TISDALE & ROGANDA

[2014] FamCA 557

FAMILY COURT OF AUSTRALIA

TISDALE & ROGANDA [2014] FamCA 557

FAMILY LAW – CHILDREN – Undefended Hearing – Where the Father has not actively participated in the proceedings and has historically not complied with parenting orders –Where there are allegations that the Father has perpetrated acts of family violence –Where the Mother and the Independent Children’s Lawyer agree on final orders to be made

Family Law Act 1975 (Cth)
Family Law Rules 2004

Allesch v Maunz (2000) 203 CLR 172

APPLICANT: Ms Tisdale

RESPONDENT: Mr Roganda

INDEPENDENT CHILDREN’S LAWYER: Ms Barbara Fox

FILE NUMBER: BRC 8015 of 2011

DATE DELIVERED: 11 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 11 July 2014

REPRESENTATION

FOR THE APPLICANT:	In person
FOR THE RESPONDENT:	No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Hodges

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

1. All previous parenting plans and parenting Orders be discharged.

1. The children, B born … 2003 and C born … 2005, live with the Mother.

1. The Mother have sole parental responsibility for the children's long term welfare care and development.

1. The children spend no physical time with the Father.

1. The Court requests that the Australian Federal Police remove the names of the  Mother, Ms Tisdale born in 1977, and the Father, Mr Roganda born in 1970, from the Family Law Watch List at all points of international arrivals and departures in Australia, and that all previous Orders with respect to this be discharged.

1. The Order for the appointment of the Independent Children's Lawyer be discharged.

1. Pursuant to s 62B and s 65DA(2) 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 parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8015 of 2011

Ms Tisdale

Applicant

And

Mr Roganda

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children, B, born in 2003, who is now 11 years of age, and C, born in 2005, who is currently 8 years of age.

2. The parties to this application are the children’s mother, Ms Tisdale, as applicant, whom I will refer to as the mother, and the respondent named on the application is Mr Roganda, whom I shall refer to as the father, and the Independent Children’s Lawyer appointed pursuant to s 68L of the Act to independently represent the children’s interests in these proceedings, whom I will refer to as the ICL.

3. Historically, final parenting and property orders were made by this Court on 14 December 2012.  Those orders were made in the absence of the father and by the consent of the mother and the ICL.  With respect to children’s matters, those orders provided, inter alia, for the mother to have sole parental responsibility for the children; for the children to live with the mother and spend time with the father each alternate weekend from after school Friday to before school on Monday; from after school Wednesday to before school Thursday each alternate week; and for half of the school holidays; as well as telephone communication each Monday and Thursday between 6.00 pm and 6.30 pm. 

4. Those orders also included provisions relating to consultation between the parents; the children’s travel and passports; non-denigration; and for both parents to complete a parenting orders program; and for the father to complete an anger management course.  The issues, both historically prior to those orders and in the course of these proceedings, centre upon allegations concerning the father’s alleged violence towards the mother and his alleged criminal association with a motorcycle gang.  Following an application by police, a protection order was issued against the father for the mother and the children in August 2011.

5. Upon application by the mother to vary the order, another protection order was issued against the father on 15 August 2013, naming the mother, the children, and the mother’s immediate family.  That order remains in force until 15 August 2015.

6. Following an incident which occurred at the mother’s place of work on 28 March 2013, the mother reinstituted these parenting proceedings by way of her initiating application filed in this Court on 10 April 2013. The father has filed no material in response to the mother’s application, nor indeed has he filed a Notice of Address for Service as required by the Family Law Rules 2004.

7. Pursuant to her case information document filed 10 January 2014, the mother sought orders, inter alia, including an order that the matter be heard on an undefended basis.  The mother now expresses her agreement with the orders that are proposed today on behalf of the ICL.  In circumstances where the case is to proceed to be heard and determined on an undefended basis it is necessary that some reference be made to the procedural history of the matter.

8. As already noted, parenting proceedings came before the court for final hearing on 21 November 2012 and these were heard on an undefended basis by O’Reilly J who reserved judgment.  Her Honour subsequently delivered reasons for judgment and made final orders with respect to both parenting and property matters on 14 December 2012.  O’Reilly J’s reasons for judgment detail the father’s participation, or more accurately described the lack thereof, in the previous proceedings and it is unnecessary for me to reproduce those details here, suffice to note that it is evident from her Honour’s reasons that the father already by then had a long history of failing to attend Court events and acting in contravention or breach of court orders, and that conduct appears to have continued in the course of these current proceedings.

9. On 21 May 2013 the matter came before Principal Registrar Filippello for a duty hearing.  On that occasion, interim orders were made in the father’s absence, suspending the final orders of 14 December 2012 as to the children’s time and communication with the father.  Further orders were made; that the father file his response to the mother’s initiating application by 1 July 2013; and that the mother be at liberty to have her application proceed on an undefended basis should the father fail to comply with those orders; and that the mother have leave to serve any documentation upon the father by email at a stated address.

10. On 18 July 2013 Principal Registrar Filippello made further orders in the absence of the father; including that the father be restrained and an injunction issue, restraining him from coming within 100 metres of the mother, her place of employment, the children, and the ICL; and the matter be set down for a compliance hearing on 29 July 2013.  When the matter came before Registrar Coutts for a compliance hearing the father did not appear and the matter was listed for further directions on 12 August 2013. 

11. A notation appears on those orders that the registrar requested the ICL provide a copy of the orders to the father.  When the matter came before Registrar Coutts on 12 August 2013 for further directions, the father then appeared in person.  Registrar Coutts made orders, inter alia; that the matter be listed for further compliance mention on 23 January 2014; and that the father file his Notice of Address for Service by 26 August 2013; his response to the mother’s initiating application to be filed by 9 September 2013; and for the parents and the children to participate in a family report; Registrar Coutts also made orders for each party to file other trial material.

12. The father subsequently failed to attend the compliance hearing on 23 January 2014.  Registrar Coutts made further orders directing the father to comply with the trial directions by 3 March 2014, and ordered the father to file a Notice of Address for Service within 14 days.  On that occasion it was also ordered that in the event the father failed to attend the compliance hearing on 6 March 2014, and failed to comply with trial directions, a compliant party would be at liberty to seek to have the matter listed as an undefended hearing. 

13. Notwithstanding the aforementioned orders, the father has not filed a Notice of Address for Service or any other trial material.  He did not attend the subsequent compliance hearing before Registrar Coutts on 6 March 2014.  On that occasion it was ordered that the matter proceed to callover on 17 March 2014, with the mother to have liberty to seek final orders on an undefended basis, and that the mother and the ICL file further material evidencing service upon the father by 12 March 2014.  A notation appears on those orders stating that the father has failed to attend compliance hearings on 23 January 2014 and 6 March 2014, and also failed to file trial materials as directed by the Court on each of 12 August 2013 and 23 January 2014.

14. In accordance with the orders of Registrar Coutts, on 12 March 2014, the ICL filed an affidavit setting out the father’s participation or lack of participation in these proceedings and the steps taken to notify him of the hearing to occur on 17 March 2014.  In particular, at paragraph 10 of her affidavit, the ICL deposes that pursuant to the orders of 6 March 2014, she was to advise the father of the listing before the Court on 17 March 2014.  The ICL subsequently caused an email to be sent to the father on 7 March 2014 notifying him of the hearing and enclosing copies of the orders that were made on 24 January 2014 and 6 March 2014.  On that same day the father replied to the ICL’s email.  A copy of that email and the father’s response is Annexure “A” to the ICL’s affidavit. 

15. On 17 March 2014 the matter came before me at the callover for the listing of matters for trial.  In the absence of any appearance by the father or a representative on his behalf on that occasion, I made orders setting the matter down for final hearing at 11.00 am today, 11 July 2014.  A notation appears on those orders that in the event the father does not participate in the hearing on 11 July 2014, the matter may be heard in his absence on an undefended basis.  The mother’s then solicitors subsequently emailed a copy of those orders and a copy of the draft orders sought by the mother to the father’s email address. 

16. An affidavit of service was filed on 21 March 2014 from one Ms Q, a legal secretary in the employ of R Lawyers, stating that the father was served the aforementioned documents by way of email that same day.  A copy of Ms Q’s email to the father is attached to that affidavit and reads as follows:

    Dear [Mr Roganda],

    We refer to this matter and attach Order of Justice Kent made 17 March 2014.  Please note this matter is listed for a final hearing at 11:00 am on 11 July 2014 at the Family Court Brisbane.  Your attendance is required. 

    Also attached is a copy of the Final Orders our client will be seeking.

    (Original emphasis) 

17. Following service of those documents, the father sent an email in reply to Ms Q on 21 March 2014, a copy of which is annexed to her affidavit filed 24 March 2014.  The father’s responses to each of Ms Q’s email referred to and the email from the ICL referred to on 7 March are, to say the least, highly inappropriate.  It is unnecessary for present purposes to repeat their contents.  They are relevant only to note the father’s responses are evidence of the fact that the father received copies of the relevant orders and has had notification of proceedings, including today’s proceedings.

18. The rules of procedural fairness and natural justice need to be considered before determining a matter on an undefended basis.  Within the rule of procedural fairness lies the indispensable requirement within the court system of justice that a party potentially affected by an order had an opportunity to be heard.  As highlighted by the High Court in Allesch v Maunz (2000) 203 CLR 172, where a person’s interests may be adversely affected by a court’s decision that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

19. However, as emphasised by Kirby J, it is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence of submissions on behalf of that party before making orders.  The principle does not require the decision-maker to actually hear from the party.  As Kirby J expressed it, at paragraph 38 in Allesch v Maunz:

    Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require.

20. As earlier recorded, the father has filed no material in these proceedings, nor has he filed a Notice of Address for Service as he was ordered to do on two separate occasions, and as he is required to do pursuant to Rule 8 of the Family Law Rules 2004. Since the mother recommenced these proceedings on 10 April 2013 the father has only attended Court on one occasion, being the directions hearing before Registrar Coutts on 12 August 2013 earlier referred to. The father attended in an interview with the family report writer, Ms S, on 18 December 2013 in accordance with the orders of Registrar Coutts dated 12 August 2013.

21. The father has, I find, been served with a copy of the orders dated 17 March 2014, which provided that the final hearing of the matter is set down for today and a copy of the orders that were being sought by the mother, and, indeed, by the ICL.  Thus, it is clear that the father is aware of the proceedings today and has elected not to appear or to send a representative on his behalf in circumstances where, as Mr Hodges of counsel for the ICL speculates, it may in fact be that the father is incarcerated. 

22. I am satisfied that the father has had the opportunity to be heard, and I consider that it is in order to proceed to hear and determine these proceedings on an undefended basis.

23. Part VII of the Act provides the statutory framework in which the Court exercises its power to make parenting orders.

24. Section 60B of the Act sets out the objects of Part VII are to ensure that the best interests of children are met, and details how those objectives are achieved, and the principles which underlie those objects. In circumstances where orders are sought for there to be no physical time the children should spend with the father, I note that the objects are expressed to ensure that the best interests of children are met by:

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

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

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

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

25. Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act identifies the primary considerations and the additional considerations the Court must consider in determining what is in a child’s best interests. The primary considerations set out in s 60CC(2) reflect the objects earlier referred to. Because these proceedings were commenced after 7 June 2012 the amendments to Part VII apply and the Court must place greater weight on subsection (2)(b), that is, the need to protect children, then on (2)(a), that is, ensuring the benefit of both children being involved in their lives in the event that there is any inconsistency in applying the subsections.

26. Section 65D of the Act provides the source of the Court’s power to make a parenting order as defined. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2), and, further, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

27. An order is sought in this case by the ICL and the mother that she have sole parental responsibility for reasons which follow.  I am satisfied that the presumption is rebutted in this case and that it is in the best interests of the children for an order to be made for their mother to have sole parental responsibility.  In the face of the mother’s initiating application filed 10 April 2013, as against the father not having filed material in the present proceedings, the only parenting orders to which specific attention, it seems to me, needs to be directed having regard to the best interests consideration is the question of the mother having sole parental responsibility and there being no specific order for time or communication with the father.

28. I note here that the orders sought by the ICL and the mother are entirely consistent with the opinion of the family report writer, Ms S, and I accept the opinions Ms S has expressed. 

29. These parents commenced a relationship in 1995 and separation occurred in 2010, with a period of separation in 2008 for about 12 months.  I have earlier recorded the dates of birth of the children of the relationship.  It seems that following separation the children lived predominantly with the mother, but spent regular time with the father on weekends and school holidays.

30. The father withheld the children on two occasions, firstly, in June 2011 for a period of two to three months, which led to the mother instituting the initial proceedings on 12 September 2011, and, again, the father withheld the children in January 2012 for a period of one month, with the children being returned to the mother on both occasions only following upon her having to make application to the Court seeking urgent recovery orders.  As is clear, these parenting proceedings have a long history dating back to September 2011.  As earlier noted, on 14 December 2012, O’Reilly J made final orders providing for the mother to have sole parental responsibility and for the children to live with the mother and spend time with the father.

31. Whilst the parties’ accounts to Ms S about the implementation and effectiveness of those orders are inconsistent one with the other, it is to be noted that both parties agreed that the children had not spent time with the father since March 2013 following an incident of what is clearly an episode of family violence, perpetrated by the father, which led to the mother filing her application to reinstitute these proceedings on 10 April 2013. 

32. On 28 March 2013 an incident occurred at the mother’s workplace, which the children were exposed to and involved in, and it is clear that it has left its mark upon them from the evidence of Ms S at least. In the lead up to that incident, the parties had been in disagreement about the parenting arrangements: in particular, the father’s lack of compliance with the final parenting orders that were then extant.  The mother deposes that the father sent her a text message on 25 March 2013, shortly before the Easter school holidays were to begin, wherein he stated that he would be collecting the children after school for the first half of the school holiday period, which contradicted the final parenting orders, which provided for the children to spend the second half of the Easter school holiday period with the father.  Thus it was that the mother collected the children from school at lunch time on 28 March 2013 and took them to her office.

1. The mother deposes that at approximately 2.30 pm on 28 March 2013 the father arrived at her office where he verbally abused and physically assaulted her before leaving the office and damaging an office wall on his way out.  That incident occurred in the presence of the mother’s work colleagues.  Annexure “TNT14” to the mother’s affidavit filed 10 April 2013 are copies of witness statements taken by police from the mother and her work colleagues regarding this incident.  More significantly, the incident was witnessed by the children as it occurred in their presence.

2. As earlier noted, on 21 May 2013, Principal Registrar Filippello made interim orders which, inter alia, suspended the children’s time and communication with the father.  Further, on 18 July 2013, Principal Registrar Filippello made orders restraining the father from coming within 100 metres of the mother, her place of employment, the children, and the ICL.  On 12 August 2013 Registrar Coutts made various directions or orders, including an order for the parties to participate in a family report.  In December 2013 the parents and the children attended interviews with Ms S for the purpose of that family report being prepared, which was subsequently released on 13 January 2014.

3. In addition to the March 2013 incident earlier referred to, another incident occurred on the mother’s birthday in 2013 when B arrived home to find that the father or one of the father’s associates presumably had left the children’s clothes and other belongings on the mother’s driveway.  The mother deposes that B recognised these clothes and items as being those he wore while at his father’s house.  At the time of the incident B had cycled home with two friends while the mother was collecting C from school.  The mother deposes that B went to his friend’s house and had his friend’s mother take him into the police station, because he was scared that the father was still at his house.

4. The mother subsequently received a telephone call from the police requesting her to collect her son.  The mother deposes that the police then followed her and B home and photographed the scene.  However, she did not lodge a breach of the protection order or make a witness statement, because of her inability to prove that the father had attended her house.  The orders that the mother proposes be made in the best interests of the children include an order that she have sole parental responsibility, as I have already mentioned.  I am satisfied on the mother’s evidence that the presumption I have earlier referred to does not apply given the circumstances of the father engaging in family violence.

5. I note, in particular, the opinions of Ms S regarding the children’s fear of the father, particularly in the case of B.  For example, at paragraph 71 of her report, Ms S opines:

   The children’s relationship with their father has been compromised and negatively impacted particularly as a result of their witnessing and being exposed to the incident in March 2013.  This appears to have been a significant and emotionally traumatic incident for them as not only did they feel their safety and well-being was threatened but also that of their mother.  Not only were they frightened by their father’s behaviour, but felt let down by him as he had previously promised them that he would not engage in any further conflict with their mother.  I believe that this would have been significant for the children as they have previously enjoyed a trusting and positive relationship with him, however now question his reliability and trustworthiness.

6. I am also satisfied on the mother’s evidence as to the impracticability of equal shared parental responsibility in light of the poor relationship between the father and the mother, and the father’s apparently flagrant disregard for Court orders, and the father’s repeated withholding of the children.  Mr Hodges of Counsel for the ICL tendered before me as Exhibit 1 a range of subpoenaed material including the father’s criminal history.  It is noted in terms of his capacity for non-compliance that that criminal history includes breaches of bail conditions and failures to meet undertakings in terms of bail reporting conditions.  It would thus seem that it is not only in the context of these proceedings that the father disregards orders or requirements of authorities.

7. I am satisfied and accept the mother’s evidence concerning the March 2013 incident and Ms S’s opinions in relation to that incident.  It follows that the presumption earlier referred to is rebutted in the best interests of the children.  In my judgment the best interests of these children would be served by there being an order for the mother to have sole parental responsibility for them as is sought by the ICL and the mother.

8. It seems to me it is unnecessary for the Court to otherwise specifically refer to each and every of the statutory considerations I have earlier referred to, but I make it clear that each has been considered in the context of the orders now sought by the mother and the ICL.

9. The evidence of the mother is uncontested in relation to the risk to which the children are subject while in the presence of the father.  In the absence of evidence to the contrary, I draw the inference that the father has the capacity to continue to display violent behaviour, the result of which is that time between the children and the father places the children at some risk of harm even if they are not the target.  I find that there is a need to protect the children from this risk.  Most significantly is the evidence I have referred to where the children were exposed to a violent incident perpetrated by the father whilst he was at the mother’s place of work in March 2013. 

10. It is clear on the evidence that this was traumatising to the children, and, in particular, to B.  The children were only ten and eight years of age respectively at that time, and for them to witness their father verbally and physically abuse their mother in the way described only needs to be stated for its likely effects to be obvious.  On the evidence before me the mother has clearly shown a positive and mature attitude to the children and to the responsibilities of parenting them. 

11. On my findings and on the evidence referred to relating to the father’s behaviour and its impact upon the children, it seems to me that unless and until the father demonstrates that he has successfully addressed the issues which provoke the conduct referred to, it is legitimate that there be an order that the children spend no physical time with the father, by which I mean legitimate in the best interests, of the children. 

12. If in future the father acknowledges his capacity for angry or violent behaviour and takes active, positive steps to address those issues with the assistance of expert medical assistance and demonstrates his willingness to comply with any recommended counselling and treatment, it may be that the father is able to demonstrate a sufficient change in circumstances to justify an application being made for a court exercising jurisdiction under Part VII of the Act to revisit the final parenting orders now made. However, unless and until he does so, I am satisfied that the proposed orders meet the children’s best interests.

13. For these reasons, I am satisfied that the orders proposed by the mother and the ICL meet the best interests of the children within the meaning of Part VII of the Act and I, therefore, make orders in those terms.

14. At the outset of the submissions, in terms of the draft orders proposed by the ICL it was clarified that the intended effect of paragraph 7 of those orders was to permit the mother’s name to be removed from the All Ports Watch List held by the Federal Police, but retain the father’s name on that list.  Both the ICL and the mother ultimately agreed that orders should be made in terms that the names of both parents be removed from the All Ports Watch List.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 11 July 2014.

Associate: 

Date:  11 July 2014