McKeever and Banfield

[2013] FCCA 248

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCKEEVER & BANFIELD [2013] FCCA 248

Catchwords:
FAMILY LAW – Parenting orders sought – sole parental responsibility – family violence – undefended.

Legislation:  

Family Law Act 1975 (Cth), ss.61DA, 61DA(2)(b), 60CC

Applicant: MS MCKEEVER

Respondent: MR BANFIELD

File Number: MLC 1427 of 2013

Judgment of: Judge Hartnett

Hearing date: 23 April 2013

Delivered at: Melbourne

Delivered on: 23 April 2013

REPRESENTATION

Solicitors for the Applicant: Melton Law Offices

Counsel for the Applicant: Mr Brown

The Respondent No appearance

THE COURT ORDERS THAT:

1. There be an exemption from compliance with the provisions of Section 60I of the Family Law Act 1975 (Cth) for the reasons as set out in the Applicant mother’s Affidavit filed 27 February 2013.

2. The child [X] born [in] 2011 (“the child”) live with the Applicant mother.

3. The Applicant mother have sole parental responsibility for the child.

4. The father spend such time with the child as agreed in writing between the mother and the father.

5. The solicitors for the mother serve by personal service a sealed copy of these orders upon the father as soon as is practicable.

6. There is leave to the father to seek to set aside these orders upon application to the chambers of Judge Hartnett within three months of service of such orders upon him.

7. Otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 1427 of 2013

MS MCKEEVER

Applicant

And

MR BANFIELD

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court on an Initiating Application filed by the Applicant mother on 27 February 2013.  In support of that Application is an Affidavit sworn by her on 25 February 2013.  There is also filed an Affidavit of Service attesting to service upon the Respondent father on 20 March 2013.  The father has failed to file any documents in response or attend at Court this day.  The proceedings were filed with a Registrar’s determination on exemption from filing a certificate on information contained in the mother’s Affidavit dated 27 February 2013. 

2. The mother seeks parenting orders in respect of the parties’ child [X] born [in] 2011. [X] lives with her mother and she is approximately 16 months of age. The parties entered into a relationship in 2011, that being the year of [X]’s birth. The father, Mr Banfield, was born [in] 1995 and is now 17 years of age. The mother was born [in] 1995 and she, likewise, is now 17 years of age. The mother became pregnant at the age of 15. The father was also 15 years of age. During their relationship the parties lived together initially at the maternal grandfather’s home and subsequently at the maternal grandmother’s home.

3. The father is now in a new relationship and lives with his girlfriend

   
   

   Ms P. The mother attended school until year 10 which she completed and then left school and now cares for [X] on a full-time basis without assistance or input from the father. The mother alleged in paragraphs 9 and 10 of her Affidavit sworn 25 February 2013 that the father used drugs and that the father had been violent to her, on one occasion grabbing her by the throat and pushing her against a wall. These episodes of violence perpetrated against her by the father were regular and continued throughout her pregnancy. The police were called to assist her on three occasions between November 2011 and May 2012.

4. The mother further alleged that the father continues his drug usage and that he uses “ice” in addition to “marijuana”.  The mother obtained an Intervention Order, which is annexed to her Affidavit sworn 25 February 2013, in the Children’s Court at Melbourne on 8 November 2012.  That Order will expire on 7 May 2013.  The Order was made by consent without admission of the allegations in the complaint. 

5. The mother seeks on order for sole parental responsibility in respect of the parties’ child. The presumption of equal shared parental responsibility as set out in s.61DA of the Family Law Act 1975 (Cth) (‘the Act’) does not apply as s.61DA(2)(b) of the Act is applicable on the facts of this case. The matter proceeds undefended, the Court being satisfied as to service of the documents in the proceedings upon the father. The Court will make the totality of the orders as sought by the mother, the child’s best interests and matters to be considered as set out in s.60CC of the Act being addressed by the Court with factual findings being those facts as set out in the mother’s affidavit, but provide to the father an opportunity to seek to set aside such orders upon application by him within a three month period after personal service upon him of the orders. Some reason beyond his control may have prevented the father from attending this day.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  8 May 2013