Arabatzis & Severino & Anor

[2012] FamCA 862

FAMILY COURT OF AUSTRALIA

ARABATZIS & SEVERINO AND ANOR [2012] FamCA 862

FAMILY LAW – CHILDREN – Application by the paternal aunt in circumstances where the child’s parents are missing – Best interests.

Family Law Act 1975 (Cth)

APPLICANT: Ms Arabatzis

FIRST RESPONDENT: Mr Severino

SECOND RESPONDENT: Ms Severino

INDEPENDENT CHILDREN’S LAWYER: Tim Mulvany

FILE NUMBER: MLC 6602 of 2012

DATE DELIVERED: 5 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 5 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid   

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Mulvany

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAYWER:

T J Mulvany & CO

IT IS ORDERED BY CONSENT OF THE APPLICANT AND THE INDEPENDENT CHILDREN’S LAWYER AS FOLLOWS:

1. That pursuant to Rule 7.18(1)(b) of the Family Law Rules 2004, service of the documents in these proceedings upon the father (First Respondent) and the mother (Second Respondent) be dispensed with.

1. Conditionally upon the Applicant  Ms Arabatzis continuing to reside at such address as has been disclosed to the Independent Children’s Lawyer, the Applicant exercise parental responsibility for the child  D born the … April 2000 (“the child”).

2. That the Independent Children’s Lawyer be at liberty to provide a copy of this Order to and discuss these proceedings with:

   3.1Any educational and/or medical and/or allied health professional assisting the child.

   3.2Any officer of the Department of Immigration and Citizenship.

   3.3Any officer of the Department of Human Services – Victoria.

   3.4Any officer of the Consulate of Sri Lanka.

1. All extant proceedings be adjourned for Mention on the 14^th day of February 2013 at 9.00am before Justice Macmillan.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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 these particulars are included in these Orders.

THE COURT NOTES:

That the Independent Children’s Lawyer intends to ascertain the legal provisions in Sri Lanka relative to the provision of a Death Certificate for a missing person.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arabatzis & Severino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6602 of 2012

Ms Arabatzis

Applicant

And

Mr Severino and Ms Severino

Respondents

REASONS FOR JUDGMENT

1. I have before me today an Initiating Application which was filed on 23 July 2012 in which the paternal aunt seeks sole parental responsibility for her nephew, D, (“the child”), born in April 2000. 

2. That application also seeks interim orders dispensing with service of the application upon the child’s biological father and mother, Mr Severino and Ms Severino.  The child came to Australia from Sri Lanka in July 2008 in circumstances where the paternal aunt received a telephone call from a person who said that he had brought the child to Melbourne airport and that she should collect him there.  He has lived with his aunt since that time.

3. There has been no contact at all with the child’s father since December 2007, and the last contact that the paternal aunt had with his mother was in March 2010.  It is the aunt’s evidence that prior to that time the child’s mother had been telephoning on a fortnightly basis, and that she has simply stopped making those calls without any warning or explanation. 

4. The last known telephone number is no longer connected.  Friends and family have searched for the child’s mother but without success.  There was also a tracing inquiry sent by the Red Cross but there was also no result from that inquiry. 

5. In all of the circumstances, I am satisfied that I should dispense with service, and I will make an order doing so., I am also satisfied that I should make the orders in accordance with the minute of orders which has been prepared which provides for the child to continue to reside with his aunt and for her to have parental responsibility for him until the matter returns to Court in February next year.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 5 October 2012

Associate: 

Date:  11 October 2012