LUFT & LUFT

[2015] FCCA 2675

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUFT & LUFT [2015] FCCA 2675

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – where respondent did not attend court on hearing – where respondent did not attend court on three prior occasions – where neither party attended Child Dispute Conference – parental responsibility – equal shared parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA

Federal Circuit Court Rules 2001, r.13.03C

Applicant: MS LUFT

Respondent: MR LUFT

File Number: CRC 71 of 2014

Judgment of: Judge Scarlett

Hearing date: 24 September 2015

Date of Last Submission: 24 September 2015

Delivered at: Coffs Harbour

Delivered on: 24 September 2015

REPRESENTATION

Solicitor for the Applicant: Ms Roche

Solicitors for the Applicant: Legal Aid NSW

Respondent: No appearance

ORDERS

1. All earlier parenting Orders are discharged.

2. The parents shall have equal shared parental responsibility for the children X born (omitted) 2001, Y born (omitted) 2002 and Z born (omitted) 2004.

3. The children X, Y and Z are to live with the Mother.

4. The children are to spend time with the Father, unless otherwise agreed, as follows:

   (a)For half of the April, July and October New South Wales gazetted School; holidays;

   (b)The Father will collect the children on the first Saturday after school finishes at the mother’s house at (omitted) at 12 noon and the father will deliver the children to the mother on the middle Saturday of the holiday period to the mother’s sister’s house at (omitted) at 12 noon;

   (c)For half of the New South Wales Christmas School Holidays with the Father to have the first half in 2015 and the second half in 2016 and alternating thereafter.

5. On each child’s birthday, the parent not having the child in their care on the child’s birthday will spend time with the child by telephone

Easter Long Weekend

1. Irrespective of the arrangements as set out in the Orders above the parents to alternate the Easter long weekend between them from

   
   

   5.00 pm the Thursday afternoon prior to Good Friday until 6.00 pm Easter Monday with the Father to have the children for the Easter long weekend in Easter 2016 and each alternate weekend thereafter and with the Mother in 2017 and each alternate weekend thereafter.

2. The Father and the Mother are to have sole responsibility for making decisions about the day to day care, welfare and development of the children during the period when the children are living with them.

Medical

1. The parents are to keep each other advised of all significant medical appointments arranged for the children and in the case of an emergency advise the other as soon as possible.

Telephone Communication

1. The children are to have telephone communication with their parents at all times and each parent who then has the care of the children will facilitate any request by the children to communicate with the other parent.

Exchange of Information

1. The parents must:

   (a)keep each other informed of their current residential address and telephone number;

   (b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;

   (c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by any of the children and this Order authorises any treating medical practitioner to release the child’s medical information to the other parent;

   (d)provide photos and videos to each other to enable those photos and videos to be copied at the expense of the other parent;

   (e)keep and transfer between each parent a communication book to enable each parent to communicate in relation to the needs and interests of the children and to provide timely advice of the children’s social, sporting and cultural activities.

2. Any school attended by any of the children is authorised by this Order to give each parent information about the children’s educational progress and other related activities and supply each parent with copies of reports, photographs, certificates and awards obtained by each child.

3. The mother is to make an appointment for the children to see a counsellor at the Family Relationships Centre at (omitted) and each parent is authorised to speak to the Centre about the children.

4. Each parent will be at liberty to attend any school or preschool musical or sporting activity in which the children are participating.

Respect for the Other Parent

1. During the time the children are with either parent that parent must:

   (a)speak of the other parent respectfully; and

   (b)not denigrate or insult the other parent in the presence or hearing of any of the children and use that parent’s best endeavours to ensure that other people do not denigrate or insult the other parent in the presence or hearing of any of the children.

Dispute Resolution

1. In the event that there is a dispute about any of the children or about the interpretation, implementation or enforcement of these Orders, the parents before making any further application to a Court must:

   (a)either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney-General; or

   (b)participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.    

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 71 of 2014

MS LUFT

Applicant

And

MR LUFT

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for final parenting Orders by the mother of the parties’ three children, X, Y and Z. X is 14 years of age, Y is 12 years and 9 months old, and Z is about to attain the age of 11 years. They have been living with their mother since their parents separated in 2009.

2. The father has not played a very active part in the proceedings. He was previously represented by a solicitor and entered into Interim Consent Orders on 30 September 2013 but does not seem to have attended Court since then. His solicitor filed a Notice of Intention to Withdraw on 17 February this year.

3. The father did not attend Court on the hearing of the Application and, as there was no satisfactory explanation for his absence, I decided to proceed with the hearing generally under the provisions of Rule 13.03C.

Orders Sought

1. The mother seeks orders that:

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

   b)the children are to live with her;

   c)the children should spend time with their father for half of each of the school holidays;

   d)each parent will have telephone communication with each child on the child’s birthday if the child is in the care of the other parent;

   e)the children would spend alternate Easter holidays with each parent; and

   f)other ancillary orders.

Background

1. The background facts are succinctly set out in the mother’s affidavit sworn 11 September 2013, when she commenced proceedings in the Local Court at Coffs Harbour.

2. The mother was born on (omitted) 1979. The father was born on (omitted) 1978.

3. The parties were married on (omitted) 2004 and separated on an unspecified date in 2009.

4. There are three children of the marriage, all residing with the mother.

5. X was born on (omitted) 2001. Y was born on (omitted) 2012. Z was born (omitted) 2004.

6. The mother resides with the children at (omitted). The father resides at (omitted), which is not far from (omitted) but is a considerable distance from (omitted). The mother estimates that it is a six hour drive from (omitted) to (omitted).[1]

   [1] Affidavit of Ms Luft 11.9.2013 at paragraph [8]

Procedural History

1. The mother commenced proceedings by filing an Application and a supporting affidavit at the Local Court at Coffs Harbour on 12 September 2013.  The Application was returnable on 1 October 2013.

2. The father consulted a solicitor in (omitted) and on 30 September 2013 the parties entered into interim Consent Orders. The Application was adjourned by the Magistrate to 3 December 2013 and then to 10 March 2014, where upon the Application was transferred to the Federal Circuit Court. The learned Magistrate ordered that the father should file a Response within 14 days. The father did not do so.

3. The Application was listed before this Court on 20 May 2014. The parties’ solicitors both attended Court and I made orders that:

   a)the parties were to attend a Child Dispute Conference under the provisions of s.11F of the Family Law Act 1975 (Cth); and

   b)the father was to file and serve a Response and a supporting affidavit within 28 days.

4. The Application was then adjourned to this Court on 29 September 2014.

5. The Child Dispute Conference was scheduled for 19 June 2014. Neither party attended.

6. The father filed a Response and an affidavit on 11 September 2014.

7. On 29 September 2014 the Applicant’s solicitor appeared before the Court but there was no appearance by or on behalf of the Respondent father. His Honour Judge Kemp directed that both parties should file and serve an affidavit explaining why they did not attend the Child Dispute Conference and adjourned the Application to 18 November 2014. Both parties filed an affidavit explaining why they did not attend the Child Dispute Conference.

8. On 18 November 2014 the application was adjourned to 19 February 2015, initially, which was changed to 17 February.

9. On 17 February 2015 the father’s solicitor filed a Notice of Intention to Withdraw. The mother’s solicitor appeared before the Court but there was no appearance by or on behalf of the father. His Honour Judge Kemp ordered the mother to file and serve an Amended Application within seven days and ordered the father to file and serve a Response within a further period of 21 days.

10. His Honour also ordered the parties to attend a Child Inclusive Conference with a Family Consultant which was scheduled to take place on 3 June 2015. The Application was then adjourned to 7 July 2015 for further mention.

11. The mother filed her Amended Application on 25 February 2015. The father did not file a Response.

12. On 7 July 2015 the Court noted that the father had failed to attend the Child Inclusive Conference, asserting that he was ill. The Court extended the time for the father to file and serve his Response to the Amended Application within 14 days. The Application was adjourned to 24 September 2015.

13. No Response was filed.

14. There was no appearance by or on behalf on the father on 24 September and there was no explanation for his absence. Accordingly, I decided to proceed with the hearing generally.

Evidence and Submission

1. The mother attended Court with her solicitor and gave oral evidence. She relied on her Amended Application and her affidavit.

2. The mother told the Court that the father still lived in (omitted) and changeovers took place at her sister’s home in (omitted). She said that the father usually declined to speak to her at changeover.

Applications for Parenting Orders

1. When the Court hears an application for parenting orders it should have regard to the matters contained in Part VII of the Family Law Act. In particular, the Court should consider the matters contained in Sections 60B, 60CA (which provides that the best interests of the child must be the paramount consideration), Section 60 CC and Sections 61DA and 65DAA.

2. I have considered the matters in those sections so far as they are relevant.

Conclusions

1. The father has failed to participate in the proceedings for some considerable time. I found the mother’s evidence to be persuasive. She clearly accepts that it is in the children’s best interests to have a meaningful relationship with their father and the orders she proposes will clearly meet this requirement, notwithstanding the considerable distance between the homes of the father and the mother.

2. I am satisfied that that the Orders proposed by the mother in her Amended Application are in the children’s best interests and I will order accordingly.   

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

Associate: 

Date: 30 September 2015