Russell & Shaw
[2024] FedCFamC2F 1421
•14 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Russell & Shaw [2024] FedCFamC2F 1421
File number(s): SYC 6079 of 2020 Judgment of: JUDGE SHOEBRIDGE Date of judgment: 14 October 2024 Catchwords: FAMILY LAW- Final hearing- determination of parenting arrangements- where father not engaged in final hearing- where risk of exposure to drugs and alcohol to the children- where consideration of best interests of the children- consideration of benefit of time with father. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 26 Date of last submission/s: 11 October 2024 Date of hearing: 14 October 2024 Place: Sydney The Applicant: No appearance Counsel for the Respondent: Michelle Matter Solicitor for the Respondent: Kamara Lawyers & Advisors ORDERS
SYC 6079 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RUSSELL
Applicant
AND: MS SHAW
Respondent
ORDER MADE BY:
JUDGE SHOEBRIDGE
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.That the children, X born in 2008 and Y born in 2012 (hereinafter referred to as 'the children'), shall live with the Mother.
2.That the Mother have sole parental responsibility for the children, including but not limited to:
(a)Providing all authorities necessary to cause and/or permit the issue or renewal of any passport for the children without the signature of the other party.
(b)Providing all authorities necessary to cause and/or permit the child to travel to and from Commonwealth of Australia and any time.
3.That the children spend time with the applicant father as agreed between the parties.
4.All applications before the Court are dismissed.
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
JUDGE SHOEBRIDGE
This matter came before me on 14 October 2024.
I gave judgment on that date and delivered ex tempore reasons. I said at that time that I would deliver written reasons, and that I may expand on the ex tempore reasons in the course of preparation of those written reasons.
BACKGROUND
The Father is 38 years old.
The Mother is 35 years old.
They commenced a relationship with each other in 2007.
There are two children of the relationship:
·X, born in 2008; and
·Y, born in 2012.
They commenced a relationship with each other in 2007.
When the Father was released from prison in 2011, he suffered from an addiction to drugs.
The parties lived together until some time in 2013.
The Mother says that during that period, the Father used illegal drugs and was regularly violent, including being verbally and physically abusive towards her. She says that he abused her in that manner when she was pregnant with their second child Y.
The Father has served further periods of incarceration since 2011.
The parties separated at some time in 2013. The Mother says that there was a period of at least several months when the parties were separated but the Father refused to vacate their shared place of residence.
The Mother says that she has the concerns about the physical and mental safety of the children in the Father’s care in an affidavit filed 27 September 2024 at paragraph 22.
The Father has had the benefit of Orders made on 19 February 2021 that provided the children to spend supervised time with him, but he has not taken advantage of this order since February this year.
There is a Family Report in these proceedings that issued in May 2023.
The author of that Report made observations and recommendations; however, it was made when the Father was in an intact relationship with a third party. I accept the unchallenged evidence in the Mother’s affidavit filed 27 September 2024 that that new relationship has come to an end, and that there is an AVO in place protecting the third party from the Father.
Accordingly, the Family Report is of limited assistance because of the change in circumstances since it was written.
FINAL HEARING
Any reports of the Mother’s attitude towards parenting orders at the time of the Family Report time were formed when the Father’s relationship with the third party was intact.
I am satisfied that the Father has sufficient notice of the dates of the final hearing in this matter.
I say that because when trial directions were made in this matter on 5 April 2024, the Father was represented by solicitors being the Legal Aid Office of NSW.
The Legal Aid Office of NSW has filed a Notice of Ceasing to Act on 9 September 2024. On the face of that document the Father was notified of the dates on which this matter was listed for final hearing.
Despite directions for the filing of affidavit material, which would have assisted the Court by addressing the matters raised by the Mother, the Father has not filed material. The Father is not present in Court today.
Given that the evidence of the Mother is unchallenged, I am satisfied, based upon that evidence, that time with the Father exposes the children to risk of harm, and in particular the risk of exposure to drug taking, the effects of drug taking, physical violence, neglect and risk of being exposed to negative views about their mother being expressed in their presence.
If the Father wishes to do so, he can file an Application to vary the Orders and explain his failure to appear today.
I am satisfied that the Orders proposed by the Mother are in the best interests of the children.
In the interests of finalisation of these proceedings, for the sake of not only the Mother but of the children, I make Orders in those terms.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Shoebridge. Associate:
Dated: 22 October 2024
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