Radborn & Falgate
[2022] FedCFamC1F 1092
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Radborn & Falgate [2022] FedCFamC1F 1092
File number(s): BRC 7719 of 2018 Judgment of: BAUMANN J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – PARENTING – Best interests of children – Where the parties reached a final agreement – Where the father is currently facing criminal charges – Order made for children to live with the mother Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 19 December 2022 Place: Brisbane Counsel for the Applicant: Mr Coe Solicitor for the Applicant: Raniga Lawyers Counsel for the Respondent: Mr Seaholme Solicitor for the Respondent: RJ Cutler Solicitor Counsel for the Independent Children's Lawyer: Mr Hii Solicitor for the Independent Children's Lawyer: Brisbane Family Law Centre ORDERS
BRC 7719 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RADBORN
Applicant
AND: MS FALGATE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous parenting Orders and parenting plans in relation to the children, X born 2012 and Y born 2014 (“the children”) are discharged.
2.That the mother have sole parental responsibility for decisions concerning all major long-term issues for the children.
3.That the children live with the mother.
4.That the children spend no time not communicate with the father save for the following:
(a)The father is at liberty to send cards, gifts, letters and/or photographs for the children to the mother’s nominated address being B Street, City C, Queensland; and
(b)The mother will facilitate the children providing any cards, gifts, letters and/or photographs to the father at D Street, Suburb E, Queensland.
5.That the Independent Children's Lawyer be discharged.
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 Radborn & Falgate 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:
This matter has a long history and sadly, in terms of the father’s behaviour, a difficult history. They are the parents of X, who is now 10, and Y, who is now eight, and their relationship came to an end in 2016 by which time there had been domestic violence orders and, regrettably, the father has been convicted of breaches of those orders.
When time ceased at the mother’s instigation in January 2017, the father commenced these proceedings. It has taken some time from the commencement of the proceedings in July 2018 until it came before me, after being transferred to Division 1 by a Division 2 Judge in 2021.
I have the benefit of a recent family report prepared by Dr F, although not much had changed from an earlier report – that report arising from interviews in July 2019. The Court Child Expert recommended supervised time for the children with their father. There is at least evidence that supervised time has at times occurred.
The father was convicted of a further breach of a domestic violence order involving this mother in early 2020 after the family report of Dr F. On that occasion, he was convicted and sentenced to community service.
The father formed a new relationship, it seems, during 2019, resulting in the birth of a son, W, who was born in 2020. When the child was approximately two months of age, the father assaulted the child W. I am able to make such an assessment because in early 2022, the father was convicted of common assault of that child and placed on probation. At the same time, a domestic violence order against the father in respect of W’s mother was made for a further period of five years.
With a view to understanding the mother and father’s psychiatric profile and personalities, the independent children’s lawyer, who has been consistently and persistently involved in this case seeking to gather the necessary evidence to enable the Court to make a decision which is in the best interests of the children X and Y’s, obtained a psychiatric assessment from Dr G.
He saw the mother in late 2020 and the father in early 2021. It seems that awaiting the report of Dr G, finally delivered on 15 June 2021, further delayed the progress of the matter. I have read that report as I read the report of Dr F. It is fair to say that Dr G’s concerns about the father are reflected in his report. His behaviour, at times is highly aggressive and abusive of women and ex-partners in particular, and seems to have some connection with his use of alcohol and perhaps an illicit drug. It was identified that he would benefit from psychological or psychiatric treatment. There were no real concerns raised by Dr G in respect of the mother, who he opines has a good prognosis and there were no psychiatric issues of concern the expert identified.
Confronted with this past history and, in my view, once the common assault conviction had been dealt with, there seemed no reason, as far as I can see, why the matter should not be progressed to trial. These cases are very difficult as, whilst the father has had some difficulties and whilst he is no doubt doing what he can to deal with those issues, and whilst I accept, as I think the mother does, at one level the father deeply loves these two children and wishes the best for them, the father’s criminal behaviour has again come to the attention of the authorities in early 2022. The father was charged with the assault of W’s mother and further breach of the domestic violence order.
He is, as he is perfectly entitled to do and with the presumption of innocence, defending those charges. He may ultimately be found to be not guilty. Nonetheless, in mid-2022, with this history and with, in my view, the concern that the mother was continuing to have to meet the day-to-day needs of the children notwithstanding the suspension of all time, including telephone time, by order of a Senior Judicial Registrar made in November 2021, I ordered that the matter be listed for hearing in December and that a specific issues report be prepared, namely to understand from the evidence before the Court arising from Dr F’s report taken from interviews in July 2019 what the children’s views are now, some three years later.
The report of Ms H is simple, clear and I accept, appropriately reflects the children’s capacity to not only remember fondly some of their father’s connection with them but really a desire to move on with their life. They are absolutely positive about the mother’s parenting and her care of them, which must have been at times very difficult for the mother to achieve. There is nothing to suggest that the mother is blessed with significant financial benefits. She has continued to, however, meet the children’s emotional, financial and physical needs almost singlehandedly. The children give their mother great credit without necessarily being negative of the father.
To a large degree, in my view, it is open to find, as I do, that they have not had their father blackened in sense by his involvement or lack of involvement with them. They still seemingly call him Dad. They both expressed a desire to have some time with him, but as the family report writer Ms H indicated at paragraph 20 of her report:
[X] and [Y] require certainty, consistency and stability. The father’s inconsistent and unpredictable involvement in their lives has caused them to feel sad and confused. It would also appear that the children have experienced somewhat of what I would describe as an ‘emotional rollercoaster’ with the father disappearing and reappearing from their lives without warning or explanation. This has undoubtedly had an impact on their emotional wellbeing.
And at paragraph 21:
It is clear that the children love their father and miss him. It also appears that the mother has facilitated the children's relationship with their father when he has been available. It also appears that the father's absences relate to his poor behavioural choices, so until he can attain stability in his own life, the potential exists that this pattern of inconsistent and unpredictable interaction with the children will continue to happen.
As identified, the father is facing very serious criminal charges at this point in time. He is entitled, as I say, to the presumption of innocence and he is entitled to defend himself. If he is found guilty of these charges, with his history it is likely he will incur a significant term of imprisonment.
If he is found not guilty of these charges, then other things could flow from that. However, for these children the order I am offered today as a final order are in their best interests for these reasons. It provides for the mother, in a practical sense, to have the sole parental responsibility for matters relating to their major long-term issues such as schooling and health. It provides the certainty of the children living with the mother. But importantly, the parties agree, as does the independent children’s lawyer, that although the children will have no prescribed time or communicate with the father, the father will be at liberty to send cards, gifts, letters and/or photographs for the children to the mother’s nominated address and the mother will facilitate the children, providing any cards, gifts, letters and/or photographs to the father.
It is implicit, of course, that the mother will, when she receives the cards, gifts and photographs for the children from the father, that she give them to them. Should she fail to do so, then although it may be a breach of the order which the father would never know about, the effect might be even more significant. The children know they have a father. They may fantasise about him in the way that they remember him or the way they hope he is now. Providing some realistic understanding of his life and their life through these cards and photographs means that the mother’s current comments to the children that the father is either busy, away or otherwise involved might not lead to them feeling abandoned but rather to accept as it is that the father is unavailable.
That is a better outcome for the children and preserves at least the prospect, if they so wish as a young adult, to pursue a relationship with their biological father, knowing something about him and him knowing something about them. Until then, the mother quite properly has full responsibility to look after the care of these children. It is a responsibility which, on the evidence, I am very satisfied she is both capable and willing to undertake.
For the reasons which I give, I make the orders which appear at the commencement and which I make today, initialled by me and placed with the papers, which are in the children’s best interests.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 June 2023
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