Beaufort and Draper

[2017] FCCA 1819

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAUFORT & DRAPER [2017] FCCA 1819

Catchwords:
FAMILY LAW – Final parenting – children’s best interests – orders made on an undefended basis.

Legislation:

Family Law Act 1975, ss.4, 60CC, 60CC(2A), 60I, 61DA

Federal Circuit Court Rules 2001, r.4.03

VR & RR [2002] FamCA 320
Allesch v Maunz [2000] HCA 40
Tate & Tate (No. 3) (2003) FLC 93-138

Applicant: MS BEAUFORT

Respondent: MR DRAPER

File Number: PAC 2029 of 2017

Judgment of: Judge Harman

Hearing date: 24 July 2017

Date of Last Submission: 24 July 2017

Delivered at: Parramatta

Delivered on: 24 July 2017

REPRESENTATION

Solicitors for the Applicant: Mr Lindo of Macarthur Law Group

The Respondent appeared in person

ORDERS

1. The children, [X] born (omitted) 2000, [Y] born (omitted) 2008 and [Z] born (omitted) 2009, shall live with their mother, Ms Beaufort.

2. Ms Beaufort shall have sole parental responsibility with respect to major issues decisions in relation to [X], [Y] and [Z].

3. IT IS NOTED that no Order with respect to the children’s time or communication or practice of relationship with their father is made and with the intent that Mr Draper is at liberty, subject to compliance with section 60I of the Family Law Act 1975 or exemption therefrom, to make Application for further Orders in relation to the children at such future time as he may desire.

4. 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.

5. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

THE COURT NOTES THAT:

1. These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2029 of 2017

MS BEAUFORT

Applicant

And

MS DRAPER

Respondent

REASONS FOR JUDGMENT

1. These proceedings are commenced by an Application Initiating Proceedings filed on 1 May 2017. 

2. The parties to the proceeding are Ms Beaufort, who is the Applicant and the mother of the children whose interests are the subject of the proceedings. The Respondent is Mr Draper, the children’s father. 

3. The proceedings relate to future arrangements for three children:

   [X], born (omitted) 2000, 17 years of age;

   [Y], born (omitted) 2008, nine years of age; and,

   [Z], born (omitted) 2009, presently seven years of age. 

4. The Application Initiating Proceedings was personally served upon the Respondent on 16 May 2017, more than two months ago. 

5. Rule 4.03 of the Federal Circuit Court Rules 2001 presently provides a period of 14 days from the date of service to file a Response, Affidavit and Notice of Risk.  On the basis that the Application was served on 16 May 2017, a Response was to have been filed and served by 1 June 2017. None is filed. The Respondent appears today and seeks adjournment of the proceedings.  The adjournment is not by consent. 

6. The Respondent has indicated that he does not cavil with the Orders that are sought by Ms Beaufort to the extent that Orders are sought that the children live with Ms Beaufort and that an Order for sole parental responsibility is sought such that the parties need not consult with each other in relation to major issues – decisions.  The gravamen of dispute, as advanced by the Respondent from the bar table rather than in material filed, is a controversy relating to the time that the children will spend with their father, the frequency of such time and any terms and conditions that might attach to such time as well as an issue as to whether the children’s surnames would be changed. 

7. The parties have spent some time negotiating and have reached the position of agreed consent Orders. However, the majority of those Orders are not Orders which the Court is prepared to make.  The father’s time, as provided within that document, is frugal.  That is not the issue, however.  The document provides that the children’s time with their father would be supervised by the mother or her partner.  That is not an Order that I am satisfied is or could be in the children’s best interests in light of the material that is filed. 

8. Orders are sought that the parents communicate in a specific manner and not otherwise.  I am not satisfied that this is an Order the Court need make or should make by reference to authorities such as VR & RR [2002] FamCA 320. In those circumstances, and the Court having rejected the terms other than an Order for the children to live with their mother, (an issue as to which there is no controversy), the mother seeks to press her Application for final relief.

9. I am conscious that Orders as sought by the mother, if made on a final basis, will not, as regards the issues in dispute, or at least those pertaining to the children’s practice of relationship with their father, prejudice the father’s position. The father – as will be noted within these Orders – will be at liberty to make Application to the Court for parenting Orders, should he consider it necessary, (subject to compliance with section 60I of the Family Law Act 1975 or through an Application for exemption from the requirements thereof). 

10. The Orders that are sought by Ms Beaufort are, on the face of her evidence – which is the only evidence presently before the Court – irresistible. 

11. The children presently live with their mother and her partner.  They have done so for quite some little time and most assuredly since the relationship between these parents broke down on an unspecified date, at least 12 months prior to the Divorce of the parties in November 2016.  There are issues raised in the mother’s material regarding past family violence. The mother does not necessarily suggest that she holds present fears, although that does not obviate against the reality that it could be so. 

12. The mother raises concerns in her Notice of Risk with respect to serious psychological harm to the children as a consequence of exposure to family violence, which allegations would on their face and if accepted – and the evidence is unchallenged and thus it is accepted – constitute abuse within the section 4 definition of the Act. Accordingly, the Orders sought by the wife in relation to sole parental responsibility and the children living with her could not realistically be opposed on an acceptance of that evidence. The presumption of equal shared parental responsibility pursuant to section 61DA of the Act cannot and does not apply as a finding is available on the evidence that at least family violence has occurred. That being so, and the only evidence available being that of the mother, the allocation of parental responsibility to her would appear entirely appropriate.

13. I am conscious, lest there be any doubt, that due process has been afforded to both parties in these proceedings.  As the High Court discussed in Allesch v Maunz [2000] HCA 40 and at the risk of impermissibly paraphrasing their Honours, what is required to afford due process is to afford a reasonable opportunity, in all of the circumstances, to participate in the proceedings.  What is required by way of participation is also discussed by the Full Court in Tate & Tate (No. 3) (2003) FLC 93-138, including the need to file material in addition to appearing before the Court itself. Without a position before the Court and agitation of that position, the matter is and remains undefended.

14. Whilst the time period presently provided by the Federal Circuit Court Rules 2001 at rule 4.03 – 14 days – is extremely brief for the filing of a Response, I am conscious that the period that has, in fact, expired is some nine weeks. That is a more than reasonable opportunity to have taken a step towards engagement in proceedings and seeking to challenge Orders that are sought. In those circumstances, and without addressing each and every specific factor in section 60CC of the Act, I am satisfied, by reference to that which must be addressed by application of the relevant legislative provisions to the mother’s evidence, that the children’s best interests are served by the Orders that the mother seeks.

15. The children have a meaningful relationship with their mother – section 60CC(2)(a) of the Act.  The children do not presently have a meaningful relationship with their father.  That is not to suggest that it is ideal that it be so.  But the mother’s evidence gives cogent reasons for why that might be so.  The father can prosecute such Application as he may wish in the future to remedy and address his relationship with the children.  I do not determine that it is best for the children to have no relationship with their father, as I simply propose to make no Order and leave that matter reserved for a future occasion. 

16. There are real issues in relation to the children’s protection raised on the mother’s evidence – section 60CC(2)(b) of the Act. Those issues, of course, outweigh the consideration of meaningful relationship and the right to such a relationship that the children enjoy by reference to section 60CC(2A) of the Act. Accordingly, there is further support to the mother’s position.

17. The mother’s evidence is that the children’s views are clearly in support of the Orders that she seeks in relation to parental responsibility and their continuing to live with her. 

18. The children’s relationships with persons of importance, including the mother’s partner, their peer group, and their social capital that surround them, being arrangements put into place by the mother, will be continued and thus this factor supports the relief that the mother seeks. 

19. For those reasons, I am satisfied thus that the proceedings could and should be concluded at this point in time.  There would not appear to be any purpose served by adjournment.  Indeed, the mother could validly argue that she would be denied due process.  She has done what is required of her.  The father does not oppose the Orders I propose to make and as he can pursue such additional Orders as he may desire in his own time the conclusion of this cause would best meet the children’s needs and interests.

20. The mother is entitled to the relief that she seeks subject to satisfying the Court that the granting of that relief is consistent with, indeed supports and best promotes on the evidence available, the children’s best interests.  These are discretionary proceedings and the relief that is to be granted must be determined by the Court positively as being in the children’s best interests. 

21. The proceedings are commenced by what would analogously be a Statement of Ordinary Claim rather than a Statement of Liquidated Claim.  A litigant is not entitled to the relief that they seek purely because the Application is not opposed. However, I am positively satisfied that the mother’s evidence supports the Orders sought as regards the allocation of parental responsibility and the children living with their mother and those Orders are agreed by the father.

22. Conclusion of the proceedings with those Orders in place will better meet the children’s interests than adjournment in circumstances whereby the father is at liberty to pursue his position at a timing of his own choosing.

23. Accordingly, I make Orders as follows (see Orders).

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 3 August 2017