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 | of | 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 any such issue;
c)the father and mother will make a genuine effort to come to a joint decision about such issue;
d)if no agreement is reached between the parties then, within fourteen (14) days, the father shall make the final decision and advise the mother, in writing, of the decision about such issue; and
e)this limitation on time shall not apply if there is a question of emergency in which case the father has the sole resonsibility.
This order for sole parental responsibility does NOT give the father sole responsibility as to questions of major long term issues about the child’s name and/or changes to the child’s living arrangements to outside the Commonwealth of Australia, without the consent of both parents or order of a court exercising jurisdiction under the Family Law Act.
The child live with the father.
The child and mother may communicate by telephone each Monday, Wednesday and Friday at 6.00pm or otherwise as agreed bewteen the parties.
The child communicate with the mother as and when she wishes.
The child spend time with the mother as agreed between the parties.
Both parties keep the other informed of their respective addresses and telephone numbers.
The father keep the mother informed of the child’s progress at school.
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.
Service of these proceedings upon the mother is dispensed with, subject to:-
(a)Within twenty one (21) days the father forward copies of the documents set out below, to the mother at:-
(i)… , Japan by International pre-paid post; and
(ii)forward the documents to her electronically in scanned form to … and … ;
(b)The documents to be sent are:-
(i) a copy of these orders;
(ii) a copy of the reasons to which these orders relate;
(iii)a copy of the affidavits of the husband, his solicitor and Dr B;
(iv)a copy of the application filed 18 April 2012 together with the 2 applications in a case (in English).
Leave be given for the mother to apply, in relation to these parenting orders, up to 23 August 2013.
IT IS DIRECTED
The father file an affidavit of compliance with the order dispensing service, within twenty eight (28) days from the date hereof.
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS NOTED
The parenting issues have not been determined after a defended hearing and have been determined on the untested evidence of the father, his solicitor and Dr B.
IT IS FURTHER ORDERED
All oustanding applications be dismissed.
This matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Geeves & Geeves 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 HOBART |
FILE NUMBER: HBC 284 of 2012
| Mr Geeves |
Applicant
And
| Ms Geeves |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings relating to parenting arrangements for the child J, (“the child”) who was born in April 2004 and is now aged nine.
The applicant father filed an application in the Federal Magistrates Court (as it then was) on 18 April 2012. The father sought orders that the child live with him and that he have sole parental responsibility. In addition the father sought orders that the mother communicate with the child at regular intervals; that the child communicate with the mother as and when she wishes; that the mother spend time with the child as agreed between the parties; that the parties keep each other informed as to their contact details; and that the father keep the mother informed as to the child’s progress at school.
The mother has not participated in these proceedings and all attempts made by the father and his solicitor to serve the mother have been unsuccessful.
ISSUES
There is an issue as to whether the requirement of service upon the mother should be dispensed with given the significant efforts of both the father and his solicitor to bring these proceedings to the mother’s attention.
There is also the matter of parental responsibility and whether the father should have sole parental responsibility for the child. This is to be considered in the context of both the child and the father having made allegations that the mother has subjected the child to violence.
There is significant issue in the fact that all evidence before this Court is that of the father and is untested.
A further matter to be considered is whether it is appropriate for the child’s name to remain on the Airport Watch List.
BACKGROUND
The matter came before Baker FM (as she then was) on 1 May 2012. Her Honour made ex parte orders that the child’s name be placed on the Commonwealth Airport Watch List; that the child live with the father in Tasmania; and that the mother, who was and apparently still is residing in Japan, be served with documents.
Since then the matter has frequently come before the Federal Magistrates Court (as it then was), now the Federal Circuit Court, until it was transferred to this Court.
On 23 May 2013 I heard an application to dispense with the requirement of personal service of the documents upon the mother. It is apposite to set out the background in respect of these proceedings. That background is taken, albeit in an untested way, from the affidavits of the father. He has filed a series of affidavits: 18 April 2012; 1 May 2012; 17 August 2012; 27 August 2012; 24 April 2013; and 9 May 2013. The affidavits relate to the substance of his application and to the significant endeavours he has made to serve these documents upon the mother in Japan.
The father also relies upon affidavits by his solicitor, Ms Kathleen Ford, filed 1 May 2012, 27 August 2012 and 4 April 2013.
It appears from the evidence that the father is aged 45 and the mother is aged 44. The father asserts that the parties commenced cohabitation in Sydney in October 1994 and were married in January 1995. Subsequently the parties moved to Hobart in July 1995 and their daughter was born in April 2004.
In April 2012, the father purchased a ticket for the mother to travel to Japan. On 8 April 2012, the father spoke with the mother by telephone and communicated his intention to separate from her. He believes that she has remained in Japan since this time. The father asserts in his affidavit that he has been the primary carer for the child and that the child has been the subject of violence at the hands of her mother.
In an affidavit filed in the Federal Magistrates Court (as it then was) on 1 May 2012, the father provided contact details for the mother in Japan, being both postal and email addresses. The father filed a further affidavit on 17 August 2012 setting out the improvements in the child’s wellbeing and behaviour since separation, particularly in relation to her schooling. He also stated that he had communicated with the mother in relation to her accepting service of Court documents.
The child began living with her paternal grandparents in Sydney in late May 2012 and was enrolled in a catholic primary school from late July 2012. The father deposed that the child was flourishing in that environment and that after securing a job he moved to Sydney in early November 2012.
In his affidavit, filed 27 August 2012, the father deposed that he wrote a letter to the mother and sent it to her by international courier. According to the documentation annexed to the affidavit an attempt was made to deliver the document but it did not succeed.
In his affidavit filed 24 April 2013 the father said that he remained in Sydney, was living with the child in an apartment, and that she was thriving at her new school.
The father also deposed that he had arranged for translation of Court documents into Japanese, in accordance with the requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). He deposes that these documents were not served on the mother and were returned to Australia.
In the same affidavit the father deposed that he received a letter from the mother on 22 February 2013 requesting that he send a number of personal items to her in Japan. He stated that the mother had written her return address on the envelope which contained the letter. The father deposes that he recognised the handwriting as that of the mother and noted it was the same address in Japan to which he had attempted to send previous correspondence.
The father filed an affidavit on 16 May 2013 in support of his application for the requirement of service to be dispensed with. It is clear that attempts were made to serve documents through the Hague Service Convention and that the mother has not accepted these documents. The father’s solicitor has filed a number of affidavits in relation to endeavours she has made to fax and send material to the mother. I have had regard to those affidavits filed 1 May 2012, 27 August 2012 and 8 April 2013, including the cost of translation of documents from English to Japanese which exceeded $2000.
I have made an order in accordance with the father’s application to dispense with service of the documents upon the mother subject to some conditions. I have ordered that the father is to forward a copy of the orders and these Reasons to the mother in addition to copies of all affidavit material and applications referred to in these Reasons.
I have also made an order that allows the mother to apply to this Court in relation to those orders. In respect of those orders I note that they have not been heard on their merits and that none of the evidence has been tested.
In relation to the substantive application, on the evidence before me, a number of things are clear: firstly, that the child has been in her father’s sole care since at least April 2012 and secondly that an Airport Watch List order is in place. The balance of the orders sought by the father are relatively innocuous in terms of the status quo except the matter of parental responsibility.
I have made a final order to bring the substantive proceedings to an end. In making that order I have had regard to the material set out in the husband’s affidavits which I referred to earlier in these Reasons. I have also had regard to the application and to a report annexed to the affidavit of Dr B filed 17 August 2012.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a pathway for determining parenting arrangements for children.
Section 60B of the Act sets out the objects and underlying principles to ensure that the child’s best interests are met. Section 60CA requires the Court to consider the best interests of the child to be the paramount consideration.
In determining the best interests of the child, the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B; in particular to ensure the child have the benefit of both of their parents having a meaningful involvement in their life. This consideration must be balanced against the need to protect children from abuse, neglect and family violence.
In Heath & Hemming(No 2) [2011] FamCA 749, Kent J set out the legislative approach to parenting under Part VII of the Act. I have endeavoured to determine this case in accordance with that guidance. In addition, Kent J considered the pathway in determining parenting orders under Part VII including the outline of the source of the court’s power pursuant to the Act: -
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
I have considered and adopted the pathway suggested by Kent J. There is a need, of course, to protect the child from harm. In this case there are significant issues as to the allegations of the mother’s discipline and verbal abuse of the child and I have had regard to that material. The child wishes to remain living with the father. It is clear from the evidence of the father and of Dr B that the child is apprehensive about resuming a relationship with the mother. Accordingly I find that this must only occur in the circumstances where the child feels safe.
I am conscious, of course, that this matter is being heard in the absence of the mother and that in the event the mother participates in these proceedings it may be necessary for all of this evidence to be tested. In the meantime I have made arrangements which promote the best interests of the child.
As I have discussed above, the benefit to a child of having a meaningful relationship with both of his or her parents must be balanced against the need to protect the child from verbal and physical abuse. The child’s views are set out in the report of Dr B and I have had regard to those views including her wish to remain in Sydney.
In terms of the relationship between the child and each of her parents, the father has been the primary carer for the child, at least since April 2012. The mother has not engaged with the child in any meaningful way since that time. On his evidence, the father undertook the role of primary carer for the child prior to separation and has continued this role since. The father has fulfilled his parental obligations; the mother has not done so.
The orders sought by the father do not attempt to change the status quo. In light of these Reasons and the notations I have made the orders do not prevent the mother from seeking alternative orders. It seems that the father has demonstrated his capacity to care for the child. I cannot make a finding as to the mother’s capacity as she has not had the opportunity to provide evidence in that regard. The father has shown, on his evidence, a positive approach to the responsibilities of parenthood.
I have had regard to the allegations of family violence contained in the father’s affidavits and I have put orders in place to meet those needs. I have considered the matters under s 60CC(4)(a) as this matter was commenced prior to June 2012. The first issue I have to address is the question of parental responsibility. The presumption under section 61DA does not apply given the serious allegations of violence raised by the child in her interview with Dr B and by the father in his affidavit material.
Having considered all of the material and the father’s evidence that the mother has not engaged with the child since separation, it seems to me appropriate that there be an order that the father have sole parental responsibility. In doing so I am alert to the issues raised by Watts J in Pavli & Beffa [2013] FamCA 144 as to the breadth of parental responsibilities and the need to constrain those bearing in mind the ability to relocate with the child, change the child’s name and so on.
As such, I have placed some constraints on the orders in regards to parental responsibility. In terms of residence I have made an order as sought by the father in his application. In relation to the matter of the Airport Watch List I have made an order that the child’s name remain on the list until such time as she attains the age of 14 years. Beyond that age it seems to me inappropriate that a child’s name remain on the watch list. If the child wishes to travel overseas on school excursions or for that matter should she wish to visit her mother, I see no reason why that should not occur once she attains the age of 14 years. If the father has any significant concerns in relation to the Airport Watch List for the period between the child’s fourteenth and eighteenth birthdays the option is open to him to return to Court and apply for the appropriate orders.
The remainder of the orders relate to the child living with the father in New South Wales. The child has been living in Sydney since May of last year and there seems to be no reason why she should not continue to live there. On the evidence before me she is thriving. In the circumstances, I find that there should be an order that the child live with her father and that she communicate with her mother. Accordingly, I have made those orders. I believe these orders will enable the child to maintain a relationship with both of her parents.
I have had regard to the difficulties that the father and his solicitor have experienced in attempting to serve the mother. I believe the mother has knowledge of these proceedings. I have made an order to dispense with any requirement to serve documents upon the mother subject to some conditions about notifying her of this decision. The orders provide that the mother is able to make an application in relation to these orders within a period of three months. For the purpose of facilitating any subsequent application by the mother I note that the orders have not been made following a defended hearing and have been made in the absence of the mother.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 May 2013.
Associate:
Date: 23 May 2013
0
5
0