O and O
[2001] FMCAfam 127
•8 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
O & O [2001] FMCA 127
FAMILY LAW – Children – Residence – Best interests of child – Respondent fails to attend hearing – Final orders made on undefended basis
| Applicant: | Y Z O |
| Respondent: | Z O |
| File No: | ZP1239 of 2001 |
| Delivered on: | 9 August 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 9 August 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Applicant in person | Mr Y Z O, Unit 18, 6–10 Railway Parade, Westmead NSW 2145 |
| Respondent: | No appearance |
ORDERS
That all existing parenting orders are discharged.
That the child M E O born 31 January 1994 (“the child”) live with the Applicant Father.
That the Father and Mother have joint responsibility for making decisions about the long term care, welfare and development of the child.
That the Father have responsibility for making decisions about the day to day care, welfare and development of the child.
That the Mother have contact to the child defined, but not limited to:
1.Each alternate weekend from 6.00pm Friday until 5.00pm Sunday commencing the second weekend after the Mother returns to Australia.
2.For the first half of each school holiday period.
3.If a contact weekend does not occur on the weekend including Mother’s day then contact from 3.00pm on Saturday until 5.00pm Mother’s day.
4.If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
5.On the second day of Ramadan and the second day of Kurban.
6.On the day after the child’s birthday.
7.At other times as agreed by the parties.
Weekend contact is suspended during school holidays.
SCHOOL HOLIDAY CONTACT:
1.SHALL commence at 9.00AM.
2.SHALL conclude at 2.00PM.
3.WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
4.Pupil free days are deemed to be school holidays.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed.
If contact falls on Father’s Day contact is suspended from 3.00PM Saturday.
That the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child M E O born 31 January 1994 from the Commonwealth of Australia. It is requested that the Marshal of the Court and all forces of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
That the Australian Federal Police place the children M E O born
31 January 1994 on the airport watch list, also known as the P.A.S.S. list, at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the watch list until further Order of the Court.That all outstanding applications are otherwise dismissed and the matter be removed from the Pending Cases List.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA
ZP1239 of 2001
Y Z O
Applicant
And
Z O
Respondent
REASONS FOR JUDGMENT (Ex Tempore)
The application
This is an application by Y O in which he seeks parenting orders relating to the parties only child, M E O born on 31 January 1994.
The proceedings were commenced by Mr O when he filed his application in the Family Court on 11 December 2000. The proceedings came before the Family Court on a number of occasions and on 6 April 2001 were transferred to the Federal Magistrates Court. On that day the applicant husband appeared on his own account and the wife appeared with her solicitor. After a hearing interim orders were made as follows:
1.That the child M E O born 31 January 1994 is to reside with the applicant father.
2.That the applicant father and the respondent mother are to have joint responsibility for the said child’s care, welfare and development.
3.That the respondent mother have contact with the said child:
(a)Each weekend from 9.00am on Saturday until 7.00pm on the Sunday unless the following Monday is a Public Holiday, in which case contact will conclude at 7.00pm on the Monday.
(b)For the first half of each school holiday period commencing at 9.00am on the day after the school term concludes.
4.That the mother and the father, by themselves, their servants or their agents are restrained from removing or attempting to remove the child M E O from the Commonwealth of Australia and it is requested that the Marshal of the Federal Magistrates Court and all forces of the Australian Federal Police and all Police forces and services of various States and Territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
5.I request that the said child’s name be placed on the airport watch list.
6.That pursuant to Section 62G of the Family Law Act the parties are to attend upon a Court Counsellor at such times and such place as the Director of Court Counselling directs for the preparation of a Family Report. Such report is to take into account the wishes of the child and the relationship between the child and all significant adults.
7.That the parties file and serve all further Affidavit material upon which they seek to rely by 4.00pm on Friday 6 July 2001.
8.That the applicant pay the hearing fee or obtain a waiver by 4.00pm on Friday 6 July 2001.
9.That this matter be listed for final hearing before this Court on Thursday 9 August 2001 to go to Friday 10 August 2001 at 10.00am.
10.That either party be granted liberty to apply on 72 hours notice.
11.That a Turkish interpreter be provided for the wife for the hearing.
The orders in essence provided that M live with his father, that the parents have joint responsibility for making decisions about his care, that the mother have contact to him each weekend from 9.00AM Saturday until 7.00PM Sunday, contact included Monday if it were a public holiday and also half of all the school holidays. Further orders were made which restrained the removal of the child from Australia. Importantly, then orders were made that day listing the matter for final hearing to commence today and continue tomorrow. The court, in preparation for trial, ordered that a family report be prepared and that all affidavits be filed and served by 6 July. I am satisfied that the mother knew that these proceedings were listed for hearing today and that the hearing would concern the competing applications for residence and contact.
Subsequently the mother made application to vacate the hearing. That matter came before the court on 15 June 2001. The father appeared on his own behalf and Mr Joukador of counsel appeared on behalf of the mother. Her application to vacate the dates was refused. The court noted that if the respondent did not appear or otherwise fail to comply with the directions made the matter may proceed on an undefended basis. The court ordered an interpreter to assist the mother with her evidence.
This morning the matter was called at 10.00AM and there was no appearance by the mother. The matter was stood in the list until 11.30AM awaiting her arrival. Neither she nor anyone on her behalf appeared. At 11.30 am the court released the interpreter.
Before a court makes orders which interfere with or establish rights and obligations concerning a person that person must be given the opportunity to participate. This includes having the opportunity to file affidavits, to test evidence called and to make submissions contrary to that part of an application that is resisted. The mother has had that opportunity. She has been aware since 6 April 2001 that the matter was listed for hearing today. Her application to vacate the hearing failed. It would seem on the evidence that she has travelled overseas and plans to remain away until at least the end of this year. I am not satisfied that I should adjourn the proceedings. It is at best highly speculative about whether the mother will in fact return to Australia at the end of the year. This child needs the arrangements to be put in place for him that making orders today will facilitate.
The father has given short oral testimony today which evidence complements the material contained in his affidavit filed on 6 July, 2001. He is the only parent who is in Australia and proposing to care for M. M has been staying with the father’s parents at their home in J Street, Mt. He attends Colyton Public School where he is in Year 2. The father has the child each weekend from Friday night until Sunday night. During the week he often collects him from school and spends time with him.
The arrangements for the child have been structured this way pending the adjudication by the court of where it is that M should live. Until today the mother has, it would seem, been challenging the father’s continued care of the child. The father sensibly, rather than disrupt the child’s arrangements only to potentially have them disrupted again as a consequence of an adverse outcome for him in these proceedings, has left the child with his parents.
Chronology of events
The father was born on 18 April 1970 and the mother was born on
2 May 1973. The parties commenced living together upon their marriage on 20 January 1992. They were married at Ankora in Turkey and both share Turkish heritage. After their marriage they returned to Australia in September 1992 living for a short time with the father’s parents before moving into their own property. They have one child, M, who was born on 31 January 1994. The marriage was an unhappy one and it finally came to an end when the parties separated in November 1998. At that time the father returned to live with his parents. The mother moved with M into premises in H Street, M. They were all living in the same small community.
M continued to live with his mother. He had contact with his father who was paying child support for him. In April 1999 the mother advised the father that she wished to return to live in Turkey and that she was planning to leave Australia permanently. She sought his consent to remove M with her, which consent she anticipated that the father would withhold, as indeed he did. She nonetheless left for Turkey and M remained with his father at his parents home. The mother stayed in Turkey until October 1999 when she returned to live in Australia. The parties quickly agreed that M should have contact with his mother and it resumed shortly after her arrival. The father took M to the mother’s residence and collected him at the end of contact. He says that there were many occasions when he was planning to take M to his mother but she elected not to have contact with the child.
After one contact visit the mother withheld M until the father provided the child’s birth certificate. It would seem that she planned to increase her entitlement for a Centerlink benefit. Once the father handed over the birth certificate the child was returned to him.
The mother continued to exercise contact. She was living in Lidcombe until about April 2000. She then moved to Auburn. The mother repeatedly requested that the father let M live with her. By the middle of June 2000 they reached an agreement that M would live with his mother in Auburn and have weekends with his father. The mother then resumed work and the father’s evidence is that she called on a variety of people to take M to school and to pick him up. M started thereafter to show considerable signs of neglect. The neglect was demonstrated in the clothes the child was wearing, the injuries that he seemed to be suffering and his schooling seemed to be deteriorating.
The mother then sought to restrict the father’s contact to M from every weekend so that it would become each second Sunday from 9.00AM until 5.00PM. On 3 December, 2000 the father went to collect the child for contact. The parties argued about whether or not there were orders in existence obtained by the mother without the knowledge of the father concerning his contact. The father took M over the mother’s objections. M has remained with his father’s care since that time. It was the father and not the mother who initiated proceedings in a court exercising jurisdiction under the Family Law Act to address the disagreement that the parties had concerning the child’s care.
The father applied to the Family Court at Parramatta on 11 December 2000. It was some six weeks before the mother attempted to contact M after the father had taken him into his care. M has remained in the father’s care, albeit cared for primarily by his paternal grandparents since that time. Those arrangements were regularised by the making of the interim orders that I have already identified in these reasons. The father’s evidence is that the mother has not exercised contact with the frequency provided for in the orders made in her favour for contact. She rang the father on a number of occasions declining contact that she was entitled to. This is causing the child some distress as he is unable to understand that his mother did not seek to have contact with him. He blames the father for the fact that the mother has not turned up for contact.
The mother has departed Australia and has been absent from Australia since prior to her application to vacate the hearing dates. She left sometime prior to 15 June 2001. The fact that she was willing to leave Australia and M for many months is a factor that I take into account. I infer from her preparedness to depart Australia and leave the child in the care of the father and his parents that she does not have any concern that M would not be adequately cared for by his father and his father’s parents. Implicit in her lengthy departure from Australia is a concession that the father and his parents do indeed take good care of her son.
Relevant law
Residence, contact order and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Section 68F(2) — determining the child’s best interests
I have already made reference to the current arrangements concerning the child. The father has maintained good contact with the teachers at the school that M attends and M is happily involved in a regular sporting commitment. The father has now re-partnered and is living with his partner, L D. They have a seven months old daughter, C. The father, his partner and daughter live in a two- bedroom rented unit in C Street, Westmead. This is the place that M comes to for weekends and one of the bedrooms has been set aside for him. With the completion of these proceedings the father proposes that he will assume M’s full-time care and that M will form part of their small family unit. This will involve M leaving Colyton Public School and being enrolled at Westmead Public School.
The father proposes that that change will take place either at the end of this term or at the beginning of the next school year. He has obviously considered the effect on his child of changing schools and changing homes. His approach is a cautious and sensible one and whatever decision he makes in relation to changing schools, in terms of its timing, I am satisfied will be a change that will carefully consider the effect of disruption on the child. It will give him the opportunity to emotionally prepare to leave behind his friends and face the challenge of starting a new school.
M is a healthy little boy who it would seem is a bit overweight, his father believes, because he is moderately spoiled by the father’s mother. He does not criticise his mother for this. The father has very active family support in the care of his child. His parents are in agreement with his plans for his son and they too are awaiting the outcome of these proceedings to implement the father’s plans to assume the full-time care of the child. The father, as I have indicated, is the only parent in Australia who is seeking to have the care of the child. The arrangements he has put in place are proper arrangements and I am satisfied that the residence order he seeks is an order that I should make having regard to the best interests of the child.
The issue that I then must address is arrangements for contact between the mother and father. The father proposes an arrangement which would enable the mother to exercise contact each alternate weekend from Friday night till Sunday night, for him to share the holidays between his parents and to share some special days such as Father’s Day, Mother’s Day, the feast of Ramadan and the feast of Kurban. The orders the father proposes for contact are orders which will enable M to develop and maintain a worthwhile relationship with his mother and provide a structure for her to maintain a proper commitment to her son and I propose to make orders in accordance with the proposal outlined by the father at the commencement of this hearing.
The court has had in place an order restraining the parties from removing the child from the jurisdiction. That order does no more in my view than restate the position that arises as a consequence of the operation of the Family Law Act. I do consider it’s an order that is in the interests of the child to maintain.
I am satisfied that these orders are in the child’s best interests.
I certify that the preceding twenty-five(25) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 22 August 2001
0