LANDER & BARTLING
[2012] FMCAfam 1466
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANDER & BARTLING | [2012] FMCAfam 1466 |
| FAMILY LAW – Children – Parenting – Application for parenting orders – one child aged nearly three years – parental responsibility – sole parental responsibility – best interests of the child – evidence of family violence – need to protect the child from physical or psychological harm – where court satisfied that the child not spend time with the Father. PASSPORT – Australian Passport – applicant to have sole responsibility for obtaining and renewing a passport for the child. |
| Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA Federal Magistrates Court Rules rr.13.03C, 16.05 |
| In the Marriage of JG and BG (1994) 18 Fam LR 255; FLC 92-515 Reagan & Nevin [2012] FMCAfam 1431 |
| Applicant: | MS LANDER |
| Respondent: | MR BARTLING |
| File Number: | SYC 5668 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 December 2012 |
| Date of Last Submission: | 17 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Wallace |
| Solicitors for the Applicant: | Adamson Solicitors |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
The child X born (omitted) 2009 is to live with the Applicant Mother.
The Applicant Mother is to have sole parental responsibility for the child X which includes but is not limited to all day to day long-term care, welfare and development of the child.
The Applicant Mother is to have sole decision-making power for the child which includes but is not limited to all the day to day long term care, welfare and development of the child.
There are no orders for contact between the child and the Respondent Father or for the child to spend time with the Respondent Father.
The Applicant Mother is to have sole responsibility and decision-making powers regarding the facilitation of and subsequent renewals of an Australian passport for the child.
The Mother is to have sole possession, responsibility and decision-making powers regarding the child’s passport.
The Applicant’s solicitor must forward a sealed copy of these Orders to the Respondent by ordinary pre-paid post within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Lander & Bartling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5668 of 2012
| MS LANDER |
Applicant
And
| MR BARTLING |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders by the mother of a little girl called X, who is nearly three years old. X was born on (omitted) 2009.
The Respondent Father has not appeared or filed any documents by way of a Response or an affidavit.
Orders Sought
The Applicant seeks orders that:
a)the child should live with her;
b)she should have sole parental responsibility for the child;
c)there should be no orders for contact between the Father and the child or that the child should spend any time with the Father; and
d)that she should have sole responsibility for obtaining, renewing and possessing the child’s passport.
Evidence and Submission
The Applicant relied on her affidavits of 27th June and 1st November 2012. She gave oral evidence in which she affirmed the truth of her affidavit evidence and advised that there had been no change in circumstances of any significance since her last affidavit.
The Applicant’s evidence was that the relationship with the Respondent had been marked by violence and coercion on his part and that the Respondent had forced himself on her against her will. He is not spending time with the child or making any attempt to do so.
The Applicant had difficulties in locating the Respondent when the proceedings were commenced, so much so that an order had to be made dispensing with personal service.
The Application was listed for undefended hearing. The Respondent was called at 12:27pm but there was no appearance. As I was satisfied that the Respondent had been made fully aware of the proceedings and that, if he did not appear, orders may be made in his absence, I proceeded with the hearing generally under the provisions of Rule 13.03C.
The Law to be Applied
In deciding whether to make a 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 s. 60CC of the Act.
The primary considerations set out in subsection 60CC(2) are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The term “family violence” is defined by subsection 4AB(1) of the Act:
4AB(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
It is noteworthy that the recently-added subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the Court is to give greater weight to the considerations set out in paragraph (2)(b).
Thus, the legislature is making it clear by this amendment the importance that Courts must attach to protecting children from the effects of violence, abuse or neglect, even to the extent of giving this consideration priority over the consideration of the benefit of a meaningful relationship with both parents.
there are additional considerations set out in subsection 60CC(3), which includes such matters as:
a)the wishes of the child;
b)the nature of the child’s relationship with each parent and other persons, including grandparents;
c)the extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and other matters;
d)the extent to which each of the parents has fulfilled, or failed to fulfil, the obligation to maintain the child;
e)any family violence involving the child or a member of the child’s family;
f)whether any family violence order applies, or has applied, to the child or a member of the child’s family; and
g)various other matters.
The Court is required by s.61DA 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. However, the presumption does not apply in cases of abuse or family violence (subsection 61DA(2)) and it may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (s.61DA(4)).
If the presumption of equal shared parental responsibility applies, the Court must then consider the matters set out in s.65DAA, whether it is both in the child’s best interests and reasonably practicable for the child to spend:
a)equal time with each parent (s.65DAA(1)); or, if the Court does not so order;
b)substantial and significant time with each parent (s.65DAA(2)).
All of the above matters have been considered in this case.
The Applicant is seeking orders from the Court that she should have sole responsibility and decision-making powers in the facilitation and renewal of a passport for the child, and that she have sole decision-making power for the possession of the passport.
Section 11 of the Australian Passports Act 2005 relevantly provides:
(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…
(5)For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975; or
(ii) has not ceased to have parental responsibility for the child because of an order under the Family Law Act 1975; or
(b) under a parenting order:
(i) the child it to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long-term or day-to-day care, welfare and development; or
(c) [repealed]
(d)the person is entitled to guardianship or custody of, or access to, the child under a law of the Commonwealth, a State or a Territory.
Conclusions
The best interests of the child X are the paramount consideration.
When examining the primary considerations under subsection 60CC(2), the Court considers the matters in paragraph (a):
the benefit to the child of having a meaningful relationship with both of the child’s parents.
In this case, the evidence is that the Mother is and has been the child’s primary caregiver. The Father has not had a great deal to do with the child in the past and is not making any effort at all to have any relationship with the child. It would appear that the benefit to this child of a relationship with an absent father is not particularly great.
In any event, the Court is required by subsection 60CC(2A) to give greater weight to the consideration in paragraph (b) of subsection 60CC(2):
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
The Mother has given evidence of violence inflicted on her on moire than one occasion. Family violence involving a child or a member of the child’s family is also an additional consideration under paragraph (j) of subsection 60CC(3).
The issue of family violence is relevant when dealing with the application of the presumption in s.61DA(1) that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Subsection 61DA(2) provides that that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
It is well established that family violence is directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children (see In the Marriage of JG and BG[1]; Reagan & Nevin[2]).
[1] (1994) 18 Fam LR 255; FLC 92-515
[2] [2012] FMCAfam 1431
In my view, the evidence of family violence is sufficient to find that the presumption of equal shared parental responsibility does not apply and the Applicant mother should have sole parental responsibility.
Having regard to the other relevant considerations in s.60CC(3), there is no evidence of X’s wishes and, in any event, she is only three years old. She is too young for the Court to give any weight to her views (s.60CC(3)(a)).
In considering the nature of the child’s relationship with each of her parents, it is clear that the Mother has been the child’s primary caregiver all her life and will continue to do so. The Father’s relationship with the child in the past has been slight and is now non-existent (s.60CC(3)(b)).
The Mother has been the child’s primary caregiver and has made whatever major long-term decisions have been necessary for the child. The Father has not availed himself of the opportunity to play any significant role in the child’s life.
The Father has not played any part in these proceedings. If he wishes to play a role in his daughter’s life, he will need to make an application to the Court under Rule 16.05 to vary or set aside any of the orders that have been made in his absence.
The evidence of family violence, unanswered by the Respondent, is sufficient to enable the Court to be satisfied that the child X should not spend any time with the Respondent.
The Mother seeks orders that she, and she alone, should have sole responsibility for any matters involving the issue and any subsequent renewal of a passport for the child. In my view, an order that the mother has sole parental responsibility for the child under s.61DA of the Family Law Act should suffice to meet the requirements of s.11 of the Australian Passports Act, but for more abundant caution I will make the orders that she seeks. On the evidence of the Mother’s difficulty, or that of her solicitor, in locating an address for the Respondent in an attempt to affect personal service of the Application on him, it is likely that the mother would have just as much trouble in locating the father if she were to apply for a passport for the child.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 18 January 2013
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