GEEVES & GEEVES - [2013] FamCA 422

FAMILY COURT OF AUSTRALIA

GEEVES & GEEVES

[2013] FamCA 422

FAMILY LAW – CHILDREN – Children’s living arrangements – where the child lives with the father –where the mother is to communicate with the child by telephone

FAMILY LAW – CHILDREN – Parental Responsibility – where the father sought an order for sole parental responsibility – where there are untested allegations that the child has been the subject of violence at the hands of the mother – where sole parental responsibility is limited and does not allow the father to change the child’s name or relocate overseas with the child – where the mother moved to Japan after separation and has made no attempt to communicate with the child since

FAMILY LAW –CHILDREN – Overseas travel – where the child’s name is to remain on the Airport Watch List until she attains the age of fourteen (14) years

FAMILY LAW – PRACTICE AND PROCEDURE – Service – where the father made an application to dispense with requirement of service upon the mother – where the father and his solicitor have made numerous attempts to serve court documents on the mother in Japan

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Heath & Hemming (No. 2) [2011] FamCA 749
Pavli & Beffa [2013] FamCA 144

APPLICANT:

Mr Geeves

RESPONDENT:

Ms Geeves

FILE NUMBER:

HBC

284

2012

DATE DELIVERED:

23 May 2013

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

23 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Kathleen Ford of Davis Ford

SOLICITOR/AGENT FOR THE APPLICANT:

Ms Kirsten Starkey of Ogilvie Jennings

SOLICITOR FOR THE RESPONDENT:

No appearance on behalf of the Respondent

Orders

FINAL PARENTING ORDERS AS AND FROM 24 AUGUST 2013

All previous parenting orders be discharged in relation to J born … April 2004 (“the child”).
Until the child’s birthday in April 2018:-
(a)the husband and the wife are restrained from removing or attempting to remove or permitting the removal of the child born … April 2004 from the Commonwealth of Australia; and
(b)the Court requests that until the child’s birthday in April 2018 the Australian Federal Police place the name of the child born … April 2004 on the Airport Watch List at all points of international travel and departure from Australia for the purpose of preventing the removal of the said child from Australia in breach of these orders;
(c)from the child’s birthday in April 2018 the child born … April 2004 be removed from the Airport Watch List unless there is further order of a Court exercising jurisdiction under the Family Law Act.
The father have parental responsibility in relation to the long term issues including:-
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing: and
(c)the child’s health;
on condition that:-
a)the father will endeavour to contact the mother in writing and provide his views about any such issue;
b)the father shall endeavour to consult with the mother with regard to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GEEVES & GEEVES [2013] FamCA 422
Case: [2013] FamCA 422
Decision Date

CaseChat Overview and Summary

This case concerned parenting arrangements for a child, J, born in April 2004. The applicant father, Mr Geeves, sought orders for the child to live with him and for him to have sole parental responsibility. The respondent mother, Ms Geeves, had moved to Japan after the parties' separation and had made no attempt to communicate with the child. The father had made numerous attempts to serve court documents on the mother in Japan, which had been unsuccessful. The proceedings were heard in the Family Court of Australia by Benjamin J.

The court was required to determine several legal issues. Firstly, whether to dispense with the requirement of service of court documents on the mother, given the father's extensive efforts to serve her. Secondly, whether to grant the father sole parental responsibility for the child, considering untested allegations of violence by the mother towards the child. Thirdly, the court needed to consider the child's living arrangements and the mother's communication with the child. Finally, the court had to address the matter of overseas travel for the child and whether the child's name should remain on the Airport Watch List.

In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to the paramount consideration of the child's best interests under section 60CA. The court noted that much of the evidence before it was untested, primarily consisting of affidavits from the father and his solicitor. The court granted the father's application to dispense with service on the mother, subject to specific conditions requiring the father to forward copies of the orders, reasons, and relevant affidavits to the mother in Japan. The court also made final parenting orders, granting the father parental responsibility for long-term issues such as education, religious and cultural upbringing, and health, with a process for consultation with the mother. However, this sole parental responsibility was limited and did not extend to changing the child's name or relocating the child overseas without the mother's consent or a court order. The child was ordered to live with the father, and specific arrangements were made for telephone communication between the child and the mother. The child's name was to remain on the Airport Watch List until she attained the age of fourteen years, unless otherwise ordered.

Orders