Thon & Saelim
[2021] FCCA 2132
•20 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Thon & Saelim [2021] FCCA 2132
File number: MLC 10983 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 August 2021 Catchwords: FAMILY LAW – final undefended hearing – parenting – applicant father not in attendance for many supervised visits with the child – the mother to have sole parental responsibility for major long-term decisions regarding education, health and religious and cultural upbringing Legislation: Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 65DAC Cases cited: An & Zhu (2006) FLC ¶93-257.
Hiron & Tourle [2021] FCCA 1270.
Lanceley & Lanceley (1994) FLC ¶92-491.
Number of paragraphs: 23 Date of hearing: 20 August 2021 The Applicant: No appearance The Respondent: Appeared in person Counsel for the Independent Children's Lawyer: Ms M Stavrakakis Solicitor for the Independent Children's Lawyer: Ebejer and Associates ORDERS
MLC 10983 of 2018 BETWEEN: MR THON
Applicant
AND: MS SAELIM
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged
2.The Mother, Ms Saelim ("the Mother"), have sole parental responsibility for the major long-term issues of education, health and religious and cultural upbringing of X born 2016 ("X") and, save in emergency, before making a decision about those matters the Mother, if possible:
(a)inform the Father, Mr Thon ("the Father"), of the major long-term decision she intends to make regarding X; and
(b)take into account any timely input the Father makes about that decision; then
(c)make the decision and inform the Father of her decision.
3.X live with the Mother
4.X spend time with the Father up to four times per year professionally supervised by a privately retained professional contact service centre of not less than two hours, that service be nominated by the Father and all costs associated with same be paid by the Father.
5.Upon the Father nominating the contact service, the parents do all acts and things to engage with that service and comply with all reasonable requests of the supervised contact service to facilitate the Father's time with X.
6.The Mother be permitted to obtain X's passport pursuant to section 11 of the Australian Passports Act 2005 without the Father's consent and this order stand as any necessary authority for her to obtain the passport.
7.Any order placing X on the airport watchlist be discharged.
8.The Australian Federal Police remove the name of X from the airport watchlist at all points of international arrival and departure in Australia.
9.The appointment of the Independent Children's Lawyer is discharged after providing the orders made this day and the settled ex tempore reasons to the Father.
AND THE COURT NOTES THAT:
A.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.
B.Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Court may vary or set aside a judgment or order made in the absence of a party.
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 under the pseudonym Thon & Saelim is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of an ex tempore decision. This matter comes before me for final hearing where I am to determine the parenting arrangements between the Father, Mr Thon ("the Father") and the Mother, Ms Saelim (“the Mother”) and their daughter, X born 2016, (“the child”).
The first issue I have to determine in working out what orders are in the best interests for the child, who is aged five and in grade Prep at school, is whether the matter should proceed in the absence of the Father. This hearing is what is known as an undefended application, I refer to my previous decision in the matter of Hiron & Tourle [2021] FCCA 1270 at [14] below:
[14]An undefended hearing is a difficult matter. It means that there is no assistance obtained from the other side. All important aspects of the matter must be proved on admissible evidence. Ordinarily in an undefended hearing it is expected and assumed that the other side that is not participating in the hearing will have had the opportunity to look at such evidence as has been provided to them. Then the court can more readily proceed on the basis of the non appearing party having been provided with all of the evidence and draw the inference that party has chosen not to participate in the proceedings or to make any application.
The Full Court of the Family Court in An & Zhu (2006) FLC ¶93-257 set out why Family Law Act 1975 (Cth) applications cannot lead to a ‘judgment by default’:
[66]The term undefended proceedings was also referred to in Lanceley and Lanceley (1994) FLC ¶92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
…Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
I am satisfied that the Father has notice of this hearing. I am satisfied of that because he was represented by a solicitor at a recent compliance check when it was confirmed that this matter would be proceeding at this listing. The matter was listed on 19 August 2021 for final hearing but due to the number of cases that I had to deal with yesterday I was unable to deal with it and rolled it over till today, being Friday, 20 August 2021.
The Father did attend for the Family Report which had been ordered, and he attended that interview on 21 June 2021. His solicitor, who was then retained, attended the compliance check on 30 July 2021. Subsequent to that compliance check, the Father’s solicitor gave notice of ceasing to act. The Father did not file any material in accordance with my trial directions. The Mother did, and filed an affidavit on 13 August 2021. The Mother told me, and I accept, that she had emailed that affidavit to the Father. When the matter was called on 19 August 2021 there was no appearance for the Father. I requested that the Independent Children’s Lawyer contact the Father by email and text message to alert him to the fact that the hearing would be proceeding today, 20 August 2021. The Independent Children’s Lawyer did that and the settled reasons will set out the text of the email that was sent. In addition to that, the Mother sent a text message and email to the Father, reminding him of the hearing.
The Family Report observes the following at paragraphs 51 to 55:
51.However, X needs to develop a relationship with Mr Thon as her father. In addition, she should develop a relationship with her wider paternal family, particularly her paternal grandmother and two half-siblings. She also needs to develop her identity as a child who has a Sudanese heritage. Children of X’s age can cope with having a biological father and a child-rearing father provided she is assisted by her mother to do so.
52. X is likely to be affected by her mother’s ambivalence and sometimes resentment toward Mr Thon. She is too young to be making her own independent decisions about whether she wants to see him. Consequently, she needs to be encouraged by her mother to view Mr Thon as a positive part of her identity
53.At present X is reluctant to spend time with her father because of these reasons and the gap in time that has occurred since she commenced school. Until Ms Saelim can support her leaving her care to go to her father at changeovers, X should be collected by her father at a neutral venue. School is an ideal neutral venue for Mr Thon to collect X and spend three hours with her.
54. Mr Thon should also begin with three hours on alternate weekends with X and build up the time to eight hours. There will need to be a neutral venue where he can collect X, if possible, to ensure there are no problems with X absorbing her mother’s concerns and negativity regarding her father.
55. Mr Thon needs to be authorised to collect X from school one afternoon a fortnight and for him to attend activities at the school where he can participate in her school life. This includes parent/teacher interviews. He also needs to have direct contact with X’s medical and any other professional services rather than rely solely on Ms Saelim for information.
The Mother told me today, and I accept, that she does not have a negative view of the Father and she has been assisted by the parenting orders program that she has participated in as to how to deal with the potential for parental conflict between the parties. I raise that at this point because the Father actually participated in the Family Report. When the matter was called on today, on 20 August 2021, there was no appearance from the Father. It may be that he has another commitment or something that is more pressing for him than attending this court case. The Mother has arranged her affairs over these two days so that she is available to deal with the matter at a time convenient to the Court, so I am satisfied that I have jurisdiction to proceed and that it is appropriate to proceed on the hearing without hearing further from the Father.
The history of this matter is unfortunate, but I will just say something about the circumstances of the parties. The Father is aged 32 and the Mother is aged 28. The Mother is in employment and the Father appears to have part-time employment. X is aged 5. The parties had an on and off relationship from when they were very young and lived together for a short period in 2016. That relationship ended shortly after X was born. In about December 2016 the Mother re-partnered with her current partner and in 2018 her child with her current partner was born.
The Father commenced proceedings in August 2018, filing an application in the Magistrates’ Court at B City. The Magistrates’ Court made orders on 9 August 2018. The Mother complains that the Father’s attendance to spend time with X pursuant to those orders was consistently inconsistent. The proceedings in this court show that orders were made on 1 October 2018, 29 January 2019, 25 February 2019, 2 May 2019, 25 September 2019, 5 December 2019, 14 February 2020, 25 June 2020, 20 July 2020, 10 September 2020, 9 October 2020, 28 June 2021 and the recent compliance check on 30 July 2021. That is, this court has had the matter before it on 13 occasions before the final hearing.
Orders were made on 2 May 2019 that the Father spend time and communicate with X every alternate Saturday from 9.30am until 12.30pm, at specified times, or as advised by the C Contact Centre. On 25 June 2020 orders were made to the effect that the parents do all acts and things and sign all documents necessary to participate in the reunification program as run through Catholic Care Parenting Orders Program to enable X and the Father to work on their relationship and for the Father to spend time each alternate Tuesday.
The changeover place for the Father’s time was to be at the child’s childcare centre. The Father did engage with the parenting orders program and, in fact, attended six group sessions and two face-to-face sessions. The Mother engaged with the parenting orders program and followed all necessary directions. The Father’s time with the child was never able to be successfully implemented. There were significant periods where the Father did not attend. The Mother complains, and I accept, that only on some of these occasions did the Father advise that he was not attending. On many occasions the Mother simply would not know whether the Father was going to attend for time or not. It is obvious how difficult that would make it for the Mother to prepare the child for time with the Father.
The Father did attend on a number of occasions where it was simply not possible by the combined efforts of the childcare educators, and the Father and the child, for the child to transition to the Father’s care. The Father attended on at least the following occasions when he was unable to effect a transfer of time from the child care worker or educator. Those times include: 21 April 2020; 21 July 2020; 4 August 2020; 18 August 2020; 1 September 2020; and, on probably two occasions in January 2021.
The Father had attended on or about 1 September 2020 and that visit was not successful. The Father next attended in or about January 2021 and did not attend thereafter. The Father did not give the Mother notice or advice that he would not be attending for the next visit after 1 September 2020, nor for the next visit after the time that he attended in January. On the one hand, it is readily understood how disheartening it would be for the Father to repeatedly attend for a contact changeover to find a distressed child and to be unable to effect the changeover of the child to his care. The Mother is not present on these occasions but she understands the child to be distressed. The Mother tells me, and I accept, that the situation back in 2019 was that the supervisors of the changeovers had cancelled visits because of the child’s distress.
On the one hand, the Father pausing the arrangements that were distressing the child in September 2020 and again in January 2021 may show some maturity and insight into the child’s circumstances. The difficulty with extending that concept too far is that he has not informed the Mother. It is also clear enough from the Family Report that the Father posits the responsibility for the failure to reunify his relationship with the child as the sole responsibility of the Mother and little responsibility on his part. The tragedy is that X is aged 5.
The Mother was born in Thailand and the Father was born in Ethiopia. The parents met at school in a regional Victorian city. It is unfortunate that at this point in the child’s life she simply does not know her Father.
The Independent Children’s Lawyer sought the following orders:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for X born 2016 (“X”).
3.X shall live with the Mother.
4.X shall spend time with her Father as follows up to four times per year professionally supervised by a professional contact service centre of not less than two hours, with that service to be nominated by the father and all costs associated with same to be paid by the father.
5.The mother is permitted to obtain X’s passport pursuant to section 11 of the Australian Passports Act 2005 without the father’s consent.
6.Any order placing X on the airport watchlist be discharged.
7.The Australian Federal Police remove the name of X from the airport watch list at all points of international arrival and departure in Australia.
The Mother supported the orders sought by the Independent Children’s Lawyer and agreed with them in each particular. After discussion with me, the Independent Children’s Lawyer counsel and the Mother agreed to some variations upon the orders as sought. That is, that the professional contact service contemplated by order number 4 would be a privately retained service, and an order to the effect that the parties would do all acts and things necessary to comply with the reasonable and lawful directions and requests of the privately retained professional contact service as nominated by the Father.
I also discussed with the Mother the issue of sole parental responsibility for major long-term issues. In terms of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer has urged me to find that because there is a reasonable basis to find that family violence has occurred (and I note that the Father admits to some family violence at paragraph 32 of the family report) that the presumption of the section does not apply. I find that is so. I find that it is not in X’s best interests for the parents to have shared parental responsibility. In reality and practice, the Mother actually has now the entire responsibility for all decisions relating to the child on a day-to-day basis. To a certain degree, parental responsibility is a theoretical matter at the moment. After discussion with the Mother, and she agreed with my suggestion that sole parental responsibility be directed to any matters that could be contemplated may arise.
The Mother contemplates that only the issues of the child’s education and health could arise; however, I posit that it is possible that some decision relating to a religious or a cultural upbringing may arise in the circumstances of the parties’ parents, at least, coming from different cultural backgrounds. The Mother agrees with the proposal that the Father would be notified, if possible, in advance, save an emergency, of any intention of her to make a decision relating to a long term issue. The reality is that major long term issues cover the following wide range of matters:
“major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The Mother told me, and I accept, that she was not aware of the breadth of those matters covered and she simply wanted to be able to look after the child on a day-to-day basis without having to get the consent to the Father. The orders that I propose means that if it is possible to contact the Father, and he provides input in an appropriate and timely manner that the Mother consider that, then make her decision, whatever it be, and then inform him of it. In other words, if he is able to be consulted about a major long term issue then the Mother would have the last say in determining that matter. It may be if he is consulted in any event that the Father would agree with what the Mother’s proposal was in the circumstances.
I do take into account all of the matters under division 7 of the Family Law Act 1975 (Cth), in particular the sections 60CA, 60CC through to section 65DAC, and I will set out section 65DAC:
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The breadth of parental responsibility and the obligation to consult that is compulsory under section 65DAC mean that it is self-evident in this case that it would simply be impractical, if not impossible, for the Mother to consult the Father about matters relating to the health and education of the child in a timely manner.
I find that the orders sought by the Independent Children’s Lawyer and the Mother are, subject to the minor changes discussed, in the best interests of the child. Those are my reasons, thank you.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 3 September 2021
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