Cornish and Cornish - [2011] FMCAfam 1456

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CORNISH & CORNISH

[2011] FMCAfam 1456

FAMILY LAW – Parenting orders – application for sole parental responsibility of the children by the mother – previous family violence – children have not seen their father for two years – undefended application of mother and Independent Children’s Lawyer acceded to.

Family Law Act 1975 (Cth), s.61DA

Applicant:

MS CORNISH

Respondent:

MR CORNISH

File Number:

MLC 2803 of 2008

Judgment of:

Hartnett FM

Hearing date:

25 November 2011

Delivered at:

Melbourne

Delivered on:

25 November 2011

REPRESENTATION

The Applicant:

In person

The Respondent:

No appearance

Solicitors for the Respondent:

Digala & Associates

Counsel for the Independent Children’s Lawyer

Ms Lonergan

Solicitors for the Independent Children’s Lawyer:

Hogg & Reid

THE COURT ORDERS BY CONSENT OF THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER THAT:

All previous orders in relation to the children [X] born [in] 2004 and [Y] born [in] 2004 be discharged.
The said children live with the mother and she have sole parental responsibility.
Time between the children and the father be as agreed between the parties, such agreement to be in writing.

IT IS DIRECTED THAT:

The Minute of Proposed Orders, marked ‘Exhibit A’, be placed upon the Court file.

AND THE COURT NOTES THAT:

Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2803 of 2008

MS CORNISH

Applicant

And

MR CORNISH

Respondent

REASONS FOR JUDGMENT

These reasons are delivered ex tempore. The proceedings commenced with the mother filing an initiating application on 13 May 2011. The mother has since amended that application by amended initiating application filed 27 September 2011.
I am satisfied that there has been service upon the father of that amended application. There is an affidavit of service filed by the mother on 25 October 2011 attesting to service of such amended initiating application by post on 20 October 2011. The father has been afforded procedural fairness.
The mother relies upon an affidavit sworn by her on 13 May 2011. Her evidence is contained therein. It is unchallenged by the father in that the proceedings are undefended.
The father initially participated in the proceedings, filing a response and affidavit on 29 August 2011. He subsequently filed a notice of discontinuance on 23 September 2011 and thus he seeks no orders from the Court.
When the matter was called this day, the respondent father failed to appear.
During the currency of the proceedings, an Independent Children’s Lawyer was appointed by orders made 31 August 2011. The Independent Children’s Lawyer and mother joined this day in seeking orders which the Court shall make, and which are made on an undefended basis, due to a lack of appearance by the father.
The mother’s application is for parenting orders. The children of the parties are [X] and [Y], born [in] 2004. The parties’ twin daughters are now aged seven and a half years.
Orders were made in the Family Court of Australia at Melbourne on

3 June 2008 which remain operative. Those orders were made by consent and provide that each of the parties have equal shared parental responsibility for their children, that they live with their mother and spend time and communicate with their father as set out in order 3 of those orders.
Order 3 of the said orders provided for weekend and weekday overnight time spent with, together with half of each school term vacation, and further provision for Christmas holidays and special occasion days. The orders also provided for the children to spend time and communicate with their paternal grandparents each Thursday, and for up to three holiday periods each year of no more than seven days on each occasion and at times acceptable to both the father and the mother.
During the currency of these proceedings, the mother sought permission to remove [X] and [Y] from the Commonwealth of Australia for the purposes of holidaying with them in Bali in October 2011. Such holiday was to be for a period of approximately two weeks. The father refused such permission, and the mother required an order of the Court to obtain passports for the children and for permission for them to travel.
[X] and [Y] have not seen their father since November 2009 when an incident occurred which traumatised them. At that time, they were staying with the paternal grandparents, Mr & Mrs C, in accordance with the orders referred to in paragraph 9 herein. They witnessed their father verbally and physically assault their paternal grandmother. The grandmother sustained an injury to her face. The mother deposes in her evidence before the Court (being her affidavit sworn 13 May 2011) that the witnessing of this act of violence has extremely affected the relationship the children had with both their father and their paternal grandparents, and that the children have refused to have any further contact with them.
The mother further alleges that the father has demonstrated continuous violence toward her and the children, and as a consequence, she obtained an intervention order on 22 January 2010 at the Magistrates’ Court of Victoria at Ringwood. The persons protected by the order are the mother and two children, and the order is operative until midnight on 22 January 2012, unless extended or varied prior to that time. The respondent father was served with a copy of the application and summons but was not present at the hearing when the intervention order was made.
The mother further alleges, in paragraph 3 of her affidavit:
“I have been advised that Mr Cornish has pending charges for serious drug offences, being cultivation and trafficking of Marijuana and Meth Amphetamines.”
The Court can make no finding as to this allegation and has before it no other evidence in respect of any pending charges. On the balance of probabilities, this is not a matter that the Court makes any finding in relation to.
The mother further alleges that the father has failed to advise the Child Support Agency on two prior occasions as to when he has obtained employment, and that he has not provided the children with appropriate financial support since separation. I have no independent evidence as to this but again her evidence is unchallenged by any cross-examination by the father.
The mother seeks an order for sole parental responsibility. I find the presumption contained in s.61DA of the Family Law Act 1975 (Cth) (“the Act”) that it is in the best interest of these children for the parents to have “equal shared parental responsibility” for them is rebutted. This is so because it is established factually that the father has engaged in family violence (s.61DA(2) of the Act). It is also inconsistent with a promotion of the children’s best interests, as submitted by both the mother and the Independent Children’s Lawyer (s.61DA(4) of the Act) to make such an order. The children have not seen their father for approximately two years. The mother in the intervening period has solely provided for all their needs: emotional, social and physical. She has solely attended to all their educational needs. In addition, it was necessary for her to obtain an intervention order in a local court to protect the children from both physical and psychological harm, an issue arising out of their father’s alleged violence.
The children will continue their residence with their mother and spend time with their father as agreed between the parties. It may be that the father will wish to be involved in the lives of his children in the future and to that end it is open to him to enter into a dialogue with the mother via a mediation process and/or to seek an order of the Court. Undefended proceedings do of course limit the exploration of many relevant issues in children’s matters.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 22 December 2011