Yoshinaga & Maurin
[2025] FedCFamC1F 285
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yoshinaga & Maurin [2025] FedCFamC1F 285
File number(s): DGC 3726 of 2021 Judgment of: JOHNS J Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – PARENTING – Ex Tempore Reasons – undefended hearing - best interests – decision-making authority – live with – passport – where the father withheld consent to passport applications for the children – where there were allegations of family violence against the father – where the father disengaged from proceedings – where the matter proceeded in the absence of the father – sole decision-making authority to the mother – the children to live with the mother and spend time with the father as agreed between the parents – passports to be issued for the children without the consent of the father Legislation: Australian Passports Act 2005 (Cth) s11(1)(b)
Family Law Act 1975 (Cth) Div 12A, PT VII, ss 60CA, 60CC, 62B, 65DA(2)
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 10.26, 10.27
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 20 February 2025 Place: Melbourne Counsel for the Applicant: No appearance Counsel for the Respondent: Ms Bowan Solicitor for the Respondent: Johnstone & Reimer Lawyers Counsel for the Independent Children’s Lawyer Ms Clark Solicitor for the Independent Children’s Lawyer Inclusive Family Law & Mediation ORDERS
DGC 3726 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YOSHINAGA
Applicant
AND: MS MAURIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.All previous Parenting Orders in relation to the children X born in 2007, Y born in 2009, Z born in 2012 be discharged.
2.The mother have sole decision-making responsibility in relation to the children Y born in 2009 and Z born in 2012 (collectively referred to as “the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father at such times and on such conditions as may be agreed between the parents in writing in accordance with the children’s wishes.
5.The mother, the father, their servants and agents be and are hereby restrained from doing the following in the presence and/or hearing of the children (or either of them):
(a)Discussing these proceedings other than for the purpose of explaining the operation of these Orders; and
(b)Denigrating the other parent or their family members.
6.The mother shall have leave to provide a copy of these Orders to any school or educational institution the children or either of them are enrolled in.
7.That pursuant to s11 (1) (b) of the Australian Passports Act 2005 (Cth), it is hereby ordered that the children Y born in 2009 and Z born in 2012 be issued with an Australian travel document.
8.For the purposes of s11 of the Australian Passports Act 2005 this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the children Y born in 2009 and Z born in 2012 or either of them upon application by the Mother and without requiring the consent of the Father to the children Y and Z or either of them travelling outside of the Commonwealth of Australia or his signing passport or passport renewal applications.
9.All extant applications be dismissed.
10.The appointment of the ICL be discharged.
11.Pursuant to s.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The children are not currently spending time or communicating with the father and there is currently no agreement for any time or communication to occur.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Yoshinaga & Maurin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
These proceedings relate to future parenting arrangements for the parties' children, X, born in 2009 and aged 15 years and Z, born in 2012 and aged almost 13 years. They are the children of Mr Yoshinaga, the applicant father, and Ms Maurin, the respondent mother.
BACKGROUND
The father was born in 1970, and is aged 55 years. He has re-partnered with Ms B.
The mother was born in 1980, and is aged 44 years. She is employed as a teacher. The mother has re-partnered, and she and the children live with her partner, Mr C, whose children D, aged nine, and E, aged 11, live with them in alternating weeks.
The parties commenced their relationship in 2004 and married in 2006. There are three children of the relationship, Y, Z, and the oldest child X, who was born in 2007, and is aged 17 years. No orders are sought by either party with respect to X's care.
The parties separated under the one roof in February 2021. In July 2021, the mother and the three children vacated the former matrimonial home in Suburb F.
The father has two children from a previous relationship, Mr G and Mr H. At the commencement of the parties' relationship, Mr G and Mr H, then aged approximately nine and six years, lived with the parties. In 2011, Mr H returned to live with his mother, and in 2014 Mr G also returned to live with his mother.
Following the parties' separation in February 2021, each sought Family Violence Intervention orders for their protection against the other. Those applications were resolved by consent in late 2021; the mother provided an undertaking not to commit family violence against the father, and a final Family Violence Intervention Order was made against the father, protecting the mother. The order against the father expired in late 2022.
I note the mother's account, as set out in her trial affidavit, of a long history of family violence to which she and the children were exposed as a result of the father's conduct. Her evidence, as contained in her trial affidavit in respect of those matters, is unchallenged.
These proceedings were commenced upon the father's Initiating Application, filed in Division 2 of the Federal Circuit and Family Court of Australia in September 2021. The parties' property dispute was settled upon the making of final property orders by consent in May 2022.
The parenting proceedings have had a long and unfortunate history before the courts. There have been numerous interim applications, hearings, and court events in relation to the parties' ongoing dispute with respect to parenting arrangements. In November 2021, interim orders were made by consent that provided that the children, Y and Z, live with the mother and spend alternate weekends with the father, from after school on Friday to the commencement of school on Monday. In addition, orders were made in relation to telephone communication between the children and the father, providing for that communication to occur on approximately three occasions per week.
In May 2022, the father withheld Y and Z from the mother, in breach of the November 2021 orders. As a result, in May 2022, the mother filed an Application in a Proceeding seeking the return of the children to her care. That did not occur until orders were made in September 2022 which provided for the return of the children to the mother's care. On that date, there were further orders made that suspended the father's time with the children until October 2022.
A further instance of overholding of the children by the father occurred on the King's Birthday weekend in 2023.
The father again overheld the child Z from the mother's care in March 2024. Approximately a week later, the father filed an Application in Proceeding seeking orders that Z live with him pending the final hearing. The mother then cross-applied, seeking the return of Z to her care. Orders were made on 4 April 2024 for the return of Z to the mother's care. In addition, the father's time with Z was suspended; that suspension has continued since that time.
The parties' competing parenting applications were listed for final hearing before Judge Howe in the Federal Circuit and Family Court of Australia (Division 2). That hearing proceeded for three days in April 2024, and a further day in May 2024. On the fourth day of hearing, Judge Howe recused herself from hearing the matter.
Orders were made for the transfer of the proceedings to this Court on 6 November 2024. On 8 November 2024, I made orders listing the matter for a case management hearing before me to occur on 14 November 2024. On that date, I made trial directions listing the matter for final hearing to commence this day. The father did not appear at that Case Management Hearing. Given the father's non-attendance at court on 14 November 2024, I made the following order:
15. That in the event of the applicant father's non-compliance with his obligations pursuant to these orders or his failure to appear at the final hearing listed on 20 February 2025, the respondent mother have leave to seek to proceed with her response seeking final parenting orders on an undefended basis AND THE COURT NOTES THAT in the event such leave is granted, final parenting orders may be made in the applicant father's absence.
On 14 November 2024, I also made orders for the parties to file trial material. The father was ordered to file his trial material, comprising any Amended Application upon which he seeks to rely, and any updating Affidavits of Evidence-in-Chief by 4 pm on 5 December 2024. In addition, the father was required to pay all setting down and trial fees by 4 pm on 5 December 2024. Order 6 of those orders provided that the father file and serve any Affidavit in Reply to the Affidavits of the mother by 4 pm on 27 January 2025.
The father has not complied with any of the trial direction orders made by me on 14 November 2024. He has filed no material in compliance with those orders.
At the commencement of the hearing this day, the father was called in the precincts of the Court by my Legal Associate. There was no response to that call. The father does not appear before the Court this day.
I am informed by the Independent Children's Lawyer (“ICL”) that prior to the commencement of the hearing she telephoned the father, to ascertain his intentions with respect to today's hearing. The father informed the Independent Children's Lawyer at that time that he had no intention of participating in these proceedings.
DOCUMENTS RELIED UPON
The mother relies upon the following documents in support of her application:
(a)Outline of Case document filed 13 February 2025, which identifies at part (B) the documents relied upon by her;
(b)Further Amended Response to Initiating Application filed 16 January 2025;
(c)Trial affidavit of the mother filed 16 January 2025;
(d)Child Impact Report addendum dated 20 October 2020; and
(e)Family Report dated 7 July 2023.
The Independent Children's Lawyer relies upon the following documents:
(a)Outline of Case document filed 14 February 2025, which identifies at part (B) the documents relied upon by her;
(b)Family Report dated 7 July 2023; and
(c)Affidavit of Dr J filed 20 September 2023.
Both the mother and the Independent Children's Lawyer also rely upon the Minute of Proposed Order tendered this day, which is Exhibit R5.
In summary, the orders sought by them are as follows:
(1)That the mother have sole parental decision-making authority for major long-term issues for the children, Y and Z;
(2)That the children live with the mother;
(3)That the father spend time and communicate with the children as agreed between the parties in writing, taking into account the children’s wishes; and
(4)That there be restraints on both the mother and the father from denigrating or abusing the other, or discussing the proceedings in the presence or hearing of the children.
Orders are also sought that the mother be permitted to obtain passports for the children.
LEGAL PRINCIPLES
Rules 10.26 and 10.27 of the Federal Circuit and Family Court of Australia Rules (Cth) (“the Rules”) address the question of what powers the court has in the event of a party's default.
Rule 10.26 identifies behaviour that constitutes a default for the purposes of Rule 10.27, which includes:
(a)a failure to comply with an order of the court in the proceeding;
(b)a failure to file and serve a document required under the Rules; and
(c)a failure to prosecute a proceeding with due diligence.
The orders that the Court may make upon default are set out at Rule 10.27 of the Rules. The actions the Court may take in such event include:
(a)ordering that a proceeding be stayed or dismissed as to the whole or any part of the relief planned by the defaulting party; and
(b)in exceptional circumstances, proceeding on the non-defaulting party's evidence without hearing from the defaulting party.
Division 12A of the Family Law Act 1975 (Cth) (“The Act”) sets out the principles for conducting child-related proceedings. Of those principles, I have particular regard to:
(a)Principle 1, which provides that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
(b)Principle 2, which provides that the Court actively directs, controls and manages the conduct of the proceedings; and
(c)Principle 5, which provides that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 60CA of the Act provides that the children’s best interests are the paramount consideration in making parenting orders.
Pursuant to section 60CC(1) of the Act, in determining what is in a child’s best interests, the court must consider the matters set out in section 60CC(2). These matters are outlined as follows:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
SHOULD THE MOTHER HAVE LEAVE TO PROCEED UNDEFENDED?
The first question to be determined is whether the mother should be permitted to proceed with her application on an undefended basis. Having regard to the father's failure to comply with my trial directions, as contained in the orders of 14 November 2024, and his failure to appear at Court this day, the mother seeks leave to proceed with her application for final parenting orders on an undefended basis. That application is supported by the Independent Children's Lawyer.
Having regard to Rule 10.26 of the Rules, I am satisfied that the father is in default of my orders dated 14 November 2024 requiring him to file documents.
The father appeared in person at the Case Management Hearing conducted by Judge Blake on 6 November 2024, at which the proceedings were transferred to this Court. Hence, I am satisfied that he was on notice as to the transfer of the proceedings to this Court.
Having regard to Exhibits R2, R3 and R4, being emails from the Court to the parties notifying them of the listing before me on 14 November 2024, and responses from the father acknowledging that correspondence, I am satisfied that the father has had notice of the hearing before me on 14 November 2024.
I am also satisfied that the father has had notice of the orders made that day, having regard to Exhibit R4, being the email from the Court to the parties notifying them of the orders being uploaded to the Court's portal, and of the listing of this matter for final hearing to commence this day.
Having regard to Exhibits R1 and R3, I am also satisfied that the father has been served with the documents relied upon by the mother in support of her Application for Final Orders.
I am also satisfied having regard to Exhibit ICL1, which is an email from the Independent Children’s Lawyer to the father and the mother, that the father has been served with the documents relied upon by the Independent Children's Lawyer, and of the orders sought by her.
In light of those findings and having regard to the provisions of Rule 10.27, I am satisfied that the father's application for final parenting orders ought be dismissed, and that the mother's application, as contained in her Amended Response, should proceed on an undefended basis.
These proceedings have been on foot since September 2021. The children have been subject to numerous interim applications. There have been interim orders made, no fewer than two Child Impact Reports prepared, as well as a Family Report. In addition, as noted earlier, there have been no fewer than three occasions where the children have been overheld by the father, necessitating interim applications for their return to the mother's care. Having regard to that history, I am well satisfied that it is in the children’s best interests that the proceedings be brought to a conclusion. It is having regard to all of those matters that I am satisfied that the father's application for final parenting orders ought be dismissed and the mother have leave to proceed with her application on an undefended basis this day.
PARENTING ORDERS
I shall turn, then, to the mother's application for parenting orders. The mother's evidence as to the history of the children’s care is unchallenged. Accordingly, I accept that evidence.
The mother deposes that she has always been the children’s primary carer. She deposes that upon the parties' marriage she was responsible for the running of the family household, and the care of the children, attending to their daily care, their school and extracurricular activities, drop-offs and pick-ups, and arranging and attending to the children’s medical appointments. The children remained in the mother's care following the parties' separation.
The parties have had ongoing issues in relation to the child X’s care since their separation. X has spent time living with both parties and has also been engaged with the Department of Families, Fairness and Housing. She has not regularly attended school and has engaged in aggressive and threatening behaviour towards the mother, which has resulted in the police obtaining an Intervention Order against her for the protection of the mother and Y. X does not live with the mother but communicates and spends time with her in accordance with her wishes.
Y has not spent time, or communicated, with the father since November 2022. The mother deposes that Y maintains that she does not wish to spend time or communicate with the father. I accept that evidence.
The mother deposes that Y has experienced ongoing anxiety around school attendance, particularly since the interruptions as a result of the global pandemic, as well as the occasions when she was overheld by the father. As a result of those difficulties, Y commenced online education with M School in 2024, which she has continued in 2025. The mother deposes that Y is thriving in that program. Y is also engaged in drama classes and has a part-time job.
The mother deposes that Z continues to attend K School, and is making good progress. In May 2024, Z was diagnosed with a medical condition, which affects his knee. The mother deposes that she informed the father of that diagnosis, but that the father did not respond to that communication.
The father does not currently spend time or communicate with the children, and as such is not in a position to have any meaningful input into major long-term decisions affecting the children. In circumstances where the father has effectively withdrawn from the proceedings, and has disengaged with the children, it is my view that the children’s best interests will be served by an order that the mother have sole parental decision-making responsibility for any major long-term issues affecting them. That view is bolstered having regard to the mother's evidence that the parents do not communicate, and that the father has not responded to her when she has informed him of matters relating to the children’s health and well-being.
The children’s views as to their relationships with the father have been explored in the Family Report dated 7 July 2023, prepared by Family Consultant Ms L. At the time that report was prepared, the child Y had not spent time with the father since November 2022. At paragraph 62 of the report, the Family Consultant notes Y's report of her distressing experiences with the father, including being subjected to “constant yelling and screaming,” and an incident where the father engaged in a verbal altercation with a crossing attendant at a school drop-off.
At paragraph 63 of the Family Report, the report writer noted Y's disinterest in engaging with the father or communicating with him. Further, at paragraph 64 of the Family Report, the writer noted Y's declaration of her reluctance to see or spend time with the father. Further, she noted Y's preference to continue living with the mother.
As to the child Z, who was then aged 11, at paragraph 66 of the Family Report, it was noted that Z preferred a week-about arrangement, to enable him to live with both parents.
The Family Report writer assessed Z's views, at paragraph 86 of the Family Report, noting Z's acute awareness of being caught in the midst of his parents' conflict, and his desire for a resolution. The Family Report writer considered that it is likely that the father has exerted significant pressure on Z, to favour his proposed arrangement. She noted that such influence and pressure was evident during the emotional farewell between the father and Z following the observation session, as well as Z's own demeanour during the interview process, where he conveyed concern for his father's emotional well-being.
The recommendations of the Family Report writer included that the children continue to live with the mother, that Z spend time with the father on alternate weekends from after school Friday to the commencement of school Monday, and that any time between Y and the father occur in accordance with Y's wishes. It was also recommended at that time that the children engage with a child psychologist to address their background of trauma.
Since that report was prepared there have been significant changes in the children’s care arrangements. Z has not spent time with the father since the order suspending time in April 2024. Y has spent no time with the father since late 2022 and has strongly expressed her view that she does not wish to spend time, or communicate with him. Significantly, the father has disengaged from these proceedings and has effectively abandoned the prosecution of his application to spend time with the children.
The Independent Children’s Lawyer (“the ICL”) spoke with Z on 17 February 2025. Y declined the opportunity to meet with the Independent Children's Lawyer. At the time of his meeting with the ICL, Z informed her that his preference was to continue to live with the mother and spend time with the father.
The ICL submitted, and I accept, that in circumstances where Y has chosen not to spend time or communicate with the father, her wishes ought be respected. Having regard to the matters detailed in the Family Report, I am satisfied that orders in those terms are in Y's best interests.
As to the child Z, it was submitted by the ICL that whilst Z would have liked the opportunity to spend time and communicate with the father, the father's conduct has resulted in a suspension of the spend time arrangements. In circumstances where the father is no longer pursuing his application for parenting orders it was submitted that it is appropriate that any time between Z and his father ought be as agreed between the parties, and in accordance with Z's wishes. I accept that submission.
That view is bolstered in circumstances where there are serious concerns raised in relation to the father's mental health. A series of orders have been made over the course of these proceedings, requiring the father to engage with services. He has been ordered to attend men's behaviour change programs and parenting courses. He has also been ordered to attend for psychological assessment with Dr J. The father has declined the opportunity to engage with any of those services. As a consequence, the Court has significant reservations as to the father's insight, his capacity to be focused on the needs of the children, and generally his parenting capacity.
The evidence of the mother supports a finding that she has been the children’s primary caregiver throughout their lives and has been solely responsible for their care since the parties' separation. It was submitted, and I accept, that the mother has amply demonstrated her parenting capacity. I am satisfied that the children’s psychological and emotional needs have been met, and will continue to be met, in the mother's care.
The mother's unchallenged evidence also supports a finding that she has attended to all of the children’s physical and emotional needs. She has actively sought assistance to support them, including engaging in counselling services, and attending courses to enhance her parenting skills. Accordingly, I am well satisfied that it is in the children’s best interests that there be orders made for them to continue to live with the mother.
The mother and the ICL also seek orders restraining both parties from discussing the proceedings with the children, and from denigrating the other parent or their family members. That the mother seeks such order is a concession made by her that they are appropriate, and in the children’s best interests. In light of the common ground between the mother and the Independent Children's Lawyer as to that matter, I am satisfied that such orders are in the children’s best interests.
The mother also seeks orders that she be permitted to obtain the issue of a passport for each of the children. She deposes that she has previously sought the father's consent to such order. That evidence is contained at paragraph 130 of her trial affidavit. She relied upon Exhibit R6, being SMS text communications between herself and the father, wherein she has sought his consent to the completion of passport applications for the children. The father did not respond to that request.
It is submitted on behalf of the mother, and supported by the ICL, that the children ought have the opportunity in the future to engage in overseas travel with the mother. The mother seeks orders permitting her to apply for passports, so as to avoid any further proceedings involving the children. I am well satisfied that an order in the terms sought is appropriate. There is no evidence before the Court that the mother presents any flight risk. The evidence before the Court indicates that at every stage of these proceedings the mother has been child-focused and has actively sought to make decisions and take actions to promote the children’s best interests.
Finally, I note that orders are sought by both the mother and the Independent Children's Lawyer, that the mother have leave to provide a copy of these orders, and reasons for judgment, to any school or educational institution attended by the children. That order is sought to ensure that those providing care and support for the children have the advantage of all necessary information as to the children’s care arrangements. I am well satisfied that an order, as sought, in relation to those matters, is in the children’s best interests.
Having been satisfied as to all of those matters, I will make orders in the terms of the Minute of Order proposed by the Independent Children's Lawyer and the mother, which is Exhibit R5. Those Orders will be prepared by the Court and they, together with these ex-tempore reasons, will be published, and uploaded to the Court portal in due course.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 2 May 2025
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition, amendments have been made to make the orally delivered reasons clear and easy to read.
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