Mansur and Hosni

[2020] FamCA 166

FAMILY COURT OF AUSTRALIA

MANSUR & HOSNI [2020] FamCA 166

FAMILY LAW – CHILDREN – undefended – final parenting orders – where the father initiated proceedings in September 2017 seeking orders that the children live with him and that he have equal shared parental responsibility of the children – where the children were placed on the airport watch list as a result of ex parte interim orders sought by the father – where the father has not engaged in the proceedings since July 2018 – where the father has not seen the children since July 2017 – order that leave be granted for the matter to proceed on an undefended basis – order that the mother have sole parental responsibility – order that the children live with the mother – order that the father spend time with the children as agreed between the parties – order that the children be removed from the airport watch list – order that the children be permitted to travel overseas with the mother without the consent of the father.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Rules 2004 (Cth)

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

APPLICANT: Mr Mansur

RESPONDENT: Ms Hosni

INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan and Associates

FILE NUMBER: MLC 9785 of 2017

DATE DELIVERED: 19 March 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 March 2020

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Stoilkovska

SOLICITOR FOR THE RESPONDENT: Macgregor Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hession

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan and Associates

Orders

1. That leave be granted for this matter to proceed on an undefended basis.

2. That all previous parenting orders be discharged.

3. That the children X born … 2015 and Y born … 2016 (“the children”) live with the mother.

4. That the mother have sole parental responsibility for making decisions regarding the children’s long term care, welfare and development.

5. That the father spend time and communicate with the children as agreed between the parties in writing.

6. That the Watch List Order made 21 September 2017 be discharged AND IT IS REQUESTED that the Australian Federal Police remove the names of the children X born … 2015 and Y born … 2016 from the Airport Watch List.

7. That a sealed copy of this order be provided forthwith to the Marshal of the Family Court of Australia and the Commissioner of the Australian Federal Police and the mother be permitted to provide a sealed copy of these orders to the Australian Federal Police by email ... .

8. That the mother is permitted to take the children outside the Commonwealth of Australia for a period of up to 10 weeks per annum, subject to:-

   (a)Not less than 30 days prior to any overseas travel, the mother provide to  the father notice of intention to travel in writing by email; and

   (b)Not less than 14 days prior to any travel overseas, the mother provide to the father in writing by email the following:-

   (i)A proposed travel itinerary;

   (ii)Contact details for the mother and the children for the duration of the travel; and

   (iii)A copy of her and the children’s return airfares.

9. The parties shall do all things and sign all documents necessary to maintain the Australian passports for the children which includes doing all such things and sign all such documents to enable the renewal of the children’s passports, upon 7 days’ notice of a request by the other party and in the event the father fails to comply with this order, the mother be permitted to obtain Australian passports for each of the children notwithstanding the father may not provide his written consent.

10. The mother retain possession of the children’s passports.

11. That the appointment of the Independent Children’s Lawyer is discharged.

12. That all extant applications be otherwise dismissed.

13. Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mansur & Hosni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9785 of 2017

Mr Mansur

Applicant

And

Ms Hosni

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant father commenced proceedings in the Federal Circuit Court of Australia in September 2017, seeking final parenting orders in relation to the parties’ two children, X aged 5 and Y aged 3.

2. In his amended Initiating Application filed 13 October 2017, the father’s principal position is that the parties have equal shared parental responsibility for the children, that the children live with him and spend time with the mother as deemed fit by the Court. 

3. The mother opposes that application and seeks orders that she have sole parental responsibility, that the children live with her and spend time and communicate with the father at such times as agreed between the parties.  In addition, the mother seeks orders that the children be removed from the Airport Watch List and that she be at liberty to obtain passports for them and travel with them internationally.

4. The father has spent no time with the children since July 2017.

5. Further, the father has not engaged in these proceedings since July 2018, that being the last occasion upon which he attended Court.  He has filed no documents in the proceedings (save for notices of withdrawal by his lawyers) since October 2017.  Given that position, the mother seeks leave to proceed with her Response seeking final parenting orders on an undefended basis. That application is supported by the Independent Children’s Lawyer.

6. These are my reasons for judgment with respect to that application.

Background

1. The applicant father, Mr Mansur, is aged 41 and is an employee.

2. The respondent mother, Ms Hosni, is aged 33. The mother was born in Country H and moved to Australia in 2007, and has resided in Australia since that time. The mother is a full time homemaker and carer for the children.

3. The parties were married in 2013. The mother deposes that the parties separated on a final basis on 6 April 2017, although on the father’s material separation is indicated as being August 2017. Little turns on this issue.

4. There are two children of the parties’ relationship; X aged 5, and Y aged 3. The mother has another child from a previous relationship, Z who is aged 10.   The three children currently reside with the mother. The mother deposes that the children have not spent any time with the father since July 2017.

5. Proceedings were commenced in the Federal Circuit Court by the father on 21 September 2017. At that time he was represented by lawyers. In his Initiating Application, the father sought final parenting orders, as well as interim orders to place the children on the Airport Watch List.  That day, Judge Riley made ex parte orders restraining both the mother and the father from removing the children from the Commonwealth of Australia. An Independent Children’s Lawyer (“the ICL”) was also appointed, and further directions were made providing for the father to file an amended Initiating Application.

6. The mother filed a Response to Initiating Application on 5 October 2017 seeking final parenting orders and that the children be removed from the Airport Watch List.

7. On 6 October 2017, Judge Riley made orders listing the matter for an interim hearing. The orders made included that:-

   1.The matter be adjourned to 1 November 2017 at 10am for interim hearing.

   2.The time for the father to file and serve an amended application and affidavit in support be restricted to13 October 2017.

   3.The father’s affidavit to be filed on or before 13 October 2017 include all documents that are in his possession or that he has provided to Centrelink that relate to his mental health and that relate to his qualification for a disability support pension.

   …

8. The father subsequently filed an affidavit and amended Initiating Application on 13 October 2017 in compliance with order 2 of those orders. They are the last substantive documents filed by him in these proceedings.  In his application, the father sought both final parenting and property orders.

9. The mother contends that the father failed to comply with order 3 of the October 2017 orders, in so far as his affidavit filed 13 October 2017 did not “include all documents that are in his possession or that he has provided to Centrelink that relate to his mental health and that relate to his qualification for a disability support pension.”

10. On 1 November 2017, the matter was adjourned to December 2017 for an interim defended hearing, and further trial directions were made, including that the parties be psychiatrically assessed. Interim consent orders were also made that day, providing for the father to spend professionally supervised time with the children until the interim hearing, without admitting need for the same.  That time did not proceed.

11. On 22 November 2017, the father filed a Notice of Discontinuance in respect of his amended Initiating Application filed 13 October 2017. On 29 November 2017 the father’s lawyers filed a Notice of Withdrawal as Lawyer. Just prior to the listed interim hearing, on 6 December 2017 the father’s newly appointed lawyers filed a Notice of Address for Service on behalf of the father.

12. On 8 December 2017, the matter returned before Judge Riley. The interim hearing was again adjourned, this time to 16 February 2018 and the father was granted leave to withdraw his Notice of Discontinuance filed 22 November 2017. A further order was made for the father to produce documents relating to his mental health.  That order provides as follows:-

    4.On or before 2 February 2018, the father file and serve an affidavit to include all documents that are in his possession or that he has provided to Centrelink that relate to his mental health and that relate to his qualification for a disability support pension.

13. The father did not file an affidavit in accordance with that order.

14. The matter returned to the Federal Circuit Court on 16 February 2018. That day Judge Riley suspended the father’s time with the children until further order, and the proceedings were transferred to the Family Court of Australia.

15. On 6 March 2018, the matter came before the Family Court for the first time. Registrar Sudholz made a series of procedural orders, including an order extending time for the father’s compliance with order 4 of the orders dated 8 December 2017.  The father has not complied with that order.

16. On 29 March 2018, the father’s lawyers filed a Notice of Ceasing to Act.

17. The matter returned to Court on 18 April 2018 before Registrar Sudholz, with the father appearing in person. That day orders were made as follows:-

    1.That the father file all material required pursuant to paragraphs 2(a) and (b) of the Orders of 6 March 2018, and paragraph 4 of the Orders of the Federal Circuit Court dated 8 December 2017 as amended in paragraph 9 of the Orders of 6 March 2018 on or before 4:00pm on 27 April 2018.

    2.That the father forthwith and no later than seven days from this day, deposit the sum of $1089.00 with the Independent Children’s Lawyer (ICL) to enable the ICL to make the appointments with Dr B referred to in paragraphs 8 and 10 of the orders made in the Federal Circuit Court on 1 November 2017 and the ICL’s Trust Account details are as follows:

    …

    3.That if the father fails to comply with paragraphs 1 and 2 of these orders, the mother have leave to proceed on an undefended basis.

    …

    6. In the event that the father does not engage the services of a lawyer by 11 May 2018, the father must provide 3 months of bank statements to the ICL by 18 May 2018.

    IT IS NOTED THAT

    A.It is the intention of the ICL and the mother to have the father’s application filed 21 September 2017 and Amended Initiating Application filed 13 October 2017 dismissed and to apply in each case for an order for costs thrown away against the father in the event of the father’s failure to comply with these orders.

    B.If the father fails to comply with any of these orders he is on notice that his interim amended application filed 13 October 2017 may be dismissed pursuant to Rule 11.02(2)(a).

    …

18. The father failed to comply with those orders.

19. The matter returned to Court on 23 May 2018 before Registrar Sudholz, with the father appearing in person that day. Final property orders were made by consent, and the parenting aspects of the case were adjourned to the Senior Registrar’s Duty List for an interim defended hearing.

20. The matter came before Senior Registrar FitzGibbon on 17 July 2018, with the father appearing in person.  Consent orders were made that day, again requiring the father to file the following material in compliance with previous orders.  Those orders included:-

    …

    2.That within 14 days of this date hereof, the Applicant Husband comply with paragraph 3 of the Orders made in the Federal Circuit Court on 6 October 2017.

    3.That within 14 days of this date, the Applicant Husband comply with paragraphs 1, 2 and 6 of the Orders made on 18 April 2018.

    4.That until the Father complies with paragraphs 1 and 2 of these Orders and paragraph 8 of the Orders made 1 November 2017 in the Fededral [sic] Circuit Court, the children’s time with the Father, not commence.

21. The matter was otherwise adjourned for interim hearing before the Senior Registrar on 13 November 2018.  That was the last occasion upon which the father attended Court in relation to these proceedings.

22. The father did not file any material in accordance with those orders.

23. On 13 November 2018, when the matter returned before the Senior Registrar, the father did not appear. The matter was adjourned to 6 December 2018, and other filing orders were made that day, including:-

    1.That all extant applications be adjourned to the Senior Registrar’s Duty List on 6 December 2018 at 10:00am.

    2.That the respondent wife is to file and serve an Application in a Case and affidavit by her or any other witness on her behalf in support of the orders she seeks by no later than 21 November 2018.

    3. That subject to compliance with service and notice to him in order 6 herein, the applicant husband is to file and serve a Response to an Application in a Case in response to that of the wife, supported by affidavit by him or any other witness on his behalf by no later than 28 November 2018.

    …

    6. (a)        That the respondent wife serve the applicant husband with a true or sealed copy of these orders and the Application in a Case and affidavit pursuant to order 2 herein at his Address for Service, and by any other suitable means which is known or becomes available to the wife’s solicitors, including electronic, email, or by telephone, or to a known family member or friend under cover of letter requesting them to give him the relevant information and documentation in a sealed envelope to him; then

    (b)      subject to compliance with (a), if the applicant husband fails to attend, appear or be represented on the adjourned date of hearing, liberty to the wife and ICL to seek the Court make unopposed orders that day and without further notice to the husband.

24. The mother filed an Application in a Case and an affidavit on 21 November 2018 in compliance with those orders. The mother also filed an affidavit of service on 23 November 2018, confirming that she had served her Application in a Case and affidavit, as well as a copy of the orders made 13 November 2018, on the father.

25. On 6 December 2018 Senior Registrar FitzGibbon made orders in the absence of the father as follows:-

    1.That all extant interim applications be dismissed.

    2.That this matter be placed in the list of cases awaiting allocation to a judicial docket with priority as and from this day.

    3.That the respondent wife and Independent Children’s Lawyer (“ICL”) have general liberty to apply to seek to relist the matter for any reason, including to seek further or other orders including undefended orders, and if so by filing an Application in a Case supported by affidavit.

    4.That in the event the husband seeks to initiate or re-open any interim applications, he shall do so first by filing an Application in a Case supported by affidavit setting out the reasons why he has failed to attend Court and comply with all prior orders made and the basis upon which the Court should consider and permit the application to proceed and including why that application and any application by him for final orders should not be summarily dismissed without further enquiry and orders made as may be sought by the wife and ICL

    …

    IT IS REQUESTED

    5.That as soon as practicable after receipt of these orders the ICL send a true or sealed copies of these orders to the last known address of the husband or by any other suitable means.

    …

26. On 13 December 2019 the ICL filed an affidavit confirming that on 11 December 2018, he caused a copy of the orders made 6 December 2018 to be posted to the father’s last known address and to him via email.

27. The matter returned to Court on 16 December 2019 in the Callover; the father did not appear at that hearing. That day, I made trial directions listing the matter before me for final hearing on 13 March 2020 as a one day matter. The father was directed to file the following:-

    ·    That by 4.00 pm on 20 January 2020 the applicant file and serve upon all other parties:

    o   an amended application setting out with precision the orders to be sought; and

    o   the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

28. Notation C of those orders provided that:-

    ·    The father has not participated in these proceedings since November 2018. In the event that he does not comply with these orders the mother has indicated that she will seek to proceed with her application on an undefended basis at the final hearing.

29. The father has not filed any material in compliance with those orders.

Should the mother have leave to proceed on an undefended basis?

1. The father was called in the Court precincts at the commencement of the hearing and there was no response to that call.  The father has not attended a Court event since July 2018, and has not filed documents in support of his application in these proceedings since October 2017.  Further, he has spent no time with the children since 2017.

2. It is against that backdrop that the mother seeks that the matter proceed on an undefended basis. It was submitted on behalf of the mother that in circumstances where the father has consistently failed to comply with orders, has not filed a document since his lawyers filed a Notice of Ceasing to Act in March 2018, and has failed to attend the Court since 17 July 2018 the matter should proceed in his absence.  The ICL supports the mother’s position.

3. The mother relies on the affidavit of service of Ms C, filed 6 March 2020. Ms C there deposes that the mother’s trial affidavit filed 21 February 2020 was served on the father at his last known address in Suburb D on 26 February 2020.  

1. Whilst the mother did not serve the father with a copy of the minute of orders sought tendered at the hearing, the orders she seeks are substantially in the terms of her Response filed 5 October 2017, which was served on the father through his lawyers at that time.  It was submitted that the father attended at Court events following the filing of that Response, both in person and through his lawyers, and as such has had notice of the final orders sought by the mother.   In addition, the father filed an amended Initiating Application on 13 October 2017, approximately one week after the mother filed her amended Response. 

2. Further, paragraphs 30 and 31 of the affidavit of the mother filed 21 February 2020 and served on the father on 26 February 2020 confirm the final orders that are sought by the mother.

3. The orders sought by the mother, as set out in Exhibit R-1 are in almost identical terms to those originally sought by her in the interim and final orders sought in her Response filed in October 2017.  I accept the evidence of Ms C as to service of the mother’s trial affidavit on the father.  Accordingly, I am satisfied that the father has had notice of the final parenting orders sought by the mother.

4. The father last attended a Court event on 17 July 2018. On that day, Senior Registrar FitzGibbon made orders that “…all extant applications be adjourned to the Senior Registrar’s Duty List on 13 November 2018 at 10:00am.”

5. As a result, the father had notice of the hearing before the Senior Registrar on 13 November 2018.  He did not appear at that court event. On that day, orders were made adjourning the matter to 6 December 2018, and provided for the mother to “…serve the applicant husband with a true or sealed copy of these orders and the Application in a Case and affidavit pursuant to order 2 herein at his Address for Service…”.

6. The mother filed an affidavit of service on 23 November 2018. In that affidavit the mother deposes she served on the father a copy of her Application in a Case and affidavit both filed 21 November 2018, as well as the orders made 13 November 2018.  Accordingly, I am satisfied that the father had notice of the hearing on 6 December 2018.

7. Orders were made by the Senior Registrar to dismiss all extant applications, and to place the matter in the list of cases awaiting allocation to a judicial docket. Further, paragraph 5 provided for the ICL to serve the orders made 6 December 2018 on the father.

8. On 13 December 2019, the ICL filed an affidavit deposing as to the execution of service of the 6 December 2018 orders on the father both via post and email.  I accept that evidence.

9. On 14 November 219, the father was notified via email correspondence from the Court of the callover on 16 December 2019. Trial directions were made at that callover, listing the matter for hearing on 13 March 2020.  Those orders were forwarded to the father by the Court at his address in Suburb D.

10. Having regard to all of the above matters, I am satisfied that the father has been afforded procedural fairness; he has been given notice of the hearing and the orders sought by the mother.  I am also satisfied that the father has had notice of the evidence relied upon by the mother in support of her application for final parenting orders.

11. The orders made on 16 December 2019, 6 December 2018, 13 November 2018 and 18 April 2018 gave notice to the father that the mother may seek to proceed on an undefended basis in the event of his non-compliance with Court orders.  Hence, I am satisfied that the father has had notice as to the potential consequences of his non-compliance with Court orders.  I am also satisfied that the father has failed to comply with Court orders requiring him to file affidavit material.

12. In circumstances where the father has not filed any substantive material in the proceedings since October 2017 and has not appeared in the proceedings since July 2018, I am satisfied that the mother should have leave to proceed with her application for final parenting orders on an undefended basis.

Material relied upon

1. The mother relies upon the following material:-

   ·    Outline of Case filed 12 March 2020;

   ·    Response to Initiating Application filed 5 October 2017;

   ·    Affidavit of Service filed 6 March 2020;

   ·    Affidavit of the mother filed 21 February 2020;

   ·    Affidavit of the mother filed 21 November 2018;

   ·    Application in a Case filed 21 November 2018;

   ·    Affidavit of the mother filed 15 February 2018;

   ·    Affidavit of the mother filed 30 October 2017;

   ·    Affidavit of the mother filed 5 October 2017;

   ·    Notice of Risk filed 5 October 2017;

   ·    Report of Dr G dated 20 November 2018 (Exhibit ICL-1); and

   ·    Report of Dr G dated 5 December 2018 (Exhibit ICL-2).

2. The ICL relies on the following material:-

   ·    Affidavit of the ICL filed 13 December 2019;

   ·    Report of Dr G dated 20 November 2018 (Exhibit ICL-1); and

   ·    Report of Dr G dated 5 December 2018 (Exhibit ICL-2).

Orders sought

1. At the commencement of the hearing, the mother tendered a minute of proposed orders sought by her (Exhibit R-1). The substantive orders that she seeks are outlined as follows:-

   ·    All previous orders be discharged.

   ·    The children live with the mother.

   ·    That the mother have sole parental responsibility;

   ·    That the father spend time and communicate with the children as agreed between the parties in writing.

   ·    That the children be removed from the Airport Watch List.

   ·    That the mother be at liberty to travel overseas for a period of up to 10 weeks per annum provided that she provides in writing to the father, no less than 30 days prior to any overseas travel, notice of intention to travel by email, and not less than 14 days prior to any travel overseas provide the following:-

   o   Travel itinerary; and

   o   Contact details for the mother and the children for the duration of the travel

   ·    The parents shall do all things and sign all documents to maintain the Australian passports for the children which includes doing all such things and sign all such documents to enable the renewal of the children’s passports, upon 7 days’ notice of a request by the other party and the parties agree to not withhold such request and will exchange all relevant documentation with each other by registered post. In the event the father fails to comply, the mother be permitted to obtain Australian passports for each of the children notwithstanding the father may not provide his written consent.

   ·    The mother retain possession of the children’s passports.

2. At the conclusion of the hearing, counsel for the mother confirmed that the mother would also consent to an order that required her to provide the father with a copy of return airfares for her and the children, as a pre-condition to any travel overseas with the children.

3. Counsel for the ICL supported the orders sought by the mother in those terms.

Legal Principles

1. Section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the primary and additional considerations in detail below.

4. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.

5. For the reasons set out below I am satisfied that it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility in this case. As a result of that finding, the Court is not required to consider whether the children spending equal time or substantial and significant time with each parent would be in their best interests and whether it is reasonably practicable to do so (s 65DAA of the Act).

6. The mother’s evidence, as contained in her trial affidavit filed 27 February 2020, is unchallenged.  Findings are made on the balance of probabilities having regard to the evidence before the Court.  In what follows, statements of fact constitute findings of fact.

7. The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.

Primary considerations

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents.  The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.

2. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-

   119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...

   …

   122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

   (Original emphasis)

3. The children in this matter have not spent time with the father since 2017, when they were aged 2 and 1. Although the father is the applicant in these proceedings, he has not engaged with the children in any meaningful way since that time.

4. Counsel for the ICL submitted that the ICL had met with the child X in the week prior to the final hearing. The ICL formed the view from that meeting that X has little recollection of his father.

5. In circumstances where the father has elected to disengage from these proceedings, and has filed no documents in support of his application for parenting orders since 2017, there would appear to be little utility in the Court attempting to frame orders for him to spend time and communicate with the children. I am satisfied, given the father’s lack of engagement in the Court process, that there can be little benefit to the children in attempting to craft orders to facilitate the father’s relationship with them.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

1. The mother deposes in her trial affidavit that she was exposed to family violence at the hands of the father prior to the parties’ separation. For example, she deposes at paragraph 18 of her affidavit that the father pushed her, causing her to fall to the floor when she was approximately four months pregnant with the parties’ child X. As a result of that incident, the mother sought treatment from the emergency department at Suburb F Hospital. The mother deposes that the father’s behaviour oscillated between periods when he seemed disinterested in she and the children, and would absent himself from the home, to periods when he would become violent towards her. As a result of that behaviour, the mother was reliant upon support and assistance from her family, including her sister who travelled from Country H to provide her with support in the period following the birth of both children.

2. The mother deposes that she was subjected to a physical assault by the father’s new partner in January 2018 when she attended the mother’s home and attempted to remove the children from the mother’s care. The mother deposes at paragraph 26 of her trial affidavit that the father’s partner hit her and pushed the child Z. As a result of that conduct, the police attended the home and the father’s partner was charged with criminal offences. The mother applied for and obtained an interim intervention order against the father’s partner as a result of that incident.

3. Having regard to the mother’s unchallenged evidence, I am satisfied that there is a need to protect the children from physical and psychological harm in the father’s care.

4. I must now consider the additional considerations.

Additional considerations

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. Having regard to their ages, little weight can attach to any views expressed by the children. There is no evidence before the Court as to the children’s views.

Section 60CC(3)(b) the nature of the relationship of the child with:

(a)each of the child’s parents; and

(b) other persons (including any grandparent or other relative of the child);

1. The mother has been the children’s primary care giver since the parties’ separation in 2017. As noted earlier, the children have spent no time with the father since July 2017.

2. The ICL met with the child X prior to the final hearing; having had that meeting, the ICL observed the children to be thriving in the mother’s care. The ICL reported that X is a delightful child who is progressing well. Counsel for the ICL submitted and I accept that the youngest child, Y, was too young to meet with the ICL.

3. The mother has demonstrated commitment and dedication to her role as the children’s primary caregiver. Further, the mother has supported and nurtured the children’s relationships with her extended family. The mother’s sister has travelled from Country H to Australia to assist and support the mother in the care of the children during periods when the mother has been incapacitated by ill health.

4. Accordingly, I accept the mother’s unchallenged evidence as to the close and loving relationships enjoyed by the children with her and members of her extended family.

Section 60CC(3)(c) the extent to which each of the child’s parent has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long-term issues in relation to the child; and

2. to spend time with the child; and

3. to communicate with the child;

60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. The father has spent no time with the children since 2017 and other than attending for psychiatric assessment in October 2018, has not participated in these proceedings since July 2018. Since separation, the mother has been solely responsible for making decisions regarding the children’s day-to-day and long term care, welfare and development.

2. Although orders have been made previously for the father to spend supervised time with the children, that has not occurred.

3. The mother has been primarily responsible for the financial support of the children since separation. It was submitted on behalf of the mother that the father pays nominal child support of $16 per month for the children.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

1. either of his or her parents; or

2. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The orders sought by the mother represent a continuation of the existing arrangements that have been in place since 2017. Having regard to the evidence of the mother and the submissions made on behalf of the ICL, I am satisfied that such arrangements are appropriate and in the children’s best interests.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. The children currently spend no time with the father, and that arrangement will continue upon the finalisation of these proceedings.

Section 60CC(3)(f) the capacity of:

1. each of the child’s parents; and

2. any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. The mother has provided for all of the children’s physical, emotional and intellectual needs since the parties’ separation. The parties’ eldest child X has commenced primary school this year and is reported to be making good progress.

2. Dr G, Psychiatrist observed of the mother at pages 6 to 7 of his psychiatric assessment dated 5 December 2018 (Exhibit ICL-2) as follows:-

   …

   Her thinking was normal in form and flow and showed no particular preoccupation.  Mood was normal.  She was not depressed.  No abnormality of perception, nor any psychotic features were evident at interview.  Attention, memory and concentration were normal.  In contrast to the interview with [the father], her presentation was consistent with intelligence and education.

   …

   [The mother] gave a consistent and credible account of caring parenting and of personal ambition.  There is no psychiatric diagnosis.

   I note [the father] has affirmed that the children are not at risk with her.

3. I am satisfied, having regard to the evidence before the Court that the mother has and will continue to provide stability for the children. She has demonstrated a strong commitment to her role as the children’s primary caregiver and is supported in those endeavours by members of her family.

4. Dr G also undertook a psychiatric assessment of the father.  In his report dated 20 November 2018 (Exhibit ICL-1) he assessed the father at page 6 of his report in the following terms:-

   I did not think he was under the influence of drugs or medication during the interview.  His biography was vague and incomplete and unconvincing.  He appears immature and narcissistic, and his business plans, which he could not discuss due to business in confidence…appeared grandiose.  [The mother’s] affidavit describes behaviour by him to a taxi-driver which can fairly be called psychopathic.

   It is now one year since he has seen his children and, in my understanding, this is because he has not submitted to formal supervision arrangements.  While I found no particular reason to think his children would be at risk in his unsupervised care, in my opinion in the absence of evidence of his competent solo parenting it would be prudent for his access to commence with formal supervision and a report.

1. The evidence of Dr G as to the father’s capacity to parent is unchallenged.  I accept that evidence.  Further, in circumstances where the father has absented himself from the children’s lives and seemingly abandoned his current application, I am satisfied that he has shown little commitment to his responsibilities as a parent.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. The father was born in Country E. There is no evidence before the Court of either he or his family having any engagement with the children.

2. The mother was born in Country H and many members of her extended family continue to live there. She seeks orders that will enable her to travel to Country H with the children and provide them with the opportunity to learn more of the culture and traditions of their Country H heritage.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

1. the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

2. the likely impact any proposed parenting order under this Part will have on that right;

1. This consideration is not relevant to the matter.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family-  any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

2. the circumstances in which the order was made;

3. any evidence admitted in proceedings for the order;

4. any findings made by the court in, or in proceedings for the, the order;

5. any other relevant matter;

1. I have addressed these considerations earlier in the judgment.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. These proceedings have been on foot since 2017. There have been 10 previous court events in relation to the matter. Having regard to the history of the proceedings and in circumstances where the father has not participated in the court process for an extended period, I am satisfied that the children’s best interests will be served by final orders that will provide them with certainty and stability as to future parenting arrangements.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

1. There are no other relevant facts or circumstances.

CONCLUSION

1. The mother seeks an order that she have sole parental responsibility for the children. That application is supported by the ICL.

2. Whilst the father in his original application sought orders for equal shared parental responsibility, he has not participated in the proceedings since July 2018. Given the father’s disengagement with the proceedings, it is my view that his application for equal shared parental responsibility must fail.

3. In circumstances where the mother has been solely responsible for all aspects of the children’s day-to-day care, welfare and development since July 2017, in my view it would be contrary to the children’s best interests were there to be orders that the parties have equal shared parental responsibility. I am satisfied that pursuant s 61DA(4) of the Act, the presumption in favour of equal shared parental responsibility is rebutted. Accordingly, I will make orders as sought by the mother, that she have sole parental responsibility. The children’s reality is that every aspect of their life is attended to by the mother. An order in those terms will ensure that she can continue to fulfil her responsibilities as the children’s primary caregiver, without interruption.

4. The mother also seeks orders that the children continue to live with her. Again, an order in those terms will reflect the reality of the children’s lives and ensure that they have the ongoing security and stability of their mother’s care.  I am satisfied that an order in those terms is in the children’s best interests.

5. The mother also seeks orders that the father spend time and communicate with the children as agreed between the parties in writing. That order is supported by the ICL. An order in those terms leaves the door ajar for the father to seek to re-engage with them. Given that it is an order sought by the mother, I am satisfied that it is appropriate and in the children’s best interests.

6. The children have been on the Airport Watch List since the proceedings were commenced by the father in September 2017. That is an order that was sought by him on an ex parte basis. The mother now seeks that that order be discharged to enable her to travel to Country H with the children. The ICL supports the making of orders in those terms.

7. The mother deposes that she has previously travelled to Country H with the child Z in 2012 and 2013, and in 2015 with both Z and X. There has been no issue on any of those occasions as to the mother’s return to Australia with the children. The mother confirms in her trial affidavit that it is her intention to remain living permanently in Australia with the children. The mother confirms that she has a large extended family in Country H and she seeks an opportunity to foster the children’s relationship with those members of her family, as well as with their Country H culture.  During the course of submissions, counsel for the mother confirmed her client’s consent to orders requiring the mother to produce evidence of return air fares for the children prior to her departure from Australia.

8. Whilst Country H is a non-Hague Convention country, the mother has demonstrated her commitment to her life in Australia, having travelled to Country H and returned on no less than five occasions since 2007.

9. Having regard to the mother’s unchallenged evidence with respect to her previous travel to Country H and her desire to live with the children in Australia, I do not consider her to be a flight risk.  Further, in circumstances where I have determined that the mother should have sole parental responsibility for the children, I am satisfied that it is appropriate and in their best interests that orders be made in the terms sought by the mother. Those orders will ensure that she has the ability to maintain passports for the children, and to travel internationally with them without the consent of the father.

10. Accordingly, the orders that I make are as follows:-

    (1)That leave be granted for this matter to proceed on an undefended basis.

    (2)That all previous parenting orders be discharged.

    (3)That the children X born in 2015 and Y born in 2016 (“the children”) live with the mother.

    (4)That the mother have sole parental responsibility for making decisions regarding the children’s long term care, welfare and development.

    (5)That the father spend time and communicate with the children as agreed between the parties in writing.

    (6)That the Watch List Order made 21 September 2017 be discharged AND IT IS REQUESTED that the Australian Federal Police remove the names of the children X born in 2015 and Y born in 2016 from the Airport Watch List.

    (7)That a sealed copy of this order be provided forthwith to the Marshal of the Family Court of Australia and the Commissioner of the Australian Federal Police and the mother be permitted to provide a sealed copy of these orders to the Australian Federal Police by email ….

    (8)That the mother is permitted to take the children outside the Commonwealth of Australia for a period of up to 10 weeks per annum, subject to:-

    (a)Not less than 30 days prior to any overseas travel, the mother provide to the father notice of intention to travel in writing by email; and

    (b)Not less than 14 days prior to any travel overseas, the mother provide to the father in writing by email the following:-

    (i)A proposed travel itinerary;

    (ii)Contact details for the mother and the children for the duration of the travel; and

    (iii)A copy of her and the children’s return airfares.

    (9)The parties shall do all things and sign all documents necessary to maintain the Australian passports for the children which includes doing all such things and sign all such documents to enable the renewal of the children’s passports, upon 7 days’ notice of a request by the other party and in the event the father fails to comply with this order, the mother be permitted to obtain Australian passports for each of the children notwithstanding the father may not provide his written consent.

    (10)The mother retain possession of the children’s passports.

    (11)That the appointment of the Independent Children’s Lawyer is discharged.

    (12)That all extant applications be otherwise dismissed.

    (13)Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 March 2020.

Associate:

Date:  19 March 2020