Moore and Raggatt
[2011] FMCAfam 665
•4 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOORE & RAGGATT | [2011] FMCAfam 665 |
| FAMILY LAW – Children – parenting orders – undefended hearing – best interests of the children – where applicant mother did not attend court – parental responsibility – equal shared parental responsibility – whether equal time with each parent in children’s best interests – substantial and significant time – whether substantial and significant time with each parent in children’s best interests. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA Federal Magistrates Court Rules2001, r.13.03C |
| Applicant: | MS MOORE |
| Respondent: | MR RAGGATT |
| File Number: | SYC 1480 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 July 2011 |
| Date of Last Submission: | 4 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2011 |
REPRESENTATION
| Applicant: | No Appearance |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondent: | Ms Leis |
| Solicitors for the Respondent: | Mark Whelan Lawyer |
ORDERS
The amended application filed on 23 February 2009 is dismissed under the provisions of Rule 13.03(C) of the Federal Magistrates Court Rules 2001.
The parties are to have equal shared parental responsibility for the children, [X] born [in] 2002; [Y] born [in] 2005 and [Z] born [in] 2006.
The children to live with the Father.
The children to spend time with their mother as agreed between the parties.
No order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Moore & Raggatt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1480 of 2007
| MS MOORE |
Applicant
And
| MR RAGGATT |
Respondent
REASONS FOR JUDGMENT
This is an application about parenting orders for three girls, [X], [Y] and [Z], who live with their father. [X] was born [in] 2002. She is now eight years and eight months old. [Y] was born [in] 2005. [Y] is six years and four month old. The youngest of the three children, [Z] was born [in] 2006. [Z] is just over five years old.
The Mother seeks orders in her amended application filed on
23rd February 2009 providing that the children should live with each parent on alternate weeks and that the parties would have parental responsibility for the day-to-day decisions affecting the children when the children are in their care.
The application is silent about parental responsibility generally, but presumably the Mother seeks an order that the parties have equal shared parental responsibility for the children. The Father seeks orders in his amended response filed on 1st July 2011 that:
a)the parties should have equal shared parental responsibility for the children;
b)the children should live with him and
c)the children should spend time with their mother as agreed between the parties.
Background
The parties commenced their relationship in 2000 and separated in January 2007. During that time their three daughters were born. The parties have had a lengthy litigation history but neither one has taken any steps to bring the litigation to a speedy conclusion.
The Mother commenced proceedings against the Father on 15th February 2007 when she filed an application for parenting orders in the Local Court of New South Wales at [omitted]. The Mother had left the parties’ home after an altercation with the Father. The children remained with the Father. Interim orders were made by consent on
16th February 2007 providing that the children would spend time with the Mother on a regular basis and the application was transferred to the Federal Magistrates Court.
Parenting orders were made by consent in this Court on 10th July 2007 providing that the children live with the parties on alternate weeks with the changeover taking place at 4:00pm each Sunday.
On 10th March 2008 the Father sought a recovery order against the Mother in the Local Court at [omitted]. The following day, 11th March, the Local Court ordered the Mother to return the children to the Father forthwith.
The Mother sought a recovery order against the Father and also commenced contravention proceedings against him on 30th October 2008. She also sought an order that the children should live with her on a full-time basis. Interim orders were made by consent and the application was transferred to the Federal Magistrates Court.
The Father filed his response on 22nd January 2009 seeking the orders that the children should live with him.
On 27th January 2009 Orchiston FM[1] ordered a Family Report and listed the application for final hearing on 19th and 20th August 2009.
[1] as she then was
The Mother filed her amended application on 23rd February 2009 seeking orders that the children should live with each parent in alternate weeks.
The Family Report was released on 12th August 2009. When the application came before the Court on 19th August 2009 the parties entered into interim consent orders providing that:
a)both parties would have equal shared parental responsibility for the children;
b)the children would live with the Father;
c)the children would spend time with the Mother increasing after two periods of three months each.
The parties also agreed that the orders would be reviewed in 12 months time.
The application was mentioned by consent before the Court on 21st December 2009 and adjourned to 19th April 2010.
On 19th April the Court was told that the arrangements between the parties were not working well and the application was listed for final hearing on 14th and 15th October 2010.
I made a direction that the Family Report should be updated. The parties were due to see a family consultant on 7th July 2010 for the purpose of interviews to update the Family Report, but the appointment was postponed at the Mother’s request.
The appointment was rescheduled to 3rd August 2010, however, the Mother did not attend. The Father also did not attend as the Court was told that the Mother had sent him a text message to say that she was not able to attend.
On 6th September 2010 I vacated the hearing dates and adjourned the application to 14th October 2010 for mention only for the purpose of setting a fresh hearing date.
On 20th September 2010 the Mother’s solicitor filed a Notice of Ceasing to Act.
The Mother did not attend Court on 14th October 2010, nor was she represented. At the request of the solicitor appearing for the Father,
Mr Fernie, I adjourned the application for further mention on 18th April 2011.
On 18th April 2011 there was again no appearance by or on behalf of the Applicant Mother. Mr Fernie again appeared for the Father. I listed the application for undefended hearing at 2:15pm on Monday 4th July and granted leave to the Respondent Father to file and serve an amended response by 20th June 2011.
The Father filed the amended response on 1st July 2011. In that amended response he sought orders that the parties should have equal shared parental responsibility for the children, that they would live with the Father and spend time with their mother as agreed between the parties. The Father also filed an affidavit of 29th June 2011.
I am satisfied that the Father’s solicitors have informed the Mother by providing copies of the amended response and the Father’s affidavit. The Mother has not attended Court today. The matter was called at 2:29pm and again at 2:58pm. There was no appearance by or on behalf of the Mother.
I heard evidence from the Father as to the fact that the children had been living with him more or less constantly for the last five years. He is of the view that they need consistency and stability in their lives. They are doing well at school and they are in good health.
He said that he wished to take a proactive approach in contacting the Mother to arrange for her to see the children at significant times. The Mother had not been making arrangements to see the children and he gave evidence that she had seen them shortly after [Z]’s birthday in March and had previously seen them on 2nd January. He believes it is important that the Mother should see the girls and he indicated that she contacted him about three weeks ago to make arrangements to see the girls but she has not carried through with that request.
In deciding whether to make a parenting order in relation to a child the Court is required by section 670CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in children’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC of the Act.
When making a parenting order the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility. That presumption does not apply in circumstances of abuse or family violence 9S.61DA(2)) and it may be rebutted by evidence that satisfy the Court that it would not be in the children’s best interests.(s.61DA(4)).
Where the Court does make an order for equal shared parental responsibility, section 65DAA requires consideration of the children spending equal time with each parent, or failing that the children spending substantial and significant time with each parent.
I have considered all of those matters. In my view it is in the children’s best interests to continue living with the Father so that they may enjoy the stability in their lives that is indicated by the evidence.
I intend to make orders the parents have equal shared parental responsibility. I am not, however, satisfied that it is in the children’s best interests for them to spend equal time with each parent, and I cannot be satisfied at this stage that substantial and significant time with the children’s mother is warranted.
The Mother’s history of spending time with the children in recent years does not give the Court confidence that she would maintain that role. If there was an expectation by the children that the Mother would do so and she failed to spend substantial and significant time with them, in my view it would be unsettling and distressing for them.
Accordingly, the orders that I propose to make will be significantly less than substantial and significant time, but if the Mother wishes to spend more time with her daughters then she should make arrangements to do so.
I will remove this application from the list of cases waiting finalisation.
I note there is an application for costs. Whilst the Mother’s participation in the proceedings in the last year or so has been less than satisfactory, there is not sufficient evidence before the Court to indicate that she has funds to meet an order for costs. Accordingly, I make no order for costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 5 July 2011
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