Safford & Kelso

Case [2021] FedCFamC1F 165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Safford & Kelso [2021] FedCFamC1F 165

File number(s): BRC 1970 of 2011
Judgment of: JOHNS J
Date of judgment: 27 October 2021
Catchwords:

FAMILY LAW – CHILDREN – family violence – undefended hearing – where the applicant father failed to engage in the final hearing – where final orders have been in effect since 2014 – where the father has not spent time with the child since 2013 – father’s application dismissed

FAMILY LAW – VEXATIOUS PROCEEDINGS – consideration of s 102QB – family violence – proceedings used as form of harassment – where the applicant father has repeatedly engaged and discontinued proceedings – where the respondent mother perceives the proceedings to be a form of harassment and coercion

Legislation:

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2) and (3), 61DA, 64B(2)(g), 65C, 65DAA, 69ZW, 102NA, 102Q, 102QB, 102QE

Evidence Act 1995 (Cth) s 140

Cases cited:

Cannon & Acres [2014] FamCA 104

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518

Oberlin & Infield (2021) FLC 94-017

Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398

Pencious & Searle (2017) FLC 93-805

State Bank of New South Wales v Stenhouse Limited and Ors (1997) Aust Torts Reports 81-423
Division: Division 1 First Instance
Number of paragraphs: 127
Date of last submission/s: 11 June 2021
Date of hearing: 11 June 2021
Place: Melbourne
Applicant: No Appearance
Solicitor for the Respondent: Victoria Legal Aid
Counsel for the Respondent: Ms Weiner
Solicitor for the Independent Children’s Lawyer: KS Family Lawyers

ORDERS

BRC 1970 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SAFFORD

Applicant
AND:

MS KELSO

First Respondent

KS FAMILY LAWYERS

Independent Children’s Lawyer

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

27 OCTOBER 2021

THE COURT ORDERS THAT:

1.That the final orders made 9 October 2014 continue in full force and effect.

2.That pursuant to s. 102QB(2) of the Family Law Act 1975 (Cth) ("the Act") the applicant, MR SAFFORD born … 1973 be prohibited from instituting proceedings under the Act without first having obtained leave by the Court to do so pursuant to s. 102QE of the Act.

3.That the appointment of the Independent Children's Lawyer be discharged at the expiration of 30 days from the date of these orders.

4.That all extant applications be otherwise 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to…

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Safford & Kelso [2021] FedCFamC1F 165
Case
[2021] FedCFamC1F 165
Decision Date

CaseChat Overview and Summary

The case of Safford & Kelso involved the parents of a child, X, who had been separated since 2012. The father, who had a history of violence and drug abuse, had been incarcerated for breaching a domestic violence order. Upon his release, he sought to challenge the existing final parenting orders which provided for sole parental responsibility for the mother and no contact with the father. The mother sought to maintain the status quo and prevent the father from making further applications for parenting orders, which she claimed were an abuse of process and intended to harass her. The court had to determine whether the existing orders should be maintained and whether any further restrictions on the father’s ability to apply for parenting orders were warranted.

The primary legal issue was whether the existing final parenting orders, which provided for sole parental responsibility for the mother and no contact with the father, should be maintained. The court also had to consider whether any further restrictions on the father’s ability to apply for parenting orders were appropriate given his history of abusive conduct and multiple applications. The court examined the primary considerations under section 60CC(2) of the Family Law Act 1975, including the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. Given the father’s history of violence and drug abuse, and his disengagement from the proceedings, the court found that there was little benefit in the child having a relationship with him. The court also noted the mother’s unchallenged evidence of the father’s abusive conduct and his failure to comply with court orders.

The court concluded that the existing final parenting orders should remain in place as they were in the best interests of the child. The court found that the father’s history of violent and anti-social conduct, and his failure to comply with court orders, meant that there was little benefit in the child having a relationship with him. The court also considered the mother’s submission that the father’s numerous applications for parenting orders were an abuse of process and intended to harass her. While the court acknowledged the father’s right to make such applications, it noted that the mother had a right to be protected from harassment. The court found that the existing orders were appropriate and in the child’s best interests, and that there was no need for further restrictions on the father’s ability to apply for parenting orders. The court did not make any orders restraining the father from making further applications, but noted that any such applications would be subject to the usual requirements of the court.

In conclusion, the court maintained the existing final parenting orders which provided for sole parental responsibility for the mother and no contact with the father. The court found that the father’s history of violent and anti-social conduct, and his failure to comply with court orders, meant that there was little benefit in the child having a relationship with him. The court also noted the mother’s unchallenged evidence of the father’s abusive conduct and her right to be protected from harassment. The court did not make any further orders restraining the father from making further applications for parenting orders, but noted that any such applications would be subject to the usual requirements of the court.

Orders

Orders of the court

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Background

Background to the litigation

The mother and father separated on a final basis on 13 May 2012. BACKGROUND Following the parties’ separation in 2012, proceedings commenced in the Federal Circuit Court in Brisbane. Whilst those proceedings were still on foot, in 2014, the father was incarcerated for breaching a domestic violence order made for the protection of the mother. He was incarcerated for a period of approximately 21 months and was released in 2016. Following the father’s incarceration, final parenting orders were made by Judge Turner in the Federal Circuit Court on 9 October 2014. Those orders provided as follows:-(1)That all previous parenting plans and orders be discharged. (2)That the Mother have sole parental responsibility for the child X born in 2010. (3)That the child live with the Mother. (4)That the child spend no time with the Father. (5)That pursuant to s68 Family Law Act 1975 the Father be injuncted and restrained from:(a)communicating with the Mother or the child by any correspondence including but not limited to letters, email, text or telephone; (b)entering or remaining in the residence of the Mother or her place of employment; (c)approaching or remaining within two (2) kilometres of the Mother or the child; (d)approaching or communicating with the child’s school. (6)That unless the Mother becomes physically or mentally incapable of parenting the children, the Father is restrained and an injunction issue restraining him from commencing proceedings seeking parenting orders at any time before his release from imprisonment without first obtaining leave of the Court. (7)That any application by the Father for leave to commence proceedings seeking parenting orders must be served on the Mother but she is not required to participate in the hearing of the application for leave. (8)That the Independent Children’s Lawyer provide to the Department of Communities, Child Safety and Disability Services a copy of these Final Orders as well as Reasons for Judgment. (9)That the Independent Children’s Lawyer be discharged and pursuant to s68 Family Law Act 1975 the Father be injuncted and restrained from communicating with the Independent Children’s Lawyer or her staff by any means. Upon his release from prison, the father issued a further Initiating Application in July 2016. The father filed a Notice of Discontinuance in respect of that application on 24 November 2016. However, at a mention hearing on 29 November 2016, the father informed the Court that he no longer wished to rely upon that Notice of Discontinuance. Accordingly, the proceedings continued. The father again changed his position with respect to his application and on 7 August 2017 orders were made in the Federal Circuit Court by Judge Jones as follows:-(1)Leave be granted for the Applicant to discontinue the proceedings. (2)All extant applications be otherwise dismissed and removed from the list of pending cases. Some three months later, the father filed another Initiating Application on 19 December 2017 seeking parenting orders. That application was transferred to this Court pursuant to orders made by Judge Spelleken on 29 November 2019.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are no other facts or circumstances relevant to this matter.CONCLUSION The mother seeks orders that the existing final parenting orders dated 9 October 2014 remain in full force and effect. Those orders provide that she have sole parental responsibility for X and that X live with her. Those orders also provide restraints in relation to the father’s behaviour towards the mother and X. I am satisfied that it is in X’s best interests that those orders continue. The mother has been X’s primary care-giver since the parties’ separation. The evidence before the Court indicates that X is being well cared for and is making good progress. There is a long history of violent and anti-social conduct by the father towards the mother. There is also evidence before the Court that X and her older sibling were exposed to that conduct. Having regard to the mother’s unchallenged evidence in relation to these matters, I am satisfied that the existing final orders with respect to parenting of the child should continue. Those orders are appropriate and in X’s best interests. Those orders will ensure that X continues to live in a stable and secure environment with the mother and her siblings. It was submitted on behalf of the mother that the time has come for an order to be made pursuant to s 102QB of the Act, having regard to the numerous applications filed by the father which she submits have been an abuse of the court’s processes and designed to harass or annoy her. In the alternative the mother seeks orders pursuant to s 64B(2)(g) of the Act restraining the father bringing any further parenting application for a period of 3 years and requiring him to file material seeking leave to bring such application. That application is supported by the ICL. The Full Court considered the Court’s powers to make orders pursuant to s 64B(2)(g) as sought by the mother in the case of Oberlin & Infield (2021) FLC 94-017. The Court there was asked to consider whether s 64B(2)(g) empowered the Trial Judge to make an order in the following terms:-20. Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement [for substantial attendance], upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in:(a) [The single expert psychiatrist] report;(b) [The family consultant’s] family report; and(c) These reasons for judgment. The Court found that that order, although styled as an injunction, could not have been made pursuant to ss 68B or 114(1) of the Act because it was not made for anyone’s personal protection, to restrain entry upon certain premises, to protect the marital relationship or property. The Court held that such order, if made pursuant to s 64B(2)(g)(ii) of the Act, goes further than that provision enables. At paragraph 34 of the judgment the Full Court noted that the order made positively forbids the mother from bringing any variation application for a period of two years, regardless of her changing needs and circumstances. As such, the Full Court concluded that the order purports to be something other than a “parenting order” within the meaning of s 64B(2)(g) of the Act and “is an injunctive fetter upon the mother’s right to bring further proceedings in respect of the children under Part VII of the Act as and when she sees fit”.

Ratio Decidendi

Legal Principle Established

The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.Section 60CC Consideration Primary Considerations: Section 60CC(2)(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; Ordinarily it is in a child's best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-119. … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ... …122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.(Original emphasis) The child has spent no time with the father since around December 2013. At that time she was aged only three-and-a-half years. Although the father is the applicant in these proceedings, he has seemingly disengaged from them and elected not to participate in the final hearing. Further, he has not complied with orders requiring him to attend for psychiatric assessment and for drug testing. Having regard to those circumstances, it would seem that there is little utility in the court attempting to frame orders for him to be reintroduced to the child. Accordingly, I am satisfied that there can be little benefit to the child in attempting to craft orders to facilitate the father’s relationship with her. (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; In her trial affidavit, the mother deposes that there were multiple occasions of ongoing family violence throughout her relationship with the father. Further, the mother deposes that during the relationship the father consumed alcohol to excess and took illicit substances including speed, ecstasy and cannabis. Further, she deposes that the father abused Valium. It is her evidence that the father’s violent behaviour escalated when he was affected by drugs and alcohol.