Enrique and Enrique

[2010] FamCA 1252

FAMILY COURT OF AUSTRALIA

ENRIQUE & ENRIQUE [2010] FamCA 1252

FAMILY LAW – CHILDREN – Best interests of the child – Where a child will reside – Where father had primary care for a child but has withdrawn care

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(4), 64B

APPLICANT: Ms Enrique

RESPONDENT: Mr Enrique

FILE NUMBER: MLC 7362 of 2009

DATE DELIVERED: 29 November 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 29 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented litigant

SOLICITOR FOR THE APPLICANT: Self-represented litigant

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

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

Orders

IT IS ORDERED THAT:

1. The mother have sole parental responsibility for N, born … March 2006 (“the child”).

2. The child live with her mother.

3. The child spend such time with her father, but only such time with her father as may be agreed between the parents or ordered by this Court.

4. I note in regard to the last mentioned order the applicant mother has indicated to me that she would wish the child to have a relationship with her father and would facilitate such an arrangement if her father were prepared to travel to the ACT, at least in the short term, to enable that time with his daughter to take place.  This is predicated on the fact that the child has not coped well with travel to Victoria.

5. As the father did not attend this day, he may apply to have the Orders set aside or varied provided he files an appropriate Application to do so setting out the Orders that he would seek in substitution for those made this day on or before 4.00pm on 14 December 2010.  Such Application will only be accepted by the Registry if it is accompanied by an Affidavit which explains his absence from the Court this day and the reasons and evidence that would support the different orders that he might be seeking.

6. Otherwise the matter is removed from the pending cases inventory and all existing applications are finalised.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 7362 of 2009

MS ENRIQUE

Applicant

And

MR ENRIQUE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, the application before me is filed on behalf of N’s mother.  N (“the child”) was born in March 2006, and she suffers from a number of disabilities which primarily relate to epilepsy.  These cause her to be slow in her development and to require relatively constant care. 

2. After the parties separated, and the parties are now divorced, they had reached an arrangement which meant that the child spent time with each of her parents, but principally lived with her father.  However, some time ago now, the father contacted the applicant and said that he was unable to, or wished not to look after the child anymore. 

3. Accordingly, for the last 13 months or thereabouts, from either 10 or 11 October 2009, the child has been living exclusively with her mother who has been, in turn, living with her parents to get over the difficult transition period. 

4. It appears that the applicant will now be able to obtain, or has obtained her own accommodation, and is modifying it to accommodate her own needs and those of the child, and will be able to live there.  She is in full-time employment, and the child attends childcare.  I am satisfied she is well cared for while she is there. 

5. The documents have been personally served on the father at his brother’s residence in Victoria.  I am satisfied that he had notice of the proceedings, even if it might have been difficult for him to attend. 

6. It does appear, however, that he has recently obtained employment.  I surmise that it would have been open to him to obtain legal representation for these proceedings if he wanted to do so. 

7. The plain fact of the matter is that apart from inquiries on a number of occasions to the childcare centre that the child attends, the father has not made any contact, and has been paying, presumably because he was not adequately employed, a minimal amount of child support over the relevant period.  He has made no inquiries of the applicant about the child’s health, he has not sought to be involved with any of her doctor’s appointments, notwithstanding that he has received notice of them.  In short, he has made no attempt to contact her direct, even allowing for the fact that any such communication could be quite difficult.

8. In the circumstances, it is appropriate that I should make orders that would ensure that the applicant has the capacity to make appropriate decisions in relation to the child for the future. 

9. It is appropriate that that there should be an order which requires that the child lives primarily with the applicant, and would only spend time with her father by agreement and in circumstances where it is likely that that time would occur in the Australian Capital Territory (ACT).

10. I am satisfied from the evidence before me that travel to and from Victoria was not useful for a child like N and for the difficulties that she presently has. 

11. I am satisfied that under the Family Law Act1975 (Cth), in accordance with the objects and principles set out in s 60B, that the arrangements that I have just discussed would be appropriate arrangements in the best interests of the child.

12. Her best interests are paramount in accordance with s 60CA of the Family Law Act 1975 (Cth), and I am to operate on the presumption, under s 61DA(1) that it would be in the best interests of the child that there should be equal shared parental responsibility. That presumption I find to be rebutted in this matter, rebutted because of the particular circumstances I have outlined above,[1]  the apparent lack of involvement by the respondent in the child’s life; and the need for her mother to have the ability to make decisions important for her future development – particularly bearing in mind the disabilities from which the child suffers.

    [1] Family Law Act 1975 (Cth) s 61DA(4) refers.

13. There is no basis on which I could be satisfied (on the evidence before me) for the proposition that the parents could adequately share the responsibility of parenthood, and it would be, in my opinion, inappropriate for them to do so.  I find the presumption is rebutted, and I propose to make an order for sole parental responsibility for the reasons I have mentioned.

14. In making a parenting order, which I am satisfied the orders I am being asked to make are, I am obliged to take account of the matters under s 60CC of the Family Law Act1975 (Cth), which involves first the two primary considerations, which are the desirability, in effect, that she has a meaningful relationship with both of her parents;[2] (I will come back and discuss that);  and second, that her safety should be a paramount and primary consideration.[3]

    [2] Family Law Act 1975 (Cth) s 60CC(2)(a).

    [3] Family Law Act 1975 (Cth) s 60CC(2)(b).

15. There are thereafter a number of other matters,[4] which I will touch on briefly, but I return for a moment to the question of the desirability of a meaningful relationship with both of her parents.  For there to be a meaningful relationship, it is necessary that the parent must also seek a meaningful relationship.  A failure on the part of a parent to (a) exercise the responsibilities and obligations that come with having a child, and (b) to enjoy the time that might otherwise be available for spending with a child, means that it is impossible for the other parent to go out of her way any more than I am satisfied the applicant has done to try to involve the other parent.

    [4] See generally Family Law Act 1975 (Cth) s 60CC(3).

16. To adapt an old adage “you can lead a horse to water, but you cannot make it drink” – you can lead a father to a child, but you cannot make that person be a parent.  And in this situation, I am satisfied that the father, for whatever reason, has decided that his daughter is going to be better off in the sole care of his daughter’s mother.

17. I am satisfied that the child’s safety is more than coped with by her mother’s care and by the arrangements that are in place, including her family support.  There are no issues of violence as between the parents, of which I am aware, which would bear upon these orders.  I am also satisfied that the applicant understands the meaning and exercises the responsibilities that come with being a parent, and that as a consequence, these are factors which would reflect on the care that the child is having, and would operate in her best interests.

18. There are peculiarities associated with the time and the expense of the time that the child might spend with her father.  In essence, he has shown very little interest over the last 13 months.  Therefore, it might be reasonable to assume there will be few demands by him in the future to seek that his daughter would spend time with him.

19. If he does seek to spend time with the child, it will be difficult and expensive for both the parties, given that the father lives in Melbourne and the mother lives in Canberra.  However, in the long run, it is his responsibility and his obligation as a parent to both apply himself towards that end and then to pay for it by moving or by paying to come to Canberra to spend time with his daughter.  It is not up to the mother to take the child back to Victoria to be with him.

20. Notwithstanding the agreements reached between the parties at an early point, it is clear that the child’s best interests lie with her spending the majority of her time with the mother.  If, in the future, her father changes his attitude to any of the obligations he might reasonably have as a parent, then it may well be that there is still an opportunity for the child to have the benefit of a relationship with both her parents.

21. I accept in this context that the applicant mother has indicated -and I accept her statements about these matters - that if, in the future, the child wants to see her father or, perhaps, in the shorter term, the father wants to see the child, she will facilitate that happening.

22. There are no other matters under s 60CC(3) that I feel it is necessary to refer to today.

23. I find that it would be in the child’s best interests that she should live with her mother, as I have suggested.  The original order sought on a final basis by the mother was qualified in order number 2 by saying that the child should live permanently with her in the ACT.  There is no particular reason to restrict the child’s residence to the ACT, and I do not propose to add the qualification in the orders I make.  Moreover, the third order sought that the child not be taken back to Victoria will be, in my opinion, encompassed more effectively in an order that the child will only spend time with her father as may be agreed between the parties or ordered by a court in due course.

24. I have no explanation from the father as to why he is not in Court today.  If he wishes to dispute the orders or to seek a variation from them because he was not in Court - and I have no explanation about it - he will have an opportunity to apply within 14 days of this date to have the orders varied or set aside, but in doing so, he must file an affidavit explaining his failure to attend today, and he must file a document setting out the orders that he seeks in the proceedings.  I will then arrange for the matter to be dealt with at short notice if that should arise.  I would be surprised if it does, but if it does, then we will deal with it quickly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 29 November 2010.

Senior Legal Associate:

Date:  4 February 2011