Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Ressel & Morath (No 2) [2022] FedCFamC1F 1028
File number(s): BRC 12043 of 2020 Judgment of: CAREW J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the father’s Application in a Proceeding seeking time and communication with the child was heard on an urgent basis – Where the mother and the independent children’s lawyer oppose the application – Where the family report and the material more generally identify risks to the child of exposure to conflict and family violence – Where the final hearing of the substantive matter is imminent – Where the Court cannot be satisfied that it is in the child’s best interests to recommence communication with the father when ultimately an order may be made for future contact not to occur – Application dismissed. Legislation: Family Law Act 1975 (Cth) Cases cited: Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
Number of paragraphs: 26 Date of hearing: 19 December 2022 Place: Brisbane For the Applicant: Litigant in person Solicitor for the Respondent: Damien Greer Lawyers Solicitor for the Independent Children's Lawyer: Queensland Legal Practice ORDERS
BRC 12043 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RESSEL
Applicant
AND: MS MORATH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 9 December 2022 for the father to spend time with and communicate with the child, X born 2014, pending the final hearing listed on 6 March 2023 for three days is dismissed.
2.Subject to any objection, which is to be determined first, the independent children’s lawyer has leave to inspect and copy all documents produced pursuant to subpoena by Queensland Police Service and to provide copies of that material to the legal representatives for the parties after first redacting any information that might identify the current residential address or employment details of the mother or her associates or that might identify the school attended by the child in the proceedings.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act
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- AGLC
- Ressel & Morath (No 2) [2022] FedCFamC1F 1028
- Case
- [2022] FedCFamC1F 1028
- Decision Date
CaseChat Overview and Summary
This case, Ressel & Morath (No 2), involved a father, Mr Ressel, applying for certain contact arrangements with his son, X, who had been living with his mother, Ms Morath, since April 2020. The father sought weekly video or telephone calls with X, video calls on Christmas Day and X's birthday in 2023, and spending one day every second weekend with him. The application was made urgently given the father's past conduct towards the mother, which included admitting to serious offences for which he was sentenced to imprisonment. The mother opposed the father's application, arguing that reintroducing the father into X's life was not in the child's best interests, particularly as a final hearing was imminent where an order for no future contact might be made.
The legal issues before the court involved determining whether it was in the child's best interests to recommence communication with the father, given the father's past conduct and the potential outcome of the final hearing. The court was required to balance the child's need for stability and protection against the father's desire for contact. The Full Court of the Family Court of Australia had previously observed that interim parenting proceedings should focus on issues that need determination before a final trial, and that it is not necessary to address every factor if some are determinative of the child's best interests.
The court found that reintroducing the father into X's life at this stage was ill-advised. The court reasoned that it would be confusing and potentially distressing for X to recommence communication with his father only for it to be discontinued after a final hearing, where an order for no future contact might be made. The father would have an opportunity to demonstrate his insight into his past behaviour and its impact on X during the final trial. Therefore, the court decided that it was not in X's best interests to recommence communication with his father at this time.
The court also addressed a request to redact documents produced by the Queensland Police Service to remove all identifying information about the mother and child before making them available to the father. There was no opposition to this request, and the court granted it.
The legal issues before the court involved determining whether it was in the child's best interests to recommence communication with the father, given the father's past conduct and the potential outcome of the final hearing. The court was required to balance the child's need for stability and protection against the father's desire for contact. The Full Court of the Family Court of Australia had previously observed that interim parenting proceedings should focus on issues that need determination before a final trial, and that it is not necessary to address every factor if some are determinative of the child's best interests.
The court found that reintroducing the father into X's life at this stage was ill-advised. The court reasoned that it would be confusing and potentially distressing for X to recommence communication with his father only for it to be discontinued after a final hearing, where an order for no future contact might be made. The father would have an opportunity to demonstrate his insight into his past behaviour and its impact on X during the final trial. Therefore, the court decided that it was not in X's best interests to recommence communication with his father at this time.
The court also addressed a request to redact documents produced by the Queensland Police Service to remove all identifying information about the mother and child before making them available to the father. There was no opposition to this request, and the court granted it.
Orders
Orders of the court
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Background
Background to the litigation
The father’s application, which has been listed urgently, seeks to have weekly video or telephone calls with X, a video call on Christmas Day and on X’s birthday in 2023, and to spend time with him for one day every second weekend. Sensibly, given the admissions made by the father about his conduct towards the mother in the past, he does not press anything other than a video call or telephone call on Christmas Day and X’s birthday. background By way of background, I note that Mr Ressel (“the father”) is 44 years of age and describes himself as self-employed. Ms Morath (“the mother”) is 35 years of age and employed as a manager. The mother and father were in a relationship from 2013 until early 2020. They were never married. They have one child, X born in 2014 (“the child”). The mother has since re-partnered and has another son. The child lives with his mother and as earlier noted has not spent any time with the father since April 2020. The father is highly critical of the mother and accuses her of making up allegations of family violence as part of her strategy to exclude him from the child’s life. There is a final protection order in place, which was made without admissions by the father, in late 2020 and it will remain in place until late 2025. While the father maintains his belief that he has been effectively set up by the mother and her lawyers, he admits that he has committed some serious offences against the mother for which he pleaded guilty in early 2022. The charges against him were numerous for which he was sentenced to imprisonment. The father was already in prison at the time of his guilty plea and was immediately released on parole having served several months on remand. During the family report interviews, the father acknowledged that he had done the wrong thing by harassing and threatening the mother and her partner, but justified his behaviour as resulting from his frustration as a father being denied contact with his son. The father contended to Ms J, the report writer, that the mother had “deliberately provoked his angry behaviour”. The father informed the report writer that after serving several months (in prison) he knew that he was stupid to do what he did to the mother. He described his mental health at the time of interview with Ms J as “very low”. The child told Ms J that his parents did not live together because “they fighted all the time” and he said he missed his father and estimated this feeling at 8/10. He said he would like to spend some time with his father and suggested three hours. If he had a magic wand the child said he would wish for his dad to come back. During the family report interviews, the father was observed while he engaged with the child via a video call for almost 20 minutes. I note that the father contends it was closer to 40 minutes. Ms J noted that the father spoke to the child lovingly and assured him that he loved him several times during the call. In her opinion, the father “mostly managed the call extremely well”. In her observation, the child became restless after the first 5 minutes although he remained relatively calm for the first 10 minutes of the conversation. After about 15 minutes, the child began to make silly noises and laughed loudly and strangely and when the report writer suggested the call might soon come to an end, the father initially responded that he would like to talk for longer, “up to a day”, but agreed to bring the call to a close. After the call, Ms J noted that the child’s behaviour changed significantly. He returned to the waiting area where his mother was seated, paced crazily making strange noises, and thrust both of his hands on the glass screen at the reception two or three times, with quite some force, frightening the receptionist who was seated behind the screen. The mother was noted to be able to calmly and skilfully respond to the child’s behaviour by encouraging him to breathe the way his psychologist had taught him. The child slowly calmed down.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
As the Full Court of the Family Court of Australia (“the Full Court”) observed in Banks & Banks[5] at 80,116: 48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. …49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.(Emphasis in original)[5] (2015) FLC 93-637. Conclusion I am of the view that to reintroduce the father to the child’s life when a final hearing is imminent, and when a possible order may be that the father not spend time with or communicate with the child, seems ill advised as it will put the child through what may be a very confusing and grief provoking event in speaking to his father to only have that discontinue after a final hearing. The father will have his opportunity at the final trial to address how the Court could be satisfied that he has developed insight into the impact of his own behaviour on others and most importantly his son. At this time, I cannot be satisfied that it is in the child’s best interests to recommence communication with the father when ultimately an order may be made for future contact not to occur. I have also been asked to facilitate documents produced by the Queensland Police Service to be redacted to remove all identifying information about the mother and child before being made available to the father. I note that there is no opposition to my so doing.
Ratio Decidendi
Legal Principle Established
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