COGGINS & TEBBITT

[2019] FCCA 3930

FEDERAL CIRCUIT COURT OF AUSTRALIA

COGGINS & TEBBITT [2019] FCCA 3930

Catchwords:
FAMILY LAW – Parenting – undefended hearing – ex tempore Reasons for Judgment – where service proven by applicant – where bests interest of the child to make the orders as sought by the applicant.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC, 61DA, 65DAA

Federal Circuit Court Rules 2001 (Cth), rr 6.14, 6.15

Applicant: MS COGGINS

Respondent: MR TEBBITT

File Number: SYC 2524 of 2019

Judgment of: Judge Morley

Hearing date: 12 December 2019

Date of Last Submission: 12 December 2019

Delivered at: Sydney

Delivered on: 12 December 2019

REPRESENTATION

The Applicant appeared on her own behalf.

No appearance by or for the Respondent.

ORDERS

1. The orders made on 25 August 2011, in the Federal Magistrates Court of Australia as it then was, at Parramatta, are discharged.

2. The mother, MS COGGINS, born in 1970, has sole parental responsibility for the child X (“X”), born in 2009.

3. The Applicant mother has sole parental responsibility, and sole responsibility in any manner required by the relevant legislation, and in particular, the Australian Passports Act 2005, in relation to application for an Australian passport for the child X, born in 2009, and in relation thereto, any requirement in relation to the consent of the Respondent father, MR TEBBITT, born in 1962, is dispensed with.

4. The Applicant mother has sole parental responsibility, and sole responsibility in any manner required by the relevant legislation, and in particular, under the relevant legislation in Country B, in relation to application for a French passport for the child X, born in 2009, and in relation thereto, any requirement in relation to the consent of the Respondent father, MR TEBBITT, born in 1962, is dispensed with.

5. The child live with his mother.

6. Any time to be spent between the child and the Respondent father, will be at the discretion of the Applicant mother.

7. Any Application by the Respondent father pursuant to Part 16, Rule 16.05(2)(a), in particular, or any of the matters referred to in Rule 16.05(2) of the Federal Circuit Court Rules 2001, must be made within 21 days of service on the Respondent father of a sealed copy of the orders made today.

8. In relation to the service on the Respondent father of a sealed copy of the orders made today, I order that such service may be effected by substituted service, and that the methods of such services are the same as those set out in order 2 of the orders made on 27 September 2019.

THE COURT NOTES:

(a)In relation the substituted service order made on 27 September 2019 and the substituted service order made today, both pursuant to Rule 6.14 of the Federal Circuit Court Rules 2001, the Court has taken into consideration on both occasion those matters referred to in Rule 6.15 of the Federal Circuit Court Rules 2001.

(b)The orders made today in relation to parenting arrangements for the child X, born in 2009, have been made with the best interests of that child as the paramount consideration as required by s 60CA of the Family Law Act 1975 and such orders are within the meaning of Article 3 of the International Convention of the Rights of the Child.

(c)It is the intention of the Applicant mother to have the orders made today registered for enforcement in Country B, which is the usual place of residence of the Respondent father, and for that purpose, the Applicant is at liberty to provide a copy of these orders to the relevant authorities in Country B.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2524 of 2019

MS COGGINS

Applicant

And

MR TEBBITT

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by the applicant mother following an initiating application she filed on 18 April 2019 seeking parenting orders in relation to the child X born in 2009.  The respondent to the application is the child’s father Mr Tebbitt.

2. An amended initiating application was filed by the applicant mother on 31 May 2019 and an application in a case was filed by the applicant mother on 25 September 2019.  The matter first came before the court on 3 July 2019 before Senior Registrar Campbell.  On that day, the matter was adjourned to 9.30 am on 27 September 2019 before me.

3. On that day, I considered evidence in relation to attempts to contact, locate, and serve the respondent father, presented to the Court by way of affidavit material, and I made orders in relation to substituted service and in particular orders relating to service on the respondent father of the orders made by me on 27 September 2019, which included:

   a)An order that the respondent file and serve by 4pm on 29 November 2019 any response pursuant to the Federal Circuit Court Rules 2001 (Cth), and I note that no response has been filed; and

   b)An order providing for substituted service on the father as particularised in those orders by way of forwarding documents to two specified email addresses and by registered postage to his specified location addresses in Country B.

4. I have received oral evidence under oath from the applicant mother today and I have marked documents provided by the applicant mother as exhibits 1, 2, 3, and 4.  On the basis of that evidence, I am satisfied that the mother has complied, and complied fully with the service Court order requirements set out in the orders made 27 September 2019.  Accordingly, I am satisfied that all possible efforts have been made to put the respondent father on notice that the matter will proceed today on an undefended basis and the following orders will be made on the undefended basis, unless there is an appearance before the court today at 9.30 am by the father or by legal representatives on his behalf.

5. The matter has been called outside the Court.  There is no appearance by the respondent father and no appearance on his behalf.  Accordingly, I find that it is appropriate to proceed with an undefended hearing in the matter and that the father has been accorded procedural fairness in relation to the matter proceeding on the undefended basis.

6. The final orders sought by the applicant mother are for a discharge of orders made by the Court on 25 August 2011.  Those orders were made, at that time, by consent and provided that:

   a)The child X live with the mother;

   b)The parties have equal shared parental responsibility for the child; and

   c)Providing for a graduated scheme of time to be spent between the father and the child, culminating when the child turned 5 years of age, with the father spending unsupervised time with the child for the first half of his school holiday period, provided the father gives the mother four weeks’ notice in writing of the dates he wishes to spend with the child.

7. I have considered the evidence of the mother that she has provided to me in affidavits filed in these proceedings being her affidavits sworn or affirmed by her on 17 April 2019 and filed 18 April 2019, her affidavit sworn or affirmed by her on 31 May 2019 and filed that day, and her affidavit sworn or affirmed by her on 23 September 2019 and filed 24 September 2019.

8. I am satisfied on the basis of the evidence contained in those affidavits that it is in the best interests of the child X to make the orders as sought by the mother in these proceedings.

9. In that regard and in compliance with the mandate for the Court to follow a legislative pathway on any occasion when parenting orders are being made, I turn attention to section 60CC of the Family Law Act 1975 (Cth) and the considerations set out therein. In relation the primary considerations, the first is the benefit to a trial of having a meaningful relationship with both of the child’s parents.

10. On the evidence before me, there has been a singular failure on the part of the father to take appropriate steps to pursue having a relationship with the child X, and therefore, he has denied the child the opportunity to have and to develop a relationship between father and child, let alone a meaningful relationship between father and child.

11. On the evidence, there has been no contact between the mother and the father since 2014 and despite strenuous efforts made by the mother to contact the father and to serve the father personally and to bring these proceedings to the attention of the father. There has been no response by the father other than the very strong implication in the exhibits entered into evidence today that the father has specifically rejected taking part in these proceedings by refusing to take any action to accept service of documents.

12. The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abusive attacks or family violence. In the evidence presented by the mother in the affidavits I referred to the mother refers to there having been occasions of family violence, coming well-within the definition of family violence contained in section 4AB of the Family Law Act 1975 (Cth) perpetrated by the father.

13. In the circumstances of this case, the weighting between the two primary considerations cause the Court to consider that the need to protect the child from physical or psychological harm has taken precedence, unfortunately, over the benefit of the child having a meaningful relationship.

14. I have already made comment about the father’s failure to afford the child the opportunity to have a meaningful relationship between parent and child.  If the father thinks that in the future he can dip in and out of the child’s life, perhaps raising the child’s hopes and expectations only to fall again, then the father in taking that course would be almost certainly causing psychological harm to the child, and it is that harm that needs to be prevented by making the orders sought, and sensibly, by the mother in this undefended hearing.

15. In relation to the additional considerations, I will simply note that there is no appropriate evidence before me in relation to views expressed by the child, but this is a case where whatever the child’s views may be, it appears very unlikely that the child’s views – if they are on the side of having a relationship with his father – will be honoured in any way by the father.

16. I made comment in relation to the nature of the relationship between the father and the child. There would appear to be virtually no relationship. The evidence makes plain that the nature of the relationship between the child and his mother is close and loving, and that the mother has been the child’s sole caregiver, financial support, and parental figure throughout most of the child’s life.

17. Consideration in 60CC(3)(c), being the extent to which each of the child’s parents has taken, or rather the father has taken the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and communicate with the child is a strong consideration in favour of making orders sought by the mother today, in view of the father’s complete failure to involve himself in any way in the child’s life and to provide for the child.

18. In that regard, and in relation to the further additional consideration going to parties complying with their obligation under the legislation to financially support child, I note that orders were made in the Federal Circuit Court of Australia by his Honour Judge Monahan of fairly recent time in relation to outstanding child support payable by the father for the benefit of the child, those orders being made on 20 March 2019. On the evidence before me, there is still a failure by the father to provide or offer any form of support for the child.

19. Consideration of the practical difficulty and expense of the child spending time with and communicating with his father, given that the father seems to reside principally in Country B, is a not a factor that I need to weigh heavily in this matter, given that, on the evidence before me, it has been the father’s practice in the past to move between Country B and Australia quite easily.  With no evidence from the father indicating that there is anything in particular to take into account in relation to him spending time with the child either in Australia or in Country B, then there is nothing to be done with that consideration other than to say it does not weigh in any way against the making of the orders sought by the mother in this undefended hearing.

20. The mother has shown complete capacity to provide for the needs of X’s both emotionally and intellectually, whilst the father, on the evidence before me, has displayed a total lack of capacity to appreciate his absence from the child’s life means that he is not only not providing for those needs but he may be causing damage emotionally to the child.

21. I find that none of the other factors in section 60CC need to be taken into account. The mother makes application that the existing orders made on 20 August 2011 which included an order that the parties have equal shared parental responsibility for the child be vacated, and all of the evidence in the findings I make under the consideration set out in 60CC, I intend to make the orders sought by the mother which includes an order that she have sole parental responsibility for the child.

22. That being the case, I turn to section 61DA and the presumption of equal shared parental responsibility, and on the evidence I find that there has been family violence perpetrated by the father toward the mother and accordingly I find that the presumption referred to in section 61DA does not apply and so need not be rebutted.

23. I find it is appropriate in the matter to make an order that the mother has sole parental responsibility for the child X. Having made that finding, it is unnecessary for me to turn to the matters in section 65DAA.

24. Accordingly, in relation to all of the above, I find it is appropriate to make the orders sought by the mother in this undefended hearing.  The mother has worded those orders appropriately in the circumstances of being self-represented, and in making orders I will keep the intent of the orders sought by the mother and I will simply reword them as appropriate for the legislation.

25. The court notes that in relation to the substituted service order made on 27 September 2019 and a substituted service order made today, commonly both pursuant to rule 6.14 of the Federal Circuit Court Rules2001 (Cth), the Court has taken into consideration on both occasions those matters referred to in rule 6.15 of the Federal Circuit Rules 2001 (Cth).

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate: 

Date: 22 October 2020