Goodman and Gillespie
[2015] FCCA 2698
•25 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOODMAN & GILLESPIE | [2015] FCCA 2698 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the child – one child aged six years – parental responsibility – equal shared parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MS GOODMAN |
| Respondent: | MR GILLESPIE |
| File Number: | CRC 84 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 25 September 2015 |
| Date of Last Submission: | 25 September 2015 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 25 September 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mrs Tanner |
| Solicitors for the Applicant: | Coffs Coast Family Law |
| Counsel for the Respondent: | Mr De Greenlaw |
| Solicitors for the Respondent: | State Lawyers Pty Ltd |
ORDERS
UNTIL FURTHER ORDER
All earlier Parenting Orders are discharged.
The Applicant mother and the Respondent father are to have equal shared parental responsibility for the child X born (omitted) 2009.
The child X is to live with the mother.
The father is to communicate with the child by telephone each Wednesday and Sunday between the hours of 6:30 and 7:30 pm by telephoning the child’s mobile telephone number (omitted).
The mother is to allow the child privacy when she is speaking to her father on the telephone.
The Application will be listed for further mention in the Sydney Registry of the Court on 20 October 2015 at 10am and the mother’s solicitor will be granted leave to attend by telephone on that occasion.
IT IS NOTED that publication of this judgment under the pseudonym Goodman & Gillespie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 84 of 2014
| MS GOODMAN |
Applicant
And
| MR GILLESPIE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders by the mother of a girl named X who is six years and seven months old. X was born on (omitted) 2009. The mother is seeking final orders that:
a)the parents should have equal shared parental responsibility for X;
b)the child should live with her and spend time with her father:
i)by telephone; and
ii)at other times as agreed between the parties in writing.
The father filed a Response on 26 September 2014 seeking orders that:
a)the parents should have equal shared parental responsibility for the child;
b)the parents should day to day parental responsibility for the child when she is their respective care;
c)the child should live with the mother;
d)the child should spend time with the father:
i)for three hours a day for a maximum period of a week when he is in (omitted);
ii)for a week during each mid-year school holiday period;
iii)for three weeks during the end of year school holidays; and
iv)at Easter in 2015 and each alternate Easter thereafter.
e)The father should have telephone or Skype communication with the child each day from 6:00 pm to 8:00 pm; and
f)Other ancillary orders.
Background
The background facts are set out to some extent in the mother’s affidavit of 25 March 2014.
The mother was born on (omitted) 1985. The father was born on (omitted) 1981.
The mother deposed in her affidavit of 25 March 2014 that she was in a relationship with the father from 2008 to February 2013. There were two children of the relationship. X was born on (omitted) 2009. Y was born on (omitted) 2013. Sadly, Y died on (omitted) 2013[1].
[1] See Affidavit of Ms Goodman 25.3.2014 at paragraph [2], however, in paragraph [14] of the same affidavit the mother deposed that the child died on (omitted) 2013.
The parties separated on 1 February 2013.
The father left (omitted) on 18 August 2013. The mother deposed that the father was of interest to the Police as a result of injuries sustained by a friend of his on the night of 17 August. That person later died without regaining consciousness.
The mother deposed that neither she nor the child have seen the father since he left (omitted), but the father had telephoned the child almost every evening.
The parties attended a Legal Aid mediation on 1 December 2013 but no agreement was reached.
The mother filed her Application for Parenting Orders on 31 March 2014. The Application was returnable at (omitted) on 16 June 2014.
On 16 June there was no appearance by the Respondent and His Honour Judge Kemp made orders for substituted service. The Application was adjourned to 30 September 2014 for mention.
The Respondent’s then solicitors filed a Notice of Address for Service on 28 July 2014. They filed a Response and a supporting affidavit on 26 September 2014.
The father was represented by an agent on 30 September 2014. The parties entered into Interim Consent Orders providing that:
a)The parents should have equal shared parental responsibility for the child X;
b)The child should live with the mother;
c)The father would spend time and communicate with the child:
i)by telephone on Monday, Tuesday, Thursday, Friday and Saturday;
ii)by Skype on two days a week;
iii)at other times as agreed in writing; and
iv)supervised at the Interrelate Contact Centre as arranged by the father on four weeks’ notice.
His Honour Judge Kemp adjourned the matter to 10 February 2015 for further mention and granted leave to the father to request that a Child Inclusive Conference be allocated by an order made in chambers prior to the adjourned date.
When the matter returned to Court on 10 February 2015 the Court noted that the father had not had telephone or Skype communication with the child, nor had he spent supervised time at Interrelate. The father claimed through his solicitor that he had not done so due to threats on his life, which had apparently ceased.
The Application was adjourned to 7 July 2015 for mention.
The father’s then solicitors, V.L. Macri & Co filed a Notice of Withdrawal as Lawyer on 6 July.
There was no appearance by or on behalf of the father on 7 July. The Application was listed for an undefended hearing or mention on 25 September 2015.
On 9 September 2015 the father’s current solicitors, State Lawyers Pty Ltd, filed a Notice of Address for Service.
Hearing on 25 September 2015
The parties’ lawyers engaged in discussions but eventually advised the Court that they had “reached an impasse”. The mother’s solicitor, Mrs Tanner, noted that the child had not seen the father for two years and would need some time for reintroduction to him before any face to face time with him could occur, but said that her client had no difficulty with telephone communication being resumed.
It emerged that the mother is planning to leave (omitted) and move to the (omitted) in the near future.
Applications for Parenting Orders
As in any application for parenting orders, the best interests of the child must be the paramount consideration (Family Law Act 1975 (Cth), section 60CA). The Court should have regard to the matters set out in sections 60B, 60CC, 61DA and 65DAA of the Act so far as they are relevant. I have done so, but the Court is short of current information necessary to make any extensive parenting orders.
Conclusions
It is significant that the father has not seen his daughter for two years and there needs to be a gradual reintroduction of the father and daughter relationship. The father was having regular telephone communication with the child but even that has fallen into abeyance. The child presumably has a meaningful relationship with her mother, who has been her primary caregiver, but her relationship with her father has faded over about the past year.
It would appear that the Orders made by consent on 30 September 2014 are no longer appropriate and should be discharged. It appears to be uncontroversial that the child should continue to live with her mother.
It also appears not to be in issue that the parties should have equal shared parental responsibility for their daughter, and I will order accordingly.
Where an order is made for parents to have equal shared parental responsibility for their child, the Court is required by s. 65DAA(1) of the Family Law Act 1975 to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. Clearly, that is not the case here, where this little girl has not spent time with her father for two years, and her parents live so far away from each other. The mother currently lives in (omitted) and the father now lives in the Sydney suburb of (omitted).
If the Court does not make such an order, the Court is then required by s.65DAA(2) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent. This is also not the case, for the same reasons.
What is important is for the father to recommence communicating with the child by telephone, and I will order accordingly.
The future progress of the matter
The father did not make any request for an order under s. 11F of the Act for a Child Inclusive Conference or a Child Dispute Conference (without the child taking part), but it may well be helpful if such conference could take place in due course.
The mother’s situation is in a state of flux, as it appears that she will shortly be leaving the (omitted) area and moving to a place on the (omitted). The father lives in a Sydney suburb.
It would appear that (omitted) will no longer be a convenient venue for either party to attend Court. I propose to adjourn this matter to the Sydney Registry for mention in mid to late October, with a view to transferring the proceedings to the Southport circuit sittings of the Court. It appears that the Court will next be sitting in Southport on 1 November this year and the question of a Child Dispute Conference could be considered then.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 1 October 2015
Key Legal Topics
Areas of Law
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Family Law
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