NEALL & RAMO

[2020] FamCA 1008

FAMILY COURT OF AUSTRALIA

NEALL & RAMO [2020] FamCA 1008

FAMILY LAW – PARENTING – final parenting orders unopposed.

APPLICANT: Ms Neall

RESPONDENT: Mr Ramo

INDEPENDENT CHILDREN’S LAWYER: Ms Hams

FILE NUMBER: MLC 11886 of 2019

DATE DELIVERED: 11 September 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: McKean Park Lawyers

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the respondent husband

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Southern Family Law

Orders

1. That the Applicant be granted leave to proceed with her Amended Initiating Application filed 13 December 2019 on an undefended basis.

2. That the child X born … 2016 (“the child” / “X”) live with the Mother in Australia.

3. That the Mother have sole parental responsibility in relation to the child, with the Mother to keep the Father informed of her intentions to make long term decisions in relation to the child with such communications to occur in writing.

4. That the Father spend time and communicate with the child at times as to be agreed between the Mother and Father and evidenced in writing with the effect that there is no current order entitling the father to spend time with, or communicate with, X.

5. That the Mother and Father and their servants and agents be and are hereby mutually restrained from causing, permitting or suffering the removal or attempted removal of the child X born … 2016 form the Commonwealth of Australia AND IT IS NOTED that the child was placed on the Airport Watch List by order made on 10 December 2019.

6. That Airport Watch List referred to in paragraph 5 above is to remain in full force and effect until further order.

7. That the Mother advise the Father as to any serious illness or injury affecting the child, or any hospital admissions, including the name of the treating medical practitioner or hospital of attendance and the mother authorise any medical practitioner upon whom the child attends to communicate with the father regarding the child’s health.

8. That the Mother authorise the Father to receive from the child’s kindergarten or school, at his request and cost, any information to which a parent is normally entitled to receive.

IT IS DIRECTED:

1. That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

2. That the email from the Independent Children’s Lawyer to the father dated 3 September 2020 and the father’s response dated 5 September 2020 be marked Exhibit “ICL1” and remain on the Court file.

IT IS FURTHER ORDERED:

1. That my order requesting the appointment of the Independent Children’s Lawyer be discharged.

2. That if any parenting application, including a contravention application, is filed in relation to the child X between now and 1 October 2022 the matter may be listed promptly before me for directions if I am reasonably available.

3. That pursuant to s. 65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. That the mother’s Amended Initiating Application filed 13 December 2019 be otherwise dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

AND IT IS NOTED THAT:

A. The Father failed or neglected to comply with paragraph 5 of the Order made by the Family Court of Australia on 6 March 2020, requiring him to file a Response to the Initiating Application of the Mother filed on 13 December 2019, together with an affidavit in support.

B.The father contacted the court and the Independent Children’s Lawyer by email within the last seven days to advise that he was unable to participate in the hearing but did not seek an adjournment

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 Neall & Ramo 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 11886 of 2019

Ms Neall

Applicant

And

Mr Ramo

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me after a number of hearings where the father has not meaningfully participated in proceedings concerning X, who is four years old and who has been living in Australia with her mother since 19 October 2018.  These reasons explain the circumstances in which I now finalise the proceedings and make orders as are sought by the Independent Children’s Lawyer and the mother. 

2. The father is a citizen of the United States of America and he is a transport manager employed by Company A, which contracts with other international companies.

RECORDED  :  NOT TRANSCRIBED

1. The father is 48 years old.  The mother is also 48 years old.  She is a citizen of Australia, having been born in Town E and also has had a green card to work in the United States.

2. The parents commenced a relationship in State B in the United States in 2003 and married there in 2014.  X was born in 2016. 

3. The parents last lived together as a family in June 2018 at which time the mother and X left State B and went to Country C for the purpose of the mother overseeing works to the maternal grandmother’s home.  The father visited them in Country C.  On 19 October 2018, the mother travelled from Country C to Town E in Australia to visit the maternal grandfather.  By January 2019, the maternal grandfather had become ill and he passed away.  In February 2019, the mother formed the view that her marriage to the father was over and that that relationship would cease.

4. On 22 March 2019, the mother filed a petition in State B for divorce and other ancillary relief.  The property aspect of those proceedings is still extant.  On 9 May 2019, the father filed a responding petition before the appropriate courts in State B seeking also parenting orders. 

5. On 21 October 2019, which was a scant year after the mother had arrived in Australia, the mother filed an initiating application seeking orders of this Court in relation to the X, in particular, equal shared parental responsibility, that X live with her in Australia and the father’s time with X be as agreed between her and the father.  Those proceedings were first returnable on 27 November 2019 when the interim orders were made by Registrar George adjourning the matter to the judicial duty list on 10 December 2019 and the father was required to file and serve answering material by 6 December 2019.

6. The application with which the father was served makes clear in its formal parts that failure to respond to the application may entitle the applicant to obtain orders as sought in the application. 

7. The father did not file any material by 6 December 2019.  On 28 November 2019 the father informed the mother by email that:

   You have no jurisdiction over the child who is a USA citizen.

8. On 10 December 2019 the matter came before me in the judicial duty list. I ordered that the matter be listed for mention on 11 February 2020 and that a call be placed to the father’s solicitors in the United States at the commencement of that mention. I ordered that until further order, X live with the mother in Australia and the parties be mutually restrained from removing X from Australia. There is an airport watch list which implements that prohibition. I provided reasons for decision on that day, which appear as case neutral citation [2019] FamCA 968. I made provision for the mother to file an amended initiating application by 6 January 2020, which she did, and for the father to file any response and affidavit by 6 February, however he has not done so. I included a notation in the orders that in the event a party failed to attend court when required to do so or defaulted in the filing of documents:

   The court may proceed to determine the application without any input by the defaulting party.

9. Importantly, on 10 December 2019, I also requested that an Independent Children’s Lawyer be appointed for X and in due course, Ms Hams, solicitor, was appointed in that capacity. 

10. An Independent Children’s Lawyer is appointed to act for children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1]  She is not a legal representative retained by the child and she is not bound by any instructions from the child (or any of them).[2] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the child is fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings,[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is possible and in the best interests of the child to do so.[4]

    [1] Family Law Act 1975 (Cth) s 68LA(2).

    [2]Family Law Act 1975 (Cth) s 68LA(4).

    [3]Family Law Act 1975 (Cth) s 68LA(5)(d).

    [4]Family Law Act 1975 (Cth) s 68LA(5)(e).

11. On 13 December 2019, the mother filed the amended application in respect of which I had given leave.  The material change was that she now seeks sole parental responsibility for X, rather than to share parental responsibility with the father.  The mother also filed a notice of risk, alleging that the father abuses alcohol. 

12. On 27 December 2019, the father’s attorney in the United States advised that he did not have instructions to act for the father save for proceedings undertaken in State B. 

13. On 11 February 2020, at the mention, there was no appearance by the father.  There was consent from the mother for direct judicial communication between me and The Hague Network Judge in City N, which occurred.

14. On 20 February 2020, the father notified the mother by email that he would be arriving in Brisbane on 22 February 2020, but apparently he did not travel. 

15. On 6 March 2020, the matter came before me.  The father appeared by telephone.  By consent I ordered that the child live with the mother in Australia.  I made interim orders providing for the mother to have sole parental responsibility and to keep the father informed in writing of her intentions to make long-term decisions in relation to X, that X spend time with the father at times to be agreed between the mother and the father, and that the injunction restraining the mother and the father from removing X from Australia and the watch list order continue in full force and effect.

16. I ordered that there be a family report prepared by a Family Consultant attached to the registry.  Family Consultants are the Court’s expert witnesses in post-separation parenting and childhood development.  That report would have been free to the parties, but I made it subject to the father actually filing documents in these proceedings and participating in the proceedings.  He had also not taken any steps to engage in proceedings in this Court by filing any evidence or seeking any orders. 

17. On 6 March 2020, the father said that he would be seeking orders, in particular, orders requiring the mother to move to R City in Queensland, that he have unsupervised time with X within Australia and outside Australia and that he would seek orders in relation to X’s religious upbringing.

18. The due date for the filing of documents by the father was 22 April 2020.  He failed or neglected to file any documents by that date.  On 23 April 2020, the father sent an email to my Associate stating he was quarantined for the next 60 to 90 days and would not have the ability to participate by video conference in the Court hearing on 1 May 2020.

19. On 1 May 2020, the father did not appear and I adjourned the matter to today.  I noted that still the father has not filed any application by way of a response or otherwise, or any evidence in this Court. 

20. I am informed by the Independent Children’s Lawyer that on 3 September 2020 she wrote to the father on the issue of his non-compliance with orders of this court.  That letter is in evidence before me and I mark it exhibit “ICL1”.  It reads:

    Dear Mr Ramo,

    I hope this email finds you safe and well in the difficult circumstances we all face globally.

    I confirm that I continue to act as the court appointed Independent Children’s lawyer in these proceedings.

    As you are aware Ms Neall’s application to the Family Court of Australia for parenting orders is listed before the Honourable Justice Bennett at the Melbourne Registry of the Family Court of Australia on 11 September 2020.

    I note that to date you have not advised of any legal representative engaged by you to act in the proceedings, nor have you filed any court documents in the Australian proceedings.

    I would be grateful to receive your advices in relation to this matter as a matter of urgency, and confirmation of whether you wish to appear electronically on the court date.

    I look forward to hearing from you.

    Yours faithfully,

    Kristy Hams

    Principal Lawyer

21. I am informed by the Independent Children’s Lawyer and accept that on 5 September 2020 the father responded to her letter by email in the following terms:

    Good morning Mrs Hams,

    I am currently away from my home onboard a ship heading back to our home port/land September 12th, 2020. I don't have access or means to sit in electronically on this scheduled court date!

    If you are representing my daughters best interests then I believe you should be well informed on what Ms Neall and her USA lawyers have and are continuing to do so with keeping me away from my daughter and the Australian Courts. Please find attached my lawyers third request to the USA courts for Ms Neall to produce my daughters documents so I can apply for a travel visa to enter Australia during the COVID pandemic.

    I've been requesting these documents since the day the Honorable Judge Bennet moved the court date to September to travel and SEE MY DAUGHTER, interview with your law firm and seek counsel to represent me as well to start applying for permanent resident status in your beloved country.

    Mrs. Hams I am not going anywhere nor will I be denied access to my own child, an American child taken from her country by an Australian Citizen without the American fathers consent and denied being a part of that child's my child's life. I send money, designer clothes and toys monthly without being ordered by any courts so my daughter is never deprived of anything she wants or needs. The Australian courts can proceed however they want with handling my current situation but please be advised that as soon as this COVID pandemic passes, my travel VISA is approved and or I am granted permission to enter your beloved country I will be seeking the best lawyer in Melbourne to appeal everything that has taken place since day one and how I've been treated by the Australian courts and the Australian mother being I'm a foreigner! I know you're an independent lawyer for my daughter and everything I've written above doesn't pertain to you representing my daughter but her rights are being violated by the mother keeping her from the father and keeping me out of an Australian court. I thank you for your time and I hope this email finds you well without offending you or coming off as malice.

    Kind Regards,

    Mr Ramo  

RECORDED  :  NOT TRANSCRIBED

1. The last communication which X had with her father was last Monday, 7 September 2020 via FaceTime. 

2. The last time X saw her father was in October 2018.

3. Yesterday my chambers received notification from the husband which reads as follows:

   Good morning,

   Thank you for the information/email but unfortunately I’m offshore in the Americas and don’t have the internet capacity, bandwidth to listen in and or video capability onboard for clear & constant communication for long periods of time. Internet usage is for emails and texts, limited due to clients request and scope of work that is involved since January 14, 2020. Thank you again for informing me.

   Kind Regards,

   Mr Ramo

4. Notably, the husband does not seek an adjournment.  Furthermore, he has not explained why he is still on a boat and out of contact when his previous communication to the Court indicated he was serving a period at sea of 60 to 90 days as at 23 April 2020.  Finally, the husband does not indicate that he has anything to put before the Court. 

5. I am satisfied that the father has been accorded procedural fairness in these proceedings.  He knows the case that he faces and he has elected not to participate in proceedings.

6. The wife is entitled, in my view, to move to final orders in the terms of her amended application and that course is supported by the Independent Children’s Lawyer. 

7. The mother has prepared, with the Independent Children’s Lawyer, a minute of final orders which she proposes be made.  I note that none of the matters in the orders which I am inclined to make are new matters.  Not only does the father have notice of these provisions, but they have been in existence for a considerable time. 

RECORDED  :  NOT TRANSCRIBED

1. On 9 September 2020, the mother filed an affidavit.  This affidavit has been served on the father by email.  Given that the father has failed to put any material before the court in relation to X and her current situation, I accept the mother’s evidence as being unchallenged.

2. As to X’s current circumstances, the mother deposes in her affidavit affirmed on 9 September 2019 that:

   14. In regard to X’s current circumstances, I say that X and I reside in my mother’s house at Town E which is 1.5 acres of garden where she can play outdoors and joy the free space, the flowers and we even grow our own vegetables and fruit.

   15. X has her own bedroom within our four bedroom house and X now has a six month old kitten.  X continues to attend the Q Kindergarten every Tuesday and Thursday from 8.30 am to 4.00 pm noting that the kindergarten has continued to operate throughout the year and X has settled in there wonderfully with a group of young friends.  In addition to her kindergarten friends, we also have established a great play group where she has other friends.

   16. The Town E area where we reside has many wonderful things to enhance our lifestyle including playgrounds, coastal parks, local beaches, national parks and wildlife.  In addition to this, we have an award winning healthcare regional hospital and designated child and maternal health centre, and moving forward for X there is a choice of three excellent primary schools and the M School and P School facilities close by.  For the upcoming summer, we are looking forward to using the solar heated pool at Town E and I intend to enrol X in the VICSWIM program.

   17. Finally, at all times, I have ensure that X has regular facetime with Mr Ramo when he available [sic], noting that he is able to do so from his ship and we facetimed with him as recently as Monday morning on 7 September 2020. 

1. I am satisfied that X is being appropriately cared for by the mother and I am further satisfied that it is in X’s best interests that her mother be relieved from the ongoing expense, in both emotional and financial terms, of proceedings in this Court.  It is time to bring the parenting orders to a close and to stop delaying a determination of proceedings waiting for the father to do something, which it appears he is not prepared to do. 

2. The order pursuant to which X is to reside with the other was made as a final order by consent on 6 March.  The other parenting provisions in relation to parental responsibility, time to be spent, have also been in force since 6 March. It is not practicable nor in X’s best interests for me to order shared parental responsibility.  The mother would have no reasonable means of consulting with the father.  Decisions in relation to X would be delayed to her detriment.  All of these matters were the subject of the mother’s amended application which was filed on 13 December 2019.  The prohibition against taking X out of Australia has been in force since 10 December 2019.

3. I am satisfied that the orders sought by the Independent Children’s Lawyer and the mother are in the best interests of X and I will make orders in those terms.  In doing so, I note that nothing actually changes for X.

4. The father is at liberty to seek orders from this Court in relation to spending time and communicating with X, however, he will have to do that by a formal application and he will have to do that supported by affidavit material.

5. I am satisfied that the orders are in the best interests of X and I finalise the proceedings on that basis accordingly.

I certify that the preceding thirty (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett J delivered on 11 September 2020.

Associate:

Date:  30 November 2020