JENKS & RAATAHI

[2015] FamCA 605

FAMILY COURT OF AUSTRALIA

JENKS & RAATAHI [2015] FamCA 605

FAMILY LAW – PARENTING – FINAL ORDERS – Best interests – mother seeking final orders on an undefended basis – where the mother alleges family violence by the father as against the mother and the child – where the evidence is untested – order made that the mother have sole parental responsibility – order that the child live with the mother – order reserving the question of the child’s time with the father

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Procedural fairness – where the father failed to appear 

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC(2), 60CC(3), 61B and 61DA

APPLICANT: Ms Jenks

RESPONDENT: Mr Raatahi

FILE NUMBER: MLC 1673 of 2015

DATE JUDGMENT DELIVERED: 29 July 2015

PLACE DELIVERED: Melbourne

DATE ORDERS MADE: 26 May 2015

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 26 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sevdalis

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

THE RESPONDENT: No appearance

Orders made 26 May 2015

1. That leave be granted to the Applicant Mother to proceed with the application on an undefended basis.

2. That all previous parenting orders with respect to B Raatahi Jenks (also known as B Raatahi-Jenks) born … 2014 (“the child”) be discharged, save for Orders 3 and 4 of the Orders made on 30 March 2015 by Senior Registrar FitzGibbon, which remain in full force and effect (being the Orders placing the child on the Airport Watch List for a period of two years).

3. That the Mother have sole parental responsibility for the child.

4. That the child live with the Mother.

5. That the question of the child’s time with the Father is reserved.

6. That pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

7. That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

8. That all extent applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jenks & Raatahi 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 1673 of 2015

Ms Jenks

Applicant

And

Mr Raatahi

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern B the only child of the marriage between the applicant mother and the respondent father. The child is ten months old.

2. The mother filed an Initiating Application on 3 March 2015 seeking parenting orders, including an order directing that the child’s name be recorded on the Airport Watch List.

3. The mother’s Initiating Application came before me for final hearing on 26 May 2015.  There has been no response filed by the father.

4. There being no appearance by the father and no material filed by him in response to the mother’s application, I granted leave to the mother to proceed on an undefended basis. Parenting orders were made in the absence of the father and these are my reasons for making the orders. 

Background

1. The mother filed an Initiating Application on 3 March 2015 seeking parenting orders but the father did not file a response.  On 29 March 2015 the father forwarded an email to the Court denying the allegations of violence made by the mother and claiming that the mother had left him without funds to contest the application.  He also complained that he had not had any contact from the mother after she left with the child for over a month.  He was aware of the first Court hearing on 30 March 2015 when the matter was listed before Senior Registrar FitzGibbon.  The father indicated that he was in New Zealand and would not be attending Court on that date.  He also indicated that he was not eligible for legal aid and was not in a financial position to contest the application.

2. Senior Registrar FitzGibbon made interim orders on 30 March 2015.  There was no appearance by the father.  The interim orders provided amongst other things that the child live with the mother; the child’s name be placed on the Airport Watch List for a period of two years; and the question of the father’s time with the child be reserved. Senior Registrar FitzGibbon also made orders for substituted service upon the father, specifically that the mother serve upon the father by email a copy of the orders made that day; a copy of an affidavit of the mother also filed on that day; and a copy of any other material thereafter filed by the mother. The mother’s solicitor was ordered to telephone the father to advise him of the orders made and the next hearing date. Senior Registrar FitzGibbon also made an order that the mother have liberty to apply to proceed on an undefended basis in the event that the father failed to respond to the mother’s application.

3. The parties married in City C, Country D in 2010. For the duration of the marriage, the parties lived in City E in the Country F. They separated in May 2014 under the same roof, at which time the mother was around five month’s pregnant with the child. The child was born in City E in 2014.

4. The mother is aged 34. She is an Australian citizen and describes her employment as home duties.

5. The father is aged 32. He is a New Zealand national and is currently residing in New Zealand. The father’s occupation is unknown.

6. The mother is in possession of the child’s Australian passport and the father is in possession of the child’s New Zealand passport.

7. In January 2015, after having obtained the necessary documents to authorise the mother to leave the Country F without the father’s permission, the mother left the Country F with the child. They arrived in Australia via the United Kingdom on 3 February 2015 and lived with the mother’s sister for approximately three days. The mother then moved to a refuge where she currently lives with the child.

Procedural Fairness

1. The mother deposes in her affidavit filed 30 March 2015 that she contacted the father via Facebook messenger on 4 March 2015, advising the father that particular documents would be sent to him via email and informing him of the next Court date. The mother deposes that on 6 March 2015, the following documents were served on the father via email: her Initiating Application and affidavit in support filed on 3 March 2015, Notice of Risk filed on 3 March 2015 and her affidavit - Non-filing Family Dispute Resolution Certificate filed on 3 March 2015. The mother deposes that she asked the father on 6 March 2015, via Facebook messenger, to confirm his receipt of those documents. The mother annexed screenshots of those Facebook messages to her affidavit.[1]  Annexure D contains a message sent by the father on 7 March 2015 which makes reference to the father having read the mother’s affidavit.  The mother deposes in that same affidavit that the father has since shut down his Facebook profile and that she has had no communication with the father since 11 March 2015.

   [1] See Annexures B, C and D to the mother’s affidavit filed 30 March 2015.

2. The mother gave evidence before me confirming that she has not had further communication with the father and that she has no means of contacting the father. She also gave evidence that she had retained her own Facebook profile and email address (both of which the father had knowledge) so that the father had the opportunity to contact her should he wish.

3. The mother and her solicitors have also attempted to effect service upon the father in accordance with the orders of Senior Registrar FitzGibbon made on 30 March 2015.  An affidavit of attempted service was filed on 16 April 2015.

4. That affidavit deposes that on 1 April 2015, Mr G, solicitor from Victoria Legal Aid, attempted to serve the father via the email address provided in the orders made on 30 March 2015. The reply received indicated that the email account of the father had been closed as of 29 March 2015. Copies of those emails were annexed to the affidavit. Mr G deposes that he also made two attempts to contact the father via telephone, first on 1 April 2015 and then again on 2 April 2015. Mr G has received no response in relation to those telephone calls.

5. Ms H, solicitor from Victoria Legal Aid, swore and filed an affidavit on 11 May 2015, deposing that on 8 May 2015 the father was served via email with the mother’s most recent affidavit filed on that same day. The email address used was also that provided in the orders made on 30 March 2015. Ms H received a reply confirming that that email account had been closed as of 29 March 2015. Copies of those emails were annexed to the affidavit.[2]

   [2] See Annexures DV1 and DV2 to the affidavit of Ms H filed 11 May 2015.

6. I am satisfied that the father has been made aware of the proceedings and has not filed any response or affidavit material.

7. I am satisfied that the mother has no other means of contacting the father and that he has been accorded procedural fairness.  It is appropriate to proceed with the application on an undefended basis. 

Documents Relied Upon by the Mother

1. The mother relied upon the following documents:

   ·Initiating Application filed on 3 March 2015;

   ·Affidavit of the mother filed on 3 March 2015;

   ·Notice of Risk filed on 3 March 2015;

   ·Affidavit - Non-filing Family Dispute Resolution Certificate filed on 3 March 2015; and

   ·Affidavit of the mother filed on 8 May 2015.

Orders Sought

1. In her Initiating Application, the mother sought orders that:

   (a)The child live with the mother;

   (b)The mother have sole parental responsibility for the child;

   (c)The father spend time and communicate with the child under supervision at a supervised child contact centre;

   (d)The mother and the father, their servants and/or agents be restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia; and

   (e)The child be placed on the Airport Watch List.

2. At the hearing before me, counsel for the mother produced a minute of orders. The minute seeks orders that:

   (a)All previous parenting orders be discharged save for paragraphs 3 and 4 of the orders made on 30 March 2015 which remain in full force and effect;

   (b)The wife have sole parental responsibility for the child;

   (c)The child live with the mother; and

   (d)The question of the father’s time with the child be reserved.

Evidence of the Mother

1. The mother deposes as to continued verbal, physical and psychological abuse by the father throughout the parties’ relationship. She deposes that the father started becoming verbally abusive towards her in 2006 and became physically and psychologically, as well as verbally, abusive towards her once they moved to City E in 2010.

2. Some of the incidents to which she deposes include the father throwing her to the floor and threatening to “smash” her if she didn’t “shut up”.[3] The mother deposes that this pattern of violence continued throughout her pregnancy and also once the child was born. For example, the mother deposes that the father would easily be angered by the child crying and on one occasion swaddled her in an excessively tight manner in an attempt to stop the child from crying. She also deposes that the father repeatedly mentioned paternity testing and harming the child should testing reveal that he was not the father of the child. The mother deposes that she was often scared to intervene for fear that the father would become physically violent and that the child would be caught in the cross-fire between the parties.  She deposes that she did not report the father’s behaviour due to her lack of faith in the legal system in Country F.

   [3] Affidavit of the mother filed 8 May 2015, paragraph 11.

3. The mother deposes that the father demonstrated little interest in the care and upbringing of the child since she was about two weeks old, albeit on some occasions he became “possessive” of the child.[4] The mother deposes that he often “would barely look at or acknowledge [the child]”.[5]

   [4] Ibid, paragraph 20.

   [5] Ibid, paragraph 5.

4. The mother deposes that the Airport Watch List order is necessary given that the father has threatened to take the child from her and that he is also in possession of the child’s New Zealand passport.

5. The evidence in this case is untested. For that reason, I am not prepared to make specific findings on the matters deposed to by the mother. I am however satisfied on the balance of probabilities that there has been a history of family violence by the father against the mother sufficient to prove the mother’s case to make the parenting orders she seeks..

The Relevant Law

1. These proceedings are brought under Part VII of the Act.  In making any parenting order, the children’s best interests are the paramount consideration mandated under s 60CA of the Act.

2. What orders are in the best interests of the children must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the child’s best interests

1. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in the child’s best interests.

Section 60CC(2) Primary Considerations

1. The primary conditions are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The evidence about the father’s threats and violence towards the mother is untested but in circumstance where there is no other evidence I am satisfied that it is appropriate to make the parenting orders proposed by the mother to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse or family violence. 

3. The mother is the primary carer of the child and there is no evidence that the father challenges her application or seeks any parenting orders.

Section 60CC(3) Additional Considerations

1. Only some of the additional considerations under s 60CC(3) of the Act are relevant here.  The views of the child are not relevant as she is only 8 months old.

2. The child does not have a relationship with the father at this time and there is no other evidence about any relationship with other persons.  The mother is the primary carer for the child.

3. It would appear that the father has not had any opportunity to spend time with the child, communicate or make any decisions about the child because of the circumstances of the mother leaving the relationship with the child.  However there is no evidence of any attempt by the father to contact the child and he has not participated in these proceedings.  The mother has taken all responsibility for making decisions about the child and to communicate and spend time with the child.

4. There is no evidence of the father fulfilling his obligation to maintain the child and the mother is maintaining the child.

5. The parenting orders proposed by the mother would not involve any changes in the circumstances of the child who has been separated from the father since January 2015.

6. There is no application for the father to spend time with or communicate with the child and no evidence of his capacity to provide for the needs of the child. I am satisfied that the mother has the capacity to provide for the emotional and intellectual needs of the child.

7. There is no evidence about the lifestyle and background of the child having regard to her young age which should be considered.

8. The attitude of the mother to the responsibilities of parenthood is unchallenged.

9. The mother has deposed to being subjected to violence and threats from the father but the evidence is untested and there is no challenge to her evidence.

10. There was no evidence of any family violence order which might be relevant.

Parental responsibility

1. Parental responsibility is defined in section 61B of the Act and means “All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

2. Section 61DA of the Act provides that I must apply a presumption that it is in the best interest of the child that the parents have equal shared parental responsibility. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interest of the child for the parents to have equal shared parental responsibility.

3. The evidence before the court is limited but the father has not challenged the mother’s evidence. 

Conclusion

1. I am satisfied on the limited available untested evidence that the mother has proved her case that it is in the best interests of the child to make the parenting orders sought by the mother.  The father has not responded to the application and has not challenged the mother’s evidence. 

2. It is appropriate to make an order for the mother to have sole parental responsibility for the child in circumstances where the parents do not communicate and there are reasonable grounds to believe that the father has engaged in family violence which rebuts the presumption of equal shared parental responsibility.

3. The child has lived with the mother since birth and the mother remains her primary carer.  There is no proposal by the father for the child to live with him. It is in the best interests of the child in accordance with the legislative considerations outlined, for the child to live with the mother.  

4. I am satisfied that there is no alternative proposal made by the father and it is appropriate to make the orders sought in these circumstances. As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the child’s best interests, and reasonably practicable, that the child spend equal or substantial and significant time with the father. I am at liberty to determine directly which parenting orders are in the best interests of the child.  The minute proposed by the mother provides for any time to be spent by the child with the father to be reserved. In the absence of any other proposal this is appropriate.

5. Accordingly the orders sought by the mother were made on 26 May 2015.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 29 July 2015.

Associate: 

Date:  29 July 2015