Pritchard & Maddrell
[2021] FedCFamC1F 331
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pritchard & Maddrell [2021] FedCFamC1F 331
File number(s): MLC 4929 of 2018 Judgment of: HARTNETT J Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – where the matter proceeded on an undefended basis due to the failure of the Respondent father to participate in the proceeding by the seeking of any orders and/or placing of evidence before the court – Final parenting orders sought by the Applicant mother – Risk to child in father’s care – Sole parental responsibility for the child to the mother – child to live with the mother – child to spend time with the father by agreement with the mother – Service of the final parenting orders on the father – All extant applications dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: B v B (1988) FLC 91-978; and
M v M (1988) 116 CLR 96
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 2 December 2021 Date of final orders: 2 December 2021 Place: Melbourne Solicitor for the Applicant: Fair Family Law Advocate for the Applicant: Ms Thompson Solicitor for the Respondent: Self-represented Advocate for the Respondent: No appearance ORDERS
MLC 4929 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: Ms Pritchard
Applicant
AND: Mr Maddrell
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS THAT:
1.The mother is granted leave to proceed with her Amended Initiating Application filed on 6 October 2021, on an undefended basis.
2.All previous parenting Orders be discharged.
3.The mother have sole parental responsibility for the child X born in 2016 (“the child”).
4.The child live with the mother.
5.The father spend time and communicate with the child at such times as agreed with the mother and on such conditions as agreed with the mother.
6.The mother shall advise the father of any serious illness or injury suffered by the child as soon as practicable following the onset of the illness or occurrence of the injury, and shall provide sufficiently detailed information and any necessary authorities to allow the father to obtain information directly from any treating medical practitioners.
7.The father forthwith provide to the mother his preferred contact details for communication in accordance with paragraph 6 herein.
8.The solicitor for the mother serve a sealed copy of the Orders upon the father as soon as is practicable. Such service shall be by ordinary prepaid post to the last known address of the father being J Street, Suburb K and also by email to the email addresses of:
(a)....com; and
(b)....com.
9.All extant applications are dismissed and the matter is removed from the pending cases list.
AND THE COURT NOTES THAT:
A.The father was called at 10:38am and there was no response to the call.
B.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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 pseudonyms Pritchard & Maddrell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
INTRODUCTION
This proceeding commenced upon the Applicant mother (“the mother”) filing an Initiating Application seeking final and interim parenting orders on 18 March 2021. At that time, the mother filed an affidavit of evidence together with an affidavit as to the Non-Filing of a Family Dispute Resolution Certificate pursuant to s.60I (9) of the Family Law Act 1975 (Cth) (“the Act”), alleging both actual abuse and risk of abuse perpetrated by the Respondent father (“the father”) upon the child the subject of the proceeding, X, born in 2016 (“the child”), now aged 5 years, and a Notice of Child Abuse Family Violence or Risk further detailing that risk as asserted pursuant to ss 67Z, 67Z (b) (a) and 69ZQ (1)(aa) of the Act.
The mother thereafter filed an Amended Initiating Application on 6 October 2021. It is that Amended Application on which she relies in this proceeding.
Otherwise, the material relied upon by the mother is as follows:
(a)affidavit of Ms Pritchard affirmed 18 March 2021;
(b)affidavit of Ms Pritchard affirmed 18 November 2021;
(c)affidavit of Ms Rebecca Thompson, solicitor for the Applicant, affirmed 30 November 2021; and
(d)section 67Z report dated the 15 April 2021 prepared by the Department of Families, Fairness and Housing (“DFFHS”).
I am satisfied that there has been service upon the father of the documents as relied upon by the mother. On 3 May 2021, an affidavit of service was filed on behalf of the mother. Mr B, process server, deposed to having served the father with the mother’s Initiating Application filed 18 March 2021; the affidavit of the mother affirmed on 17 March 2021, the Brochures - Marriage, Families and Separation, the affidavit as to the Non-Filing of a Family Dispute Resolution Certificate filed 18 March 2021 and Notice of Child Abuse, Family Violence or Risk filed 18 March 2021, with such service being effected by personal service upon the father as set out in that affidavit of service. Service upon the father occurred on 20 April 2021 at his then residential address of J Street, Suburb K 3121, and attached to that affidavit of service is a signed acknowledgement of service as signed by the father and dated 20 April 2021.
In respect of the affidavit of the mother affirmed on 18 November 2021, service was attempted upon the father at J Street, Suburb K by personal service by Mr B, process server, on 21 October 2021, 27 October 2021, 31 October 2021 and 3 November 2021.
Service was unable to be effected, because:
When I attended the given address on the above-mentioned dates and times, there was no person present at the premises. No mail was sighted. There is no off street parking, provisions for vehicles. I left calling cards at the premises. I have called the provided number for the Respondent of … all calls have gone to a generic voice message. I have left both voice and sent a text message. None of which have been responded to.[1]
[1] Affidavit of attempted service of Mr B filed 2 December 2021.
Service of the mother’s Amended Initiating Application filed 6 October 2021 upon the father occurred on 7 October 2021.
The first return date of the proceeding was 31 May 2021. The matter proceeded by video conference before her Honour Judge Mercuri. The solicitor acting on behalf of the mother appeared on the mother’s behalf, and the father appeared on his own behalf. The father had, at that point in time, not filed a Response nor any affidavit evidence. The court ordered an adjournment of the proceeding to 2 June 2021, and reserved the parties’ costs of that day.
Prior to 2 June 2021, the matter was again before the court on 27 May 2021. The solicitor for the mother appeared, and there was no appearance by or on behalf of the father. Senior Judicial Registrar Sudholz, before whom the matter proceeded on that day, was satisfied that the father had been served. The proceedings was adjourned to 31 May 2021. Relevant notations to the order included:
(C)The Registrar is satisfied that interim orders ought to be made as soon as possible given the issues in this matter, and note specifically that the father commence having supervised time after he was found by the police in a motor vehicle passed out, surrounded by syringes and covered in blood, and the child was in the vehicle.
(D)The Court understands that the Childrens Court intends to withdraw on 1 June 2021.[2]
[2] Orders of Registrar Sudholz made 27 May 2021.
The matter next proceeded on 2 June 2021 before her Honour Judge Mercuri. Orders made that day were as follows:
1. The matter be adjourned to 12 October 2021 at 9:45am for mention.
2.The Father is to make, file and serve Respondent material within 21 days of the date of these orders.
3. The final orders made on 11 November 2019 be suspended.
4.The child X born in 2016 (“X”) live with the Mother.
5.The Father spend time with X as agreed with the Mother via her solicitors nad [and] on such conditions as agreed by the Mother.
6. The Mother’s costs of today be reserved.
On 12 October 2021, her Honour Judge Mercuri made further orders in the matter, adjourning the proceeding to 2 December 2021 for final hearing. Further orders were made for the filing of any further Amended Application and affidavit of evidence-in-chief, and for the filing by the father of material, including any Response and affidavit of evidence-in-chief. I note the father had not, at that time, filed a Response or an affidavit of evidence. The father did not comply with the orders of her Honour Judge Mercuri of 12 October 2021, nor her earlier orders of 2 June 2021. The father has sought no orders from the court, and has placed no evidence before the court. He has failed to participate in the proceeding save for on 31 May 2021.
On 18 November 2021, Ms Thompson, the solicitor for the wife, served the father with a copy of the interim orders made by the court on 12 October 2021, together with the mother’s affidavit, filed 18 November 2021.
On 30 November 2021, the solicitor for the mother sent a text message to the father confirming the matter was listed for final hearing on 2 December 2021 at 10.00am, and was to proceed via Microsoft Teams. Ms Thompson received no response from the father to that text message.
Statements of fact in these reasons are findings of fact on the balance of probabilities.
BACKGROUND
The father was born in 1981. He is now aged 40 years. The mother was born in 1983. She is now aged 38 years.
The mother is reliant upon a Centrelink disability pension for her support. To the best of the mother’s knowledge, the father is unemployed.
The parties commenced their cohabitation soon after meeting in June 2015. They lived together briefly before the father was removed from the home by police in late December 2016. The child had been born some two months earlier.. The police obtained an interim family violence intervention order on behalf of the mother at this time wherein the protected family member was the mother.
Both the mother and father historically used illicit drugs. The mother was dependant on marijuana. In November 2020, the mother attended a 10 night detox program and completed an at-home rehabilitation program called discovery program through Anglicare to cease her dependency on marijuana. She has overcome that dependency and no longer uses marijuana. She continues to engage with her drug and alcohol counsellor Ms C through D Services on a weekly basis.
The father has had recurring problems with a heroin addiction, and to the best of the mother’s knowledge the father continues to use heroin.
The mother suffers from bipolar affective disorder which has at times caused her to function poorly. That disorder is now carefully managed by her, and by the treating professionals upon whom she attends. The mother complies with her daily medication program of sodium valproate olanzapine and attends for regular appointments with a psychologist, Ms E. The mother also engages with her psychiatrist, Dr F, on a monthly basis.
The Department of Health and Human Services Victoria (as it then was known, subsequently known as the Department of Families, Fairness and Housing) (“the Department”) have had ongoing involvement with the family since mid-2017 when the child was approximately eight months of age. An interim accommodation order was made at the time, placing the child in the father’s care. In mid-March 2018, upon the expiration of the family preservation order, Child Protection withdrew their involvement with the family. Thereafter, various notifications were made to the Department, and the Department’s renewed involvement with the family occurred in the manner as described below.
On 10 February 2020, Child Protection received a report in relation to the child in the care of her father. The concerns raised were that the father was driving a car and appeared drug affected. Police found the father asleep in the front seat of his car. The father admitted to police that he had used heroin at 9.30 am that morning, and fresh track marks were observed on his right arm. There was also blood, and an uncapped syringe found in the vehicle.
The child, X, was in the back seat of the car and was not appropriately secured. The father was also without a driver licence. The police confiscated the father’s keys and sent the father and child home on the train. Thereafter, Child Protection further investigated the matter. The father denied using heroin, and claimed that he had not used heroin for a period of some four years. The Department developed a safety plan with the paternal grandfather and the paternal uncle to supervise the father’s contact with the child until he provided a clean drug screen. The father did not complete any drug screens.
On 28 February 2020, Child Protection assessed that the safety plan was not being adhered to and the child was having unsupervised contact with her father.
On 4 March 2020, Child Protection applied for a warrant, Child Protection not knowing the whereabouts of the child. On 5 March 2020, the child was reported as a missing person. Child Protection subsequently located the child with the father and issued a protection application via emergency care. The Department’s concerns at the time included that the father had not completed any drug screens; was not engaging with Child Protection; and had not complied with the safety plan. The child was at that time placed in the care of her maternal aunt, Ms G. The child, stayed with her maternal aunt for approximately six weeks. The mother was, at that time, experiencing a mental health breakdown, and was in hospital. The Department wished to further monitor the mother, and liaise with her treating practitioners as to her capacity to be involved in the care of the child.
Between March 2020 and December 2020, orders were made in the Childrens Court for the child to live with the maternal aunt, and subsequently the mother, and for the father to spend supervised time with the child on three occasions each week. As a result of COVID- 19 restrictions, those contact periods had to occur over the telephone. The father would often only call the child once each week, and then not call the child at all for several weeks at a time without notice.
The orders referred to above included an order, on 20 September 2020, being a family preservation order providing for the child to continue to reside with her mother. The Department was satisfied that the mother afforded:
A safe and stable environment in which X was able to settle within her day-to-day care routines, and was supported to continue to reach her developmental milestones.[3]
[3] The Department of Families, Fairness, and Housing response to notice of child abuse, dated 15 April 2021, page 4.
It was the view of the Department that the mother, as at April 2021, had continued to:
…engage openly with Child Protection to support X’s ongoing developmental needs, particularly in relation to her education and challenging behaviours. Ms Pritchard has continued to demonstrate commitment to X’s best interests and has worked collaboratively with services to ensure the best possible outcomes are able to be achieved for herself and X.
The Department remained, however, concerned as to the father’s parental capacity. The Department described that as follows:
Concerns in relation to Mr Maddrell remain current in relation to his use of substances (intravenous use of methamphetamine, heroine, and cannabis) and lack of engagement with Child Protection and professional support services to address the protective concerns. Attempts have been made to schedule and maintain a safe and predictable contact routine between X and Mr Maddrell; however, Mr Maddrell has not remained consistent in attending such contact, even via phone or virtual platform. Mr Maddrell has also not engaged with a parenting program or other support service to demonstrate his capacity to provide appropriate or safe care to X.
It is the assessment of Child Protection that formal Court Orders and conditions stipulating safe contact with Mr Maddrell are necessary to ensure to the immediate safety of X. In the absence of this, X remains at an unacceptable risk of harm, given Mr Maddrell has yet to address the protective concerns or evidence sustained positive change. X requires stable and safe care in an environment that is able to support her therapeutic, emotional, and developmental needs, which she is afforded in the care of Ms Pritchard.[4]
[4] Ibid at pages 4-5.
Despite being permitted by the Department to speak with the child on a regular weekly basis, the father has called the mother to speak to the child on only two occasions since Christmas 2020. The mother has had otherwise no contact with the father.
The mother and child now live in a home which the mother rents from her grandfather in Suburb H. The mother is committed to the care of the child and to the promotion of her best interests, and is currently attending parenting classes from MacKillop Parenting Services. The mother has applied for, and now had approved, a grant of National Disability Insurance Scheme (“NDIS”) funding to help address the various behavioural issues that the child has, and such funding includes funding for a paediatrician appointment, and likely referral to a speech therapist.
The child is to commence primary school at L School in 2022. She has been participating in the orientation sessions online via Webex, and very recently had her first orientation session in person at the school.
There has been no further involvement by the Department in the mother’s care of the child since the Department withdrew from proceeding in the Childrens Court, which occurred on 4 June 2021.
THE LAW
In M v M (1988) 166 CLR 69 (“M v M”) the High Court dealt with the concept of unacceptable risk in parenting proceedings at paragraph 25:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations…
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse
In B v B (1988) FLC 91-978 (“B v B”) the High Court, at paragraph 7, endorsed the Full Court’s statement in M v M that the assessment of the risk to a child is the ordinary civil standard. The law is not that a child must have a relationship with each parent at any cost.
Section 60CA of the Act determines that the court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
Section 65D of the Act gives the court the power to make a parenting order, and s 64B of the Act defines the terms and identifies the matter that may be dealt with by a parenting order.
Parenting orders are subject to the presumption under section 61DA(1), that it is in the best interests of a child for the parents to have equal shared parental responsibility.
The presumption is rebutted if there has been family violence, s 61DA(2), or it is otherwise found not to be in a child’s best interests that this responsibility be shared, s 61DA(4).
When the presumption is not rebutted, by virtue of section 65DAA of the Act, the court must consider whether the child spending equal time with each of the parents would be in their best interests. To answer this question, the court must consider both whether it is in a child’s best interests to spend equal time by reference to the factors set out in s 60CC(2) and (3) and whether such an order is reasonably practicable.[5]
[5] Section 65DAA(5) of the Act.
CONCLUSION
The presumption of equal share parental responsibility as set out in s 61DA of the Act is rebutted, given the father’s history of neglect of the child, and the father’s last presentation being one of unacceptable risk to the child. The father has had no contact with the child for a period of almost 12 months, at his instigation. The father has failed to participate in this proceeding by the seeking of any parenting orders, or by the placing of any evidence before the court.
It is not appropriate to presently consider the child spending equal time or substantial and significant time with the father, given the risk that the father presents to the child as a consequence of his heroin use.
The benefit to the child in having a meaningful relationship with both her parents is outweighed by the need to protect the child from physical and/or psychological harm from being subjected to or exposed to further abuse or neglect, at the hands of the father. There is no evidence before the court as to any amelioration of this risk save for any conditions such that the mother might impose upon the child’s spend time arrangements with the father. The mother’s solicitor indicated in submissions that any time spent between the father and child would not begin until the father had completed a series of hair follicle tests demonstrating his continued abstinence from illicit substances.
The child has a strong relationship with her mother and the extended maternal family. The mother provides to the child all her necessary physical, emotional and financial support. The father has failed to take an opportunity to spend time and communicate with the child throughout the course of these proceedings; and, throughout the course of the Childrens Court proceedings immediately prior to the mother’s institution of proceedings in the Federal Circuit Court of Australia (as it then was).
The father is paying child support as assessed, which is currently approximately $16 per fortnight. It would appear to be coming from a Centrelink payment made to him. The mother receives no other financial support from the father.
The best interests of the child are promoted by the making of final parenting orders as sought by the mother, such orders being supported on the evidence before the court.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 21 December 2021
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