Millet and Barton

[2018] FamCA 339

FAMILY COURT OF AUSTRALIA

MILLET & BARTON [2018] FamCA 339

FAMILY LAW – CHILDREN – Parenting – undefended.

Family Law Act 1975 (Cth)

APPLICANT: Mr Millet

RESPONDENT: Ms Barton

FILE NUMBER: MLC 9648 of 2017

DATE DELIVERED: 9 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 May 2018

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Sturgeon

SOLICITOR FOR THE RESPONDENT: Avon Legal (Victoria) Pty Ltd

Orders

1. That Ms Barton have sole parental responsibility for B born … 2014.

2. That Ms Barton has permission of the court to renew an Australian passport for B without obtaining the written consent of Mr Millet and may sign all necessary documents to enable that passport to be obtained and renewed from time to time hereafter.

3. The response of Ms Barton filed 16 February 2018 is otherwise dismissed.

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 Millet & Barton 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 MELBOURNE

FILE NUMBER: MLC 9648  of 2017

Mr Millet

Applicant

And

Ms Barton

Respondent

REASONS FOR JUDGMENT

1. These are proceedings that were begun by Mr Millet when he filed an application for final orders on 19 September 2017 through a firm of solicitors.  The respondent is the mother of the child, and she filed a response on 16 February 2018.  The matter it has had a number of hearings always before registrars, and at some of those, it would seem that Mr Millet appeared.  There would appear to be no dispute about the fact that the child, who is now aged four, is a child of the relationship. 

2. On 11 April, Mr Millet filed a notice of discontinuance.  On that particular day, he was presumably still technically represented by solicitors, but he handwrote the notice of discontinuance of all proceedings and, specifically, the application that he filed seeking final orders.  On 22 March the solicitors who filed the application for him indicated that they were intending to withdraw. 

3. Mr Millet has not filed any notice of address for service, nor any other documents on the court file, and the matter then came before Registrar Sudholz on 17 April at which time Mr Millet did not appear.  The Registrar then adjourned the matter today for what was described as an undefended hearing.  I have before me an affidavit by a solicitor indicating that these various proposed orders have been brought to the attention of Mr Millet, and also that there was a conversation between Mr Millet and that solicitor on 8 May; that was yesterday.

4. This conversation was at around 2 pm, and Mr Millet advised the solicitor that he had withdrawn from the case, did not want a lawyer, wanted photos of the child sent to his mother’s house, was not refusing to sign a passport application, was a reasonable person and was advised by his previous lawyer that he should do a urine sample.  Presumably, that has something to do with drug testing.  He also said that Ms Barton (the mother) already had sole parental responsibility anyway and that he did see a psychologist once.  The solicitor sensibly advised him that there was a final hearing listed for this morning and that he should attend.  Her description in the affidavit, I think, is rather apt.  She says, and I quote:

   Mr Millet huffed at my suggestion of instructing a solicitor. 

5. She then brought to his attention the contents of her letter to him which is now in evidence, and I will mark that exhibit M1.  Attached to that letter was the proposed final orders sought by Ms Barton.  She seeks two orders, the first is that she have sole parental responsibility for the child, and the second is that she be entitled to apply for a passport without further involvement of Mr Millet.  This morning, the court received an email through its call centre which simply reads:

   I, [Mr Millet], am sick today to be in court to represent myself.  8 May.

6. Mr Millet seems to have become ill since yesterday, but having regard to what he told the solicitor yesterday, his discontinuance of the proceedings and the fact that he now has no formal application before the court for any orders, it is pointless for me to allow this matter to be adjourned for his convenience.  To the extent that he has any interest in the child, he can make the appropriate application at the time. 

7. The affidavit material upon which Ms Barton relies is that which is already on the court file. 

8. It sets out the history of the relationship, but most significantly, subsequent to the separation, Mr Millet has not had any relationship with the child for over two years.  Why he brought the application when he did remains something of a mystery, and one that I do not need to descend into save that in the application, he referred to the fact that he be excused from particularising the time he believed that the child should spend with him pending the release of the whereabouts of the child to his solicitor.  Why he did not know where she was remains a mystery.

9. All of the evidence that the mother relies upon about how she cares for the child and the nature of the relationship she has with her partner is all set out comprehensively in the affidavit material on the court file.  She shows where she lives, the nature of the housing arrangements, the commencement of the child at kindergarten, the child’s extracurricular activities and peer groups that she has.  The mother’s only response in relation to any application by the father was articulated very succinctly when she said she had concerns about how the child would react to spending time with her biological father because there had been no relationship for a number of years and, at the time that the contact last occurred, the child was only two.

10. She went on to say that as a result of what Mr Millet had commenced, she went and saw a local counsellor.  She then says, and I quote:

    I am constantly living in fear of the safety of both the child and I.  I believe that [Mr Millet] still has an inability to control his anger, can be manipulative financially and emotionally and may suffer some form of possible mental illness.  I do not wish [Mr Millet] to know our current residential address and would assume that if he is advised of our location, given is past behaviour and threats, I’m fearful as to [the child’s] safety when in his presence and to [Mr Millet]’s capabilities as a father based on his past behaviours.  I do not believe that [Mr Millet] has or takes into account [the child’s] needs or age or the fact that [Mr Millet] is a stranger to [the child].

11. Whilst that may set out her belief – and it is not necessarily helpful here – there is no evidence from Mr Millet to indicate that it is wrong. 

12. The Family Law Act1975 (Cth) (“the Act”) provides that in any proceedings, whether defended or otherwise, the court must take into account the best interests of the child as the paramount consideration when making orders. When making parenting orders, the court is obliged to apply a presumption that it is in the best interests of the child that the parents have equal shared parental responsibility relating to major long-term decisions for the children. That does not apply here because Mr Millet has discontinued any involvement in the proceedings, leaving the mother with the responsibilities for making future decisions about the child’s welfare.

13. In determining what is in the best interests of a child, the court is obliged to consider the matters in section 60CC of the Act. Here, all of those matters are set out in the affidavit material to which I have referred. Ironically, all the mother here is seeking is two orders. First, that she have sole parental responsibility. The reality of life, whether Mr Millet likes it or not, is that subsequent to the separation of this child from him, the mother has been making all of the decisions about her welfare anyway. The discontinuance of these proceedings would indicate that he has no desire to be involved in the decision-making process, and the affidavit material of Ms C would suggest that has acknowledged that is exactly what the mother is doing.

14. In terms of the other issues associated with the longer term position about the care and responsibility as a parent, nothing in the material would indicate that the mother is anything other than a dedicated and focused parent.  What she seeks here is an order that she be able to apply for a passport to enable the child to travel internationally.  Nothing I have read would indicate that she would act irresponsibly, and so under those circumstances, absent some involvement by Mr Millet, I see no reason why she should not have the responsibility for making decisions about passports as well.

15. Accordingly, I will make final orders in terms of paragraphs (1) and (2) of the minute handed to me today.  I will otherwise dismiss the response filed on 16 February 2018.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 May 2018.

Associate: 

Date:  17 May 2018