BARRETT & KYNASTON

[2019] FamCA 221

FAMILY COURT OF AUSTRALIA

BARRETT & KYNASTON [2019] FamCA 221

FAMILY LAW – CHILDREN – Parenting – Unopposed final orders – Sole parental responsibility.

Family Law Act 1975 (Cth)

APPLICANT: Ms Barrett

RESPONDENT: Mr Kynaston

FILE NUMBER: MLC 14025 of 2018

DATE DELIVERED: 3 April 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schmidt

SOLICITOR FOR THE APPLICANT: Community Legal Centre

THE RESPONDENT: No Appearance

Orders

1. The mother have sole parental responsibility for X, born … 2013 (“the child”).

2. The child live with the mother.

3. For the avoidance of doubt, the mother has sole parental authority to apply for and obtain a passport for the child and to take the child outside the Commonwealth of Australia.

4. That my reasons for decision be transcribed.

5. The mother’s application filed on 8 March 2019 be and is hereby otherwise dismissed.

6. That pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders

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 Barret & Kynaston 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

FILE NUMBER:

MS BARRETT

Applicant

And

MR KYNASTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

REVISED

1. This matter comes before me in a judicial duty list.  It is the mother’s application filed on 8 March 2019 in which she seeks sole parental responsibility for the child, and that the child live with her and such further other orders as the Court considers appropriate.

2. The mother attends Court today and is represented by Mr Schmidt of counsel.  The father does not attend court. He was called at the door of the Court at the commencement of today’s sittings, and there was no response to the call. 

Procedural Fairness

1. The matter was before Registrar Mestrovic on 20 February 2019 when she made orders for substituted service. It was required that the mother’s amended initiating application and her affidavit in support be sent, by no later than 15 March to the father by ordinary post to his last known address, by email to a specified address and by Facebook Messenger.  Following service and by 29 March 2019, the respondent father was to make, file and serve documentation in response.  No documentation has been filed by the father.

2. By paragraph 6 Registrar Mestrovic ordered:

   If the father fails to file a response in accordance with order 3 and/or fails to appear (whether in person or via a legal practitioner) on the adjourned date, the mother may seek leave to proceed with her application on an undefended basis on the adjourned date.

3. It was noted by the Registrar that the mother anticipated that she would amend her application to seek sole parental responsibility on both an interim and final basis and orders, in the alternative, to enable her to travel with the child outside Australia.  I have read the affidavit of the mother sworn on 27 March 2019.  It would have more properly be sworn by the person who attended to the execution of the attempted service which was the mother’s solicitor.  However, this is a parenting matter and the rules in relation to hearsay are relaxed by virtue of Division 12A.  The mother deposes that her solicitor emailed a covering letter and the relevant documents to the father using a specified email address on 20 March.  That message bounced back as being “undeliverable”.

4. The mother deposes that she does not know of any other email address to which documents could be sent to so that they would come to the attention of the respondent father.  It is further deposed that on 20 March 2019 the mother’s solicitor sent documents together with a stamped self-addressed envelope to the respondent by ordinary post to the address where the applicant mother believes that the respondent works in C Town.  Those documents have not been returned.  No acknowledgement of service has been received.

5. The mother deposes that on 20 March 2019 she sent documents via Facebook Messenger to the respondent’s Facebook account.  She deposes to being able to identify this Facebook account as the respondent’s account because of the account that she had previously communicated with him when they were in a relationship.  She has received no response from the respondent father to the Facebook message.  On 27 March 2019 she attempted to access her Facebook Messenger to screenshot the documents which she had sent to the respondent, and the respondent had blocked her account.  I am asked by Mr Schmidt, counsel for the wife, to infer that the father blocked the mother’s access to his Facebook account following the documentation coming to his attention. 

6. One matter not raised by Mr Schmidt, although it should have been, was that the Order of 20 February 2019 provided for substituted service by no later than 15 March 2019. That has not been complied with.  The documentation upon which the wife relies to prove service specifies clearly that all of the steps for substituted service were done on 20 March 2019.  It is therefore necessary that I consider whether the wife should be able to rely on those matters which her solicitors have done to bring the documents to the attention of the father as sufficient compliance with either the Order made by Registrar Mestrovic on 20 February 2019 or the principles that apply generally to such orders.  I am satisfied that the steps taken by the mother, as contemplated by the Registrar, (although five days late) constitute a reasonable effort by the mother to bring the proceedings to the attention of the father.  Indeed, on the evidence which is produced to me, there is nothing more that she can apparently do. Persons served with documents are not compelled to participate in proceedings.  The requirement is to accord a respondent to an application procedural fairness.  That is a fair opportunity to respond and put their case before the Court.  It is, by no means, compulsory that they do so. 

7. I find that the documents have been sent as deposed to by the wife and that, notwithstanding that they were sent or transmitted late, that is adequate service.

8. I am satisfied that the father has been accorded procedural fairness of the application which is before me today.

Parenting Orders – Relevant History

1. Turning to the application, I have read the affidavit of the mother sworn on 6 March 2019.  She deposes to having lived in Australia since 2008.  She came here with her family as a refugee under the Humanitarian Program from Country D. The mother has been an Australian citizen since 2014.  Whilst not in the affidavit material, Mr Schmidt tells me from the bar table that the mother has undergone some studies in Australia.  She has Certificate III and IV qualifications in healthcare and she has aspirations to commence further training with a view to being employed in that capacity.

2. The mother deposes to having met the father in or about early 2012 in Melbourne. At that stage, the father would have been about 28 years old and the mother would have been about 18 years old.  They cohabited briefly but otherwise maintained a long-distance relationship necessitated by the father living and working in C Town in New South Wales. 

3. The mother deposes that when she informed the father that she was pregnant and carrying his child he denied paternity but later, and upon the birth of the child in  2013, the father responded to a request by the mother’s aunt that he come to Melbourne to see the child.  The father duly did so and signed the birth certificate.  The mother deposes that:

   He has not seen [the child] since.

4. The mother deposes to having herself last seen the father in October 2013 when the child was some three months old.  She says that she was visiting C Town and she met with the local pastor who suggested that she talk to the father.  The mother deposes;

   15.On about the first week of October 2013, I contacted the Respondent and agreed to meet him, at his then home, [B Street, C Town].

   16.At that meeting, the Respondent and I were arguing about [the child]. I asked the Respondent to be a father for [the child], but he refused and said he did not want anything to do with [the child] or me. The argument escalated and the Respondent assaulted me. The Respondent grabbed me by my hair and slapped my face/head twice. The Respondent continued to abuse me verbally in an aggressive manner. He then stuck me with an electrical extension cord, causing an injury to my lip. I called the Police who attended. I went to hospital for treatment.

   17.On 29 October 2013, because of the assault on me by the Respondent, an Apprehended Domestic Violence Order was consented to by the Respondent at the Local Court.

   18.The Respondent breached the Order by calling me. He insulted me but I did not report the breaches to the Police as I did not want to cause further trouble.

   19.Since early 2014, I have no contact with the Respondent. The Respondent has never spent time with [the child] or requested to spent time with him. I know that the Respondent has visited Melbourne, Victoria many times, but he has never tried to see [the child] or me. The Respondent has never contacted me to discuss [the child] and not been involved in any decisions regarding him, his care or welfare.

   20.In 2015, I contact the Child Support Agency and I started to receive child support payments from the Respondent.

   21.In late 2016, I applied for a passport for [the child] as I wanted to travel overseas to see my family in [Country D]. The application was rejected as it did not have the consent of both parents.

   22.On or about 28 February 2017, I went to the Community Legal Service for assistance to obtain the Respondent's signature for a passport for the child.

5. The mother proposes to travel with the child to Country D.  She deposes to being unable to obtain a passport for the child because the respondent has refused to give his consent to the issuance of a passport.  The mother deposes; 

   29.In a letter from DFAT dated 23 July 2018, they rejected the Application for a passport for [the child]. The Passport Office has contacted the Respondent and he had refused to give consent.

   30.I am advised that the decision of the Passport Office cannot be reviewed.

   31.I intend to travel in the future to visit my family who still live in [Country D] and I need to take the child with me, as I want him to understand where I come from and to meet his extended family.

   32.Due to the cost of travel ·to [Country D], I do not intend travel to [Country D] on a regular basis. When I do go to [Country D], I would probably stay for 6-8 weeks I would visit the homes of family, who live in [City E], [City P] and [City T] in [Country D]. I would stay with those family members at their homes. The child would stay in my care throughout the trip.

   33.I am aware of the travel risks of travelling to [Country D] as identified on the Department of Foreign Affairs and Trade Smart Traveller website. I will avoid putting the child and myself at risk during my trip. I would not be attending any public gatherings where there is a likelihood of civil unrest. My primary purpose of going to [Country D] is to see my family who I have not seen since before I came to Australia in 2008. I intend to purchase comprehensive travel insurance for the child and myself to travel to [Country D], as I am aware that medical facilities in [Country D] are inadequate.

   34.I do not intend to stay in [Country D]. I will return to Australia with the child after the trip is completed. My trip to [Country D] is a holiday only. I am an Australian citizen, as is [the child] and I intend to live in Australia.

   35.It is my intention that [the child] get an education in Australia. He is currently enrolled in the local primary school in Melbourne. Once he has finished primary school and provided, I will enrol him in the local secondary school.

   36.I want to be in the position where I have sole care and responsibility regarding all major long-term decisions for [the child]. I do not want to have to attempt to obtain the Respondent's input for any long-term decisions, as he has demonstrated that he does not want to be involved in [the child’s] life.

   37.I will keep the Respondent informed as to the long-term decisions that I make for the child if the Respondent advises me that he wants to be kept informed.

   As with any parenting application, I must make orders which are consistent with the best interests of the child.  The best interests of the child is the paramount consideration. 

6. When determining what is in the best interests of the child, I have regard to the two primary considerations which are whether the child will benefit from maintaining a meaningful involvement with both parents and what is necessary to protect the child from physical or emotional harm.  Of those two considerations, it is the protection of the child from physical and emotional harm which is given priority. 

7. There are a number of additional considerations which also inform my assessment of what is in the child’s best interests.  In this case, the mother’s evidence, which is uncontested or not challenged, is that the father has had nothing to do with the child since immediately following the child’s birth.  He does, however, pay child support and I am informed by Mr Schmidt from the bar table that the child support is approximately $20 a week collected by the Child Support Agency. 

8. This is a Court of private law.  It is not possible or, indeed, desirable for the Court to try to impose a relationship between a parent and child that the parent, himself, does not seek.  In terms of parental responsibility, the Court operates under a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.  I will shortly describe what constitutes parental responsibility.  However, here I am satisfied that equal shared parental responsibility is not in the child’s best interests and that one of the parties has engaged in family violence.  Those features rebut the presumption in favour of equal shared parental responsibility.  In this case, the mother refers in her affidavit evidence to some family violence.  All family violence is serious.  However the family violence of which the mother complains, whilst totally unacceptable, would not in my assessment necessarily disentitle the father to have some parental responsibility in relation to the child.   

9. The most significant feature, for me, is that the father is simply not involved in the child’s life, and it is artificial and impracticable for the mother to be required to exercise parental responsibility with him under those circumstances. 

10. Where two or more persons share parental responsibility equally in relation to any major long-term issue under a parenting order, they are required to make a decision jointly.  The concept of shared parental responsibility carries with it requirements under the Family Law Act 1975 (Cth) section 65DAC(3) “to consult the other parent in relation to the decision to be made about that issue”[1] and “to make a genuine effort to come to a joint decision about that issue”[2].  The provisions, when read together, mean that consultation and some discussion between the parties is required regarding major long-term decisions for which parental responsibility is to be shared. 

    [1]Family Law Act 1975 (Cth) s 65DAC(3)(a).

    [2]Family Law Act 1975 (Cth) s 65DAC(3)(b).

11. The long-term decisions within the context of parental responsibility include:

    ·the child’s education;

    ·the child’s religious and cultural upbringing;

    ·the child’s health;

    ·the child’s name; and

    ·changes to the child’s living arrangements that make it significantly more difficult for the child to be able to spend time with a parent. 

12. Parental responsibility also covers the issuance of a passport and the ability of a parent to travel overseas with the child, such as the mother now seeks. 

13. Whilst there are clear policy values in our legislation, it is not consistent with the best interests of the child to impose upon the mother an unworkable relationship in which she be required to consult with, and discuss matters in relation to parental responsibility with, the father.  Accordingly, I will order that the mother have sole parental responsibility for the child.

14. Turning to the mother’s specific application or indication that she wishes to travel overseas with the child, I note that the mother originally entered Australia as a refugee.  She does not have ties to Australia in terms of owning real property.  She is currently employed as a healthcare proefessional. She says that she will return to Australia after six or eight weeks.  The father has been accorded procedural fairness and does not challenge that evidence.

15. The father is not exercising any time with the child, therefore the proposed trip does not impinge on his ability to see the child or, more importantly, the child’s ability to see him.  I do not think it would make any significant difference if the mother were to stay away longer than the six to eight weeks that she deposes to.  However, for all intent and purposes, I accept that the child’s time outside Australia is temporary.  I find that she does intend to return to Australia to pursue the child and her life here together. 

16. I am satisfied that the orders sought by the mother are in the best interests of the child, and I will make them.

17. The father can make any application he wants to make concerning his relationship with the child and that can include an application to spend time with the child or to communicate with him, but at the moment there are no orders entitling him to spend time with the child or to communicate with him.  The ball is very much in his court.

18. The father is not, by virtue of these orders, excluded from the child’s life.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 April 2019

Associate:

Date:  12 April 2019