BLESSINGTON & BLUNT - [2016] FamCA 1094

FAMILY COURT OF AUSTRALIA

BLESSINGTON & BLUNT

[2016] FamCA 1094

FAMILY LAW – CHILDREN – Best interests – Relocation – Parental responsibility – where the applicant mother seeks final orders on an undefended basis – where the mother seeks to relocate interstate with the child – where the mother seeks sole parental responsibility for the child due to the breakdown of the relationship between the parents – where the father has not taken the opportunity to spend regular and meaningful time with the child for a number of years – relocation permitted – satisfied it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – where the mother seeks to have the matter heard on an undefended basis – where the father has failed to comply with orders – where the father has repeatedly failed to attend court – where the father has failed to take any step in the proceedings – where procedural fairness has been afforded to the father and no proposals are made by the father – application granted

Australian Passports Act 2005 (Cth), s 11
Family Law Act 1975 (Cth), ss 60CA, 60CC, 61B, 61DA, 64B and 65DAC
Family Law Rules 2004 (Cth), rr 7.02, 7.03, 7.05, 7.06, 7.07 and 7.18

Allesch & Maunz (2000) 203 CLR 172
Jurchenko v Foster [2014] FamCAFC 127

APPLICANT:

Ms Blessington

RESPONDENT:

Mr Blunt

FILE NUMBER:

MLC

8024

2013

DATE DELIVERED:

14 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

28 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Paul Glass

SOLICITOR FOR THE APPLICANT:

Tisher Liner FC Law

THE RESPONDENT:

No appearance

Orders made 28 October 2016

The applicant be granted leave to proceed on an undefended basis.
The final parenting orders made 3 September 2014 be discharged.
The mother have sole parental responsibility for X, born … 2003 (“the child”).
The mother be permitted to relocate the residence of the child to Hobart, Tasmania.
The child live with the mother.
The child spend time with the father as agreed.
The mother do all things and sign all documents necessary to:
(a)authorise the father to receive copies of school reports, school photographs and notices usually provided to parents, at the father’s expense;
(b)immediately inform the father in the event that the child suffers any serious injury or illness requiring surgery;
(c)keep the father informed at all times of the child is residential address, landline (if applicable) and mobile telephone number; and
(d)provide a copy of these orders to any school, educational institutions or extracurricular service provider attended by the child.
Pursuant to section 11 of the Australian Passports Act 2005, the mother be permitted to obtain a passport for X, born … 2003 in the absence of consent from the father.
The mother forward a copy of these Orders to the father’s last known postal and email addresses, being:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BLESSINGTON & BLUNT [2016] FamCA 1094
Case: [2016] FamCA 1094
Decision Date: 14 December 2016

CaseChat Overview and Summary

In the matter of *Blessington & Blunt*, heard before Thornton J, the applicant mother sought final orders on an undefended basis. The core of the dispute involved the mother's application to relocate interstate with the child and to be granted sole parental responsibility. This request stemmed from the breakdown of the parents' relationship and the father's prolonged absence from the child's life, having not spent regular and meaningful time with the child for several years.

The court was required to determine two primary legal issues. Firstly, whether it was in the best interests of the child to permit the mother to relocate interstate. Secondly, the court had to consider whether to grant the mother sole parental responsibility, given the father's lack of engagement with the child and the proceedings. A related procedural issue was whether the matter could proceed on an undefended basis, given the father's persistent failure to comply with court orders, attend court, and participate in the proceedings.

Thornton J found that procedural fairness had been afforded to the father, and as he had made no proposals or taken any steps in the proceedings, the application could be heard on an undefended basis. Regarding the substantive issues, the court was satisfied that it would not be in the best interests of the child for the parents to share equal parental responsibility. Consequently, the court granted the mother's application, permitting the relocation and awarding her sole parental responsibility for the child.

Orders