MELI & HUTCHESON

[2020] FamCA 420

FAMILY COURT OF AUSTRALIA

MELI & HUTCHESON [2020] FamCA 420

FAMILY LAW – ORDERS – Discharge – Where final parenting orders were made four years ago – Where the mother seeks discharge of the final parenting orders - Where the final orders permitted relocation of the child, that the child live with the mother and spend time with the father - Where the orders no longer reflect the circumstances of the child – Where the father has chosen to disengage with the child – Orders.

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where final parenting orders provided the child live with the mother in the United Kingdom and spend time with the father – Where the father has chosen to disengage with the child – Where the mother has since relocated to Country DD – Where the father has not engaged in the current proceedings - Where it is in the best interests of the child to live with the mother and spend time with the father as may be agreed between the parties – Orders.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:	Ms Meli
RESPONDENT:	Mr Hutcheson

FILE NUMBER: ADC 2177 of 2014

DATE DELIVERED: 11 May 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Clelands Lawyers Adelaide Pty Ltd

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Litigant in person

IT IS ORDERED

1. That the mother, MS MELI, have the sole parental responsibility for the child B born … 2011 (the child). 

2. That the child live with the mother.

3. That the father spend time with the child at such times as may be agreed between the parties in writing by email.

4. That the parties keep each other informed as to their separate email address.

5. That the mother be the sole signatory in respect of any application for a European passport and/or an Australian passport for the child B born … 2011. 

6. That the monies standing to the credit of the mother in the trust account of CC Lawyers pursuant to paragraph 28 of orders made 25 May 2016 together with any interest that has accrued thereon forthwith be paid into the trust account of Clelands Lawyers for and on behalf of the mother.

7. That the orders made 25 May 2016 be otherwise discharged 

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 Meli & Hutcheson 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 ADELAIDE

FILE NUMBER: ADC 2177 of 2014

Ms Meli

Applicant

And

Mr Hutcheson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Initiating Application filed 23 December 2019, Ms Meli (the mother) seeks that the final parenting orders made 25 May 2016 be discharged, that the mother have sole parental responsibility, to be the sole signatory on any European and/or Australian passport that is relevant to the child, that the child determine the extent of the communication with her father and that a sum held by way of security in the trust account of solicitors CC Lawyers pursuant to paragraph 28 of the final orders be forthwith paid into the trust account of Clelands Lawyers.  

2. There is no response by Mr Hutcheson (the father) to the Initiating Application.

3. On 14 February 2020, orders were made listing the mother’s Initiating Application for hearing today as an undefended matter.  A further order provided for the evidence-in-chief of all witnesses to be given by affidavit.  That order was tempered by the recognition that the current final orders were as a result of a judgement delivered on 25 May 2016 and accordingly, the mother was given leave to rely upon her affidavit filed 20 December 2019 and, if so advised, any further affidavit upon which she may wish to rely.

4. The basis upon which an order was made that the matter proceed undefended was by reason of a lack of engagement by the father in the current proceedings.  It was clear from the affidavit material filed by the mother’s solicitors that all reasonable and proper efforts had been made to bring the proceedings to the attention of the father.  As a result of earlier hearings, the Court found that the father was aware of the proceedings and had determined that he would not participate.  There is no obligation on him to participate.  The circumstances are such that his lack of participation put him at risk of the Court having to make orders based upon the evidence and information as provided by the mother.  That is, whilst he had an opportunity to be heard, he has not availed himself of it.

5. The Court is assisted, in terms of the background history, by reference to the judgement of Dawe J following a hearing in February 2016.[1]  The final orders provided that the mother have sole parental responsibility for the child, that the child live with her and that leave be given for the mother to relocate the child’s residence to the United Kingdom. 

   [1] See Hutcheson & Meli [2016] FamCA 400.

6. Order 7 provided for the arrangements for the father to see the child in 2017, 2018, 2019 and each year thereafter.

7. The cost in respect of the father’s travel to and from the United Kingdom and other arrangements for the child to spend time with the father, prompted her Honour to order that a sum of $100,000 be held in an interest bearing trust account and not to be released to the father save and except for travel costs for the father and child upon written proof of the failure of the mother to abide by the orders for the payment of travel costs or further orders.

8. The mother now seeks relief from those orders, the basis of which is set out in her affidavit filed on 20 December 2019.  I do not propose to canvas all of the matters raised in the affidavit.  I have carefully considered the affidavit against the judgement of her Honour.  The circumstances are relatively straightforward.  I am satisfied that in terms of the final order, the mother has used her best endeavours in an attempt to comply with those orders.  The difficulty has been that as the time has passed, the level and extent to which the father was prepared to engage with the mother has gradually reduced.  The father, for reasons that are not apparent on the documents and presumably are specific to his circumstances are such that he has chosen to disengage from the child.

9. The mother has set out the extent of the communication between she and the father and I bring to account the matters that she raises as and from [18] through to the conclusion of her affidavit.

10. The mother is concerned that there is an exaggerated presentation by the father in terms of his conduct and behaviour.  The communication between the parties is scant and the only method by which the mother is aware of the father’s activities is by reference to social media and in particular, the father’s Facebook posts.  The father’s presentation is somewhat extravagant in terms of his personal circumstances.  More relevantly though, the position is that the child was keen to maintain a relationship with her father but now she is either ambivalent at best or reluctant, at worst.  That is not a matter that I consider should lay at the feet of the mother.  It arises from the father not engaging with the child and not taking up the opportunity that the orders provided to him.

11. The mother’s circumstances have changed somewhat.  Whereas the orders were predicated upon the child living primarily in the United Kingdom, the mother’s position is that she has moved to the Country DD.  Even so, the lines of communication are sufficiently open to enable the father to make contact and to arrange some sort of meaningful communication with his daughter.  He has not done so and I consider that that is a matter arising out of his conduct, rather than that of the mother.

12. The discussion is not intended to be a criticism of the father.  The extent to which a parent would wish to engage with the other parent and a child or children is a matter entirely for them.  The relevance of it, however, is the extent to which orders that were made on 25 May 2016 now reflect the circumstances in which the child finds herself. 

13. To a significant degree, I fall in with the position of counsel for the mother.  Other than matters of primary care and parental responsibility no longer properly reflect the child’s current circumstances.  The significant change has not been brought out by the mother but rather by the lack of any energetic involvement by the father.

14. I should give careful consideration to the orders that are being sought. I do not just simply make or consider that I should make the orders as sought in the Initiating Application, in effect, by default. I do not consider that there is a concept of default in relation to a child. In this case I have to consider whether the mother’s proposal in respect of the child is in the child’s best interests. I apply the provisions of section 60CC of the Family Law Act 1975 (Cth) in terms of the primary and the additional considerations. Obviously, the most significant consideration is relating to the extent to which the orders that I am being asked to make will have the effect of supporting the child to have a meaningful relationship with her father.

15. It is reasonable to reflect upon the arrangements over the last four years and in particular, that the orders provided for the mother to have sole parental responsibility and that the child live with her. 

16. In terms of a consideration of a meaningful relationship, whilst some authorities have referred to the definition being that it must be a serious, important or a substantive relationship, more relevantly, I consider that a reasonable definition of “a meaningful relationship” is akin to a caring relationship. 

17. It could not be said that the father has demonstrated a desire to maintain a caring relationship.  He may be disgruntled and disaffected by orders he considers should not have been made.  The Court file reflects that he did oppose the orders and sought that there be a consideration by appeal as to whether some or all of those orders should be discharged.  The father was unsuccessful.  The orders remain in place and have regulated the arrangements.  It was a matter for the father as to whether he wished to avail himself of the opportunity that the orders provided for him to maintain a relationship.

18. When considering the additional arrangements or the additional provisions, the views of the child are a relevant consideration and whilst I think they are important and informative, I do not consider they are determinative.  Whilst the proposed orders sought that all communication between the child and the father be subject to the child’s wishes, I have indicated to counsel that that order does not find favour in terms of a child who is nearly nine years of age.  Unless there is evidence that would support, in effect, moving responsibility from the mother to the child in respect of the important issue of the nature of the relationship that she will have both now and in the future with her father, I do not consider that I should make such an order. 

19. I am of the view that there should be a retention of the existing order 8 of the orders of 25 May 2016 which provides for the father to spend time with the child at such other times as may be agreed between the parties in writing by email.  That is a method and manner by which the mother is able to be the gatekeeper as to what the future arrangements will be if she considers that it is appropriate to do so.  That seems to have been an appropriate order over the last four years and I can think of no good reason why that should not continue. 

20. The basis upon which a substantial sum of money was to remain in the account of CC Lawyers has now passed and the order should be discharged and those monies should be paid into the mother’s solicitor’s trust account.

21. Given that I proposed to retain paragraph 8 of the final orders, it is axiomatic that the parties must keep each other informed of their email address to enable communication to take place.  I do not propose to replicate the orders set out in paragraph 18 involving the mother’s obligation to keep the father informed of all of her details, nor indeed, paragraph 20 which requires information and contact details to be provided by the father. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 May 2020.

Associate: 

Date:  28 May 2020