DA SILVA & DUARTE

[2018] FamCA 31

FAMILY COURT OF AUSTRALIA

DA SILVA & DUARTE [2018] FamCA 31

FAMILY LAW – PARENTING – Undefended hearing – Where the mother seeks orders for sole parental responsibility, for the child to live with her and for the child to spend time with the father as agreed in writing – Where the father has not seen or contacted the mother or child since September 2016 – Where the father has not filed any material in the proceedings and has not appeared at any court events – Where it is in the best interests of the child that such orders be made.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

APPLICANT: Ms Da Silva

RESPONDENT: Mr Duarte

FILE NUMBER: SYC 7444 of 2015

DATE DELIVERED: 31 January 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 31 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Potter

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge

THE RESPONDENT: No appearance

Orders

1. The mother have sole parental responsibility for the child B born on … 2005 (“the child”).

2. The child live with the mother.

3. The child spend time with the father as agreed between the parties in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Da Silva & Duarte has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7444 of 2015

Ms Da Silva

Applicant

and

Mr Duarte

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. By her Initiating Application filed on 30 June 2017 Ms Da Silva (“the mother”) seeks an order that she have sole parental responsibility for B, born in 2005 (“the child”), who is the only child from her relationship with Mr Duarte (“the father”).  

2. Both the mother and father are citizens of Country C and commenced their relationship in Country C in March 2003.  The parties came to live in Australia in February 2013 and separated on a final basis in September 2013.  The mother intends to remain in Australia and is presently awaiting a determination of her application for permanent residency. After their separation, the father continued to live in Australia.

3. Following separation the parties agreed that the father would spend each alternate weekend with the child.  While the father did spend the agreed time with the child, there were occasions when he failed to attend and other occasions on which he would arrange with the mother to spend time with the child but not arrive, to the disappointment of the child.

4. On 4 September 2016 the father returned the child home knowing the mother was not there and, because the child did not have a key to enter the apartment building, she was left unattended by the father on the street. The mother sent a text to the father telling him not to do that again. Neither she nor the child has had any contact with the father since that date. The mother asserts that she does not know why the father stopped seeing the child.  She says she encouraged their relationship and has never prevented the child from seeing her father. 

5. In 2013 the mother commenced a relationship with Mr D and they remain in that relationship.  They have a child, E.

Procedural history

1. On 30 June 2017 the mother filed an application seeking orders that she have sole parental responsibility for the child and that the child live with her. She further sought an order that the child spend time with the father as agreed between the parties in writing. The mother was granted an exemption from filing a s 60I certificate by a Registrar on that same day on the basis that the father’s whereabouts were unknown.

2. The father was served with the mother’s Initiating Application and affidavit on 20 July 2017 at his last known address. The father has not filed any material or attended any court events in the proceedings.

3. On 21 August 2017 orders were made for the mother’s solicitor to inform the father in writing of the orders made on that day, namely directions for the filing of any response by the father and that the matter had been adjourned until 20 September 2017 at which time the Court would consider listing the matter for an undefended hearing. An affidavit from the mother’s solicitor annexes an email sent to this effect on 25 August 2017 and a letter to this effect sent to the father’s last known address on 1 September 2017. No response was received to either communication and on 20 September 2017 the matter was placed into the pool to be allocated a date for an undefended hearing.

4. The mother said that since September 2016 she has visited the father’s last known address several times, and has attempted to call and text message the father on his last known telephone number without reply.  The mother says that she does not know whether the father is still in Australia and she is not aware that he has family in Australia.  She further says that she does not have close contact with his family in Country C.

5. Finally, the mother says that she has attempted to contact the father through Facebook without success.

6. I am satisfied that the father was served with the initiating documents and that the mother and her solicitor have made every reasonable effort to inform him of the developments in the proceedings, including that the Court would consider hearing the matter undefended in his absence. In these circumstances, it is appropriate that the hearing proceed on the evidence presently filed before the Court.

The evidence

1. The mother does not currently work and has been the sole care giver for the child since her birth.  Her partner, Mr D supports both the mother and the child financially and the mother deposes to a loving and supportive relationship between the child and Mr D.  She says that the child appears to consider him as a father.

2. The mother says that Mr D attends parent-teacher meetings at the child’s school, helps her with her schoolwork and helps take her to appointments.

3. The child is doing well at school and is a diligent student. She is learning piano and takes swimming lessons.  She has a group of friends which whom she socialises and has a close relationship with Mr D’s family and a warm and loving relationship with her half-brother.

Consideration

1. These parenting proceedings fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth) (“the Act”). In particular, s 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

2. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. 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.

3. Section 61DA(1) requires the Court to 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.

4. It is obvious from the mother’s affidavit that she and the child have a loving and meaningful relationship and that is clearly of benefit to the child.  She is, indeed, the parent who has shouldered the burden of the responsibility for the child and who has been responsible for her care and progress, assisted by Mr D.  The father has apparently abandoned his responsibilities to the child and, by his actions, has rejected his parental responsibility.

5. The mother’s evidence as to her care of the child and of her progress and development well satisfies me that it is in the best interests of the child that the order sought by the mother that she have sole parental responsibility be made.  In making that order, it will, in effect, give formality to the existing circumstances of the child.

6. Equally, although the father has stepped away from his responsibilities as a parent, the mother seeks an order which keeps the door open to a renewed relationship between the child and her father should he so choose.  It is clear from the mother’s evidence that despite some matters in the father’s treatment of the child which gave her some disquiet, she and the father have historically been able to agree as to the time to be spent between the father and the child. Thus, I will make the orders as sought by the mother.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

31 January 2018.

Associate:

Date:  31 January 2018