Manzo & Tripodi
[2022] FedCFamC2F 785
•21 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manzo & Tripodi [2022] FedCFamC2F 785
File number(s): PAC 2232 of 2021 Judgment of: JUDGE STREET Date of judgment: 21 June 2022 Catchwords: FAMILY LAW – where the respondent mother has not engaged in the proceedings – where the mother has been put on notice of the hearing date – where the mother does not attend the hearing – matter proceeded to undefended hearing – where risk can be managed by a graduated time regime including supervision – best interests of the child – equal shared parental responsibility – orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 61DA, 61DAA 62B, 65DA Cases cited: Goode & Goode (2006) FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 29 Date of hearing: 1 June 2022 Place: Parramatta Solicitor for the Applicant: Ms Kusch, Synergy Legal Solicitor for the Respondent: No appearance ORDERS
PAC 2232 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANZO
Applicant
AND: MS TRIPODI
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
1 JUNE 2022
THE COURT ORDERS THAT:
1.The matter proceed to an undefended hearing.
2.The mother and father have equal shared parental responsibility for the child of the relationship, X born in 2019 (‘the Child’).
3.The Child of the relationship, X, will live with the mother and spend time with the father as follows:
(a)To commence on 12 June 2022, every second Sunday from 9am – 1pm for 3 months with a paternal grandparent or sibling of the father present.
(b)Thereafter,
(i)For three (3) months, every second Sunday from 9am to 1pm without supervision and then;
(ii)For six (6) months, every alternate weekend from 9am on Saturday to 5pm on Sunday and then;
(iii)From 7pm Friday to 7pm Sunday, every alternate weekend thereafter.
4.The above Order 3 is suspended on the Child’s birthday, so that the Child spends 9am to 1pm with the parent with whom the Child is not then spending time with on the Child’s birthday.
5.That each parent is to phone the Child on the Child’s Birthday Easter, Christmas and New Year if the Child is not staying with that parent as per Order 3.
6.For the purposes of changeover in Orders 3 and 4, both parties shall meet at McDonalds in City B (mid-way point) at the commencement and conclusion of the time specified in Orders 3 and 4.
7.That each parent encourage and facilitate telephone and video call communication between the Child and the other parent whilst the Child is in their care as requested by the Child but no less frequently than once every 2 days and neither parent is to monitor, supervise or interrupt those communications.
8.That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
9.That in the event of childhood illness or emergency the parent with whom the Child is with, contact the other parent forthwith to inform them within 24 hours.
10.That each of the parties, their servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and;
(b)Discussing these proceedings or the content of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Child or any of them, and from permitting any other person to do so.
11.That the parties establish and use a communication book and record, for the information of the other, issues that are limited to the Child’s care and that the communication journal accompany the Child between the parent’s homes.
12.That both parties are permitted to travel with the Child only with respect to Hague Convention countries, provided they:
(a)Inform the other party fourteen (14) days before the travel is to take place.
13.That pursuant to sections 62B and 65DA 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 and details of whom can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
14.Liberty is granted to the mother to file an application in a case supported by an affidavit to vary these orders within twenty-eight (28) days of service of the same.
15.The reasons for judgment are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Manzo & Tripodi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
These parenting proceedings were commenced on 28 April 2021 by the applicant father, seeking orders for the respondent mother to have equal shared parental responsibility and for the child, X born in 2019 to live with the respondent mother and to spend time with the applicant father in escalating periods.
On 8 June 2021, orders were made by a Judge of this Court facilitating substituted service on the respondent mother, whom has not engaged in the proceedings. On 25 October 2021, a Judge of this Court made orders for service on the respondent mother of an affidavit and notice of child abuse.
On 10 February 2022, this Court made orders confirming the service upon the respondent mother and made orders for the filing of a response by the respondent mother, as well as other procedural orders and the matter was made returnable on 1 June 2022. On 10 February 2022, this Court noted that the respondent mother had failed to appear, which included:
If the respondent mother fails to comply with the Court’s orders, the matter may proceed on the next occasion as an undefended hearing, where the Court may make orders regarding the children.
On 1 June 2022, the respondent mother failed to appear at the scheduled hearing and this Court, taking into account the principles in respect of an undefended hearing, was satisfied that the respondent mother had been given proper notice of the proceedings, that the respondent mother had failed to comply with the orders of this Court made on 10 February 2022 and that the respondent mother had been put on notice by those orders of the prospect of this Court proceeding to make orders on the basis of an undefended hearing if the respondent mother failed to appear. The Court was satisfied that the respondent mother was on notice of the parenting orders sought by the applicant father was an appropriate manner in which to proceed, and accordingly, proceeded with the matter as an undefended hearing.
On 1 June 2022, this Court pronounced orders and reserved its written reasons.
The Evidence
There is one child of the relationship, X born in 2019 (‘the Child’). The applicant father’s affidavit, dated 19 April 2021, identified that he is a construction worker on a full-time basis and identified the age of the respondent mother and the age of the child of the relationship, who is now three. The applicant father’s affidavit, dated 19 April 2021, identified that the parties moved in together in 2016; then moved to accommodation at Suburb C, then moved to Suburb D and that the respondent mother fell pregnant in 2018 and left work in 2018.
The applicant father’s affidavit, dated 19 April 2021, identified conditions that the respondent mother may have suffered from and identified him visiting the hospital as the child required a level of hospitalisation and that the respondent mother is alleged to have suffered from post-natal depression and was medicated. On 9 July 2019, the child was released from hospital and the respondent mother continued to stay at home looking after the child while the applicant father worked full-time. The applicant father’s affidavit identified that arguments began in October 2019 and raised issues of fidelity. The applicant father’s affidavit, dated 19 April 2021, further identified the impact of financial stress and the applicant father’s leaving of his job and starting a new one and the decrease in his income and the further impact of the respondent mother’s unemployment in adding to the financial problems.
The parties had a break in the relationship as well and broke up on numerous occasions, followed by reconciliation. However, on 18 February 2020, the parties had an argument, which resulted in the respondent mother going to the police station and taking out an Apprehended Domestic Violence Order (“ADVO”) against the applicant father. The applicant father provided an explanation for what had occurred and said that he was arrested and charged and that he has not been allowed to have contact with the Child since this event. There was evidence that identified the respondent mother’s father, identifying himself at a particular address and saying that the respondent mother was living with him. Steps were taken to try and initiate time for the applicant father, without response by the respondent mother.
The applicant father identified that he is living with his parents in Suburb E and also has a sibling living there. The applicant father referred to his plans to move into a three bedroom house or apartment. The applicant father identified having another daughter, who is presently eight years old, and he proposed to have a separate bedroom for each child. The applicant father identified having a good and supportive relationship in relation to looking after the Child who is the subject of these proceedings. The applicant father also identified that he has been to a counsellor for around six months, to address a gambling problem and to deal with the separation. The applicant father says that his health had significantly improved.
The applicant father has identified unsuccessful attempts for the matter to be mediated, as well as the steps that were taken to try and identify where the Child is living and his concern as to the alienation that may occur if he does not start having significant and meaningful time with the Child.
The Law
This Court must approach the parenting orders through the lens of Goode & Goode (2006) FamCA 1346 and the statutory regime. In summary, the amendments to Part VII of the Family Law Act 1975 (Cth) have the following effect.
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Family Law Act 1975 (Cth) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence as per s 61DA(1) and s 61DA(2)) of the Family Law Act 1975 (Cth).
If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply s 61DA(1) and s 61DA(3) of the Family Law Act 1975 (Cth).
The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child as per s 61DA(4) of the Family Law Act 1975 (Cth)).
When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and it is reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents as per ss 65DAA(1) and (2) of the Family Law Act 1975 (Cth)).
The Family Law Act 1975 (Cth) provides guidance as to the meaning of “substantial and significant time” in ss 65DAA(3) and (4) and as to the meaning of “reasonable practicability” in s 65DAA(5).
The concept of “substantial and significant” time is defined in s 65DAA of the Family Law Act 1975 (Cth) to mean that the time the child spends with the parent includes both: days that fall on weekends and holidays; and days that do not fall on weekends and holidays; and the time the child spends with the parent allows the parent to be involved in: the child’s daily routine; any occasions and events that are of particular significance to the child; and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue at large is to be determined in accordance with the child’s best interests.
The child’s best interests are ascertained by a consideration of the objects and principles in s 60B of the Family Law Act 1975 (Cth) and the primary and additional considerations in s 60CC of the Family Law Act 1975 (Cth).
When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
The child’s best interests remain the overriding consideration.
The Findings
The Court has taken into account the notice of risk and that there was an Apprehended Domestic Violence Orders (‘ADVO’) that was made, which resulted from an alleged incident of violence and gave rise to the separation of the parties.
It is most unfortunate that the respondent mother has failed to engage in these proceedings. The Court is however satisfied that the respondent mother has had ample opportunity to do so and that if there was any proper basis for an ongoing current unacceptable risk to the Child, the respondent mother would have engaged in the proceedings to identify the same. Nonetheless, given the young age of the Child, being three, this Court has taken into account that history in a gradual re-engagement by the applicant father with the Child, initially on a supervised basis with another member of the applicant father’s family, either grandparent or sibling present during the time spent.
The Court is satisfied that the commencement of that limited time and supervised access, after a relatively significant period of absence of contact with the Child at such a young age, is an appropriate balance to facilitate the re-acquaintance with the Child and in all the circumstances provide an appropriate level of supervision to ensure that there is no unacceptable risk. The Court is also satisfied that, after a three month period of such supervised access, it is appropriate to facilitate increased access in accordance with the orders of the Court as made.
The applicant father’s application sought greater significant and meaningful time than that has been imposed by the Court on a gradual basis and the Court made orders for alternate weekends, not every weekend, in relation to the progression of that significant and meaningful time. Given that the applicant father was seeking equal shared parental responsibility and the respondent mother has failed to participate, the Court is of the view that equal parental responsibility is appropriate notwithstanding the past history that might have been rebutted had the mother participated in the proceedings. The evidence as to the counselling steps taken by the father, his living arrangements, improved health and his other daughter living with him are uncontested and the Court is not persuaded that the presumption under s61DA of the Family Law Act 1975 (Cth) should not apply. The Court is satisfied that it is appropriate in these uncontested circumstances, where the father has taken steps to address past conduct for the presumption of equal parental responsibility to be applied. The Court is not satisfied that application of this presumption will lead to any unacceptable risk and finds that application of the presumption is in the best interests of the Child.
The presumption of equal time is, however, rebutted by the circumstances of this case, given the age of the Child and the absence of contact for approximately two years and the family violence, the subject of the ADVO.
It is the case, for the reasons identified, that the Court is satisfied that the proposed orders provide a graduated regime that will not expose the Child to any unacceptable risk on the evidence before the Court and which is likely to foster and permit the development of a relationship between the Child and applicant father, which is the object of the significant and meaningful time, so as to benefit the Child. The Court was satisfied that the graduated process that the Court identified, as well as orders in relation to special occasions and facilitating contact with the Child and updated contact information, as well as information in respect of illnesses and the method of communication, are all orders that the Court is satisfied ultimately meet the requirements of the statutory regime and are in the best interests of the Child.
The Court is also satisfied, on the material before it that it is practical for the respective parents to comply with the orders made. The Court notes that it also expressly made an order facilitating the respondent mother filing an application in a case and an affidavit to vary these orders within 28 days of service of the same upon her. It is for these reasons that the Court made the orders pronounced on 1 June 2022.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 21 June 2022
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