Reger & Hanney (No 2)
[2024] FedCFamC1F 63
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Reger & Hanney (No 2) [2024] FedCFamC1F 63
File number: SYC 6696 of 2023 Judgment of: CHRISTIE J Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – PARENTING – Undefended Final Hearing – Where the respondent has chosen to disengage from the proceedings – Orders for the applicant to have sole parental responsibility for the children and for the children to live with the applicant – Where the orders are in the best interests of the children. Legislation: Family Law Act 1975 (Cth) Pt VII s 60CA Cases cited: Reger & Hanney [2023] FedCFamC1F 805 Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 14 February 2024 Solicitor for the Applicant: Ms Bennett, Legal Aid NSW The Respondent: No appearance ORDERS
SYC 6696 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REGER
Applicant
AND: MR HANNEY
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born 2021 and Y born 2023 (“the children”).
2.The children live with the mother in Australia.
3.The children spend time with the father in Australia in accordance with an agreement between the parties in writing or in accordance with orders made by the Court.
4.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 a pseudonym Reger & Hanney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final parenting orders in respect of two young children, X born 2021 and Y born 2023 (“the children”).
The applicant is the children’s mother, Ms Reger. The proceedings are being heard and determined undefended as against the children’s father, Mr Hanney. Mr Hanney had previously engaged in the proceedings but, following the making of orders on 20 September 2023 which provided that both children live with the mother, he has not attended court.
I am satisfied that Mr Hanney was notified of the matter being listed today and provided with the orders and directions of 6 December 2023. I am further satisfied that the matter was called outside the Court today and there was no appearance by or on behalf of the respondent and so I propose to finalise the proceedings.
Notwithstanding the father’s failure to engage, I must be satisfied that the orders which the mother proposes are in the children’s best interests.
I have had the benefit of a Child Impact Report prepared by a Court Child Expert and have had regard to its observations and analysis in reaching my conclusions.
THE LAW
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975 (Cth) (“the Act”). In making a parenting order I must regard the best interests of the children as the paramount consideration: s 60CA of the Act.
In determining what parenting orders are to be made and what parenting orders are in the best interests of the children I must have regard to all relevant statutory considerations, giving primacy to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
CONSIDERATION
When this matter was before me for interim hearing (Reger & Hanney [2023] FedCFamC1F 805) I set out the uncontroversial matters and I include those passages in these reasons for judgment:
2.[X] was born [in] 2021 in [State B], in the United States of America (“USA”). [X’s] mother is Australian. [X’s] father is American.
3.[In] 2022 [X] travelled to Australia with her mother. The father followed [later that year].
4. [In] 2023 [Y] was born in Australia.
5. [In early] 2023 [X] and the father travelled to the USA.
6.[In mid] 2023 the father filed a petition of Divorce in the District Court, [Region D, State B], USA. That petition sought parenting orders in respect of both [X] and [Y].
7.On 25 July 2023 the mother filed an application with the Australian Central Authority seeking return of [X] under the Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”). That application has not progressed for reasons which are not clear.
8.On 11 September 2023 the mother filed an Initiating Application in the Federal Circuit & Family Court of Australia (Division 2).
9.On 12 September 2023 that application was transferred to the Federal Circuit & Family Court of Australia (Division 1) …
I made orders on 20 September 2023 which provided that both children live with the mother in Australia. I ordered a Child Impact Report – the father had the opportunity to participate in the report electronically at his election. The father did not participate.
The mother travelled to the United States of America following the making of the orders on 20 September 2023 and returned to Australia with X and has resided in Australia with both children since that time.
The parties both filed affidavit evidence at the interim hearing and hence, while these proceedings are undefended, I have some sense of the matters which the father has raised historically, in particular those which were the subject of my limited findings at the interim hearing.
I set out the relevant passages from those earlier reasons:
35.There is evidence attached to the mother’s affidavit of messages between the parties while the mother and [X] were in Australia and the father was in the USA in [mid] 2022. The messages are aggressive in nature. The messages also include voice messages left by the father on the mother’s phone. The written messages read:
RESPONDENT FATHER: THEN ANSWER THE FUCKING PHONE
APPLICANT MOTHER: atop [sic]
Try again tomorrow
RESPONDENT FATHER: [voice message]
No trying again tomorrow. Answer the phone.
APPLICANT MOTHER: Or else what? that a threat because this can get worse if you want
RESPONDENT FATHER: Thats me telling you to answer the phone.
Because this is getting so much fucking worse than if you just answered the phone.
APPLICANT MOTHER: mate are you drinking because my god you’re really bad and abusive right now
RESPONDENT FATHER: No one is drinking. And how am I abusive? Because I want to talk to my god damned wife on the other side of the world?
APPLICANT MOTHER: put the phone down do yourself a favour and don’t hurt me any more then you are go to sleep get the passport shit done today rest more and then try again for the sake of this marriage just put the phone down
RESPONDENT FATHER: You can either answer the phone
Or go to my funeral
2 options
APPLICANT MOTHER: listen to yourself look how you’re acting
let me sleep
I need the rest if you care about us just let it be
RESPONDENT FATHER: Thats your final decision
Fine.
Goodbye.
APPLICANT MOTHER: I’m starting to cramp very badly so I’m putting my phone down I don’t need this and I wish you were smarter
RESPONDENT FATHER: I wish you somewhat even cared
I loved you.
I wish you loved me too.
goodbye
enjoy your life [Ms Reger]. raise [Y] and [X] to be better than me
(As per the original)
36. The voice messages are as follows:
You better shut the fuck up right now, [Ms Reger]. I swear to fucking god.
You’re doing nothing but pissing me off more and fucking more with your bullshit.
Why would I be getting upset, because you’re mad at me because I’m calling you, because I miss you. Why would… Why would I call you and say that I miss you if I didn’t want to fucking come.
What do you mean “goodbye”? what kind of fucking stupid shit is that?
Then fucking answer!
No. No one’s fucking verbally abusing you, I’m telling you to fucking answer the god damn fucking phone, [Ms Reger].
No one’s fucking verbally abusing you. No one’s saying that, “oh all of this is your fucking fault”. I’m literally telling you just to fucking answer the phone.
You better answer the phone this next time I call you, or else.
Having listened to those messages I am of the view that their tone is as abusive as their content.
And at [89] I set out the uncontroversial circumstances which I found existed in September 2023:
(a)From the time of her birth until [early] this year [X] has lived with her mother and father (although the father remained in the USA [for a period in] 2022);
(b)When [X] travelled to Australia with her mother in […] 2022 it was on a one way ticket;
(c) From [early] [2023] [X] has lived with her father;
(d)The mother gave a form of consent to [X] leaving Australia with the father but since that time has been at best equivocal and generally opposed to that course on both parties’ cases;
(e)From the time of his birth [Y] has lived with his mother and father until his father left Australia in [early] 2023;
(f)The father accepts that he cannot assume full time care of [Y] at present;
(g) The mother has no automatic right of residence in the USA;
(h) The father has no automatic right of residence in Australia;
(i)Both parents have been present in the country of the other parties’ citizenship with electronic tourist visas; and
(j)Neither parent accepts that it is appropriate that the siblings be separated.
So it is against that background that the final parenting dispute must be adjudicated.
I accept that the presumption in favour of equal shared parental responsibility is rebutted, given the findings which I made about family violence. I accept that it is appropriate that the mother exercise sole parental responsibility for the children.
I accept the theoretical importance of the children having a meaningful relationship with both parents. I note that the Court Child Expert indicated that it may well be that the children experience a sense of grief in being separated from their father. However, the theoretical importance of children having a meaningful relationship with both parents is not a matter which can weigh heavily in my determination in this case. The Court cannot make any orders of any practical effect regarding time with the children in circumstances where the father has chosen to disengage from the proceedings (and it would appear the children’s lives) since the orders of September 2023.
There were significant concerns raised by the mother’s material about the manner in which the father had treated her and – as I set out above, the abusive messages are indicative of conduct which meets the definition of family violence. I am satisfied that orders which place the children in the full-time care of the mother on a final basis and leave the question of time to agreement or further court order are the only orders which the court could make on the available evidence. I accept that means, at this stage, the children will not see or spend time with the father.
I have had the advantage of a report by a Court Child Expert. It records: “[b]oth children appeared comfortable and familiar in their mother’s presence, reaching for her for comfort, and [X] sitting in her mother’s lap while smiling.” I am satisfied that both children have a close relationship with the mother who will be their primary carer.
The children also have the advantage of the support of the maternal grandparents.
The mother appears, on report to the Court Child Expert, to be engaged in providing specialist interventions for X to ensure she is healthy and meeting developmental milestones. She also appears to have engaged with professional support for herself.
Even if I had residual concerns about the untested and unproven allegations which the father raised in interim proceedings, I am comfortably satisfied that the children are safe and well cared for in their mother’s household and the orders she proposed are in the best interests of the children. I therefore propose to make orders in accordance with her application.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 14 February 2024
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