FEDERAL CIRCUIT COURT OF AUSTRALIA
Hearne & Hearne [2021] FCCA 1058
File number(s): PAC 3675 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 19 May 2021 Catchwords: FAMILY LAW – Parenting – undefended as against the father – young child – best interest of child – serious allegations of family violence – assessment of risk – parental responsibility – whether restraints to be ordered. Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68B. Cases cited: Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92Number of paragraphs: 37 Date of hearing: 12 May 2021 Place: Heard in Parramatta, Delivered in Canberra Appearing for the Applicant: No Appearance Appearing for the Respondent: Ms Rysiok Solicitors for the Respondent: AS Family Lawyers Appearing for the Independent Children’s Lawyer: Ms Ryan Solicitors for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
PAC 3675 of 2019 BETWEEN: MR HEARNE
Applicant
AND: MS HEARNE
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
19 MAY 2021
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the child X born in 2018.
2.The child shall live with the mother.
3.The child shall spend time with the father as agreed between the parties in writing.
4.For the purposes of Order 3, the parties shall communicate by the “Divvito App” (parenting “app” or other such parenting “app” as agreed between the parties in writing.
5.Within 14 days of the child’s subsequent enrolment at any day-care centre or school, the mother is to do all acts and things necessary and give all irrevocable authorities necessary to ensure that whichever day-care centre or school the child may attend from time to time, that day-care centre or school forward directly to the father copies of all of the child’s reports and merit cards, and any written material pertaining to the child’s academic and extra-curricular activities.
6.Pursuant to Section 68B of the Family Law Act 1975 (Cth), the father is restrained by injunction from:
(a)Approaching or coming into contact with the mother or the mother’s place of residence or place of work or study, except as permitted by Court Order or agreed to in writing between the parties; and
(b)Removing the child from any day-care centre and/or school that she may attend from time to time, unless as otherwise agreed between the parties in writing
7.Neither party shall:
(a)use physical discipline upon the child, or allow a third party to use physical discipline upon the child;
(b)be over the legal alcohol limit within 12 hours of having the care of the child and whilst having the care of the child;
(c)make critical or derogatory remarks in relation to the other party in the presence or hearing of the child and will do all things necessary to ensure that no third party makes critical comments about the other party in the presence or…
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- Hearne & Hearne [2021] FCCA 1058
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CaseChat Overview and Summary
The court was required to determine several key issues. These included whether the presumption of equal shared parental responsibility under the *Family Law Act 1975* (Cth) had been rebutted, and if so, whether sole parental responsibility for the mother was in the child's best interests. The court also considered the appropriate living arrangements for the child, the terms of the child's time with the father, and the necessity of injunctive relief to protect the mother and child. Furthermore, the court addressed the child's ability to travel internationally and the process for obtaining a passport.
Obradovic J reasoned that the father's disengagement from the proceedings and from the child's life had rebutted the presumption of equal shared parental responsibility. The court found that the child had a strong relationship with the mother, who was her primary carer, and that the father had failed to engage in opportunities to spend time with the child. The court also noted evidence of family violence and coercive behaviour by the father, which supported the mother's application for protective orders. Regarding international travel, the court concluded that granting the mother sole responsibility for passport applications and international travel was in the child's best interests, given the lack of communication from the father.
The court made orders granting the mother sole parental responsibility for the child X, with the child to live with the mother. The child was to spend time with the father as agreed in writing between the parties, with communication to occur via a specified parenting app. The father was restrained by injunction from approaching or contacting the mother or her places of residence or work, and from removing the child from school or day-care without agreement. The court also prohibited physical discipline, set alcohol limits for the caregiver, and ordered that neither party make derogatory remarks about the other in the child's presence. Finally, the mother was granted sole authority for passport applications and international travel for the child.
Orders
Orders of the court
PAC 3675 of 2019
BETWEEN:
MR HEARNE
Applicant
AND:
MS HEARNE
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
19 MAY 2021
THE COURT ORDERS THAT:
1. The mother shall have sole parental responsibility for the child X born in 2018.
2. The child shall live with the mother.
3. The child shall spend time with the father as agreed between the parties in writing.
4. For the purposes of Order 3, the parties shall communicate by the “Divvito App” (parenting “app” https://divvito.com), or other such parenting “app” as agreed between the parties in writing.
5. Within 14 days of the child’s subsequent enrolment at any day-care centre or school, the mother is to do all acts and things necessary and give all irrevocable authorities necessary to ensure that whichever day-care centre or school the child may attend from time to time, that day-care centre or school forward directly to the father copies of all of the child’s reports and merit cards, and any written material pertaining to the child’s academic and extra-curricular activities.
6. Pursuant to Section 68B of the Family Law Act 1975 (Cth), the father is restrained by injunction from:
(a) Approaching or coming into contact with the mother or the mother’s place of residence or place of work or study, except as permitted by Court Order or agreed to in writing between the parties; and
(b) Removing the child from any day-care centre and/or school that she may attend from time to time, unless as otherwise agreed between the parties in writing
7. Neither party shall:
(a) use physical discipline upon the child, or allow a third party to use physical discipline upon the child;
(b) be over the legal alcohol limit within 12 hours of having the care of the child and whilst having the care of the child;
(c) make critical or derogatory remarks in relation to the other party in the presence or hearing of the child and will do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
8. X born in 2018 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born in 2018. The mother shall be the only person with ‘parental responsibility’ of the child X born in 2018 for the purposes of applying for, and being issued with, an Australian passport for X born in 2018.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The mother has maintained a channel of communication open with the father, by sending him messages including photographs of the child via an application the parties had previously agreed to use. The father has not responded to any such communication. Relevant Considerations X is still very young, and has no relationship to speak of with her father. The mother is and has been X’s primary and sole carer, and she remains living with the mother and her sibling E. The child has a strong and loving relationship with the mother. The mother remains primarily financially responsible for the child. The father has failed to take up the available opportunities of spending time with the child and has disengaged from the proceedings, which were commenced by him. The father pays $89 in child support per month. The orders which the mother seeks would not see any changes to the child’s circumstances. The child lives in a stable environment with a suitable routine in place. If time between the child and the father was to occur, the Court accepts that the mother would act in a child focused and protective manner and that time would have to be agreed between the parties. Noting the father’s disengagement, it is unlikely that he would contact the mother to arrange for time between the child and himself. The evidence suggests that the father is not able to prioritise the child’s needs above his own. However, if the father was to contact the mother with a view to spending time with the child, the door is open for him to re-engage in this manner. Given the evidence of family violence, the Court is satisfied that the protective orders which the mother seeks are appropriate. They provide safety guards for X and the mother, particularly in circumstances where the father has previously made threats of a coercive nature towards the mother and engaged in the types of behaviours the mother deposes to. Lastly, on the basis of the mother’s ties to the Country B, it is likely that the mother may wish to travel with her children to the Country B at some point in the future and once the threat of the pandemic has passed. Noting the lack of communication between the parties, that is, noting the lack of response by the father to the attempts at communication by the mother, it is likely that the father would not respond to communications by the mother about any intended travel for the child in the future. It is therefore likely that the mother would have to re-engage with the Court process in order to be able to travel with the child in the future. The Court does not consider her to be a flight risk and indeed, the parties had previously agreed to the child’s name being removed from the Airport Watch List. As such, orders as sought by the mother for the issue of a passport and permission to travel internationally without the consent of the father are in the child’s best interest.Parental Responsibility On the basis of the father’s disengagement from the proceedings and from X’s life, the Court is satisfied that the presumption of equal shared parental responsibility has been rebutted, and that an order for the mother to have sole parental responsibility is in X’s best interest.Conclusion