Thanos & Salsbury

[2020] FCCA 3353

FEDERAL CIRCUIT COURT OF AUSTRALIA

Thanos & Salsbury [2020] FCCA 3353

File number:

MLC 1246 of 2018

Judgment of:

HER HONOUR JUDGE C. E. KIRTON QC

Date of judgment:

3 December 2020

Catchwords:

 FAMILY LAW –  Parenting proceedings – where the mother seeks leave to proceed on an undefended basis – where it is the father’s initiating application for parenting orders – where the father has not complied with orders – where the father has failed to participate in the proceeding in a meaningful way – leave to the mother to proceed undefended - final orders made for the Child to live with the mother  

Legislation:

Family Law Act 1975 (Cth) ss 62G and 102NA

Federal Circuit Court Rules 2001 (Cth) rr 13.03A, 13.03B and 13.03C

Number of paragraphs:

14

Date of last submissions:

3 December 2020

Date of hearing:

3 December 2020

Place:

Melbourne

Solicitor for the Applicant:

The Applicant appeared in person for parts of the hearing

Solicitor for the Respondent:

Ms Dosanjh

Solicitor for the Independent Children's Lawyer:

Ms Webb

ORDERS

MLC 1246 of 2018

BETWEEN:

MR THANOS

Applicant

AND:

MS SALSBURY

Respondent

ORDER MADE BY:	HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:	3 DECEMBER 2020

THE COURT ORDERS THAT:

1.Pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules) the Initiating Application filed by the Applicant on 7 February 2018 is dismissed.

2.The Respondent Mother (Mother) be and is hereby granted leave pursuant to r.13.03C(1)(e) of the Rules to proceed with her Amended Response filed on 20 November 2020 on an undefended basis.

AND THE COURT ORDERS FURTHER THAT:

3.There be final parenting orders, by Order of the Court and by consent of the Mother and Independent Children’s Lawyer, in terms of the Minute of Orders, dated 3 December 2020 (Minute) and further:

(a)The Minute be placed upon the Court file and marked Exhibit “A”.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached to these Orders and these particulars are included in these Orders.

EXHIBIT “A”

MINUTE OF ORDERS

BY CONSENT OF THE RESPONDENT MOTHER AND INDEPENDENT CHILDREN’S LAWYER, THE COURT ORDERS ON A FINAL BASIS, THAT:

1.The Respondent Mother (Mother) have sole parental responsibility of the child, X, born in 2010 (X); and the Mother send an email to the Applicant Father (Father) if there are any decisions made in relation to the following:

(b)A change of school with the details of the school; and

(c)Any important medical decisions which have been made including the identity and contact details of the medical practitioner.

4.X live with the Mother.

5.X spend time and communicate with the Father as agreed between the Mother and the Father in writing.

6.The Mother and the Father keep each other informed of their current telephone number and email address and notify each other within 24 hours of any change in telephone number or email address and that the parties shall be respectful of each other during such communications.

7.The Mother and Father are restrained from the following:

(a)Denigrating the other party or other party’s family in the presence or hearing of X;

(b)Discussing parenting disputes and/or issues with or in the presence of X;

(c)Passing messages through X;

(d)Unreasonably questioning X about happenings in the other party’s household; and

(e)Involving X in any form of dispute between the parties or otherwise.

8.The Father be permitted to send X a present and/or a card at Christmas and on her birthday.

9.If X wishes to send her Father a gift, letter, or a drawing the Mother facilitate this as best as she is able.

10.The Father be permitted to obtain copies of X’s school photos and school reports at his expense.

11.The appointment of the Independent Children’s Lawyer be discharged.

AND THE COURT NOTES THAT:

A.If the Father is to make an application for time with X in the future, his supporting affidavit material should include:

(i)A report from a treating psychologist or psychiatrist;

(ii)Evidence of how he has addressed his addiction to drugs including but not limited to completing a three month hair follicle test; and

(iii)Evidence of how he has addressed his history of family violence.

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

EX TEMPORE REASONS FOR JUDGMENT

Revised from transcript

HER HONOUR JUDGE C. E. KIRTON QC:

1. This proceeding commenced by way of an Initiating Application filed by the Applicant Father (Father) on 7 February 2018. In that Initiating Application the Father sought final orders that the child, X, born in 2010 (Child), live with the Father, that the parents have joint parental responsibility, and such further or other orders as the Court considered appropriate.

2. The Father also filed an Affidavit and a Notice of Risk on 7 February 2018. At the time of commencing the proceedings, the Father was represented by Clark Family Lawyers. The Respondent Mother (Mother) filed a Response on 14 March 2018, and in that Response she sought final orders that the parties have joint parental responsibility, that the Child live with the Mother, that the Father’s time be particularised at a later date, and such further or other orders as the Court considered appropriate.

3. On 14 March 2018 the Mother also filed a Notice of Risk which made serious allegations of family violence perpetrated by the Father. On 20 March 2018 Judge Williams (as Her Honour then was), made Orders appointing an Independent Children’s Lawyer (ICL), and on 11 May 2018, a Notice of Address for Service of the ICL was filed.

4. On 20 June 2018 Judge Williams, made orders by consent that the Child live with the Mother and that the Child’s time with the Father be supervised. That time was to be supervised by Ms B, who was then the Father’s partner, and by Ms C, a daughter of the Father.

5. It was also ordered in Order 5 of the Consent Orders, that the Father and Mother undertake random drug and alcohol urine screens within 24 hours of receiving a request from the ICL, and the results of such screens were to be forwarded to the ICL and the lawyer for the other party as soon as practicable. It was ordered, in Order 8 of the Orders made on 20 June 2018, that the Father enrol, attend and complete a Caring Dads program facilitated by the E Counsellors. It was ordered in Order 9 that the Father and Mother enrol, attend and complete the Parenting Orders Program at D Counsellors.

6. On 10 December 2018 the Father’s lawyers filed a Notice of Withdrawal as Lawyer. Then on 12 December 2018 the matter came before the Court, again before Judge Williams, and on that occasion there was no appearance by the Father, although the ICL and the Mother were represented. The matter was then adjourned, and the matter then came before the Court on 9 April 2019 before myself.

7. On that occasion, the Father appeared in person and the final trial directions were made, the matter was listed for final hearing, and an order was made in Order 2 for a family report. Ancillary orders were made in Order 3 through to Order 11 in relation to the provision of the family report. Prior to the Orders of 9 April 2019, the Mother had filed an Amended Response and an Affidavit in support.

8. On 12 February 2020 this matter came before Chief Judge Alstergren, in the Callover List. On that occasion the Father appeared in person, and it was ordered in Order 2 that the parties attend, with their legal practitioners, a case conference with Registrar Weidmann and a family counsellor, as directed by Child Dispute Services.

9. On 20 February 2020 a case conference was conducted with Registrar Weidmann. The Father appeared in person, but no agreement was reached. The matter then came before the Chief Judge again on 20 February of this year, where it was ordered that the hearing of this matter was to continue before me, but that the parties were to attend a family dispute resolution service, to be organised by the ICL after the release of the family report.

10. The family report was released on 7 October 2020 and the Mother subsequently filed a Second Amended Response and an Affidavit. During the course of this proceeding the Father has had the benefit, regularly, of the duty lawyer. He has also had the potential of applying for an order pursuant to s.102NA of the Family Law Act 1975 (Cth) (Act). During this proceeding, the Father has not complied with the trial directions which were made on 9 April 2019, specifically Order 13(a) that he file and serve a trial affidavit no later than 21 days prior to the trial; Order 14 that an outline of case document be filed; most particularly, Order 2 of the Orders made on 9 April 2019 that he attend upon a family consultant for the preparation of a family report pursuant to s.62G of the Act; and the ancillary Orders 4, 5 and 7.

11. The Father has failed to participate in a family dispute resolution service conference as ordered after the release of the family report. The Father has failed to comply with the additional trial directions which were emailed to the Father by my Associates on 20 November 2020; more particularly filing an electronic outline of the case, joint chronology, electronic court book, documents for witnesses, or a minute of proposed orders. The Father has also failed to comply with court orders made by consent relating to drug screens, which I have adverted to previously.

12. The ICL has provided to the Court evidence of 16 requests that have been sent to the Father and the Mother between Monday, 2 July 2018, and Wednesday, 29 July 2020, requesting both parties undertake supervised urine and alcohol screens within 24 hours of the request. In submissions today, the solicitor for the ICL has advised that the Mother complied with such requests, and that the Father did not comply with any of those requests.

13. The Father failed also to participate in a psychiatric assessment, as he had been ordered to do. He has also failed to engage in the psychosocial education programs, and he has failed to submit an application to the children’s contact service, which he was required to do, and spend supervised time with the Child.

14. The Father has had no time or communication with the Child since approximately October 2018. In these circumstances, in my view, it is appropriate that in this proceeding the Mother be granted leave to proceed on an undefended basis. Therefore, I find that the Father is in default of r.13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules) by failing to comply with orders of the Court, and r.13.03A(1)(e) of the Rules by failing to prosecute the Initiating Application with due diligence.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC .

Associate:

Dated:       9 December 2020