Kerman and Kinney

[2013] FCCA 328

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERMAN & KINNEY [2013] FCCA 328

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – sole parental responsibility – where Applicant did not attend Court – where evidence shows that Father has relocated to Western Australia.

Legislation:
Family Law Act 1975, ss.60CA, 60CC, 61DA, 62G, 68L

Federal Circuit Court Rules 2001 rr.13.03C, 16.05

Applicant: MR KERMAN

Respondent: MS KINNEY

File Number: SYC 2731 of 2012

Judgment of: Judge Scarlett

Hearing date: 20 May 2013

Date of Last Submission: 20 May 2013

Delivered at: Sydney

Delivered on: 20 May 2013

REPRESENTATION

The Applicant: No appearance

Solicitor for the Respondent: Mr Wotton

Solicitors for the Respondent: Nash Allen Williams & Wotton

Independent Children’s Lawyer: Ms Tin

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. All earlier parenting Orders are discharged.

2. The children [X] born [in] 2011, [Y] born [in] 2003 and [Z] born [in] 2006 are to live with the Respondent Mother.

3. The Mother is to have sole parental responsibility for the children.

4. The children shall spend time with and communicate with the Father as may be agreed from time to time between the Mother and the Father.

5. The Family Report ordered under section 62G of the Family Law Act 1975 on 5 February 2013 is cancelled.

6. The Independent Children’s Lawyer is discharged.

7. No order for costs.   

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 2731 of 2012

MR KERMAN

Applicant

And

MS KINNEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of three children, [X], [Y] and [Z], that:

   a)the parties should equal shared parental responsibility for the children;

   b)that the children should continue to live with the Mother; and

   c)the children should spend time with the Father on weekends and during the school holidays.

2. The Mother sought final orders that:

   a)she should have sole parental responsibility for the children;

   b)the children should live with her;

   c)the children should spend time with the Father as the parties agreed in writing;

   d)the Father should not consume alcohol whilst the children were in his care; and

   e)neither party should associate with people affected by drugs or alcohol whilst the children are in their care.

3. The Mother also sought interim orders that the Father’s time with the children should be supervised at a contact centre at [W].

4. The Mother in her affidavit material raised concerns about the Father’s abuse of alcohol and involvement with illicit drugs.

5. The parties were directed to attend a Child Dispute Conference with a Family Consultant on 2^nd July 2012. The Family Consultant noted that substance abuse, particularly drinking alcohol to excess, appeared to be at the centre of the Mother’s concerns about the children spending time with their father “and the greatest barrier to further agreements”[1] and recommended the appointment of an Independent Children’s Lawyer under s.68L of the Family Law Act 1975 (Cth).

   [1] Family consultant Memorandum to Court 2 July 2012

6. The Court duly made an order for the children’s interests to be independently represented by a lawyer.

7. The parties entered into interim consent orders providing that the Father would spend time with the children at the contact centre at [W], that he would attend drug and alcohol counselling and he would undertake regular urinalysis to detect the presence of illicit drugs in his system.

8. The proceedings were listed for an interim hearing on 27^th August 2012. However, the Applicant did not attend Court as he was ill.

9. On 10^th December 2012 the parties were directed to attend a Child Inclusive Child Dispute Conference. The Conference was scheduled to take place on 4^th February 2013 but the Father did not attend.

10. The following day, 5^th February, the parties attended Court and an order was made for the preparation of a Family Report under the provisions of s.62G of the Family Law Act. The Independent Children’s Lawyer advised the Court that (inter alia):

    a)the Father had not provided his urine test result for January 2013;

    b)the Father had not completed his drug and alcohol counselling as ordered by the Court on 2^nd July 2012; and

    c)the Father had not attended the Child Inclusive Child Dispute Conference the previous day.

11. The Application was adjourned to 4^th June 2013 for further mention.

12. On 9^th April 2013 the Father’s solicitors filed a Notice of Withdrawal as Lawyer.

13. On 26^th April 2013 the Independent Children’s Lawyer sought that the matter should be re-listed before the Court as she had been unable to make contact with the Father.

14. The matter was re-listed on 20^th May 2013.

Hearing on 20 May 2013

1. The Father did not attend Court on 20^th May 2013. The Mother’s solicitor, Mr Wotton, sought an order dismissing the Father’s Application. He sought some parenting orders in accordance with a Minute of Orders filed in Court.

2. The Independent Children’s Lawyer, Ms Tin, did not oppose the orders sought by the Mother. She tendered:

   a)copies of two letters to the Applicant dated 26^th April 2013 and another letter dated 16^th May 2013; and

   b)a copy of a text message sent to the Applicant on 17^th May 2013.

3. The Respondent mother had filed an updating affidavit on 17^th May 2013. She gave oral evidence to the effect that the Father had moved first to Queensland and then to Western Australia. The Father has telephoned the children on several occasions. She deposed that the Father had said to her:

   “I don’t want to go on with the court case”.[2]

   [2] Affidavit of Ms Kinney 17 May 2013 at paragraph [6]

4. The Mother believes that the Father intends to remain in Western Australia indefinitely. She does not have a residential address for him but he has given her a postal address at a Post Office Box number in [omitted], Western Australia.

5. The Mother deposed that she spoke to the Father on the telephone on Thursday 16^th May and said to him:

   “There’s a hearing on Monday. Can you phone the Independent Children’s Lawyer on (telephone number deleted) and just let her know what’s going on”.[3]

   [3] Ibid at [13]

6. The Mother stated that the Father agreed to do so.

Consideration

1. I am satisfied that the Father has been made aware of the hearing on 20^th May 2013 and the need for him to attend because:

   a)the Mother has deposed in her affidavit that she told the Father about the hearing in their telephone conversation on 16^th May;

   b)the Independent Children’s lawyer, in a letter to the Father of 26^th April 2013, advised him that:

   …your family law matter is now listed at the Sydney Federal Circuit Court at 97-99 Goulburn Street, Sydney NSW on 20 May 2013 at 10 am.

   You are required to attend court on the day.

   Should you fail to attend, the court may make orders in your absence.

   c)the Independent Children’s Lawyer advised the Father by text message on Friday 17^th May 2013 that:

   Your matter is listed this Monday 20 May 2013 at 10 am at the Sydney Federal Circuit Court. YOU ARE REQUIRED TO ATTEND.

2. I am satisfied that, in the absence of the Applicant, the Court should proceed with the hearing generally under the provisions of rule 13.03C. If the Applicant wishes to apply to the Court to set aside or vary the Orders made today he is at liberty to make an application under r.16.05.

The law to be considered in Parenting Applications

1. When a Court is deciding whether to make a particular parenting order, the court is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of the Act.

2. When making a parenting order in relation to a child, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. However, this presumption does not apply in cases of abuse or family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.

Conclusions

1. It appears clear that the Father has no intention of proceeding with his application for parenting orders. On the evidence before the Court, he has relocated to Western Australia. He has not participated in the Child Inclusive Child Dispute Conference nor has he made himself available for an interview for the purpose of the Family Report. The Family Report will be cancelled.

2. It is in the children’s best interests to remain living with their mother, who has always been their primary caregiver. On the Mother’s evidence, she has no difficulty with the Father maintaining contact with the children by telephone or from seeing them when he visits New South Wales, provided that he is not affected by alcohol or illicit drugs.

3. As the Father has chosen to remain in Western Australia for the foreseeable future, there seems to be little or no utility in the parties having equal shared parental responsibility. I am satisfied that it would not be in the children’s best interests, in the present circumstances, for the parents to have equal shared parental responsibilities for these three children. An order will be made that the mother will have sole parental responsibility for the children.

4. The Independent Children’s Lawyer will be discharged. Her assistance to the Court has been appreciated. There is no order for costs sought by the Independent Children’s Lawyer or by the solicitor for the Mother. I will make no order for costs.

5. It is in the best interests of these children that the proceedings should be finalised.     

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  21 May 2013