Mullen & Rayne (No 2)
[2022] FedCFamC2F 1739
Federal Circuit and Family Court of Australia
(DIVISION 2)
Mullen & Rayne (No 2) [2022] FedCFamC2F 1739
File number: MLC 9072 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – final parenting orders – proceed undefended – discharging previous final orders – no appearance by Respondent Father – orders made for time by agreement only. Legislation: Family Law Act 1975 (Cth) Cases cited: Mullen & Rayne [2022] FedCFamC2F 1457 Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 17 November 2022 Place: Town B Counsel for the Applicant: Mr D. Carne Solicitor for the Applicant: Morrison & Sawers Lawyers The Respondent: No appearance ORDERS
MLC 9072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULLEN
Applicant
AND: MS RAYNE
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The Final Orders dated 2 March 2022 be hereby discharged.
2.The Mother have sole parental responsibility for the children:
(a)X, born in 2011; and
(b)Y, born in 2013;
save that prior to making a decision in respect to the children’s education, the Mother must:
(c)Inform the Father in writing (by mail, email, or text) of the details of the proposed decision and the reasons it is being made and contemplated;
(d)Seek the views and opinions of the Father in respect to such proposed decisions
(e)Where reasonably practicable, the Father have fourteen days to provide his views and opinions to the Mother in writing (by mail, email or text message) and, where such views of the Father are expressed courteously, the Mother consider the views and opinions of the Father by reference to the best interests of the child; and
(f)Any such decision made by the Mother, the Father be promptly advised of that decision.
3.The children live with the Mother.
4.The children spend no time with the Father unless agreed in writing by email, text message or letter.
5.Subject to any school policy in relation thereto, the parents authorise any schools at which the children may attend, from time to time, to provide the other parent, at the expense of the other parent, copies of school reports, school notices and school photographs in relation to the children.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mullen & Rayne (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. I apply Part VII of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical and repetition errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
This matter comes before me where I must determine three questions. The first question is whether the matter should proceed in the absence of the Father. The second question is whether the matter should proceed undefended if it should proceed in his absence. The third question is whether the orders now sought by the Mother should be made.
In regard to the first and the second questions, I have been told from the bar table and accept that the orders I made on 5 September 2022 were posted to the Father on 7 September 2022 to the address where the Father is believed to reside with his partner. In addition to that, I have before me the filed Affidavit of Service of the process server, Mr C, who served the Father at that address, and Mr C deposes that the Father is known to him. The orders of 5 September 2022 set the matter down for hearing at this circuit, and the letter of 7 September 2022 reinforced that fact. The Father had last filed material on 21 February 2022. These reasons should be read together with the first judgment in this matter (Mullen & Rayne [2022] FedCFamC2F 1457), being an emergency hearing to suspend the Father’s time with the children.
The Mother is 27 years old and works part time in retail. The Father is 31 years old, and it is believed that the Father is unemployed. The parties have two children, now 10 years old and 8 years old (‘the children’). The parties commenced cohabitation in about 2010, and they separated in about January 2015.
The proceedings had previously been issued on 13 August 2019, and they were resolved by final orders on 2 March 2022. By those orders, the Mother was to have sole parental responsibility, but with the qualification that, prior to making any decision in respect of the children’s education, the Mother was to notify the Father in writing by email, mail or text message of the proposed decision and the reasons behind it, seek his views where they were provided in a timely manner, and consider his views and advice in the decision made. The orders as of March 2022 otherwise provided that the Father spent time with the children on special occasions and from 11:00am Saturday to 12:00pm (noon) Sunday each third weekend. That was to continue during school holidays.
The matter came before me in September in some urgency due to the Mother’s concern at the behaviour of the Father that the children were exposed to. The Mother deposes in an affidavit filed on 23 August 2022:
[17][Child [X]] attended a visit with [the Father] on 9 July 2022. [Child [Y]] was at a friend's house for a sleepover and she had called [the Father] earlier that week to inform him. After the visit, [Child [X]] returned home and he was not his usual self. He was disengaged and did not want to speak about the visit with me. This is unusual for [Child [X]]. He is generally a very happy talkative child. The following morning, [Child [X]] asked me to come into his room as he had something to tell me. [Child [X]] said that he does not want to go back to [the Father]’s house. He said that during the day on the Saturday, [the Father] was driving erratically with him in the back seat. [Child [X]] told me that [the Father]'s friend [Ms D] was in the car and they were discussing rape and that [Ms D] was a 'rapist ' in front of him. I am aware that [Ms D] was recently released from a period of incarceration as a result of charges including burglary, theft of guns, possessing a trafficable amount of firearms, two counts of possessing a firearm while a prohibited person, theft and committing an indictable offence while on bail. [The Father]'s brother … was the co-accused in these matters.
[18][Child [X]] asked me what rape was. He said that they were 'going really fast ' in the car and he was scared. He said that [the Father] and [Ms D] were hanging out the car windows yelling 'fuck you copper dogs ' and sticking their middle finger up at them. [Child [X]] was significantly distressed telling me these things. He further told me that later that night, [the Father] left the house and said he was going to return with McDonald's. [Child [X]] said that [the Father] did not come home ‘for hours’ and he was staggering into walls intoxicated. He said that [the Father’s partner] was trying to help him walk and he began to yell and swear at her. He stood over her and screamed in her face calling her derogatory names like a 'bitch' and a 'slut'. [Child [X]] told me that he was too scared to move from the couch and he sat there crying until [the Father’s partner] carried [the Father] to bed. [Child [X]] told me that [the Father] is often coming home intoxicated. At changeover the following day, [Child [X]] said that [the Father] told him 'what is said and seen here, stays here.’ [Child [X]] told me that this was not the first time [the Father] has said words to this effect.
[19]I tried to console [Child [X]] as best I could. It was clear that he was uncomfortable and upset by the situation. [Child [X]] was crying and asked whether I would tell [the Father] what he said to me. He is frightened of [the Father] and what he may do to him.
I am satisfied that it is appropriate to proceed in the absence of the Father, and I am satisfied that it is appropriate to proceed on an undefended basis and only consider the evidence of the Mother.
The Mother had pressed for, effectively, the deletion of the requirement to advise the Father and consider his views in advance of her decisions with respect to parental responsibility, but has acquiesced in my view that that should remain. It turns out that when she consented to the final orders on 2 March 2022, the Mother’s hopes that the Father’s behaviour had ameliorated from the past was too optimistic and misplaced.
I take into account all of the matters under Part VII of the Act, and these orders are made on the basis of the best interests of the children. I will discharge all previous orders and remake the orders again. I will make final orders in the terms as set out in the Mother’s outline of case, I will make the orders as sought at numbers 2 and 4. I had also discussed with counsel the issue of the Father being entitled to obtain the usual school reports and so on.
I note that this morning the Mother’s solicitor rang the Father on his mobile phone number and left a message that he ring her. Subsequently, she spoke to him when the Father called and said to her that he was not coming to Court, that the Mother was “dragging it out,” and that he will wait until the children are older. Experience teaches me that rash statements like that are often reconsidered over the next months and years and lead to a further court case. It is for those reasons that I am of the view that the Mother should have the authority to determine the Father’s time with the children in the future, and that should be there is no time unless that is agreed between the parents in writing by text message, email or letter.
As to the existing qualification to sole parental responsibility, I will largely reproduce that order, save that what was previously paragraph 2.5, that is, a reference to in writing, and that will have added after it “by mail, email or text message.” After that close of brackets, it will read, “and where such views of the Father are expressed courteously, then the Mother consider those views and opinions by the Father by reference to the best interests of the child and inform the Father of any decision promptly.”
I will also insert in the orders, as discussed with the Mother’s counsel, paragraph 8.4. That is that the Mother and the Father authorise all schools at which the children may attend from time to time provide the parents with the usual information. Save that, I will not include 8.4.3, that is, providing some authority to attend school events. I will delete 8.4.2 that compels the Mother to communicate by telephone with the Father about the children’s progress. So that will be limited to 8.4.1, and that will be subject to any school policy in relation thereto.
Taking into account all of those matters, I am satisfied that those orders are in the best interests of the children.
Those are my reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 20 December 2022
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