Robustelli & Dustin
[2025] FedCFamC1F 16
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Robustelli & Dustin [2025] FedCFamC1F 16
File number(s): CAC 67 of 2023 Judgment of: GILL J Date of judgment: 20 January 2025 Catchwords: FAMILY LAW – PARENTING – Where the applicant mother, second respondent paternal grandmother, intervenor Department and Independent Children’s Lawyer all submit that final hearing of the proceedings should be undefended with respect to the respondent father – Where the respondent father was hospitalised this morning – Where the respondent father has not participated in the proceedings since May 2024 – Principles for conducting child-related proceedings Legislation: Family Law Act 1975 (Cth) s 69ZN Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 20 January 2025 Place: Canberra Counsel for the Applicant: Ms Jardine Solicitor for the Applicant: Gilbert & Partners Solicitor for the First Respondent: Litigant in Person (did not participate) Counsel for the Second Respondent: Mr Masters Solicitor for the Second Respondent: KPW Lawyers Counsel for the Intervener: Mr Havenstein Solicitor for the Intervener: Crown Solicitors Office Solicitor for the Independent Children's Lawyer: Ms Coleman, Wagga Family Lawyers ORDERS
CAC 67 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ROBUSTELLI
Applicant
AND: MR DUSTIN
First Respondent
MS COUTURE
Second Respondent
THE SECRETARY, NSW DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.These proceedings are to be conducted on an undefended basis with respect to the father.
AND IT IS NOTED THAT:
A.Should the father commence to participate in the proceedings before their finalisation, any such application can be readily entertained
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
These proceedings involve parenting proceedings for X, currently almost 13 years old, Y, 11 and a half years old, and Z, just over nine years old. Z and Y currently live with the mother. X currently lives with the paternal grandmother who is a party to these proceedings. At present the children spend no time with and have no contact with their father, Mr Dustin, following the making of interlocutory orders that provided for X to live with the paternal grandmother. The making of those interlocutory orders came about following a period of time where X had lived with his father, when there had then been orders for X to live with the mother but which rapidly were identified as unworkable, causing further orders for X to live with the paternal grandmother.
There is currently an interim Apprehended Violence Order which means that the father cannot be in contact with X or the paternal grandmother. The circumstances of the making of the interim Apprehended Violence Order, follow information coming to light suggestive that the father had, during a period of hospitalisation, indicated that he may end his own life and had indicated that he may harm X.
The matter had subsequently been listed for final hearing by orders made on 23 October 2024, those orders provided for a filing timetable for the preparation of information for the trial. However, the father has not had any participation in the proceedings since he last attended represented by himself on the 3rd of May 2024. Since then, it appears he has filed no document, taken no step in the proceedings and made no appearance in Court.
Similarly, he has not attended Court today. However, the circumstances in which he has not attended Court today have been identified to be that he was due to appear in the Town B Local Court to face various charges in relation to family violence or breach of Apprehended Violence Orders including in respect of X. Contact has been made with the Town B Local Court who advised that although the father attended Court today, he was subsequently transported by ambulance to a local hospital on the basis he was currently suffering from significant injuries, following an assault occurring last night. Accordingly, it may be thought that the father has reason not be present at Court this morning, reducing the significance of his failure to attend.
What falls to be decided is whether, by way of interlocutory orders, orders should be made for the proceedings to go ahead on an undefended basis to hear this final trial in the matter.
In determining that matter only limited weight should be given to the issue of the father not attending today, given the matters that are otherwise being identified. Of greater importance is his complete disconnection with the proceedings since May of last year and failure to provide any material in the proceedings or to identify the orders that he seeks. While it may be accepted that the father labours under mental health difficulties, literacy difficulties, functional difficulties and drug-related difficulties, his failure to engage with the proceedings at all is not otherwise unexplained.
As to the nature of these proceedings they involve serious issues in relation to the welfare and safety of the three children the subject of the proceedings.
Turning to the principles for conducting child related proceedings. Principle 1 says the Court is to consider the needs of the child concerned and the impact the conduct of the proceedings may have on the child in determining the conduct of the proceedings. In respect of that matter and noting that the proceedings themselves are causing significant disruptions to the children, as they are interviewed in respect of the proceedings and as both the paternal grandmother and the mother struggle to obtain care arrangements for the children to enable them to travel to the Court for the conduct of the proceedings, and understanding the uncertainty that applies to the children in the absence of the determination of the proceedings, principle 1 points to the proceedings going ahead notwithstanding the failure of the father to participate.
The third principle is that the proceedings should be conducted in a way that will safeguard the child concerned from being subjected to or exposed to abuse neglect or family violence, and the parties to proceedings against family violence. The determination of orders in these proceedings will be designed to give the children and the parties those protections, it is therefore of importance that the Court proceeds to hear and determine those matters so that those proper protections can be put in place. Principle 3 calls for the matter to be heard notwithstanding the non-participation of the father.
Principle 5 says that the proceedings will be conducted without undue delay and with as little finality, and legal technicality and form, as possible. Delay may be justified and in fact is justified where it is necessary to afford procedural fairness to a party. The father has been afforded the opportunity to participate in these proceedings, but has disengaged some time ago, in that context further delay in proceedings absent further participation by the father, or explanation by the father, or application by the father, would constitute undue delay of the proceedings. Principle 5 calls for the proceedings to continue today.
Under those circumstances it will be ordered that the proceedings be conducted on an undefended basis with respect to the father. It may be noted that should the father commence to participate in the proceedings before their finalisation, any such application can be readily entertained. Accordingly, it is ordered that these proceedings are to be conducted on an undefended basis with respect to the father.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 January 2025
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