Daban and Jeffby (No 2)

[2013] FamCA 960

FAMILY COURT OF AUSTRALIA

DABAN & JEFFBY (NO 2) [2013] FamCA 960

FAMILY LAW – CHILDREN – Where the matter proceeded as an undefended hearing – Consideration of s 61DA – Where the court determined, on the evidence, that the presumption of equal shared parental responsibility is rebutted – Where the court determined that it is in the best interests of the child for the mother to have sole parental responsibility for the child.

Family Law Act 1975 (Cth) s 61DA

Dundas & Blake [2013] FamCAFC 133

APPLICANT: Ms D Daban

RESPONDENT: Mr Jeffby

INDEPENDENT CHILDREN’S LAWYER: Mr Ng

FILE NUMBER: SYC 717 of 2013

DATE DELIVERED: 17 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 17 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

Orders

1. That leave is granted to the legal representatives to inspect subpoena material produced by NSW Police.

2. That this matter shall proceed today on an undefended basis.

3. That the applicant mother shall have sole parental responsibility for the child R born … 2005 (“the child”).

4. That the child shall live with the mother.

5. That the child shall spend no time with the respondent father.

6. That the child, at no time, shall be in the company of:

   a.   Ms J Jeffby, paternal aunt;

   b.   Ms J Jeffby’s Partner;

   c.   Ms C Jeffby, paternal grandmother; and

   d.   Mr R Jeffby, paternal grandfather

7. That all applications and cross applications be and are hereby dismissed.

8. That all issues be removed from the Active Pending Cases List.

9. That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.  

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 717 of 2013

Ms D Daban

Applicant

And

Mr Jeffby

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. These are proceedings that were before me on 8 April 2013 for interim parenting orders.  They have been listed today for a final hearing on an undefended basis.

3. The respondent Mr Jeffby was served with a copy of the Application for Final Orders along with copies of the affidavits of the applicant and her mother (that the applicant relies on in these proceedings), a Notice of Child Abuse, Family Violence or Risk of Family Violence and the appropriate court brochures required to be served in accordance with the rules.  On 20 February 2013 the respondent signed an Acknowledgement of Service of those documents. 

4. When the interim orders were made on 8 April 2013 notice of those orders was given to the parties.  In accordance with the usual practice of the court, the orders were then sent to Mr Jeffby at his last known address, he having not appeared at the interim hearing.

5. On 5 September, a process server attempted to serve the respondent with a copy of the orders made on 6 May 2013 and a letter advising that the matter had been fixed for hearing today.  The process server was unable to do so.  When he contacted the person residing at the last known address of the respondent he ultimately spoke with a person called Mr R Jeffby who described himself as Mr Jeffby’s father and said that he hadn’t seen his son in over two months.

6. Calls to Mr Jeffby’s phone number did not ring and the call was cancelled. 

7. On or about the third Saturday in July, the applicant mother and her child were at a craft fair where they were approached by the respondent who said he wished to speak to the child.  The applicant refused and Mr Jeffby then said, ‘I will see you again in court on Tuesday’. Some yelling then ensued.  The only Tuesday that this matter has been listed is today.  It is therefore a reasonable inference to draw that the source of knowledge of the fact that the matter was in court on a Tuesday must have come from the orders that were made on 8 April 2013 and the fixing of a hearing for today on 6 May 2013.

8. Accordingly, I am satisfied that the respondent was served with the relevant documents on 20 February this year and that he had notice of today’s hearing. 

9. It is accordingly appropriate, therefore, for the matter to proceed as an undefended hearing.  The respondent, after having the matter called outside the court today, has not appeared.

10. I will not repeat the matters that I set out in my judgment given on 8 April 2013 and this judgment should be read in conjunction with it.  The only further evidence relied upon are the police records relating to the respondent.  They demonstrate that there have been a number of criminal offences committed by the respondent over the years.  

11. More relevantly, in 2012 he was convicted of contravening an Apprehended Domestic Violence order and carrying a prohibited drug.  In 2013 he was convicted of stalking, intimidating and intending to cause fear of physical harm.  There was also a further contravention of an Apprehended Domestic Violence order in 2013.  This confirms the findings that were made about the violent behaviour of the respondent father at judgment in April this year.

12. Section 61DA of the Family Law Act provides a presumption in favour of shared parental responsibility. In Dundas & Blake [2013] FamCAFC 133 at [57] the Full Court said:

    Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply.

Conclusion

1. I am comfortably satisfied on the basis of the material that is before the court that it would not be in the interests of the child for there to be shared parental responsibility.

2. The respondent has not seen the child since late December 2012.  He has shown little interest in the child or parenting decisions that have been made in relation to the child since then.

3. As pointed out in the earlier judgment, in the times that the child was with the respondent a number of difficulties arose that indicated he was either incapable properly of supervising the child, or if he was, made inappropriate decisions in relation to the child’s care that led, for example, to her viewing pornography, being exposed to drug taking and significant domestic violence. 

4. The evidence establishes that the child is scared of her father and this is not surprising given the violence, which the evidence discloses, that the child has seen.

5. The child’s mother has been a primary caregiver since her birth and effectively made all of the decisions of and in relation to the child’s care since then.  Accordingly, for those reasons and those set out in the earlier judgment it is appropriate to make an order that the mother have sole parental responsibility for the child.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 17 September 2013.

Legal Associate:

Date: 3 December 2013