Bevan and Lesalles

[2016] FamCA 77

FAMILY COURT OF AUSTRALIA

BEVAN & LESALLES [2016] FamCA 77

FAMILY LAW – CHILDREN – interim orders

APPLICANT: Ms Bevan

RESPONDENT: Mr Lesalles

FILE NUMBER: SYC 5698 of 2015

DATE DELIVERED: 1 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: Caroline Chung & Associates

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

Pending further order:

1. The child B born … 2012 (“the child”) shall live with the mother.

2. The child shall spend time with the father at times that are agreed between the parties but failing agreement each Tuesday and Thursday from 6pm until 7pm in the presence of the mother.

3. During times that the father spends time with the child, he shall behave respectfully towards the mother and refrain from denigrating her or members of her family to or in the presence of the child.

4. The mother is permitted to take the child out of the Commonwealth of Australia for a period of up to 14 days for a holiday and that the Minister is requested to issue an Australian passport for the child without the necessity for the father’s consent and to provide that passport to the mother.

5. The preceding order is made without prejudice to the mother having the ability in the future to make an application for an order allowing her to take the child from Australia for a longer period if she proposes a longer holiday outside Australia with the child.

6. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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 NOTED that publication of this judgment by this Court under the pseudonym Bevan & Lesalles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5698 of 2015

Ms Bevan

Applicant

And

Mr Lesalles

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In an application filed on 31 August 2015, the mother sought orders on an interim basis that:

   1.1.The child [B] born … 2012 (the child) live with the mother;

   1.2.The child spend time with the father at times to be agreed upon between the parties but failing agreement on each Tuesday and each Thursday from 6pm to 7pm in the presence of the mother;

   1.3.During times that the father spends time with the child, he shall behave respectfully towards the mother and reframe from denigrating her or members of her family to or in the presence of the child;

   1.4.The court appoint an Independent Children's Lawyer;

   1.5.The mother be permitted to take the child out of the Commonwealth of Australia; and

   1.6.The Minister be requested to issue an Australian passport for the child without the necessity for the father’s consent and to provide that passport to the mother.

2. In relation to the open ended order that the mother be permitted to take the child outside the Commonwealth of Australia (order 1.5), today the mother has amended that application so that it is limited to taking the child outside the Commonwealth of Australia for a period of  not in excess of 14 days for a holiday and thereafter to return the child to Australia; without prejudice to her making any further application for the ability to have a longer period of holiday outside Australia with the child pursuant to any specific proposal that she might bring in the future.

3. The mother’s applications were listed for a procedural event on 16 November 2015. The matter came before Registrar Bastiani on that day. The mother was present with her lawyers; the father did not appear and the Registrar adjourned the matter for hearing before the court today and ordered that service be effected by leaving sealed copies of the relevant documents with the respondent’s mother at an address at Suburb C. An affidavit of service has been filed which evidences compliance with the order for substituted service. The father does not appear today.

4. The father is 39 years of age; the mother is 32 years of age.  They commenced cohabitation in 2008 and the child was born in 2012.

5. The father has had some significant involvement with drugs, including ice. On 30 November 2012 the police apprehended the father slumped over a steering wheel of a motor vehicle whilst under the influence of drugs and in May 2013 the father crashed his car and lost consciousness while under the influence of drugs and whilst being a disqualified driver.

6. The parties separated in July 2013.

7. In March 2014 the father was sentenced to twelve months imprisonment and was incarcerated for seven months. The mother initially did not make the child available to the father whilst he was in prison but did eventually take the child to see him on three occasions when he was moved to a different detention facility.

8. Since separation the father has spent time with the child at the mother’s home on an average of about once a fortnight for approximately one hour on each occasion, other than during the period of his incarceration. There have been many times when the father has not turned up at the arranged times.

9. The mother says in her affidavit that she does not have any fear of family violence. There has been no incident of that nature and she is willing to facilitate the current time continuing between the child and the father.

10. The mother understandably has concerns about the father’s past drug use and is concerned that those issues have not yet been resolved by the father. The evidence annexed to the mother’s affidavit would provide ample basis for that concern. The father’s use of drugs, absent any explanation or further evidence from him, is a serious risk factor in this case.

11. The mother acknowledges that the child will benefit from having a meaningful relationship with her father if the father commits to spending regular time with the child and if he is able in the future to address his drug issues. It is unknown to the mother as to what the father’s current willingness and ability is to address those issues.

12. The father has not to this date participated in the proceedings. A balance needs to be struck between the risk factors to which I refer and the fact the child recognises the father and appears to enjoy time with him.

13. The mother’s request for the ability to obtain a passport for the child and to have a holiday with the child for a period of up to 14 days overseas and specifically in relation to Country D in the middle of this year is a reasonable request. The orders sought in mother’s applications are in the best interests of the child.

14. I note that the mother has applied for the appointment of an Independent Children's Lawyer. I currently do not see the need for that, however, I will leave that issue for the Registrar to deal with at the procedural event that has been scheduled for 18 February 2016.

I certify that the preceding fourteen (14) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 1 February 2016.

Associate: 

Date:  15.2.16