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 of 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

1. The applicant be granted leave to proceed on an undefended basis.

2. The final parenting orders made 3 September 2014 be discharged.

3. The mother have sole parental responsibility for X, born … 2003 (“the child”).

4. The mother be permitted to relocate the residence of the child to Hobart, Tasmania.

5. The child live with the mother.

6. The child spend time with the father as agreed.

7. 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.

8. 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.

9. The mother forward a copy of these Orders to the father’s last known postal and email addresses, being:

   (a)B Street, Suburb C, Victoria …; and

   (b)Email...

10. The father file any application to vary or set aside these orders pursuant to rule 11.03 of the Family Law Rules 2004 within 28 days of copy of the orders being sent to his last known postal and email address.

11. All extant applications be otherwise dismissed.

12. The written reasons for judgment in this matter be reserved and the matter be adjourned to a date to be fixed for judgment delivery.

13. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blessington & Blunt 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 MELBOURNE

FILE NUMBER: MLC 8024 of 2013

Ms Blessington

Applicant

And

Mr Blunt

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother sought the discharge of previous final parenting orders and the making of further  parenting orders on an undefended basis for one child of the relationship, X (“the child”), born in 2003 and currently aged 13 years.   Amongst other orders the mother sought to relocate the residence of the child from Melbourne to Tasmania.  The father did not file a Response, did not attend any court event and did not attend the hearing.  I am satisfied, for the reasons elaborated upon below, that in this case the mother has established a sufficient change in circumstances to warrant reconsideration of the previous final parenting orders.

2. The previous final parenting orders were discharged and final parenting orders were made in the absence of the father on an undefended basis on 28 October 2016 due to the need for the child to be enrolled and attend school interstate.  These are my reasons for making those orders.

BACKGROUND

1. The parents separated in June 2011 after living together from July 2002. On 3 September 2014, final parenting orders were made in relation to the child.  These orders provided for equal shared parental responsibility. These orders provided for the child to live with the mother and initially spend time with the father from 6.30pm on Friday to 6.30pm the following Sunday on the weekends beginning Friday 19 September 2014, Friday 24 October 2014 and Friday 21 November 2014, as well as the period from 6.30pm on Friday 26 December 2014 until 12.00 midday on Saturday 2 January 2015.  In 2015 and onwards, the orders stipulated that the child was to live with the mother and spend time with the father each alternate weekend from 6.30pm Friday to 6.30pm Sunday and half school holidays, and at other times as may be agreed between the parents in writing.  The orders also provided for the child to spend time with the father on Father’s Day.  Orders were made in relation to changeover arrangements (the child was to be picked up and dropped off at the mother’s home by the father).

THE MOTHER’S APPLICATION

1. The mother sought pursuant to her Initiating Application filed 13 September 2016, that the previous final parenting orders be discharged and that she have sole parental responsibility for the child and be permitted to relocate with the child to Hobart, Tasmania. 

2. She sought further orders that the child live with her and spend time with the father as agreed, and that pursuant to s 11 of the Australian Passports Act 2005, the mother be permitted to obtain a passport for the child without consent from the father. 

THE UNTESTED EVIDENCE OF THE MOTHER

1. The mother deposed that the father has spent very limited face to face time with the child since December 2013, because, according to the mother, the father was unhappy with the changeover location ordered, being the mother’s home rather than a halfway point between their residences.  The mother deposed that between 26 December 2014 and March 2015, the father had no phone contact with the child.

2. The mother deposed that there was an incident on 6 March 2015 when the father collected the child from school without prior notice to the mother or the school, told the mother he would have the child for two hours and did not return her to school for four and a half hours.  The mother was concerned about the impact on the child if this behaviour recurred and sought an intervention order, but ultimately agreed to the father providing a written undertaking to the court in lieu of such an order.  The mother deposed that the father did not spend time with the child following that incident, and has not spent regular and meaningful time with the child in excess of 3 years.

3. The mother deposed that her immediate family lives in Hobart and the child has a close relationship with her maternal grandparents (the mother’s father and step-mother), who are ageing and experiencing significant health issues.  The mother deposed that the maternal grandfather was diagnosed with prostate cancer this year and that the maternal grandparents stayed with her and the child during his recovery from surgery this year.  The mother wishes to assist with the care of the maternal grandparents and give the child the benefit of their presence in her life.

4. The mother further deposed that she recently “quit her job” in order to seek part time employment, as the child was struggling with her transition to secondary school and the mother was troubled by the impact of her long working hours on her ability to spend time with the child.  The mother deposed that she has not yet had an opportunity to gain new employment given the issues with the maternal grandfather.  The mother deposed that living in Tasmania would reduce her costs of living and allow the child to be educated in the private school system because the school fees are cheaper in Tasmania.

5. The mother deposed that she attempted to engage the father about the relocation, but that the father has failed to answer her solicitor’s correspondence and refused to attend mediation.

6. The mother deposed that she sold her Suburb D home and settlement was due on 22 December 2016.  Initially the mother intends to live with the child and her maternal grandparents, in Tasmania.  She then proposes to purchase an appropriate property. On the evidence of the mother, the matter had become urgent as the child had been accepted into school in Tasmania and was due to start school there on 10 October 2016. 

7. The mother sought orders for sole parental responsibility and for the authority to apply for a passport for the child because communication between herself and the father had broken down.

DOCUMENTS RELIED UPON

1. The mother relied upon her Initiating Application and affidavit filed 13 September 2016, numerous affidavits of attempted service (one filed 23 September 2016 and three filed 13 October 2016) and two affidavits of Mr E filed 26 September 2016 and 26 October 2016 detailing various attempts to contact the father.

Procedural fairness

1. According to r 7.03 of the Family Law Rules 2004 (“the Rules”), an Initiating Application in a family law matter must be served on the respondent by way of special service. Rule 7.05 of the Rules provides that a document that must be served by special service must be personally received by the person served. The precise rules for special service by hand are set out in r 7.06.

2. The rules for special service by post or electronic communication are set out in r 7.07 as follows:

   Special service by post or electronic communication

   (1)  A document may be served on a person in Australia by sending a copy of it to the person's last known address by post.
   (2)  A document may be served on a person in Australia by sending it to the person by electronic communication.
   (3)  A person serving a document by post or electronic communication must include with the document:

   (a)  an Acknowledgement of Service for the person served to sign; and
   (b)  for service by post within Australia--a stamped self-addressed envelope.

3. Rule 7.02 of the Rules provides:

   Court's discretion regarding service

   (1) A court may find that a document has been served or that it has been served on a particular date, even though these Rules or an order have not been complied with in relation to service.

4. Rule 7.18 of the Rules provides:

   Service with conditions or dispensing with service

   (1)  A party who is unable to serve a document may apply, without notice, for an order:
      (a)  to serve the document in another way; or

   (b)  to dispense with service of the document, with or without conditions.

   (2)  The factors the court may have regard to when considering an application under subrule (1) include:

   (a)  the proposed method of bringing the document to the attention of the person to be served;
   (b)  whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;
   (c)  whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably the available;

   (d)  the likely cost of service; and
      (e)  the nature of the case.
   (3)  If the court orders that service of a document is:
      (a)  dispensed with unconditionally; or
      (b)  dispensed with on a condition that is complied with;
         the document is taken to have been served.

5. On 26 September 2016, this matter was listed before me in the duty list.  At this time, counsel for the mother sought a finding that the father had been served and that this matter be heard on an undefended basis.  The mother filed affidavits deposing that service upon the father had been attempted unsuccessfully on a number of occasions, and that when a process server had attended the last known residence of the father, they had been sent away by individuals identifying themselves as house-sitters who stated that the father was away and did not allow the process server to see their faces.  

6. A letter from the Child Support Agency confirmed that the address where the process server attended was the current address of the father, specifying that his wages were being garnished from his employer. Counsel for the mother obtained information from his employer about the location where the father is employed. Counsel handed up minutes of proposed orders for service, and I made orders stipulating that pursuant to rule 7.18 of the Family Law Rules, service upon the father of the mother’s Initiating Application and affidavit filed 13 September 2016 be dispensed with on condition that copies of those documents and a copy of this Order be sent to the father at the following addresses:

   ·Care of his employer, …Victoria, …;

   ·B Street, Suburb C, Victoria, …; and

   ·Email….

7. The mother’s application was adjourned with an order that if the father failed to appear, the mother could seek to have the matter heard on an undefended basis.

8. Since that time, the mother has filed a further three affidavits of attempted service indicating that the mother has complied with the orders.  These indicate that, having determined that the respondent father is currently on secondment to the Suburb F, the process server attempted to serve the father at that location and deposed as follows:

   … I spoke with [Ms G] at the Reception Counter.  I asked to speak to the Respondent.  She advised me he was working and was in the [workplace].  She asked me for the reason for my attendance, I provided my name and advised her I was a Process Server and I had documents to pass on to the Respondent.

   She stated she would ‘go and get him’.  I watched her leave the Reception area and [walk] into a small office.  I could hear a conversation between a female and a male. … I could not hear all of the male’s response.  But I did hear the male person say ‘I am not here’.  A short time later [Ms G] returned to the Reception area.  She advised me she was mistaken and she thought I was referring to some one else.  She advised me that the respondent was not working.  I asked when he would be working next, she told me she could not provide me with that information and was not prepared to assist further.

   The process server was unsuccessful in serving the respondent father at the last known home address.  A male voice answered the door but remained silent and did not open the door after the process server identified themselves and explained the reason for the visit.

9. The solicitor for the mother has also filed affidavits detailing the various unsuccessful attempts made to contact the father, including:

   ·the numerous attempts at service through the process server;

   ·a letter sent to the father’s last known address (the father is the registered proprietor at this address, and has corresponded with the Child Support Agency as recently as late September 2016 providing this address), which was returned and marked return to sender, refused; and

   ·an email sent to the father’s email address which was not answered but for which a “read receipt” was received.

10. The solicitor deposed that the father was unwilling to engage in mediation, and for this reason, mediation did not take place.  The solicitor deposed that the father corresponded with the intended mediator using the same email address that the solicitor has used to attempt to contact the father (which indicates that this is still an email address in active use).

11. As High Court authority makes plain (Allesch & Maunz (2000) 203 CLR 172), where a person’s interests may be adversely affected by a Court’s decision, that person must be given the opportunity to place before the Court material and submissions before a decision is made. However, as Kirby J emphasised, what is important is the opportunity to be heard. As his Honour observed, at [38]:

    …Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require. 

12. On all the evidence about the attempts at personal service and service by email and postal service, I am satisfied that all reasonable steps have been taken to serve the documents and for the proceedings to have come to the attention of the father.  I am satisfied that he has been afforded the opportunity to be heard.  He has elected not to participate in the proceedings but I am satisfied that he has been accorded procedural fairness.

The relevant law

1. These proceedings are brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Relocation cases are not a separate category of case. They are essentially parenting cases to be decided under the same legislative pathway.

2. A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i)).

3. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.

Determining the child’s best interests

1. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

Primary considerations

1. The primary considerations are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[1]

   [1] Family Law Act 1975 (Cth) s 60CC(2A).

3. The evidence does not establish any need to protect the child from either parent.

4. The Full Court in Jurchenko v Foster [2014] FamCAFC 127 referred to the primary consideration of the benefit of the child having a meaningful relationship with both of the child’s parents in the context of proceedings concerning the relocation of a child.

5. At par 123 Bryant CJ, Thackray and Duncanson JJ said:

   …the Act does not require orders to be made to ensure a child has a meaningful relationship with both parents. Rather, it requires the court to consider the benefit to the child of having such a relationship….. Having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up care arrangement. All parts of the  arrangement must be considered before deciding what outcome is in the child’s best interests.

6. This is not a case where there can be a weighing up of the proposals of both parties.

1. There is no proposal by the father and no evidence that the father proposes to have a meaningful relationship with the child at this time.

The additional considerations

1. The additional considerations are listed at s 60CC(3) of the Act. I have referred to only those which are relevant to the facts and circumstances of this case. The additional considerations overlap with the primary considerations here. For example the consideration of the nature of the child’s relationships and the likely effect of any changes in the circumstances of a child including the likely effect of separation from a parent are inherent in the primary consideration which deals with a child having a meaningful relationship with both parents.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. There is no evidence before the court about the child’s views about the proposed relocation.  She is currently in her first year of secondary schooling.

Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)

1. On the unchallenged evidence of the mother, the child has had only sporadic contact with the father over the course of the last three years and has not spent time with him for in excess of three years with the exception of the occasion when he collected the child from school in 2015.  Since separation, the mother has always been the child’s primary carer.

2. The mother seeks to move to Tasmania in order to spend more time assisting with the care of the maternal grandparents in light of the declining health of the maternal grandfather.  On the mother’s untested evidence, the child has a close relationship with her grandparents, and the relocation would afford her a greater opportunity to spend time with them.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. The father has, on the evidence of the mother, failed to communicate with the mother about major decisions in relation to the child, and has not participated in these proceedings or been prepared to engage in mediation.

2. The father has also failed to take the opportunity to spend time with the child in any substantial way over the last three years, and his communication with the child has been sporadic.

Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. On the limited evidence before me the father fulfils his child support obligations.  His wages are garnished by the Child Support Agency.

Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The mother believes that the move will provide a positive change for the child, as she will be in contact with extended family and will have the opportunity to return to the private education system, which on the mother’s evidence, is a more affordable option in Tasmania than in Melbourne.  It is the mother’s belief that the move will facilitate her being able to spend more time with the child, as the lower cost of living in Hobart will permit the mother to work on a part time basis and spend additional time with the child.

2. The move will, in practical terms, have essentially no effect upon the relationship between the child and the father, as the child currently does not communicate or spend time with the father.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. A move to Tasmania will by necessity make contact with the father more difficult but there are no proposals from the father to spend time with the child.  Given the fact that the child’s contact with the father has been no more than sporadic over the past few years, the other benefits to the child in relocating outweigh this consideration of the difficulty or expense which might affect the child’s right to maintain personal relations and direct contact with the father on a regular basis.

Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. On the mother’s unchallenged evidence, the mother will be better able to provide for the child’s emotional and intellectual needs because it will be possible to support herself and the child through part time work in light of the lower costs of living in Hobart, which will allow her to be more available to the child and provide for her emotional and intellectual needs, and particularly her school transition.  The maternal grandparents will also be more directly available to the child and involved in her life.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The evidence does not disclose the father’s attitude to the child other than that he has not communicated with the child and the child has not spent significant time with him for approximately three years.  He has not been involved in the care of the child other than by way of child support payments.

Section 60CC(3)(j) and (k): family violence and family violence orders

1. On the untested evidence I make no findings in relation to family violence and no family violence orders have been made.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The father has declined to participate in the proceedings, and more generally to cooperate with the mother in making decisions in relation to the child.  In these circumstances where the communication between the parents has broken down, it is appropriate to make orders that will allow the mother to make decisions for the child without the need to locate the father or to require his cooperation.

Presumption of equal shared parental responsibility

1. Parental responsibility is defined under s 61B of Part VII of the Act in relation to a child, to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

2. Under s 65DAC of the Act the effect of a parenting order that provides for shared parental responsibility is that decisions about major long-term issues in relation to the child must be made jointly and such an order would require these parents to consult each other about the decision to be made regarding those issues and make a genuine effort to come to a joint decision.

3. Under s 61DA(1) of the Act, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. This presumption may be rebutted, under s 61DA(4) of the Act, if there is “evidence that satisfies the court that 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.”

4. The mother seeks sole parental responsibility for the child.  There are no proposals from the father. There is no evidence that he seeks to have a meaningful relationship with the child.   I accept the unchallenged evidence of the mother that the father has not spent regular and meaningful time with the child in excess of three years.  There is no cooperation between the parents such that there has even been great difficulty contacting the father for the service of this application.  

5. On all the untested evidence the relationship between the parents is such that making joint decisions about major long-term issues for the child would be fraught with difficulty and not practicable. I accept the unchallenged evidence of the mother that the communication between the parents has broken down.

Conclusion

1. The presumption of equal shared parental responsibility is rebutted because I am satisfied on all the evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.  This is  in light of the complete breakdown of communication between the mother and father, which renders cooperative parental decision making impossible in practical terms.  The mother’s evidence is unchallenged and there are no proposals from the father.

2. For all the reasons previously outlined I am satisfied that it is in the best interests of the child to make the parenting orders in the terms proposed by the mother which were unchallenged by the father and in circumstances where there were no proposals from the father.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 14 December 2016.

Associate: 

Date:  14 December 2016