Dunleavy& Anor andSchaller

[2015] FamCA 614

FAMILY COURT OF AUSTRALIA

DUNLEAVY AND ANOR & SCHALLER [2015] FamCA 614

FAMILY LAW – CHILDREN - With whom a child shall live - best insterests of the child - application by maternal grandparents - mother deceased - father relinquished parental responsibility

APPLICANT:	Ms Dunleavy and
Mr Dunleavy

RESPONDENT: Mr Schaller

FILE NUMBER: MLC 10557 of 2010

DATE DELIVERED: 4 May 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 4 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Hubert

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. That further service or attempts for service upon the respondent be dispensed with.

2. That for the purposes of s 60I of the Family Law Act the grandparents, the present applicants, have leave to institute these proceedings, notwithstanding that there has been no mediation process or its equivalent conducted between the parties.

3. That the existing orders relating to B, born on … 2009, are discharged.

4. That Ms Dunleavy and Mr Dunleavy have sole parental responsibility for B, born on … 2009.

5. That the child live with Ms Dunleavy and Mr Dunleavy.

6. That the child spend such time with his father as may be agreed with the applicants.

7. That the applicants be at liberty to remove the child from Australia for the purposes of taking him overseas for a holiday for a period not exceeding six weeks (except with further leave of the Court).

8. That the respondent be and is hereby restrained from removing B, born on … 2009, from Australia without further order of this Court.

9. That Ms Dunleavy and Mr Dunleavy have liberty to apply for and to obtain on behalf of B, born on … 2009, an Australian passport, notwithstanding that the consent of the respondent, Mr Schaller (the father of the child) has not been obtained.

10. That the matter is otherwise removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunleavy and Anor & Schaller 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 CANBERRA

FILE NUMBER:  MLC 10557 of 2010

Ms Dunleavy and

Mr Dunleavy

Applicants

And

Mr Schaller

Respondent

REASONS FOR JUDGMENT

1. In the proceedings before me the application relates to B, born in 2009.  the child’s mother, unfortunately, has died, and his father, who is the respondent to these proceedings, has, effectively, relinquished his parental responsibilities both formally – in an order on 31 May 2012 – and practically – by going overseas, and his whereabouts are unknown to anyone who might relevantly know.  Since the death of his mother the child has (essentially) lived with his maternal grandparents who are the current applicants in these proceedings.

2. An order was made on 31 May 2012 which gave sole parental responsibility for the child to Mr and Mrs Dunleavy.  That was qualified, to some extent, by a requirement that there would be – and I note the words used – “so far as possible” consultation with the respondent about major matters relating to the child’s wellbeing.  There were also provisions made in those orders that the child might spend some time with his father on a regular basis.

3. The situation now is that the child’s father has not had contact with him for some time; that the child has continued to be cared for, and I am satisfied properly cared for, by his grandparents; and that it is necessary and important that they should have an unqualified responsibility and right to determine matters relating to his welfare and to have for him, in all practical terms of the word, sole parental responsibility.

4. There is a presumption under the Act that in cases where two parents are alive there should be equal shared parental responsibility.  The presumption, obviously, does not apply in this matter and even though the Dunleavys are in loco parentis they are not the parents.  In this situation it seems clear to me that it is in the child’s best interest that they should have the ability not only to make decisions relating to his future, but also to be able to travel freely with him and for him to enjoy the benefits of such travel.

5. I have carefully noted the evidence that has been filed on behalf of the applicants and I am satisfied that in the circumstances it provides me with the warrant to make the orders that are being sought with some minor variations.  I draw attention to the fact that, under the Act, the best interests of the child are defined to include not only his safety – which is regarded as the most important element for consideration, but also a relationship with each of his parents.  His relationship with his father is not a matter, at the moment, within the control of Mr and Ms Dunleavy, given that Mr Schaller has apparently absented himself not only from his parental duties, but from Australia, and has removed himself from any contact with his son.

6. The matters I take into account beyond that in determining what is in the child’s best interests are that I am satisfied that the arrangements that are presently being proposed provide adequate support – both socially, emotionally, psychologically and educationally – for the child.  And I note the matters relating to his education and development contained in the affidavit filed in support of the application.  I am also satisfied that if Mr Schaller should reappear, that the current applicants would support and encourage a relationship between him and the child to the extent that that was possible, given his attitude so far as to his responsibilities.

7. I am satisfied, also, that from information supplied to me by Mr Hubert from the bar table (I have no reason to doubt the accuracy of it) that there is contact with Mr Schaller’s parents, at least to some extent, and that that relationship can continue to develop if it is necessary or appropriate that it should do so. 

8. There are no other issues that I can see that would bear upon my determination that it is in the child’s best interests for him to have orders that make his grandparents, essentially, have sole parental responsibility for him:  for him to live with them;  for them to be free to take him overseas for holidays;  and for arrangements about his future contact with his father to be left as a matter of agreement at this point or, I suppose, if there is default in agreement in the future someone will come back to court.  One would hope that that was unnecessary.

9. If the child is to go overseas it will be necessary for him to have a passport.  It will be necessary, so far as I am aware, that there should be an order that gives authority for Mr and Ms Dunleavy to make an application for that passport without the consent of Mr Schaller.  I think, given the uncertainties associated with Mr Schaller’s future, it would be appropriate to leave in place the injunction that is binding upon him at the present point and on the Dunleavys, to  not to remove the child from Australia, to the extent that it needs to be modified to enable the child to travel overseas for holidays with his grandparents.  In my opinion, that would certainly be in his best interests and I will make an order accordingly.

10. I am informed that the child’s name was placed on the PACE or Alert list after the making of the last set of orders in this matter on 31 May 2012.  It is appropriate that his name should be removed from that list. 

11. Those, therefore, are the matters that I think are appropriate and, accordingly, I make the following orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 4 May 2015.

Associate: 

Date:  4 May 2015