Hearne & Hearne

[2021] FCCA 1058

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 92

MRR v GR [2010] HCA 4

Number 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 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.

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

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. These parenting proceeding relate to X, who was born in 2018. X is currently 3 years and 2 months old.

2. X lives with her mother (the respondent in these proceedings) and has not spent any meaningful time with her father (the applicant in these proceedings) since December 2019, despite orders for him to do so.

3. The father attended Court and was represented on 23 October 2019, when the Court, inter alia, made orders by consent for the child to spend time with the father. On 14 August 2020, the father appeared in person, and further orders were made by consent for the child to spend time with the father. Since the Court event on 14 August 2020, the father has not participated in the proceedings. He did not attend Court on 24 November 2020 and did not comply with the trial directions made on that date.

4. On 14 April 2021, the father served an unsealed Notice of Discontinuance on the parties.

5. On 23 April 2021, the matter was sent down for a final hearing at 10am on 12 May 2021, on an undefended basis as against the father. Both the Independent Children’s Lawyer and the mother appeared at final hearing. The father did not attend Court nor was he represented at the final hearing. The matter proceeded without regard to any of the material the father had previously filed.

   RELEVANT LEGAL PRINCIPLES

6. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

7. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

8. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

9. In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (see for example Slater & Light [2011] FamCAFC 1 at [45]).

10. In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.

11. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]). The focus is not on the relationship as such, but on the benefit the relationship might have for the child (McCall at [122].

12. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence (s.60CG (1)(b); See the brief discussion of s.60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)). The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order (See s.60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)).

13. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

14. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms (MRR v GR [2010] HCA 4 at [15]).

    DETERMINATION

    Findings

15. The father was born in 1962. He is presently 59 years of age.

16. The mother was born in the Country B in 1983. She is presently 37 years of age.

17. The father has two children from previous relationships, Mr C who was born in 2002 and D, who was born in 2004. The mother has a child from a previous relationship, E who was born in 2012.

18. In 2017, the parties met via a dating website whilst the mother was living in the Country B. In mid-2017, the father travelled to the Country B and the parties commenced a relationship at that time. They were married in 2017.

19. The parties’ only child X was born in 2018. After X’s birth and towards the end of 2018, the father travelled to the Country B to spend time with the mother and X. In late 2018, the mother, E and X moved to Australia and commenced living with the father.

20. After her move to Australia, the mother was a full-time parent for X and E, while the father worked long hours.

21. The father, after working long hours, would come home and drink wine and beer daily and subsequently, he would become angry and yell at E.

22. The father would keep food from the mother and the children, including during periods of time that the mother was breastfeeding X. The mother found this very distressing.

23. During the parties’ relationship, the father had sexual intercourse with the mother without her consent, pulling her by the arms, and forcing her into the bedroom and onto the bed. The mother did not report any of these assaults to the police. There were instances when the father insisted on having sexual intercourse with the mother whilst X was co-sleeping with them. At times, the father masturbated whilst X was on the bed with the parties.

24. On 20 July 2019, the father assaulted E by picking him up and throwing him across the kitchen, and then into the bedroom. The mother says that the father also threatened to send the mother back to the Country B. The mother also gives evidence of the father often being violent towards E, but does not provide any further specific examples of such violence. She asserts that this occurred usually in X’s presence.

25. On 21 July 2019, the parties separated after the mother left with X and E. She initially took the children to a friend’s house to eat as there was no food at the home she and the children shared with the father, and then decided that she would not go back to the father’s home.

26. On 18 October 2019, the mother became a permanent resident of Australia.

27. During the parties’ relationship the mother was the primary care giver for X. Since separation, she has been her sole care giver. The mother has met all of X’s physical and emotional needs.

28. Despite orders for the father to spend time with X being made by consent in October 2019, the father has not availed himself of most of the opportunities of doing so. After the orders of 14 August 2020 were made, the father has never completed the intake process for the contact centre and has not spent any time with the child in accordance with those orders. In September 2020, the father wrote to the mother’s solicitor advising that he had cancelled the intake appointment, that he is not willing to pursue the matter any further and that he would not take part in any further mediation or Court proceedings, and that as far as he was concerned the matter is finalised. The father stayed true to his word and he has completely disengaged from the Court proceedings since then.

29. 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

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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

36. 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

37. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

38          I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 19 May 2021