Rossen & Rossen
[2025] FedCFamC1F 82
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rossen & Rossen [2025] FedCFamC1F 82
File number(s): NCC 3095 of 2022 Judgment of: SMITH J Date of judgment: 31 January 2025 Catchwords: FAMILY LAW – PARENTING – Consent orders – Oral reasons – Where father has withdrawn from proceedings but failed to file a formal notice of discontinuance – Where father is self-represented – Where correspondence from father accepted as withdrawal from proceedings – Where rule requiring filing of notice of discontinuance dispensed with – where Court Child Expert recommends no time and no communication with father – Where serious but untested allegations of family violence – Undefended hearing - Where ICL proposes court accept Court Child Expert’s recommendations and mother supports that proposal – Orders as proposed by ICL for sole parental responsibility to mother, children to live with mother, no time and no communication or at mother’s discretion, travel and passport orders for mother Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 31 January 2025 Place: Newcastle Counsel for the Applicant: Ms Haasnoot Solicitor for the Applicant: Umbrella Legal Solicitor for the Respondent: The respondent did not appear Counsel for the Independent Children's Lawyer: Ms Ashby Solicitor for the Independent Children's Lawyer: Ashby Family Solicitors ORDERS
NCC 3095 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ROSSEN
Applicant
AND: MR ROSSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
31 JANUARY 2025
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.To the extent that any rules of this Court require the respondent father to file a formal Notice of Discontinuance, they are dispensed, and the father is deemed to have discontinued.
2.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Final Orders be made in accordance with the document attached hereto.
3.The matter be removed from the list of matters awaiting finalisation and all future listing dates be vacated.
THE COURT NOTES THAT:
A.The father sent correspondence to Chambers confirming that he wished to withdraw from the proceedings. That correspondence has been placed on the Court file. Given he is self-represented, that correspondence was taken to be equivalent to a formal Notice of Discontinuance.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT & FAMILY COURT
OF AUSTRALIA DIVISION 2
AT NEWCASTLENCC 3095 / 2022
BETWEEN
APPLICANT MOTHER
MS ROSSEN
&
RESPONDENT FATHER
MR ROSSEN
&
INDEPENDENT CHIDLREN’S LAWYERDated this 31st day of January 2025
1.All previous Orders are dismissed.
2.The Applicant Mother shall have sole decision making authority with respect to all decisions concerning the subject children X born 2018 and Y born 2020 (‘the children’).
3.The children shall live with the Applicant Mother and shall spend time with and communicate with the Respondent Father as she determines.
4.The Applicant Mother can determine what (if any) correspondence, cards, gifts and letters the Respondent Father may send to the children and she is at liberty to provide a postal address to the Respondent Father for this purpose.
5.The Applicant Mother is at liberty to open any and all such correspondence, cards, gifts or letters from the Father to the children to decide if they are appropriate for the children.
6.Pursuant to section 11(1)(b) of the Australian Passport Act 2005, the Mother is authorised to apply for and retain a passport for the children without the Father’s written consent or approval or without him having to sign any documents.
7.The Mother is at liberty to travel outside the Commonwealth of Australia for holidays with the children without the consent of the Father.
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 the pseudonym Rossen & Rossen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short oral reasons for decision confirming consent orders in relation to two children: X (born 2018) and Y (born 2020) (“the children”).
This matter has been on foot since 2022 and involves serious allegations against the father.
The father had been engaged in the proceedings for a significant period of time. He is unrepresented. He recently contacted the court, the Independent Children’s Lawyer (“ICL”) and the mother's legal representative, to advise that whilst he denies all of the allegations against him, he has decided that he no longer wishes to be engaged in these proceedings.
In those circumstances, without objection from any other party, the father was advised that his statement that he declines to further engage in the proceedings would be accepted as a Notice of Discontinuance.
Given that he is self-represented and does not wish to engage or take any further part, it seemed to me futile to make an order that he file a Notice of Discontinuance, and to the extent to which it is required, I dispense with the father’s obligation to comply with Rule.
Accordingly, I will make a consent order today to the effect that the father’s response has been discontinued.
In these circumstances the proceedings may be determined on an undefended basis that the mother and ICL seek that course.
The court has the benefit of a detailed and carefully prepared Family Report, dated 15 January 2024, by Dr B, who is a Regulation 7 Consultant. The report goes through the various issues and allegations.
It sets out that X has a global intellectual delay with functional impairment of moderate severity, and that whilst Y has not been formally diagnosed with any developmental or other delays, he appeared to have anxious attachment issues, and his preschool considers that he may have autism.
The children have not communicated with or spent time with the father since 14 September 2021.
Given that the father has discontinued, given that the Child Court Expert said that based upon her assessment of the available evidence there was considerable evidence of family violence by the father, although I note I will not make any findings of family violence in this context, the Child Court Expert's opinion was, at paragraphs 100 and 101 of her report:[1]
100.[Ms Rossen] have sole parental responsibility.
101. The children reside with [Ms Rossen] and spend no time with [Mr Rossen].
[1] Exhibit ICL 1, Family Report dated 15 January 2024, paragraphs 100-101.
There are other recommendations which are no longer relevant.
In circumstances, where the father has discontinued and the matter proceeds undefended he can be bound by orders, including consent orders if approved by the Court.
I am comfortably satisfied, as the ICL has strongly submitted, that the orders that have been proposed by the ICL, and consented to by the mother, are in the children's best interests.
Those orders are, in summary, that all previous orders be dismissed; the mother have sole decision-making authority; the children live with the mother and have no communication with the respondent father except as she determines. The mother, in her exercise of sole decision-making authority, may permit such communication and/or time in such circumstances and on such conditions as she determines it may be appropriate.
The mother also specifically seeks the right to open correspondence and control of that correspondence. I consider that comes within her parental responsibility, but, in any event, will make the order. She also seeks a travel and passport order, and I think that is appropriate.
In summary, the father has elected to withdraw; and there is significant, albeit untested and contested, evidence of family violence; and the Child Court Expert recommends the proposed orders; and the ICL has proposed the orders; and the ICL submits, and the evidence seems to me to confirm, that there are no issues with the mother's parental capacity.
For these short reasons, noting that these are the orders proposed by the ICL and consented to be the mother, and the father has not participated to oppose them knowing the ICL’s position was to propose the Child Court Expert’s recommendations, I consider and find that on the evidence before me, these are the appropriate orders and the orders which are in the best interests of the children.
I make these orders.
Costs Application
The ICL makes the mandatory application.
Usually, parties should pay the costs of the ICL.
However, in the specific circumstances of the case, it seems to me that it is not going to be in anyone's interest for that application to proceed in respect of the father, nor the mother.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 14 February 2025
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