Wadhams & Racine
[2024] FedCFamC2F 221
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wadhams & Racine [2024] FedCFamC2F 221
File number(s): MLC 5511 of 2021 Judgment of: JUDGE GLASS Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – PARENTING – ex tempore reasons given following the mother's failure to return after luncheon adjournment – whether four year old child who has been living week about between her two parents in different parts of Victoria should live primarily with her father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN, 102NA(1)(c)(iv)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04, 10.27
Cases cited: Boyle & Zahur & Anor (2017) FLC 93-814
Groth & Banks [2013] FamCA 430
Lennon & Lennon [2011] FamCA 571
Division: Division 2 Family Law Number of paragraphs: 69 Date of hearing: 1-2 February 2024 Place: Melbourne Counsel for the Applicant: Mr Goussis Solicitor for the Applicant: CMA Law Counsel for the Respondent: Self Represented Litigant ORDERS
MLC 5511 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WADHAMS
Applicant
AND: MS RACINE
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Father have sole parental responsibility for X, born in 2019.
2.X live with the Father.
3.X spend time with the Mother each alternate weekend from 12:00pm on Saturday to 12:00pm on Sunday, with such time to commence on Saturday 17 February 2024.
4.Notwithstanding any Order to contrary, X is to spend time with and communicate with each parent as follows:
(a)For Christmas as agreed between the parents in writing and failing agreement as follows:
(i)With the Mother from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in 2025 and each alternate year thereafter.
(ii)With the Father from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in 2024 and each alternate year thereafter.
(b)For Mother's Day and Father's Day as agreed between the parents in writing and failing agreement:
(i)With the Mother from 5.00 pm on the day preceding Mother's Day until 2.00 pm on Mother's Day.
(ii)With the Father from 5.00 pm on the day preceding Father's Day until 2.00 pm on Father's Day.
5.Unless otherwise agreed between the parties in writing, changeover occur at the City C Police Station (D Street, City C).
6.The Mother sign all documents and do all acts as required to apply for an Australian passport for X within seven days of receiving a written request from the Father.
7.In the event the Mother fails or refuses to comply with Order 6 hereof, pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) the Father is authorised and permitted to apply for, renew and receive Australian passports for the child X born in 2019 and the child be permitted to travel internationally, without first obtaining the written consent of the Mother.
8.In the event that the Father proposes to travel internationally with the child, he provides to the Mother in writing:
(a)60 days' notice of the intended travel dates;
(b)copy of the itinerary; and
(c)contact details for the children.
9.The Father be permitted to hold the child’s passport.
10.The Father provides the Mother with information in relation to the child’s ongoing health and education.
11.The parent’s keep each other informed of their residential address, telephone number and email address and notify each other of any change within twenty-four hours of such change.
12.Unless an objection is received by the Associate to Judge Glass by email, copying in the Father’s legal representative, by 5.00pm on Monday 5 February 2024, the Father have leave to use the Family Report of Dr B dated 18 September 2023 in the Family Violence Intervention Order proceedings between the parties in the Magistrates’ Court of Victoria.
13.All extant applications be dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Mr Wadhams and Ms Racine have one child together, X. X will turn five this year. She suffers from Autism Spectrum Disorder and developmental delay.
The parties finally separated in around March 2021, when X was approximately two years old. X then continued to live with Ms Racine and her other children. Mr Wadhams moved to his mother and stepfather’s home near Town E.
In June 2021, Child Protection authorities became involved with the family and X was placed in the care of her paternal grandmother, Ms F, for six months.
In early 2022, the parties undertook to the Children’s Court that X would live with Ms Racine for eight days each fortnight, and with Mr Wadhams for six days each fortnight. The undertaking remained in force until 23 August 2022.
Despite the undertaking, from around March 2022, X began living with the parties on a week-about basis.
Mr Wadhams now proposes that he have sole parental responsibility for X, that X live with him, and spend time with Ms Racine each alternate weekend from 12 pm Saturday until 12 pm Sunday, with changeovers occurring in City C. He proposes being permitted to travel internationally with X, and for X to spend special occasion time with each of her parents.
Ms Racine has failed to properly participate in this final hearing. She failed to comply with directions to file material in advance of the hearing. As a result of that default, I have a discretion pursuant to rule 10.27 of the Court’s rules to give judgment against her.[1]
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
She attended at the commencement of the hearing and sought a discretionary order be made under subparagraph 102NA(1)(c)(iv) of the Family Law Act1975 (Cth). That application was refused for the oral reasons then given.
She was granted leave to rely on an earlier affidavit filed by her on 13 February 2023. She subsequently articulated a proposal to the Court, and cross-examined Mr Wadhams at some length on the afternoon of the first day of trial. Because the family report writer had not been put on prior notice, his oral evidence was interposed on the morning of the second day of trial and Ms Racine cross-examined him.
Ms Racine subsequently tendered several documents and was to resume her cross-examination of Mr Wadhams and his mother after the luncheon adjournment. She has failed to return to the courtroom, having sent an email to my associate in the following terms:
Sorry I am in sickbay, I am not we’ll need medical attention
I can’t proceed I’m so sorry
I don’t know where my support worker is, not sure what to do or how else to inform the court
Regards
[Ms Racine]Subsequent to that email having been received, I was advised that Ms Racine has left the building, having been in some distress and indicating that she required medication.
It is significant to observe that this is the second listing of this parenting matter for final hearing, an earlier trial having been adjourned at Ms Racine’s request to obtain legal representation. She ultimately failed to arrange that legal representation for the hearing.
A principle to which I must give effect, pursuant to section 69ZN of the Family Law Act1975 (Cth), is proceeding without undue delay. I am also required to consider X’s needs and the impact of the conduct of the proceedings on her.
I am satisfied that Ms Racine has had ample opportunity both to present her case to the Court, and that she has failed to avail herself of that opportunity.
I am satisfied that X’s best interests are now best met by a finalisation of Mr Wadhams’ application for parenting orders.
Ms Racine did not make herself available for cross-examination, with the result that Mr Wadhams was deprived of an opportunity to challenge her evidence. Ms Racine’s cross-examination of Mr Wadhams did not impugn his evidence in any meaningful respect. In those circumstances, I accept his evidence.
Similarly, Ms Racine did not challenge successfully the observations and opinions of the family report writer, Dr B, and I accordingly also accept his evidence.
The application falls to be determined by reference to Part VII of the Family Law Act1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[2] X’s best interests are the paramount consideration.[3] In determining those best interests, I am to consider the two primary and 14 additional considerations prescribed by section 60CC of the Act.
PRIMARY CONSIDERATIONS
[2] Family Law Act 1975 (Cth), s 60B.
[3] Family Law Act 1975 (Cth), s 60CA.
The benefit to X of having a meaningful relationship with both of her parents
The first primary consideration is the benefit to X of having a meaningful relationship with both of her parents.
As has been observed, X currently spends equal time with each of her parents.
Mr Wadhams lives in Town G, near Town E, and Ms Racine lives in Suburb H. The drive between their homes takes approximately four hours.
As indicated, Mr Wadhams proposes that X live primarily with him and spend alternate weekend time with Ms Racine. The tyranny of distance between the parties means that there is no viable alternative, other than X living primarily with one parent and spending brief alternate weekend time with the other. Ms Racine herself conceded as much to the Court.
On Mr Wadhams’ proposal, X will cease living with each of her parents on an equal basis. She will lose the opportunity of participating in weekday activities with each of her parents. Accordingly, X will be deprived of the opportunity to have the same meaningful relationship with each of her parents as she does currently. Regrettably, such an outcome is necessitated by the present geographical limitations.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The second primary consideration is the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Both parties abused illicit drugs and marijuana during their relationship. It is not currently suggested either party is continuing to do so.
Both parties also allege that the other perpetrated family violence during their relationship, which finally ended in March 2021. Although Mr Wadhams deposes to Ms Racine sending him abusive text messages after the parties’ separation, he does not give evidence of which year those messages were sent.
The family report writer, Dr B, gives unchallenged evidence that:
Each made significant claims of family violence from the other during the relationship, and despite the protective order for the mother, the type of seemingly highly immature and self-serving lifestyles led by the parties during their drug-addled days, makes it almost impossible to discern who bore greater responsibility for the undoubted family violence between them. Nevertheless, now that they live so far apart and seemingly rarely even speak to one another, this suggests the risk of further family violence to likely be quite minimal.[4]
[4] Family Report by Dr B dated 18 September 2023 (“Family Report”), paragraph 30.
The parties have been sharing equally in X’s care since approximately March 2022. Implicit in that consensual arrangement is an acceptance that X is not at unacceptable risk of harm, in the relevant sense, in the other party’s care. I do not now conclude otherwise.
ADDITIONAL CONSIDERATIONS
X is not at an age or stage of development where any views she has expressed are suggested to be given any weight.
Due to some limitations in the assessment process, Dr B was unable to discern anything reliably about the nature of X’s relationship with either party.
At various times, X has been cared for by both parties, or primarily by her mother, or primarily by her father, paternal grandmother and paternal step-grandfather, and as currently, equally between those two households.
It is to Mr Wadhams’ and his mother’s substantial credit that they assumed care for X at a time when Ms Racine was unable to do so, in the assessment of Child Protection authorities.
For a brief period after the parties’ separation, X spent no time with Mr Wadhams, as he, to his credit, sought to rehabilitate himself from drug and alcohol issues.
It is not otherwise suggested that either party has failed to take opportunities to spend time or communicate with X.
Changing X’s care from living equally with each of her parents to living primarily with Mr Wadhams will be a significant change in circumstances for her. However, it is a change that is necessary both to ultimately facilitate her education, but also to ensure her continued attendance upon consistent medical practitioners.
I have referred already to the significant practical difficulty of X spending substantial time with both of her parents, whilst they reside approximately four hours’ drive from each other. Nevertheless, the parties have been able to facilitate regular changeovers for X to spend time with each of them each fortnight. It is not suggested they will be unable to do so in the future, albeit for the shorter periods of time it is proposed X spend in Melbourne.
I accept Dr B’s opinion that he was very impressed with:
...[the father’s] apparent commitment to the child and his obvious intense involvement in all aspects of her special needs.[5]
[5] Family Report, paragraph 58.
Mr Wadhams has been facilitating X’s attendance upon a physiotherapist, speech therapist, an occupational therapist and an incontinence nurse, as well as other professionals. He is assisted by his mother in facilitating X’s attendance at those health professionals. They are also assisted by X’s paternal step-grandfather in taking X to kindergarten twice each week.
By way of contrast, I also accept Dr B’s opinion that:
…the mother did not present as well, and specifically she did not refer to her organising or being involved in any specific special needs programs for the child when in her care around her home at [Suburb H] as complementary to those seemingly centrally involved by the father in [Town E].[6]
[6] Family Report, paragraph 58.
I also accept Dr B’s further expressed concerns about Ms Racine’s capacity to provide for X’s needs. In particular:
She seemed to lack balanced thinking or insight about her role as a parent under separated conditions, as well as her former behaviour. And most critically, she seemed to not have any priority to always understand and to try and implement her shared responsibilities to the child in a cooperative and civil way.[7]
[7] Family Report, paragraph 28.
Dr B further observed that:
…she did not appear to have the willingness or insight sufficient to take substantial if any real responsibility for her former lifestyle and related behaviour, rather it was very clear that she had an almost fixated view that she was the so unfairly treated victim and a good parent, and others, especially her different partners, including the father in this matter, were much more responsible for her poor parenting than she was.[8]
[8] Family Report, paragraph 23.
Finally, Dr B also opined that:
Given the writer’s understanding of the child, especially considering that her disabilities and delayed development has meant that she has qualified for NDIS support at such a very young age, it seems unusual for such a child to spend so much time at daycare when she is in the mother’s care; surely, a mother genuinely aware of the child’s apparent profound developmental delays, and genuinely committed to her would want to protect her child, and not in any way potentially expose her to emotional or social distress, as could quite reasonably happen when she is attending daycare so often.[9]
[9] Family Report, paragraph 63.
The evidence now before the Court supports the conclusions reached by Dr B.
Most concerningly, late last year, Mr Wadhams was advised by the National Disability Insurance Scheme (“NDIS”) that Ms Racine had misappropriated funds for X’s care. Those funds are recorded to have been spent on house cleaning, carpet cleaning and the purchase of an iPad.
NDIS records reveal that X’s NDIS plan was being self-managed by Ms Racine. It is recorded that:
It has been identified that the funds have not been utilised to support [X] and have instead been used for carpet cleaning, house cleaning, Uber and iPad that is not supported or recommended by the speech pathologist.
…
…therapy providers are out of pocket as they have not been paid for services to [J Company] a registered provider.[10]
[10] Affidavit of Mr Wadhams filed 2 January 2024, Annexure W5, page 47.
The misappropriation of funding intended to support X’s medical needs could hardly represent a more significant failure to provide for a child’s needs. It demonstrates a very significant lack of commitment by Ms Racine to meeting X’s needs.
In those circumstances, I find Mr Wadhams to have a significantly greater capacity to provide for X and, in particular, her special needs.
To his credit, Mr Wadhams has not abused illicit substances since early 2021.
During the parties’ relationship, Ms Racine assaulted Mr Wadhams on three occasions and verbally abused him. On the first occasion, she punched him to the back of the head. On the second and third occasions, she punched him in the face with a clenched fist. She physically assaulted Mr Wadhams’ father in around mid-2020.
That same month, Mr Wadhams applied for an Intervention Order against Ms Racine. An Interim Order was granted in mid-2020. On his application, in circumstances of the parties’ then reconciliation, it was revoked in mid-2020.
In early 2021, Ms Racine applied for an Intervention Order against Mr Wadhams. An Interim Order was granted in early 2021, and that application is listed for a contested hearing earlier this year. The circumstances of the making of the order do not lead me to draw any inferences or reach any conclusions based on the making of those orders.
Affording a primary residence to X now will reduce the likelihood of the necessity for further proceedings in relation to her.
PARENTAL RESPONSIBILITY
I am to apply a presumption that is in X’s best interests for her parents to have equal shared parental responsibility for her.[11] However, in this instance, given the findings I have made of family violence, the presumption does not apply as there are reasonable grounds to believe that Ms Racine has engaged in family violence.[12]
[11] Family Law Act 1975 (Cth), s 61DA(1).
[12] Family Law Act 1975 (Cth), s 61DA(2).
Further, the evidence does not satisfy me that the parties can, or will, apply with the mandatory requirements to make joint decisions, consult with each other and make a genuine effort to make a joint decision about major long-term issues affecting X that is inherent in the making of an order for equal shared parental responsibility.[13]
[13] Family Law Act 1975 (Cth) s 65DAC; Boyle & Zahur & Anor (2017) FLC 93-814 at [22].
Ms Racine obtained NDIS funding for X, but refused to provide Mr Wadhams with any details of the funding.
Further, Dr B opined that:
…[the parties] showed absolutely no trust or respect for one another and each evidenced strong doubts about either the other’s parenting capacity or commitment to a child who seemingly now has very significant everyday developmental issues, and is likely to possibly have long-term, if not even possibly lifelong special needs issues.[14]
[14] Family Report, paragraph 50.
I find the parties do not have the necessary capacity to make joint decisions in X’s best interests. I am not satisfied that it would be in X’s best interests for her parents to have equal shared parental responsibility for her.
Mr Wadhams proposes that he have sole parental responsibility for X. It is a significant step to deprive a parent of parental responsibility with which they are ordinarily invested by law.[15] I am, nevertheless, satisfied that such a step is here appropriate, in circumstances particularly where Ms Racine has previously misappropriated NDIS funding for X. Reducing her capacity to again do so will maximise the prospect of X obtaining necessary treatment.
[15] Family Law Act 1975 (Cth), s 61C; Lennon & Lennon [2011] FamCA 571 at [108]; Groth & Banks [2013] FamCA 430 at [179].
I am satisfied that X’s best interests are met by Mr Wadhams having sole parental responsibility for her.
The relief that he seeks with respect to the issuing of passports and overseas travel is ancillary to that conclusion. I find that relief sought also to be in X’s best interests.
CONCLUSIONS
Dr B concluded by opining that:
…if the father’s overall strong allegations against the mother’s lack of commitment to the child were to be substantially proven, it suggests that the child with such high level needs, and especially the need for unconditional love and close personal physical contact from either parent, as well as everyday close monitoring, guidance and encouragement from each parent, would be better off living with the father and spending less and only alternate weekend time with the mother, with all her education and special developmental supports resting with the father and his family.[16]
[16] Family Report, paragraph 69.
Having accepted both Mr Wadhams’ and Dr B’s evidence, I am satisfied that it is in X’s best interests to now reside primarily with Mr Wadhams. To repeat, he has a significantly greater capacity to provide for X’s needs than Ms Racine.
I consider the proposals he advances for X to spend alternate weekend and special occasion time with Ms Racine to also be in X’s best interests.
I am also satisfied that changeover occurring at a midpoint between the parties’ residence is appropriate in all the circumstances.
RELEASE OF THE FAMILY REPORT
An oral application is made for Mr Wadhams to have liberty to provide a copy of the family report prepared in these proceedings to the Magistrates’ Court contested hearing of an Intervention Order matter next week.
Pursuant to rule 6.04 of the Court’s rules, the parties are prohibited from using documents in relation to these proceedings for any other purpose without the Court’s permission.[17]
[17] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Clearly enough, it is an application now made by Mr Wadhams for the relevant permission.
I am satisfied that the interests of justice are met by Mr Wadhams having that leave, but in reaching that conclusion, I note that I have not heard from Ms Racine, who has not been put on notice and has not had an opportunity to respond to the application.
In those circumstances, I will grant Ms Racine an opportunity to object to the use of the family report for that purpose, failing which, Mr Wadhams will have the leave that he seeks.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 2 February 2024
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