Hoskins and Guthrie
[2009] FMCAfam 1305
•5 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSKINS & GUTHRIE | [2009] FMCAfam 1305 |
| FAMILY LAW – Parenting orders. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA Federal Magistrates Court Rules 2001, rr.16.05(2), 21.15 |
| Applicant: | MS HOSKINS |
| Respondent: | MR GUTHRIE |
| File Number: | MLC 3757 of 2009 |
| Judgment of: | Phipps FM |
| Hearing date: | 5 November 2009 |
| Date of Last Submission: | 5 November 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 5 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sevdalis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| There being no appearance for the Respondent: |
| Solicitor for the Independent Children’s Lawyer: | Mr Bult |
| Solicitors for the Independent Children’s Lawyer: | McCluskys Lawyers |
ORDERS
All previous parenting orders are discharged.
The children [X] born [in] 1999 and [Y] born [in] 2001 live with the Wife and she have the sole parental responsibility for the children.
The said children spend time and communicate with the Husband;
(a)For day time periods when the Husband visits Australia, at times and places as agreed between the Husband and the Wife, being not less than 10 days, with the Husband to give the Wife 28 days notice of his plans to travel to Australia to see the children;
(b)By telephone at times by agreement between the parties.
The Wife and the Husband are to keep each other advised of their current residential address, email address and telephone number and notify the other 14 days prior to any change thereto.
The Wife shall;
(a)Notify the Husband as soon as practicable in the event either of the children suffer any significant medical event or emergency;
(b)Ensure the Husband is informed of all educational institutions the children attend from time to time and provide him with copies of the children’s school reports. The husband is authorized to communicate with the children’s school.
Provide the Husband pay to the Wife all costs incurred in the same, the wife shall ensure that the children maintain their US Passports.
The Wife shall give the husband 28 days notice of any plans she may have to travel outside of Australia with the children and obtain his written consent or the permission of this Court prior to any such travel.
Without admitting to the necessity for the same, the Husband and Wife, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
The order appointing the Independent Children’s Lawyer is discharged.
Pursuant to r.21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.
AND THE COURT NOTES:
Rule 16.05(2) of the Federal Magistrates Court Rules 2001 provides that an order made in the absence of a party may be set aside upon proper application being made.
IT IS NOTED that publication of this judgment under the pseudonym Hoskins & Guthrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3757 of 2009
| MS HOSKINS |
Applicant
And
| MR GUTHRIE |
Respondent
REASONS FOR JUDGMENT
This application concerns two children: [X] born [in] 1999 and [Y] born [in] 2001. The applicant, Ms Hoskins, is their mother and the respondent, Mr Guthrie, is their father. The proceedings were commenced by the mother on 1 May 2009, when she filed an application seeking to have orders permitting Australian passports be obtained for the children without their father's consent and for an order that she could take the children to visit Eritrea between 8 June 2009 and 13 August 2009.
The applicant mother is from Eritrea and the father is from Nigeria. On 29 May 2009 Walters FM made orders which were by consent, providing for the children to obtain passports without the written consent of the father and for them to go to Eritrea between 8 June 2009 and 13 August 2009. The father appeared by telephone from Michigan in the United States of America. The matter was then fixed for final hearing before me today.
The mother's application, so far as other children's orders are concerned, seeks an order that she have sole parental responsibility.
The father has sent a response. It is in the form of an application and it was sent by email to Walters FM's Associate. He applies for equal shared parental responsibility. In his response he opposed the issue of the Australian passport, and the travel to Eritrea, but in the course of the hearing he agreed. He seeks an order that in the spirit of the provision of the Hague Convention, the children's birth country court, Michigan, have the opportunity to determine the proceedings about custody and where is best for the children to live. He seeks an order that directs the mother to maintain the children's United States of America passports, which is where they were born and notification of travel outside Australia.
The husband applies for an acknowledgement that the party's marriage has been dissolved Islamically and various other orders.
A family report was ordered and that was prepared by Mr Neville Evans. The husband did not participate. Attempts by
Mr Neville Evans to contact him were not successful.
The background and history of the parties is that in 1987 the applicant mother migrated to Australia from Eritrea. The parties married in Australia [in] 1999. They had met in June 1998 and commenced cohabitation in August 1998. The mother went to live with the respondent in Michigan in the United States of America, which is where he was living and working. Thee two children were born in the United States of America.
The mother alleges a relationship of violence, control and abuse. The father has sent by email an affidavit which disputes much of what the mother has said. In November 2003, the whole family, husband, wife and children visited Australia. Shortly afterwards the husband returned to the United States of America. The applicant and children have remained living in Australia since. The father has visited twice, once in 2004 and once in 2008, when he has seen the children. He telephones on a reasonably regular basis.
The father has sent an email to the court in which he applies for an adjournment. He says that he has been under a doctor's care for the last three days for a problem related to high blood pressure and uncontrollable blood sugar level, termed Hyperkalemia. The orders of Walters FM on 29 May 2009 included directions for the filing of material. The mother filed a further affidavit, as was required, more than 28 days prior to the trial. The father has not filed any material. He has not provided an address for service within Australia, as the Federal Magistrates Court rules require.
The applicant wife, the applicant mother, has provided two telephone numbers for the father. Both have been telephoned from court this morning. One of them went to voice mail but my associate has informed me that the voice is obviously not the father's voice. It is a generic or robotic type of voice. The second number seems to be not connected. It does not produce a response, other than an electronic noise: a single beep.
The father's email suggests that he has only just learnt of the hearing on 5 November 2009. That is not correct. He appeared by telephone link on 29 May 2009 when the hearing date was fixed. He has provided a post office box in Michigan in the United States and a copy of the order was sent from the court to that post office box number. Both the Independent Children's Lawyer and the mother's lawyer have written to him. Mr Bult, the Independent Children's Lawyer, informs me that he emailed the father last night and received an email back. The email says he is applying for an adjournment on the basis that he is undergoing some treatment.
I consider I am justified in treating the father as not appearing. He has not supplied sufficient material to justify an adjournment and he has not supplied a means by which the court can communicate with him. It is now reasonably early in the evening in Michigan and so it should have been possible to contact him on a telephone number, I intend proceeding.
Mr Evans recommends that the children live with the mother, the children spend time with their father for certain specified day periods when he visits Australia, that he be allowed to contact the children by phone on a weekly basis at a pre-arranged time or otherwise as agreed, and that at this stage parental responsibility for making decisions on major long-term issues be vested in the mother on the clear understanding that she ensures the father is kept informed about issues relating to the children's care.
The father's response proposes that the matter be decided in the appropriate court in Michigan and he refers to the Hague Convention. This is not a Hague Convention application. The father has not initiated a Hague Convention matter. This court has jurisdiction, since the children were residing in Australia at the time the application was made as is the mother and it therefore needs to be decided in terms of what is in the best interests of the children. That is the paramount consideration under s.60CA of the Family Law Act 1975 (Cth).
So far as the issue of equal shared parental responsibility is concerned, there is a presumption that that order should be made. That presumption is contained in s.61DA. That can be rebutted on various grounds, one of which is reasonable grounds to believe there has been abuse or violence. The applicant wife alleges that in this case, but there has not been an opportunity to test the evidence. I do not need to deal with it on that ground. One other ground is if the court is satisfied that it is not in the best interests of the children that the presumption be applied, and that is that the order for equal shared parental responsibility be made.
An order for equal shared parental responsibility places on both parties the obligation to reach agreement on major long-term issues and to consult. Material shows a great deal of difficulty in communication between the mother and the father. The mother is here in Australia and has been caring for the children on her own since 2003. To place on her an obligation of attempting to reach agreement with the father on major long-term issues, issues such as schooling and significant health issues would not be in the best interests of the children, given the difficulty of communication. I consider the presumption should not be applied.
So far as where they are to live is concerned, it is clear their best interests are served by living with their mother. She is not just their primary carer, she is virtually their sole carer.
Section 60B of the Family Law Act1975 (Cth) sets out the objects of the Act, which include the right of children to have both parents involved in their lives and s.60CC sets out the considerations for determining what is in the best interests of the children. The court has to consider the benefit to the children of the meaningful relationship with both parents. In this case the only way they can have a relationship with their father is to see him if he visits Australia and to have telephone communication with him.That is proposed by the mother.
The mother proposes these orders. That is to discharge all previous orders; an order that the children, [X] born [in] 1999 and [Y] born [in] 2001, live with the wife and she have sole parental responsibility for the children. She proposes an order that they spend time and communicate with their father for daytime periods when he visits Australia at times and places as agreed between the husband and wife, being not less than 10 days, with the husband to give the wife 28 days notice of his plans to travel to Australia to see the children.
Mr Bult, the Independent Children's Lawyer, submits that it should be made more specific, because the family report suggests that it should be done specifically. The Independent Children's Lawyer has met with the children and so his assessment is based not just on the written material. When the father has visited Australia, they have seen their father. Their mother has facilitated that. It is very difficult to specify precise times without knowing when the father is coming. If the father comes during school holidays, the opportunity for the children to spend a reasonably extended amount of daytime time with him is there. If he comes during school time it is much less. If he came for only a short period, it might be best for the children to see him as frequently as possible, given the short period. If he came to Australia for a longer period, some other arrangements might be appropriate. When he has come to Australia, he has seen the children. He is telephoning the children. They have communication with him. A specific order may tend to be restrictive, rather than facilitative. On balance I think the children's best interests are served by leaving it as to be agreed. The mother has shown that she wants the children to see their father if he is here in Australia.
The mother proposes that there be communication by telephone at times by agreement between the parties. Again, the family report suggests once a week. The mother says that the father telephones quite frequently, but not on a completely regular pattern. It might be once a week, it might be once a fortnight. There may be a gap of some time before he telephones again. For the same reason, I think to put in a time of once a week, if the father is in a situation where he wants to ring two or three times a week, that might be seen as unduly restrictive.
The other orders proposed by the mother are to keep the father advised of current addresses, email addresses and telephone numbers and an order that the wife notify the husband as soon as practical in the event of medical emergency, ensure the husband is informed of all educational institutes the children may attend from time to time and provide him with copies of the children's school reports. She also proposes some of the orders that are proposed in the husband's response. That is, provided the husband pay to the wife all costs involved in the same, the wife shall ensure that the children maintain their United States passports, that the mother give the father 28 days notice of any plans she may have to travel outside Australia with the children and obtain his written consent or permission from the court prior to any such travel and then, without admitting the necessity for the same, the husband and the wife, their servants and agents be restrained from denigrating each other or their family in the presence or hearing of the children. I will make those orders, as well.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Jan Smith
Date: 8 December 2009
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