Hampton and Anor and Pepper

[2008] FamCA 791

FAMILY COURT OF AUSTRALIA

HAMPTON AND ANOR & PEPPER [2008] FamCA 791

FAMILY LAW – CHILDREN - Parenting orders - Parental responsibility to mother and step father - Overseas service requirements -  s60CA - s60CC - s61DA - s65E

Family Law Act 1975 (Cth) ss 60CA , 60CC, 61DA, 65E

1^st APPLICANT: MRS HAMPTON

2^nd APPLICANT: MR HAMPTON

RESPONDENT: MR PEPPER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 8616 of 1998

DATE DELIVERED: 10 SEPTEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 10 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS STOIKOVSKA

SOLICITOR FOR THE APPLICANT: WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MULVANY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T.J. MULVANY

ORDERS

IT IS ORDERED:

1. THAT leave be granted to Mr Hampton to be joined as an applicant in these proceedings.

2. THAT all prior orders of this Court be discharged save and except for the following:

   2.1paragraphs 27 to 31 inclusive of the orders of 13 August 2001 (Child Maintenance Orders).

3. THAT the applicant mother Mrs Hampton and the applicant step-father Mr Hampton exercise shared parental responsibility for the child … born … June 1996 (“the child”).

4. That the child live with the applicant mother Mrs Hampton.

5. THAT the child spend time and communicate with the respondent father Mr Pepper as follows:

   5.1at such times as the mother shall agree having ascertained the views of the child where with professional assistance or otherwise

   5.2indirectly, by communication with the father’s relatives in such manner as the child may from time to time request.

6. THAT each of the mother and step-father jointly and severally ensure that the child has available to her at all reasonable times facilities to enable her to communicate with her father and members of the father’s family.

7. THAT the mother ensure that until the child attains the age of 18 years, the mother inform the father in writing and/or by email to such addresses as the father from time to time nominate of the following:

   7.1any alterations of the address of the child’s principal private residence;

   7.2any change of school;  and

   7.3any major health factor concerning the child.

8. THAT to facilitate the child’s travel into and out of the United States of America and/or Canada and to renew the child’s Australian passport, the father be presented in advance the necessary application documents and thereafter he sign and return to the mother those documents.

9. THAT the Independent Children’s Lawyer forward a sealed copy of this order to the Principal, L School.

10. THAT the mother and step-father be at liberty to provide a sealed copy of this order to:

    10.1to the Principal of any school from time to time attended by the child,

    10.2any health, allied health and/or educational professional assisting the child;  and

    10.3the Manager or like official of any extra curricular activities in which the child may from time to time be involved.

11. THAT the father be at liberty to the request of the Principal, L School in Victoria, Australia, telephone (03) …, facsimile (03) …, www…. or any other school from time to time attended by the child to provide to the father, if necessary at the cost of the father:-

    11.1copies of the child’s school reports;

    11.2copies of any school magazine and/or newsletters;

    11.3copy of any annual school photograph.

    AND IT IS NOTED that nothing in this paragraph 11 is intended to bind the Principal or otherwise fetter the discretion of the Principal.

12.

12.1THAT the mother serve a copy of this order on the Respondent Father by process server delivery to the respondent father and/or either of his parents by delivery to …, United States of America and such process server be directed to leave same at that address in the event that no person accepts delivery of same.

12.2that the Independent Children’s Lawyer telephone the husband’s telephone number … on provision of a sealed copy of these orders by the Court and apply his best endeavours to informing the father of the existence of the orders and their intended service upon him.

12.3that the Independent Children’s Lawyer cause to be forwarded to the father by pre-paid post a copy of the summary of his assessment of the views of the child, and the Reasons for Judgement when available.

1. THAT liberty reserved to the father to file on or before 31 October 2008, an application and affidavit and otherwise in accordance with all proper process, any application to set aside these orders, and in the event of the father exercising such liberty within such period, the father include in any affidavit an explanation as to his lack of communication with the child and his reasons for non-participation in these proceedings.

2. THAT the costs of the Independent Children’s Lawyer be fixed in the sum of $2,750.00 to be paid by 7 November 2008 as follows:

   14.1equally by the mother and the father,

   14.2in total, at the discretion of the mother and the step-father and in the event of such occurrence the proportion which would otherwise have been payable by the father be and deemed to be a civil debt recoverable at law by the mother and the step-father.

3. THAT pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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

4. THAT the appointment of the Independent Children’s Lawyer be discharged with effect from 31 October 2008 save and accept that if the father exercises liberty reserved pursuant to paragraph 13 hereof, the appointment of the Independent Children’s Lawyer continue.

5. THAT all extant proceedings be otherwise dismissed and be removed from the Docket of Young J.

6. THAT the ex tempore Reasons for Decisions delivered this day be transcribed, a copy placed upon the Court file and copies made available to the parties.

THE COURT NOTES:

(A)THAT the Independent Children’s Lawyer met with the child on 9 September 2008 in an independent venue in the absence of the mother and step-father and is satisfied these orders encompass the views of the child which have been expressed with appropriate insight and maturity.

(B)THAT the Independent Children’s Lawyer considers the child will, if and when she wishes, communicate with the relatives of the respondent father.

(C)THAT within seven (7) days the Independent Children’s Lawyer will provide the parties and the Court with a letter as to the child’s views.

(D)THAT these orders are by consent as between the mother and step-father and the Independent Children’s Lawyer but do not impute any consent on behalf of the father.

IT IS NOTED that publication of this judgment under the pseudonym Hampton and Anor & Pepper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 8616 of 1998

MRS HAMPTON

First Applicant

MR HAMPTON

Second Applicant

And

MR PEPPER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Pepper v Hampton is before me this day as a first day, less adversarial hearing. Ms Stoikovska of counsel appears for the mother. Mr Mulvany, solicitor, appears as the Independent Children's Lawyer.  The father is presently resident in America and has not appeared at court this day and is not represented and has not responded to any of the material that has been served upon him or otherwise brought to his attention.  Additionally, Ms Stoikovska appears for the second-named applicant, the new husband of the mother, Mr Hampton.

2. An amended application for final orders was filed 17 July 2008.  The mother therein sought orders for the child, a daughter, born in June 1996, to live with her and for the mother and her new husband to have shared parental responsibility for the child.  Otherwise, there were various consequential orders sought.

3. The material before the court in support of that amended application was an affidavit of the mother and a further affidavit of her new husband.  Additionally, a parenting questionnaire was filed 27 August 2008 and I have read that document. 

4. The first issue that arose was as to service of appropriate documents upon the child’s father.  There was no affidavit of service filed with the court.  The mother's solicitor, Ms Darlow, elected to give evidence and was affirmed and deposed to sending three letters and two emails to the father at his last known address for service or at his recently changed email address.  I accept her evidence.

5. The firm of solicitors, Taussig Cherrie and Associates, formerly acted for the father and they filed a Notice of Ceasing to Act on 9 May 2007.  The address then provided to the court of the father is contained in that document and there was also an email address. 

6. Subsequently, and I am satisfied from the annexure to the affidavit of the mother, that email address has varied and it is now as identified in annexure F to the affidavit of the mother filed 14 August 2008.  I accept that documents were forwarded to the father by registered mail, though these were initially returned to sender.  Subsequently, letters dated 15 August 2008 and 27 August 2008 were sent to the father and have not been returned to sender.  There were also emails dispatched by the mother's solicitor to the father on 18 August and 27 August 2008.

7. On balance and in all of the circumstances, I am satisfied that the father had knowledge of the proceedings in court this day and specifically had knowledge of the various parenting orders now sought by the mother and her new husband as to the child’s welfare and upbringing.

8. Subsequently, the court was informed that there were email transmissions between the mother and father late last year in ascertaining his authority for the child to enter Canada on one of her yearly skiing trips.

9. The primary matter before the court is the issue of where the child will continue to live and who will have the parental responsibility for her upbringing.  What the mother seeks is that parental responsibility be shared by her and her new husband. 

10. There is agreement between the privately funded Independent Children's Lawyer and the mother, through her legal practitioners, as to the orders that should be made this day.  I have been provided with a minute of consent order by each of those parties.  Of course the father has not seen the final drafted form of orders and cannot consent, and in that context, it is necessary for me to evaluate the evidence and determine what is in the child’s best interest.

11. I am assisted by the persuasive affidavit of the mother and the annexures thereto and that of the new husband.  In addition, I have had the considerable input from the Independent Children's Lawyer.  I record that he yesterday interviewed the child in the presence of the junior school principal at L School and he has conveyed to the court this day, from the bar table, the wishes and expectations of the child in this matter. 

12. As a background to this determination, I have the clear evidence of the unfortunate but lengthy period in which there has been no contact between the child and her father.  I also have the clear understanding of the extensive earlier hearings in this matter.  It is a lengthy file and indeed, whilst it might bear no relationship to all of the issues that have been properly considered by the parties or by other judges prior to my involvement in the matter, I note the husband's recent allegation that he has spent in excess of $US800,000 on his attorneys, both presumably in this country and in America.  I make no observation as to the accuracy of that comment but it certainly does highlight the extent of legal issues previously considered in the child’s life and when the parties were resident in Australia.

13. I am required by the Family Law Act 1975 to determine orders that are in the child’s best interest. I have particular regard to section 60CA and acknowledge the child’s interest is paramount in determining a parenting order. I specifically have regard to the requirement of section 65E and the best interests being paramount in determining a parenting order.

14. The first aspect is to determine parental responsibility and the commencement of presumption is outlined in section 61DA and that is that a court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility.  That presumption of course may be rebutted, as is provided for in subparagraph (4) of that section.  The basis of rebuttal must be that it is not in the best interests of the child for such equal shared parental responsibility to rest with the parents.

15. In this case, I am confident that the best interests of the child are for the presumption to be rebutted and for parental responsibility to rest with her mother and stepfather.  I record that the mother seeks that order and from what I have heard from the Independent Children's Lawyer, the child both agrees and has no issue whatsoever with the joint parental order now embracing the mother and stepfather.  On that basis and because of the content of the affidavit material, I conclude that the best interests of the child are for a shared parental order to be pronounced with the mother and stepfather to exercise that responsibility.

16. Determining the best interests of the child is a necessary requirement and section 60CC of the Act sets out the primary and additional considerations that must be evaluated.  I have carefully read the primary consideration of the benefit to the child having a meaningful relationship with both parents.  Unfortunately that is difficult in the circumstances where the father has absented himself and, on the material before me, has little or no concern or involvement with her day‑to‑day care and upbringing.  Certainly there is no issue of physical or psychological harm and I am wholly satisfied that the child is well cared for and provided for in her current home and school environment.

17. The additional considerations are therefore important in this case and I have particularly given appropriate weight to those considerations of and contained in subparagraphs (a), (b), (d), (f) and (i) of that subsection.

18. Having regard to all of those considerations, it is appropriate and I find in the child’s best interests for orders to be made that she live with her mother.  I have separately raised with legal practitioners the necessity to have appropriate orders to facilitate the child spending time with her father and for her father to be able to communicate to her, including having access to her school performance.

19. In the consent minutes that Mr Mulvany has drafted, all of these matters are appropriate provided for and I will, subject to the receipt of a properly engrossed form of orders, sign orders in that regard. 

20. It is necessary to effect proper service upon the father and that must be done by personal service upon the father or his parents in Virginia or elsewhere in the United States of America where they may reside from time to time.  I also require service by registered post to the Virginia address provided for on the notice of Australian practitioner ceasing to act filed on behalf of the father.  Additionally, Mr Mulvany has undertaken to make a telephone call to the disclosed number and at the very least, leave a detailed message on that number, advising of the proceedings this day and the orders made.

21. I will reserve liberty to the father on proper material filed and served and in proper procedure to apply to this court to vary or revoke the orders.  The limitation of time on that option is 31 October 2008.  Otherwise, there are various procedural orders and costs orders that I deem appropriate.  Mr Mulvany is to provide to the court to be placed on the file a written form of his submission to the court as to the child’s wishes and expectations and I accept his assurance that will be done within an appropriate time frame. 

22. Ms Stoikovska has raised the issue of the necessary signature that might be required by the father for the child’s entry to or departure from America or Canada for the renewal of her Australian passport when she turns 16 years of age.  Clearly the father should act in the best interests of the child and should sign these documents, but I am not intending to make any order that is binding upon overseas courts or authorities and this will remain a matter where the father will need to be asked to sign documents or give his consent as may be required by such Australian government or overseas authorities.

23. I will have these brief extempore reasons transcribed, placed upon the court file and made available to all parties and it will be an obligation of the wife's solicitors to ensure that these reasons are likewise served appropriately upon the husband.

24. As I commenced these extempore reasons, the matters before the court are by consent as between the parties now present in court.  That in itself is an important reason for the orders to be made, as it is the mother and stepfather who currently have all day‑to‑day responsibility for the care, welfare and upbringing of the child.

25. The orders are predicated upon the basis of all prior orders being discharged, save for existing maintenance orders, though I read in the material that the child's father has currently elected not to pay maintenance and support for the child and that responsibility has been taken up by her mother and stepfather.

26. For those brief reasons, I will make the orders as outlined for shared parental responsibility between the mother and stepfather and also for the child to live with the mother and the other consequential orders provided for in the draft before me.  I will ask the practitioners to settle the minutes that I now have before me and type and then forward by email transmission to my associate those orders and I will sign them as soon as they are received and thereafter the appropriate service can be arranged.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:  Annette King