Ryan & Paterson - [2022] FedCFamC1F 1079

Federal Circuit and Family Court of Australia
(DIVISION 1)
Ryan & Paterson [2022] FedCFamC1F 1079

File number(s): SYC 8304 of 2019

Judgment of: ALTOBELLI J

Date of judgment: 5 December 2022

Catchwords: FAMILY LAW – CHILDREN – Final undefended hearing – Parental responsibility – Best interests of the child – Where the mother has appeared but filed no material despite numerous orders directing her to do so – Where the mother seeks equal shared parental responsibility and equal time – Where the father seeks sole parental responsibility and supervised time with mother – Final parenting orders made for the father to have sole parental responsibility for the child.

Legislation:
Family Law Act 1975 (Cth) ss 61DA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.22(1), 10.26

Division: Division 1 First Instance

Number of paragraphs: 15

Date of hearing: 5 December 2022

Place: Sydney

The Applicant: Litigant in person

Solicitor for the Respondent: Mills Oakley Lawyers

Solicitor for the Independent Children's Lawyer: Mark Macdiarmid Family Law Specialist
ORDERS

SYC 8304 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS RYAN

Applicant

AND:
MR PATERSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

5 DECEMBER 2022

THE COURT ORDERS THAT:
1.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders are made by consent between the Respondent and the Independent Children’s Lawyer, but on an undefended basis so far as the Applicant is concerned, in accordance with the document marked “A” dated this day and attached hereto.
2.Each party is to pay and bear their own costs.

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 & Paterson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)
ALTOBELLI J:

This case is between the applicant, Ms Ryan (“the mother”) and the respondent, Mr Paterson (“the father”).
I provide the following reasons for judgment. This case is about two children – X, who is 15, and Y, who is 12 (“the children”). For many reasons, all of which are both sad and complex, the children have not spent time with their mother for over nine years. Despite attempts that were made through the assiduous efforts of a very experienced Independent Children's Lawyer, it was not possible to get the children to the point where they would consider therapy as a precursor to even meeting with their mother, let alone spending time and communicating with her on a regular basis.
This litigation has been going on for far too long from the perspective of these children whose ages and maturity must be taken into account. This is a matter where the mother's history of participation in the proceedings that she herself commenced has been inconsistent and sporadic. I am satisfied from the material before me that this is a matter that attracts r 10.22(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) – where a party has not taken a step in a proceeding for six months, the Court may, even on its own initiative, dismiss all or part of the proceeding.
I am also satisfied that this is a case to which r 10.26 of the Rules applies, and that is where a party has been in default of orders made in the proceedings.
In the case outline document filed on behalf of the father on 1 December 2022, there is a list of documents relied upon, all of which I have referred to. These documents include:
(a)The mother’s Initiating Application filed 6 December 2019;
(b)The mother’s Amended Initiating Application filed 22 February 2020;
(c)The father’s Response to Initiating Application filed 14 February 2020;
(d)The father’s Amended Response to Initiating Application filed 10 June 2022;
(e)The father’s affidavit filed 14 February 2020;
(f)The father’s Notice of Child Abuse, Family Violence or Risk of Family Violence filed 14 February 2020;
(g)Child Inclusive Conference Memorandum prepared by Court Child Expert Ms B dated 7 October 2021;
(h)Orders made by a Judicial Registrar on 20 May 2022;
(i)Orders made by a Senior Judicial Registrar on 17 June 2022;
(j)Orders made by the Honourable Justice Altobelli on 13 July 2022;
(k)Orders made by the Honourable Justice Altobelli on 5 August 2022; and
(l)Orders made by the Honourable Justice Altobelli on 4 October 2022.
Moreover, I have referred to the mother’s affidavit filed on 22 February 2020 in these proceedings.
I also incorporate into my ex-tempore reasons the chronology of events contained in the case outline document filed by the father. This includes the following:

Date Event

1979 Date of birth of father in Australia, presently aged 43 years.

1979 Date of birth of mother in USA, presently aged 43 years.

Mid-2003 Parties commence relationship and travel around Australia together for some months and thereafter mother returns to the US in mid-2003.

Late 2003 Date of parties’ engagements. Parties apply for Prospective Spouse Visa for mother.

2004 Prospective Spouse Visa granted for mother, and she moves to Australia. The parties are required to marry within nine months of the Visa being granted.

2004 Parties commence cohabitation.

2004 Date of marriage. The father’s family members did not attend the wedding at the request of mother, as her family and friends had not been able to travel to Australia.

2006 Parties stage a second wedding in the presence of their parents in Australia.

2006 Father becomes concerned that mother is drinking alcohol in excess.

2007 Birth of X, presently aged 15 years.

Mid-2007 Parties and X relocate to the USA, as the mother had become negative about life in Australia and wanted to return to the USA.

2008 Father discovers mother is purchasing and using a prohibited substance. Father confront her and she further admits that she is an alcoholic and has problems with alcohol.

2009 Parties return to Australia due to GFC and father’s job security being uncertain in the USA.

2009 At mother’s insistence, parties relocate from Sydney to Perth, where the father is able to secure employment. Subsequently, mother becomes unsettled and desires to move to either Melbourne or Brisbane. Mother consumes excessive quantities of alcohol and father discovers bottles hidden in the home. She subjects the father to frequent verbal and physical abuse, particularly after consuming alcohol.

2010 Birth of Y, presently aged 12 years.

Early 2011 Mother advises father she wants to return to D State with the children. Father refuses to give his approval to take the children to the USA. Father subsequently discovers children’s passports in one of X’s toy handbags and mother tells him that she was planning to take the children to the USA on a day when he was at work. Father ultimately considers it necessary to cancel children’s passports.
During an argument over the passport issue, the mother kicks a large hole in the sliding door of the rental property where the parties reside.

Early 2011 Mother advises father of her intention to return to D State alone.
Father tells her that if she needs to go to the USA for a break or to deal with her mental health issues, she would be welcomed back into the family if she decided to return.

Mid-2011 Mother proposes to return to the USA however ultimately decides to remain in Perth and attend marriage counselling. She only attends one session and storms out after abusing the father in front of the children and others.

2011 onwards Father subjected to increasing physical and verbal abuse by the mother, who is consuming excessive alcohol thereby exacerbating her abuse of the father, which often occurs in front of the children.

2012 Mother advises father that she intends to return to D State after X’s sixth birthday.

Early 2013 Date of separation when mother leaves Australia to relocate to the USA. She does not wake Y to say goodbye. She demands three telephone calls with the children daily. The father initially accommodates this requirement however the calls are reduced in numbers as the children are becoming unsettled and reluctant to engage with the mother. Subsequently these calls become at times distressing to X in particular. Father proposes that contact by the mother and the children should be by email and that he proposes to send photos to the mother of the children and updates as to their education, sporting and leisure activities.

Early 2013 Father’s mother travels from Sydney to Perth to support the father and children during this emotional and difficult time for them upon the mother’s departure. Father ultimately discovers his passport and the parties’ marriage certificate are missing and that the mother has erased family photos from the father’s laptop computer.

Mid-2013 Father meets Ms C, who has two daughters.

Late 2013 Father and children together with Ms C and her children relocate to Sydney.

Early 2014 Father and Ms C and their respective children commence to live together in rented accommodation in Suburb E.

Early 2014 Father becomes concerned about X’s behaviour and emotional wellbeing following calls from the mother and she is referred to a child psychiatrist, Ms F.

Late 2015 Ms C returns to Perth for work whilst the father and his children remain in Sydney.

2016 Father commences de facto relationship with Ms G.

Late 2017 Birth of H and J, the twins of the father and Ms G, both presently aged 5 years.

Late 2019 Ms G returns to part-time work on three day per week. Prior to that time, she had been responsible for the full-time care of all four children.

16.12.2019 Mother files Initiating Application seeking parenting orders namely “joint custody” in relation to the children. She has not seen or had any physical contact with the children since early 2013, a period of some 6 ½ years.

22.02.2020 Mother files Amended Initiating Application seeking about equal care arrangements for the children and to be permitted to take the children to D State for two weeks each year to visit her family there.

03.04.2021 Mother arrives in Australia and states it is her intention to make Australia her permanent home and that she is pursuing obtaining Australia citizenship. She has obtained employment and is living in accommodation at Suburb K.

20.05.2022 Orders and notations made by a Judicial Registrar. The matter is listed for Undefended Hearing on 17 June 2022. She notes that there had been no appearance by the mother when the matter was listed on both 25 February 2022 and 6 May 2022 and further that the mother has advised the Court that she did not wish to continue with the proceedings. The Court also advised the mother that it would save time, expense and further distress to the children if she filed a Notice of Discontinuance prior to the date of the Undefended Hearing.

17.06.2022 Mother does not appear at the Undefended hearing Court not prepared to proceed with the hearing

03.07.2022 Matter listed in Justice Altobelli’s docket for directions.

10.08.2022 Matter listed before Justice Altobelli directions made to consider therapeutic counselling between the parties and children.

04.10.2022 Matter listed before Justice Altobelli for directions no appearance from the mother matter listed for undefended hearing on 5 December 2022 and directions made for the exchange of minutes of proposed orders from Independent Children’s Lawyer, respondent and applicant.

05.12.2022 Matter listed for undefended hearing.

The events referred to in the case outline document are consistent with the evidence before the Court, and there is actually no contest about the critical issue. The critical issue is that these children have not spent time with their mother for such a long period of time, and it is simply not possible on the evidence before the Court to attribute the responsibility of that to the father.
The presumption of equal shared parental responsibility is rebutted, and in any event it would not be in the best interests of the children for the presumption to apply. The reasons for that are set out in the case outline, and I incorporate those as if they were my own. These reasons include that:
(1)The children have been living in the sole care of the father to the exclusion of the mother since the time of separation, a period of some nine years and nine months;
(2)The father has been solely responsible for making decisions concerning the long term care, welfare, and development of the children since the time of separation without any involvement or input from the mother, who has lived overseas in the United States of America and who has only recently returned to live in Australia after a significant period of absence.
(3)Since 2013, the mother has played no role whatsoever in participating in decision making as to the long term care, welfare, and development of the children.
(4)The presumption pursuant to s 61DA of the Family Law Act 1975 (Cth) (“the Act”) that is it in the best interests of the children for the parents to have equal shared parental responsibility for them is rebutted by the following evidence:
(a)The parties’ relationship before separation appears acrimonious and according to the father involved physical violence and verbal abuse perpetrated upon him by the mother. The likelihood of the parties co‑operating and communicating in relation to matters generally pertaining to the children’s welfare is remote.
(b)The mother has not sought to play any role in the children’s lives since the time of separation, some nine years and nine months.
(c)The father has been child focused and has made appropriate decisions in relation to the children’s long-term care, welfare, and development since the time of separation. It would be impractical and unrealistic for the parties now to make joint decisions as to the children’s future welfare.
At the moment, there is no meaningful relationship between the mother and the children. Having regard to the reality that they will not participate in therapy with their mother, in the circumstances, there is not even the prospect of a meaningful relationship between them.
It would be very difficult for these children in the circumstances of this case to suddenly even spend a few minutes of time that their mother pleads with me today to give to them. It greatly minimises the complexity of this case, the experiences of the children, and some of the concerns that have at least historically existed in relation to the mother's capacity to care for them. In the circumstances, the order for sole parental responsibility is also warranted, because of those concerns.
Given the ages of the children, this Court finds it impossible to ignore the views that they have expressed, both to the Independent Children's Lawyer and to the Family Consultant in the Child Inclusive Conference Memorandum. The evidence before the Court suggests that in the circumstances, the children are doing well. There is the prospect that one day these children, at their own time and at their own pace, will seek their mother out. The Court says this not just based on its long experience in these cases, but also based on the submissions made by a very experienced Independent Children's Lawyer.
The Court accepts that not having their biological mother in their lives is a challenge to the children, but there are other challenges for them, including just getting on with the rest of their lives as best they can, freed from the burden of litigation about them.
This is in many ways a tragic and very sad case, and an outcome that whilst providing a significant measure of relief for both the father and the children, continues a process of grieving that the mother has been undergoing for many years. Nonetheless, the Court is charged with the responsibility of making an order that is in the best interests of the children, and the Court is satisfied that in the circumstances of this case, the order that I have made is in the best interests of the children.
This tragic case is one that attracts the general provision in s 117 of the Act that each party should pay and bear their own costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 5 December 2022
“A”
MINUTE OF ORDERS
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEY
(DIVISION 1)
File No.: (P) SYC 8304/2019
BETWEEN
MS RYAN
(Applicant)
AND
MR PATERSON
(Respondent)
AND
INDEPENDENT CHILDREN’S LAWYER
RESPONDENT’S PROPOSED SHORT MINUTES OF ORDER
Parental Responsibility
1.That the Father shall have sole parental responsibility of the children of the marriage, X born 2007 and Y born 2010 (herein after referred to as “the children”) concerning:
(a)The children’s education;
(b)The children’s health;
(c)Changes in the children’s living arrangements, and
(d)The children’s extra-curricular activities.
(e)The issuing of any passports in relation to the Children.

Children’s Residence
2.That the children live with the Father.

Time with the Mother
3.The Mother spend supervised time with the children, if requested by the children.

Telephone Communication
4.That the Mother have reasonable supervised communication with the children by telephone if requested by the children.

Overseas Travel
5.That pursuant to s65Y(2) of the Family Law Act 1975 (Cth), the Father is permitted to travel overseas with the children;
6.That the father shall be at liberty to apply for the issue of an Australian passport or a renewal Australian passport in relation to the children without the Mother’s consent, pursuant to s11 of the Australian Passport’s Act 2005 (Cth); and
7.That the issue of any required Visas or any other requirement of the authorities of the destination country(ies) any such fees relating thereto shall be paid by the Father.

File number(s):	SYC 8304 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	5 December 2022
Catchwords:	FAMILY LAW – CHILDREN – Final undefended hearing – Parental responsibility – Best interests of the child – Where the mother has appeared but filed no material despite numerous orders directing her to do so – Where the mother seeks equal shared parental responsibility and equal time – Where the father seeks sole parental responsibility and supervised time with mother – Final parenting orders made for the father to have sole parental responsibility for the child.
Legislation:	Family Law Act 1975 (Cth) ss 61DA, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.22(1), 10.26
Division:	Division 1 First Instance
Number of paragraphs:	15
Date of hearing:	5 December 2022
Place:	Sydney
The Applicant:	Litigant in person
Solicitor for the Respondent:	Mills Oakley Lawyers
Solicitor for the Independent Children's Lawyer:	Mark Macdiarmid Family Law Specialist

SYC 8304 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS RYAN Applicant
AND:	MR PATERSON Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	ALTOBELLI J
DATE OF ORDER:	5 DECEMBER 2022

Date	Event
1979	Date of birth of father in Australia, presently aged 43 years.
1979	Date of birth of mother in USA, presently aged 43 years.
Mid-2003	Parties commence relationship and travel around Australia together for some months and thereafter mother returns to the US in mid-2003.
Late 2003	Date of parties’ engagements. Parties apply for Prospective Spouse Visa for mother.
2004	Prospective Spouse Visa granted for mother, and she moves to Australia. The parties are required to marry within nine months of the Visa being granted.
2004	Parties commence cohabitation.
2004	Date of marriage. The father’s family members did not attend the wedding at the request of mother, as her family and friends had not been able to travel to Australia.
2006	Parties stage a second wedding in the presence of their parents in Australia.
2006	Father becomes concerned that mother is drinking alcohol in excess.
2007	Birth of X, presently aged 15 years.
Mid-2007	Parties and X relocate to the USA, as the mother had become negative about life in Australia and wanted to return to the USA.
2008	Father discovers mother is purchasing and using a prohibited substance. Father confront her and she further admits that she is an alcoholic and has problems with alcohol.
2009	Parties return to Australia due to GFC and father’s job security being uncertain in the USA.
2009	At mother’s insistence, parties relocate from Sydney to Perth, where the father is able to secure employment. Subsequently, mother becomes unsettled and desires to move to either Melbourne or Brisbane. Mother consumes excessive quantities of alcohol and father discovers bottles hidden in the home. She subjects the father to frequent verbal and physical abuse, particularly after consuming alcohol.
2010	Birth of Y, presently aged 12 years.
Early 2011	Mother advises father she wants to return to D State with the children. Father refuses to give his approval to take the children to the USA. Father subsequently discovers children’s passports in one of X’s toy handbags and mother tells him that she was planning to take the children to the USA on a day when he was at work. Father ultimately considers it necessary to cancel children’s passports. During an argument over the passport issue, the mother kicks a large hole in the sliding door of the rental property where the parties reside.
Early 2011	Mother advises father of her intention to return to D State alone. Father tells her that if she needs to go to the USA for a break or to deal with her mental health issues, she would be welcomed back into the family if she decided to return.
Mid-2011	Mother proposes to return to the USA however ultimately decides to remain in Perth and attend marriage counselling. She only attends one session and storms out after abusing the father in front of the children and others.
2011 onwards	Father subjected to increasing physical and verbal abuse by the mother, who is consuming excessive alcohol thereby exacerbating her abuse of the father, which often occurs in front of the children.
2012	Mother advises father that she intends to return to D State after X’s sixth birthday.
Early 2013	Date of separation when mother leaves Australia to relocate to the USA. She does not wake Y to say goodbye. She demands three telephone calls with the children daily. The father initially accommodates this requirement however the calls are reduced in numbers as the children are becoming unsettled and reluctant to engage with the mother. Subsequently these calls become at times distressing to X in particular. Father proposes that contact by the mother and the children should be by email and that he proposes to send photos to the mother of the children and updates as to their education, sporting and leisure activities.
Early 2013	Father’s mother travels from Sydney to Perth to support the father and children during this emotional and difficult time for them upon the mother’s departure. Father ultimately discovers his passport and the parties’ marriage certificate are missing and that the mother has erased family photos from the father’s laptop computer.
Mid-2013	Father meets Ms C, who has two daughters.
Late 2013	Father and children together with Ms C and her children relocate to Sydney.
Early 2014	Father and Ms C and their respective children commence to live together in rented accommodation in Suburb E.
Early 2014	Father becomes concerned about X’s behaviour and emotional wellbeing following calls from the mother and she is referred to a child psychiatrist, Ms F.
Late 2015	Ms C returns to Perth for work whilst the father and his children remain in Sydney.
2016	Father commences de facto relationship with Ms G.
Late 2017	Birth of H and J, the twins of the father and Ms G, both presently aged 5 years.
Late 2019	Ms G returns to part-time work on three day per week. Prior to that time, she had been responsible for the full-time care of all four children.
16.12.2019	Mother files Initiating Application seeking parenting orders namely “joint custody” in relation to the children. She has not seen or had any physical contact with the children since early 2013, a period of some 6 ½ years.
22.02.2020	Mother files Amended Initiating Application seeking about equal care arrangements for the children and to be permitted to take the children to D State for two weeks each year to visit her family there.
03.04.2021	Mother arrives in Australia and states it is her intention to make Australia her permanent home and that she is pursuing obtaining Australia citizenship. She has obtained employment and is living in accommodation at Suburb K.
20.05.2022	Orders and notations made by a Judicial Registrar. The matter is listed for Undefended Hearing on 17 June 2022. She notes that there had been no appearance by the mother when the matter was listed on both 25 February 2022 and 6 May 2022 and further that the mother has advised the Court that she did not wish to continue with the proceedings. The Court also advised the mother that it would save time, expense and further distress to the children if she filed a Notice of Discontinuance prior to the date of the Undefended Hearing.
17.06.2022	Mother does not appear at the Undefended hearing Court not prepared to proceed with the hearing
03.07.2022	Matter listed in Justice Altobelli’s docket for directions.
10.08.2022	Matter listed before Justice Altobelli directions made to consider therapeutic counselling between the parties and children.
04.10.2022	Matter listed before Justice Altobelli for directions no appearance from the mother matter listed for undefended hearing on 5 December 2022 and directions made for the exchange of minutes of proposed orders from Independent Children’s Lawyer, respondent and applicant.
05.12.2022	Matter listed for undefended hearing.