Hargun and Alman

FAMILY COURT OF AUSTRALIA

HARGUN & ALMAN

[2007] FamCA 1385

FAMILY LAW – CHILDREN – With whom a child lives – Undefended hearing

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422

APPLICANT:

Ms Hargun

RESPONDENT:

Mr Alman

FILE NUMBER:

PAF

1502

2006

DATE DELIVERED:

15 June 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Waddy J

HEARING DATE:

15 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Nil

SOLICITOR FOR THE APPLICANT:

Ms Riddle

COUNSEL FOR THE RESPONDENT:

Nil

SOLICITOR FOR THE RESPONDENT:

Nil

Orders

That the children S, born … December 2001, and H, born … April 2000, live with the mother.
That the children spend time with the father as agreed between the parties at times when he is resident in Australia.
The parents are to have equal shared parental responsibility for the children.
That pursuant to s.65DA(2) and s.62B the particulars - the obligation these orders create, the particular consequences that may follow if a person contravenes these orders. 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 - and (b) the legal representatives of the parties are requested to assist and explain to their clients the obligation these orders create and the consequences that may follow if a person contravenes these orders.
The matter is to be removed from the active pending cases list.
I note the undertaking of Ms Riddle to provide to my Associate within seven days a true transcript of these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1502 of 2006

MS HARGUN

Applicant

And

MR ALMAN

Respondent

REASONS FOR JUDGMENT

In this matter Ms Riddle appears for the applicant mother. The issues concern parenting orders for two children. The father has been served with the documents, and two letters indicating the proceedings are coming up have been sent to him and I will deal with that in a moment.
The orders sought now are only orders 1, 2 and 3 set out in the mother’s application.
The father has not elected to take any part in the proceedings and the mother no longer fears that he is likely to abduct the children, take them out of Australia. I am informed they do not have passports.

SERVICE

The evidence that the father has been served appears from an affidavit of Mr P. He swears that on 1 February 2007 he served the relevant correspondence on the respondent by hand at …, L, at 8.35 am on 18 March 2007. He was able to identify the person served because he saw the person sign the acknowledgement of service, form 6.
At the time of the service Mr P had the following conversation: "Are you [Mr Alman]?" This person replied, "Yes." Mr P said, "I have an application for you from [Ms Hargun]." The person replied, "Thanks." His signature was witnessed by a Justice of the Peace. Produced is an acknowledgement of service dated 18 March 2007.
In evidence are two letters to the father from Ms Riddle indicating that he had failed to attend at the Court on 1 May and had indicated to the mother that he did not intend to participate in proceedings, indicating also the proceedings had been adjourned to 15 June 2007 at 9.30 am. Also on 14 May an affidavit of service was sent to him by Express Post at that address.
I am satisfied on that evidence that the father has been properly served and has failed to take part in the proceedings.
The relief sought is brief:
(1)that the children live with the mother;
(2)that the children spend time with the father as agreed between the parties at times when he is resident in Australia; and
(3)that the parties share joint parental responsibility for the children.
Order four, as I say, is not pressed.

CHRONOLOGY

I rely on Ms Riddle for this short chronology.
The parties married in Iraq in January 1994.
In 1999 the mother migrated to Australia.
In April 2000 the child H was born.
In December 2001 the child S was born.
In 2005 the father travelled to Iraq for two months.
In June 2006 the parties separated.
In July/August 2006 the father travelled to Iraq.
On 22 December 2006 the mother was informed by the father that he had returned to Australia. During that month the father began to spend time with the children for between one to two hours per week at the mother's home.
In April 2007 the father began to spend time with the children away from the mother's home for a couple of hours each week.

THE EVIDENCE

I turn then to the evidence upon which the orders are sought. The mother's affidavit states that she has at all times since the children's births been their primary carer, solely responsible for meeting their needs such as preparing meals, changing nappies, bathing, dressing them and ensuring their medical needs were met. On occasions that he was home the father would play with them but he did not actively participate in their day-to-day care.
During the marriage the father travelled to Iraq in 2005, I think for two months on that occasion, but he did not call to speak to the mother or inquire about the wellbeing of the children.
After separation the father left for Iraq almost immediately and did not report that he was back until 22 December 2006, when he rang up and said, "I'm in Australia. I need to talk to my children." The mother said, "It's good you remember you have children." The father said, "Can I talk to them? It's not your business. I always remember them." She said, "They're sleeping. You'll have to call another time."
The next day he came to the house to ask to see the children and the mother let the father in to spend time with the children, who appeared surprised to see him. The mother was upset, at that stage, of the impact of the breakdown on the children. After an hour the father left. Since then he has been coming to see the children normally each week for one to two hours. The children appear comfortable in the father's presence.
Since April 2007 the father has begun to take the children to his brother's home, where he is able to spend time with them, but again, generally, only for a couple of hours. The mother is happy for that arrangement to continue. The children need to see their father and enjoy his company.
It is the mother's belief that the father and she can continue to make appropriate arrangements with the children between themselves.
I am satisfied that the mother's and the children’s current circumstances are adequate. She lives in a two-bedroom unit. The children share a bedroom. Both attend L Primary School, H in year 2 and S in kindergarten. Both are progressing well. She drives each of them to school and from school and talks to their teachers about their progress.
Both children are in good general health and have a family doctor. The children between themselves are very close and spend a lot of time together. They are close in age and enjoy the same toys, television shows and regularly the family spends time with other friends.
That is not only a summary of the evidence, that is about the entirety of it.
In these circumstances I must of course consider the matters which are set out in the Family Law Act, as amended. I refer by way of shorthand to the applicable law which is handily set out, if I might say so, in a matter reported as Goode & Goode (2006) FamCA 1346, and that begins at para.5. That sets out the objects of the Act, the principles underlying the objects of the Act and s.60CA, the need, in making particular parenting orders, to have regard to the best interests of the child as the paramount consideration.
Section 60CC provides that in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child's best interests. This of course is not a consent order, but it is an unopposed order.
I consider the primary consideration, the benefit to the child of having a meaningful relationship with both of the parents. That will be achieved to the best of the Court's ability, with the orders proposed.
There is no need to protect the child as is envisaged by sub-s.(2)(b), on the evidence before me.
I am directed by the parliament to consider the additional considerations set out in sub-s.(3).
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
I have no doubt that the children wish to be with their mother and see as much of their father as he is able to see them and the best arrangements in that regard seem to have been made to date.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
This the mother is doing and believes the orders will encourage that. Certainly the evidence indicates cooperation between them when the father is in Australia.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It is not proposed to change the circumstances of the child by separation by either parent or other persons under (d).
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is made difficult because the father is so often in Iraq. The arrangement is to be flexible when he is here, him to see the children as much as possible as the parties may agree.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother seems to have provided adequately, in fact very well for the children all the time. The father does his best when he is here, with the encouragement of the mother.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Both parties hail from Iraq. Both are going to encourage the children in their Iraqi culture and no doubt they will pick up a fair bit of Australian culture on the way and make a culture of their own.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
The child is neither Aboriginal or Torres Strait Islander.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has been virtually totally responsible for the children at all times. The father does his bit when he is in Australia as far as the evidence shows.
(j) any family violence involving the child or a member of the child's family;
There is no evidence of any family violence.
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii)the making of the order was contested by a person;
There is no evidence of any family violence order.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I believe I am doing that.
(m) any other fact or circumstance that the court thinks is relevant.
I congratulate the mother on encouraging the father to see the children regularly. I think it is very, very important the children know their father, otherwise there is a great gap in their life and imaginings, and hopefully he will come from natural bonds of affection to spend more and more time with them, perhaps even to support the mother from time to time with little things like child support for things that could be so useful when raising children. But who knows? There is no evidence of any such payments in the evidence.
Under s.60CC(4) I find that the mother has encouraged the father to take as full a part in the children's lives as the father appears to be prepared to do. As to parental responsibility, there is a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child and that is virtually the order which is sought and rather than in the terms in which it is raised in (3) I will follow that order. Thus I have no doubt having considered the law, the submissions of Ms Riddle which were usefully reduced to writing and commendably brief, the evidence in the matter, I have no problem in making the orders.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Waddy

Associate

Date: 15 June 2007

[2007] FamCA 1385

15 June 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness