Ha and Lan

[2014] FCCA 2417

FEDERAL CIRCUIT COURT OF AUSTRALIA

HA & LAN [2014] FCCA 2417

Catchwords:
FAMILY LAW – Children – parenting orders – allegations of violence – family violence order in force – where father has not filed a response – where father did not attend a child dispute conference – parental responsibility – sole parental responsibility – best interests of the child – one child aged 9 months living with mother – where father has not seen the child for 8 months – where father did not attend Court.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 60CC, 65DAA

Applicant: MS HA

Respondent: MR LAN

File Number: SYC 1058 of 2014

Judgment of: Judge Scarlett

Hearing date: 20 October 2014

Date of Last Submission: 20 October 2014

Delivered at: Sydney

Delivered on: 20 October 2014

REPRESENTATION

Solicitor for the Applicant: Mr Tiyce

Solicitors for the Applicant: Tiyce & Lawyers

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. The child X born (omitted) 2014 is to live with the Mother.

3. No parenting order in favour of the Father.

4. The Mother is to have sole parental responsibility in relation to the child X.

5. The Mother shall be entitled to provide a copy of these Orders to any instrumentality or authority to give effect to the exercise by her of sole parental responsibility.

6. The Mother may apply for a passport for the child X born (omitted) 2014 without the consent of the Father.

7. Any requirement for the Father’s consent or signature to give effect to the Mother’s application for a passport in relation to the child, and the issue of that passport into the possession of the Mother, shall be and is hereby dispensed with and the signature of the Mother shall be sufficient to give effect to these orders for the application and issue of the child’s passport.

8. The Mother is permitted to travel with the child X outside of the Commonwealth of Australia without first notifying or obtaining the consent of the Father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1058 of 2014

MS HA

Applicant

And

MR LAN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Mother of a little boy called X, who was born on (omitted) 2014. She also seeks orders to enable her to obtain a passport for him.  X is only 9 months old and lives with his mother.

2. The Father did not attend Court for the hearing.

Background

1. The Mother was born on (omitted) 1988. She is a citizen of China who has applied for permanent residency in Australia.

2. The Father was born on (omitted) 1989. He is apparently an Australian citizen.

3. The parties commenced their relationship in (omitted) 2013 but did not marry. They separated on 13^th February 2014.

4. There is one child of the relationship, X, who was born on (omitted) 2014.

5. On 15^th September 2013 there was an incident where the Mother claims that the Father assaulted her whilst she was pregnant. The Mother complained to the Police, who took a statement from her on 27^th September 2013.

6. On 3^rd October 2013 the Waverley Local Court made an Apprehended Domestic Violence Order against the Respondent, naming the Mother as the protected person. The Order was a final order for 12 months.

7. The parties separated on 13^th February 2014, when the Father removed the child from the Mother’s care and took him to his parents’ home. The Mother did not see the child again until 21^st February.

8. The parties have remained living separately since then.

Procedural History

1. The Mother commenced proceedings by filing an Application for Parenting Orders on 25^th February 2014, supported by an affidavit.

2. The Application was initially returnable on 5^th May 2014, but was adjourned to 23^rd June. The Mother attended Court with her solicitor. The Father attended Court, without legal representation.

3. The parties were directed to attend a Child Dispute Conference with a Family Consultant on 1^st August 2014. The Respondent was also directed to file and serve a Response and a supporting affidavit within 14 days.

4. The Mother attended the Child Dispute Conference on 1^st August. The Father did not.

5. The Application was mentioned before the Court on 13^th August 2014. The Father did not attend Court. It was noted that he had not filed a Response or an affidavit. The Application was set down for an undefended final hearing on 20^th October 2014.

6. The Mother attended Court on the day of the hearing, accompanied by her solicitor, Mr Tiyce. The Father did not attend Court. There was no explanation of his absence.

7. The hearing proceeded in his absence.

Evidence and Submissions

1. The Mother moved on her Amended Application filed on 1^st September 2014.  The Mother relied on the following:

   a)her affidavit of 25^th February 2014;

   b)her later affidavit of 1^st September 2014; and

   c)the Child Dispute Conference Memorandum of 1^st August 2014.

2. The Father did not file any documents.

3. The Mother gave short oral evidence.

Orders Sought

1. In her Amended Application, the Mother sought Orders that:

   a)the child X should live with her;

   b)there should be no order as to the time the child spends with the Father;

   c)the Mother should have sole parental responsibility for the child;

   d)that the Mother may apply for a passport for the child without the Father’s consent;

   e)that the Mother may travel outside Australia with the child without the Father’s consent; and

   f)other ancillary orders.

The Issues

1. It is the Mother’s case that the Father has been violent towards her throughout the relationship. She is still in fear of him. She has been the child’s primary caregiver. He is still only a baby.

The Law in respect of Applications for Parenting Orders

1. The Court, when considering making parenting orders, must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, insofar as they are relevant.

Conclusions

1. The paramount consideration is the best interests of the child. Section 60CC sets out the way that the Court determines what is in a child’s best interests.

2. The primary considerations are in s.60CC(2), being the benefit to the child of having a meaningful relationship with both parents (s.60CC(2)(a)), and the need to protect the child from harm from abuse, neglect or family violence (s.60CC(2)(b)). The latter must be given greater weight (s.60CC(2A)).

3. The child is currently being cared for by the Mother with the assistance of the maternal grandmother. The Mother gave oral evidence that her father, currently in China, will travel to Australia to assist her early in the New Year.

4. The Mother has been the child’s primary caregiver since his birth, except for a period of seven days when the Father removed the child from her care.

5. The child does not have any relationship with the Father at present. The Father has not seen the child since he was only a few weeks old. The Father’s participation in these proceedings has been minimal, limited to one appearance in June.

6. The Family Consultant expressed the view that, given the child’s very young age, he would have no memory of his father. The Court will give priority to the child’s development, his safety and his security.

7. The Mother claims in her evidence that the Father was violent to her on several occasions. A final Apprehended Domestic Violence Order was made on 3^rd October 2013 to be in force for 12 months. The Mother has recently applied to the Local Court to extend the order.

8. Dealing with the additional considerations in s. 60CC(3), insofar as they are relevant, I find that:

   a)the Mother is and has been the child’s primary carer, with the assistance of her own mother, who has a temporary visa to allow her to remain in Australia until 27^th January 2015;

   b)the Father has no relationship with the child, having last seen him on 21^st February;

   c)the Father has not taken the opportunity to see, spend time with or communicate with the child;

   d)the Mother maintains the child; the Father is unemployed;

   e)any change to the child’s current parenting arrangements would have a major adverse effect on the child, whilst an order that he should continue to live with his mother would have no effect. The child has no current relationship with his father or paternal grandparents, who have also made no attempt to see or spend time with the child;

   f)the parties live in different suburbs of Sydney, so any arrangement for the Father or paternal grandparents to see the child would involve some travelling;

   g)the Mother has the capacity to care for the child’s emotional, intellectual or other needs, but there would be some doubt about the Father’s capacity;

   h)this little boy is still only 9 months old and is of Chinese descent, which would indicate that the Mother’s wish to take him to China in the future to establish a relationship with his external extended family would be in his best interests;

   i)it is difficult to predict, given this child’s very young age, whether the orders sought by the Mother will be likely or unlikely to lead to further parenting proceedings in the future; and

   j)it would seem to be in the child’s best interests that the Mother should be able to obtain a passport for him and travel with him without the need to obtain the consent of a father who has not taken any real steps to develop a relationship with him.

9. In my view, the evidence of family violence perpetrated by the Father indicates that the presumption of equal shared parental responsibility does not apply (s.61DA(2)). The Mother will have sole parental responsibility for the child.

10. I do not consider that there is any case at this stage to make any parenting orders in favour of the Father, who has chosen not to participate in these proceedings. I will make the orders sought by the Mother.  

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  20 October 2014