AHMED & HOK (No.2)

[2015] FCCA 2117

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED & HOK (No.2) [2015] FCCA 2117

Catchwords:
FAMILY LAW – Children – parenting orders – final orders – where respondent left Australia – where service effected in Bangladesh – where applicant believes respondent may have gone to Canada – interim orders made ex parte – best interests of the child – parental responsibility – sole parental responsibility.

Legislation:

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

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Cases cited:
Ahmed & Hok [2015] FCCA 1180

Applicant: MS AHMED

Respondent: MR HOK

File Number: SYC 594 of 2015

Judgment of: Judge Scarlett

Hearing date: 20 July 2015

Date of Last Submission: 20 July 2015

Delivered at: Sydney

Delivered on: 20 July 2015

REPRESENTATION

Solicitor for the Applicant: Ms Joshi

Solicitors for the Applicant: Parish Patience Lawyers

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. The Applicant Mother is to have sole parental responsibility for the child [X] born [omitted] 2004.

3. The child [X] is to live with the Mother.

4. The Respondent Father is to spend time with the child at such times as he shall arrange with the Applicant Mother.

5. The Respondent is advised that if he seeks to set aside or vary any of these Orders he will need to apply to the Court under the provisions of Rule 16.05 of the Federal Circuit Court Rules 2001.

IT IS NOTED that publication of this judgment under the pseudonym Ahmed & Hok (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 594 of 2015

MS AHMED

Applicant

And

MR HOK

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the Mother of a child called [X], who was born on [omitted] 2004.  The Mother and the Father are from Bangladesh.  The evidence is that the child was born in Bangladesh on [omitted] 2004. 

2. The Mother deposes in her affidavit of 4^th December 2014 that, as a minor, she was coerced into marrying her husband on [date omitted] 2001.  She claims that the marriage was illegal and invalid, but there is no evidence which would allow the Court to make such a finding. 

3. However, the Mother has given evidence that before she and the husband arrived in Australia, he was “a violent husband resorting to physical and verbal abuse”.  The Mother also claims that the Father has never cared for the child or provided for him other than the basic financial assistance as and when required.  She has always been the primary carer for her son and continues to do so.  The Mother deposes that the Respondent was mentally unstable after his father was murdered and after his family rejected a woman of his choice whom he wished to marry.  She claims the Father resented her as she was not his choice of a partner.

4. The fact is that the Father has left and his whereabouts are unknown.  The Respondent Father has left Australia.  The Mother believed that he may have returned to Bangladesh and, at a previous hearing on 4^th May, evidence was received that service was affected in Bangladesh.  However, it is the belief of the Mother that the Respondent has left Bangladesh and has gone to reside in Canada. 

5. On 4^th May 2015, I made ex parte orders after an interim hearing[1] providing that the Mother was to have sole parental responsibility for the child;  that the child was to live with the Mother;  that the Father was to spend time with the child at such times as he should arrange with the Mother;  that the Father should file and serve a response in an affidavit, if he sought to do, within 28 days;  and I listed the matter for an undefended final hearing at 12 noon on Monday 20^th July 2015.  The Respondent was advised that, if he did not attend Court on the next occasion, then orders may be made in his absence.

   [1] Ahmed & Hok [2015] FCCA 1180

6. He has not attended Court.  He has not filed any documents.  The Mother has not heard from him.  I have heard evidence from him and I have considered her affidavit evidence.  I am satisfied that it is in this child’s best interests for orders to be made for him to continue to reside with his mother.

Applications for parenting orders

1. I have considered the matters set out in section 60B of the Family Law Act 1975 (Cth), which provides for the objects and principles of Part VII of the Act. I have considered section 60CA, which provides that the best interests of the child remain the paramount consideration. I have also considered the provisions of section 60CC, which is the section that assists the court in determining what is in a child’s best interests. Again, I have considered section 61DA, which relates to the application of the presumption of equal shared parental responsibility. And I have considered section 65DAA, if it were to be appropriate.

Conclusions 

1. I am not satisfied that this is a case where I should grant equal shared parental responsibility.  In my view, there is evidence of family violence, which would mean the presumption would not apply.  The evidence also is that the Father is out of Australia and has taken no part whatsoever in the child’s life.  This is clearly a case where there should be sole parental responsibility.  It is in the best interests of this child that he should continue to live with his mother, who is his primary caregiver. 

2. If the Father wishes to spend time with the child, then he will need to make such arrangements with the Mother. I have made an order also that, if the Father seeks to set aside or vary any of these orders made in his absence, he would need to apply to the court under the provisions of rule 16.05 of the Federal Circuit Court Rules.

3. I remove the application from the list of cases awaiting finalisation.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 5 August 2015