KOZAR & KOZAR

[2013] FCCA 339

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOZAR & KOZAR [2013] FCCA 339

Catchwords:
FAMILY LAW – Children – parenting orders – passport – international travel – best interests of the children – parental responsibility.

PRACTICE AND PROCEDURE – Service of documents – service by email – where evidence leads to the inference that the respondent is not in Australia – where respondent has provided no other address than an email address.

Legislation:
Australian Passports Act 2005 (Cth) s.11
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65Y

Federal Circuit Court Rules 2001 rr. 6.04, 6.06, 16.05

Applicant: MS KOZAR

Respondent: MR KOZAR

File Number: SYC 1190 of 2013

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

Counsel for the Applicant: Mr Malakhov

Solicitors for the Applicant: Malakhoff & Koloyaroff Legal

The Respondent: No appearance

ORDERS

1. The requirement for service by hand on the Respondent is dispensed with.

2. Service on the Respondent is to be effected by forwarding copies of service documents to his email address [omitted].

3. Leave granted to proceed ex parte.

4. The Applicant Mother is to have sole parental responsibility for the children [X] born [in] 1996 and [Y] born [in] 2001.

5. The children [X] born [in] 1996 and [Y] born [in] 2001 are to live with the Applicant Mother.

6. The Applicant Mother MS KOZAR may apply for a passport for the child [X] born [in] 1996 without first obtaining the consent of the Respondent Father MR KOZAR.

7. The Applicant Mother MS KOZAR may apply for a passport for the child [Y] born [in] 2001 without first obtaining the consent of the Respondent Father MR KOZAR.

8. The child [X] born [in] 1996 is permitted to travel internationally on or after 30 June 2013 for the purposes of:

   (a)Holiday travel to the Republic of Indonesia; and

   (b)Visiting relatives in the Russian Federation.

9. The child [Y] born [in] 2001 is permitted to travel internationally on or after 30 June 2013 for the purpose of visiting relatives in the Russian Federation.

10. The Registry Manager is to forward a sealed copy of these orders to the Senior Passports Officer of the Australian Passport Office, Sydney.

11. The Applicant’s Solicitor is to forward a copy of these Orders to the Respondent by email at [omitted] within seven (7) days.       

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1190 of 2013

MS KOZAR

Applicant

And

MR KOZAR

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of two children for orders that:

   a)The two children should live with her;

   b)She should have sole parental responsibility for the children; and

   c)The children’s father, the Respondent, should sign application forms for the children to obtain Australian passports.

2. The Mother also seeks an order permitting service to be effected by emailing the documents to the Father, as she has no other address for him than an email address. The parties have been separated since 2008 and the Mother believes that the Father is no longer living in Australia.   

Background

1. The parties were both born in the Russian Federation, where they met in 1989. The Mother was born [in] 1970 and the Father was born [in] 1971.

2. They commenced living together [in] 1995 and were married in [B] [in] 1996. There are two children of the marriage:

   a)[X], who was born [in] 1996; and

   b)[Y], who was born [in] 2001.

3. The Father emigrated to Australia in September 1999 and the Mother and [X] joined him in Australia on 17^th December 1999. Both parties have become Australian citizens.

4. The parties separated in February 2008 when the Father left the matrimonial home. The Mother believes that he has left Australia[1] and that the Australian Federal Police have been investigating his activities between the years 2004 and 2008.

   [1] Affidavit of Ms Kozar 2.3.2013 at paragraph [20]

5. The children remain in the primary care of the Mother. They have not seen or heard from their father since then except for occasional emails. The Father makes irregular payments of child support and the Mother asserts that payments are substantially in arrears.

6. The Mother deposed that the father spuriously obtained a Divorce Order in the Local Court at [B] on 20^th May 2008, without her knowledge. The Mother appealed to the City Court of [B] on 10^th December 2012 on the basis that she had not been notified of the proceedings at the time and was not made aware of the Divorce Order until July 2012. Her appeal was successful and on 12^th December 2012 the City Court reversed the earlier decision.

7. On 2^nd May 2013 the mother obtained a Divorce Order from the Federal Magistrates Court of Australia at Sydney. The Application and supporting documents were served on the Father by email, which the Court accepted as proper service in the circumstances. 

The Current Application

1. For the purpose of this Application, the Mother relies on:

   a)her affidavit of 2^nd March 2013; and

   b)the affidavit of her solicitor, Vadym Malakhov, sworn on 7^th May 2013.

2. The Mother deposed in her affidavit that she wishes to obtain passports for the children because her daughter had wanted to travel to Bali in Indonesia with a friend but was unable to obtain a passport without the Father’s consent. The Mother also deposes that she wishes to travel with the children to Russia so that the children may see their grandparents.  

3. The Mother obtained a purported letter of consent from the Father to the issue of a passport to [X], said to have been dated on 25^th May 2012 in Sydney. The letter was not accepted by the Australian Passports Office.

4. Efforts by the Mother’s solicitor to obtain written consent from the Father to the issue of passports to the children have been unsuccessful.

5. The Mother’s solicitor has deposed that he has attempted, through correspondence by email with the Father, to obtain consent to the issue of the passports and to obtain his consent to parenting orders have been unsuccessful. Mr Malakhov has annexed to his affidavit copies of various emails from the Father.

6. In an email dated 1/8/2012, the Father said, inter alia:

   It seems to me that instead of attempting to get the issue resolved for the benefit of your client you are trying to get this escalated without any reasonable ground. Below is my view on this situation. Please engage professional Russian translator if you have difficulties understanding English.

   …

   You have been notified that I’m not currently in Australia and don’t have any address you can send register mail to.

   …

   Once again, I want to remind you that I’m not against obtaining Australian passports by [X] and [Y].

   …

   In case you decided to proceed with Court Application please do not try to mislead the Court and make sure to include this conversation with the documents lodged.[2]

   [2] Affidavit of V. Malakhov 7.5.2013 Annexure “A”

7. On 8^th March 2013 the father advised the Mother’s solicitor by email:

   There are absolutely no grounds for a court case regarding this matter. I also agree that she can have sole parental rights until I will be able to return to Australia for the reasons you mentioned.[3]

   [3] Ibid Annexure “B”

The law to be applied

1. In deciding whether to make a parenting order, the Court is required by s.60CA of the Family Law Act 1975 (Cth) 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 s.60CC of the Act.

2. Subsection 61DA(1) of the Family Law Act requires the Court, when making a parenting order, to apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for him or her.

3. This presumption does not apply, however, 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 a child’s best interests for the child’s parents to have equal shared parental responsibility for him or her (s.61DA(4)).

4. Where a parenting order is in force, subsection 65Y(1) of the Act forbids a child subject to the order from being taken or sent out of Australia except as permitted by subsection (2), which provides:

   Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

   (a)it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or

   (b)it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).

5. Subsection 11(1) of the Australian Passports Act 2005 (Cth) prescribes that:

   (1)The Minister must not issue an Australian passport to a child unless:

   (a)each person who has parental responsibility for the child consents to the child travelling internationally; or

   (b)an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.

Conclusions

1. It is clear from the evidence that the only way of contacting the Respondent Father is via email. The email correspondence annexed to the affidavit of the Mother’s solicitor states that the Father was out of Australia in August 2013 and March of this year. It is a reasonable inference that this state of affairs is continuing. The Father has declined to provide any other address to the Mother’s solicitor.

2. I am satisfied that, in all the circumstances, it is appropriate to apply Rule 6.06 and direct that the documents may be served in another way than by hand, namely be email to the Father’s email address. I also propose to find that the originating documents have been served on the Father by email as set out in the affidavit of the Mother’s solicitor (r.6.04).

3. I am satisfied that the Respondent Father is aware of these proceedings.

4. On the evidence before the Court, I am satisfied that it would not be in the best interests of the children [X] and [Y] for their parents to have equal shared parental responsibility for them. The Father has effectively been absent from the children’s lives since early in 2008 and they have had no communication from him except some emails. The Father has not taken the opportunity to participate in making decisions about major long-term issues in relation to the children or to spend time with them. The nature of the children’s relationship with their father would now be steadily diminishing after an absence of more than five years.

5. The children’s mother is, and has been, the children’s primary caregiver and that situation is unlikely to change. In my view, it is in the children’s best interests for their mother to have sole parental responsibility for them and for them to keep living with her. I note that [X] will attain the age of 17 years on [date omitted].

6. It seems to me to be in the children’s best interests for them to be able to travel internationally, especially for them to travel with their mother to see their grandparents in Russia. To do this, they need passports.

7. Should the Father wish to vary or set aside the Orders that I propose to make, he should make the appropriate application under rule 16.05.  

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  22 May 2013