Rylie and Rylie

[2014] FamCA 183

FAMILY COURT OF AUSTRALIA

RYLIE & RYLIE [2014] FamCA 183

FAMILY LAW – CHILDREN – With whom a child spends time –  Where the Respondent Father failed to participate in the proceedings – Where there are allegations in relation to the Father’s capacity to provide parenting for the child that are untested – Final Orders made on an undefended basis

Family Law Act 1975 (Cth)

Allesch & Maunz (2000) 26 Fam LR 237
APPLICANT:	Ms Rylie

RESPONDENT:	Mr Rylie
INDEPENDENT CHILDREN’S LAWYER:	Mr Carter

FILE NUMBER: BRC 10668 of 2010

DATE DELIVERED: 24 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 24 March 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Brisbane North Criminal Lawyers

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

Orders

it is ordered that

1. The Mother have sole parental responsibility for the child T born on the … 2004 (“the child”) including but not limited to decisions concerning: 

   (a)surgical procedures, medical treatment, dental treatment, speech therapists, physiotherapists and alternative medical treatment of the child;

   (b)treatment of any issue surrounding the mental health of the child and the referral of the child to any counsellor, psychologist or psychiatrist;

   (c)whether the child is to travel outside of Australia; and

   (d)the obtaining of Australian or British passports and/or visas for the child.

2. The Mother have sole parental responsibility for the making of decisions relating to the day-to-day care, welfare and development of the child.

3. The child live with the Mother.

4. The Father shall not communicate with, telephone, contact or attempt to contact the child except with the consent of the Mother.

5. The Mother and Father shall not criticise, denigrate, demean or ridicule the other parent or members of the other parent’s family or household to the child or in the presence of the child.

6. The Mother and Father shall use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to the child or in the presence of the child.

7. The Mother and Father shall not discuss these proceedings with or in the presence of the child or show to the child any document connected with these proceedings.

8. The Application filed 15 November 2010 be removed from the pending cases list.

9. The Independent Children’s Lawyer be discharged.

10. Pursuant to s 65DA(2) and s 62B of the Act, 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 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.

NOTATION

A.The Independent Children’s Lawyer advises that the postal address for the Father is … and the last known residential address is … .

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rylie & Rylie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 10668 of 2010

Ms Rylie

Applicant

And

Mr Rylie

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the Mother, Ms Rylie’s application for parenting orders under Part VII of the Family Law Act1975 (Cth) (“the Act”), concerning the child T, (“the child”) born in 2004 who is now nine years of age.

2. The Respondent to the proceedings is the child’s father, Mr Rylie (“the Father”) and the child’s interests in the proceedings are independently represented by an Independent Children’s Lawyer, pursuant to section 68L of the Act.

3. The relevant background to the proceedings is that there are allegations of what can only be described as extreme family violence, child abuse and threats to kill or commit suicide by the Father during the course of the parties’ relationship. 

4. The proceedings have been on foot for some time, given that they were initiated by the Mother in the then Federal Magistrates Court on 15 November 2010. 

5. Since the institution of the proceedings, the Father has demonstrated a variable commitment to engaging in the proceedings.  Mr Carter, the Independent Children’s Lawyer, points out that on a number of occasions since trial directions were made in this matter as long ago as 28 May 2013, the Father has simply not appeared on the further case management occasions or has failed to file material. 

6. There is evidence from a number of sources of the Father having determined that he would not participate in the proceedings. For example, Mr Carter refers to the second of Mr S, the Family Report writer’s two family reports, where in paragraph 64 of the Family Report dated 30 April 2013, the Father indicated his plan to withdraw from the proceedings. 

7. I gave leave to the Independent Children’s Lawyer this morning to file an affidavit by Mr Carter relating to his recent contact with the Father who confirmed to Mr Carter that he did not intend to participate or contest the application by the Mother, that he was aware of the trial dates for the matter and that the Father did not, in fact, participate in more recent family report interviews that were to occur.

8. Within the rules of procedural fairness lies the indispensable requirement of a court system of natural justice that a party affected by a decision have the opportunity to be heard before the decision is made.  As was highlighted by Kirby J in Allesch v Maunz (2000) 26 Fam LR 237, where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

9. As was emphasised by Kirby J, it is the opportunity to be heard which is essential to procedural fairness, not that the court must, in fact, receive evidence or submissions on behalf of that party before making orders. That is, the principle does not require the decision-maker to actually hear from that party. 

10. As Kirby J stated at paragraph 38 of Allesch v Maunz (supra):

    …Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

11. As I have already referred to, the Father has filed no further material in these proceedings for a considerable period of time.  He has not complied with directions made on more than one occasion to advance the matter to trial and for each party to file necessary evidence for that purpose.  The Father has indicated on a number of occasions that he does not intend to participate in the proceedings. 

12. In all the circumstances, I am satisfied that the Father has had ample opportunity to be heard in the proceedings, but has elected not to do so.  I note that the relevant Family Law Rules are a reflection of the principles to which I have referred.  The rules allow the other parties in this proceeding to proceed on the basis that the Father has not filed any material in opposition to the orders sought by the Independent Children’s Lawyer (and supported by the Mother) or any evidence in opposition to the evidence filed by the Mother and the Independent Children’s Lawyer in relation to the orders now sought. 

13. Having regard to the Father’s conduct and the nature of the allegations made by the Mother, as referred to by Mr S in his substantial Family Report dated 2 November 2013, I am satisfied that the orders now proposed by the Independent Children’s Lawyer for the child, and supported by the Mother, are orders which best meet the child’s best interests within the meaning of Part VII. 

14. It is quite clear that it has been some time since the Father has had anything that could be remotely described as a meaningful relationship with the child (s 60CC(2)(a)), and his election not to participate in the proceedings means that very significant and serious allegations mounted by the Mother in relation to his capacity to provide parenting for the child are to be accepted.

15. In those circumstances, where it is the Father’s choice not to participate in the proceedings to have those allegations pursued or tested, the Court is left with little option but to proceed on the basis that there is substance in the allegations made by the Mother and that parenting orders in the child’s best interests must reflect that important context. 

16. For these reasons, I am therefore satisfied that in accordance with the primary considerations set out in section 60CC of the Act and having regard also to the additional considerations reflected in that subsection that the child’s best interests are met by making the orders sought by the Independent Children’s Lawyer (as set out in exhibit 1) save only for the amendment to them discussed during submissions in relation to not including reference to the child’s older half-sibling, B, who is now soon to turn 18 years of age.

17. For these reasons I make the orders set out at the commencement of them.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 March 2014.

Associate: 

Date:  27 March 2014