SAGER & KEATS

[2021] FCCA 153

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAGER & KEATS [2021] FCCA 153

Catchwords:
FAMILY LAW – Ex tempore ruling on summary dismissal where applicant mother failed to participate in section 11F interviews and failed to attend Court.

Legislation:

Family Law Act 1975 (Cth), s.45A

Applicant: MS SAGER

Respondent: MR KEATS

File Number: DGC 3332 of 2020

Judgment of: Judge Burchardt

Hearing date: 29 January 2021

Date of Last Submission: 29 January 2021

Delivered at: Dandenong

Delivered on: 29 January 2021

REPRESENTATION

Counsel for the Applicant: No Appearance

Solicitors for the Applicant: No Appearance

Counsel for the Respondent: Mr Combes

Solicitors for the Respondent: Blackwood Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Korke

Solicitors for the Independent Children's Lawyer: Autumn Legal

ORDERS

1. Pursuant to Section 45A of the Family Law Act 1975, the mother’s Initiating Application filed on 18 September 2020 be summarily dismissed.

2. The order appointing the Independent Children’s Lawyer dated 25 January 2020 be discharged.

3. The father is authorised and permitted to apply for and receive an Australian passport for the child X born in 2009 without first obtaining the written consent of the other parent.

4. The child X born in 2009  be permitted to depart the Commonwealth of Australia.

5. All previous parenting orders are discharged.

6. The father have sole parental responsibility for the child X born in 2009 (“the child”).

7. The child live with the father.

8. The child spend time with and communicate with the mother as agreed between the parties.

9. The father be at liberty to provide a copy of these orders:

   (a)     To the child’s school.

   (b)    To the child’s treating medical practitioners.

   (c)     To any organisation necessary to obtain a passport for the child.

IT IS NOTED that publication of this judgment under the pseudonym Sager & Keats is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC  3332 of 2020

MS SAGER

Applicant

And

MR KEATS

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceeding commenced by an application filed by the mother on 18 September 2020.  Owing to listing exigencies at the time, the first return date was due on 25 January 2021.  The mother was legally represented at the time.  The mother filed a supporting affidavit, and she deposed to the urgency of the application.  Time was not, however, abridged, and the responding materials have been filed.  It seems uncontroversial that although the father was not in X’s life for quite a period of time, she having been born in 2009, he came into her life, I think, in 2019, and in 2020, the child X was placed with him, where she has remained ever since.  Indeed, she appears to have absconded from her mother’s care at that time.  There have been all too numerous reports to the Department of Health and Human Services, which are summarised in correspondence dated 15 October 2020 and 20 January 2021.

2. Orders were made on 25 January adjourning the matter to today, making an urgent appointment of an independent children’s lawyer and a section 11F report.  When the matter came on this morning, Ms Torahi, solicitor for the mother, sought leave to withdraw on the basis that her instructions had effectively ended and that the relationship of solicitor-client had broken down.  From what Ms Torahi told me, it is plain that the mother is aware of the hearing today, but she has not elected to participate even though Ms Torahi assures me she has the relevant details to enable her to do so.

3. The 11F report is deeply concerning, and I refer to all of it without reading it out.  The mother’s behaviour was thoroughly unsatisfactory, but what is probably all the more significant is that X was interviewed separately in what appeared to be a private space.  The reporter noted that X’s views and statements appeared to be genuine, and there was no concern that her information was not her own.  She had been interviewed by Child Protection extensively and was engaged with a school psychologist, so the interview was brief, and at paragraph 29, X explained that she did not want to see her mother at the current time due to her past experiences with her, and that she did not feel any bond with her mother or a loving feeling from her.

4. X stated that her mother was not a parent.  She viewed her as:

   …selfish, would sleep all day and would allow weird, random people over that were drug dealers.  It was not fun at all.

   X then went on to speak about her enjoyment living with her father and having normal fun with him, and at paragraph 33, X was adamant that she did not want to have any form of contact with her mother until Ms Sager addressed her drug use and behaviours.  X also stated she was not sure she would be comfortable to see her mother even if she addressed the concerns, due to her past experiences in her mother’s care.

5. It was noted in affidavit material that X had expressed a belief that she would have died in her mother’s care, and that she would run away forced to return to her mother’s care.  It is concerning that an 11-year-old was expressing such dire views of an environment that should be loving, nurturing, supportive, and safe.  Given Ms Sager’s presentation and attitude during interview, there was little information to offer confidence in her ability to offer X a child-focused relationship or spend time.  Her decision to terminate the interview was of concern, as was her inability to manage any challenging conversations.  Ms Sager’s capacity to positively and effectively respond to X should she challenge her is most likely limited.

6. The report, under the heading Future Directions, went on to note:

   As stated, it remained unclear if Ms Sager would be pursuing orders that provide for X to spend time with her.  Currently, it would appear premature to consider any spend time with Ms Sager and X.  X was clear in her wishes and there was insufficient information to negate the allegations and risks identified with Ms Sager.  It is recommended allegations be comprehensively addressed prior to spend time occurring.  Urine screens or hair follicle testing of Ms Sager and a drug and alcohol assessment may be beneficial.

7. The report went on to make a number of other recommendations about progressing the matter should Ms Sager’s wish to participate.  I note that there are significant concerns about the mother’s partner, who appears from the departmental documentation to be well known to the Department of Health and Human Services, and I would infer from the material provided, not in a fashion to suggest that the department has a good view of him.

8. Counsel for the father seeks the summary dismissal of the application.  It should be noted that this has not, I think, been formally put before the Court, but in the circumstances of the case, I think it is not in any sense improper to consider the application.  He seeks that all other previous orders are discharged, the father have sole parental responsibility, the child live with him and spend time and communicate with the mother as agreed.  There are also orders sought in respect of international travel.

9. In circumstances where the father does not have dual nationality and has no improper intention to relocate out of Australia, the passport orders are obviously appropriate, although the Court will take them out in the form that the Court ordinarily does, which are efficacious when passport applications are made, as well as the orders sought by the father. Counsel for the father points to the fact that it is only going to cause X concern if the proceeding continues, and in the face of the matters in the 11F report, I fully accept that submission.  The mother’s behaviour has been erratic and unsatisfactory, as disclosed by the 11F report.  Even if she were to press her application at the present time, it is difficult to see that there would be orders for any regime of spend time, but rather a comprehensive series of investigations before any such program could seriously be contemplated.

10. In these circumstances, it seems to me that the best interests of this young girl will be met by making the orders that the father seeks. The way is still there for the mother to, as it were, prove herself or prove her intentions by making an application pursuant to rule 16.05, and of course, any such application would need to be considered on its merits. But in circumstances where she has comprehensively failed to participate today, and in effect, has relatively comprehensively failed to participate in the 11F interview process, the Court is entitled to form the conclusion that these proceedings are not going to be properly prosecuted by her. In my view, the strain and stress of further proceedings and the costs – which, of course, are significant to the father, who is not wealthy and who is self-funded – all combine, in my view, to produce a set of circumstances where the order should be made pursuant to section 45A of the Family Law Act 1975, and I will dismiss the application summarily pursuant to section 45A.

11. In the circumstances described, the other orders the father seeks, which I note are all essentially supported by the independent children’s lawyer, should also be made.  There will therefore be final orders in terms of the father’s proposed minute supported by the ICL, the mother not appearing.  I note additionally I need to discharge the appointment of the independent children’s lawyer.  These reasons will be transcribed and edited from transcript and forwarded to the parties as soon as possible.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 29 January 2021