Nesham & Santis

[2021] FCCA 1585

FEDERAL CIRCUIT COURT OF AUSTRALIA

Nesham & Santis [2021] FCCA 1585

File number:	MLC 12557 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	17 June 2021
Catchwords:	FAMILY LAW – Final parenting – undefended hearing – where mother has not participated in proceedings – final orders made.
Legislation:	Family Law Act 1975 (Cth) s 60CC(3)
Number of paragraphs:	33
Date of hearing:	17 June 2021
Place:	Melbourne
Counsel for the Applicant:	Ms D Dwyer
Solicitor for the Applicant:	De Marco Lawyers
The Respondent:	No Appearance

ORDERS

MLC 12557 of 2020

BETWEEN:

MR NESHAM

Applicant

AND:

MS SANTIS

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	17 JUNE 2021

THE COURT ORDERS THAT:

1.Mr NESHAM ('the Father') have sole parental responsibility for the children, X born in 2017 and Y born in 2016 ('the children').

2.The children live with the Father.

3.Ms SANTIS ('the Mother') spend time and communicate with the children at times and on conditions as agreed between the parties by writing via text message or email and in the event of a dispute as to whether or not any particular time, circumstance or condition has been agreed, then the Father's last communication is to be determinative of that dispute.

4.Each party be at liberty to obtain a copy of all school reports, school photos, school notices, school newsletters and the like for the children at the sole expense of the party making the request.

5.The parties shall use email and/or text messaging to relay appropriate information about the children's routine, medication and any other queries or concerns relating to the day-to-day care of the children or any matters relevant to the children's arrangements and all such communications shall be civil and child focused.

6.That each party, by themselves or their servants and agents, be restrained from:

(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other to, or in the presence of, or within the hearing of the children and allowing the children to remain in the presence of, or within the hearing of, any third party engaging in such behaviour;

(b)Exposing the children to any form of family violence;

(c)Discussing these proceedings, and/or negotiations about parenting, with, or in the presence of, or within  the hearing of, any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to these Orders;

(d)Showing to or leaving accessible to the Children any document connected with these proceedings;

(e)Physically or otherwise inappropriately disciplining the Children by any means or permitting third parties to do so.

7.The Mother be restrained from:

(a)Consuming illicit and non-prescribed substances whilst spending time with the children and for a period of 24 hours prior thereto. (This injunction also includes a restraint that the Mother not consume any prescribed or over the counter medication other than as prescribed and/or in the recommended dosage);

(b)Consuming alcohol in excess of .05 BAC whilst spending time with the children and for a period of 12 hours prior thereto.

8.The Mother shall continue to attend upon her treating mental health, medical and other professionals and comply with all prescribed medication and treatment.

9.These orders be served upon the Mother by:

(a)Text message to any known mobile number for her; and

(b)By registered post to the Maternal Grandmother at B Street, Suburb C, Queensland, together with a request to bring the documents to the Mother's attention; and

(c)By email to any know email of the Mother.

10.The Father's solicitor to file an Affidavit of Service of these orders.

11.All extant applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A.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 are set out in Annexure A and these particulars are included in these orders.

B.Rule 16.05 of the Federal Circuit Court Rules2001, the Court may vary or set aside its order after it has been entered, if the order is made in the absence of the party.

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 under the pseudonym Nesham & Santis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. I am asked to make final orders relating to the welfare of two children, Y who is now aged 5 and X who is now aged 3 (‘the children’), in circumstances where the children live with their Father and have been in his care for some years.  The children last saw their Mother in late 2019.  The Father is 39 and employed in hospitality.  The Mother is 31 and, as far as the Father knows, is not currently working.  The parties commenced a de facto relationship in or about November 2015 and separated in or about March 2019. 

2. The Father has set out the circumstances of that relationship and the relationship between the Mother and the children in a large affidavit sworn on 13 November 2020.  I accept the evidence that he sets out therein.  Tragically, he proposes, and I accept, that the Mother, without notice to him, had come to his home where he lived with his parents and tried to remove the children from his care.  The Father called the police, and the Mother did not remove the children.

3. The police officers involved that day advised the Father that the community assessment team had been involved with the Department of Health and Human Services (as it was then) and that they were working with the children's mother, to try and help her.  The Mother attended upon the Father's home again in the company of a person believed to be her partner at the time, and again demanded to see the children.  The Father was not home, but his Mother refused to let the Mother remove the children from the home.  That was appropriate that she did so.

4. The first issue that I need to deal with in these proceedings is whether or not I should make final orders notwithstanding that the Mother is not present at court and has not participated in these proceedings in any way.  It is in the children's best interests that court proceedings concerning their living arrangements be finalised and not drift on just in case the Mother participates.  The history of the attempts to serve the Mother are set out in affidavits of service filed in the proceedings.  I accept those matters.

5. The proceedings were issued on 18 November 2020 and given a first return date of 23 February 2021.  Before that date had arisen, the Father's solicitors had contacted my chambers and sought an administrative adjournment of the matter to enable more time to attempt to serve the Mother.  As a result of that request, the matter was administratively adjourned to 9 March 2021. 

6. After the matter had been adjourned and in the lead up to that adjournment, the Father had gone out of his way to attempt to bring the proceedings to the Mother's attention, and, in an affidavit filed on 5 March 2021, at paragraph 5, he sets out his attempts to bring the proceedings to the Mother's attention by utilising his contact with a mutual friend, one Mr D.  He had asked that Mr D provide the details of the Father's solicitor to the Mother and requested that the Mother be requested to contact the Father's solicitor.  No one ever contacted the Father's solicitor.  The attempt to contact Mr D was on 9 February 2021. 

7. On 10 February 2021, the Father received a phone call from one Mr E who identified himself as the respondent's new partner.  Mr E, who self-identified as the new partner, requested the Father's help in persuading the Mother to get help for her drug use.  The Father declined to be involved in such a three-way discussion.  He asked this Mr E if he could make contact with his solicitor so that the service of the court documents could be organised.  Again, no one contacted the Father's solicitor.

8. The Father has kept in contact with the Mother’s mother, Ms F.  The Father has asked Ms F to bring the court proceedings to her attention.  He was told that if documents were posted to the Mother's last known address in Town G, Victoria, that the documents would automatically be readdressed to the respondent's personal post office box.  Documents were duly sent to that address as known to the Father and Ms F, but there was no response.

9. The Father also had communicated with the Mother previously by way of an email address commencing with the word “…”, and I will refer to this as the “… email address”.  The documents comprising the Father's application and affidavit had been emailed to the Mother at the art email address.  No response was received.  On 9 March 2021, Registrar Sudholz dealt with the matter.  There was no appearance on behalf of the Mother.

10. The matter was adjourned to 12 April 2021 for further mention, and it was ordered that the Mother attend court on that day by Microsoft Teams or telephone, and the Mother was ordered to file responding material.  Importantly, an order was made for what can be described as substituted service, and it was ordered that the necessary documents be sent by email to the art email address, and that they be posted to the last known residential address of the Mother (this being the same address where the Father had been informed documents posted would be redirected to a private post office box). 

11. The Mother was ordered to file material, and an affidavit of service was to be filed within seven days.  The matter came before me then on 12 April 2021.  On that day, interim orders were made, and the settled reasons will recite those interim orders.  Prior to the matter coming before me on 12 April 2021, the Father's solicitor had sworn a detailed affidavit of service setting out attempts to bring the proceedings to the Mother's attention. 

12. It is quite clear from the affidavit filed on 9 April 2021 that Register Sudholz's order of 9 March 2021 had been complied with.  The Father's solicitor swore, and I accept, that no response or any material had been received by the Mother after those documents had been sent by email and post.  Further, the Father's solicitor had taken the care to post the document by way of a registered post that had a tracking number. 

13. By tracking that document it was revealed that the envelope was still awaiting collection at the Town G post office shop on 12 March 2021, hence, I am unable to find that the documents were redirected to a post office box number as the father had been informed would happen;  however, there was no bounce back or difficulty with the email communication, hence, I find that the Father and his solicitor had done all that could be done to attempt to bring the documents and the proceedings to the Mother's attention prior to 12 April 2021.

14. On 12 March 2021, the Father has appeared by counsel and solicitor and requested that I make orders undefended, and final orders undefended.  On that day, I refused to do so and made interim orders until further order, and I set out those interim orders from number 1 to 12 and will also set out notation A and B below.  I adjourned the matter on that day until today.  I ordered:

    THE COURT ORDERS UNTIL FURTHER ORDER THAT:

    1.Mr NESHAM (‘The Father’) have sole parental responsibility for the children, X born in 2017 and Y born in 2016 (‘the children’).

    2.        The children live with the Father.

    3.The Father be excused from specifying the Final Orders that he proposes until the issue of the mental health of Ms SANTIS (‘the Mother’) has been assessed.

    4.The children spend time and communicate with the Mother at such times and upon such terms as agreed upon in writing between the parties by text message and/or email.

    5.Each party be at liberty to obtain a copy of all school reports, school photos, school notices, school newsletters and the like for the children at the sole expense of the party making the request.

    6.The parties shall use email and/or text messaging to relay appropriate information about the children’s routine, medication and any other queries or concerns relating to the day-to-day care of the children or any matters relevant to the children’s arrangements and all such communications shall be civil and child focused.

    7.        That each party, by themselves or their servants and agents, be restrained from:

    (a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other to, or in the presence of, or within the hearing of the children and allowing the children to remain in the presence of, or within the hearing of, any third party engaging in such behaviour;

    (b)       Exposing the children to any form of family violence;

    (c)Discussing these proceedings, and/or negotiations about parenting, with, or in the presence of, or within  the hearing of, any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to these Orders;

    (d)Showing to or leaving accessible to the Children any document connected with these proceedings;

    (e)Physically or otherwise inappropriately disciplining the Children by any means or permitting third parties to do so.

    8.        The Mother be restrained from:

    (a)Consuming illicit and non-prescribed substances whilst spending time with the children and for a period of 24 hours prior thereto. (This injunction also includes a restraint that the Mother not consume any prescribed or over the counter medication other than as prescribed and/or in the recommended dosage);

    (b)Consuming alcohol in excess of .05 BAC whilst spending time with the children and for a period of 12 hours prior thereto.

    9.The Mother shall continue to attend upon her treating mental health, medical and other professionals and comply with all prescribed medication and treatment.

    10.      These orders be served upon the Mother by:

    (a)       Text message to her known mobile number ending in …;

    (b)By registered post to the Maternal Grandmother at B Street, Suburb C, Queensland.

    11.      The Father’s solicitor to file an Affidavit of Service.

    12.All extant applications be adjourned to the Federal Circuit Court of Australia at Melbourne on 17 June 2021 at 9:45am for Interim Defended Hearing, noting that the hearing may proceed on an undefended basis of the Father’s application for final orders in the event the Mother does not participate in the proceedings.

    AND THE COURT NOTES THAT:

    A.Upon the return date, these Orders may be made as Final Orders on an undefended basis unless the Mother participates in the proceedings and files material as required.

    B.Rule 16.05 of the Federal Circuit Court Rules2001, the Court may vary or set aside its order after it has been entered, if the order is made in the absence of the party.

    …

15. Prior to the matter coming before me this day, the Father's solicitor has again filed a detailed affidavit of service.  I had raised with the Father's counsel that in this day and age of mobile phones attempts at service should include attempts at service via text message.  I had ordered that the documents be served upon the Mother by text message to her last known mobile phone number, and that they be sent to the Mother's mother at her known address in Queensland.  The Father's solicitor deposes to having attempted to comply with those orders; however, the text message did not work. 

16. The Father's solicitor kept receiving a "Message send failure, not delivered" message.  It then turns out that the Mother's mother had told the Father that the Mother had changed her mobile phone number.  The Father does not know the Mother's new mobile phone number.  Whether the Mother changed her number, or whether it was disconnected because of non-payment of the account, I do not know.  I cannot exclude the number being disconnected because of non-payment of the mobile phone bill because of the general chaos in the Mother's life.

17. The orders of 12 April 2021 were sent by ordinary pre-paid post but with a tracking number to the Mother's mother.  A search of the tracking reference number indicates, and indicated to the Mother's solicitor, that that order had been delivered to the Mother's mother's address on 28 May 2021.  The Father and the maternal grandmother, the Mother's mother, were in contact after that document had been received.  The Mother's mother advised that she would be taking photographs of the letter and the orders and would be emailing them to the Mother for her attention.

18. The Mother's mother asked that the documents be sent to another address in the same Victorian seaside town.  The Mother's solicitor did so, again, by pre-paid post with a tracking number.  By utilising the wonderful technology that's available via Australia Post in 2021, the Mother's solicitor was able to ascertain by electronic record that the letter posted to the recently advised address had been delivered to that address on 9 June 2021.  No response or communication has been received from the Mother. 

19. In all those circumstances, I find that the Father and his solicitor have gone to a lot of trouble and every effort that could be reasonably expected to bring the documents and the court proceedings to the Mother's attention.  Whether the Mother has not participated because she was simply unable to, given the chaos in her life, or whether she has chosen not to participate, is not known.  However, it's appropriate that the matter proceed undefended.

20. Apart from the evidence that the Father has set out as to the difficulties with his communication with the Mother, her behaviour, her drug problems and her violence towards him, I have other information independent of the Father.  By reason of the court's arrangements with the Department of Families, Fairness and Housing (DFFH), I have some further evidence available to me. 

21. The filing of a Notice of Risk triggers a response from the DFFH whereby that Department searches its records to ascertain whether there is information available within the DFFH's records that would assist the court in determining the welfare of the children.  That then causes the Department to send to the court what is known as a section 67Z response relating to the children.  

22. The 67Z response in this case was dated 29 March 2021, and I've marked that exhibit C1, 17 June 2021.  Relevant parts are as follows:

    The current report raises concerns for the Mother's alleged mental health, illicit substance misuse, alcohol use and parenting capacity. Further concerns are raised for the children's exposure to family violence between the parents, resulting in the Father obtaining an IVO against the Mother. The Father is requesting though the Federal Circuit Court that the children reside in his full time care and the he have sole parental rights. The Father is seeking that the Mother address her illicit substance use, alcohol abuse and mental health issues and undertakes supervised drug screens. The Father is requesting that the children spend supervised time with the mother at a professional contact service until the protective concerns are addressed.

    Follow up with Victoria Police has confirmed that there is an active and served full exclusionary IVO in which Father and children are protected persons. It is a non Police initiated IVO, active since November 2020, and which expires in November 2022. In relation to the Mother’s mental health and substance misuse, in June 2020 the Mother had a positive preliminary oral fluid test, and disclosed methamphetamine use an hour prior, and had a positive result for methamphetamine and MDMA. 

    It is assessed there is no current role for Child Protection based on the information provided as the children remain in the primary care of the Father, and there is no information to indicate risk of significant harm for the children in the care of the Father.  In relation to the Mother having contact with the children, this is appropriately managed via the Federal Circuit Court with the father’s request for the mother to address her substance use and mental health, and to have supervised contact to be taken into consideration…

1. Considering then the necessary legislation, I proceed on the basis that the best interests of the children are the paramount consideration.  In considering the best interests of the children, I am to consider as a primary consideration the benefit to the children of having a meaningful relationship with both of the child's parents, and the need to protect the children from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.

2. In applying those two considerations, I am to give greater weight to the protective concern. This can be summarised shortly as the legislation directs me to promote a meaningful relationship with both of the child's parents where possible, but provided it is safe to do so. I am also required, under section 60CC(3) of the Family Law Act 1975 (Cth) (‘the Act’), to take into account additional considerations. In the circumstances of the children's age, any views expressed by the children are not relevant.

3. The nature of the relationship that the children have with each of the child's parents and other important persons is significant, and I find that the father has been caring appropriately for these children since they have been in his sole care for some years now, and that the children have an appropriate relationship with him and also with his parents in whose house they reside. 

4. Section 60CC(3)(c) of the Act requires that I take into account the extent to which each of the children's parents has taken or failed to take into account the opportunity to participate in decisions about the children and to spend time with the children, or to communicate with them. The Father has told me today, and I accept, that the older child is now in grade prep at a local primary school, loves school and is enjoying reading and the process of reading together with her father of an evening. The younger child is already enrolled in three year old kindergarten at a local kindergarten.

5. It is significant that, unfortunately, the Mother has either been unable, because of her mental health and drug use, or unwilling, to participate in decisions about the children's welfare or to spend time with them.  I am also to take into account the extent to which the child's parents has fulfilled or failed to fulfil the parents' obligations to maintain the child.  The Mother makes no contribution to the expense of maintaining the children.  This is solely borne by the Father and his parents.

6. I am to take into account the likely effect of any changes in the child's circumstances, and, save for what appears to be the remote possibility that the Mother's mental health will stabilise and her drug use evaporate upon intensive treatment, there does not appear to be any likely change in the children's circumstances.  There is a real practical difficulty in the children spending time and communicating with their Mother in the circumstances of her difficult mental health and likely drug use.

7. I have no doubt that the Father has an appropriate capacity to care for these children, but I am concerned about the Mother's capacity to care for the children in her current circumstances.  The attitude to the children demonstrated by the father is appropriate.  He has been open to the mother being involved in the children's lives provided her mental health and drug use was not impacting on her circumstances. 

8. Unfortunately, I need to take into account family violence in this case as well.  There exists a crimes family violence order for the protection of the Father and the children that expires in November 2022.  The Father deposes, at paragraph 26, that during their relationship, at times when he and the Mother argued, that the mother would become aggressive and physically assault him.  On one occasion in 2017, she threw the older child's food bowl at him during an argument, and it broke against the wall.

9. On Boxing Day of 2018, during a disagreement between the parents, the Mother hit the Father and bit him on the shoulder and hit him in the eye causing bruise and nail marks.  The effect of the injuries were such that it was necessary for the Father to wear sunglasses for two weeks.  The photographs of the injuries he incurred on that occasion are exhibited at page 31 of 82 of that affidavit.  To describe those injuries, as the Father does in affidavits as causing a bruise and nail marks is a matter of significant understatement.  The photographs show a face battered and bruised, with an eye that can barely open. 

10. Unfortunately, that history of violence is a matter that I must take into account.  I must determine whether I should make an interim or a final order.  In all the circumstances, it is appropriate that I make a final order.  There are other facts and circumstances that are relevant to these children's welfare, but it is unnecessary that I recite them here.  Save to say that the Father deposes to, and I accept, still cares for the mother and would wish her health and drug use to improve, not only for her own benefit, but also so that she could play a role in the children's lives.  Unfortunately, that does not appear possible for the time being. 

11. It is in all those circumstances that I make the orders that I have indicated.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       19 July 2021