SUDANNA & MODHI

[2017] FamCA 673

FAMILY COURT OF AUSTRALIA

SUDANNA & MODHI [2017] FamCA 673

FAMILY LAW – CHILDREN – Where the father has pending criminal proceedings and is currently incarcerated – Where it is appropriate for the matter to proceed undefended – Where there are allegations of family violence – Where there are allegations the father has physically assaulted the child – Where there are serious concerns as to the father’s mental health and parenting capacity given his recent offences – Where the father poses an unacceptable risk of harm to the child – Where the mother seeks to relocate to Melbourne with the child – Where it is appropriate to make orders for the mother to have sole parental responsibility and for the child to live with her.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN(7)
Family Law Rules 2004 (Cth) rr 1.12, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175Goode and Goode [2006] FamCA 1346

Farmer & Rogers [2010] FamCAFC 253

Jarrah & Fadel [2014] FamCAFC 14
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Mr Sudanna

RESPONDENT: Ms Modhi

INDEPENDENT CHILDREN’S LAWYER: Mr Ng

FILE NUMBER: PAC 5227 of 2014

DATE DELIVERED: 1 September 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 July 2017

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: In person

RESPONDENT – SELF-REPRESENTED LITIGANT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ng of Adams & Partners Lawyers

Orders Made on 19 July 2017

1. That leave is granted to the Respondent mother and the Independent Children’s Lawyer to inspect documents produced on subpoena by Burwood Local Court.

2. That the mother, Ms Modhi, have sole parental responsibility for the child B (“the child”) born … 2012.

3. That the child live with the mother.

4. It is noted that there is no application for costs by the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5227  of 2014

Mr Sudanna

Applicant

And

Ms Modhi

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the child B born in 2012.

2. The proceedings were heard on an undefended basis on 19 July 2017 in respect to the mother’s application for orders in relation to the child.

The proceedings

1. The father commenced proceedings by application filed 2 November 2014. That application was later amended by way of an amended application filed 28 November 2014 and subsequently amended again by way of an amended application filed on 9 January 2015. The father then on 26 June 2015 filed a further amended application that, in summary, relevantly sought orders as follows:

   a)that the parties have equal shared parental responsibility for the child;

   b)that the child live with the mother from 8.00 pm Sunday until 8.00 pm Thursday each week and, otherwise, live with the father.

2. The mother filed a Response to the father’s application on 16 December 2014. In that Response she sought an order that she be permitted to relocate to Melbourne to live with the child “due to ongoing domestic violence in Sydney”. The mother subsequently filed an Amended Response on 1 July 2015. In that Response she relevantly sought the following orders:

   a)that the mother have sole parental responsibility for the child;

   b)that the father spend time with the child as recommended by the expert and/or family consultant;

   c)that the child live with the mother.

3. Proceedings were later listed before the Court on 23 October 2015. On that day the father appeared in person unrepresented. Proceedings were adjourned for further case management to 15 December 2015. The father was ordered to file and serve a further amended application seeking orders as to property settlement together with a financial statement by 27 November 2015. The mother was, otherwise, ordered to file an Amended Response seeking orders as to property together with a financial statement by no later than 27 November 2015.

4. On 15 December 2015 the father again appeared in person unrepresented. Orders and notations were made as follows:

   1.Leave is granted to the parties to inspect all documents produced on subpoena in the registry to date.

   2.The matter is adjourned to Monday 14 March 2016 at 9:30am for a directions hearing before the Registrar.

   3.The Mother file a copy of the present AVO order by Wednesday 23 December 2015.

   4.The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the interim issues before the Court with such subpoena to be returnable by no later than Tuesday 8 March 2016.

   5.The time for compliance by the Mother with Order 5 made on 23 October 2015 as to filing a further amended response as to property be extended to Friday 29 January 2016.

   IT IS NOTED THAT:

   A.The Court is informed today by the Father that he is awaiting a grant of legal aid.

   B.The Court is informed by the Mother that the Mother is awaiting a grant of legal aid in relation to parenting proceedings.

   C.During the adjournment the Independent Children’s Lawyer and the parties have leave to inspect documents on subpoena in order that the Registrar can engage with the parties and the Independent Children’s Lawyer as to whether there be a Family Report or Chapter 15 forensic psychiatric report.

   D.If during the period of the adjournment the parties reach agreement as to the appointment of a Chapter 15 Expert the Independent Children’s Lawyer is at liberty to file a minute of proposed orders in chambers for those orders to be made by consent.

   E.There are no orders at present in relation to the subject child although the Mother is reportedly residing in the former matrimonial home unit at Auburn and the Father is subject to an AVO protecting the Mother and the child.

5. On 23 March 2016 an order was made appointing Dr C, clinical psychiatrist, as the single expert in the proceedings. The single expert report was released to the parties on 30 September 2016.

6. On 18 November 2016 both parties appeared unrepresented and trial directions were made with the parties to file trial documents by no later than 10 February 2017 with proceedings listed before a Registrar for a compliance check on 27 February 2017.

7. On 27 February 2017 there was no appearance by or on behalf of the applicant father before the Registrar. Orders were made for the father to file his trial documents within a further 21 days and proceedings were adjourned for a further compliance check to 24 March 2017. 

8. On 24 March 2017 again there was no appearance by the father and the Registrar was informed that the father was in custody. Proceedings were adjourned for judicial case management to 16 May 2017.

9. On 16 May 2017 there was no appearance by or on behalf of the applicant father. Orders were made as follows:

   Upon noting there is no appearance by or on behalf of the Applicant father and he was not contactable as otherwise provided for in the Section 77 order made 27 May 2017

   1.The mother’s application for final parenting orders be adjourned for undefended hearing to 10.00am on Wednesday, 19 July 2017.

   2.The mother file and serve one consolidated affidavit of her evidence in chief together with any affidavit of any witness to be relied upon by her by no later than Monday, 10 July 2017.

   3.The Independent Children’s Lawyer is granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Monday, 17 July 2017.

   THE COURT NOTES THAT

   4.For the purpose of service documents shall be forwarded to the father by ordinary prepaid post c/- the [D] Correctional Centre MIN – lock bag etc

   5.The ICL provide to the single expert Dr [D] such further or other documents as may be available by way of subpoena for the single expert to consider before hearing with the ICL having leave to adduce single expert evidence by Dr [C] by phone.

10. On 19 July 2017 there was no appearance by or on behalf of the applicant father. The matter proceeded to undefended hearing and by reason of the circumstances orders were pronounced that day with reasons for judgment to be published at a later date. Orders were made as follows:

    a)That the mother Ms Modhi have sole parental responsibility for the child B born … 2012;

    b)That the said child live with the mother.

11. The following are those reasons for judgment.

Context

1. The parties were married in 2012 and separated on 6 June 2013.

2. On separation the mother returned to Melbourne to live with her parents. She had previously moved to Sydney in 2007 to pursue work opportunities.

3. At the time of separation the child was just six months of age.

4. The father assaulted the mother when she was heavily pregnant with the child, screaming at her and pushing her causing her to stumble.

5. Subsequently there were a number of domestic violence incidents. In June 2013 the father struck the mother about the head a number of times and kicked her. The police attended and an apprehended violence order was subsequently made on application by the NSW police for the protection of the mother and child.

6. In addition to the normal statutory orders, the father was ordered not to go within 100 metres of the premises at which the mother and child may from time to time resides or work or the premises at E Street, Suburb F and the father was further ordered not to approach or contact the mother and/or the child by any means whatsoever except through his legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 (Cth) (“the Act”) as to counselling, conciliation or mediation. The apprehended violence order for the protection of the mother and child was subsequently extended to 26 March 2016. In early 2016 the father breached the conditions of the apprehended violence order and the order was subsequently extended until June 2017.

7. The mother was due to return to full-time employment in September 2013 but by reason of the intervening circumstances she resigned her position and moved to live with family in Melbourne after the assault in June.

8. The mother returned to Sydney in early August 2013 urging the father to seek anger management counselling. He refused. The mother was once again subjected to domestic violence and abuse at the hands of the father and returned to Melbourne in September 2013.

9. She subsequently returned to Sydney again on the father’s assurances that he would seek employment and that he would not subject the mother to family violence. Circumstances within the parties’ household did not improve and following a further incident of domestic violence the mother returned to Melbourne in June 2014. The parties subsequently attempted mediation by telephone which resulted in the mother returning to Sydney in August 2014.

10. The father’s conduct continued unabated and in October 2014 the mother returned to Melbourne where she found part-time employment and was able to place the child in day care.

11. In November 2014 the father attended at the maternal grandfather’s home in Melbourne. The police were called.

12. Subsequently, on 30 November 2014 the father, without the mother’s consent, retained the child. The child was subsequently returned to the mother’s care. The mother at this time returned to reside in Sydney to deal with the father’s application to the Court.

13. On 23 December 2014 it was noted by the Registrar that the parties had agreed for the child to spend time with the father each weekend from 6.00 pm Friday to 7.00 pm Sunday with the father not to enter upon premises where the mother resides without her written consent. At this time the father was purportedly residing with his parents at Suburb G in Sydney.

14. In October 2016 the police contacted the mother to collect the child from the paternal grandparents’ residence at Suburb G following a call from the paternal grandfather complaining of the father physically assaulting the child: Exh “C”. The paternal grandfather subsequently sought an apprehended violence order against the father that excluded the father from the Suburb G residence.

15. The mother subsequently refused to permit the child to spend time with the father.

16. On 23 January 2017 the father was refused bail in respect of various criminal offences. The father has been the subject of psychological intervention whilst in custody and reported observations of him whilst in custody are of inappropriate behaviour in relation to female staff and possible mental health issues including suicidal ideation, visual hallucinations, auditory hallucinations, panic symptoms and illicit drug use while in custody: Exh “E”.

17. In February 2017 the paternal grandmother informed the mother that the father was in custody at H Correctional Centre because of an unrelated incident. When the mother called the Police they confirmed the father was in custody and bail had been refused but were not at liberty to disclose the father’s alleged offences. The mother was again contacted by the paternal grandmother in mid-February to inform the mother that the father had been moved to D Correctional Centre due to an argument with another inmate and was due to be sentenced in May.

18. The father is also the subject of an apprehended violence order protecting a female, who was a prostitute, and various other third parties.

19. The father’s criminal history (Exh “B”) reveals three convictions for drink-driving, affray and breach of apprehended violence order. As at January 2017 there were outstanding charges including enter building with the intention to commit an indictable offence, use of a carriage service to menace harass or offend, stalk or intimidate with the intent to cause fear of physical harm, being armed with intent to commit an indictable offence, peep or pry, custody of an offensive implement in a public place, drive whilst disqualified, drink-driving, drive recklessly furiously or in a speed or manner dangerous to the public, common assault, enter prescribed premises without lawful excuse, assault with act of indecency (11 charges).

20. The mother continues to express fears for her safety and the safety of the child. She has concerns as to the father’s mental state.

21. It is the mother’s desire to relocate to Melbourne with the child. She is presently enrolled in a university degree course in a professional discipline in which she plans to practice in the future. The mother has family support in Melbourne.

The Single Expert

1. Regrettably, the Single Expert Report of Dr C was prepared in September 2016, prior to the father’s more recent behavioural aberrations. However, there are indications in the Report of the father’s recent behaviour. The Expert reports:

   (The father) has not had any serious episodes of anxiety, depression or psychosis, although there was a drink driving offence in 2013… I am not aware of any other ongoing issues of alcohol. There was a recreational use of marijuana and drug use. (The father) claimed he hadn’t used any drugs regularly for the last 3 years. However, he was using marijuana and speed occasionally. He did use both speed and marijuana about 6 months ago at the start of 2016. This would indicate that he is still quite adolescent and immature.

   (The father) also appeared to be quite dependent on his parents and overly reliant. He seems to be very focused on satisfying his own needs. It did not appear that drugs or alcohol had adversely affected his ability to work. He has reduced the amount of alcohol and marijuana. However, it is still a concern that in a family court dispute and as a parent with substantial care of the child that he  still is utilising marijuana and speed.

   From a personality perspective he seemed to have early stable attachment and seemed to do well in primary school and was a high achiever. As an adolescent he struggled. Although at a selective school he struggled to perform well and he’s continued to struggle with adolescent issues. He failed his clinical component in his work and he’s also behaved immaturely. I formed the view that although there was no personality disorder that his behaviour was quite immature. I wasn’t able to fit it into a clear personality style. There were features of dependency such as his overreliance on his parents and some narcissism such as the need to be admired at his work by (the mother) and using this as an explanation for why he was involved in a harassment incident at work which resulted in him losing his job. Despite these problems I don’t believe he’s an unacceptable risk to [the child]. I do believe he has substantial contribution to make to [the child].

2. The Single Expert was of the view that the child clearly has a primary attachment to his mother. He exhibited the understandable and normal behaviour that one would expect of a child on separation from their primary carer, anxiety and distress, but then gradually settled. The Single Expert formed the view that the child had a normal, healthy and secure relationship with the mother who was a “capable caring parent”.

3. In summary, the Single Expert opined as to the father:

   He has struggled with his identity development. He’s continued to behave in an immature way and was not committed to the relationship with (the mother) until the pregnancy and has continued to use drugs such as marijuana and speed on a recreational basis. He’s struggled to find a clear vocation”.

4. While the views of the Single Expert are still relevant, particularly as to the primary attachment of the child to the mother and the immature behaviour of the father, these views are based on information provided by the parties prior to the father’s recent criminal activities and should be considered in the light of the subsequently available information. 

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC then outlines the primary (s 60CC(2)) and additional (s 60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

3. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)];

   b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)];

4. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

5. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

Best Interests:

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski v Albright [2007] FamCA 520 Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. It is readily apparent from the discussion above that the child’s ongoing relationship with the mother as primary carer is important, significant and valuable to the child.

4. However, circumstances that have transpired since late 2016 are clearly evident of the father’s circumstances substantially deteriorating particularly as to his mental health and criminal conduct. He is presently the subject of numerous charges with the inference that he may well be sentenced to a significant period of imprisonment. In such a circumstance any relationship with the father at present is completely contraindicated and any relationship with the father in the future upon his release from custody having regard to the history above is problematic.

Section 60CC(2)(b) – need to protect

1. This factor is the primary consideration when determining the best interests of the child as it is to be given priority over considerations as to relationship.

2. The father’s conduct during the course of the parties’ relationship was reprehensible in itself. However, his more recent conduct in the community and whilst in custody clearly evidences a significant deterioration in his mental health and/or personality issues.

3. Until those issues are addressed by him with appropriate counselling and therapy upon his release from custody, any contact between himself and the child is fraught with unacceptable risk. This consideration is clearly indicative of there being an order that the child spend no time with the father by reason of the present evidence before the Court.

The additional considerations:

1. The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are as follows:

   a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)the nature of the relationship of the child with:

   (i)each of the child's parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long-term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child;

   ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)the capacity of:

   (i)each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)any family violence involving the child or a member of the child's family;

   k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

   l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   m)any other fact or circumstance that the court thinks is relevant.

2. A determination as to the child’s best interests is readily made by reason of the discussion relating to the primary considerations.

3. As to the relevant additional considerations there is no evidence as to the child’s views by reason of the child’s age and immaturity. However, by reason of the observations of the Single Expert, the child is clearly primarily attached to the mother and this relationship is beneficial for the child.

4. The nature of the child’s relationships with both parents and to some extent the maternal and paternal grandparents are referred to above. Whilst for a period the child spent time with the father those circumstances quickly deteriorated leading the mother, appropriately, to withdraw contact in late 2016. Her actions in so doing were subsequently justified by the father’s later conduct which resulted in a number of serious criminal charges and him being remanded in custody.

5. The mother has been appropriately engaged in making long-term decisions in relation to the child’s welfare. The father’s engagement with the child has been circumscribed as discussed above.

6. The mother has demonstrated to the Single Expert and, otherwise, her appropriate capacity to provide for the child’s needs. The father clearly has not.

7. The mother has, in the circumstances that she has faced by reason of the father’s conduct, demonstrated an appropriate capacity to meet the needs of the child, particularly protective needs in the circumstances of the father’s aberrant behaviour.  The evidence, as it is presently before the Court, is clearly indicative of the father having no such capacity.

8. There has been family violence as outlined above in circumstances where it has been completely appropriate for the child’s time with the father to be withdrawn by the mother. There has been an apprehended violence order made for the protection of the mother and child that has been extended and is still currently in effect.

An undefended hearing?

1. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

Parties' participation

(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

Note: The court may dispense with compliance with a rule (see rule 1.12).

(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

(3)…

1. In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the father’s involvement and leave uncertain the circumstances of the child.

2. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

3. Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

4. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.

5. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

6. In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:

   197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:

   If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)

   …

7. The Full Court then said:

   201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:

   Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.

   202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.

   …

   204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.

8. It is appropriate that orders be made to finalise these proceedings. The father’s circumstances into the future are most uncertain particularly as they relate to his criminality, freedom within the community and his mental health.

9. It is clearly in the best interests of the child for orders that provide for the mother to have sole parental responsibility and that the child live with her. Such orders will facilitate the mother and child moving to Melbourne where it is expected they will reside in safer and more supportive circumstances.

10. Orders will be made accordingly.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 September 2017.

Associate: 

Date:  1 September 2017