Ashton and Anor and Nettleton

[2007] FamCA 252

FAMILY COURT OF AUSTRALIA

ASHTON AND ANOR & NETTLETON [2007] FamCA 252

FAMILY LAW - CHILDREN - Orders

1st APPLICANT: Mrs Ashton 

2nd APPLICANT: Mr Ashton

RESPONDENT: Mr Nettleton

FILE NUMBER: LNC 95 of 2007

DATE DELIVERED: 13 March 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 March 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Gibson

SOLICITOR FOR THE RESPONDENTS: No appearance

Orders

1. THAT personal service of these proceedings upon the respondent father be dispensed with.

2. THAT the mother and step father have joint parental responsibility for the child, a son, born on August 2003 (“the child”).

3. THAT the applicants be permitted to relocate the residence of the child with the mother and step father from Tasmania to Singapore.

4. THAT the parties be permitted to leave the Commonwealth of Australia notwithstanding that the consent of the father has not been obtained.

5. THAT the mother and step father have parental responsibility such as to obtain a passport for the child in the absence of consent of the father.

   IT IS NOTED

6. THAT this is a matter where the presumption under s61D(a) of the Family Law Act is rebutted

7. THAT these orders are intended to confirm that the persons responsible for the issue of any passports or visas for the child are the applicants the mother and step father.

8. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations 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.

   IT IS DIRECTED

9. THAT a transcript of the reasons for these orders be taken out and placed on the Court file.

10. THAT all exhibits remain on the Court file.

11. THAT a copy of these orders be forwarded by the applicants or on their behalf to the last known address of the father including by email within fourteen days from the date of these orders.

12. THAT the father be given leave to apply in respect of these orders within a further period of fourteen days from the date of service by post or by email.

    IT IS CERTIFIED

13. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 95 of 2007

MRS ASHTON and MR ASTHON

Applicant

And

MR NETTLETON

Respondent

REASONS FOR JUDGMENT

1. This is an application commenced by the child’s mother and stepfather seeking parenting orders under Part VII of the act with regard to the child born on August 2003, who is now aged about three and a half.

2. The respondent to the proceedings is the child’s father.  There is no evidence of personal service of the application upon the father.  However there is evidence by documents tendered to me today that the application has been made available to him and in particular that the father of the child knows of these proceedings and has chooses not to participate in the proceedings.

3. I am satisfied, based upon the material that is provided before me, and in particular the oral evidence given by the applicant mother today - the applicant mother asserts in her affidavit that she seeks a joint parenting order in respect of the child between herself and her husband.  She said that she married her present husband, who is the joint applicant, in January 2005, after having commenced living together in November 2003.

4. Her evidence, which is uncontradicted, is that the child has not had any contact at all with his biological father and that the child was conceived after a short relationship in December 2002.

5. The applicant mother filed an application in the Local Court, C, in May 2004, seeking a change of the surname for the child and an order was made in that respect.

6. She was granted leave to dispense with service of the application on the biological father.

7. The further evidence is that the applicants now have two children, R and A, and they are expecting their third child in April 2007.

8. The applicants are moving to Singapore as a consequence of a change of employment of the stepfather.  He has been in Singapore recently and has returned briefly to Australia.

9. The evidence before me is that the child has been cared for by the applicants since at least 2003 and that he has been well cared for.

10. Having regard to the best interests of the child, I am satisfied that the child has a meaningful relationship with his biological mother and the second applicant.  On the evidence before me it is clear that the biological father has no interest in being involved in the child’s life. 

11. There is no need to protect the child from physical or psychological harm on the evidence before me.  The child is at an age where his views do not constitute significant weight in terms of the relationship with each of his parents. 

12. I refer to the matters I have already set out above.  He has a relationship with his biological mother and her husband but has no relationship with his biological father.

13. There is no evidence as to the willingness of each of the parents to facilitate or encourage a relationship with the other parent, although this must be seen in the context that the biological father resides in Wales and has expressed no interest in the child.

14. The orders are not likely to change the circumstances of the child with those who care for him and in terms of the practical difficulty and expense of the child spending time with his biological father, that has not proved to be an issue in the past and it would seem would not prove to be an issue in the future.

15. On the information or the facts before me, I am satisfied that the applicant mother has a capacity to care for the child and that the respondent biological father has shown no capacity for care for the child.

16. I reflect all of these matters in regard to the other factors under section 60CC(3).  I have had regard to the extent to which each of the child's parents have fulfilled or failed to fulfil their responsibility in respect of caring for and participating in the parenting of the child in accordance with section 60CC(4) and section 60CC(4)(a), and it seems to me that the orders sought by the applicants are appropriate.

17. I intend to make these final orders.  I intend to direct service of the orders upon the biological father and give him leave to apply if he chooses within a short period of time.

I certify that the preceding 17 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:   

Date:  13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ASHTON & ANOR & NETTLETON