Wilkie & Engel

[2021] FamCA 486

FAMILY COURT OF AUSTRALIA

Wilkie & Engel [2021] FamCA 486

File number(s):	SYC 1290 of 2012
Judgment of:	REES J
Date of judgment:	8 July 2021
Catchwords:	FAMILY LAW – PARENTING – Where the mother has not spent time with the children for over a year – Where the mother’s parenting capacity is challenged – Hearing to proceed undefended – Orders for children to live with their respective fathers and spend supervised time with their mother.
Number of paragraphs:	61
In Chambers:	8 July 2021
Place:	Sydney
Applicant:	Did not participate
Solicitor for the First Respondent:	Ms Ward, Solari & Stock Lawyers
Solicitor for the Second Respondent:	Ms Rothwell, Stewart Law Pty. Ltd.
Solicitor for the Independent Children's Lawyer:	Ms Court, John Spence & Associates

ORDERS

SYC 1290 of 2012

BETWEEN:

MS WILKIE

Applicant

AND:

MR ENGEL

First Respondent

MR SHRIVER

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	REES J
DATE OF ORDER:	8 JULY 2021

THE COURT ORDERS:

1.That the orders made by the Family Court of Australia on 6 November 2017 in relation to the children X born … 2008 and Y born … 2011 and Z born … 2012 be discharged.

X AND Y

2.That Mr Engel (“the father”) have sole parental responsibility in relation to the children X born … 2008 and Y born … 2011 (“the children”).

3.That the children live with the father.

4.That the children spend time with Ms Wilkie (“the mother”) by agreement with the father in writing.

5.That the mother be and is hereby restrained from:

(a)Discussing with the children and/or in the presence of and/or within the hearing of the children these proceedings, or permitting any other person to do so.

(b)Making comments about the father which are derogatory in nature or denigrating the father in any way within the children’s hearing or presence.

(c)Assaulting, molesting, harassing or interfering in any manner with the father, or any partner he may have from time to time.

(d)Sending abusive, derogatory, harassing or offensive messages by email, SMS text message, Facebook messenger, or any other electronic means to the father or any partner he may have from time to time.

6.That each party be restrained from passing information or messages through the children to the other party.

7.That the mother be restrained from consuming alcohol or any illicit substances while the children are in her care and for 12 hours immediately preceding her time with the children.

Z

8.That Mr Shriver (“the father”) have sole parental responsibility for the child Z … 2012.

9.That the child live with the father.

10.That Ms Wilkie (“the mother”) spend time with Z every second Sunday, supervised by a professional supervision agency as agreed or failing agreement, the closest professional supervision organisation to Z’s residence, for such period of time as the supervision agency is able to accommodate.

11.That the mother be restrained from:

(a)Discussing with Z in his presence or in his hearing, these proceedings, or permitting any other person to do so.

(b)Making comments about the father which are derogatory in nature or denigrating him in any way within Z’s hearing or presence.

(c)Assaulting, molesting, harassing or interfering in any manner with the father, or any partner he may have at any time.

(d)Sending abusive, derogatory, harassing or offensive messages via any means of communication, electronic or otherwise, to the father.

12.That the parties be restrained from passing information or messages through Z to each other.

13.That the mother be restrained from consuming alcohol or any illicit substances while Z is in her care and for 12 hours immediately preceding her time with Z.

14.That pursuant to Sections 65DA(2) and 62B 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Rees J:

1. Ms Wilkie (“the mother”) is the mother of three boys, X who is 13 years old; Y who is 9 years old and Z who is 8 years old.

2. Mr Engel is the father of X and Y.

3. Mr Shriver is the father of Z.

4. An Independent Children’s Lawyer (“ICL”) has been appointed for the children.

5. A Child Dispute Conference was held on 4 May 2020 and a report prepared. The parents were each interviewed but the children were not.

6. The Family Consultant stated:

   44.It is fortunate that DCJ are involved with these children. It is important that each parent is proactively involved and undertakes any recommendations put forward by the DCJ in safeguarding X, Y and Z.

7. She further stated:

   48.It is imperative that the children’s schooling is prioritised and they are all enrolled and engaged in a school at present.

8. On 12 June 2020, in the Federal Circuit Court, Judge Monahan delivered reasons and made orders placing X and Y in the care of Mr Engel and placing Z in the care of Mr Shriver. Those orders provided for the mother to have supervised time with all three children on alternate Sundays.

9. The reasons for judgment set out the concerns then held for the care and safety of each of the children in the care of the mother and the extensive involvement of the Department of Communities and Justice (“DCJ”) with the children.

10. The proceedings were transferred to the Family Court of Australia.

11. Since the orders of 12 June 2020, the mother has spent no time with the children and she has not participated in the proceedings.

12. On 1 October 2020, the mother was charged with criminal offences relating to threats she made to the maternal grandmother.

13. On 8 October 2020, the mother’s solicitors filed a Notice of Ceasing to Act.

14. The mother did not appear at the directions hearing on 13 October 2020.

15. On 29 October 2020, the mother, in a telephone call to X and Y, told them that she was “not fighting for you anymore”.

16. The mother did not appear at the directions hearing on 24 November 2020 or at the directions hearing on 21 January 2021.

17. The matter was again listed for directions on 23 February 2021 when a registrar made the following orders:

    1.The matter is listed for possible undefended hearing before Justice Rees at 10.00 am on 25 March 2021.

    2.On or before 4.00 pm on 3 March 2021 the Applicant mother is to file and serve an Amended Application setting out the Orders she seeks and an Affidavit in support setting out the reasons why she has not participated in the proceedings since October 2020.

    3.On or before 4.00 pm on 26 February 2021 the First and Second Respondents are to file and serve any Amendment to their respective Responses.

    4.On or before 4:00pm on 8 March 2021 the parties shall file and serve one consolidated affidavit for each witness they propose to rely upon.

    5.On or before 4:00pm on 26 February 2021 the Independent Children’s Lawyer is to advise the Applicant mother in writing of the Orders made today, provide her with a copy of this Order and shall explain to her the process and consequences of an undefended hearing, including the likelihood that the matter will proceed on an undefended basis on 25 March 2021 in the event that she does not comply with Order 2 above.

    6.The Independent Children’s Lawyer is to provide evidence of service on the Applicant in accordance with Order 5 above by filing an Affidavit of Service by 8 March 2021.

    7.The First and Second Respondents shall file evidence of service on the Applicant of their respective Responses as Amended and the Affidavits relied upon by 15 March 2021.

    8.By 4:00pm on 18 March 2021, the parties and the ICL shall forward to the Judge’s Associate (in hard copy, unless otherwise advised) and to each other in separate bundles; a Minute of the Orders sought by each party and the ICL, a list of affidavits to be read, a chronology and short outline of the nature of the evidence given by each witness and any other material a party or ICL seeks to have read and rely upon, with such bundle to be clearly and consecutively paginated.

    9.In the event the Applicant mother files an Amended Application and Affidavit in support in accordance with Order 2 above, the matter is to be relisted urgently for telephone mention and the shall ICL facilitate (by liaison with the Court) any request made by the Applicant mother to attend that mention by telephone.

    10.Leave is granted to the parties and to the Independent Children’s Lawyer to apply to have the matter re-listed before the Registrar on 48 hours’ notice to the Court and to the other parties.

    11.Leave is granted to the ICL to issue such subpoenas as she considers necessary for the appropriate conduct of the matter or as is reasonably requested by a party and leave is granted to legal representatives to access and copy for the purposes of the undefended Hearing.

18. The ICL has filed an affidavit as to her compliance with the orders of 23 February 2021.

19. The ICL has also deposed to contact with the mother on 12 March 2021 when the mother rang the ICL asking for a copy of the Initiating Application which the mother filed.

    THE MOTHER’S ADJOURNMENT APPLICATION

20. On 24 March 2021, the mother filed an Application in a Case seeking an adjournment of the proceedings and an affidavit in support of that application. The affidavit did not deal with the substantive issues before the Court for hearing on 25 March 2021.

21. That application was granted over opposition from the ICL and both respondents and I indicated that reasons for that decision would be provided in the substantive reasons. These are the reasons.

22. The mother deposed that she had not become aware of the listing of the matter for hearing until 5 March 2021 when she read emails from the ICL and the solicitor for the first respondent.

23. She deposed that she had made an application for a grant of legal aid and she told the Court that she had been advised that the application should be dealt with in about two weeks.

24. The mother sought an adjournment for six weeks.

25. The solicitor for the first respondent referred the Court to a number of documents which appeared to contradict the mother’s evidence.

26. On 19 October 2020, the solicitor for the first respondent wrote to the mother by email at her current email address advising the mother that the matter was listed for mention on 24 November 2020 and that she was required to file a Notice of Address for Service. The letter also enclosed a copy of the orders made on 3 September 2020 and 13 October 2020.

27. On 11 November 2020, the solicitor for the second respondent sent an email to the mother at her current email address advising that the matter was adjourned to 24 November 2020 and giving the mother the dial in details and passcode for the telephone mention.

28. On 25 November 2020, the mother not having appeared on the previous day, the solicitor for the second respondent again emailed the mother with a copy of the orders made on 24 November 2020.

29. On 4 January 2021, the mother posted on social media commencing “Does anyone know of a good family lawyer that accepts legal aid?” The post suggests that the mother was well aware that the proceedings were ongoing.

30. On 14 January 2021, the associate to the Deputy Chief Justice sent an email to the parties, including the mother, notifying them that the matter was listed for callover before his Honour on 1 March 2021 and containing information about electronic attendance.

31. On 20 January 2021, the solicitor for the first respondent emailed the mother advising that the proceedings had been adjourned to 21 January 2021 and provided the dial in details for the mention. In that email, the solicitor stated:

    If you do not appear at the telephone directions on 21 January 2021 either personally or through a solicitor, we will request that the court list the matter for an undefended hearing without further notice to you.

    At the undefended hearing, we will request that the Judge make orders in accordance with our client’s Response to Initiating Application filed on 30 April 2020.

32. Accordingly, I am satisfied that the mother had been kept aware of the progress of the litigation. If she only became aware of the listing on 5 March 2021, as she deposed, that could only be because she deliberately chose to not receive the information.

33. The solicitors for the respondents had done everything in their power to keep the mother informed.

34. However, these are proceedings in relation to three young boys and justice required that their mother be given yet another opportunity to participate in the proceedings that will determine their future.

35. Because the mother has no funds from which to compensate the respondents for costs thrown away by virtue of her failure to participate in accordance with direction, I ordered that, if the mother did not file her evidence by 4 pm on 30 April 2021, the matter would be determined in chambers with regard only to the material relied on by the respondents and the ICL. It is not reasonable that the respondents should be required to incur the expense of further legal representation if that can be avoided.

36. The mother did not file any material pursuant to that order.  

37. I am satisfied that the mother has had the opportunity to participate in these proceedings and has chosen not to do so and that it is appropriate for the matter to proceed as undefended by her.

38. The ICL supports the continued operation of the orders placing the children in the care of their respective fathers.

39. I propose to consider the best interests of the children discretely.

40. It is not disputed that it would be in the best interests of all three children that they have a meaningful relationship with their mother. The issue to be determined is whether it is possible for them to have such a relationship, having regard to the mother’s difficulties.

41. The mother has a history of alcohol use, use of illicit drugs and mental health issues. The DCJ has had significant involvement with the children and in February 2020, DCJ asked Mr Engel to care for the children because of its concerns about the mother. In the care of the mother, the children’s schooling was interrupted and inconsistent.

42. In a report dated 30 July 2020 the mother’s treating psychiatrist stated:

    [The mother] presents as a complex psychiatric problem in which various diagnostic labels have been applied to her over time…

    Her ongoing treatment as described has resulted in amelioration of symptomatology but not an abolition of symptomatology.

    In the context of her overall management I have cautioned her in regard to her
    non-prescription substance use which according to her description while infrequent, nevertheless is a potential aggravating factor to her symptomatology.

    
    

    X AND Y

43. Because no family report has been prepared, there is scant evidence of the children’s views. However, they are represented by an experienced ICL. Mr Engel deposed that in March 2020, X begged his mother not to ask him to run away from his father and that in December 2020, X told his mother that he didn’t want to live with her in B Town.

44. There is no evidence in relation to Y’s views.

45. However, in the circumstances of this case I am satisfied that the weight to be given to the children’s views would be constrained by the need to keep them safe.

46. The evidence suggests that the children have a close relationship with their father and with the extended paternal family. The father deposed that the children have a close relationship with his partner and that he has a good relationship with the maternal grandmother and the mother’s brothers.

47. The mother has not taken the opportunity to spend time with the children since the orders of 12 June 2020. Mr Engel deposed that he had made arrangements with a supervision service but was advised by the service that they had been unable to contact the mother.

48. I infer that the mother does not have the capacity to pay child support and that the father is responsible for the children’s financial support.

49. The children have now been living with Mr Engel for over a year and they are settled in their schools. X has started high school. Having regard to the emphasis placed by the Family Consultant on the need to give priority to the children’s schooling, it would not be beneficial to the children for them to change schools again. The father deposed that X has settled well into high school and is organised and prepared each day for school. In relation to Y, the father deposed that he has improved academically and his teacher says Y is doing well at school. Both the children’s school reports for the last semester of the 2020 school year were in evidence and confirm the father’s assessment.

50. There are serious concerns about the mother’s capacity to care for the children.

51. I am satisfied that it is the best interests of X and Y that they live with Mr Engel and that he have sole parental responsibility for them. Their time with their mother should be supervised.

    Z

52. There is no evidence of Z’s views but he is represented by an experienced ICL.

53. Z’s paternal grandmother deposed that Z is happy and well-adjusted and “loves his Dad”. Z has a loving relationship with his paternal grandmother and with his

    
    

    half-brothers.

54. The mother has not spent any time with Z since the orders of 12 June 2020. Mr Shriver deposed that, after the orders were made, he would contact the mother weekly so that she could speak to Z but she stopped taking his calls. He deposed that the mother said to him:

    I don’t care anymore, I don’t want to be involved, you can do all the work and I will be around when he grows up.

55. I infer that Mr Shriver provides for Z’s financial support.

56. Mr Shriver deposed that Z has settled well into school; that he has developed confidence; made friends and “really got into sport”. Mr Shriver deposed that Z:

    … started taking pride in his school work and has developed into a happy enthusiastic kid.

57. It would not be in Z’s best interests for those gains to be interrupted.

58. The mother’s parenting capacity is challenged and the evidence suggests that she has some serious deficiencies as a parent.

59. I am satisfied that it is Z’s best interests to remain in the care of Mr Shriver and for Mr Shriver to have sole parental responsibility for him.

60. Contact between Z and the mother should be supervised.

61. Orders will be made in those proceedings in accordance with the proposals of Mr Engel and Mr Shriver.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       8 July 2021