MAYSE & AMBER

[2012] FamCA 186

FAMILY COURT OF AUSTRALIA

MAYSE & AMBER [2012] FamCA 186

FAMILY LAW - PRACTICE AND PROCEDURE – where the father has failed to participate in the proceedings – where there have been numerous attempts to arrange for the father’s participation in the proceedings – where it was appropriate for the matter to proceed.

FAMILY LAW - CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the child has been in the primary care of the mother with limited input from the father for a lengthy period of time – where it would be difficult to ensure communication with the father – best interests – orders that the mother have sole parental responsibility for the child.

FAMILY LAW - CHILDREN – final orders – with whom a child lives – where the mother seeks orders that the child be permitted to relocate to the United States of America – where the Court was satisfied that the mother will continue to encourage an ongoing relationship between the father and child – best interests – orders that the child live with the mother – further orders that the child be permitted to relocate with the mother to the United States of America.

Family Law Act 1975 (Cth) s 60CC & 61DA

APPLICANT: Ms Mayse

RESPONDENT: Mr Amber

FILE NUMBER: DNC 419 of 2008

DATE DELIVERED: 27 March 2012

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The orders made 12 October 2009 are discharged.

2. The mother have sole parental responsibility for the child D born … April 2002 (“the child”).

3. The child live with the mother.

4. The mother notify the father of all decisions made for the child in relation to her long term care, welfare and development.

5. The child be permitted to relocate with the mother to the United States of America.

6. The mother forthwith upon relocation with the child to the United States of America notify the father of the residential address and telephone contact details for the child.

7. The child spend time with and communicate with the father at all reasonable times as agreed between the parties.

IT IS FURTHER ORDERED THAT

1. The passport for the child D born … April 2002 which is retained by the Family Court of Australia at Darwin be forthwith released to the mother and thereafter held by the mother.

2. All matters are removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 419 of 2008

Ms Mayse

Applicant

And

Mr Amber

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by the mother of the child D who was born in April 2002 and is therefore very shortly going to turn 10.  The application is heard by me this morning without the participation of the father on what could be described as an “undefended” or “ex parte” basis. 

2. The application being heard on that basis needs to be seen in the context of the past proceedings in which the mother, through her legal representatives and with direct communication with the father, have attempted to arrange his participation in these proceedings. 

3. Orders have been made by the Court to enable the father to participate but the father has not complied with those orders.  The matter is now listed before me on the basis of the father’s failure to file any documents and failure to participate, except on one brief occasion before a Registrar.  It makes it appropriate to deal with this matter without the participation of the father. 

4. The Initiating Application was filed on 26 September 2011.  Since then the Court has dealt with an Application in a Case and made orders concerning the ability of the mother and child to travel for a temporary visit to the United States. 

5. The application is that the previous orders be discharged, that the mother have sole responsibility of the child D and that the child live with the mother.  The orders sought are that specifically the mother is seeking an order that the mother notify the father of all decisions made for the child in relation to her long-term care, welfare and development, and that the child be permitted to relocate with the mother to the United States of America. 

6. There are then consequential orders which were been sought about notifying the father of the whereabouts of the child and with the child spending time and communicating with the father as agreed between the parties. 

7. I have been referred to the affidavit of the mother Ms Mayse, which was filed on 16 March 2012.  I give leave to the mother to rely upon that affidavit, notwithstanding that it was not filed within the correct ordered time and on the basis that the father has been served with a copy of that affidavit. 

8. In the correspondence between the mother and the father it is clear that the father did oppose the mother travelling with the child to the United States of America unless the mother agreed to certain conditions.  The history of the matter, however, is that the mother has attempted to comply with the reasonable conditions that the father stated and, however, has still not received the consent of the father. 

9. This matter is unusual in that the parties were married and living together in Africa from about 2001.  They were divorced in 2008.  That divorce took place in Australia after the mother and child had moved to take up residence in Australia.  The father was planning to join them but then due to a difference in his employment has since then been travelling extensively throughout various countries.  It is not clear from the information available to the mother exactly where the father is currently stationed or if he is stationed in one place at one time.  It would appear that he travels extensively as a result of his employment. 

10. The mother now seeks to relocate to the United States of America to live with a man whom she met some time ago and with whom she has formed a relationship.  In the affidavit it is clear that the child D has also met Mr M and that the mother proposes to continue the relationship with him if she is permitted to relocate with the child to the United States of America. 

11. The factors which the Court has to take into account when making an order are those set out in Part VII of the Family Law Act 1975 (Cth). In particular the Court needs to consider the presumption that equal parental responsibility for the child in the provisions of section 61DA.

12. I am satisfied that the presumption is rebutted in this case due to the circumstances surrounding the care of the child and in particular that since 2007 the child has been in the primary care of the mother with only limited input from the father.  It is also difficult to ensure communication with the father.  Any order which would require the mother to communicate with and consult with him and obtain his consent would be an order which is not likely to promote the best interests of the child and indeed could cause considerable harm. 

13. I am therefore satisfied that the presumption has been rebutted and that in the best interests of the child an order providing for the mother to have sole parental responsibility is appropriate. That is based on the considerations of section 60CC, which the Court is required to consider when determining what is in the best interests of the child.

14. The primary considerations are, of course, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. 

15. The meaningful relationship should be developed between the child and the father and ought to be maintained.  I am satisfied from the affidavit evidence before me that, notwithstanding the difficulties, the mother has promoted the relationship between the child and the father.  I am pleased to hear that there is regular email, internet and Skype communication between the child and the father, apparently increasing when the father is in an area which permits the regular use of internet facilities.

16. The additional considerations set out in section 60CC(3) are also taken into account. The significant ones in this matter are subsections:

    (b)the nature of the relationship of the child with:

    (i)       each of the child’s parents; and

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

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;  and

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

1. I am satisfied that the mother has already indicated a clear willingness to encourage an ongoing relationship.  The history of the matter indicates the mother has an ability to promote the welfare of the child and to provide appropriate parenting for the child.  Indeed the evidence before the Court supports the fact that she has been very successful up to date. 

2. Subsection (d) states:

   (d)the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents;  or

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

3. This is a significant factor in relation to the child who has spent half of her life attending school and having social connections in the Northern Territory.  The significant change to life in the United States in the care of her mother is, however, one which it would appear on the face of the documents the mother has taken into account.  Whilst this may be a significant change I am still satisfied that it is one which would be in the child’s best interests. 

4. The other factor of interest in this matter is subsection (g) which states:

   (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;

5. I am satisfied on the material that is before the Court that the mother is aware of the importance of ensuring the child’s understanding of the cultural aspects of both sides of her family.  The ongoing communication with the father will ensure that the child has an ability to benefit from the cultural background of her family. 

6. They are the primary matters of consideration under the provisions of section 60CC.

7. I am satisfied, having considered all of the provisions, that the orders sought by the mother are orders which are in the best interests of the child.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 March 2012.

Associate: 

Date: 28 March 2012