Sutcliff & Rower
[2022] FedCFamC2F 437
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sutcliff & Rower [2022] FedCFamC2F 437
File number: ADC 3565 of 2016 Judgment of: JUDGE O'SHANNESSY Date of judgment: 23 March 2022 Catchwords: FAMILY LAW – matter listed for final hearing in the National Rolling List – proceeded undefended – interim orders made – children in the care of the mother – the mother has not participated in proceedings – recovery order made for the children to be recovered from Queensland and returned to the father in South Australia – addendum child impact report ordered – children to attend an interview with the Court Child Expert. Legislation: Evidence Act 1995 (Cth), s 144.
Family Law Act 1975 (Cth), ss 60CA, 60CC, 65DAA, 69ZW.
Cases cited: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969.
Ellson & Hannewell [2021] FCCA 1779.
Division: Division 2 Family Law Number of paragraphs: 81 Date of hearing: 23 March 2022 Place: Melbourne The Applicant: The Applicant appeared in person The Respondent: No appearance by or on behalf of the Respondent Counsel for the Independent Children's Lawyer: Mr G Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 3565 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SUTCLIFF
Applicant
AND: MS ROWER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 MARCH 2022
THE COURT ORDERS THAT:
1.The children, X born 2013 and the child Y born 2016 ('the children') live with the Father, Mr Sutcliff.
2.The children spend time and communicate with the Mother, Ms Rower as follows:
(a)By skype and/or Facebook Messenger with the Mother to call the Father on a Monday and Thursday between 5:30pm and 6:00pm South Australia time;
(i)The Father shall ensure that the said children are available to receive the call;
(ii)In the event that the said children are unavailable for any unforeseen circumstances, then the Father will facilitate a call to the Mother on the following evening at the same time;
(iii)The Father shall ensure that the said children have privacy during the conversations once they are old enough to conduct those conversations on their own.
3.Pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born 2013 and the child Y born 2016 and to deliver the children to the Applicant Father MR SUTCLIFF at such place as the Applicant Father and the person effecting such recovery agree to be appropriate; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.
4.The Father be and is restrained from any physical discipline of the children.
5.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X 2013 and the child Y born 2016 (the children) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children's Service (the Court Child Expert, Ms B) for the purposes of the preparation of a Child Impact Addendum Report, with such report to be released by 27 April 2022.
6.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
7.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Court Child Expert may advise.
8.Not later than 4.00 pm on 30 March 2022 the parents must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
9.Pursuant to order 5 herein, the Court Child Expert shall provide a written report to the Court by 27 April 2022 and the report shall update the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the children;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children
10.The Court Child Expert shall be at liberty to inspect any material filed by the parties.
11.The Father make the children available to the Court Child Expert for the purpose of updating the Child Impact Report.
12.The Father is directed to serve these orders by any known email and by Facebook Messenger on the Mother and by registered post to the Mother care of the maternal grandfather and do all acts and things that he can to bring these orders to the attention of the Mother (but not publish or circulate these orders on any publically available social media).
13.All extant applications be adjourned to 4 May 2022 at 10:00am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.
14.The Father do all acts and things to cause and ensure that the children are enrolled in C School, and if places are not available then in such other appropriate school in South Australia and the Father be and is authorised to do any thing to give effect to this order and to obtain any information concerning the children's education and/or attendance at any school, including any school in the State of Queensland and to provide a copy of these order to any school or education authority.
15.The Father be and is authorised to obtain any necessary medical or psychological care of or for the children, including such care necessary to assist them in the transition to his care.
16.The Independent Children's Lawyer serve these orders by email or post and make them available to the Department of Children, Youth Justice and Multicultural Affairs (QLD).
17.The Father file and serve a short affidavit as to the circumstances of the children on or before 14 days prior to the adjourned date.
18.The Mother file and serve any affidavit she seeks to rely on no later than 14 days prior to the adjourned date.
19.The Father file an affidavit of service no later than 14 days prior to the adjourned hearing.
20.The Mother make available any necessary belonging and clothing of the children to accompany them to the Father's care.
21.As soon as practical the Mother provide her contact mobile phone number and current email address to the Court Child Expert, the Court, the Independent Children's Lawyer and the Father.
22.The Father provide the Mother with his mobile phone number, address and email address as soon as practical.
23.The Mother is hereby restrained from removing the children from the Father's care.
24.Liberty is served to the parties to apply on short written notice.
AND THE COURT NOTES THAT:
A.On 14 June 2019 it was ordered that the parents have equal shared parental responsibility in respect of the children and such order remain in force.
B.The Father has advised the Court he can travel by air to Queensland to assist the implementation of the recovery order if requested.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 Sutcliff & Rower has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter, heard this day, concerns the proposal of Mr Sutcliff (‘the Father’) that the children, X born 2013, and Y born 2016 (collectively known as ‘the children’), should live with him. The children have lived all their lives with their mother, Ms Rower (‘the Mother’). Their Mother has not appeared or participated in this hearing today or these proceedings for some time. The proceedings have been particularly problematic and troublesome for the parents and the Court.
The proceedings were issued on 19 September 2016, shortly after the Mother most of her children, and the children X and Y, from South Australia to Queensland, without notice to the Father, with whom she had been living for some years.
The background is as follows. The Father is aged 44 and he is currently employed in the service industry. The Mother is aged 40 years of age and appears to be fully engaged in home duties. I am assisted by the appointment of an Independent Children's Lawyer, who was appointed some years ago.
The Mother has a number of other children. In addition, the Mother now has a baby with a partner subsequent to the Father. The Father has three other children who live with him. The children, plus X and Y, lived together from 2013 until 2016.
When the parents separated, when the Mother left South Australia, X was only two years old and Y was only eight months. The Father issued proceeding soon thereafter. The proceedings have been troubled ever since and can effectively be divided into two parts. The proceedings went along from court appearance to court appearance, where the Court went out of its way to try and encourage the Mother to participate in the proceedings, so that the Court was assisted with what her side of the story was. I will not recite now all of the orders but I have counted some 38 orders since 2016.
MATERIAL RELIED UPON
I relied on the recently filed affidavits, family reports, documents tendered into evidence and oral evidence.
I took oral evidence from the Father this day and I accept that evidence.
THE PROCEEDINGS
The Court first dealt with the issue of a warrant to have the Mother's attendance on 6 September 2017. A warrant was not issued, but it was raised that one would be considered. The Mother was, for a time and over many court orders, represented by solicitors. Those solicitors withdrew from the proceedings on 19 July 2017. On 18 January 2019, Judge Cole issued a warrant for the arrest of the Mother, but with that warrant to lie in the Registry until 1 March 2019. On 13 March 2019, that warrant was then actually issued. The Mother was arrested and came before the Court on 8 May 2019. At that time, she was released and she was permitted to make a personal undertaking that she would attend court, through her solicitor or in person, in South Australia, unless otherwise excused. On the next occasion, 13 June 2019, the Mother did appear.
What I will call the first stage of the proceedings ended when the Mother appeared by telephone, I infer, from Queensland, before Judge Cole on 13 and 14 June 2019. The matter had been listed and was proceeding as a final hearing. The proceedings were interrupted because the parents, together with the Independent Children's Lawyer, reached agreement about what should happen for the time being and in interim orders.
At that time, orders were made by consent, including that the parents had equal shared parental responsibility for X and Y and that the children were to spend time and communicate with the Father electronically each Monday and Thursday from 5.30pm until 6:00pm and the Father was permitted to send cards, letters and presents to the home of the Mother's father. It was further ordered that in the event the Father was able to travel to City D, then the Mother would facilitate the children spending substantial and significant time with him, noting that in the first instance, time may be supervised and that parties had agreed that the maternal grandfather could supervise that first visit. It was also agreed that in the event the Mother travelled to South Australia, she would provide the father with 28 days notice and thereafter facilitate the Father spending substantial and significant time with the children. That is the end of the first stage of the proceedings.
THE FAMILY REPORTS
Along the way, to get to that stage, the Court had arranged for two family reports or, really, the one family report, but done in two chunks. The first family report in 2017 was unable to be properly completed because the Mother did not participate, nor make any of the children in her sphere of influence available to the report writer. The Father attended and made his children available. The report writer observed:
58.A change of residency to the father, in my opinion, could be considered if it is determined [X] and [Y] are at an unacceptable risk of harm in the care of their mother, either by way of her deliberately harming them or because she has demonstrated poor parenting of them and their needs are going unmet. At this time, there is no independent information available to me that indicates this may be the case.
59.A change of residency to the father could also be considered if it is determined the mother is deliberately blocking the children from having a relationship with their father, and there is evidence to suggest she will continue to do this. However, the state of the children's relationship with their father will need to be considered.
60.It is also possible there may be good reason [X] and [Y] should not be re-introduced to their father and spend time with him in the future, if for example they are at risk of being harmed by their father. [Mr Sutcliff] believes this is not the case, but further assessment of this is required. If [X] and [Y] continue to spend no time with their father, they are unlikely to experience any immediate adverse effects as a result, but they may in the future if he was to be permanently absent from their lives.
…
That report was able to be updated on 4 May 2018, when interviews were conducted at Brisbane on 3 May 2018. At that time, the Mother made herself available and there was a collective interview of her children F and E. The report writer observed:
18.[Ms Rower] confirmed child protection services have been involved with her prior to her relationship with the father. She could not recall the nature of their concerns, but led me to believe she has had involvement with them on at least three occasions, one of which they remained involved for a period of about a month. She recalled the Department wanted her to address her issues with depression.
…
66.When I asked about their experiences of living with [Mr Sutcliff], [F] said it was "bad," and reiterated what her mother had told me earlier about [Mr Sutcliff] swinging her around by the hair when he thought she had swung the cat around. She denied she had done that.
67.[E] remembered [Mr Sutcliff] grabbing one of her sisters by the hair and throwing them into the room, and putting sticky tape on [X]'s hands, legs and mouth because she had "played up."
68.[E] recalled her mother and [Mr Sutcliff] ''fighting a lot." She said she could hear them swear, although claimed it was [Mr Sutcliff] who she heard the most. She also said [Mr Sutcliff] would tell [Y] to shut up.
…
The 2018 report concludes as follows:
89.Indeed, it is likely to be to the children's detriment that they do not experience an ongoing relationship with their father and with their siblings in his home. Most obviously, [X] and [Y] will not experience the love of both their parents, and this may adversely impact upon their sense of self-worth. Regardless of how responsive [Ms Rower] may be to the children's needs, it cannot compensate for the love and participation of both parents in the children's upbringing, assuming they are of a good enough standard.
…
93.If the Court determines the mother poses an unacceptable risk to the children, it is my recommendation [X] and [Y] live with their father and spend time with their mother as often as each parent can commit to.
94.It is my further recommendation that [X] and [Y] communicate with their mother via Skype as often as is practicable.
…
(Emphasis added)
Substantial and significant time is defined in the Family Law Act 1975 (Cth) (‘the Act’) as follows:
Section 65DAA
Court to consider child spending time or substantial and significant time with each parent in certain circumstances
…
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
…
ATTEMPT AT TIME IN QUEENSLAND
Following the 14 June 2019 consent orders, the Father, on notice to the Mother, travelled to City D with his daughter G, for the purpose of spending the time envisaged by the 14 June orders. That is, substantial and significant time. I also note that the Father, on his evidence, acquiesced in the supervisor terminating his time with the children or his Queensland visit after about, he says, one and a half hours on that day.
When the Father attended, despite being on notice from the Father, the children were not made available and the Father attended the children’s school, as he had provided notice that he would, to collect the children. The Mother removed the children from school that day and the Father says that she was in something of a panic, and she said this was on the basis that they had a medical appointment, and agreed that the following day they could have the time contemplated by the orders.
On that day, he attended the park nominated by the Mother. The maternal grandfather, the agreed supervisor, did not attend, but the Mother's then partner, Mr H, and the Mother's child, E, attended as supervisors. The Father acquiesced in that position and on this occasion he says that there were big cuddles between him and X and Y and that X had said, "I will see you tomorrow," and that he regarded the children's interaction such that they were very happy about it.
At that time, the Father was able to have the electronic communication with the children by and large in compliance with the orders. He asserts that the children had told him that they were looking forward to seeing him. Notwithstanding the Father had arranged to be there for a week, at very considerable expense, the Mother did not make the children available again for the Father, at all, notwithstanding that he had travelled from South Australia for that time. I find, for the purpose of this interim hearing only, that the Mother was aware that the Father had gone to that trouble and expense to travel to City D from South Australia, but, notwithstanding that, did not make the children available. The Father returned to South Australia very disappointed, but the electronic communication continued until late in 2021, when the Mother ceased to make the children available for the electronic communication at all.
I should also add that, for the 2020 year, the Christmas presents posted to the children by the Father were returned, "Not known at that address."
WHETHER TO PROCEED UNDEFENDED
The first question I must determine is whether I should proceed in this hearing on an undefended basis and/or in the absence of the Mother. The Father has gone to some considerable trouble to serve the Mother and the Mother's father with court material. There is, in my mind, some issue as to just what the Mother's email address is. The Mother had provided two email addresses to the Court, which I have identified in exhibit C5. I have marked C5 as, "Not to be disclosed without further order."
The practice evolved (and I am not entirely clear how but it was clearly at the Mother's request) that the Mother's actual address, email and telephone number were not disclosed to the Father. However, exhibit C5 is an extract of the Court's records, which provides a mobile phone number, which was provided, according to these records, in May of 2017 and does not have an “end date”. That is, it still is, according to these records, a live number. That number is not known to the Father or the Independent Children’s Lawyer (‘ICL’). I had my associate call that number this morning, at approximately 10:00am Melbourne time or 9:00am Queensland time, and the message went through to a message bank.
The Mother had provided to the Father, at one point, an email address and the Father has served any documents in the proceedings on that email address. That email address, which I will refer to as the "Hotmail" address, is a different email address to those in the Court's records. It is clear that the Mother has not kept the Court or the Father updated in regard to her email address.
Exhibit C1 is the email from my Associate to the Mother on 15 March 2022, at the two email addresses known to the Court, informing her of the Microsoft Teams link for the hearing this day. I am informed by my Associate, and accept, that those two emails (being for the purposes of this interim hearing described as the "Gmail" address and the "second Hotmail address" address) did not have any bounce back or return. Pursuant to section 144 of the Evidence Act1995 (Cth), I do not require evidence that, with established mainstream "servers" like Gmail or Hotmail, the absence of a return or a bounce back or absence of a no delivery or “undeliverable” reply means that that email has been received into the machine or computer of the recipient. I refer to the case of Ellsom & Hannewell [2021] FCCA 1779 where this issue arose:
[34]… I received evidence today from an expert who is the Infrastructure Solutions Team Manager with the Federal Court entities' IT department. That expert told me that an email being sent to a valid email address of a domain such as “Gmail” and that email not “bouncing back” can be taken as a reliable indication that the email has in fact been received.
This day, learning of the further email address that the Father had been provided with, my Associate forwarded the email, containing the Microsoft Teams link, to the Mother again at about 11.27 am which has been marked as exhibit C3. The significance of that is, as contained in C4, that email address immediately bounced back with the subject "undeliverable."
The Father told me that he had been communicating, up until late in 2021, with the children via a Facebook Messenger account that he had been provided by the Mother. This was the way that he was able to have the electronic communication referred to earlier in these reasons. Knowing of that electronic communication, at my request this morning he cut and pasted the Microsoft Teams link into the Microsoft Messenger account and sent it to the Mother. In addition, at my request, he sent a further note this morning as follows:
Judge O'Shannessy is about to start the Court case (listed 10 am Melbourne time today) about where [X] and [Y] will live and has asked me to ask you to come into the virtual hearing, by clicking on the Microsoft Teams link I just sent you or by telephone to +61 … and conference ID …# … If you do not attend the hearing, the hearing will proceed without hearing your side of the story.
No response or communication from the Mother was received to any of those communications.
On many occasions when the matter was listed before the Court, there was no appearance by the Mother. The second wave of proceedings included an order on 5 February 2021, where Judge Cole had issued a warrant for the arrest of the Mother. From the Court orders, it is apparent that she was again arrested and brought before the Court and on 3 March 2021, Judge Cole ordered that the Mother be released from custody forthwith and the warrant for her arrest issued on 5 February 2021 was discharged. Hence, it is abundantly clear that the Court has gone to enormous trouble to have the mother present her side of the story to the Court and to the Father.
As late as August 2021, there being no appearance on behalf of the Mother, it was noted that the “Father advises that Skype/telephone time is ongoing each Monday.” On that occasion, the Mother was fined one penalty unit for breach of the bond entered into on 1 March 2021.
On 14 January 2022, Judge Cole made an order that permitted the parties to inspect, and the ICL to photocopy, documents produced by the Department of Youth Justice and Multicultural Affairs of Queensland, pursuant to section 69ZW.
In the circumstances of the Chief Judge's concern and mission to have the Court deal with long outstanding matters, the matter was listed for a mention before the Chief Judge on 27 January 2022. The orders that day are as follows:
THE COURT ORDERS THAT:
1. The father file his Contravention Application within 7 days of these orders.
2.The matter be referred to the National Contravention List for listing as soon as practicable.
3.The matter be listed for final hearing on 23 and 24 March 2022 in the National Rolling List (with an estimated hearing time of 2 days).
Trial Directions
4. No later than 21 days prior to the trial date, the Applicant file and serve:
a.any Amended Initiating Application setting out with particularity the precise final orders sought;
b. an updated single consolidated trial affidavit;
c. other witness affidavits upon which they intend to rely; and
d. in property proceedings, an updated Financial Statement.
5. No later than 14 days prior to the trial date, the Respondent file and serve:
a.any Amended Response setting out with particularity the precise final orders sought;
b. an updated single consolidated trial affidavit;
c. other witness affidavits upon which they intend to rely; and
d. in property proceedings, an updated Financial Statement.
6. No later than 7 days prior to the trial date:
a.the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits; and
b. the Independent Children's Lawyer file and serve any affidavits relied upon.
7.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
a. a list of the material relied upon;
b.a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
c.in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought;
d.in a property case, a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
1. the assets and liabilities available for division;
2. the value of items where the value is in dispute;
3.contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
4.relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
5.any further factors relevant to determining a 'just and equitable' division of property.
8.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
9.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
10.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
Child Impact Report
11.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and (‘the children’) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
12.Part 1 of the event (parent interviews) will occur by video, using Microsoft Teams, on 3 March 2022, with:
(a) the Applicant to attend at 9.00am
(b) the Respondent to attend at 10.30am
13.Part 2 of the event will occur by video using Microsoft Teams on 8 March 2022 at 9.00am.
14.Each party will do all things necessary to ensure the child(ren) attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
15.The parties shall continue to attend at such times, dates and places as the Court Child Expert may advise.
16.Not later than 4.00 pm 7 days following these orders the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
17.Pursuant to order 1 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a) any agreement reached between the parties;
(b) identification of key issues requiring resolution;
(c)any views expressed by the child(ren). and any matters (such as the child(ren)’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d) the impact of the issues/dispute before the Court on the child(ren);
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child(ren).
18.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
19.The Court Child Expert shall be at liberty to inspect any material filed by the parties.
AND THE COURT NOTES THAT:
(A)In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a) the filing of documents; or
(b) any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
(B)To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate to the trial judge or by another appropriate court officer, shortly prior to the final hearing date.
(C)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(D)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
(E)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(F)If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.
Hence, it is crystal clear that the matter was listed for final hearing on this day and tomorrow.
The Father was ordered to file material within 21 days and he filed material within 26 days and I have, this day, given him permission or leave to rely on that material, notwithstanding it was five days late. His explanation was, and I accept, for the purpose of this hearing, that he mixed up the dates.
The orders of 27 January 2022 also included an order that a Child Impact Report be undertaken, with interviews on 3 March 2022 and 8 March 2022. I do not have a record of that order being emailed to the Mother, but, in any event, the Father, on 3 March 2022, emailed to her, and posted to the Mother's father, what he describes as another copy of the orders made by Alstergren CJ on 27 January 2022. He emailed those documents to the email address known to him and posted a copy of the documents to the maternal grandfather. By examination of the registered post records annexed to the Father's affidavit of service, filed on 21 March 2022, we know that the documents were attempted to be delivered on 11 March 2022. They were returned to the post office and then they were actually delivered or collected on 17 March 2022.
The Father emailed the documents together with the following note, on 7 March 2022, to the Mother (page 6 of 19 of the affidavit of service):
Date: 07/03/2022
RE: [SUTCLIFF/ROWER] ADC-3565 OF 2016
Email only: ... TO [MS ROWER]
RE: [SUTCLIFF/ROWER] ADC – 3565 OF2016
CHILDREN: [X] – DOB … and [Y] DOB …
Please find attached by way of service, an Affidavit from Myself Filed 07/03/2022, Affidavit of [Ms J] filed 07/03/2022, Affidavit of [Ms K] filed 03/03/2022, Affidavit of [Ms L] filed 03/03/2022 and initiating application amended filed 03/03/2022. Also another copy of Orders By Chief Justice Alstergren Made on the 27/01/2022 That were posted to your Father’s home on the 7th Feb 2022 at [M Street, Suburb N]. I am assuming you have not received these from your Father.
Regards [Mr Sutcliff]…
Conclusion: proceed undefended
Hence, I am satisfied that the Mother has notice of this hearing and has notice that this is a final hearing concerning the living arrangements for X and Y.
I am satisfied that the Mother has had abundant opportunity to participate in this hearing, either by telephone or either by electronic or video communication, via Microsoft Teams, from Queensland.
I note that the Father gave evidence before me that there was no bounce back or undeliverable email to him of any of the documents emailed to the Mother.
Hence, it is appropriate that final hearing proceed, and proceed on an undefended basis, based upon the evidence that I have. I note that I have been assisted by Mr Hemsley of counsel on behalf of the ICL.
THE 2022 CHILD IMPACT REPORT
The Child Impact Report was undertaken without the assistance of the Mother or the participation of the children. That report was released on 10 March 2022. My Associate emailed it, to the two emails on the court file, on 15 March 2022. I take note of the contents of that report including the following:
PARENTAL UNDERSTANDINGS OF THE CHILD/REN’S NEEDS
12.Information from Queensland child protection services would seem to suggest that not only do a number of the mother’s children have an intellectual disability, with NDIS reportedly funding a range of support services for them, but it would seem that the mother also may have an intellectual disability, with reference made by child protection services in 2020 that she was waiting for approval from NDIS for services for herself. This may account for the mother’s repeated failure to participate in these proceedings, and her inability to comprehend the seriousness of not complying with Orders about the children.
13.However, the mother’s longstanding failure to support the father having a relationship with [X] and [Y], would seem to indicate that she will never support [X] or [Y] having a relationship with their father, whether court ordered or not.
14.It is noted that the father has remained committed throughout this lengthy court process, and he impressed as fiercely determined that [X] and [Y] will know him as their father, and know their three stepsiblings who live with him, namely 17-year old [O], 16- year old [P] and 13-year old [G].
KEY CONSIDERATIONS AND OPPORTUNITIES FOR RESOLUTION
15.This report is incomplete due to the mother’s failure to provide contact details that would have allowed her, and the children to participate in this assessment, albeit on a remote basis.
16.It seems timely to refer to the Family Report in this matter by Family Consultant [Ms Q], dated 4 May 2018 which concluded: “…it is likely to be to the children’s detriment that they do not experience an ongoing relationship with their father and with their siblings in his home. Most obviously, [X] and [Y] will not experience the love of both their parents, and that this may adversely affect their sense of self-worth. Regardless of how responsive [the mother] may be to the children’s needs, it cannot compensate for the love and participation of both parents in the children’s upbringing, assuming they are of good enough standard.” (Ibid, Family Report, 4/5/18, paragraph 89)
17.It seems very clear that while [X] and [Y] remain living with their mother in Queensland, they will not have any type of relationship with their father and three stepsiblings in Adelaide, which would seem to be greatly to their detriment.
(Emphasis added)
FATHER’S APPLICATION
The Father pressed by his amended application, that as final orders, the children X and Y live with him, and that the Mother be restrained from removing or attempting to remove the children from the Father's care, and the Father set out further detailed orders where he also sought sole parental responsibility.
The Father was cross-examined by counsel for the ICL, and I asked him a number of questions as well. The Father is employed and works in service and works shift work. His son O has now left school. P is in year 11, and G is in year 8 at C School, which is a prep to year 12 school.
The Father had not yet made inquiries to confirm that there would be a place for the children to attend that school. He had assumed that there would be a place. The counsel for the ICL tells me that, in the circumstances of the siblings of X and Y attending that school, it is likely that a place would be made available, and that if it was not, there would be a reference to another school where there would be a place, and I accept that position.
The Father also told me that he has already raised with his employer that he hopes to have the care of the two children, and that that will necessitate some change in his work arrangements. He anticipates that he will be able to change his work hours so that he works from 9:00am until 2:00pm on a Monday to Friday basis, so that he is available to drop the children at their new school and collect them afterwards. In addition, he has the assistance of his Mother available as backup support.
I asked what he would do if his employer was not amenable to changing his work arrangements. He told me that he would cease that employment and find alternate employment so that he is available out of school hours to care for the children. I accept that evidence for the purpose of this interim hearing.
I note the allegations of abuse that were made in the 2018 report, and Mr Sutcliff expressly denies such allegations.
The applicable law
I set out section 60CA and 60CC(1)-(3):
Section 60CA
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
How the court determines what is in the child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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.
Parental Responsibility
In this case, there is an extant order for equal shared parental responsibility, which means I must contemplate equal time, if it is practical. In this case, with the Mother in Queensland, or likely to be in Queensland, and the Father in South Australia, equal time and/or substantial and significant time is simply not practical.
Primary Considerations
In all of the circumstances, and particularly given the consent orders of 14 June 2019, I find that it is in the best interests of the children to have a meaningful relationship with both of the parents. I acknowledge the need to protect them from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.
I conclude for the purpose of this hearing that if the children remain living with the Mother, they will not be able to have any meaningful relationship with the Father. I am concerned at the need to protect the children from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.
The Father deposes and I accept that he has no criminal history, and the only thing approaching a criminal history is a driving under the influence.
Notwithstanding the allegations made in the 2018 report, I am satisfied that there is no unacceptable risk of X or Y being exposed to physical harm or excessive physical or any physical discipline in the Father's care.
I am concerned at the abrupt, dramatic and draconian interruption to their relationship with the siblings and their mother, with whom they have lived all their lives, if I make the orders as sought by the Father.
I take into account and I give greater weight to the issue of protecting the children from physical or psychological harm. That psychological harm would include the distress to them of being removed from their mother's care with a recovery order.
However, I conclude on all of the evidence that without a recovery order, these children will not come into the Father's care at all.
Additional considerations
I take into account section 60CC(3). I do not have any evidence of the views of the children, save that in December 2019 the children were looking forward to the prospect of spending time with their Father.
I have no solid information as to the nature of the children's relationship with the Mother or their siblings, being the Mother's other children. However, I infer that, in the circumstances of the children living all their lives with them, that they would have a close and good relationship with their Mother and their step-siblings.
Mr R, the ICL, filed an affidavit on 11 February 2022 relating to the Child Protection information. The Father was provided with photographs of the Mother's household, and those photographs are attached to his affidavit of 2 February 2022. Mr R’s affidavit annexed from pages from the Queensland Child Protection file and included the following:
Went to see family on the 6/07/21. When there the cleaners were there. The family has cleaners come twice a week Tuesday and Thursday. On other days [Ms Rower] and the children have support worker there. In the last 6 months [Ms Rower] has had 2 skip bins at the home and thrown out a lot of rubbish. Planning a home visit for next week on one of the days the cleaner is not there to see the state of the home. Will have a chat with [Ms Rower] around the concerns raised and that she needs to do something in regards to the household cleanliness.
[Ms Rower] and the children have been engaging with health services and started their 715 heath checks, [T] is now up to date with her vaccinations.
In regards to [Ms Rower]'s engagement with [U Service] sometimes she will return calls, most times worker will just show up at the house, and [Ms Rower] is happy to engage.
As per our phone conversation this morning, regarding new concerns dated 08/07/2021 advising of family's Living Conditions and Rubbish throughout the household, please be advised that I will be visiting the family to discuss further and advise of the outcomes.
Good morning [Ms S], my apologies as I have been out of the office since Wednesday.
[Ms Rower] was referred to myself (Family Therapist - FT) on 03/03/21 by [Ms V] for counselling.
My contact with [Ms Rower] to date is as follows:
03/03/2021 - 24/05/21
Three unsuccessful attempts at contacting [Ms Rower] made by FT. Referred back to [Ms V] for follow up.
[Ms V] advised FT, after consulting with [Ms Rower], that she did in fact wish to engage with FT.
FT made further attempts at contact - and an appointment eventually scheduled with [Ms Rower] for 25/05/2021.
25/05/2021
Home visit made , accompanied by [Ms W].
Introductions were made and a discussion on the counselling process was held - what [Ms Rower] might gain from sessions and what she felt might be beneficial.
FT agreed to contact [Ms Rower] the first week of June.
02/06/2021
FT made contact with [Ms Rower] – [Ms Rower] requested an appointment the following week, 10/06/21.
09/06/2021
FT sent appointment reminder sms to [Ms Rower]
10/06/2021
[Ms Rower] advised via sms that she wished to reschedule appointment to 17/06/2021.
16/06/2021
FT sent appointment reminder sms to [Ms Rower]
17/06/2021
[Ms Rower] advised via telephone that she wished to reschedule appointment as she was feeling overwhelmed.
23/06/2021
Unsuccessful phone contact attempt made by FT
28/06/2021
SMS exchange between FT and [Ms Rower] – [Ms Rower] was offered an appointment but did not respond.
06/07/2021
FT made a phone call made to [Ms Rower] who agreed to an appointment after the school holidays - 12/07/2021.
12/07/2021
[Ms Rower] advised FT by telephone that she did not wish to proceed with todays appointment as she was not in the right mood. Appointment rescheduled for 15/07/2021.
The Queensland Child Protection subpoenaed documents relied by the Father included the following, what appears to be, interim assessment:
There is a significant CP history for this family with a pattern of neglect issues inclusive of an unhygienic household. The most recent CPN concerns also included that the parents administer [medication] to the children, indicating that this is an ongoing issue. The family have disengaged from all support services that they were working with at the end of the I&A. The support worker who has been assisting the family cannot continue for much longer, indicating that the family will have no supports at all. This information indicates that the children are at an unacceptable risk of harm due to the living conditions being hazardous to the children's health and safety. [Ms Rower] and [Mr Z] are not parents willing and able as they continue to demonstrate no insight into the risks associated with the state of the house and do not assist in improving it. Therefore, further investigation is warranted.
The involvement appears to have ceased in mid-2021. The records show as follow:
No actual harm or risk of harm of a significant nature has been identified at this time. At this point of time, the information provided does not indicate that [the children] have experienced harm that is considered significant or detrimental in nature. Whilst acknowledging the notifiers concerns the information does not suggest that [the children] are without a parent willing and able to meet her on going care and protection needs.
As such it is my assessment at this time the family have enough support and the concerns will be recorded as a child Concern Report, as further departmental intervention is not warranted at this time.
Despite the references to unhygienic circumstances in the Child Protection material, in the circumstances of the number of children living in the Mother's household, notwithstanding the photographs, I am not prepared on this interim hearing to make a finding that the home is unhygienic. However, it was on the occasion of the photos more than a little untidy, and in fact, significantly disordered and chaotic. I accept that the Father has done all he can to put the best evidence that is available to him of the state of the Mother's household.
I take into account the principle of Blatch v Archer (1774) 98 ER 969 at 970 as cited in Odgers S, Uniform Evidence Law (16th ed, Thompson Reuters, 2021) at [EA 55.180]:
That all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.
The Mother has the capacity to put evidence before the Court as to the state of her household and has not done so.
Further change of school
I take into account that the Father has for many years gone to a lot of trouble to attempt to participate in decisions relating to the children. He gave evidence and I accept that upon making inquiries at the children's then known school, when the Mother ceased making the children available for electronic communication with him in 2021, he was told that the children had moved schools again, and he was not informed of that move, and the school principal told him that the school was not at liberty to provide him with the information of where the children had gone to.
The significant matter for me is section 60CC(3)(d), and that is the likely effect of any changes in the children's circumstances, including the likely effect of any separation from the Mother and the siblings. I must balance what will be a dramatic and likely traumatic change in circumstances for the children, particularly as that will necessitate the children being collected by the Australian Federal Police on a recovery order. That is likely to be traumatic to the children, notwithstanding the skill and care of the police officers tasked with carrying out such a draconian order.
Balancing that circumstance with the long-term benefit of having a relationship with their Father and, hopefully, with their Mother, I find that the short-term trauma to the children will be outweighed by the benefit of having time with their siblings in South Australia and with the Father.
There is a real practical difficulty and expense of the children moving between the two households. I find for the purpose of this hearing that the Father has the capacity to provide for the needs, including the emotional and intellectual needs, and including coping with the inevitable trauma and upset that the children will suffer. The children are very young.
I also note that the Mother identifies as Aboriginal and Torres Strait Islander, and the Father understands that it is the Mother's father who, though born in Australia, has some hereditary link to Country AA, and that the Mother has of recent times identified as Aboriginal and Torres Strait Islander. I have very little information about the consequences of that cultural matter, and in the circumstances of this hearing, cannot place any significant weight on it.
One of the very significant matters I must take account of is the attitude to the children and to the responsibilities of parenthood demonstrated by each of the child's parents. On the information that I have, the Mother's lack of care of, or determination to thwart, a relationship between the children and the Father demonstrates a very poor attitude to the responsibilities of parenthood.
A fundamental and significant aspect of the responsibility of parenthood is the manner in which and the degree to which each parent promotes an appropriate relationship between the children and the other parent.
I am satisfied for the purposes of this interim hearing, to the extent that he can, that the Father will promote the children's relationship with the Mother, and in those circumstances I propose to make an order that there be time and communication between the Mother and the children when the children are in the Father's care, as the reverse of paragraph 4(a) of the orders of 14 June 2019.
There is no family violence order known to the Court or the father involving the children. The last family violence proceedings - and there have been more than one - on the information that I have ended in the City D Magistrates Court on 5 March 2018, when the Mother's application for a family violence order against the father was dismissed for want of prosecution.
I am unable to find that either of the parents has wreaked family violence upon the other during their relationship. In the circumstances of one in Queensland and the other in South Australia, there is a very low prospect of physical family violence being an issue. However, I do not dismiss entirely the allegations previously made.
I take into account then, whether it is preferable to make a final order or an interim order. As discussed with counsel for the ICL and the Father, in the circumstances of the Mother's failure to participate in the proceedings and the incomplete child impact report, I find that it is not appropriate to make a final order that the children X and Y live with the Father. It may be I am in due course, but I am unpersuaded at this point in time that I should.
I also take into account under section 60CC(3)(m) (in addition to taking this circumstance into account as to 60CC(3)(i), the attitude to the responsibilities of parenthood) the circumstance that, on the evidence that I have, notwithstanding the orders that were made by consent on 14 June 2019, that the Mother has in recent times ceased to facilitate the electronic time between the Father and the children, and moved the children to another school and not informed the Father of either the move or the school to which they have gone.
I also take into account that the Mother has steadfastly neglected or refused to participate in these proceedings and provide information about the children's welfare.
I also take into account, but to small degree, the chaos and untidiness apparent in her house. It may be that in fact at times that it is not only chaotic, but also unhygienic, but I do not make that finding at this point in time.
CONCLUSION
In all those circumstances, I find that it is in the best interests of X and Y to live with their Father, in the short-term and until further order, in South Australia.
I will order that the Child Court Expert who prepared the Child Impact Report update that report, and that the Father make the children available for further interview and observation as directed by the Court child expert.
I will direct the Father to serve these orders, again, by email and by post to maternal grandfather, and to do all acts and things in any way he can to bring these orders to the attention of the Mother. It is likely that the first notice that the Mother receives of these orders will be the police attending for the execution of the recovery order.
The Father assures me that he will liaise with the Federal Police as to the execution of that order, and that he is able to travel at short notice to Queensland to facilitate taking the children into his care and returning to South Australia with them. He also tells me and assures me that he would be able to fund the return of the children to Queensland, were I to so order, on the return date.
All extant applications will be adjourned for further interim hearing on a date that I will fix in approximately six weeks’ time, after consultation with my Associate.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 7 April 2022