Nathanson & Younge
[2021] FedCFamC2F 146
•27 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nathanson & Younge [2021] FedCFamC2F 146
File number(s): MLC 5941 of 2021 Judgment of: JUDGE MCNAB Date of judgment: 27 September 2021 Catchwords: FAMILY LAW – parenting – applicant father incarcerated – father’s application has no reasonable prospects of success – respondent mother to have sole parental responsibility – children to live with the mother – children to have no contact with the father Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.09
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 27 September 2021 Place: Melbourne The Applicant: Appearing in Person Counsel for the Respondent: Ms D Weiner Solicitor for the Respondent: Docherty Legal ORDERS
MLC 5941 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NATHANSON
Applicant
AND: MS YOUNGE
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
27 SEPTEMBER 2021
THE COURT DECLARES THAT:
1.Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Applicant father to enable the children of the relationship X and Y both born in 2013 to obtain an Australian Passport to travel internationally, the Court makes the following orders:
2.It is in the best interests of the children X and Y both born in 2013 to be known as X YOUNGE and Y YOUNGE both born in 2013.
THE COURT ORDERS THAT:
3.Pursuant to r.10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the initiating application of the Applicant filed 27 May 2021 be summarily dismissed on the basis that there is no reasonable prospect of success.
4.The Respondent mother have sole parental responsibility for the children X and Y both born in 2013 (“the children”).
5.The children live with the mother.
6.The father spend no time or communicate with the children.
7.The mother of the children be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Respondent father.
8.Each of the parties henceforth exclusively use the name YOUNGE as the surname of the said children (until now known as X NATHANSON and Y NATHANSON and not cause or permit any other person to use any names other than X YOUNGE and Y YOUNGE as their names.
9.The mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the children previously registered as X NATHANSON and Y NATHANSON to X YOUNGE and Y YOUNGE, and the said Registrar do register the said children’s name as X YOUNGE and Y YOUNGE.
10.The mother do all such acts and things and sign all such documents as may be required to give effect to these orders.
11.All extant applications be otherwise dismissed.
IT IS DIRECTED THAT:
12.A sealed copy of these orders be served by the mother upon the Registrar of Births, Deaths and Marriages who IS REQUESTED to give effect to them, and to any application made to the Registrar pursuant to them.
AND THE COURT NOTES THAT:
13.Pursuant to s 62B and s 65DA(2) 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 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 Nathanson & Younge has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)Judge McNab:
INTRODUCTION
This matter involves an application for final parenting orders filed by the Applicant Father on 27 May 2021 in respect of twin boys born in 2013. By that application the Father seeks the following orders:
(1)the children live with the Respondent Mother;
(2)the Father communicate with the children a minimum of one time per month by video conference, FaceTime, Skype or telephone call, with the Mother to facilitate the call and make the children available;
(3)the Father be permitted to send cards, letters and gifts to the children at an address nominated by the Mother and the Mother is to ensure the children receive any gifts, letters or cards sent by the Father; and
(4)any further orders deemed appropriate by the Court.
The Mother filed her response on 31 August 2021, and that response was amended on
15 September 2021. By the amended response the Mother seeks final parenting orders as follows:
(1)the Respondent Mother have sole parental responsibility for the children including in relation to:
(a)the issuing of passports without notice to the Applicant Father; and
(b)the changing of the children’s surnames;
(2)the children live with the Mother;
(3)the children have no contact with the Father;
(4)pursuant to r10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Father’s application filed 27 May 2021 be summarily dismissed on the basis that there is no reasonable prospect of success;
(5)the Respondent Mother have leave for the matter to proceed on an undefended basis; and
(6)there be a declaration that it is in the best interests of the children that the surnames of the children be changed.
The matter came before me on 27 September 2021 via Microsoft Teams. The Father appeared on his own behalf and the Mother was legally represented. At the conclusion of the hearing orders were made in the terms sought by the Mother and oral reasons for judgment were given. These are those reasons.
BACKGROUND
In this matter the parties commenced their relationship in 2012 and separated in around late 2015. The parties were never married. It is said that the children have not had any contact with the Father since the parties separated.
As set out above, the Father filed his initiating application on 27 May 2021. By his supporting affidavit filed on the same day, the Father indicates that he is currently incarcerated at
B Correctional Centre. The reasons for the Father’s incarceration are set out below. The Father also briefly sets out that during the course of the relationship he worked part time and helped with the care of the children but that the Mother was the primary caregiver. He provides no further details as to the care arrangements during the course of the relationship.
The matter first came before the Court on 27 July 2021, where the Father appeared via telephone and there was no appearance by or on behalf of the Mother. Amongst other things, orders were made on that occasion for:
(1)information to be provided by Centrelink in respect of the Mother’s and children’s location;
(2)the Father’s material and a copy of the orders to be served on the Mother; and
(3)the matter to be adjourned to 27 September 2021 before me for a directions hearing.
The Mother filed her response on 31 August 2021, and that response was amended on
15 September 2021. By her supporting affidavit filed on 31 August 2021, the Mother says that she left the relationship with the Father due his drug use, particularly his use of crystal methamphetamine, and significant family violence. In respect of the children, the Mother also says that the Father provided “little to no care for the children”, and when the children were left in his care on occasion, his care for the children was, in effect, inappropriate, neglectful and put the children at risk of harm. For example, whilst the evidence is untested, the Wife states at [19] – [20] of his affidavit that:
19. The Applicant provide little to no care for the children. He could not be relied upon and looked after them 3 times by himself for around an hour on each occasion. He could not handle their crying, managing feeding or basic care such as changing nappies.
20. On the last occasion that I left the children with the Applicant was for a job interview, I returned home to find the Applicant asleep with the door to the bedroom shut. Meanwhile both the children were on the kitchen bench in a fruit bowl unable to get down. They both had soiled nappies. To my horror the Applicant had apparently taken sleeping medication then left it on the bench unsecured where the children could have ingested it. He had not even bothered to feed them the lunch that I had prepared and left in the fridge.
The Mother alleges in her affidavit that the Father perpetrated significant family violence against her and that the children were exposed to, and indeed subjected to, that violence. This included the Father being incarcerated for three months for assaulting the Mother
post-separation. In relation to that incident, the Father briefly states in affidavit that he was charged with common assault after slapping the Mother.
The Mother also sets out that Victoria Police first obtained a family violence intervention order against the Father on the Mother’s behalf in 2015 which allowed the parties to remain living together, but that order was varied in 2015 to be a full condition order after the Father allegedly made threats to kill the Mother. The Mother says the Father contravened the intervention order on multiple occasions, and the intervention order was ultimately extended in 2016 until 2020. The Mother’s evidence regarding the background to obtaining that intervention, which is set out in her affidavit, indicates that she was subjected to serious and frightening family violence by the Father.
The Father’s Incarceration
Despite his indication that he is incarcerated at B Correctional Centre, the Father provided no further explanation or evidence in his affidavit material as to why he is incarcerated or the length of his sentence. In her affidavit, the Mother stated that she believed the Father was incarcerated for a period of 18 months in respect of drug related offences.
However, upon review of the subpoena material in this matter from Corrective Services NSW, NSW Police, Corrections Victoria and Victoria Police, there was an indication that the Father had been sentenced in the County Court of Victoria in relation to a range of offences. Further investigation revealed that the Father was initially sentenced in 2019 after he was found guilty in relation to charges of assault with intent to commit a sexual offence, sexual assault, attempted rape and rape: see [case omitted] The Father also pleaded guilty to supplying a drug of dependence to a child, trafficking in a drug of dependence, theft and the summary offence of driving whilst disqualified.
During the course of the hearing before this Court, the Father indicated that his sentence was the subject of a review, and was reduced by three years on appeal. Despite the Father’s assertion, on further investigation, the Father’s sentence was actually reduced from eleven years to ten years of imprisonment (with the non-parole period reduced from nine years to seven years) by the Supreme Court of Victoria (Court of Appeal): see [case omitted]. The Father is eligible for parole at the end of 2026.
CONSIDERATION
I have read all of the material in this matter, including the subpoena material, as well as the sentencing remarks in [case omitted]. Whilst those two decisions were not referred to me by the Mother’s legal representatives, they are in the public domain as published judgments. The decisions are also corroborated by the subpoena material, as well as summary notes of the subpoena material forwarded to the Court by the Mother’s legal representatives on 26 September 2021, to which I have regard. Both parties were made aware that I had regard to the published sentencing remarks and the Father indicated that he was familiar with them.
By operation of s60CA of the Family Law Act 1975 (Cth) (“the Act”), the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
The primary considerations set out under s60CC(2) of the Act are as follows:
(a) the benefit to the child of having a meaningful relationship with both the child’s parents;
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I will not set the secondary considerations under s60CC(3) out in full, but I have regard to them in making my decision in this matter.
In relation to the subpoena material, the records set out a long and extensive history of offending [date omitted] by the Father, including a range of offences involving dishonesty, violence and breaches of intervention orders. Relevantly, as set out above, this included the Father being incarcerated for assaulting the Mother.
In relation to the Father’s current incarceration, whilst the Father says that the sentence imposed at first instance was the subject of a partly successful appeal in respect of the length of the sentence, the narrative set out in the reasons of Judge C remains relevant. That narrative, as well as the subpoena notes, sets out a history of coercive and controlling behaviour, significant violence and violent offending by the Father against not only the Mother but other women, including a minor. In [case omitted], Judge C states at [49] – [56] that:
49. Your prior criminal history is extensive, although it does not include any sexual offending. Of relevance to my task however, are offences of dishonesty and violence. In particular, you have numerous past offences against women. I have read summaries in relation to a number of those matters.
50. In 1995 you were dealt with for assault. In 1999 for assault occasioning actual bodily harm. In 2004 for recklessly causing injury, theft, unlawful assault, harassing a witness and recklessly causing injury. You were placed on an intensive corrections order. In 2005 you were dealt with for breaching an intervention order and intentionally damaging property. In 2007 you appeared a number of times for breaching an intervention order, recklessly causing injury, assaulting police, criminal damage and threat to kill. You breached your intensive corrections orders imposed and eventually served time in custody.
51. You returned to court in 2009 for offences of breaching family violence intervention orders, recklessly causing injury and assault. You served 12 months' imprisonment. Yet again in 2010, you appeared for similar offending and you served a two year term of imprisonment, with a non-parole period of 18 months. Most of those offences were committed against your former partner […]. That relationship lasted on and off from when you were 26 years old, until you were approximately 34. A number of your other prior matters for violence also relate to offences committed against women partners.
52. You were released in late-2011 and there was a gap in your offending. It is upon release from prison in late-2011 that you moved to City D and met the mother of your two children […].
53. This was apparently a good relationship for the first three years, before you relapsed into heavy drug use. Your partner eventually left you, taking the twins. She was forced to seek an intervention order against you.
54. You appeared in the Magistrates' Court in 2016 for charges of criminal damage, threaten serious injury, assault with a weapon and intentionally damage property, along with a raft of summary offences. Those matters related to your then-girlfriend and another woman. You served a three month term of imprisonment, before being released in September 2016 to a community corrections order for 12 months with treatment conditions. That order would have finished approximately three months prior to this offending, however I understand it never really began.
55. Since this offending you have also been dealt with in 2018 for offences of assault and breaching family violence orders in relation to [the Mother]…Those offences occurred variously in 2015 and 16.
56. When not in custody for the 14 months prior to the offending before me, you were on the run from police as a result of warrants that were issued in relation to driving offences. You apparently became aware of the existence of those shortly after being released from prison. You were a heavy user of methamphetamine prior to your arrest on these matters in 2018.
On the evidence, whilst it is untested, the Mother is entitled to hold the view that there is no benefit to be obtained from the children or her having any relationship with the Father, now or into the future. Any possible benefit that the children may have from having a relationship with the Father at this point, even limited to sending cards and photographs to the children, is likely to be outweighed by the risks presented by the Father and the tremendous stress that any level of relationship is likely to cause the Mother: see s60CC(2)(a) of the Act.
In respect of s60CC(2)(b) of the Act, the Mother is also entitled to hold the view that there could be a risk of harm to the children or her were the Court to make orders for the children to have contact with the Father, whether whilst he is incarcerated or when he is released from prison. Indeed, I refer to [case omitted], where Judge C states at [73] that:
73. You [the Father] clearly have serious issues with violence and in particular, serious issues regarding women and your violent treatment of them and as much was conceded by your counsel. In this instance, this involved sexual violence. [A psychologist] assessed your risk of further sexual offending as moderate/high. Any prospects of rehabilitation must be seen to be very guarded. Chronic drug use and your issues of anger loom as significant obstacles to your successful reformation.
It is also not in the best interests of the children for orders to be made for the children to spend time or communicate with the Father. The question of whether the children will indicate an interest in making contact with the Father at some point in the future is something that the Mother may consider as the children become older and she can make a decision as a parent at that point.
In my view, the Father’s application has no reasonable likelihood of success, given the extensive and significant history of violence (see, for example, s60CC(3)(j) of the Act), which is outlined in the material and set out in part above, and given that the Mother is entitled to act protectively for the children and herself. The Mother’s evidence is that the Father has not and is unlikely to make long term decisions in relation to the children and has not spent time or communicated with the children for some time, noting the Father has not spent time with the children since 2015: see s60CC(3)(c) of the Act.
For these reasons, it is appropriate that the Mother should be granted the relief sought in the amended response. On that basis, I will make final orders in the terms sought by the Mother in the amended response, subject to some minor modification.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 7 October 2021
0
2