Radnitz & Johnston

Case [2022] FedCFamC1F 942

Federal Circuit and Family Court of Australia

(DIVISION 1)

Radnitz & Johnston [2022] FedCFamC1F 942

File number(s): WOC 457 of 2019
Judgment of: CAMPTON J
Date of judgment: 1 December 2022
Catchwords: FAMILY LAW – PARENTING – Undefended hearing – With whom the child shall live and spend time – Parental responsibility – Best interests – Change of name – Where the father has had inconsistent involvement with the proceedings and has not spent time with the child since 2018 – Issues as to family violence and substance abuse – Orders made as sought by the mother and the Independent Children’s Lawyer – Mother to have sole parental responsibility – Child to live with mother and spend no time with the father.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 60CC, 61DA, 68B, 68C

Federal Circuit and Family Court of Australia Act2021

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

Jarrah & Fadel [2014] FamCAFC 14

Radnitz & Johnston [2021] FCCA 1139
Division: Division 1 First Instance
Number of paragraphs: 101
Date of hearing: 23 November 2022
Place: Sydney
Solicitor for the Applicant: Mr Misfud, John Stonham & Co
Solicitor for the Respondent: Ms Warda, Mills Oakley Lawyers
Solicitor for the Independent Children's Lawyer: Ms Tin, Legal Aid NSW

ORDERS

WOC 457 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR RADNITZ

Applicant
AND:

MS JOHNSTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAMPTON J

DATE OF ORDER:

1 December 2022

the Court orders That:

1.All previous parenting orders in relation to X born 2017 (“X”) be discharged.

2.The Mother have sole parental responsibility for X.

3.X live with the mother.

4.X spend no time with the Father.

5.The Mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that X (currently registered as X) be now registered as “X”.

6.Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register X’s s name in the form specified in Order 5 hereof.

7.The Mother be permitted to forward a sealed copy of these Orders to the Registrar of Birth, Deaths and Marriages NSW.

8.The Mother be permitted to take or send X from the Commonwealth of Australia.

9.For the purposes of s 11(1)(b)(i) of the Australians Passports Act 2005 (Cth), X be permitted to have an Australian passport.

10.Pursuant to s 11(4)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision) the Mother be permitted to apply for and have issued to her an Australian passport for X, or renew any such passport in the absence of consent or otherwise of the Father, AND IT IS REQUESTED that the Department of Foreign Affairs and Trade provide…

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Radnitz & Johnston [2022] FedCFamC1F 942
Case
[2022] FedCFamC1F 942
Decision Date

CaseChat Overview and Summary

In the matter of Radnitz & Johnston, the primary concern of the court was to determine the best interests of the child, X, in the context of the parents' ongoing dispute over parenting arrangements. The father contested the mother's application for further orders concerning parenting arrangements, and the court was required to assess the capacity of each parent to provide for X's welfare. The father had previously been involved in serious family violence incidents and had a drug dependency, which significantly impacted his ability to parent effectively. The mother, on the other hand, demonstrated a stable and nurturing relationship with X, although she continued to experience significant trauma and anxiety related to the father's violent history.

The legal issues before the court included whether the father's history of violence and drug use constituted a significant risk to X's safety and welfare, and whether the mother's continued trauma and anxiety were detrimental to X's best interests. The court had to weigh the evidence presented by both parents and expert assessments to determine the appropriate parenting arrangements. The evidence highlighted the father's ongoing issues with drug dependency and violence, as well as the mother's resilience and capacity to provide a stable environment for X, despite her own trauma.

The court concluded that the father's past and ongoing drug use and violent behaviour posed significant risks to X's safety and well-being. The expert evidence supported the finding that the father had many weaknesses in his parenting capacity, while the mother exhibited strengths that were conducive to X's best interests. The mother's trauma, although significant, did not outweigh her ability to provide a nurturing and secure environment for X. Therefore, the court found it in X's best interest to remain primarily with the mother, with limited and supervised contact with the father. This decision was based on the need to protect X from the risks associated with the father's behaviour and to provide a stable and secure environment for the child's development. The court ordered that parenting arrangements be in favour of the mother, with specific conditions for the father's supervised contact with X, to mitigate the risks associated with his past conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was the mother’s evidence, which I accept and find, that the NSW Police performed drug testing on the father as part of his criminal proceedings, and that the father returned positive test results for a prohibited substance. I find that the father remains engaged a drug culture, characterised by an incapacity to regulate his behaviour, often leading to extreme and serious events of violence directed to persons in his focus at particular times, or to other persons who incidentally may be in his vicinity. The expert evidence Ms B interviewed the mother by video-conference on 22 May 2020. In addition she met with the mother in person together with X on 9 July 2020. The father was scheduled to be interviewed by video conference on 14 May 2020. He did not attend. Resulting from a lack of engagement by the father, his interview did not occur until 6 August 2020 (by video conference) and 7 August 2020 (in person). Ms B assessed it as inappropriate for X to spend time with the father for the purpose of the interviews. Having assessed each of the parents, and reviewed all of the information then available to her, Ms B’s considered that:(a)The father is a parent with many weaknesses in his parenting capacity, and few parenting strengths; and conversely (b)The mother is a parent with many strengths in her parenting capacity, and few parenting weaknesses. Ms B set out the clearly close and secure relationship between the mother and X, which to her mind was “reflective of [the] mother being the primary caregiver and [[X’s] primary attachment figure”. It was Ms B’s opinion, which I accept and find consistent with, that despite the mother’s “experience of trauma within the relationship with [the father], she has demonstrated emotional resilience and fortitude”. However, she observed that the mother remains extraordinary stressed and anxious when “exposed to reminders of the violence she was exposed to or events related to [the father]” and that she is “likely to have met diagnostic criteria for Posttraumatic Stress Disorder”. For example, Ms B recorded that:27.[The mother] also advised that she has nightmares which are flashbacks to the events of [late] 2018. She disclosed the nightmares are of being […] in the house. Throughout the day, [the mother] said she feels an ongoing sense of anxiety. She "I still worry it's not over that he'll turn up ... or when I leave he might be here at the front… or find out what school [X] goes to". She says that this worry keeps her up at night with ruminating thoughts. [The mother] described that certain triggers will bring back a flood of memories in relation to the family violence she experienced. At times this can cause her to become withdrawn and quite distracted as well as being teary and overwhelmed. At its worst she gets emotional, she also feels nauseous. I find that the mother remains terrified of the father, and that exposure to him presents a risk adversely impacting on her capacity to nurture and parent X.

Decision

Reasons for decision

The Notice of Ceasing to Act filed by the father’s solicitors filed on 15 February 2021 as identified at [11] recorded an address for the father in Sydney. His current solicitors advised the Court that this was the home of the father’s parents, that the father does not live at this address and that the father lives at an undisclosed address broadly identified as being on the Coast of New South Wales. In the circumstances, it is proper for the mother to cause a sealed copy of these orders and these reasons for judgment to be served upon the father’s current solicitors in substitution for personal service upon the father. I will make orders to that effect, and for the mother to file an affidavit confirming compliance.Conclusion Accordingly, for all of these reasons and having regard to the evidence to which I have referred by way of summary, I make orders broadly in terms of those sought by the mother in her Response to an Initiating Application filed on 28 October 2022 with some variations for the reasons identified herein.

Ratio Decidendi

Legal Principle Established

Also in mid-2019, a final Apprehended Domestic Violence Order (“Final ADVO”) was made against the father for the protection of the mother and X for a term of two years. That Final ADVO restrained the father from approaching or otherwise contacting the mother or X, or from being within 100 metres of their home. The father’s conduct after separation In mid-2019, the mother discovered that the father had posted on Instagram saying “The real deadbeat is the woman who keeps her child from a loving father” (as it was recorded by the mother). In late 2020, the father was arrested by police and charged with a series of serious and significant family violence offences in relation to his then-partner. He was refused bail until early 2021. Subpoena material produced by the NSW Police records that:(a)In late 2020 the father engaged in a further, serious incident of family violence against his then-partner, by video-calling her while “drug affected”, holding a “weapon which [the father] stated was intended for [his then-partner’s] father”. The father then met with his then-partner and “forcibly removed her from the car and proceeded to attack her” including by punching and head-butting her; (b)A further incident of family violence ensued between the father and his then-partner, which caused her to flee her home. The father in late 2020 then entered the home of his then-partner’s parents, took a photo of her father sleeping and sent it to his then-partner. The police were called to and attended the home, where the father became confrontational and was detained by use of capsicum spray. In late 2020, NSW Police attended on the father’s home and found a “[weapon]” in his bedroom, together with “obvious signs of drug use at the premises”. In compliance with the consent orders made by me on 26 April 2022, the father via his solicitors disclosed on 19 September 2022 that:(a)The father’s charges arising out of his arrest in late 2020, which included assault occasioning actual bodily harm, stalking or intimidating intending to cause fear of physical or mental harm, unlawful entry on enclosed lands, and intimidating a police officer in the execution of duty, were listed for hearing before City D Court in mid-2022; (b)At the hearing, the father was sentenced to an Intensive Correction Order to be served in the community for a period of nine months until mid-2023. As part of the father’s sentencing, he was required to participate in an Anger Management and Domestic Violence Program. There is no evidence that the father undertook the programs he was required to take pursuant to his Intensive Correction Order. It was the mother’s evidence, which I accept and find, that the NSW Police performed drug testing on the father as part of his criminal proceedings, and that the father returned positive test results for a prohibited substance. I find that the father remains engaged a drug culture, characterised by an incapacity to regulate his behaviour, often leading to extreme and serious events of violence directed to persons in his focus at particular times, or to other persons who incidentally may be in his vicinity. The expert evidence