Giblin and Baugh

[2013] FCCA 1051

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBLIN & BAUGH [2013] FCCA 1051

Catchwords:
FAMILY LAW – Children – Parenting Orders – interim orders – best interests of the child – parental responsibility – sole parental responsibility – where family violence order recently expired.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Applicant: MS GIBLIN

Respondent: MR BAUGH

File Number: SYC 1920 of 2013

Judgment of: Judge Scarlett

Hearing date: 6 August 2013

Date of Last Submission: 6 August 2013

Delivered at: Sydney

Delivered on: 6 August 2013

REPRESENTATION

Solicitor for the Applicant: Mr Friend

Solicitors for the Applicant: Friend & Co Lawyers

The Respondent: No appearance

ORDERS

UNTIL FURTHER ORDER:

1. The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2011.

2. The child X is to live with the Mother.

3. The Respondent Father is to:

   (a)file and serve a Notice of Address for service within seven (7) days; and

   (b)file and serve a Response and an affidavit setting out the fact upon which he seeks to rely within twenty-eight (28) days.

4. The Application is adjourned to Monday 16 September 2013 for mention at 10:00 am

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1920 of 2013

MS GIBLIN

Applicant

And

MR BAUGH

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a little girl called X for parenting orders. X was born on (omitted) 2011 and so she is twenty-two months old. X lives with her mother.

2. The Father has not yet attended Court.

Background

1. The Mother relies on her affidavit affirmed on 8^th April 2013 in which she deposes that she and the Respondent started living together in (omitted) 2009 and separated in December 2011, when the child was twelve weeks old. It is the Mother’s case that she and the Father had a dysfunctional relationship which she blamed on his ability to hold a stable job and his addiction to smoking marijuana. She believes that he has a mental illness.

2. On 3^rd May 2012 at Kogarah Local Court an Apprehended Violence Order was made against the Father in force for a period of 12 months. It has now expired, but the Mother deposed that the Father was required to attend court on 16^th April 2013 as he was charged with breaching the conditions of the Apprehended Violence Order and using a carrier service to intimidate her former boyfriend.

3. The Mother states in her affidavit that:

   I seek an order that X live with me and that any time, if any, she spends with the Respondent be at a supervised contact centre. I believe that it is not in X’s interest to spend time with the Respondent until he has been psychiatrically evaluated and appropriate measures are taken to ensure she is not in danger from him.[1]

   [1] Affidavit of Ms Giblin  8.4.2013 at paragraph [25]

4. The Applicant commenced proceedings by filing her Application and affidavit on 11^th April 2013. The Application was returnable on 17^th June 2013 but the Applicant’s solicitor experienced difficulty in serving the Application on the Respondent. 

5. An order dispensing with personal service was made on 2^nd July 2013 and the Application was re-listed on 16^th July. The Respondent did not attend Court on that date. An order was made that he should file and serve a response and an affidavit within 14 days and the Application was adjourned to today.

6. The Respondent has not filed a response or an affidavit. He did not attend Court. He forwarded a lengthy email to the Court on 28^th July in which he complained that he had been given inadequate time to prepare a response to the Applicant’s affidavit. He stated that he was unable to attend Court because of work commitments. He sought an adjournment for a period of 6 weeks to obtain funds to instruct a solicitor.

Parenting Orders

1. The Mother’s solicitor, Mr Friend, told the Court that his client was concerned that there were no parenting orders in place relating to the child. His client seeks that any time the Father spends with the child should be under supervision at a contact centre to ensure her safety.

2. When a Court is considering whether to make a parenting order in relation to a child it is required by s.60CA of the Family Law Act 1975 (Cth) to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.

3. One of the primary considerations in s.60CC(2) is the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence. Under s.60CC(3)(j), the Court must consider any family violence involving the child or a member of the child’s family. The Court must also consider whether a family violence order, including an Apprehended Violence Order under the provisions of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), applies, or has applied, to the child or a member of the child’s family (s.60CC(3)(k)).

Conclusions

1. The Respondent will need to file a Notice of Address for Service, which he should do within 7 days. He will be given 28 days to file and serve a Response setting out the orders that he would wish the Court to make and an affidavit in which he states the facts that he would like to rely upon. It is not appropriate to send emails to the Court asking for Court Orders to be made because the other party will not be aware of them.

2. The Respondent should consult a solicitor for legal advice as soon as possible.

3. In the meantime, it is in the child’s best interests for an order to be made providing that she should continue to live with her mother. In the circumstances, because of the allegations of violence and the recently expired Apprehended Violence Order, the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility does not apply (s.61DA(2)).

4. An interim order will be made providing that the mother will have sole parental responsibility fore the child. This can be reconsidered when it is time for the Court to make final parenting orders (see s.61DB).

5. The Application will be adjourned to Monday 16 September.   

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  7 August 2013