Barker and Frederick

[2007] FamCA 758

FAMILY COURT OF AUSTRALIA

BARKER & FREDERICK [2007] FamCA 758

FAMILY LAW – CHILDREN - With whom child lives - Father’s whereabouts unknown - Father has not participated in proceedings - Presumption of equal shared parental responsibility rebutted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Barker

RESPONDENT: Mr Frederick

FILE NUMBER: DNF 131 of 2006

DATE DELIVERED: 23 March 2007

PLACE DELIVERED: Darwin

JUDGMENT OF: Strickland J

HEARING DATE: 23 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Morgan

SOLICITOR FOR THE APPLICANT: In person

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Barker & Frederick.

Orders

1. That the mother have sole parental responsibility for the child B born in November 2005.

2. That the child live with the mother.

3. That the child spend time with the father if the father lives in Darwin as agreed  between the parents in writing but failing agreement as follows:

   (a)For an hour every third day until the child turns 2 years of age;

   (b)Upon the child turning 2 years of age for 3 hours every third day;

   (c)Upon the child turning 3 years of age from 9:00am to 1:00pm every third day;

   (d)Upon the child turning 4 years of age and until the child commences school from 9:00am on Friday to 9:00am on Saturday each week;

   (e)Upon the child commencing school from 5:00pm on Friday to 5:00pm on Saturday every second week and from after school Wednesday to before school on Thursday each week;

   (f)From 9:00am to 11:00am on the child’s birthday with such further time to be agreed between the parents;

   (g)From 12 noon to 2:00pm on Christmas Day in 2006 and each even numbered year and from 9:00am to 11:00am on Christmas Day in 2007 and each odd numbered year;

   (h)Upon the child commencing school he spend the first half of the Northern Territory gazetted school holidays with the father in each even numbered year and the second half of the Northern Territory gazetted school holidays in each odd numbered year.

4. That the child is to have telephone communication with the mother every Sunday and Wednesday night from 5:00pm to 5:30pm during school holiday periods that he is with the father, and

   (a)That the mother is to initiate the call to a landline number provided by the father;

   (b)That the father is to encourage and facilitate such communication between the mother and the child.

5. That once the child attends school he have telephone communication with the father each Wednesday night from 5:00pm to 5:30pm with the father to initiate the call to a landline number provided by the mother and the mother is to facilitate and encourage such telephone communication with the father.

6. That if the child is travelling to and from the Northern Territory for the purpose of spending time with the father (after the child turns 5 years of age) then the father is to:

   (a)Book the necessary flights for the child;

   (b)Pay for all flights for the child;

   (c)Collect the child from and deliver the child to the relevant airport/s for such travel.

7. That neither parent is to take the child out of the Northern Territory of Australia without the prior written consent of the other parent provided the father’s whereabouts are known to the mother, and if the father’s whereabouts are unknown the mother does not need the prior written consent of the father to take the child out of the Northern Territory of Australia.

8. That neither parent is to unreasonably withhold his/her consent to the child obtaining a passport and will sign all necessary documents and forms for the child to obtain a passport, PROVIDED THAT if the father cannot be located the mother will be able to obtain a passport for the child without the father’s requisite signature.

9. That neither parent will denigrate the other within the sight, hearing, or presence of the child.

10. That each parent will notify the other of their current residential address and a contact telephone number and advise the other parent of any change to these details within 48 hours of such change.

11. That if the orders require amendment and the parents cannot agree on the changes to the orders then they will attend counselling or mediation in the first instance before commencing court proceedings to vary or change the orders.

12. That the child’s name B Barker-Frederick be changed to B Barker.

13. That paragraph 14 of the Form 1 Application filed by the mother on 4 October 2006 be dismissed.

14. That paragraph 3 of the orders made on 14 December 2006 be discharged.

15. Pursuant to section 62B and section 65DA(2) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A.

16. That all applications be dismissed and removed from the active pending cases list.

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNF 131 of 2006

Ms Barker

Applicant

And

Mr Frederick

Respondent

EX TEMPORE REASONS

Introduction

1. The application before me today is the mother's Form 1 Application filed on 4 October 2006.  In that application the mother sought final orders in relation to the child, B born in November 2005, and also sought orders by way of property settlement.

2. I am told that the mother is not pursuing the orders sought in relation to property settlement and is confining the application to the orders sought in paragraphs 1 through 12 inclusive.

3. Now, an order for substituted service of that Form 1 Application was made on 13 November 2006 by Registrar Dore.  That order has been complied with and I have been referred to the affidavit of the mother's solicitor filed on 14 December 2006. 

4. There has been no response from the father.  He has not filed any document, and he has not appeared at any of the hearings.

5. On 14 December 2006, I made interim orders:  firstly, that the child live with the mother; and secondly that the mother be restrained from removing the child from the Commonwealth of Australia. 

6. As part of the orders sought today, the mother also seeks that the order by way of injunction be discharged.  Briefly, at that time the mother was proposing to take the child for a holiday overseas, but her arrangements were not concrete enough to set them out in any detail, and in the meantime I made an order by way of injunction.  Ultimately the mother determined not to take the child overseas and thus no further orders are sought about that, and that is the context in which the mother now seeks the discharge of that order. 

7. The matter again came before me on 19 January 2007 when I listed it for final hearing on 22 February 2007. 

8. On 23 January 2007 and 5 February 2007, the mother's solicitor sent further correspondence to the father at various addresses, advising him of the date of the hearing, and the orders sought by the mother, and enclosing the further affidavits on which the mother was relying.  All that is deposed to in the affidavit of the mother's solicitor filed on 16 February 2007.  There has still been no response from the father.

9. The matter came before me on 22 February 2007 and was adjourned to today because I was not satisfied about the material relied upon by the mother in relation to property settlement.

10. In any event, I am prepared to deal with the matter today because the mother is no longer pursuing the orders sought in relation to property settlement and only seeks orders in relation to the children's issues.

    Background

11. The mother was born in December 1970. 

12. The father was born in October 1971.

13. The mother has a child from a previous relationship, as well as the child of this relationship.  The child from the previous relationship is L born in May 1997.  Her biological father is in Greece.  The last time that child saw her father was over five years ago, but he telephones her twice a year. 

14. The relationship between the parties to these proceedings commenced in April 2004.  The child of the relationship was born in November 2005.  The parties lived together between September 2004 and July 2006.  From September 2004 to January 2006, the parties lived together in Queensland and they moved to Darwin in January 2006.

15. The mother asserts that from the time that the parties lived in Darwin they were virtually separated but living under the same roof.  The father was working in Western Australia and at other places for a month at a time.  He was engaged in doing manual work for a company and the mother further asserts that when he was in town, he would only stay for about a week and he would sleep in another room.  Ultimately the father threatened to return to Queensland. 

16. The father has two children from another relationship and there is an issue in relation to their custody. 

17. In any event, that led to the separation of the parties on 28 July 2006 when the mother asserts that during a dispute, she told the father to leave and he did so.  The only contact the mother has had with him since is when he rang her on 29 July 2006, saying that he was in M. 

18. The mother asserts that the father left her with no car and no money.  Her position was that she, at that time, had to move in two weeks because the lease was running out.  Her lack of money created a problem and she could only get half the bond back because it was in joint names.  She needed his signature on the bond documents.

19. The mother asserts that the father has never paid child support for B and that she has not had any financial support of any nature from him since he left. 

    The current circumstances of the parties
    The father

20. Nothing is known of the father's current circumstances.

    The mother

21. At the time of the proceedings being commenced, the mother had applied for priority housing with Territory Housing.  She was living in Darwin in a three-bedroom low-set home, which unfortunately was some distance from L's school which made it difficult because she did not have a car.  That home has a fully-fenced yard and is near all modern conveniences, though the mother is, of course, hoping to move closer to L's school.

22. In terms of supervision, the child, at least at the time of commencement of the proceedings, was not attending day care and the mother was primarily responsible for supervising him.  The mother was attempting to get B into Family Day Care so that he could interact with children of his own age and develop some social skills.

23. The mother has no family or other support in Darwin and she is fully responsible not only for B but also for supervising her other child, L, when she is not at school.

24. In terms of education, L attends C Primary School and is in Year 5.  B is still too young to attend school.

25. In terms of health, the mother tells me that B and L for that matter, although I am not concerned with her in these proceedings, generally have good health. 

26. In terms of child support, as I have said, there has been none paid.  The mother has made an application for child support but she understands that the father has a debt with respect to child support for his other children, so she is not hopeful of receiving any child support from him in the future.

    The evidence

27. In terms of the evidence that the mother relies upon, there is her affidavit filed on 4 October 2006 and her affidavit filed on 13 February 2007.  She did file a Form 13 Financial Statement on 4 October 2006, but that was specifically in relation to the issue of property settlement, which is not being proceeded with.

28. I have read those affidavits of the mother, and I have not required her to give any oral evidence. 

    The law

29. I need to refer to the relevant sections of the Family Law Act, to which I have to have regarded.  Firstly, there is Section 60B of the Act, which sets out the objects of Part VII relating to children, and the principles underlying that Part.  Next there is Section 60CA which provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.  Next there is Section 60CC which sets out the factors which the courts must take into account in determining what is in a child's best interests.  And finally there is Section 61DA, which requires this court, whenever a parenting order is made, to apply a presumption that it is in the best interests of the child for the parties to have equal shared parental responsibility for the child.  However, there are circumstances where the presumption does not apply, and it can always be rebutted. 

    Discussion

30. I have read the affidavit material and heard some brief submissions from the mother’s counsel on 22 February 2007 and I am satisfied that the orders sought by the mother are in the child's best interests. 

31. I still need though to address Section 61DA of the Act, given that I will in a moment be making parenting orders and the mother seeks an order that she has the sole parenting responsibility for the child.  The mother supports that application specifically in her affidavit of 13 February 2007, and there are also relevant paragraphs in her earlier affidavit of 4 October 2006. 

32. The father's whereabouts are unknown, but the mother has made every attempt through her solicitor to apprise him of the proceedings, and as I say, an order for substituted service was made and complied with. 

33. Assuming that the father as a result of that is aware of these proceedings, he has taken no interest in them, he has not responded, he has not contacted anybody about them, and he has chosen not to take a part in them.

34. In my view there is ample evidence as to why that presumption should be rebutted and why it is in the best interests of this child for the mother to have sole parental responsibility.  The simple fact is that with the father's whereabouts being unknown, the mother is not in a position to consult with him about issues of parental responsibility and certainly she is not in a position to reach agreement about any issue of parental responsibility. 

    Conclusion

35. To her credit, the mother is not seeking to exclude the father from having a role in B’s life.  Of course, he has not chosen to take up that opportunity at this stage but to her credit, one of the orders the mother seeks is for the child to spend time with the father.  That is set out in some detail in the orders that she seeks and I am more than pleased to make that order, albeit we do not know whether the father will ever take up that opportunity.  However, I hope and trust that he does because his child needs his involvement.

I certify that the preceding
35 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 23rd day of March 2006.

……………………………………….
Associate