 October 2023 Place: Sydney (via videolink) Solicitor for the Applicant: Mr Blumberg, Blumberg Family Lawyers The Respondent: Litigant in person (did not participate) Solicitor for the Independent Children’s Lawyer: Ms Morrison, Mahony Family Lawyers ORDERS
SYC 7715 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LINDEN
Applicant
AND: MR LINDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.The applicant mother have sole parental responsibility for X born in 2010, and Y born in 2011, herein referred to jointly as “the children”.
2.The children live with the mother.
3.Subject to the father providing the mother with evidence that he has attended an appropriate educational course and/or engaged in appropriate counselling to address his anger management issues, the children shall spend time with their father on such terms and conditions as are agreed to by the parents in writing.
4.Neither parent denigrate the other parent in the presence of the children, or allow a third party to do so.
5.Each parent shall immediately notify the other should either child experience any medical emergency.
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
DEPUTY CHIEF JUDGE MCCLELLAND:
These proceedings concern the parties’ children, X, aged 13 and Y, aged 12. The children have spent no time with the father since June 2021. This is despite the fact that the father has had the opportunity to do so by engaging the B Contact Centre. Effectively, the father has disengaged from the proceedings. He has not appeared today, and he did not appear at the compliance and readiness hearing listed in June 2023.
I will make orders as sought by the mother, save to the extent that the spend time order will be subject to the father providing the mother with evidence that he has attended an appropriate educational course and/or undergone therapy to address his anger management issues and that the children shall spend time with their father on such terms and conditions as are agreed by the parents in writing.
EVIDENTIARY MATTERS
In terms of addressing those matters that are relevant to my considerations, the mother and the Independent Children’s Lawyer (“the ICL”) have provided very helpful Case Outlines. In circumstances where it has not been challenged, I set out, by way of background to this decision, the chronology as set out in the mother’s Case Outline filed 11 October 2023 and as supplemented by several additional entries included in the ICL’s Case Outline filed 11 October 2023.
Date Event 1981 Date of birth of applicant mother 1982 Date of birth of respondent father 2007 Date of marriage 2010 Date of birth of parties’ first child, X 2011 Date of birth of parties’ second child, Y 28/03/2016 Date of separation 25/5/2016 Mother files Initiating Application seeking parenting orders 10/12/2018 Final Orders made by Judge Myers, in summary, the orders provide for the parents to have equal shared parental responsibility, for the children to live with their mother and for the children to spend substantial and significant time with their father. These Orders were consented to by the Independent Children’s Lawyer 10/2020 From October 2020 the mother has concerns for the children spending time with their father. In summary, these concerns include the father leaving the children at home unsupervised and requiring the children to transport themselves to primary school by public transport 2021 The mother advises the father via text message re Y’s sports photos at school. In response the father says “so fucken what you dumb whore, I will be dropping him off at 9am as that is the start of school, anyhow ... go fuck yourself with a piece of rusty barbed wire” 2021 The father is arrested and charged with offences: 2021 The father is held in Police custody 2021 Provisional ADVO made for the protection of the mother from the father at Local Court 2021 The father enters a plea of guilty in relation to all charges and is released on bail 2021 Interim ADVO made for the protection of the mother and children 2021 Father is sentenced to a supervised intensive corrections order. The Local Court makes a Final Apprehended Domestic Violence Order for the protection of the mother and children. 21/10/2021 The mother commences these proceedings 25/11/2021 First return date of proceedings. Orders made by a Judicial Registrar for:
1. Filing of response material
2. Interim Hearing
3. Child Impact Report
4. Production of s 245D material
2/03/2022 Child Impact Report prepared by Ms C 15/3/2022 Interim Hearing before a Senior Judicial Registrar. In summary orders made for the mother to have sole parental responsibility, for the children to live with her and for the children to spend supervised time with the father at the B Contact Centre 17/03/2022 Orders made for court-based FDRC 1/09/2022 Mother attends part one of the FDRC via telephone 5/09/2022 Orders made vacating the listing for the FDRC on the basis that the FDRP was no longer satisfied that FDR was appropriate Late 2022 Father makes sole application for divorce 20/09/2022 Further orders made for:
1. Appointment of an ICL
2. Preparation of a section 62G report
3. Compliance and readiness hearing14/10/2023 The Final Apprehended Domestic Violence Order in place for the protection of the mother and children expires 16/10/2023 Date of final hearing Current The children have not spent time with their father since June 2021 (As per the original)
Primary considerations
In terms of the issue of parental responsibility, I note that s 61DA of the Family Law Act 1975 (Cth) (“the Act”) provides that the presumption of equal shared parental responsibility applies in proceedings, unless the Court is satisfied, on reasonable grounds, that a parent has engaged in family violence (s 61DA(2)(b) of the Act). In this matter, I am satisfied that the father has indeed engaged in family violence and note that he has, in fact, been convicted of family violence related offences. This included offences in respect to third persons, namely, officers of D Authority who have sought to enforce child support obligations on behalf of the mother.
In that respect, most significantly, I note that on 23 June 2021, in discussions with representatives of D Authority, when the father was complaining of the fact that they had deducted money from a tax return that otherwise would have been payable to him, the father became quite aggressive. In circumstances where these are parenting proceedings, the rules of hearsay do not apply, and I rely on the following police statement:
About three minutes onto this phone call, the [father] told the representative that he was going to go to the [mother’s] residence and take his money back. He told the service representative “I will fucking [hurt] her ... I will [hurt her] and [harm myself]”. The [D Authority] Officer further confirmed with the [father] that he meant if they were to take more child support from him, he would go to the [mother’s] residence and take it back and [hurt] her. The [father] confirmed this as his intention. About six minutes into this phone call, the [father] made further threats to the [D Authority], stating “I am going to [hurt] you. I am going to [hurt] you. I will bend you over and [hurt] you”. This conversation continued with the [father] continuously threatening both the [mother] and the [D Authority] Officer.
After about 15 minutes, the phone call was transferred to a Social Worker for further assistance. The [father] continued his threatening behaviour and told the Support Worker that he would [hurt] her and himself. The [father] told the Social Worker that he had [a weapon] and was outside the [mother’s] residence and would attack Police if confronted. The Social Worker became fearful for the [mother’s] safety as well as her own and notified a coworker of the incident immediately. This co-worker called Police, informing them he was at the [mother’s] residence.
A short time later, Police attended the residence but were unable to locate the [father]. Due to the nature of the threats and the belief that the [mother] was armed and intending to cause harm to the [father], an extensive search of the surrounding area was conducted. The [father] was unable to be located so a triangulation was conducted on the [father’s] phone. At [5:00] pm, this triangulation showed the [father] was near the intersection of [E & F Streets] in [Suburb G]. This location is known to be close to the [father’s] work address at ‘[H Company]’ at [J Street, Suburb G].
(Annexure “B” to the mother’s affidavit filed 19 September 2023)
Significantly, this extract establishes that the father made threats to harm not only the D Authority officer and social worker but, most relevantly for these proceedings, the mother. That finding, together with the references that I will subsequently make to the manner in which the father has communicated with the mother, satisfies me that: firstly, family violence has occurred; and secondly, that the prospect of any appropriate communication occurring between the parties, given the manner in which the father has engaged in communication in the past, is simply not possible.
On the facts of this case, I am satisfied that the father will not engage in appropriate communication and, indeed, expecting the mother to do so by way of consulting with the father about parenting arrangements, would expose her to acts which, themselves, would constitute family violence. In that respect, for instance, paragraph 27 of the mother’s affidavit filed 19 September 2023 explains that on 17 June 2021, she sent an email to the father regarding the youngest child being required to participate in a sporting photo at school on the following day. The response from the father was:
So fucken what you dumb whore, I will be dropping him off at 9am as that is the start of school, anyhow ... go fuck yourself with a piece of rusty barbed wire [middle finger emoji]
(As per the original)
Further, annexure “F” of the mother’s affidavit filed 19 September 2023 includes a lengthy email to the mother dated 27 April 2021, where the father stated:
Because I continue to receive ransom letters every month from the Mafia as directed by the gold digging whore that you are, I have decided to remove all special privileges and entertainment that would normally be given to the children, and l have been in full discussion with the children that you are the direct cause of this change
…
I am happy to enter into a private arrangement to make this situation FAIR that’s right FUCKEN FAIR YOU MAFIA CUNTS ...... yes its a swear word ... get over it.
(As per the original)
I accept the mother’s evidence that the father’s reference to the mafia is the child support agency or D Authority.
This email is a further example of the father engaging in aggressive, inappropriate and, indeed, highly offensive communication. Having regard to the family violence and the inappropriate communication of the father, I am satisfied that there should be an order for sole parental responsibility. Accordingly, the orders I make in respect to spend time arrangements are what I consider to be, on the basis of the evidence, in the best interests of the children. Having regard to the provisions of s 60CC(2)(a) of the Act, I am satisfied that the mother has, despite the conduct that she has been subject to from the father, attempted to facilitate the children spending time with the father.
I note, in that respect, an interim hearing took place on 15 March 2022 before a Senior Judicial Registrar, where orders were made providing for the children to spend time with the father under supervision at the B Contact Centre. I am satisfied that that has not occurred. As I have noted, the children have not spent time with the father since June 2021 (mother’s affidavit filed 19 September 2023, paragraph 50). The father has also withdrawn from these proceedings, effectively depriving himself of the opportunity to argue for spend time orders.
In terms of the need to protect the children from harm and the provisions of s 60CC(2)(b) of the Act, I have referred to the evidence of family violence earlier in this decision to indicate the nature of the father’s difficulty in regulating his emotions and, specifically, his anger.
Concerningly, the father appears to be fixated on the fact that the mother has pursued her rights or, more specifically and correctly, pursued the right of the children to benefit from child support to help the mother sustain them and attend to their needs. In that respect, the mother’s evidence and the evidence of the police officers regarding the father’s anger is corroborated by consistent evidence included in the Child Impact Report dated 2 March 2022. In that report at paragraph 27, the Court Child Expert notes that the father said he is “still angry about the child support being formalised and that he will remain angry until the situation is addressed according to his wishes”.
I note that the Court Child Expert has expressed concerns that the father “does not see the need to address his anger, or even commit to trying to prevent [the children’s] exposure to this” (Child Impact Report dated 2 March 2022, paragraph 32). As a related issue to the father’s failure to prevent the children being exposed to his anger, the evidence satisfies me that the father has actually engaged the children in his concerns and the dispute between the father and the mother, including providing one of the children with a note, for the purpose of being provided to the mother. The note, which is set out in annexure “E” of the mother’s affidavit filed 19 September 2023, reads:
Dad said if you do not cancel child support payments, he is going to sell everything [the brother] and I own and make our lives hell and I don’t think he was kidding.
(As per the original)
That note was clearly written by the eldest child, insofar as he refers to his brother. The mother’s inference that the eldest child was directed and/or encouraged to write that note, is again consistent with the evidence set out in annexure “F” of the mother’s affidavit filed 19 September 2023, wherein the father said he had decided to “remove all special privileges and entertainment that would normally be given to the children”. These examples show that the father is prepared to engage the children in the emotionality of his conflict with the mother.
Accordingly, I am satisfied that there is a significant risk that, in the event of the children spending time with the father, they will be exposed to the father’s anger. I agree with the Court Child Expert, that such exposure would be detrimental to the children’s emotional and psychological welfare.
Additional considerations
I note that, in terms of s 60CC(3)(a) of the Act, the eldest child has, at least at the time of the Child Impact Report, expressed a desire to spend some time with his father. The youngest child was more ambivalent. In considering those views, I accept that the Court is required to give weight to the views of children at this age. However, it is necessarily the case that the children do not know the full extent of the manner in which the father has engaged in aggressive behaviour directed towards their mother and third persons. Accordingly, I accept, as submitted by the mother’s legal representative, that the mother has a responsibility to act protectively in terms of the circumstances in which they may, in the future, communicate with or spend time with the father.
In terms of s 60CC(3)(b) of the Act, the nature of the children’s relationship with the mother, father and other significant persons, I note that the mother has been the children’s primary carer and primary attachment figure since birth. Comparatively, the children have not spent time with the father since June 2021. I am also satisfied that the children have a warm and loving relationship with the broader paternal family.
In terms of s 60CC(3)(c) of the Act, I am satisfied that the mother has taken all appropriate steps to participate in making decisions concerning the major long-term issues affecting the children, spending time with the children, and communicating with the children. Comparatively, the father has not availed himself of that opportunity since June 2021 and has disengaged from these proceedings.
In terms of s 60CC(3)(ca) of the Act, I am satisfied that the mother has taken all reasonable steps, admirably as a single parent, to support the children physically, emotionally and financially including by attending to their educational needs and extracurricular activities. This is in circumstances where the mother was being challenged in the right she sought to enforce – that is, the right of the children to be beneficiaries of child support, which the father expressed reluctance to pay for other than on his terms.
Section 60CC(3)(d) of the Act is not relevant in the sense that the orders I make will not change the current circumstances of the children.
In terms of the capacity of the parents (s 60CC(3)(f) of the Act), as I have said earlier, the mother has demonstrated admirable parenting capacity, despite challenging circumstances, including being involved in litigation concerning the children since 2016, whereas that has certainly not been reflected by the father since at least June 2021.
In terms of s 60CC(3)(i) of the Act, that is, the attitude to parental responsibility, for reasons I have already explained, I am satisfied that the mother has, again admirably, fulfilled her responsibilities as a parent, whereas the father has failed to take up the opportunity to spend time with the children and to engage in these proceedings.
In terms of s 60CC(3)(j) and (k) of the Act, I have already referred to the fact that police action was taken against the father in respect to the events that occurred in June 2021. The mother has attached to her affidavit details of that police action, including the police obtaining an interim ADVO and a final ADVO that expired on 13 October 2023.
In terms of s 60CC(l) of the Act, the circumstances in which the father has disengaged from these proceedings are such that it can be doubted that the father would, in the future, seek to relitigate these issues; however, in the event of that occurring, I have placed on the record, by way of this judgment, the inappropriate and, indeed, violent conduct that the father has committed in the past, and that no doubt will be relied upon by the mother in the event that it is necessary to meet any potential future action on the part of the father.
Accordingly, for all of these reasons, I make the orders as sought by the mother and as amended by the suggestion of the ICL, and further amended by the supplementary words I have added.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 29 November 2023
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