Cotes & Hensley
[2022] FedCFamC2F 536
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cotes & Hensley [2022] FedCFamC2F 536
File number(s): PAC 3302 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 12 April 2022 Catchwords: FAMILY LAW – Parenting – undefended as against the mother – mother has not engaged in proceedings – young child – father to have sole parental responsibility – finding that the father will likely foster relationship with the mother and the child. Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 12 April 2022 Place: Parramatta Appearing for the Applicant: Ms Smith Solicitors for the Applicant: Family Focus Legal Appearing for the Respondent: No appearance ORDERS
PAC 3302 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR COTES
Applicant
AND:
MS HENSLEY
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
12 APRIL 2022
THE COURT ORDERS THAT:
1.The Father shall have sole parental responsibility for X born in 2020 (‘the Child’).
2.The Child shall live with the Father.
3.The Child shall spend time with the Mother as agreed between the parents in writing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cotes & Hensley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
JUDGE OBRADOVIC:
These are parenting proceedings concerning 19 month old X, who was born in 2020.
The father is the applicant, and the mother is the respondent. The mother has not participated in the proceedings, and having regard to the evidence before the Court, I am satisfied that she has been served and is aware of the proceedings.
The father has filed one short affidavit which sets out, in the briefest of terms, the evidence relevant to the matters the Court needs to consider. The father also sought leave and was granted leave to lead some further oral evidence at the hearing today to supplement his very brief affidavit.
The relevant chronology of the parties' relationship and other pertinent matters is as follows:
a.The father is 24 years old. He was born in 1997.
b.The mother will be 19 years old this year. She was born in 2003.
c.The parties were in a relationship from about November 2019 to October 2020, and they separated when X was about seven weeks old.
d.The father has been the child's primary carer since then, and the mother has not participated in any meaningful way in X's young life.
The father sets out in his affidavit the time that the mother has spent with the child. Such time was for short periods over a short period of months. That is, from December 2020 until February 2021. The last time X saw his mother was in or about March 2021, which was at around the same time that the father last had communications with the mother. The mother has not only not engaged in the proceedings, but she has not engaged with the father's attempts at mediation or trying to resolve this matter.
The mother has not engaged in X's life at all or in any meaningful way. The Court has no information whatsoever from the mother about relevant matters that the Court would need to consider, including where she lives, who she lives with, what her current situation is and what her proposals are for the future in relation to X's care.
X lives with his father at the home of the paternal grandparents.
X has a half-sibling, B, who was born in 2019. The father last saw B when he was a few days old, and B’s mother has moved with B to Town C. The father has not had the opportunity of spending any time with B due to B’s mother's lack of communication with the father. The father pays child support for B. Unfortunately for X, he has no relationship with his half-sibling.
While the father proposes that X spend time with the mother as agreed, there is little evidence as to the father's attempts to personally engage with the mother, and, indeed, there is little evidence as to how he proposes to approach reaching agreement with the mother about X's time with her.
As a result of some oral evidence today, the Court has at least some satisfaction that the mother would be able to get in conduct with the father, should she so choose. The father has remained living at the same address and the father has the same phone number that he had previously when the mother was communicating with him.
The father has also given evidence, which the Court accepts, that if the mother does reach out to him that he would, in those circumstances, attempt to come to an agreement about X spending time with her in a way that was child-focused and safe for X.
In circumstances where the mother has not engaged and where there has been no communication with the father for over a year, any order but an order for the father to have sole parental responsibility is likely to cause the father difficulties, is likely to cause X difficulties, and will not be in the child's best interest.
Therefore I am satisfied that the presumption of equal shared parental responsibility has been rebutted on the evidence and is not in the child's best interest and that an order for the father to have sole parental responsibility for the child is in X's best interest.
The orders which the father seeks are on a final basis, but do leave the door open for the mother to come back into X's life and be a part of that, should she choose to do so.
The evidence supports a finding that the father will facilitate time, if it is safe for X and in his best interest to do so, and, that the father will foster a relationship between the mother and the child if the mother reaches out to him.
For those reasons, the Court therefore makes orders as set out in the forefront of these Reasons for Judgment.
17 I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 17 May 2022
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