Jones and Anor and Sontaren

[2015] FamCA 295

FAMILY COURT OF AUSTRALIA

JONES AND ANOR & SONTAREN [2015] FamCA 295

FAMILY LAW – CHILDREN – Interim Orders – maternal aunt and uncle seek order for equal shared parental responsibility – where mother recently deceased – unclear whether father will participate in proceedings – best interests of the children - orders made for equal shared parental responsibility.

Family Law Act 1975 (Cth) s 60CC

1st APPLICANT: Ms Jones

2nd APPLICANT: Mr Montes

RESPONDENT: Mr Sontaren

FILE NUMBER: ADC 1178 of 2015

DATE DELIVERED: 21 April 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 21 April 2015

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Ms Dickson

SOLICITOR FOR THE 1ST APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE 2ND APPLICANT: Ms Dickson

SOLICTOR FOR THE 2ND APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That all applications for final orders be adjourned for hearing before Justice Berman on 5 June 2015 at 9 am and that the evidence-in-chief of all witnesses is to be given by affidavit.

2. That subject to the advice that the applicants may receive, the Court does not require the filing of further affidavit material on their behalf.

3. That until further order the applicants Ms Jones and Mr Montes have equal shared parental responsibility for the children B born … 2013 and C born … 2015.

4. That until further order the said children shall live with the applicants.

5. That Mr Sontaren be restrained and an injunction is granted restraining him from removing the said children from the care of the applicants.

6. That within 21 days of the date of this order the applicants do cause to be served on the respondent a copy of this order and a copy of the settled reasons given this day, with such service to be effected by prepaid post to the respondent at D Street, Suburb E, or at such other address as the applicants may reasonably consider appropriate 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jones and Anor & Sontaren 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 ADELAIDE

FILE NUMBER: ADC 1178  of 2015

Ms Jones and Mr Montes

Applicant

And

Mr Sontaren

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me upon the initiating application filed by the aunt and uncle of two children, B, born in 2013, and C, born in 2014.  The applicants are the maternal aunt and uncle of the children.

2. There is no appearance by the person presumed, properly so by the applicants, to be the father of the children.  I accept that the applicants have done all that is reasonable in respect of ascertaining firstly the identity of the likely father of the children, and then to bring the proceedings to his attention.  In that regard, I have been presented with an affidavit of service tendered by counsel for the applicants which confirms that Mr Sontaren was served with a copy of the initiating application, the affidavits of the applicants, and the appropriate marriage, families and separations brochure.  He was served personally on 17 April 2015 at D Street, Suburb E.  I accept that service of the proceedings has been properly effected.  Mr Sontaren demonstrably is not present.  The transcript should also properly record that my court officer has called the name of Mr Sontaren outside of the precinct of this Court and there has been no response.

3. Ordinarily a more cautious approach might be adopted by me notwithstanding that a party does not appear or answer or provide an answer to documents served on him.  There may be, of course, a range of reasons why people are not able to attend at a particular time and place, particularly when service has only relatively recently been effected.  The position in this case, however, is markedly different from that.  I am presented with affidavit material which sets out the history of the children and their interrelationship between the applicants, the mother of the children and Mr Sontaren.  I am satisfied from the matters raised in the affidavit material and promoted by counsel that Mr Sontaren has generally been disinterested in the parenting arrangements that relate to B and C.  It is, indeed, fortunate for those children that their aunt and uncle, the applicants in these proceedings, have sought to intervene. 

4. The affidavit material filed persuades me that I should have no reluctance in making the orders that are being sought by them, certainly on an interim basis.  I am not, at this stage, prepared to make orders that would see this application dealt with to finality;  rather, I think it is important, not just for the proper procedures of the court, or, indeed, to provide appropriate regard to matters raised in Part VII of the Act, but also to ensure that when this matter is finally resolved, the applicants can leave this court with as much satisfaction as I can give and as much assurance as the circumstances justify that the matter is truly completed and resolved favourably to the children remaining in their care. 

5. That, of course, is to be achieved by giving Mr Sontaren a further opportunity to consider his position and to involve himself in the proceedings.  It is a matter for him as to whether he does so or not, but I propose to adjourn the matter to 5 June 2015 with the intention that Mr Sontaren will either seek to intervene, in which case appropriate accommodation will be made for that to occur, but if that does not happen, then I propose on that occasion to hear the matter to finality and make final orders.  As I am certain the parties have been advised, it is not simply a matter where orders are made by me for no other reason than they are not opposed.  Proceedings in respect of Part VII are not amenable to the concept of a default order.  The lack of opposition assists in the sense that it perhaps relieves me of a more detailed consideration of the issues that I need to be satisfied about, but that does not mean I am not obliged to give proper consideration to the obligations under s 60CC of the Act.

6. The primary consideration are clearly the benefit to the child of having a meaningful relationship with both of the child’s parents.  That, of course, does not apply in this case;  the applicants are clearly not the parents.  I am also, however, as a primary consideration, required to consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.  That, of course, perhaps somewhat unusually in terms of the juxtaposition of matters that normally present themselves is, indeed, in this case a significant and relevant consideration.  The interests of these children away from the proper care and nurture as currently provided the applicants would clearly expose them to abuse and neglect.  Accordingly, a primary consideration, namely the need to protect the children, is, in fact, a relevant consideration in the order that I intend to make.

7. In a general sense, parties should understand that I have had regard to the provisions of s 60CC(3) in terms of the additional considerations, noting, of course, that those considerations that apply only to parents are not a consideration that I am able to have regard to, save and except that this Court has made it clear that the exercise of my discretion and the range of matters that are necessarily to be considered in the interests of the child are likely to be encapsulated in respect of s 60CC(3)(m) of the Act.

8. I do not propose, at this stage, to repeat the matters raised in detail in the affidavit material, but I can indicate that I am satisfied that the interests of these children are well and properly served by remaining clearly in the care of the applicants, but that more importantly, the orders that the applicant seeks on an interim basis are necessary to enable them to properly protect the children.  Accordingly, I propose to make orders in terms of the interim orders as sought. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 April 2015.

Associate: 

Date:  27 April 2015