WALDRUP & WALDRUP

[2020] FCCA 2867

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDRUP & WALDRUP [2020] FCCA 2867

Catchwords:
FAMILY LAW – Parenting – undefended hearing.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Cases cited:

MRR & GR (2010) 240 CLR 461

Applicant: MR WALDRUP

Respondent: MS WALDRUP

File Number: SYC 8172 of 2017

Judgment of: Judge Morley

Hearing date: 26 March 2020

Date of Last Submission: 26 March 2020

Delivered at: Sydney

Orders Pronounced: 26 March 2020

Delivered on: 4 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Greenaway

Solicitors for the Applicant: Kheir Lawyers

No appearance by or for the Respondent.

Solicitors for the Independent Children's Lawyer: Ms Karagiannis of Legal Aid Central Sydney

ORDERS

1. The Father shall have sole parental responsibility for the child, X born in 2010.

2. Pursuant to s 11(1)(b) of the Australian Passports Act, the Father shall be permitted to apply for the issue of an Australian travel document and the renewal of same for the child without the consent of the Mother being obtained.

3. The child shall live with the Father.

4. The Mother spend no time with or communicate with the child. 

5. That within three (3) months from the date of these Orders the Father is to do all acts and things necessary to obtain a referral and thereafter schedule an appointment for the child to attend upon a paediatrician for the purpose of conducting a full paediatric assessment of the child, and thereafter must abide by any recommendations of the paediatrician including, but not limited to, following and implementing any recommendations made in relation to the ongoing management and treatment of the child.

6. That within three (3) months from the date of these Orders the Father is to do all acts and things necessary to obtain a referral and thereafter schedule an appointment for the child to attend upon a speech pathologist for the purpose of conducting a full speech assessment of the child, and thereafter must abide by any recommendations of the speech pathologist including, but not limited to, following and implementing any recommendations made in relation to the ongoing management and treatment of the child.

7. The Father shall provide a copy of any assessment or report obtained pursuant to Orders (5) and (6) to the child’s general practitioner and school within seven (7) days of receipt.

THE COURT NOTES THAT:

1. The Father shall make all reasonable efforts to ensure that the child is made aware of and has access to his Country P culture.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 8172 of 2017

MR WALDRUP

Applicant

And

MS WALDRUP

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are Reasons for Judgment in relation to an undefended hearing I conducted on 26 March 2020, in relation to parenting arrangements between Mr Waldrup (‘the Father’) and Y (‘the Mother’), concerning their son X born in 2010 (‘the child’ or ‘X’). At the undefended hearing, Mr Greenaway of Counsel appeared for the Applicant, and Ms Karagiannis appeared as solicitor-advocate for the Independent Child’s Lawyer.

2. As the hearing proceeded on an undefended basis, I considered the evidence relied upon by the Father and submissions made on behalf by his Counsel. I considered the evidence of the Independent Child’s Lawyer and her submissions made for X.

3. At the conclusion of the undefended hearing, I made orders by consent between the Father and Independent Child’s Lawyer and on and undefended basis in relation to the Mother. Those orders provide that:

   a)The Father has sole parental responsibility for X;

   b)The Father can apply for a passport for X pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) without the Mother’s consent being obtained;

   c)X lives with his Father; and

   d)The Mother spends no time with X, nor does she communicate with X.

4. The orders also provided for the Father to obtain referrals for X within three (3) months of the date of the orders, specifically in relation to:

   a)A referral for X to see a paediatrician to obtain a full paediatric assessment; and

   b)A referral for X to see a speech pathologist to conduct a full speech assessment.

5. Those orders required the Father to abide by all recommendations made by the specialists.

6. Finally, a Notation was made providing that the Father “shall make all reasonable efforts to ensure that the child is made aware of and has access to his Country P culture”.

7. Proceedings were commenced by an Initiating Application filed by the Father on 8 December 2017 seeking parenting orders. The Mother filed a Response seeking parenting orders on 28 January 2018, and then filed an Amended Response seeking parenting and property settlement orders on 23 April 2018.

8. On 29 October 2018, final property orders were made by consent of the parties at a conciliation conference.

9. On 16 July 2018, orders were made by Judge Harper (as his Honour then was) for the preparation of a Family Report. That Family Report was prepared by family consultant Ms B and released to the parties by the Court on 9 July 2019.

10. On 26 November 2018, interim orders were made by consent in Chambers by her Honour Judge Henderson (as her Honour then was) providing for the parties to make arrangements with C Children's Contact Service at Suburb Q, in anticipation of a future order for time to be spent between the Mother and X supervised by that service.

11. On 15 July 2019, the matter came before me for mention. Each party was represented, and that the matter was listed for call-over for the allocation final hearing dates on 26 September 2019.

12. On 26 September 2019 at the call-over, there was no appearance by or on behalf of the Mother. The matter was then listed for undefended hearing on 26 March 2020, as well as for a further mention in the meantime on 26 November 2019, “to give the mother an opportunity to attend before the Court and have the undefended hearing date vacated and the matter set down for a contested hearing”.

13. On that occasion, I made orders inter alia that a sealed copy of the orders made on that day be personally served upon the Mother by no later than 4:00PM on 25 October 2019, and that an affidavit of service “be available for the Court on 26 November 2019”.

14. On 26 November 2019, there was no appearance by or for the Mother.

15. A Notice of Withdrawal as Lawyer was filed by the Mother’s previous solicitors on 24 September 2019. In that Notice, those solicitors advised that a Notice of Intention to Withdraw as Lawyer had been served on the Mother by posting it to her last known residential address and by email on 6 September 2019, and stated the Mother’s last known residential address as D Street, Town E, NSW, her last known email address as …, and her last known mobile telephone number as … .

16. The Notice of Intention to Withdraw as Lawyer notified the Mother that the matter was listed for mention before the Court at 10:30AM on 26 September 2019, an event at which the Mother did not appear an was not represented.

17. On 14 November 2019, the Independent Child’s Lawyer filed an affidavit of attempted service sworn by a licensed process server, and indicating that attempts were made to serve a sealed copy of the orders made on 26 September 2019 under cover of letter from the Father’s solicitors dated 17 October 2019 on 21 October 2019, 22 October 2019, and 24 October 2019.

18. The process server indicates that on the occasion of 24 October 2019 when he attempted service upon the Mother, he spoke with a middle-aged male occupant of the property named ‘Mr R’ who informed the process server that he had never heard of Ms Waldrup, that that person did not reside at his address, and that he had been at the address for some years.

19. On 26 November 2019, the matter again came before the Court. Again, there was no appearance by or for the Respondent Mother.

20. The Independent Child’s Lawyer advised the Court that despite efforts having been made, the Mother had not been served with a copy of the orders made on 26 September 2019.

21. On 8 January 2020, the Independent Child’s Lawyer again filed an affidavit of attempted service sworn by the same licensed process server. That affidavit deposes that despite attempts made on 10 December 2019 and 13 December 2019 to serve documents upon the Mother at both F Street, Town G and H Street, Town J, the process server had not been able to serve the Mother.

22. That affidavit of attempted indicates that on 13 December 2019, the process server met the occupant/owner of the Town J property who advised that the Mother had boarded at the address in the downstairs flat underneath the main residence, but that she had decamped from the address owing rent more than a year previously. She further advised that she had no knowledge as to the Mother’s current whereabouts.

23. On 28 February 2020, the Independent Child’s Lawyer filed an affidavit of service by the same licensed process server, giving evidence that at 4:15PM on 18 February 2020, the Mother was personally served with documents at the Town E Hotel on L Street, Town E. Those documents were a “letter from Ms Waldrup dated 6 February 2020”, which the Court understands to be a reference to a letter to Ms Waldrup, along with a sealed copy of the orders of 26 September 2019, 26 November 2019, and a blank notice of address for service.

24. The process server further deposes that he said to the Mother the following:

    I said, “what is your full name?” She said, “Ms Waldrup.” I said, “Are you the Ms Waldrup referred to in these documents?” She said, “Yes I am.” I said, “Will you sign the Acknowledgement of Service?” She said, “Yes.”

25. The Mother accepted service of the documents by signing an acknowledgement of service document on that date, which was filed by the Independent Child’s Lawyer on 28 February 2020.

26. The Court was not able to have the Father identify the signature on the acknowledgement of service document form as the hearing was conducted by telephone in SARS-CoV-2/COVID-19 circumstances.

27. I find that the Mother had knowledge of the proceedings being before the Court on 15 July 2019, on which occasion she was represented by her solicitor Ms Fawaz. She was not present nor represented at any subsequent mention of the matter before the Court. I find that she had knowledge of the proceedings before the Court on 26 March 2020, by reason of having been served with copies of the orders made 26 September 2019 and 26 November 2019.

28. Accordingly, I was satisfied that it was appropriate to proceed on and undefended basis as against the Mother on 26 March 2020.

Material relied upon at the undefended hearing

1. The Father relied upon the following material:

   a)His Amended Initiating Application filed 8 June 2018;

   b)His Notice of Risk filed 28 January 2018;

   c)His affidavit sworn 28 February 2020 and filed that day;

   d)The Case Outline document prepared by Mr Greenaway of Counsel on the Father’s behalf, and containing written submissions;

   e)Exhibit A1, being a letter from Kheir Lawyers (on behalf of the Father) to Ms Waldrup dated 28 February 2020, enclosing by way of service a copy of the Father's affidavit of 28 February 2020.

2. The Independent Child’s Lawyer relied upon:

   a)Exhibit ICL1 being a confidential report of psychological assessment of the child X undertaken on7 May 2019 by Ms M an dated 20 May 2019; and

   b)Exhibit ICL2, being the Family Report prepared by Ms B dated 9 July 2019.

Background

1. The parties met when the Father travelled to Country P 2006.

2. The parties relocated to Australia permanently in 2008, married in 2012, and separated on the final basis in August 2017.

3. At the time of separation, the parties and X were living in northern New South Wales.

4. At separation, X and the Father remained in the family home at Town J, and the Mother moved to reside close by with her cousin.

5. X spend time with his Mother each Tuesday to Wednesday.

6. On 18 October 2017, X disclosed to his Father that he had been punched in the stomach area by his Mother.

7. On 20 October 2017, the Mother was charged with common assault and serve with a provisional domestic violence protection order prohibiting her from having contact with X, and was issued with bail conditions in the same terms.

8. The Father relocated with X to the Town N region New South Wales in December 2017.

9. The Mother defended the charge of common assault, but was subsequently convicted at the Local Court at Town O on 4 July 2018.

10. The Mother appealed her conviction to the District Court at Town S, and her appeal was dismissed by that Court on 29 November 2018.

11. X has not spent any time with his Mother since 18 October 2017.

12. At the hearing, I read and carefully considered the whole of the affidavit of the Father of 28 February 2020, including the annexes thereto.

13. I do not consider that there is a need to repeat all of that evidence in these Reasons as I have accepted all of the evidence of the Father, it was not challenged by the Independent Child’s Lawyer, and the matter proceeded on undefended basis.

14. I also read and carefully considered the whole of the contents of the Family Report of 9 July 2019. Whilst having carefully considered the whole of the Family Report, I specifically note the matter in paragraph 49 in which the family consultant relates that on 21 May 2019, she received a call from the Independent Child’s Lawyer who indicated that X had informed the Independent Child’s Lawyer that he did not want to see his Mother during the family report interviews.

15. During his interview with the family consultant, when the question of whether or not he would have to see his Mother was raised, X again expressed his wish to not see his Mother and when informed that a decision may be made after discussions, X “began to cry heavily and was pulling very strained faces”.

16. His Father comforted him and the family consultant reassured X that he if he did not want to see his Mother later he would not be forced to, and X calmed down.

17. When describing the incident where his Mother punched him in the chest and made him very sore and made him vomit, X told the family consultant that is Mother had threatened him “if you tell anyone I will kill you”.

18. I further note the comments in the Family Report from paragraph [55]:

    [55] X went on to say that his mother used to regularly smack him, hit his father, threaten to kill him and his father, yell and swear at him, and that she would break his toys and the furniture. He said that his mother once chased his father with a knife. He said that his mother also once told him “Don’t tell your Dad this, but I married him because I wanted his money”. He said that his mother even threatened to eat him (X) once. X believes that his mother never cared about him. X also said that his mother would frequently go to the pub and get drunk with her friends. When asked how he knew this, X initially said “my Dad” but then said he knew because she would come home drunk (which he knew because she would be walking funny) and that he would ask her where she has been, and she would say “the pub” … X said that he has never had any good times with his mother …

    [57] X was asked about what would happen if he had to see his mother. X started to cry and said that he is scared to be alone with his mother because he thinks she will kill him. X was asked about the possibility of seeing his mother in a room with someone else present to watch them. X said that, if he was in that room, he would hide and cry and feel so uncomfortable that he would probably wee his pants …

19. The phrase bolded above is particularly tragic.

20. The family consultant noted that X appears to have a close and loving relationship with his Father. He appears to feel quite fearful of his Mother.

21. The family consultant recommended that the Father have sole parental responsibility, that X lived with his Father, and that if it is determined that X’s safety and well-being is at risk with his Mother, it is recommended that no order be made for X to spend time with his Mother.

22. In the alternative if it was found that there was no risk to X’s safety and well-being in his Mother's care, she recommended that consideration be given to X spending time with his Mother for between and two and six hours on up to six occasions per year, preferably supported by the presence of a mutually agreed third-party.

23. The Mother did not attend upon the hearing, or make any attempt to take further part in the proceedings and present any case in relation to continuing a parenting role with X.

The legislative pathway

1. Though the matter proceeded on an undefended basis, the Court is still required to approach the matter in accordance with the legislative pathway as outlined by the High Court of Australia in the case of MRR & GR.[1]

   [1] MRR & GR (2010) 240 CLR 461.

2. At the undefended hearing, I considered what was in X's best interests by considering the primary and additional considerations in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’), in light of the evidence.

3. I find that the need to protect X from physical or psychological harm or being subjected to exposed to abuse neglect or family violence at the hands of his Mother outweighs the benefit to X of having a meaningful relationship with his Mother.

4. In relation to the additional considerations, I considered the views expressed by X as related in the Family Report, those views being tragically in the extreme against having any ongoing relationship with his Mother.

5. I considered the nature of X’s relationship with his Father and find that he has a good close a loving and meaningful relationship with his Father.

6. I considered the nature of X's relationship with his Mother and found that whatever relationship there may have been between parent and child that relationship had deteriorated to the state where X vehemently rejects any relationship with his Mother and his Mother has demonstrates a lack of will to pursue a relationship with X by her failure to continue taking part in the proceedings.

7. From 18 October 2017 until the undefended hearing on 26 March 2020 the Mother failed to take any opportunity to participate in making decisions about major long-term issues the X, to spend time with X or to communicate with X or to pursue avenues to establish a regime of spending time with X or communicating with X through pursuing court proceedings.

8. I find that the likely effect of any change in X’s circumstances by being made to resume a relationship with his Mother would cause him extreme anxiety and distress unless it occurred at the end of extensive and successful family therapy.

9. I find that the Father has demonstrated an adequate capacity to provide for X’s needs including his emotional and intellectual needs, whilst the Mother has demonstrated a serious lack of parental capacity in several respects, including but not limited to her criminal assault upon X and her abandonment of her child by her abandonment of the proceedings.

10. I find that there has been family violence involving X perpetrated by his Mother, being violence directly perpetrated on X and violence perpetrated upon the Father to which X has been exposed. There has been an apprehended violence order in the proceedings.

Section 61DA – presumption of equal shared parental responsibility

1. The presumption set out in section 61DA of the Act, that it is in the best interests of X for his parents to have equal shared parental responsibility for him, does not apply because there are reasonable grounds to believe, and I have made a finding, that there has been family violence.

2. In view of all of the evidence in the hearing, and based upon the Mother’s failure to engage with the proceedings and hearing, I find it is appropriate to make an order that the Father have sole parental responsibility for X.

1. As no order will be made for X's parents have equal shared parental responsibility for him, I do not need to consider any of the matters referred to in section 65DAA of the Act.

2. Based on the findings I made at the undefended hearing, as reflected in these Reasons, I made the final orders set out in the document titled ‘Consent Orders’, being orders by consent as between the Father and the Independent Child’s Lawyer.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate:

Date: 4 December 2020