ABBAS & BARTON

[2015] FCCA 2693

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABBAS & BARTON [2015] FCCA 2693

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the child – parental responsibility – where respondent did not attend court on hearing – where respondent a citizen of (country omitted) – where applicant fears respondent may seek to remove child from Australia – child’s name placed on Family Law Watch List.

Legislation:

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

Federal Circuit Rules 2001, r.13.03C

Applicant: MS ABBAS

Respondent: MR BARTON

File Number: CRC 46 of 2015

Judgment of: Judge Scarlett

Hearing date: 25 September 2015

Date of Last Submission: 25 September 2015

Delivered at: Coffs Harbour

Delivered on: 25 September 2015

REPRESENTATION

Solicitor for the Applicant: Mrs Tanner

Solicitors for the Applicant: Coffs Coast Family Law

Respondent: No appearance

ORDERS

1. All previous parenting Orders are discharged.

2. The child X born (omitted) 2013 is to live with the Applicant mother.

3. The mother is to have sole parental responsibility for the child X.

4. The father is to spend time and communicate with the child as agreed between the parents.

5. Each of them MS ABBAS and MR BARTON and their servants or agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X a male born on (omitted) 2013 from the Commonwealth of Australia.

6. IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two (2) years.

7. Upon the expiration of the period referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 46 of 2015

MS ABBAS

Applicant

And

MR BARTON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting Orders by the mother of a little boy called X, who was born (omitted) 2013. The father has not attended Court on any of the three occasions that the matter has been listed. He has not filed a Response or any affidavit or even a Notice of Address for Service.

2. It is high time for this matter to be finalised.

Orders Sought

1. The mother seeks orders that:

   a)The child should live with her;

   b)She should have sole parental responsibility; and

   c)The father should spend time and communicate with the child as agreed between the parents.

2. It also transpired from the mother’s evidence that she has some fears that the father, who is a citizen of (country omitted) whose visa status in Australia is uncertain, may seek to remove the child to (country omitted).

Background

1. The mother was born in Australia on (omitted) 1975. The father was born in (country omitted) on (omitted) 1981.

2. The parties met in 2009 and commenced living together shortly thereafter.

3. There is one child of the relationship, X, who was born on (omitted) 2013. X has been in the primary care of the mother all of his life.

4. The parties separated in September 2014. The mother moved to the nearby suburb of (omitted), where she and the child live with her father.

5. The mother commenced proceedings by filing her Application and supporting documents on 2 March 2015. The Application was returnable on 14 April 2015. The mother attended Court on that day accompanied by her solicitor. The father did not attend.

6. The Court made interim orders providing that:

   a)the child should live with the mother;

   b)the father could spend time and communicate with the child as agreed between the parents;

   c)the child was restrained from leaving the Commonwealth of Australia;

   d)the child’s name was to be placed on the Airport Watch List maintained by the Australian Federal Police for a period of two years; and

   e)the Application was adjourned to 7 July 2015 for mention.

7. On 7 July 2015 the mother attended Court with her solicitor. There was no appearance by or on behalf of the father. His Honour Judge Kemp listed the matter for an undefended hearing on 25 September 2015.    

Evidence and Submission

1. The mother relied on her affidavit of 20 January 2015. She also gave oral evidence.

2. The mother does not know where the father lives. She deposed that he has only seen the child on about five occasions, usually only for about twenty minutes to an hour at a time.

3. The mother has some concerns about the child’s welfare in the care of the father. The father used to drink quite heavily when he lived with her and did not take an active role in the care of the child.

4. The mother also has a concern that the father leads a peripatetic lifestyle, moving around Australia (occupation omitted). She does not know his permanent address, if he has one.

5. The mother also expressed concern about the father’s visa status. He is a citizen of (country omitted) who she believes has overstayed his student visa. He said to her on two occasions in December when he telephoned her that he feared that he would be deported.

6. The mother has a concern about the father possibly wishing to remove the child from Australia. She deposed that on one occasion not long after the child was born the father said to her:

   “You know if you feel like you need help we can send X to live in (country omitted) with my mother she can care for him till he is 3 or 4 and you can go back to work”.[1]

   [1] Affidavit of Ms Abbas 20.1.2015 at paragraph [10]

Applications for Parenting Orders

1. When a Court is asked to make a parenting order, it must have regard to the matters contained in Part VII of the Family Law Act 1975 (Cth), including:

   a)Section 60B;

   b)Section 60CA, which prescribes that the court must regard the best interests of the child as the paramount consideration;

   c)Section 60CC;

   d)Section 61DA, dealing with the presumption of equal shared parental responsibility; and

   e)Section 65DAA.

2. All of those matters have been considered, so far as they are relevant.

Conclusions

1. The child is not yet two years of age. He has lived with his mother all of his life. He lives with his mother and maternal grandfather. He sees his father intermittently, for short periods of time, which is due to the peripatetic lifestyle of the father. The mother is conscious of the need to facilitate the child’s relationship with his father but is mindful of the child’s welfare. There has been no overnight time between father and child, nor should there be at this stage because of the mother’s concerns over the father’s visa status in Australia and the fact that she does not his address.

2. I am satisfied that this is a case where the mother should have the sole parental responsibility for the child and that he should live with her. There is nothing to support any increase in the father’s time with the child at this stage.

3. I propose to vacate the earlier parenting orders and the earlier injunction on the child being removed from Australia with his name on the Watch List and substitute some final orders in favour of the mother, including a fresh Watch List Order to be in force for a period of two years from today.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  1 October 2015