Armitage and Armitage - [2009] FMCAfam 1388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARMITAGE & ARMITAGE

[2009] FMCAfam 1388

FAMILY LAW – Children – interim parenting orders – where respondent did not attend Court – where presumption of equal shared parental responsibility does not apply – order for sole parental responsibility.

Family Law Act 1975 (Cth) ss.61D, 61DA, 61DB

Applicant:

MS ARMITAGE

Respondent:

MR ARMITAGE

File Number:

SYC 3563 of 2008

Judgment of:

Scarlett FM

Hearing date:

18 December 2009

Date of Last Submission:

18 December 2009

Delivered at:

Sydney

Delivered on:

18 December 2009

REPRESENTATION

Applicant:

Appeared in person

Respondent:

No Appearance

UNTIL FURTHER ORDER

Orders 1 and 2 made by consent on 25 February 2009 are vacated.
The Applicant Mother is to have sole parental responsibility for [X], born [in] 2000, and [Y], born [in] 2005.
The said children are to live with the Mother.
The application for Final Orders is listed for Final Hearing at 10:00am on Thursday 11 February 2010.
The Applicant is to pay the setting down fee or obtain a waiver of that fee by 1 February 2010.
The parties are to file and serve any or any further affidavit material upon which they seek to rely by 29 January 2010.
The Applicant is to inform the Respondent of the above orders by telephone to his mobile telephone number and file an affidavit of service by 29 January 2010.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3563 of 2008

MS ARMITAGE

Applicant

And

MR ARMITAGE

Respondent

REASONS FOR JUDGMENT

The application before the Court this morning is an application for interim parenting orders brought by the Mother. The application was filed on 29^th July 2009.
The Father, who is the Respondent to the application, has not attended Court today. There have been a number of mentions of this matter before today, on 24^th September 2009, 23^rd November 2009 and 9^th December, 2009.
The Respondent has not attended Court on any occasion. He has not attended Court today. The matter was called at one minute past 10 and again at 14 minutes past 10. In neither case did the Respondent answer the call, and he is not legally represented.
I have heard evidence from the Applicant that she spoke to the Respondent by telephone, as recently as yesterday evening, advising him of the proceedings today. She told the Court that he said to her words to the effect that he did not have any money, that the matter has to end one way or another, and he was not intending to attend Court. Indeed, he has not.
On 9^th December I made orders. The parties were advised that if there is no appearance on that day, then orders may be made in their absence. I propose to make orders today.
The history of the parties, so far as it is relevant, is that there are two children, [X], who was born [in] 2001 and [Y], born [in] 2005. Those children live with the Mother.
The parties entered into consent orders on 25^th February 2009 in which orders were made that the Mother and Father have equal shared long-term parental responsibility for the children, and that the children were to live with the Mother and spend substantial and significant time with the Father during times that were set out in orders 3 and 4 of those consent orders.
The Mother now seeks orders on an interim basis, which would provide that she should have sole parental responsibility for the children and that they should live with her. She is not seeking orders restricting contact between the Father and the children. Indeed, it is her view that she would like the Father to have more regular and frequent contact with the children. She has given evidence today that the Father last saw the children approximately four weeks ago when they spent the day with him. He does telephone them, however, on a regular basis. She does not seek to restrict the Father’s contact or communication. Quite the reverse.
There have also been concerns set out in the affidavit material relating to the threats of family violence. An interim apprehended violence order was taken out by the Local Court of New South Wales at Ryde on 5^th May 2009. The Father was required to attend Court on 8^th October 2009. The Mother has told the Court that there is no current apprehended violence order in existence, but, nevertheless, she expresses some concerns about the Respondent’s behaviour to her and expresses some fears for her safety. She does not have a current concern for the safety of the children. She has, however, told the Court of the Respondent becoming agitated and using abusive language towards her, some of which is set out in detail in her affidavits.
One difficulty that has arisen is that the Applicant believes that the Respondent has left his current employment and she does not know where he is working. She does not know where he is living on a day-to-day basis. He has told her that he stays with various family members, but she does not know the address of any family member. This is quite clearly a source of concern to her insofar as the Respondent is the father of the children. It has also caused some concern to the Mother in attempting to serve the appropriate documents on the Respondent and inform him of Court proceedings.
There is an application for divorce that is pending, and I am informed that it is listed for hearing on 18^th February 2010. In dealing with interim orders, the Court must consider the question of parental responsibility. Parental responsibility is referred to specifically in sections 61D and 61DA of the Family Law Act. Section 61DB does not apply at this stage. Under section 61DA there is a presumption of equal shared parental responsibility, but there are circumstances where the presumption does not apply. It is certainly set out that, in sub-sections 61DA(3) that, when the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
On the evidence before me, I consider that it would not be appropriate in the circumstances to apply the presumption of equal shared parental responsibility. The reasons for doing that are these:
i)The acrimonious relationship between the parties;
ii)The Father’s lack of a fixed address;
iii)The evidence of infrequency of the Father’s physical contact with the children, which is significantly less than that provided in the Court orders that are currently in force.
In my view, these factors combine to make it inappropriate to apply the presumption of equal shared parental responsibility. The fact that the Father has chosen not to file any documents in these proceedings, and not to attend Court on any occasion, reinforces my view of the inappropriateness of applying such a presumption at this stage.
Accordingly, I intend to order that the Mother should have sole parental responsibility for the children. I shall also order that the children live with the Mother. In my view, it is also appropriate that the Court should make orders for a Final Hearing in order that these issues should be brought to a conclusion. It is in the best interests of the children concerned that their situation should be settled and that these proceedings should come to an end with appropriate orders to be made and, for that reason, I have decided to list the matter for Final Hearing on Thursday, 11^th February 2010.
In the light of the fact that the Father has chosen not to file any affidavit material and not to attend Court, I consider it inappropriate to require the children to have Independent Legal Representation or to order a Family Report.
However, I am of a view that it is necessary, so that the Mother can continue in her role of being the primary caregiver of these children, that I should make the interim orders sought today.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 22 December 2009