Korman and Stockwell

[2014] FCCA 2656

FEDERAL CIRCUIT COURT OF AUSTRALIA

KORMAN & STOCKWELL [2014] FCCA 2656

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – residence – best interests of the child – one child aged 5 years – where father resides in (country omitted).

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS KORMAN

Respondent: MR STOCKWELL

File Number: PAC 5788 of 2011

Judgment of: Judge Scarlett

Hearing date: 4 November 2014

Date of Last Submission: 4 November 2014

Delivered at: Sydney

Delivered on: 4 November 2014

REPRESENTATION

Counsel for the Applicant: Mr  Van Dyke

Solicitors for the Applicant: Priority Business Lawyers

Respondent: No appearance

ORDERS

1. Leave to proceed ex parte.

2. The Applicant Mother is to have sole parental responsibility in relation to the child, X, born (omitted) 2009.

3. The child, X, born (omitted) 2009, is to live with the Applicant Mother.

4. The Respondent Father, Mr Stockwell, is to spend time with the child, X, born on (omitted) 2009, at such times and under such circumstances as the parties agree.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

PAC 5788 of 2011

MS KORMAN

Applicant

And

MR STOCKWELL

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother of a girl called X, who was born on (omitted) 2009, for orders for parental responsibility, for an order that X should live with her and that the father, who currently resides in (country omitted), should spend time with his daughter at such times and under such circumstances as the parties agree.

Background

1. The situation is that the mother has since remarried after the parties separated.  The child herself was born in Sydney at (omitted) Hospital, I note, and she is an Australian citizen. 

2. The parties lived in (omitted) until they separated at the end of November in 2010.  The separation occurred because of the mother’s concerns about the father’s behaviour.  The mother, in fact, found it necessary to obtain assistance from the police at (omitted) and an Apprehended Domestic Violence Order was issued for the mother’s protection and that of the child.  A copy of the order that was made by the Local Court at Hornsby is annexed to the mother’s affidavit. 

3. The father has left Australia and now lives in (country omitted) in the (country omitted).  He apparently has not returned to Australia.  The mother’s solicitors had some difficulty in serving him, but managed to do so, in respect of divorce proceedings and they have since sought the assistance of a lawyer in (country omitted) to serve the respondent.  I have an affidavit of service by Mr D, a lawyer from (country omitted), indicating that he served the Respondent by hand personally on 29 September 2014.  The Respondent has not attended Court, perhaps unsurprisingly, nor has he filed a Response or an affidavit, nor has he communicated with the Court in any way.  I am informed by Mr Van Dyke of Counsel who appears for the mother that his instructing solicitors have not received any notification from this gentleman.  He just has not appeared.

Applications for Parenting Orders

1. What the Court must now do is consider the Orders sought by the mother relating to her daughter residing with her and that she should have sole parental responsibility for her.  In doing so, I consider the matters set out in part VII of the Family Law Act 1975, in particular section 60B that sets out the objects of Part VII of the Act and the principles underlying those objects. I consider section 60CA of the Act which requires the Court to consider the best interests of the child as the paramount consideration and section 60CC which assists the Court in determining what matters are in a child’s best interests.

2. I must also consider section 61DA which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child, but also provides that there may be circumstances where the presumption does not apply or it would not be in the child’s interests for the presumption to apply.

3. If I am satisfied that equal shared parental responsibility is appropriate, I would then consider the matters under section 65DAA. I do not, however, intend to do so, because I cannot see that it is at all in this child’s best interests for the parties to have equal shared parental responsibility, noting the fact that the Respondent has left Australia permanently and X resides here in Australia with her mother.

Conclusions

1. It is quite clear to me that the mother should have sole parental responsibility and it is quite clearly in this child’s best interests that she should remain residing with her mother and with her mother’s new husband.

2. The mother, quite properly, has suggested that this child should spend time with the father in circumstances that the parties agree.  I have certainly given consideration to that.  The orders proposed, to my mind, are appropriate. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  17 November 2014