Kerr and Brent

[2007] FamCA 1373

FAMILY COURT OF AUSTRALIA

KERR & BRENT [2007] FamCA 1373

FAMILY LAW – CHILDREN – Final parenting orders on an unopposed basis

Family Law Act 1975 (Cth)

APPLICANT: Ms Kerr

RESPONDENT: Mr Brent

FILE NUMBER: MLF 8141 of 2007

DATE DELIVERED: 29 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H. Dellidis

SOLICITOR FOR THE APPLICANT: Wilsons Lawyers

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

1. That the mother have sole parental responsibility for the child … born … September 2006.

2. That the child live with the mother.

3. That question of what time and communication the child has with the father be reserved.

4. That the evidence of Mr R given this day be transcribed and a copy be made available to the parties.

5. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.

6. That all this matter be removed from list of pending cases maintained by the Court. 

7. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 8141 of 2007

MS KERR

Applicant

And

MR BRENT

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the Judicial Duty List.  Today is the adjourned return date of proceedings in which the applicant mother seeks orders in relation to the child born in September 2006. 

2. In particular the mother seeks that she be granted sole parental responsibility of the child, that the child live with her and the question of what time the child spends with the father, Mr Brent, be reserved.

3. Briefly, a history of the proceedings is that on 18 July 2007, the mother filed an application initiating proceedings in the Federal Magistrates Court at Melbourne.  She sought identical orders to those she seeks before me now.  That was allocated a hearing date of 8 October 2007.  Along with the orders

   
   

   I have mentioned, the mother also sought the urgent issuance of a passport to enable her to visit relatives in Scotland with the child.  That application was then discontinued by a Notice of Discontinuance, filed on 23 July 2007. 

4. The mother then initiated these proceedings on 27 July 2007 and was provided with a relatively urgent return date of 23 August 2007.  On 3 September 2007, the matter came before Young J in the Judicial Duty list.  Orders made by his Honour on that day are self-explanatory and make clear that, whilst the father did not attend court on that day, he participated in the hearing by telephone. 

5. In the result Young J made interim orders for the child to live with the mother, issued the passport sought by the mother and adjourned the matter to the Judicial Duty List on 25 October 2007 at 10 am.  His Honour also made the following order, and I quote:

   [6] That on or before Thursday 11 October 2007 the father may file and serve a response detailing the order sought by him and an affidavit in support thereof and all such documents be served on the solicitors for the mother.

6. On 16 October 2007 the court, through the client services officer case coordinator assigned to this case wrote to both of the parties advising that:

   I refer to the hearing scheduled in the Judicial Duty list on Thursday 25 October 2007, due to problems of judicial availability this matter has had to be relisted.  Accordingly the hearing has been rescheduled to 10 am on Monday 29 October 2007.  We apologise for any inconvenience caused by the change of date.  The hearing will take place on the fourth floor of the Commonwealth Law Courts at 305 William Street, Melbourne.

7. Today, Ms Dellidis of counsel appears on behalf of the applicant mother.  There is no appearance by, or on behalf of the respondent father. I note that the address to which the letter, dated 16 October 2007, was addressed by the court is …, which is the address which the mother deposes as being the address of the father's mother, and where she believes he resides.  I also note that it is the address given for the father on the birth certificate of the child, which was issued by the Registrar of Births, Deaths and Marriages on 11 January 2007. 

8. In all the circumstances I am satisfied that the father has been accorded procedural fairness in relation to today's hearing. 

9. The mother applies to proceed with the matter on an unopposed basis and

   
   

   I grant that application. 

10. The mother seeks parenting orders in relation to the child. I have read her affidavit, sworn on 20 July 2007.  She has not sought nor been permitted to adduce any other oral evidence.  The material set out in the affidavit satisfies me that it is appropriate to make the orders which she seeks.  In so doing I take into account that the best interests of the child are the paramount but not the only consideration to be borne in mind when making parenting orders.

11. I take into account the objects of Part VII of the Act, being to ensure that children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with his best interests and also to protect him from physical or psychological harm and to ensure that he receives adequate and proper parenting and to ensure that the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the child. 

12. I take into account the primary considerations, being to assess the benefit to the child of having a meaningful relationship with both his parents and the need to protect him from physical or psychological harm.  I have read the affidavit material of the mother. 

13. In a general sense I take into account the additional considerations.  I say in a general sense because these proceedings are conducted according to private law between individuals.  If the father wanted to attend court and to participate in the proceedings or to set out a case indicating that the orders sought by the mother are not the most appropriate orders to make, the father could have and should have done so. 

14. In the absence of the father setting out any material which indicates that the orders sought by the mother are not appropriate or are otherwise than in the best interests of the child, I will make the orders sought by the mother. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  23 November 2007