Martino & Gorman

[2021] FCCA 2025

FEDERAL CIRCUIT COURT OF AUSTRALIA

Martino & Gorman [2021] FCCA 2025

File number:	MLC 3283 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	18 August 2021
Catchwords:	FAMILY LAW – undefended hearing – where court is satisfied father has been notified of proceedings – mother seeking order for sole parental responsibility – orders made
Legislation:	Family Law Act 1975 (Cth), s 4
Number of paragraphs:	12
Date of hearing:	18 August 2021
Place:	Melbourne
Solicitor for the Applicant:	Susan Snyder
The Respondent:	No Appearance

ORDERS

MLC 3283 of 2021

BETWEEN:

MS MARTINO

Applicant

AND:

MR GORMAN

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	18 AUGUST 2021

THE COURT ORDERS THAT:

1.The Mother, Ms Martino, have sole parental responsibility for the child, X (‘X’), born in 2016.

2.The Mother do all acts and things to authorise her solicitor to post the following documents to the Father, Mr Gorman:

(a)a copy of the Final Orders made this day; and

(b)a copy of the settled reasons.

AND THE COURT NOTES THAT:

A.The Mother has no proposal to change the child's name at the moment and if she intends to, she intends to notify the Father of any such proposal and consider any timely input from him.

B.Pursuant to ss.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.

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 under the pseudonym Martino & Gorman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

BACKGROUND

1. These are settled ex tempore reasons.  The applicant mother in this matter is Ms Martino (‘the Mother’) and the respondent father is Mr Gorman (‘the Father’).  This matter comes before me this day in the circumstances where the parents were married in 2015 and separated in February 2016, prior to the birth of their child X (‘the child’).  The child is almost five years of age. 

2. Following the birth of the child, with the assistance of the parties’ cultural and religious affiliations, they were able to consult a respected member of their own religion and culture for assistance with a parenting plan.  That parenting plan provided for the Father to spend time with the child, increasing after the child was three years of age.

3. In or about 2018, the Father left Australia and has not seen the child since, nor made inquiries about him.  Notwithstanding that, the Father’s family has, to a modest degree, kept in touch with the Mother, and the Mother has facilitated the Father’s family keeping in touch with the child when requested.

4. Significantly for these parties, in 2020, the Mother brought an application on notice to the Father in the Court of Country B, and it is clear from the record of those proceedings that the Father told the Court of Country B that he agreed that the child should live in the custody of the Mother and that she should have sole custody of the child and exclusive authority to make decisions in his affairs, including education and medicine. 

   UNDEFENDED HEARING

5. In an undefended hearing, the first matter I must ascertain and be satisfied of is that the Father has, in fact, been served with the Initiating Application, Affidavit in support and compulsory Notice of Child Abuse, Family Violence and Risk. 

6. Via a religious mediator, the Father has been able to communicate in the terms of the Exhibit A to the Mother’s affidavit of 21 May 2021.  I quote below relevant parts of Exhibit A which includes that the Father had received notice and acknowledged the family law documents.

   … the Martino family is trying to obtain full custody through the Australian family court at the moment.  They filed a notice of risk or abuse against me. 

   They claim that I didn’t respond to emails.  I’m not sure what emails they sent or to which address but I have never received anything.  I only now received a copy of the case and a notice that I have a hearing on May 25.

   I’m not going to spend thousands and thousands on lawyers right now … family court for our situation at the moment really kind of pointless at the end of the day.  The fact is I’ve been happy to sign whatever consent orders they need I never got in the way of anything.  The only thing I stood up against when we last spoke was to give custody which they tried to slip out of me without me noticing…

7. I am satisfied that he has been served with the relevant documents and has notice of the proceedings and has chosen not to participate.  He does not have to participate: he is at liberty to participate or not.  However, it is clear that he does not, in substance, oppose the orders that the Mother seeks.

   SOLE PARENTAL RESPONSIBILITY

8. I have been told today that the Mother has no intention at the moment to change the child’s name but that she intends, and I accept that in the event she did intend to change any aspects of the child’s name, that she would inform the Father and consult with him and consider what he had to say about that.  I raise that because of the breadth of sole parental responsibility.

9. Major long term issues are defined at section 4 of the Family Law Act 1975 (Cth) (‘the Family Law Act’) as follows:

   "major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)       the child's education (both current and future); and

   (b)      the child's religious and cultural upbringing; and

   (c)       the child's health; and

   (d)      the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

10. I take into account the matters set out of Part VII of the Family Law Act.

11. I otherwise find that the Mother has cared for the child in an excellent manner and it is in his best interests that he continue to live with her and that his sole parent carer have sole parental responsibility, notwithstanding how very wide that definition is.

12. I have no hesitation in finding that the order that the Mother have sole parental responsibility for the child is in the child’s best interests.  It is also the most practical way to advance the child’s best interests.  I will note at Notation A that the Mother told me that she has no proposal to change the child’s name at the moment, and she told me that in the event of such a proposal, would attempt to inform and consult the Father beforehand. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate: 

Dated:       27 August 2021