Ezzard and Morton

FAMILY COURT OF AUSTRALIA

EZZARD & MORTON

[2018] FamCA 980

FAMILY LAW – CHILDREN – undefended hearing – where the mother has not participated in the hearing – where the mother previously removed the child from Victoria and a recovery order was issued – where the child currently lives with the father – where the father submits that the mother poses a risk to the child – where the father’s evidence is unchallenged – where the father currently facilitates the child having supervised time with the mother – order that the child live with the father – where the presumption of equal shared parental responsibility is rebutted – order for sole parental responsibility.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 67U

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

APPLICANT:

Mr Ezzard

RESPONDENT:

Ms Morton

FILE NUMBER:

DGC

2249

2015

DATE DELIVERED:

23 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

7 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Williams Winter

THE RESPONDENT:

No Appearance

Orders

That the applicant father have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the child, X born … 2011.
That the child live with the father.
That the child spend time with the mother at such time, place and on such conditions as nominated by the father from time-to-time.
That all extant parenting applications be otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Ezzard & Morton 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 MELBOURNE

FILE NUMBER: DGC 2249 of 2015

Mr Ezzard

Applicant

And

Ms Morton

Respondent

REASONS FOR JUDGMENT

Introduction

The father, Mr Ezzard, by an Amended Initiating Application filed 15 May 2017 seeks final parenting orders in respect of the child the child, aged seven years.
The mother is Ms Morton. She has never participated in the proceedings and has not filed any documents in response to the father’s application.
As a result of the mother’s conduct, the father seeks leave to proceed with his application for final parenting orders on an undefended basis. These are my Reasons for Judgment with respect to the father’s application.

Background

The father is the applicant in the proceedings. He is aged 40 years and lives with the child in Suburb B. The father works from home and attends his office in Suburb C during school hours.
The mother is the respondent in the proceedings. She is aged 42 years and resides in Sydney.
The parties commenced cohabitation in February 2005 and married in 2010. They separated in May 2013 and were divorced in October 2015.
There is one child of the relationship X, who is aged seven. The child is in Year 1 at D School. He currently lives with his father and spends supervised time with the mother, which is detailed below. The paternal grandfather also lives with the father and the child.

Procedural History

The father filed an Initiating Application on 31 March 2017 in which he sought both interim and final parenting orders. The father deposes that that application was prompted by the mother’s removal of the child to Sydney without his knowledge or consent. As a result of that action, the father sought orders restraining the mother from removing the child from the Commonwealth of Australia and also orders for the return of the child to the father’s care.
The father deposed in his affidavit filed 31 March 2017 at paragraph 9 that during a telephone conversation with the mother on 20 March 2017 the mother told him she had moved to Sydney with the child:
…because she was told telepathically by a “psychic”…and one [television personality], that she had to fear for her life. Apparently, I was going to be violent toward the [mother] in the future putting the [mother’s] life at risk.
The matter was listed before Registrar Field on 26 April 2017. The mother did not appear at that hearing and filed no documents in response to the father’s application. That day orders were made that:-
·    The matter be adjourned to 16 May 2017;
·    The father’s Amended Initiating Application filed 7 April 2017 and affidavits filed in support be served upon the mother care of the maternal grandmother, Ms Morton Snr;
·    The mother appear/or be represented at the adjourned date;
·    The mother file and serve any responding documents by no later than 15 May 2017.
The mother did not file any documents in compliance with the orders made on 26 April 2017.
The father filed a Further Amended Initiating Application on 15 May 2017 in which he seeks the following final orders:
·    That the Applicant have sole parental responsibility in relation to the child the child…
·    That the child live with the Applicant.
·    That the question of time spent between the child and the Respondent be reserved.
…
The father also sought interim orders in that application, including an application for a recovery order.
In addition to the Further Amended Initiating Application, the father also filed a Notice of Child Abuse, Family Violence of Risk of Family Violence on 15 May 2017. At Part F of that document the father alleges:
…[The child] is at risk of being abused.
Following separation I spent regular time with [the child]. However in March 2017 the Mother began displaying disturbing behaviour. She told me that she had received telepathic messaged from a psychic called [Ms E] who lived in [the], USA.
The mother has also told me that she had received telepathic messages from [a television personality] telling her that he wished to marry her. The Mother also reported that she had been told telepathically that she should fear for her life.
In late March 2017 the Mother disappeared from Melbourne taking our son the child with her. I filed a missing persons report and engaged a Private Investigator however I have been unable to locate the Mother nor my son the child. I am afraid that in the Mother’s delusional state she may harm our son.
The matter came before Senior Registrar FitzGibbon on 16 May 2017. Notwithstanding the orders of 26 April 2017 requiring her attendance, the mother did not appear at that hearing. That day orders were made that until further order, the child live with the father and spend no time with the mother. Further, a recovery order was made pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”) and an order was made placing the child’s name on the Airport Watch List. The matter was otherwise adjourned to 7 June 2017.
In his affidavit filed 21 March 2018 the father deposed that following the issue of the recovery order the Australian Federal Police located the child in Suburb F, Sydney. On 19 May 2017 the father collected the child from Sydney and immediately returned to Melbourne with the child. The child has lived with the father at his home since that date.
On 22 May 2017 the father filed an Affidavit of Service of Mr G in which Mr G deposed that on 15 May 2017 he had served on the maternal grandmother, Ms Morton Snr by hand the orders made 26 April 2017, an unsealed Amended Initiating Application, an Unsealed Notice of Child Abuse, Family Violence, or Risk of Family Violence. Also filed that day was the Acknowledgement of Service signed by Ms Morton on 15 May 2017 confirming her receipt of the documents.
On 7 June 2017 the matter was again heard by Senior Registrar FitzGibbon. There was no appearance by the mother that day. Senior Registrar FitzGibbon made a number of orders including that until further order:
·The father have sole parental responsibility for the child;
·The mother be restrained from attending within 100 metres of any place where the child lives, is enrolled at school or other place where the child attends.
The interim orders previously made that the child live with the father and the mother spend no time and have no communication whatsoever with the child continued.
Order 8 of the orders made on 7 June 2017 provided that the matter be placed in the list of cases awaiting allocation to a judicial docket.
In his Ex Tempore Reasons for Judgment dated 7 June 2017 Senior Registrar FitzGibbon noted as follows at paragraph 4:
Nothing has been heard from [the mother]. It is understood that at the time the police located and executed the recovery order, Court documents, as set out in order 12 of my orders, were provided to her. Today her aunt, uncle and siblings are present in Court to observe and because they are gravely concerned, of course, for her welfare.
The father’s evidence, as contained in his affidavit filed 21 March 2018, is that on 17 July 2017 his lawyer was contacted by a solicitor from Sydney Legal Aid New South Wales who informed him that the mother had attended upon that office. That solicitor requested that the father’s lawyers forward all court material to him, including the orders made 7 June 2017. On the same date the father’s lawyers sent an email to a lawyer from Legal Aid New South Wales enclosing copies of the father’s affidavits filed 31 March 2017 and 5 June 2017, his further Amended Initiating Application filed 15 May 2017 and the Orders dated 7 June 2017.[1]
[1] Affidavit of the father filed 21 March 2018, Annexure BE2.
By email dated 27 July 2017 the father’s lawyer sent a further email to the lawyer at Legal Aid New South Wales requesting an update as to the mother’s position and confirming the father’s request that the mother telephone him or that she provide him with a number on which he can contact her. The lawyer from Legal Aid New South Wales responded to that correspondence by email dated 1 August 2017. That email stated that he had met with the mother in an advice clinic and that he does not have instructions as to the mother’s position.[2]
[2] Ibid Annexure BE3.
The father deposed that the mother sent a birthday present to the child in 2017. The parcel was postmarked “Suburb H, Sydney”.
The father contacted the mother using Facebook Messenger in early January 2018. He deposed that he informed the mother that he was seeking sole parental responsibility for the child and that he was currently awaiting a court date for his application. The father deposed that the mother refused to divulge her address, but did inform him that she had purchased a café in Suburb H and planned to live and work there.
On 20 January 2018 the father met the mother at a venue in Sydney. Again the mother refused to provide the father with her contact details. The father again informed the mother that he was pursuing an order for sole parental responsibility. The mother did not indicate whether she would respond to the father’s application before the Court. The father deposed that his only means of communicating with the mother is by Facebook Messenger.
The father deposed that since that time the mother has made seven trips to Melbourne. On those occasions the father has allowed the mother to stay at his property in Suburb J. The mother has spent time with the child at the Suburb J property during her visits to Melbourne, the father taking the child to the property. Those visits have been of approximately three to four hours duration and the father has supervised the time.
The matter was allocated to my docket in March 2018 and ultimately listed before me on 7 May 2018.

Hearing on 7 May 2018

The matter was listed for a first day hearing in my docket on 7 May 2018. The father was represented by Counsel at that hearing.
The mother was called by my court officer in the Court precincts at the commencement of the hearing. There was no response to that call.
Given the mother’s failure to attend the hearing, the father sought that the matter proceed on an undefended basis.
The father relied upon the Affidavit of Service of Ms K filed 9 April 2018. That affidavit confirms that on 3 April 2018 the mother was served by hand with a copy of the father’s affidavit sworn 21 March 2018 and a letter. The first page of the father’s affidavit notes that the next court date is 7 May 2018. The mother signed an Acknowledgment of Service on 3 April 2018 acknowledging receipt of those documents.
On 1 May 2018 the father filed an Outline of Case Document prepared in anticipation of the hearing listed on 7 May 2018. Paragraph 14 of that document sets out the orders sought by the father. The father’s case outline document was forwarded to the Court and the mother by email dated 1 May 2018 (Exhibit A1). The subject of that email is noted as “[Ezzard & Morton]…Hearing Monday 7 May, 2018”.
It was submitted on behalf of the father that the matter should proceed on an undefended basis given the mother’s failure to attend Court and participate in the proceedings. The mother has filed no documents in the proceedings and has not attended any Court event since the father’s Initiating Application seeking parenting orders was filed on 31 March 2017.
Having regard to the affidavit of service of Ms K and Exhibit A1 I am satisfied that the mother has had notice of the hearing listed on 7 May 2018. I am also satisfied that the mother had notice of the final orders sought by the father as contained in his Outline of Case Document. Accordingly, I am satisfied that the mother has been afforded procedural fairness. Given her failure to attend at the hearing listed before me on 7 May 2018 or to file any documents in the proceedings, I am satisfied that the husband should have leave to proceed with his application on an undefended basis.

Documents relied upon and orders sought by the father

The father relied upon the following documents in support of his application:-
·    Outline of Case filed 1 May 2018;
·    Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 15 May 2017;
·    Affidavit of father filed 31 March 2017;
·    Affidavit of father filed 5 June 2017;
·    Affidavit of father filed 21 March 2018;
·    Affidavit of Ms K filed 9 April 2018;
·    Exhibit A1.
The orders sought by the father in his Outline of Case Document filed 1 May 2018 are as follows:
(i)That the Father have sole parental responsibility in relation to the child X (“the child”).
(ii)That the child live with the Father.
(iii)That the child spend time with the Mother at times, placed and under such conditions as specified by the Father from time to time.
(iv)That the Watch List Order in paragraph 5 of the Orders made on 16 May 2017 remain in full force and effect until further Order.
(v)That the Applicant Father have general liberty to apply.

Legal Principles

Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the primary and additional considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. For the reasons set out later in this judgment I am satisfied that it would be contrary to the child’ best interests for his parents to have equal shared parental responsibility.
Findings are made on the balance of probabilities having regard to the evidence. In what follows, statements of fact constitute findings of fact.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-
119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)

There can be no doubt as to the desirability of the child having a meaningful relationship with both parents. However, the mother, by her conduct, has limited the ability of the Court to support her relationship with the child; she has filed no documents in the proceedings, nor has she attended at any of the Court events. Other than her visits to the child in Melbourne for brief periods, which at the time of the hearing had occurred on seven occasions since the child was recovered from her, the mother has taken few active steps to foster or promote her relationship with the child since the commencement of the parenting proceedings in March 2017.
Further, the father’s unchallenged evidence is that the mother has provided no means of communication to enable the child to communicate with her on a frequent or regular basis. The time spent between the mother and the child since May 2017 has occurred only as a result of the efforts of the father to facilitate that time, he providing her with accommodation in Melbourne as well as making the child available for the time and supervising that time.
Having regard to that history, in my view, there is little prospect of the child having the opportunity of an ongoing meaningful relationship with the mother and accordingly, there is little utility in attempting to craft orders to foster that relationship in those circumstances.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

The father commenced these proceedings following the mother’s unilateral removal of the child from Melbourne to Sydney. As a result of the mother’s actions, the father sought a recovery order. Eventually, the mother and the child were located at a backpacker’s hostel in Suburb F, Sydney. The father travelled to Sydney following notification from the Australian Federal Police as to the child’ whereabouts and returned with him to live in Melbourne.
The father submits that having regard to the mother’s actions which gave rise to the commencement of the proceedings, the mother poses a risk of physical and psychological harm to the child.
In addition to those matters the father relies upon the Notice of Child Abuse, Family Violence or Risk of Family Violence filed on his behalf on 15 May 2017. At paragraph 10 of that document the father alleges that the mother has displayed disturbing and delusional behaviour, including her claims that she has been receiving telepathic messages from a psychic who lives in the United States of America as well as from a television presenter.
It was submitted on behalf of the father that the mother is unstable, that she has exhibited delusional behaviour and absent any indication that she is undertaking treatment for such behaviour, she poses a risk to the child. The father’s evidence as to the mother’s behaviour is contained in his affidavits filed 31 March 2017, 5 June 2017 and 21 March 2018 and is unchallenged.
Having regard to the mother’s conduct in removing the child to Sydney which necessitated a recovery order to secure his return, coupled with the father’s evidence as to the mother’s erratic and disturbing behaviour I am satisfied that there is a need to protect the child from the risk of being subjected to physical and psychological harm in the mother’s care.
I must now consider the additional considerations.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

There is no evidence before me as to any views expressed by the child. Given his age, in my view even were there evidence as to his views, little weight could attach to them.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

Section 60CC(3)(c) the extent to which each of the child’s parent has taken, or failed to take, the opportunity:

(i) To participate in making decisions about major long-term issues in relation to the child; and

(ii) To spend time with the child; and

(iii) To communicate with the child

In his affidavit filed 21 March 2018 the father deposes as to his relationship with the child. Since the child’ return to Melbourne in May 2017 he has lived with the father and his paternal grandfather. The father deposes that the child has enjoyed holidays with his father in Sydney, Brisbane and Perth. Further, the father deposes that he has facilitated the child spending time with members of his extended family, including with members of the maternal family.
The father has also sought to support and encourage the child’ relationship with the mother. To that end he has endeavoured to communicate with the mother, has travelled to Sydney in January 2018 to meet with the mother and has supported the mother’s visits to Melbourne by providing her with accommodation and facilitating supervised time between the child and the mother.
Having regard to the father’s unchallenged evidence regarding his care of the child, I am satisfied that he is a committed parent, dedicated to ensuring that all of the child’ physical and emotional needs are met.
The father has been solely responsible for making decisions regarding the child’ long-term care, welfare and development since he assumed sole care of him in May 2017.
The mother has failed to participate in the proceedings, and has taken no active role in the child’ life since May 2017. There is no regular communication between the mother and the child and she has spent only limited supervised time with him. The mother seeks no orders for time with the child.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child

The father has been solely responsible for the child’ financial support since May 2017. The father has enrolled the child in D School where he is in Year 1. The father is solely responsible for all fees associated with the child’ attendance at that school.
Following the child’ return to Melbourne from Sydney, the father organised for the child to attend upon a child psychologist, Dr L to support the child in relation to his removal from Melbourne (by the mother) in March 2017 and the absence of the mother from his life since his return to the father’s care. The father has been responsible for all arrangements associated with the child’ attendance on that counsellor.
Having regard to those matters I am satisfied that the father has fulfilled and will continue to fulfil his obligations to maintain the child.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The orders sought by the father represent a continuation of the existing parenting arrangements that have been in place since May 2017. The mother does not seek any orders in relation to the child. Accordingly, I am satisfied that there will be no change in the child’ circumstances upon the finalisation of these proceedings.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

Given the mother seeks no orders to spend time or communicate with the child, I am satisfied that this consideration is not relevant.
Since May 2017 the father has facilitated and supported the child having supervised time on the occasions that the mother has travelled to Melbourne. The father seeks an order that time between the mother and the child continue on the basis that the child spend time with the mother at such times and on such conditions as nominated by the father. I am satisfied, having regard to the mother’s failure to participate in the proceedings coupled with the father’s demonstrated support of the mother’s time, notwithstanding her disengagement from the child’ life that the orders sought by the father are in the child’ best interests.

Section 60CC(3)(f)the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs:

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The father has demonstrated his ability to meet all of the child’ physical, emotional and intellectual needs. He has been attending to all aspects of the child’ care since May 2017, including ensuring his attendance at private school and upon a counsellor. In so doing, the father has demonstrated his commitment to ensuring the child has the opportunity to reach his full potential; the father has demonstrated a positive and steadfast commitment to his responsibilities as a parent.
The mother was living with the child at a backpacker’s hostel in Sydney at the time the recovery order was executed. Since then, the mother has been a largely absent figure in the child’ life, offering no reliable physical or emotional support to him.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

To the extent these matters are relevant they are referred to earlier in this judgment.

Section 60CC(3) (h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

This consideration is not relevant to the matter.

Section 60CC(3)(j)any family violence involving the child or a member of the child’s family;

Section 60CC(3) (k) if a family violence order applies, or has applied, to the child or a member of the child’s family, any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

There are no allegations of family violence involving the child or a member of the child’s family, nor are there any family violence orders involving the parties to these proceedings.

Section 60CC(3)(l) whether it would be preferable to make the order that would be east likely to lead to the institution of further proceedings in relation to the child;

These proceedings arose as a result of the mother’s unilateral action in removing the child from Victoria to Sydney. The father had no notice of the mother’s intention to remove the child from Victoria, nor was he provided with details as to the child’ whereabouts upon that removal. As a result, the father commenced these proceedings and sought a recovery order. The proceedings have been on-going since that time. The mother has failed to engage in these proceedings, having filed no Court documents, nor attending any Court events.
Having regard to that history, in my view it is appropriate and in the child’ best interests that final orders be made to provide him with certainty and stability as to his future parenting arrangements.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

There are no other relevant facts or circumstances.

Conclusion

The father seeks orders that he have sole parental responsibility for the child. In circumstances where the mother has spent only limited supervised time with the child since May 2017, and the father has otherwise been solely responsible for all aspects of his day-to-day care, welfare and development since that time, I am satisfied that pursuant to s 61DA(4) of the Act that the presumption in favour of equal shared parental responsibility is rebutted. In my view, it would be contrary to the child’ best interests were there to be any sharing of those responsibilities.
Since May 2017 the father has been the one constant in the child’ life whilst the mother has absented herself from the child’ world. The father and the child have no knowledge as to where the mother lives, and their only means of communicating with her is via Facebook Messenger. Having regard to all of those circumstances I am satisfied that it is appropriate and in the child’ best interests that the father have an order for sole parental responsibility. This will ensure that the father has the ability to continue to make all decisions necessary to safeguard the child’ long-term care, welfare and development.
The father also seeks orders that the child live with him. That order represents a continuation of the arrangements which have been in place since May 2017. The evidence before me satisfies me that all of the child’ physical, emotional and intellectual needs are being met by the father. In addition, the father has ensured that the child continues to have the opportunity of spending time with the mother on a supervised basis and also that he have the opportunity of maintaining a relationship with members of the maternal family.
The child is attending a private school and the father has ensured that he has engaged with a counsellor to support the child in managing the transition into his full-time care as well as the absence of the mother from his life.
I am satisfied, having regard to those arrangements, that the father has displayed an absolute commitment to his parental responsibilities and that he will continue to do so. I am satisfied that it is in the child’ best interests that I make orders as sought by the father that he continue to live with the father.
The father seeks orders that the mother spend time with the child at such times, places and conditions as specified by the father. That is the arrangement that has been in place between the parties since May 2017. The father’s unchallenged evidence is that he has facilitated the child spending time with the mother on a supervised basis and that he has actively supported that time by providing the mother with accommodation during those periods. I am satisfied having regard to that unchallenged evidence that it is appropriate and in the child’ best interests that such arrangements continue.
Whilst the father originally sought orders for a continuation of the Airport Watch List order, by application of the father filed 1 October 2018 he sought the discharge of that order. Orders were made by Senior Registrar FitzGibbon on 17 October 2018 discharging the Watch List Order and permitting the father to take the child to a place outside Australia. Having regard to the determination of that issue, I will not make any orders regarding those matters.
Accordingly, the orders I make are as follows:-
(1)That the applicant father have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the child, X born … 2011.
(2)That the child live with the father.
(3)That the child spend time with the mother at such time, place and on such conditions as nominated by the father from time-to-time.
(4)That all extant parenting applications be otherwise dismissed.
(5)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 23 November 2018

Associate:

Date: 23 November 2018

[2018] FamCA 980

23 November 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction