Ryan & Clinton

[2022] FedCFamC1F 992

Federal Circuit and Family Court of Australia

(DIVISION 1)

Ryan & Clinton [2022] FedCFamC1F 992

File number(s):	MLC 3685 of 2020
Judgment of:	STRUM J
Date of judgment:	8 November 2022
Catchwords:	FAMILY LAW – UNDEFENDED HEARING – PARENTING – Where the respondent father has not participated in the proceedings or complied with trial directions since June 2022 – Where the applicant mother has been granted leave to proceed on an undefended basis – Where the Independent Children’s Lawyer supports the mother’s application – Where the Court is satisfied that the father poses an unacceptable risk of harm to the children – Orders made for the mother to have sole parental responsibility and for the children to spend no time with the father
Legislation:	Family Law Act 1975 (Cth) s 60CC
Division:	Division 1 First Instance
Number of paragraphs:	35
Date of hearing:	8 November 2022
Place:	Melbourne
Counsel for the Applicant:	Dr Alexander
Solicitor for the Applicant:	Heinz Law
Counsel for the Respondent:	The Respondent did not appear
Counsel for the Independent Children’s Lawyer:	Mr Eidelson
Solicitor for the Independent Children’s Lawyer:	Victoria Legal Aid

ORDERS

MLC 3685 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RYAN

Applicant

AND:

MR CLINTON

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:	STRUM J
DATE OF ORDER:	8 NOVEMBER 2022

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The Applicant Mother have sole parental responsibility for the children Y born 2016 and X born 2010 (‘the children’).

3.The children live with the Applicant Mother.

4.The children spend no time and have no communication with the Respondent Father.

5.The Applicant Mother do all such acts and things necessary to ensure the child X attends upon a child psychologist as recommended by his treating general practitioner and follow all reasonable directions of the said child psychologist.

6.The Applicant Mother have leave to provide a copy of Dr B’s Psychiatric Assessments and Family Report dated 31 December 2020 to any treating mental health practitioner engaged for the children or for either of them.

7.The appointment of the Independent Children’s Lawyer be discharged.

8.All extant applications be otherwise dismissed and the matter removed from the list of matters requiring judicial determination.

9.Any documents produced upon subpoena be returned to the persons or organisations having produced them.

and the court notes that:

A.Pursuant to s 65DA(2) and s 62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

B.These orders are made by consent between the Applicant Mother and the Independent Children’s Lawyer and undefended by the Respondent Father.

C.The Respondent Father was called at court this day and failed to appear.

D.On 5 August 2022, the Applicant Mother was granted leave to proceed this day on an undefended basis.

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 the pseudonym Ryan & Clinton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Delivered Ex Tempore

STRUM J:

1. These parenting proceedings have been extant for some two and a half years, the mother having filed an Initiating Application on 23 April 2020. The proceedings relate to the two children of the parties’ marriage, X born in 2010, who is 12 years of age, and Y born in 2016, who is six years of age.

2. Relevant to these proceedings is the fact that the mother has two children by a prior relationship, one of whom is an adult, Ms D born 2002, who is 20 years of age. She is the more relevant of the two to these proceedings.

3. The parties commenced cohabitation in 2008 and were married in 2011. It appears that the father commenced using an illicit substance in 2011, at or about the time that the parties were married.

4. There is a historical incident of family violence that is reported by the mother to have occurred towards the end of 2013. Later that year, in November, the father was arrested and convicted of multiple crimes. He appears to have been remanded in custody for a period of some weeks and was subsequently sentenced to a Community Corrections Order.

5. This is a sad case. In early 2017, Ms D, to whom I have referred above, was raped by a Mr C, the father of a friend of hers, who was subsequently convicted of the crime and incarcerated.

6. In mid-2017, the father entered a private rehabilitation clinic in an endeavour to curb or end his drug use. However, in the course of his brief time in the clinic, he commenced a relationship with a fellow patient and he discharged himself early.

7. A few months thereafter, on 10 September 2017, the parties separated, when the mother discovered inappropriate and explicit text messages of a sexual nature between the father and Ms D. Later that month, the mother obtained an intervention order against him and subsequently he was charged with numerous breaches of that order.

8. Neither of the children the subject of these proceedings has spent any time with the father since separation.

9. The father was charged with a number of offences and, in mid-2018, he pleaded guilty to and was convicted of the majority of these offences, including offences involving a child. That child was Ms D. He was sentenced to a custodial sentence of over three years, which was subsequently reduced on appeal.

10. On 14 April 2020, the mother issued these parenting proceedings. The father initially filed a Response to Initiating Application on 18 May 2020 and participated in these proceedings until about June 2022.

11. In mid-2020, the father was released from prison on parole, after having served his reduced sentence. He signed the Sex Offender Register and was bound by reporting obligations for a period of 15 years. His period of parole expired in 2021.

12. In the course of these proceedings, the father attended upon Dr E for the preparation of a psychosexual report. Subsequently, a family report and psychiatric assessment was prepared by Dr B, who has since retired.

13. In summary, Dr E opined that the father’s sexual offending was linked to his drug dependence. Dr B considered that supervised time between the children and the father might be appropriate, if the father could demonstrate abstinence from drug use by way of hair follicle testing.

14. No sooner had Dr B’s report been released in late 2020 than, early the following year, the father relapsed into drug use. He produced positive results for illicit substances in hair follicle testing in mid-2021 and again in late 2021.

15. The matter came before me for a trial directions hearing on 18 January 2022. I listed the matter for trial before me in June. An order was made, by consent, for the mother to have sole parental responsibility for the children. The father was represented by counsel, however, his solicitors filed a Notice of Ceasing to Act on 1 March 2022.

16. For reasons that are not readily apparent, but which I infer to have been slip, when orders were subsequently made on 10 June 2022, vacating the trial listed later that month, the order for sole parental responsibility appears to have inadvertently been dismissed.

17. Notwithstanding the hearing before me in June, when the trial was adjourned and new trial directions, made the father, yet again, failed to comply with those directions. Further, he failed to comply with hair follicle test requests made by the Independent Children’s Lawyer in January, April and June 2022.

18. When the matter came before me for a case management hearing on 5 August, the respondent father appeared in person via video-link. In circumstances where the father had repeatedly failed to comply with trial directions, I made an order that the mother have leave to proceed with her amended Initiating Application filed 14 January 2022 on an undefended basis. The father has not since remedied his default in any way.

19. The father has been called today and there has been no response to the call. I am told by counsel for the mother and the Independent Children’s Lawyer that the orders sought replicate the orders that the mother sought when she filed her amended Initiating Application at the commencement of this year, in advance and anticipation of the trial listing hearing. Therefore, the father is well and truly on notice of the orders sought.

20. I raised with counsel whether or not, in circumstances where the father has failed to participate and the proceedings are undefended, 60CC(5) of the Family Law Act 1975 (Cth) (“Act”) might apply. It provides:

    If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

21. Counsel for the Independent Children’s Lawyer submitted that, notwithstanding the father’s failure to participate and the fact that these proceedings are undefended and that he has failed to appear today, the proceedings were nevertheless not by consent, as he nevertheless remains a party. Upon reflection, I agree, although it seems to be a somewhat anomalous situation in circumstances where the participating parties, namely the mother and the Independent Children’s Lawyer, are in agreement and the father is not participating (or even seeking to do so).

22. On 5 August 2022, when I granted leave for the mother to proceed with her amended Initiating Application on an undefended basis and the father appeared in person, I specifically made the following notation:

    In the event the father remedies his default under the orders made on 10 June 2022, he is at liberty to make such application as he may be advised to set aside paragraph 1 of these orders or otherwise for leave to defend the proceedings.

    The father has not availed himself of that opportunity.

23. Although the orders sought by the mother and the Independent Children’s Lawyer are strictly not by consent of all parties but the matter is proceeding undefended by the father, he could have appeared today and sought leave to participate. Similarly, he could have complied with the several opportunities I gave him to file his material. He has not done so.

24. The main concerns in relation to the children are very well summarised in the written submissions of both the Independent Children’s Lawyer the mother, both of which I have had regard to. The Independent Children’s Lawyer submits, and I accept, that the question of unacceptable risk looms large in this case.

25. The father has a history of criminal offending, involving multiple serious offences which include including offences involving a child and persistent contraventions of the Intervention Order made after separation.

26. As I have indicated, the father pleaded guilty to, and was convicted of, these offences and he has served his period of incarceration. However, it would appear that there is, at the very least, an unacceptable risk of him reoffending, in circumstances where both of the expert reports make it clear that the father’s offences were intimately intertwined with his drug and alcohol abuse and it would seem that he has relapsed into drug use.

27. In the circumstances, in considering whether to make the orders sought by consent as between the mother and the Independent Children’s Lawyer, I have had regard to best interests of the children as the paramount consideration, as required by s 60CA of the Act, and have considered the primary considerations set out in s 60CC(2) of the Act and the additional considerations set out in s 60CC(3). I consider it is in the children’s best interests to make those orders and thereby bring these proceedings to an end.

28. Whilst X, who is the older of the two children and who clearly had greater involvement of the father in his life prior to separation and the father’s incarceration, made it clear to Dr B that he then wanted to spend time and, indeed, equal time with his father. However, nearly two years have passed since then. There is no current evidence of his wishes and, even if there, the father is not participating in the proceedings. Further, Dr B notes that X did not know about the father’s offending against Ms D and the child’s belief then was that his father had only been in jail for drug-related offences.

29. Notwithstanding the fact that X is 12 years of age and at a stage where, all things being equal, increasing weight might be placed upon his views, X himself has been diagnosed as suffering from a conduct disorder and a behavioural disorder. He has been found to be in the 93rd percentile in respect of his conduct problems at home and the 97th percentile in respect of his conduct problems at school. It appears that those issues have been in hand, as best they can be, whilst he has been in the sole care of his mother and that he is doing as well as can be and getting as much assistance as could be hoped for.

30. The most recent evidence of X’s views, since those historically expressed to Dr B, appear in the mother’s trial affidavit filed on 25 January 2022, where at [72] she deposes to X “no longer becoming emotional about not seeing his father” and that “the last time [X] spoke about missing his father was over a year ago.”

31. In circumstances where X labours under the difficulties that he does, notwithstanding his age, I agree with the submission of the Independent Children’s Lawyer that little weight should be placed on his previously held views which, in any view, are out of date.

32. Y was just over two and a half years of age when the parties separated. The mother contends that she has no memory of her father. The Independent Children’s Lawyer, who has less knowledge of these matters than the mother, submits that it is unlikely Y would have any memory of the father, and I accept that is likely the case.

33. In the circumstances, notwithstanding the recommendations of Dr B, it seems that the father has been the author of his own misfortune (and possibly that of the children) by not maintaining his abstinence from drug use since his discharge from gaol and, given the inherent interlinking of his offending and his drug use, I could not be satisfied in this case that he does not pose an unacceptable risk to the children.

34. I am also cognisant of the fact that I have made trial directions on two occasions and, on both of those occasions, the father thereafter failed to prepare his case for trial. Further, it can fairly be said I gave him one last chance by the notation I made on 5 August 2022, when I granted the mother leave to proceed on an undefended basis, but he has not availed himself thereof and did not attend Court today.

35. In the circumstances, I am satisfied that it is in the best interests of X and Y to make orders in the terms of the minute of orders signed by the mother and on behalf of the Independent Children’s Lawyer, being orders of which the father has been on notice since the commencement of the year.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated:       14 December 2022