Hanks and Cain

[2013] FamCA 1156

FAMILY COURT OF AUSTRALIA

HANKS & CAIN [2013] FamCA 1156

FAMILY LAW – CHILDREN – Mother’s application to discharge previous parenting orders – mother seeking sole parental responsibility and to relocate with the child to Country B – where the father has had limited involvement in the child’s life – best interests – satisfied that it is in the child’s best interests to accede to the mother’s application.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hanks

RESPONDENT: Mr Cain

FILE NUMBER: MLC 5035 of 2009

DATE DELIVERED: 19 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 19 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Vines

SOLICITOR FOR THE APPLICANT: Vines Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. All previous parenting orders be discharged.

2. The Ms Hanks have sole parental responsibility for the child V born … 2002.

3. The child live with the mother and she be permitted to relocate to Country B with the child.

4. The mother may apply for a passport for the child without first obtaining the consent of the child’s father Mr Cain.

5. A sealed copy of the orders made this day be served upon the father by pre-paid post in a sealed envelope addressed to the paternal grandmother Ms C Cain at 10 Clifton Street, Suburb D in the State of Victoria 3068, together with a letter requesting that Ms C Cain forthwith bring the said document to the attention of the father.

6. No later than 30 days after service of these orders upon the father pursuant to paragraph 5 of this order the father file and serve any application seeking to set aside these orders and any affidavits in support of same together with an affidavit setting out the reasons for his failure to comply with paragraph 3 of the order made

   
   

   14 November 2013 and his failure to appear this day. Service is deemed to be affected 48 hours after the order is posted to the paternal grandmother.

7. The requirement of the applicant mother to file a certificate of having undertaken and completed the family dispute resolution process be dispensed with. 

8. The mother’s amended initiating application be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanks & Cain 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 MELBOURNE

FILE NUMBER: MLC 5035 of 2009

Ms Hanks

Applicant

And

Mr Cain

Respondent

REASONS

1. The mother’s amended initiating application filed 25 November 2013 is listed before me in the Judicial Duty List.  The mother seeks the discharge of final parenting orders made 12 September 2003, that she have the sole parental responsibility for the child V who was born in 2002 and is now 11, almost 12 years of age, that the child live with her and that she be permitted to relocate with the child to Country B.  She also seeks orders with respect to the issue of a new passport for the child.

2. The mother filed an initiating application on 1 August 2013 in which she first sought permission to relocate to Country B and the issue of a new passport for the child.  That application was listed for directions on 30 August 2013 at which time Registrar Moser made orders adjourning the matter to the Judicial Duty List at 10.00 am on 14 November 2013 and that service of the mother’s application be dispensed with on condition that on or before 13 September 2013 the mother post by pre-paid post in a sealed envelope addressed to the paternal grandmother at her home in Suburb D sealed copies of her application, her affidavit in support of the application, a copy of the order made that day, and a letter requesting the paternal grandmother to bring the documents to the attention of the father.  Registrar Moser further ordered that all parties appear and/or be represented on 14 November 2013 and that should the father fail to either appear or be represented or file and serve any response and any affidavits upon which he intended to rely by 25 October 2013 that the mother be at liberty to apply to have her application proceed on an undefended basis.

3. The mother’s solicitor in his affidavit filed 12 September 2013 deposed that on 6 September 2013 he forwarded a copy of the documents as required to the paternal grandmother in accordance with the order made by Registrar Moser.  I am satisfied that the mother complied with the order as to service.  The father did not file a response to the mother’s application or any affidavits and did not appear and was not represented at the hearing before me on 14 November 2013.  As there were parenting orders in force which provided for the parties to have equal shared parental responsibility and for the father to spend time with the child, any decision with respect to the child’s relocation would necessarily have implications with respect to those orders.

4. On that basis, I made orders adjourning the matter for hearing before me in the Judicial Duty List this day and requiring the mother to file and serve by 4.00 pm on 28 November 2013 any amended initiating application, service to be effected upon the father by pre-paid post addressed to the paternal grandmother, together with a sealed copy of my order and a letter addressed to the paternal grandmother requesting that she forthwith bring the documents to the attention of the father.  I further ordered that the father file and serve any response to the mother’s amended initiating application and any affidavits upon which he sought to rely by 4.00 pm on 6 December 2013.

5. In his affidavit filed 28 November 2013 the mother’s solicitor deposes that he forwarded the documents to the paternal grandmother by pre-paid post on 26 November 2013.  I am satisfied that the mother has complied with the order as to service.  The father has not filed any response to the mother’s amended initiating application or any affidavits, and he has been called but does not appear.  In all of the circumstances, I am satisfied that the mother has done all that she can to bring these proceedings to the attention of the father and that I should proceed with this matter on an undefended basis.

6. The father and the mother in this case were married in 2001 and divorced in May 2003.  On 12 September 2003 final orders were made by consent providing that the child live with the mother, that each party have sole responsibility for the day-to-day care, welfare and development of the child while she is in their respective care, that they retain joint responsibility for decisions affecting her long-term care, welfare and development, and setting out a regime for the father to spend time with the child.  The orders also provided that, subject to the mother giving the father notice in writing no less than eight weeks prior to her intended departure, that she be permitted to travel to Country B via Singapore for a period of up to one month during June and July 2004 and that, thereafter, the father not unreasonably withhold his consent to the mother travelling with the child to Country B via Singapore for the purposes of visiting her family members for a period of up to four weeks in each two year period.

7. On 17 May 2012 the mother filed an initiating application in which she sought to discharge paragraph 6 of the orders made 12 September 2002 restraining her from removing the child from the Commonwealth of Australia.  On 14 June 2012 Registrar Moser made an order dispensing service of the mother’s application on the same conditions as the most recent orders made with respect to service of the documents upon the paternal grandmother.  The matter was listed for further hearing in the Judicial Duty List at 10.00 am on 31 July 2012.  The father did not file any response or any affidavits in support of same and did not appear and was not represented at the hearing on that date.  On that date, I made orders discharging the order restraining the mother from removing the child from the Commonwealth of Australia and removing the child’s name from the Airport Watch List.

8. The orders sought by the mother are parenting orders.  In making a parenting order, it is the best interests of the child which are the paramount consideration (s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). In reaching my decision I must consider the primary and additional considerations in section 60CC(2) and (3) of the Act. Underlying those considerations are the objects and principles of the Act which are to ensure that the best interests of the child the subject of the proceedings in a particular case are met. Those objects and the principles underlying those objects are set out in s 60B(1) and (2) of the Act.

9. It is the best interests of the particular child and the particular circumstances of each case that are relevant and to that extent both the primary and additional considerations which I am required to consider will be of greater or lesser significance depending on the circumstances of the particular case, particularly in circumstances where the issues are narrow and, in this case, where the father has for some time played little part in the child’s life.

10. The child in this case has had no face-to-face contact with her father since January 2010.  Following my orders in July 2012 the mother travelled to Country B with the child and on their return in January 2013 there was a card addressed to the child for her birthday.  Although the mother deposes that she had not seen the card, she says she was told by the child that it was from her father and that all it had was her name and that it had not been signed by him.  Even prior to January 2010 the mother says the father’s involvement with the child was at times erratic, including lengthy periods during both 2007 and 2008 when he did not see the child at all.

11. On the last occasion that the child spent time with the father, the mother dropped the child at his home for an overnight visit, however before 4.00 pm or 5.00 pm that same day, the father telephoned the mother to say that the child would not stop crying and he was bringing her home.  About an hour later, the mother heard a car in the driveway of her home and by the time she reached the front door, the child was walking up the path in tears and the father was already driving down the street.  The mother says that the child told her that the father had not said goodbye.

12. Although in most cases it can be safely assumed that the child the subject of proceedings will benefit from a meaningful relationship with each of his or her parents, in this case it cannot be said that the child currently has a meaningful relationship with the father or that she is likely to do so in the foreseeable future.  The mother further deposes that the child has had no contact with any members of the father’s family since Christmas 2009 and although as far as she is aware the father’s relatives continue to live in Melbourne, she has no current address for the father.

13. On the other hand, the mother has a close relationship with her parents and her siblings who all live in Country B.  The mother has, since the final orders were made in 2003, travelled to Country B on a number of occasions with the consent of the father.  She now wishes to relocate to Country B and live near her family and, in particular, her parents as they are getting older.  Although her parents are currently in Australia visiting the mother and the child, and in fact the mother’s father is in Court with her today, she foresees a time when it will not be possible for them to make the trip to Australia.

14. The husband pays the minimum of child support and has made a minimal contribution to the other costs of the child’s support.  The mother deposes that she enrolled and paid for the child’s attendance at a private school and that when she raised with the father the child’s need for orthodontic treatment he told her to do what she thought was best but made no offer to assist with the costs of the treatment.  The father has also consented to the mother changing the child’s surname to “Hanks Cain”.

15. Even if the mother was not intending to relocate to Country B, the parties equally sharing parental responsibility is clearly impractical in all of the circumstances of this case.  The father has not demonstrated, at least in recent times, either a capacity or willingness to engage in decision-making with respect to the child or, for that matter, to take any responsibility for or have any involvement in the child’s life.  In all of the circumstances of this case, I am satisfied that it is not in the best interests of the child for the father and mother to have equal shared parental responsibility and will accede to the mother’s application.

16. The mother is a qualified professional and she says that there is a shortage in her area in Country B.  She proposes to live and work in the south of Country B.  She has discussed the proposed move with the child and she says that the child wants to make the move.  The child is almost 12 years of age and is familiar with the area in which the mother proposes to live, having visited the mother’s family on a number of previous occasions.

17. I agree with the mother that whilst it is sad that the move is likely to sever any potential for the child to have a relationship with the father or his extended family, it would appear that neither the father nor his family have taken any steps to foster that relationship and even if the child were to remain in Australia, I would have no confidence, given the history of this matter, that they would do so in the future.  It would appear to be a case of a lack of commitment to a relationship rather than any practical considerations in relation to any geographical distance there may be between the child and the father or his family.  In all of the circumstances, I am satisfied that it is in the child’s best interests to live with the mother and, as proposed, to relocate to Country B. 

18. The mother also seeks an order permitting her to obtain a new passport for the child.  Although as the mother will have sole parental responsibility for the child and should be able to obtain a passport for the child without the consent of the father, in an excess of caution and to avoid any confusion I propose to make the order she seeks.

19. The mother’s evidence is that she does not intend to relocate until mid-2014 and I propose to make an order requiring service of these orders upon the father in similar terms to the previous orders for service and to give him the opportunity, subject to certain conditions, to apply to set aside the orders.  I will give him 30 days in which to do so after service of the orders upon him.  Finally, for completeness I will dispense with the requirement of the mother to file a certificate of having undertaken and completed the Family Dispute Resolution process.  It would appear in any event to have been futile in all the circumstances of this case.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 19 December 2013.

Associate: 

Date:  17 November 2014