CEDILLO & HARTIGEN

[2021] FCCA 1347

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEDILLO & HARTIGEN [2021] FCCA 1347

Catchwords:
FAMILY LAW – Parenting – child aged 2 ½ – where the mother filed an application for parenting orders – where the mother alleged severe family violence and proposed that the father spend no time with the child – where the father was served and appeared and was given opportunity to file documents but failed to do so – where the father finally failed to appear – orders made on an undefended basis for the mother to have sole parental responsibility and for the child to live with the mother and spend no time with and have no communication with the father – orders made for a change of surname and international travel.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MS CEDILLO

Respondent: MR HARTIGEN

File Number: NCC 4314 of 2020

Judgment of: Judge Terry

Hearing date: 25 May 2021

Date of Last Submission: 25 May 2021

Delivered at: Newcastle

Delivered on: 25 May 2021

REPRESENTATION

Solicitors for the Applicant: Ms Nulty

The Respondent: No appearance

ORDERS

1. The mother shall have sole parental responsibility for the child X born in 2018 (“the child”).

2. The child shall live with the mother.

3. The child shall spend no time with the father.

   (a)The father is restrained from any and all forms of contact with the child including but not limited to:

   (b)Attending any school/s that the child may from time to time attend;

   (c)Attending any sporting or extra-curricular activities the child may from time to time attend;

   (d)From contacting or communicating with the child by any means, including, but not limited to telephone, text messages, email, post, in person or through any type of social media; and

   (e)From engaging, soliciting or using any other person to contact or communicate with the child by any means, including but not limited to, telephone, text messages, email, post, in person or through any type of social media.

4. The mother is at liberty to provide a copy of these orders to the child’s schools or prescribed or other extra-curricular provider or other organisation where she has placed the child.

5. For all purposes the child X born in 2018 shall be known henceforth as X.

6. The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X HARTIGEN born in 2018 to X CEDILLO.

7. The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 8 above is to do all acts and things to register the change of name of X HARTIGEN born in 2018 to X CEDILLO pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.

8. Pursuant to section 11 of the Australian Passport Act 2005 the mother is granted liberty to apply for a passport for the child without the consent of the father.

9. Pursuant to section 65Y of the Family Law Act 1975 the mother is granted liberty to travel overseas with the child whether or not the father has consented to any such travel.

10. Pursuant to section 68B of the Family Law Act 1975 for the protection of the mother the father is restrained and an injunction is granted restraining him from attending the mother’s residence at any time.

THE COURT NOTES THAT:

A.These orders are made in the father’s absence. If at any time in the future the father files an application seeking to spend time with the child he will need to address in his supporting affidavit the allegations about family violence and drug use made by the mother and if he fails to do so his application may be dismissed at a preliminary stage.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 4314 of 2020

MS CEDILLO

Applicant

And

MR HARTIGEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter I have an application for parenting orders in relation to a child X, who was born in 2018. Her parents had a brief relationship between 2018 and 2019. It was marked by significant family violence perpetrated by the father.

3. The father has not spent any time with X since March 2019, when there was a significant incident of violence which led to an ADVO being made.

4. The mother commenced these proceedings in November 2020. That would appear to have been motivated by the fact that around the middle of 2020 the father began messaging her about spending time with the child.

5. The father was served with the mother’s application and he has taken part in the proceedings, most recently on 19 March 2021. However he has never complied with an order to file a response, notice of risk and supporting affidavit. The last order I made required him to do that by 9 April 2021 and indicated that if he did not do it the matter was likely to be finalised on an undefended basis.

6. The matter is before me today and the father is not on the line, and even if he were, given his continual non-compliance with the filing order it would have been appropriate to deal with the matter on an undefended basis today and that is what I am going to do.

Background

1. The relationship was a short one and the mother gave evidence about some extremely concerning family violence that occurred during the relationship.

2. Part of it was in the form of verbal abuse, but a lot of it was in the form of physical abuse and from reading the mother’s affidavit it appears to have been escalating physical abuse.

3. The mother was pushed and on one occasion she was prevented from leaving the home because the father tied the door handles together with a piece of rope. On that occasion the mother called the police and they intervened.

4. Cohabitation continued but the violence also continued, and it began to take some very serious forms, such as the father pushing the mother down, putting his foot on her head and causing her to be fearful that she might not survive the attack.

5. The mother said that the father stepped on her and pushed her on a number of occasions and she was very frightened.

6. Finally, in March 2019, she attempted to leave the relationship with the assistance of her mother. Her mother put X, who was under a year old, in a motor vehicle. The father attempted to drag X from the motor vehicle and was unsuccessful. He then turned on the mother and began dragging her. Eventually the police were called and that all ended and an ADVO was put into place for the protection of the mother.

7. While the ADVO was in force the father made no attempt to contact the mother to spend time with X but after it expired in 2020 he began to agitate to do so.

8. The father poses a significant risk of harm to the mother and to a child as young as X. His violence was such that the mother could have been killed as a result of his actions. He did not desist from that behaviour until the final occasion when the police were called and an ADVO was taken out.

9. X is a particularly young, vulnerable child who would be quite unsafe spending time with the father given his propensity to lash out both verbally and physically and commit acts of family violence.

10. It is difficult to accept that the only time the father has ever behaved like that is in the context of his relationship with the mother.

11. The other concern about the father is his persistent cannabis use, and if he ever brings an application to the Court seeking to spend time with the child that is an issue that will have to be explored.

12. It is appropriate to make an order that X live with the mother. I could not possibly consider making an order for equal shared parental responsibility given the violence. Another relevant factor is that the father has had no involvement in the child’s life for over two years.

13. The mother seeks an order that the child’s surname be changed to her surname. It is appropriate that I make that order given that the child will be growing up in a household with only the mother and will not seeing the father pursuant to the orders I make.

14. The mother also seeks an order for the issue of a passport and to be able to travel internationally with the child.

15. The mother is from the Country B but she has been in Australia since she was 16. She has been back to the Country B once and she may wish to visit there again and that is entirely understandable. There is nothing to suggest that she is a flight risk and it is appropriate that I make an order for the issue of a passport and an order permitting her to travel internationally.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date:              18 June 2021