NEVIS & SHEKELL

[2013] FCCA 1629

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEVIS & SHEKELL [2013] FCCA 1629

Catchwords:
FAMILY LAW – Children – Parenting orders – parental responsibility – sole parental responsibility – best interests of the child – where mother did not attend Court.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA
Federal Circuit Court Rules 2001 r. 13.03C

Applicant: MR NEVIS

Respondent: MS SHEKELL

File Number: CRC 292 of 2012

Judgment of: Judge Scarlett

Hearing date: 17 September 2013

Date of Last Submission: 17 September 2013

Delivered at: Coffs Harbour

Delivered on: 17 September 2013

REPRESENTATION

Solicitor for the Applicant: Ms Green

Solicitors for the Applicant: Susan Green Solicitor

Respondent: No Appearance

Solicitor for the Independent Children’s Lawyer: Ms Steiner

Solicitors for the Independent Children’s Lawyer: Flintoff Lawyers

ORDERS

1. The Child of the relationship X born (omitted) 2007 live with the Father and the Father have sole parental responsibility for the Child.

2. UNTIL FURTHER ORDER of the Court the Mother spend time with the Child fortnightly under the supervision provided by the Interrelate Children’s Contact Centre in (omitted).

3. Within 14 days of the date of these Orders the Mother make an appointment to attend upon the Contact Centre to complete the Intake Assessment and Building Connections course. If the Mother attends to complete these courses then the Father will also attend any courses required forthwith so that time with the Child can commence as quickly as possible.

4. The parties comply with all reasonable directions, policies and procedures of the Contact Centre.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT COFFS HARBOUR

CRC 292 of 2012

MR NEVIS

Applicant

And

MS SHEKELL

Respondent

REASONS FOR JUDGMENT

1. There is an amended application for parenting orders.  The Father is seeking that the child of the relationship, X, born (omitted) 2007, should live with him, that he should have sole parental responsibility for the child.  He seeks orders that the Mother should spend time with the child fortnightly under supervision provided by the Interrelate Children’s Contact Centre and seeks orders that the Mother should make an appointment to attend the Contact Centre to complete an intake assessment and the parties comply with all reasonable directions, policies and procedures of the Contact Centre. 

2. It is put to the Court that when orders were made by his Honour Judge Kemp on 15^th July 2013 the solicitor for the Independent Children’s Lawyer was directed to notify the Respondent in writing of the orders that had been made that occasion. 

3. The Mother had not attended Court on 15^th July 2013.  She has not attended Court today.  His Honour noted that if the Mother did not take up the time afforded to her in the current orders and the Father elected to file an amended application that application was to be filed and served by 30^th August 2012. 

4. I am informed by Ms Green for the Applicant Father and by Ms Steiner for the Independent Children’s Lawyer that the Mother has not responded and, as directed, the Father has filed an amended application and an affidavit on 29^th August 2013. 

5. As I said, there has been no appearance by the Mother today.  In my view, this is a suitable application to proceed to a hearing under the provisions of rule 13.03C of the Court Rules.

The law relating to parenting applications 

1. When a court is considering making a parenting order in relation to a child, it is required by s.60CA of the Family Law Act 1975 (Cth) to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.

2. The Court is also required by s.61DA of the Act to apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that satisfies the Court that equal shared parental responsibility would not be in the child’s best interests.

Conclusions 

1. I have heard oral evidence from the Father in support of his affidavit evidence and I am satisfied that it is in the best interests of this child that the Court should make the orders sought by the Father, which primarily provide that X should live with him and that he should have sole parental responsibility. It is not in the child’s best interests for his parents to have equal shared parental responsibility for him, as I note that his mother has not taken the opportunity to spend time with him since June of this year. She has not attended court today.  Accordingly, I make orders 1, 2, 3 and 4 inclusive as set out in the Amended Application. 

2. I note there is no application for the Independent Children’s Lawyer’s costs.

3. The Independent Children’s Lawyer is discharged with the Court’s thanks. I will remove the application from the list of cases awaiting finalisation.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  15 October 2013