BANNON & JERVIS

[2016] FamCA 1165

FAMILY COURT OF AUSTRALIA

BANNON & JERVIS [2016] FamCA 1165

FAMILY LAW – CHILDREN – Extempore judgment – best interests –where the applicant father seeks final orders on an undefended basis – where the father seeks sole parental responsibility for the children and orders that the children live with the father and spend time with the mother as agreed between the children and the mother – where the evidence is untested – orders made in accordance with father’s proposal.

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – where father seeks to have the matter heard on an undefended basis in circumstances where the mother has filed a Notice of Discontinuance – where the mother has filed no new material and has not participated in the proceedings since filing the Notice of Discontinuance – where procedural fairness has been afforded to the mother – application granted.

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

Allesch & Maunz (2000) 203 CLR 172

APPLICANT: 

RESPONDENT: 

Mr Bannon

Ms Jervis

FILE NUMBER: (P)DGC 3541 of 2014

DATE DELIVERED: 24 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 24 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ham

SOLICITOR FOR THE APPLICANT: Hicks Oakley Chessell Williams

THE RESPONDENT: No appearance

Orders

That upon the Court being satisfied that the father has caused a copy of his affidavit and application each filed on 21 October 2016 to be forwarded to the mother by email to her two known email addresses being … and … AND FURTHER that the said affidavit and application filed 21 October 2016 together with the interim order made in this Court on 28 October 2016 were sent to each of the maternal grandparents, Ms Jervis Snr and Mr Jervis, by registered post to their residential addresses of J Street, Suburb C VIC … and D Street, Suburb E VIC … respectively together with a letter requesting they provide the documents to their daughter and bring to her attention that the matter was next listed in the Family Court of Australia at Melbourne at 10.30am on Thursday, 24 November 2016

IT IS ORDERED THAT

1. Service be otherwise dispensed with.

2. The father be granted leave to proceed on an undefended basis.

3. All previous parenting order be discharged save for order 10 of the parenting orders made 3 August 2015.

4. The father have the sole parental responsibility for the children X born … 2001 and Y born … 2004 (“the children”).

5. The children live with the father.

6. The children spend such time with the mother as may be agreed between the children and the mother.

7. The children’s passports currently held by the Registrar of the Federal Circuit Court at Dandenong be released to the father no less than 14 days after service of these orders upon the mother and upon the father’s solicitor providing the Registrar with a letter confirming service.

8. The children be permitted to holiday outside the Commonwealth of Australia.

9. The mother within 7 days of service of these orders upon her either personally or by her agent deliver the following items to the father or the children at the father’s residence:

   (a)X’s iPad, quad bike, his magic box, and magic kits, CDs and memory box and memorabilia from previous holidays.

   (b)Y’s comforter sleeping sheet.

   (c)The children’s birth certificates and all immunisation records.

   (d)The children’s bank books for their Savings Accounts.

10. The mother pay to the solicitors for the father arrears of the children’s school fees and books including camps and excursions in the sum of $1,354.95.

11. A copy of these orders be served within 7 days upon the mother as follows:

    (a)By email forwarded to the mother’s last known email addresses namely; … and …; and

    (b)By prepaid post addressed to the mother at both of the maternal grandparents’ residential addresses being J Street, Suburb C VIC … and J Street, Suburb C VIC ...

12. The mother have leave to seek to set aside and/or vary these orders within 14 days of service as set out in order 11 hereof upon proper material including an explanation of her non-attendance on this day and 28 October 2016.

13. All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bannon & Jervis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:

Mr Bannon

Applicant

And

Ms Jervis

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. The father seeks final parenting orders in circumstances where the mother has filed a Notice of Discontinuance and her lawyers have filed a Notice of Ceasing to Act on 22 June 2016.  There are two children of the marriage: X, born in 2001 and currently aged 15, and Y, born in 2004 who is almost 12. 

2. In light of the mother’s filing of her Notice of Discontinuance, I ordered on 28 October 2016 that the father be deemed the Applicant in these proceedings.

3. In accordance with his Response filed 21 October 2016, the father now seeks the following orders:

   ·All previous children’s orders be discharged save for Order 10 of the orders made 3 August 2015 [which provides that each party be responsible for one half of the children’s school fees and books including camps and excursions];

   ·The father have sole parental responsibility for the children;

   ·The children live with the father;

   ·The children spend such time with the mother as may be agreed between the children and the mother;

   ·The children’s passports, which are currently held by a Registrar of the Federal Circuit Court at Dandenong, be released to the father, and the father and children be permitted to holiday outside the Commonwealth of Australia;

   ·Within 7 days of service of these orders upon the mother, the mother either personally or by her agent deliver the following items to the father or the children at the father’s residence:

   oX’s iPad, quad bike, his magic box, and magic kits, CDs and memory box and memorabilia from previous holidays;

   oY’s comforter sleeping sheet;

   oChildren’s birth certificates and all immunisation records; and

   oChildren’s bank books for their savings accounts.

   ·The mother pay to the solicitors for the father arrears half the children’s school fees and books including camps and excursions in the sum of $1,354.95.

Procedural fairness

1. On 28 October 2016, I ordered that, in the event that no further material is filed by the mother and the mother fails to attend court on the adjourned date of 24 November 2016, the father be granted leave to proceed on an undefended basis. 

2. I also ordered that the solicitor for the father cause the following documents to be personally served on the mother at her last known address:

   ·The father’s Response to Initiating Application filed 21 October 2016;

   ·The father’s affidavit filed 21 October 2016; and

   ·A copy of the orders made 28 October 2016.

3. On 21 November 2016, two affidavits of attempted service were filed on behalf of the father.  They indicated that a process server had attempted service of the mother on several occasions. 

4. On 23 November 2016, the father filed an Application in a Case seeking that service upon the mother of the father’s Response to Initiating Application filed 21 October 2016, the father’s affidavit filed 21 October 2016 and the Court’s Interim Order made 28 October 2016 be effected as follows:

   ·By email to the mother’s last known email addresses, being … and …;

   ·By prepaid ordinary post addressed to the mother at the residential address of her father, Mr Jervis, that address being J Street, Suburb C VIC …; and

   ·By prepaid ordinary post addressed to the mother at the residential address of her mother, Ms Jervis, that address being J Street, Suburb C VIC ….

5. The father filed an affidavit on 23 November 2016 in support of that Application, which supplied further details of the circumstances surrounding the attempted service of the mother.

6. The father deposed that on 21 October 2016, his solicitors forwarded a letter to the mother, along with copies of the documents required to be served, via post to the mother’s last known residential address at F Street, Suburb G, as well as via email to the two email addresses listed above, which are known by the father to be two email addresses of the mother.  No response was received to this letter or to these emails until 7 November 2016, at which stage the letter posted to the Suburb G address was returned to the office of the father’s solicitor, the envelope having been marked “Return to sender. Not at this address”.  The father deposed that he believes these words were written by the mother on the envelope using her left hand to disguise her handwriting.  The father deposed that he recognised her handwriting from occasions when she had played a game with X wherein she would write with her left hand and point out that her left handed writing was still clearer than his writing.

7. The father deposed that on 2 November 2016, his solicitors forwarded the documents to be served to the mother, as well as a letter addressed to the mother, to a process server.  The process server was engaged to effect personal service on the mother at the property in Suburb G.

8. The process server deposed that they first attended the property at F Street, Suburb G on 4 November 2016 at 8.30pm and found that no one was at home and the blinds were down.  The process server left his details on the front door.  Upon returning to the property on 6 November at 1.50pm, the process server found that the note he had left was gone, the blinds were up and the house was “completely devoid of furniture”.  There was now a sign in the front yard indicating that there was to be an upcoming auction.  The process server checked with neighbours, but they were unable to tell him when the mother had moved out of the property.

9. Following the failure to serve the mother at the Suburb G address, an Index Search and subsequent Title Search indicated that the mother purchased the property at H Street, Suburb I with her partner, Mr K.  The father deposes that he drove past the property on the evening of 8 November 2016 and observed the mother and her partner sitting outside a caravan on the block of land, and formed the view that the mother was now living there; this was consistent with his awareness that the mother enjoyed camping and might be residing in a caravan or tent with a view to ultimately having a new home built on the parcel of land.  Accordingly, the father deposes that the process server was supplied with a photograph of the mother, a description of her motor vehicle including the license number, and was advised that the mother has a dog who goes everywhere with her, such that if her vehicle and the dog were both present at the property when service was attempted, the mother would also “most definitely be present”.

10. The process server deposed to attending the property at H Street, Suburb I, at 5.20pm on 9 November 2016 attempting to serve the mother.  Upon attending the property on 9 November 2016, the process server noted that one of the several vehicles at the property was a green 4WD, which is the vehicle the mother is known to drive.  The property was a “large bushland property” with a “caravan and a tent upon it”, surrounded by a fence.  Upon approaching the caravan, the process server noted that a light was visible through the curtained windows, and upon knocking, dogs began barking inside the caravan and pushing against the inside of the door.  The process server walked around the vehicle and was unable to see anything other than the light, and deposed that when they knocked on the door again, the dogs continued barking “except that they quite suddenly became quiet and moved away from the door”, leading to the impression that “someone inside made the dogs stop barking”.  The process server left the property and drove away, but turned around and returned to park further up the road and watched the property until 6.30pm, but failed to see any movement.  The only available parking location was one that rendered the process server visible from the caravan.  The process server deposed that they returned to this property on 11 November 2016, at around the time between 10.30 and 11.00am, and found the gates to the fence locked and the green 4WD and a different vehicle present at the property that was not there previously.  The process server deposed that the neighbour, “Ms M”, was “unable to assist with the [mother’s] movements but confirmed that it is she who is now living there”.

11. The father deposed that on 18 November 2016, his solicitors sent a letter to the mother along with the relevant documents required to be served to each of the mother’s parents.  The letter requested that the recipient provide the letter and documents to the mother and bring to her attention the upcoming listing of the matter before this Court.  The father gave oral evidence to the effect that the mother has a good relationship with each of her parents.

12. The father deposed that he has no other means of contacting the mother aside from providing information by prepaid post to her parents and by sending information to her last known email addresses. 

13. As High Court authority makes plain (Allesch & Maunz (2000) 203 CLR 172), where a person’s interests may be adversely affected by a Court’s decision, that person must be given the opportunity to place before the Court material and submissions before a decision is made. However, as Kirby J emphasised, what is important is the opportunity to be heard. As his Honour observed, at [38]:

    …Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require. 

14. In the circumstances, and on the basis of the evidence adduced by the father and the process server, I am satisfied that the mother has been accorded procedural fairness and that it is appropriate to grant the order sought by the father in his Application in a Case seeking that service be effected upon the mother through the methods listed. I am satisfied that it is appropriate to dispense with any further service upon the mother and to proceed with this application on an undefended basis.

Documents relied upon

1. The father relies upon his Response to Initiating Application filed 21 October 2016 and his affidavits filed 21 October 2016 and 23 November 2016.

Background

1. The parties married in 1998, separated in June 2014 and were divorced on 15 December 2015. 

2. Following separation, the children initially spent equal time with each parent.  Final property and parenting orders were made on 3 August 2015.  The parenting orders provided for a week about arrangement, with the children to spend up to two uninterrupted weeks with each parent in the school holidays.  However, that arrangement has now comprehensively broken down. 

3. The father sought to take the children overseas to the USA during January 2016; travel which was opposed by the wife and which was the subject of further proceedings.

The unchallenged evidence

1. I accept the unchallenged evidence of the father in the following terms.

2. The father deposes that the children have now lived with him since March 2016 and since April have not had any contact with the mother in accordance with their wishes.  He deposes that the children have consistently refused to stay with the mother and that she has not sought to communicate with them since June 2016. 

3. The father deposes that he seeks sole parental responsibility for the children because the mother does not respond to matters relating to the children and she is not prepared to attend counselling or attempt to improve her relationship with the children.  He deposes that the mother has paid no child support and has not made any significant education payments for the children which were agreed and ordered by the Court for this year.

4. The father deposes that following orders made on 16 October 2015, the children’s relationship with the mother deteriorated significantly, and the children ran away from her on several occasions.  The father deposes that “no amount of persuasion” on his part could encourage the children to spend time with their mother.  

5. The father deposed that on 16 December 2015, orders were made for the preparation of a family report and that in the interim, the children were to spend nine days per fortnight with the mother and five with the father.  The father was to deliver the children to the mother’s home in accordance with the orders on 18 December 2015.  The father deposes that he did so, and that later the same day, he received a phone call from the paternal grandmother stating that the children were with her, having run away from the mother.  The father deposes that the mother refused to collect the children from the paternal grandmother’s home on that day or the next day, but that on 19 December the children met with their mother at a fast food restaurant and reached an agreement with the mother to try to make their relationship work.  According to the father, the children were unhappy about the mother “bullying them and ordering them about”.

6. The father deposes that at that meeting it was agreed that the children would spend four days with the father and then two days with the mother on an alternating basis, and that time could be increased if her approach to the children changed.  The father deposes that this “worked for a short time”.

7. The father deposes that he took the children overseas pursuant to court orders and that soon after their return in January 2016, the arrangement with the mother broke down.  The children’s complaints included that the mother yelled and screamed at them, preferred to spend time by herself or with her new partner than with them, and that she drank heavily.

8. Pursuant to court orders made on 30 November 2015 permitting the father to take the children on a holiday to the United States in January 2016, the father was required on his return to lodge the passports for the children with the Registrar of the Federal Circuit Court at Dandenong and orders were made that they not be released without court order or agreement in writing.

9. The father deposes that the children ran away from the mother on a number of occasions, often to the paternal grandparents.  He deposes that he invited the mother to counselling with the children on several occasions but that she did not respond to these invitations.  He deposed to the children becoming frustrated that the counsellors were not listening to them and that he tried to encourage the children to have a relationship with their mother but that “their experiences with her did not help.”

10. The father referred to the most recent family report prepared by Ms Q, in which the report writer made the following recommendations:

    ·Children should live with the father;

    ·For a period of at least two school terms, the children spend alternate weekends between Friday and Monday with mother and then alternate Mondays to Wednesdays with her. Mother ensure children arrive on time at school and all activities such as homework be undertaken;

    ·When this arrangement has continued for two school terms and the parents have participated in family therapy with the children, then an arrangement such as 5 nights per fortnight – three weekend nights and two weeknights – with the mother could then proceed for a further two school terms, after which the children might then spend six nights a fortnight – four nights over a weekend and two weeknights – in her care;

    ·The children should spend half school holidays with each parent but this should be gradually introduced;

    ·The parents attend a family therapist experienced in family therapy such as Ms N, Ms O or Ms P, to include the children in addressing the family relationships and building a co-operative parenting relationship;

    ·Y continue attending school-based counselling as necessary;

    ·The parents attend parenting education that has input concerning adolescents.

1. On 23 March 2016 an incident occurred at Y’s school which caused Y to become extremely upset.  This caused the father to take him for a psychiatric assessment.  The father was advised to keep Y away from his mother and to have the child stay with people with whom he felt safe. 

2. The father deposes that by April 2016, the mother had ceased communications with the children and was no longer answering their messages and that she refused all proposed counselling with the children.  He deposes that since 23 March 2016 when the mother attended the schools of both children, there has been very little contact between the mother and children, and the mother “has made her position very clear that she no longer seeks a relationship with the children”.  The father also deposes that the mother pays no child support and has made none of the education payments agreed and ordered by the Court for either of the children in the latter part of this year.

The relevant law

1. These proceedings are brought under Part VII of the Act.  In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.

2. What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the child’s best interests

1. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

Primary considerations

1. The primary considerations are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[1]

   [1] Family Law Act 1975 (Cth) s 60CC(2A).

3. In this case there are no proposals by the mother and on the unchallenged evidence of the father, I am satisfied that there is a benefit to the children in having a meaningful relationship with the father in the terms of the orders he proposes.  There is no evidence that the children will not benefit from a meaningful relationship with the mother should the children wish to spend time with the mother by agreement.

4. I am satisfied that the parenting orders proposed by the father have the potential to provide for a meaningful relationship with the mother should the children wish to spend time with her. 

5. It is not asserted that the children require protection from the mother notwithstanding the incident at the school.

The additional considerations

1. The additional considerations are listed at s 60CC(3) of the Act.  I have referred to only those which are relevant to the facts and circumstances of this case.  There are no intervention orders applicable.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The views of the children on the unchallenged evidence is that they do not wish to spend time with the mother at present and this is supported by their actions in having run away from the mother in the past.

Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)

1. The nature of the relationship between the children and the mother on all of the evidence has broken down since March 2016 and there has been no contact with the mother since the children moved to live with the father full-time. There are no proposals made by the mother for the care of the children.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. On all the unchallenged evidence the mother has discontinued her involvement with parenting the children and the children have been resistant to spending time and communicating with her.  The father has taken sole responsibility for the care of the children since they have been living with him on a full-time basis.  The mother has not been involved in making parenting decisions about the children since March 2016 and makes no proposals.

Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. The children live with the father and he has been solely responsible for the maintenance of the children and has paid all of their educational expenses.  I accept the father’s unchallenged evidence that the mother is in arrears for the payment of the children’s school fees and school excursions and books in the sum of $1,354.95.

Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The children have been living in the full-time care of the father since March 2016 without communication with the mother and have not spent time with her since then in accordance with their wishes.  The father’s proposed orders would not change this situation and provide for the children to spend time with the mother as agreed between the mother and the children.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. On all the unchallenged evidence there are no practical difficulties or expense for the children spending time with and communicating with the mother which would operate as an impediment to the children spending time with her. However there are no proposals by the mother.

Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. On all the unchallenged evidence I am satisfied that the father has the capacity to provide for the needs of the children including their emotional and intellectual needs. 

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. In recent time the mother has not undertaken any responsibilities regarding the parenting of the children and the father has undertaken all those responsibilities.

Parental Responsibility

1. Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. Section 61DA of the Act is a mandatory presumption that it is in the best interests of the children that the parties have equal shared parental responsibility. 

3. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. 

4. In all of the circumstances I am persuaded there has been a history of conflict between the parents and there is no cooperation. The children’s relationship with the mother has broken down and they have not communicated with her or spent time with her since March 2016. On the unchallenged evidence of the father the mother has not contributed to the children’s educational expenses this year and is not responding to matters relating to the children. The mother does not make any proposals and does not challenge the evidence.

5. On all of the unchallenged evidence of the father I am satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.

6. As I propose to make an order for sole parental responsibility for the father the mandatory requirements of s 65DAA of the Act do not apply.

Conclusion

1. There are no proposals by the mother.

2. I am satisfied that it is in the best interests of the children to make final parenting orders as proposed by the father on the unchallenged evidence before me for the reasons previously outlined. 

3. Counsel for the father sought that I reserve the question of the father’s costs of this application but in all the circumstances I do not consider it appropriate to do so. These are final parenting orders and although the father proposes that an order be made providing for the mother to have leave to seek to set aside and/or vary the orders within a specified time limit upon the filing of proper material including an explanation of her non-attendance on the day of the hearing and 28 October 2016, I consider that the usual order should be made that the father bear his own costs of the application. 

4. I propose to dismiss all outstanding applications regarding these proceedings to bring finality to the litigation.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 24 November 2016.

Associate: 

Date:  8 March 2017