Obson & Badby
[2023] FedCFamC1F 498
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Obson & Badby [2023] FedCFamC1F 498
File number(s): MLC 10412 of 2012 Judgment of: BAUMANN J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – PARENTING – With whom the child should live – Where the child has been the subject of family law litigation for over 10 years – Where the father remains cyclically imprisoned upon offences including breaches of Family Violence Orders – Where Court appointed experts strongly recommend the child should no longer be subjected to any further forensic investigation –Final orders made to allow the child to establish communication with the father should the child wish to do so –Injunctions made restraining the father from contacting and/or approaching the child and the mother Legislation: Family Law Act 1975 (Cth) s 68B Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 31 March 2023 Place: Brisbane Counsel for the Applicant: Ms Eviston Solicitor for the Applicant: Legal Aid Queensland Counsel for the Respondent: Mr Christie Solicitor for the Respondent: Bookallil Family Law Counsel for the Independent Children's Lawyer: Ms Black Solicitor for the Independent Children's Lawyer: Kelly Lawyers ORDERS
MLC 10412 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS OBSON
Applicant
AND: MR BADBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
31 March 2023
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That the Applicant mother have sole parental responsibility for the child, X born 2010 (“the child”), and in the exercise of that responsibility the mother shall:
(a)advise the father in writing of the decision to be made, and provide relevant documents or information regarding the decision to the father; and
(b)the father shall provide any response or input regarding the decision to the mother as soon as practicable, but within fourteen (14) days of receiving communication from the mother.
Living arrangements
2.That the child live with the mother.
3.That there be no order for the child to spend time with the Respondent father.
4.That if the child expresses a desire to the mother to spend time with the father, then the mother shall as soon as practicable advise the father in writing by using Our Parenting Wizard site, of any desire expressed by the child to spend time with him and the mother will use her best endeavours to facilitate same.
Communication
5.That the father be prohibited from communicating with the child in any way whilst he is incarcerated.
6.That the child be permitted to communicate with the father by email or telephone if she desires and the mother will use her best endeavours to facilitate same.
7.That if child subsequently decides that she does not wish to communicate with the father, the father is prohibited from contacting the child or the mother or in any way harass the child or mother to reinstate contact.
8.That not before early 2024 or upon his release from prison (whichever is later), the father shall be permitted to telephone the child on the mother’s mobile phone on three (3) occasions per calendar year between 7.00am and 7.30am on the child’s birthday, the father’s birthday and Christmas Day noting:
(a)this Order shall only apply where the father is not incarcerated; and
(b)during the course of the call, the child may end the call at her discretion.
9.That not before early 2024 or upon his release from prison (whichever is later), the father shall be permitted to send celebration cards and gifts to the child on special occasions including the child’s birthday, the father’s birthday and Christmas, and for that purpose:
(a)the gift or card be sent to the mother’s postal address as advised by the mother from time to time;
(b)the mother be at liberty to view the contents of the cards and determine whether that card is appropriate to pass on to the child; and
(c)in the event that the mother decides not to pass a card on to the child, she will retain it in her possession to provide to the child at a later time if appropriate.
Parental communication
10.That the parents utilise Our Parenting Wizard for the purposes of communicating regarding these Orders and in relation to the child. Each parent is to be responsible for their own costs of subscription to this service or obtain a waiver for fees for this service.
11.That in the case of a medical emergency involving the child’s health, the parent with the care of the child at the time will notify the other within twenty four (24) hours of the emergency via text or the Our Parenting Wizard site.
Specific issues
12.That the mother be at liberty to provide a copy of these Orders to the child’s treating medical and allied health practitioners and any school she attends.
13.That this Order shall be authority for, and the father be at liberty to obtain from the child’s school, at his own expense, copies of:
(a)school reports and information regarding her progress;
(b)annual professional school photographs; and
(c)notices, newsletters and other general communication provided to parents by the school.
14.That the mother and father will inform the other party within seven (7) days of any change to their postal address or mobile phone number.
Restraints
15.That neither parent criticise or denigrate or otherwise behave in an aggressive or harassing manner towards the other parent or the other parent’s family in the presence or within hearing of the child or in written communication to the child.
16.That save and except as provided for in these Orders, the father in all other ways be restrained from and an injunction issue restraining the father from:
(a)contacting the mother or child or requesting any other person to do so on his behalf;
(b)attending at the child’s residence, school or extracurricular activities; or
(c)Being present during any time between the child and the paternal grandparents.
General
17.That Ms B be requested to explain to the child at the earliest availability, these Orders and their effect.
THE COURT ORDERS ON A FINAL BASIS:
18.That the Independent Children's Lawyer be discharged.
IT IS NOTED:
A.That if, within the next two (2) years, any person who brings an application for enforcement, contravention or variation of these Orders, that person will need to identify that an appropriate hurdle has been created and a decision such as a Rice & Asplund (1979) FLC 90-725 has been overcome.
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 the pseudonym Obson & Badby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X was born in 2010. She is the only child of the relationship between the applicant mother, who is now 51 years of age, and the respondent father, who is nearly 49 years of age. The parties separated when X was two years of age. Shortly thereafter, the first Intervention Order in these proceedings was made.
Proceedings were commenced in what was then, I assume, the Federal Magistrates Court in Victoria that ultimately resulted in the production of the first family report and a psychiatric report by a Dr C and Orders made on 27 August 2013. The importance of those Orders, apart from the fact that they provided, as has continued, that X live with her mother was for the father and the paternal grandparents to spend time with X. Importantly, the Orders made permitted the mother to relocate to Queensland. She has lived in Queensland since 2013.
In early 2014 X commenced counselling. She was not yet four years of age. She commenced that counselling with Ms B and that has continued until this day. The Independent Children's Lawyer (“ICL”) in this case relies upon two reports from the child's counsellor which I have, of course, read.
In August 2014 the father commenced proceedings in the Court and new final Orders were made in 2016 by Judge Lapthorn. Those consent Orders provided, similarly to the Orders I am being asked to make today, that X would live with the mother; that the mother would exercise sole parental responsibility, and there were Orders made in relation to the child communicating with the father and, it seems, other family members.
Not long after those final Orders were made the father was arrested on charges which seemed to have been, repetitive, often involving allegations of breaches of Family Violence Orders. As the parties have reached agreement, an agreement which I will endorse today, I do not propose to go into each one of the charges, convictions and periods of imprisonment which, sadly, the father in this case has encountered almost entirely during the life of this child. They are voluminous, repetitive and many are set out in the affidavit of the Independent Children's Lawyer directed by me to be filed at an earlier stage. The criminal record speaks for itself.
It was as if earlier Orders made, as I say in 2013 and then again in 2016, had not occurred, because, it seems, in late 2017 an Order was made on the application of the mother to suspend the child's time with the father. That arose in circumstances where, the father, was again imprisoned. The mother, conscious of her desire not to be seen to be unreasonably contravening Orders of the Court, a desire no doubt uppermost in her mind as a result of the types of contravention applications the father chose to file on more than one occasion, got that Order for suspension.
The father was, released in early 2018 and in June 2018 the Court again, seemingly on the Application that was then before the Court, made Orders for the child to spend time, which she did, with the father and the paternal grandparents, I believe in Victoria. Around that time the second family report was prepared by Ms D. Things, sadly, did not get better for the father because in mid-2019 he was sentenced to a term of imprisonment for similar offences again, although he was released in early 2020. In August 2020 the matter was transferred to what was then the Family Court of Australia.
A third family report, again by Ms D, was prepared. It became apparent when I first saw this matter that one of the ongoing difficulties was that after the experience the child had spending time with the father and the paternal grandparents in Victoria she expressed a discomfort in having further time in Victoria. The father sought orders by an Application made in May 2021 that the child spend time in Victoria. The Court was not prepared to accede to that request against the child's clear and expressed wishes.
This caused some difficulty for the father and his family, not only in terms of the costs of travel and accommodation in Queensland, but, as I recall it, some aspects associated with the father's parole conditions. A fourth set of interviews by family consultant Ms E took place in January 2022, resulting in a report filed and made on 21 February 2022.
In the report Ms E makes it clear that this child should not be exposed to any more forensic investigations. Her recommendations were abundantly apparent from the terms of the family report, and the Court decided to bring some finality to this matter, by listing it for a trial.
It was expected that the father would be available to participate in the trial personally when the trial was to commence on 21 July 2022. The record will reveal that on that day his father (the paternal grandfather) appeared, he being a party to the proceedings at that time, but that the father was again imprisoned on charges. The Orders made that day, partly by consent, reveal an agreement that again, although it was never in dispute, the child live with the mother, that she have effectively sole parental responsibility, that there were defined Orders made in relation to the ongoing time between at least the child X and her grandparents. The paternal grandfather was then removed as a party.
In respect of the time the father should spend with the child, that was adjourned to another day.
In late 2022 the father was again arrested on charges and kept in incarceration until release in early 2023. Conscious of what I anticipated to be his release date, on 20 February 2023 the matter was listed for trial today. I appreciate that, with the benefit of Legal Aid's funding under the cross examination scheme, both the mother and the father had the benefit of legal representation. Perhaps it should not have been a surprise to the Court, but nonetheless it was to some degree been surprising, that after having been released from prison only days earlier, the father was again arrested. He is in prison today. He has been able to listen to these proceedings from incarceration in Victoria.
The parties have reached agreement. I note the Orders offered are the fourth set of Final Orders in this matter during the life of this child. I am prepared to make them on those terms.
The reason, however, that I am spending the time providing reasons, something which it does not seem any other Final Order made by other judicial officers previously have ever caused to be published, is that it is my strong view on all the evidence, much of which is, of course, not tested, but some which is not and should not be controversial, that this must be the end of litigation between these parties. For that reason, notwithstanding me making the Orders, if there is any Application for contravention or variation of these orders made within the next two years they are to be listed before me, if possible.
X seems to be a delightful child. No doubt the disappointment of her father's conduct which she has expressed, and which the father has on more than one occasion in letters and words expressed remorse for, has meant that at her age now she wishes to get on with her teenage life soon to start. She has had enormous support from her mother who, in my view, notwithstanding the criticisms of her by the father in his self-prepared affidavit filed this month, could not have done more, in very difficult circumstances, to support X maintaining some connection with the paternal family. Lesser parents would have given up years ago. She did so, it seems to me, because she recognises that for X her decision to have this child with the father is a decision which X must bear for the rest of her life.
Whilst I accept the father is passionate about his daughter, loves her deeply and would like to be a part of her life, his inability to maintain civil behaviour and lack of criminal behaviour has made it almost impossible for this child to develop a continuing relationship with him. The criticism for that can be no one's fault but the father's, entirely and completely.
The fact that these orders are in the child's best interests and go some way to bringing finality is clearly appropriate to me when I consider the reports of the child's counsellor. The child's counsellor in a report filed previously in an affidavit relied upon by The Independent Children's Lawyer, that report dated 9 July 2022, inter alia, says:
It is also my assessment that should [X] feel her wishes are not being heard and actioned in the orders, she's likely to disengage from all contact in the future regardless of any Court order. Functional and healthy long-term family relationships will emerge only if [X] feels her wishes are respected and that those involved in these orders are holding her needs in mind above their own and wishing to support her in her needs and wishes above supporting their own needs.
The psychologist further states:
I also have significant concern that should [X’s] wishes not be heard and actioned into a child-focused contact order she will continue to have significant negative mental health effects from this experience. Such mental health decline would be significantly disappointing to see occur given it is preventable by the installing of a child-focused order and by those involved in the case always adhering and respecting [X’s] wishes and best interests.
When the child's psychologist came to write a further and final report for the Court, dated 15 March 2022, there had been another significant event in the life of the child. I am certain from my management of this case over a number of years now, that X wanted to have a functional relationship with her paternal family. She was very forgiving of her father's inability to act rationally and legally. Her disappointment was in some ways exacerbated by clearly what she believed were promises by her father that he would do better in the future, not go back into prison and play a role in her life outside of prison.
I recall the Court event on 21 July 2022 when the paternal grandfather travelled up from Victoria to appear in my Court for the trail. Amongst everything else he oozed two things which were palatable to me, his deep love and affection for his granddaughter X and his love for his son.
He expressed difficulty in justifying, which he never needed to do, the erratic and continuing repetitive criminal behaviour of his son. It was within that context that it was possible for Orders to be made that effectively separated, I thought, the capacity for this child to maintain a relationship with her loving grandparents, who were prepared to come to Queensland to spend time with her, and the difficulties created by the father himself in that relationship with his daughter.
In late 2022 the grandfather wrote to his granddaughter. Paragraph 2 of that letter says as follows:
I'm very sad to tell you that your father had a serious mental health issue […] and was attended to by the CAT Team as he was severely depressed and quite unwell. Unfortunately, he responded to two text messages from his former lady friend which got him into trouble with the law. So after treatment in hospital for [G Mental Health Service] he's now in the mental health secure facility at [F Correctional Centre]. I don't know what else to tell you. He is on strong medication for the time being, has lost his way and is a very lonely and depressed person right now. I suppose that the only thing that matters to him now is how he has let you down, [X], and how disappointed you must be. Anyway, you should know that he does love you and that we will always be here to support you in any way we can. We are all so very sad as we had such a nice time when he was home.
Whilst I can understand a grandparent in a position of the paternal grandfather having a sense of frustration, to lay such burden emotionally upon a child of this age in that way was highly inappropriate and has had a very negative effect on the child yet again, and the clearest example of that negative effect on this delightful young girl is set out in the second report of her counsellor. The report procured for the Court when almost prophetically reflecting on the earlier comments made by the counsellor, concludes with this statement by Ms B:
It is my assessment that the recent re-incarceration of [X’s] father has led her to reflect on the past in more detail and she has decided that she is no longer willing to be putting in effort and having to endure what she experiences as scary, negative and demanding behaviour from others. I observe [X] to be clear and independent in her thinking in the goals of wanting to be less stressed, have time to do the things she needs and wants to do, and to make changes to have only positive interactions with her paternal family. Whilst I appreciate that [X] is 12 years old and this age may be seen to some as young to be able to make decisions about contact, I continue to hold significant concerns that should [X’s] wishes not be heard and actioned into a child-focused contact order she will continue to have significant negative mental health effects from involvement in this experience.
Such mental health decline would be significantly disappointing to see occur given it is preventable via the installing of a child-focused order and by those involved in the order prioritising [X’s] wishes and best interests as a sign of their care and commitment to her.
Now, with that background, and having read all the material, including, sadly, the father's short affidavit he prepared himself, which contained a litany of unfair criticism of the mother not apparently facilitating time, but providing reflective on accurate disclosure about his time in prison and the mental health assessment units referred to by his father, I come to the conclusion that the Orders offered by the parties are, to use the counsellor's words, a child-focused outcome.
I have read the Order. In some ways I believe the mother is again demonstrating her commitment to try to facilitate in some way a continued involvement of the father in the life of the child. The Court might have been persuaded, I suspect, to have made a much shorter order with less prescription. However, I accept that the parties have negotiated this order today and all counsel at the bar table urge me to make it. It continues to place pressure upon the mother to do things. It continues to provide the father, although “not before [early] 2024 upon his release from prison, whichever is the latter”, with an opportunity to connect with his daughter.
I must say, on all the evidence, I have a real concern that any Orders made that may provide a benefit to the child to maintain a relationship with her father is more shaped by the father’s view of his entitlements as a parent rather than the test which must be applied in this Court, namely, what is in the best interests of the child. My way of ensuring this does never again get out of hand is, at least for the next two years - which will expire not long before I reach my retirement from this Court - anyone bringing an Application for enforcement, contravention or variation will need to identify that the appropriate hurdle created by a decision like Rice & Asplund (1979) FLC 90-725 has been overcome.
The mother, as I say, deserves enormous credit for what she has done under very difficult circumstances. X is very lucky to have her as a role model in her life. She is very lucky to have her love, support and understanding. It is only because, in my view, of the mother's attitude, to what is now litigation that has continued during the whole of this child's life, that there is any real prospect at all that X will continue to wish to spend some time or contact with her father. The child needs to see his behaviour improve and to stop hearing excuses from the father, the paternal grandfather and others for the father's lawlessness, because it seems to me that the great quality of this child, one to which I give enormous credit to the mother, is a sense of being able to forgive. It is often the greatest quality of children.
The orders I am being asked to make include restraints which are effectively injunctions pursuant to section 68B of the Act. They are important injunctions. The father should understand that any breach of those injunctions could, with his history, create very significant consequences for him. At the very least, if he has had the time, and if he has not he should make the time, to read some of the reports of the child's counsellor, one of the fears that this child continually expresses is a fear of her father approaching her at school and removing her from the school. There is some suggestion, according to one comment made by the child, that the father may have made such a threat although I make no such finding.
I make the Orders in the hope that this will be the last occasion that this matter requires any Court intervention.
I discharge the Independent Children's Lawyer.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 June 2023
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