Vader & Dantes (No 3)

Case [2023] FedCFamC1F 461

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Vader & Dantes (No 3) [2023] FedCFamC1F 461

File number(s): SYC 2265 of 2014
Judgment of: CURRAN J
Date of judgment: 19 July 2023
Catchwords:

FAMILY LAW– PARENTING – final hearing – where father files notice of discontinuance at final hearing – best interests – final consent orders made in 2016 – proceedings commenced by mother in 2019 – where mother seeks orders for child to spend no time with father – where mother seeks orders for restraints against father – where mother seeks an order for father to be restrained on filing further applications without leave of the court – whether father should have limited communication with child – presumption of equal shared parental responsibility rebutted – mother to have sole parental responsibility – where single expert recommends no time with father –– unacceptable risk in father’s care that cannot be ameliorated – orders for no time and no communication.

FAMILY LAW – COSTS – where mother seeks orders for costs against the father– where indemnity costs are sought against the father – where there was no compliance with rule 12.13(4) – where fixed costs ordered on an indemnity basis – where a percentage of costs sought by the mother ordered
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61B, 64B, 65DAA, 68B, 68C, 102NA

Passport Act 2005 (Cth) s 11

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.13, 12.27, 12.28
Cases cited:

Albert v Plowman [2022] FedCFamC1F 243

AMS v AIF (1999) 199 CLR 160

B & B (1993) Fam LR 353

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248

Fierro& Fierro (No 2) [2022] FedCFamC1F 344

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Gabaldon & Gabaldon [2015] FamCAFC 59

Gaber & Akhtar (No 2) [2021] FamCA 147

Hawkins & Roe (2012) 47 Fam LR 526

Higginbotham & Robinson (1991) FLC 92-209

I & I (No 2) (1995) FLC 92-625

Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23

Isles & Nelissen [2022] FedCFamC1A 97

Legal Aid ACT & Westwell (2021) 62 Fam LR 546

M & M (1988) 166 CLR 69

Madin & Palis (Costs) [2016] FamCAFC 25

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark [2009] 41 Fam LR 483

Munday v Bowman (1997) FLC 92-784

Quickley & Pelissier [2016] FamCAFC 124

R & C [1993] FamCA 62

Ragatta Developments Pty Ltd v Westpac Banking Corporation (Davies J, Fed C of A, 5 March 1993, unreported)

Rice & Asplund (1979) FLC 90-725

SCVG v KLD [2017] FamCAFC 95

Senfl & Blee [2017] FamCA 901

Stoian v Fiening (Costs) [2014] FamCA 944

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (French J, Fed C of A, 3 May 1991, unreported)

Wrensted & Eades (2016) FLC 93-697

Yanez & Yanez [2021] FamCA 148
Division: Division…

Continue reading Vader & Dantes (No 3)

Sign in free to access the full text

Details
AGLC
Vader & Dantes (No 3) [2023] FedCFamC1F 461
Case
[2023] FedCFamC1F 461
Decision Date

CaseChat Overview and Summary

In the case of Vader & Dantes, the Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the best interests of the child, Y, born in 2013. The proceedings, which began with final consent orders in 2016, were recommenced by the mother in 2019. The court was faced with several critical issues, including whether Y should have any contact with her father, whether restraining orders should be imposed against the father, and the allocation of costs between the parties. The court also needed to determine whether the father should be restricted from filing further applications without leave.

The court held that the father's mental health issues, which led to periods of hospitalisation, created an unacceptable risk of harm to Y. Despite the father's love for Y and the benefits of a relationship with him, the court concluded that these benefits were outweighed by the need to protect Y from direct and indirect psychological harm. The court found that the father's care posed an unacceptable risk that could not be mitigated, leading to the decision that Y should not have any contact with him. Consequently, the court granted sole parental responsibility to the mother, prohibited the father from communicating with Y, and imposed a range of restraining orders against the father to protect both Y and the mother.

In terms of costs, the court ordered the father to pay the mother's legal costs of $323,720.15 and the costs of the Independent Children’s Lawyer in the sum of $16,137. Additionally, the court restrained the father from initiating further proceedings without leave of the court. The court also made orders regarding the release of relevant documents and reports to various parties involved in Y’s care and education.

Orders

Orders of the court

SYC 2265 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VADER

Applicant

AND:

MR DANTES

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

19 JULY 2023

THE COURT ORDERS THAT:

1. The Orders dated 8 December 2016 be discharged.

2. The mother have sole parental responsibility for the child, Y born 2013.

3. Y live with the mother.

4. The father be and hereby is restrained from:

(a) Coming into contact, approaching or communicating in any way with Y including face to face, through voice, typed word, internet or other media or from attempting to do so;

(b) Intimidating or harassing Y;

(c) Contacting or communicating with Y indirectly including via a family member, friend or representative of the father;

(d) Approaching, attending or contacting Y’s school and/or vacation care programme and any extra-curricular, co-curricular and sporting or other activities which she attends and her before and after school care whether, at the time, Y is present or not ;

(e) Approaching, attending, contacting and/or communicating in any way with Y’s medical practitioner, psychotherapist/psychologist or any other health practitioner or allied health care worker attended by Y.

5. The father shall be restrained from directly contacting the mother other than via her solicitors and shall not approach or attend at the mother’s home or approach the mother or the child while they are in a public place, and shall not harass and/or intimidate the mother, Y or the mother’s family and, when applicable, the mother’s partner and his family.

6. The father shall be restrained from:

(a) Contacting the mother or any of her relatives and when applicable, the mother’s partner and his family;

(b) Intimidating or harassing the mother or her relatives and when applicable, the mother’s partner and his family;

(c) Communicating with the mother;

(d) Approaching the home or workplace of the mother;

(e) Communicating with Y;

(f) Approaching or contacting Mr H and his family including Ms J, Ms K and Mr L;

(g) Approaching the homes of Mr H and his family including Ms J, Ms K and Mr L;

(h) Approaching the offices of Swaab;

(i) Approaching, communicating or contacting the mother’s treating therapist or medical practitioner directly or indirectly;

(j) Approaching any of Y’s schools, after school care or activities.

7. The mother shall not be required to disclose her address or contact number to the father.

8. Pursuant to Section 11 of the Passport Act 2005 (Cth), the mother shall be authorised to do all acts and things necessary to apply for and maintain and keep updated a current Australian Passport for Y without the consent of the father.

9. The mother and Y shall be permitted to travel outside the Commonwealth of Australia without the consent of the father.

10. The mother shall retain Y’s passport for safekeeping.

11. The mother shall be injuncted from permanently relocating with Y out of the Commonwealth of Australia. The Court notes the mother undertakes that it is not her intention to relocate out of the Commonwealth of Australia and it is her intention to live permanently in Australia with Y.

12. The father shall be restrained and injuncted from posting any material, whether written or pictorial, on Facebook and/or any other social media that relates to the mother, Y and/or the mother’s relatives and/or all of them, either directly or indirectly and/or relates to these proceedings and/or any issues in these proceedings and, in particular, the father shall remove any existing postings relating to Y and/or the mother directly or indirectly and remove any Facebook page he has posted in the name of Y or any derivative thereof or in any way associated with Y and shall be injuncted from posting any other Facebook page in Y’s name.

13. The mother shall be permitted to release to any therapist treating her the reports prepared by Dr B in these proceedings.

14. The father shall be permitted to release to any therapist treating him the reports prepared by Dr B in these proceedings.

15. The mother shall be permitted to release to any therapist treating Y the reports prepared by Dr B in these proceedings.

16. The mother shall be at liberty to provide a copy of these Orders to Y’s school, vacation care programme and the provider of any co-curricular, extra-curricular and sporting or other activities, any medical practitioner, psychologist/psychotherapist and allied health professional seen by herself or Y, and before and after-school care and the New South Wales police and Australian Federal Police and Australian Border Force.

17. The father is restrained by injunction, except with the leave of the court by a Senior Judicial Registrar or Judge, from commencing any proceedings in relation to the mother and/or child.

18. Each of Orders 4, 5, 6 and 12 herein are Orders pursuant to section 68B of the Family Law Act 1975 (Cth) for the personal protection of the mother and Y and, for the avoidance of doubt, are injunctions for the personal protection of the mother and Y for the purpose of section 68C of the Act.

19. The father shall pay the mother’s costs of and incidental to this Application fixed in the sum of $323,720.15.

20. The father shall pay the costs of the Independent Children’s Lawyer in the sum of $16,137.

21. All outstanding applications are hereby finalised.

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.

Background

Background to the litigation

These are proceedings concerning the best interests of the child, Y, born 2013 aged 10 years old at the date of the hearing. The mother, Ms Vader (“the mother”), was born in 1973 and was 50 years old at the date of the hearing. The father, Mr Dantes (“the father”), was born in 1968 and was 54 years old at the date of the hearing. The parties separated when Y was under one year of age. Y has been the subject of litigation for much of her life. 
BACKGROUND Final orders had been made by consent by Justice Johnston on 8 December 2016. Proceedings were recommenced by the mother on 11 October 2019 and interim orders were made for no time to occur between Y and her father on 16 October 2019. The only contact the father has had with Y since that time was when he attended her school in early 2021, in breach of a no contact order (discussed further below), and a meeting via audio visual link (“AVL”) when the single expert, Dr B, was preparing his report as ordered by this court. The father did not present any evidence; however, the evidence in this case, including from the three single expert reports, makes it plain that the father has experienced periods of serious and debilitating mental health challenges resulting in at least some periods of hospitalisation. Following separation from the mother, the father married Ms C, with whom he has another child, X, born 2016. The father and Ms C have since separated and I note that there are concurrent parenting proceedings before the court in relation to the best interests of X. Ms C also has a child of a previous relationship, M, born 2011.
FINAL HEARING COMMENCED ON 8 MAY 2023 AND WAS LISTED FOR 7 DAYS The matter was listed for final hearing for 7 days commencing on 8 May 2023. The father engaged a lawyer for the purposes of the cross examination of witnesses as, due to the allegations of family violence in this case, his capacity to cross examine was limited by s 102NA of the Family Law Act 1975 (Cth) (“the Act”). To that end, Mr DeFraine solicitor, was engaged and appeared on the first day of the hearing. He cross examined the mother and Mr H, the maternal uncle. At the conclusion of the first day, the father confirmed that he would consent to orders that sole parental responsibility be granted to the mother and that Y live with the mother. The issues that then remained were:
(a) Whether there should be orders for Y to spend time or communicate with the father, and if so what those orders should be; 
(b) Whether injunctive orders should be made as sought by the mother; 
(c) Whether the release of the orders of the court and the report of Dr B to the child’s school, the child’s vacation care programme, the provider of any extra-curricular activity provider for the child, the child’s before and after school care, any treating medical professionals of the parties or the child, the NSW Police and the Australian Federal Police should occur; and 
(d) Costs.
 The second day of the hearing was due to commence with the mother’s psychologist Ms N and the balance of the mother’s witnesses scheduled to give evidence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In these circumstances there is no option other than to allocate parental responsibilities for the child exclusively to one party, and that should be the parent with whom the child resides, the mother. The only appropriate order, and one that was not opposed by the father, is an order for the mother to have sole parental responsibility and I so order.
BEST INTERESTS – PRIMARY CONSIDERATIONS The benefit to Y in having a meaningful relationship with both of her parents in this case is outweighed by the need to protect her from direct physical and psychological harm and indirect psychological harm for the reasons set out below.
Meaningful relationship with each parent: s 60CC(1) of the Act It is ordinarily in the best interests of a child to have a meaningful relationship with both parents. But such a relationship must be of benefit to the child,[15] and must be “important, significant, and valuable to the child.”[16]


[15] McCall & Clark [2009] 41 Fam LR 483 at [122].



[16] Mazorski & Albright (2007) 37 Fam LR 518 at [26].



 There is a history of Y spending time with the father and deriving benefit from it. The 2021 report of Dr B identified that Y said of her father that “he makes me laugh/ he makes me feel happy”,[17] and that she has a positive connection to her paternal family. He reported that Y said “I just wanna (sic) know him better.”[18] Dr B also identified that Y is a child who “pre‑emptively” takes into account the perceived needs of others and does not wish to disappoint or upset others. There are benefits to Y of a relationship with her father and if she does not have such a relationship it can have “negative impacts upon a young person’s sense of self and character development during adolescence.”[19]


[17] Expert Report of Dr B dated 18 January 2021, paragraphs 316-317.



[18] Expert Report of Dr B dated 18 January 2021, paragraph 320.



[19] Expert Report of Dr B dated 18 January 2021, paragraph 403. 



 It was not in issue in the proceedings that Y expressed positive feelings about the father and that the father wished to spend time with her. I have no doubt that the father deeply loves Y. I also have no doubt the father has qualities and interests that would be of benefit for Y to experience. However, the benefits of the relationship for Y are outweighed by the significant risks the relationship poses to Y and to the mother’s psychological wellbeing, which could put at risk her capacity to parent Y on an ongoing basis. The mother submitted that time with and communication with the father poses unacceptable risk of harm to Y as detailed below. The Independent Children’s Lawyer also submitted that time with and communication with the father poses unacceptable risk of harm to Y. The important primary consideration of the benefit of a meaningful relationship for Y with her father is subject to the need to protect Y from harm. The question of risk of harm is to be given greater weight than the benefit of the child having a meaningful relationship with both parents.
The need to protect the child from harm: s 60CC(2) of the Act