Polson and Suarez and Anor

[2017] FamCA 187

FAMILY COURT OF AUSTRALIA

POLSON & SUAREZ AND ANOR [2017] FamCA 187

FAMILY LAW – CHILDREN – Where the father has not been involved in the care of the child – Where the father has not engaged in these proceedings – Where the mother was granted sole custody of the child in Country E but such order was insufficient to allow the child an Australian visa – Where it is in the best interests of the child to live in Australia with his mother and siblings – Where the mother is granted sole parental responsibility for the child and the child is to live with her.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT: Ms Polson

1st RESPONDENT: Mr Suarez

2nd RESPONDENT: Saravanapavan

FILE NUMBER: BRC 11951 of 2015

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 10 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: KLM Solicitors

FOR THE 1ST RESPONDENT: No appearance

FOR THE 2ND RESPONDENT: No appearance

Orders

1. That the mother have sole parental responsibility for the child B born … 2001 (“the child”).

2. That the child live with the mother.

3. That the father be at liberty to contact the child at all reasonable times by telephone.

4. That the child spend time with the maternal grandmother at all reasonable times as agreed between the parties.

5. In the event the father seeks to spend time with the child in Australia he is to provide the mother with no less than sixty (60) days’ notice of his intention to travel to Australia, his itinerary and his contact details for when he is in Australia.

6. That the father be restrained and an injunction hereby issues retraining the father from taking the child or causing the child to be taken less than 500m from an international departure point without the mother’s written consent.

7. That all outstanding applications are removed from the pending cases list.

8. That the mother serve a copy of this Order upon the father by registered Australia Post care of his mother at her current address at C Street, D Town, Country E, or such current address of the father’s mother as otherwise known to the mother.

9. That the mother serve a copy of this Order upon the maternal grandmother by registered Australia Post to her current address at F Street, G Town, Country E or such current address of the maternal grandmother as otherwise known to the mother.

NOTATION

1. It is noted that the father is known by the following names:

   (a)       Mr H;

   (b)       Mr I;

   (c)       Mr J;

   (d)       Mr K; and

   (e)       Mr L.

2. It is noted that the parties will respect the child’s wishes in relation to spending time with and communicating with the father.

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

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 Polson & Suarez and Anor 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 BRISBANE

FILE NUMBER: BRC 11951 of 2015

Ms Polson

Applicant

And

Mr Suarez

First Respondent

And

Saravanapavan

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for a final parenting order providing for Ms Polson (“the mother”) to have sole parental responsibility for the child, B born in 2001, for the child to live with the mother, for the child’s father to be at liberty to contact the child at all reasonable times by telephone and for the child to spend time with his maternal grandmother at all reasonable times as agreed. The application also makes some provision for the father to spend time with the child in Australia should he travel here.

2. The mother initially filed her application in 2013. It is not entirely clear why this matter has taken so long to be finalised but I note that various orders for substituted service have been made and most recently the second respondent was joined as a party. I am satisfied that the mother has taken all reasonable steps to bring these proceedings to the attention of the first respondent and that the second respondent consents to the proposed order. 

3. B, who is the subject of these proceedings in now 15 years of age and he is the son of the mother and her former husband, Mr Suarez (“the father”).  The mother and father were married in Country E in 1998 and divorced in Country E in 2008.

4. The second respondent to these proceedings is the maternal grandmother, Saravanapavan.  the child has lived in Country E with the maternal grandmother for 8 to 10 years although he has spent time in Australia from time and time but because of visa problems he has not spent longer than 3 months at any one time.  He was last here in 2013.  The mother was last in Country E in the December 2016/January 2017 period and there is evidence before me that the child wishes to join his mother and other family in Australia, and that this has been his wish for some time. The arrangement that the child live with the second respondent was only ever supposed to be temporary.

5. The father has not been involved in any way it seems with his children, the child and Ms M, who had previously been the subject of these proceedings but has since turned 18.

6. The father has not provided financially for the children and although the child has lived in Country E for the past 8 or 10 years it does not seem that the father has made any attempt to see him.

7. The mother remarried in 2008.  She and her husband, Mr Polson, have two children of their own aged 7 and 4 years old.  The child’s sister, Ms M, and his half siblings live in Australia with the mother and Mr Polson.

8. It seems that the father initially consented to the child migrating to Australia many years ago but there was some issue with the formalities.  On 24 October 2013 the religious court in Country E made an order for custody in favour of the mother.  I note that during that hearing the father was summoned but did not appear.  Apparently the order for custody obtained by the mother is insufficient for Australian immigration purposes to enable the mother to obtain a visa for the child. 

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

4. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes causing a child to suffer serious psychological harm.

5. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

6. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

7. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

8. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

   [3] Banks & Banks (2015) FLC 93-637

Discussion

1. The evidence before me establishes that the mother and her husband are well settled in Australia in appropriate accommodation.  Their children attend educational facilities and appear to be progressing well. The mother has appropriate plans in place for the child if he joins her in Australia. During the period that the child has lived with his maternal grandmother in Country E, the mother and her husband have paid for many of his costs including for schooling and he appears to be progressing well at school.

2. It is intended that when the child commences to live in Australia he will nevertheless keep in touch, as you would expect, with the maternal grandmother and it is the intention of the mother that the child and her family visit Country E from time to time to maintain relationships with not only the second respondent but other family members.

3. In all of the circumstances I am satisfied that it would be appropriate and in the child’ best interests to make the orders as set out above.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 March 2017.

Associate:

Date:  28 March 2017