Eddy and Debono

[2013] FCCA 1544

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDDY & DEBONO [2013] FCCA 1544

Catchwords:
FAMILY LAW – Parenting – Application for parenting orders – where father seeks to discontinue the Application – parental responsibility – final parenting orders made.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 68L

Applicant: MR EDDY

Respondent: MS DEBONO

File Number: SYC 4463 of 2010

Judgment of: Judge Scarlett

Hearing date: 5 September 2013

Date of Last Submission: 5 September 2013

Delivered at: Sydney

Delivered on: 5 September 2013

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Mr Nathan

Solicitors for the Respondent: Bondi Law

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. The Applicant is granted leave to discontinue his application.

2. All earlier parenting orders are discharged.

3. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born on the (omitted) 2005.

4. The child X born (omitted) 2005 is to live with the Mother.

5. The Father is to spend time with the child at times agreed between the parties.

BY CONSENT

1. Unless the Mother is granted a waiver, the Mother is to pay to Legal Aid NSW the sum of $2,472.50, for her one‑half share of the costs of the Independent Children’s Lawyer in the proceedings, within 90 days of the date of this order.

NOTATION

1. It is noted that the Father has already paid his one-half share of the costs of the Independent Children’s Lawyer in the proceedings.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4463 of 2010

MR EDDY

Applicant

And

MS DEBONO

Respondent

REASONS FOR JUDGMENT

1. This is an application for parenting orders in relation to the parties’ daughter, X, who was born on (omitted) 2005.  The application has been listed for mention today by order of His Honour, Judge Kemp, made on 10^th July 2013. 

2. On that occasion his Honour noted there was no appearance by the Applicant Father and that his solicitors had filed a Notice of Withdrawal of Lawyer on 3^rd July 2013.  The Notice advised that the Applicant’s new representative was one Ms S who had provided a mobile telephone number and an email address.

3. Ms S did not attend Court on 10^th July and has not filed any documents on the Applicant’s behalf. Ms S is not, in fact, a lawyer but a migration consultant, and was providing some assistance to the Applicant. 

4. His Honour had also received into evidence a hard copy of an email received by the Independent Children’s Lawyer’s assistant, from the Applicant, which was sent at 4.50pm on Monday 8^th July 2013, saying:

   As we spoke now, confirming that I withdraw all cases regarding my daughter, X, and this withdrawal was since 18 February this year. 

5. His Honour noted the Respondent was going to make contact with Ms S to determine the status of her representation.  His Honour also noted that the Respondent and the Independent Children’s Lawyer were to consider what proposed orders could be made with the potential consent of the Applicant, and that may involve a Legal Aid conference. 

6. His Honour then adjourned the matter until today for mention.

Background

1. The Proceedings were commenced on 15^th July 2010, when the Applicant filed an application in this Court, returnable on 28^th September 2010.  In the Application he sought orders that:

   (a) The parties should have equal shared parental responsibility for the child; 

   (b) The child would live with the mother and spend time with the father; and 

   (c) The mother should be restrained from removing the child from the Commonwealth of Australia.

2. The application was opposed by the Mother.

3. On 23^rd November 2010 Judge Kemp, ordered the parties should attend a Child Dispute Conference with the family consultant, under the provisions of s.11F of the Family Law Act. 

4. On 17^th May 2011 his Honour ordered that the child’s interests should be separately represented by a lawyer under the provisions of s.68L of the Family Law Act.  

5. On 30^th July 2012 the parties entered into interim consent orders providing that:

   …(a) the child would live with the mother;  (b) the mother was to have sole parental responsibility for the child, subject to her notifying the father prior to making any decision relating to a major long‑term issue concerning the child, taking his views into account and notifying him in writing of her decision;  (c) each party would attend a parenting course;  (d) until the father had completed the parenting course, his time with the child would be under supervision at the (omitted) contact centre, and unsupervised from after school until 5.30 pm each Monday;  (e) upon the father completing the parenting course, he would spend time with the child unsupervised (i) from 10 am to 3 pm each Saturday, (ii) each Monday from after school until 5.30 pm, and (iii) at other times by agreement.

6. An updated family report was ordered. 

7. The updated family report was subsequently released to the parties on 18^th February 2013.  On that same date the Court noted that the Father had commenced unsupervised time with the child, and that the Independent Children’s Lawyer was to arrange for the parties to attend a Legal Aid conference.  The application was adjourned to 10^th July for mention.

8. Since that time the Father has attended Court today.  He has informed the Court that he wishes to discontinue the application and has filed in Court a Notice of Discontinuance. 

9. Whilst the Applicant has sought to discontinue formally on the day that the matter is before the Court, in my view, it is appropriate that he should be allowed to do so.  Mr Eddy told the Court that, as a result of these proceedings, his relationship with his daughter had improved significantly, and his relationship with the child’s mother had also improved.

10. They were, in fact, cooperating about his spending time with his daughter.  He told the Court that it was not his view that X should live with him, but that he did wish to spend time with her.  It was put to the Court that the current arrangement in the interim orders was no longer as convenient for the Father as he would prefer, and the Father did not feel there was any particular need for a strict specification of time. 

11. Mr Nathan, solicitor, who appeared for the Mother, told the Court that he had been given similar instructions by his client.

12. It was certainly his client’s view that the relationship between her and X’s father had improved significantly and that they were able to cooperate in arrangements for him to spend time with her.  I indicated to the parties that I was reluctant just to discontinue the application and leave existing interim orders standing in perpetuity, especially as they were no longer entirely suitable.  And I expressed the view that there did need to be some certainty as to the areas of parental responsibility, with whom this child should live, and time spent with the Father.

13. If there were no orders in force, then the Father would be left with no parenting order in his favour, which would not be in his best interests, let alone the child.  Ms C, who appeared for the Independent Children’s Lawyer today, agreed that the proceedings should be discontinued, but also agreed with my comments from the bench, that there should be some certainty about this child’s arrangements.  Ms C also put to the Court that the parties had agreed on the question of the costs of the Independent Children’s Lawyer and a minute of consent orders signed by the parties was filed in Court.

14. In dealing with parenting matters the Court is required, under section 60CA of the Family Law Act, to consider the best interests of the child as the paramount consideration. The Court considers the matters going to the child’s best interest by having regard to the matters in subsections (2) and (3) of section 60CC of the Act. In this regard the Court is often assisted by the provision of a Family Report, as in this case and by the submissions of the Independent Children’s Lawyer, as in this case.

15. The Court must consider the question of parental responsibility, including the presumption, under subsection 61DA(1), that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child.  That presumption does not apply in cases of abuse or family violence and can be rebutted by evidence that satisfies the Court that it is not in the child’s best interest. 

16. I note that previously there has been an order that the Mother have sole parental responsibility.  But that, of course, was an interim order and under section 61DB of the Act the Court, when making final orders, must disregard the allocation of parental responsibility made in an interim order.

17. This is not a case where, in my view, it is in this child’s best interests or reasonably practicable for her to spend equal time with each parent, which is a matter that the Court must consider under section 65DAA.  It is, however, pleasing for the Court and of credit to the parents that they have arrived at a decision concerning parenting arrangements for their daughter, so that she can spend quality unsupervised time with her father.

18. It is to the Father’s credit that he has taken the decision to discontinue the application at this stage, noting that he has made serious efforts to improve his relationship with his daughter and with her mother, and that this appears to be working, which has been confirmed by Mr Nathan, who appears for the child’s mother.  In my view, the earlier parenting orders, which were made on an interim basis, should be discharged.

19. I am of a view that this is clearly a case, now, where the child’s parents should have equal shared parental responsibility for her, because each parent wishes to play a role as father and mother for their daughter, respectively, and they are able to cooperate in doing so.  It has always been the case that X would live with her mother, and it is the parties’ intentions that that would continue.  But it is certainly the case that she will spend time with her father, and I am satisfied that the parties have the ability and the inclination to come to an agreement about the time that X spends with her father.

20. It is noted that the Father has already paid his one‑half share of the costs of the Independent Children’s Lawyer in the proceedings.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 3 October 2013