Ramsgate and Wakefield

[2013] FCCA 1713

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMSGATE & WAKEFIELD [2013] FCCA 1713

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – best interests of the child – where respondent did not attend court for the hearing.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA

Federal Circuit Court Rules 2001, r.13.03C

Applicant: MS RAMSGATE

Respondent: MR WAKEFIELD

File Number: CRC 67 of 2013

Judgment of: Judge Scarlett

Hearing date: 18 September 2013

Date of Last Submission: 18 September 2013

Delivered at: Coffs Harbour

Delivered on: 18 September 2013

REPRESENTATION

Counsel for the Applicant: Ms Steiner

Solicitors for the Applicant: Burridge Harris & Flynn Solicitors

Respondent: No Appearance

ORDERS

1. The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2012.

2. The Child is to live with the Mother.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT COFFS HARBOUR

CRC 67 of 2013

MS RAMSGATE

Applicant

And

MR WAKEFIELD

Respondent

REASONS FOR JUDGMENT

1. This is an application by the Mother that she should have sole parental responsibility for the child X, who was born on (omitted) 2012.  She also seeks an order that X should live with her. 

2. The Father has not attended Court.  In fact, he has been consistent in not attending Court, and I note that he was called three times outside the court at 9:54am today and there was no appearance. I note from the Court file that the Father did not attend Court when the matter was before Judge Kemp on 15^th July, nor was there any appearance on his behalf.   

3. His Honour Judge Kemp made interim Orders providing that until further Order the child should live with the mother and she should have sole parental responsibility for him. His Honour also ordered the Father to file and serve a Response and an affidavit in support by 30 August 2013, but no documents of that nature have been received. The matter was listed for mention or undefended hearing on 18 September 2013 at 9:30 am.

4. In the light of the failure of the Father to appear or engage with the Court process in any way, I consider it appropriate to proceed with the hearing generally under Rule 13.03C.

5. I have read the affidavits by the Applicant and I have heard her oral evidence to the effect that she arranges time for the Father to spend meaningful time with X about once a week for about three or four hours in a convenient place such as a park. It seems to me that the Father is at least making a serious effort to spend regular time with his son. 

6. The Mother has given evidence that persuades the Court that she is well aware of the benefit to her child of having a meaningful relationship with each of his parents. She is adopting a supervisory role, which is appropriate, in my view, when we are dealing with a child who is still a couple of weeks short of his first birthday. The best interests of the child, of course, under section 60CA of the Family Law Act 1975 (Cth), is the paramount consideration when the Court is deciding whether to make a parenting order.

7. 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. The primary considerations are found in s.60CC(2). They are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. There are additional considerations in s.60CC(3). Not all of them are relevant, but those that are relevant have been considered. There is no evidence, of course, of the views of the child, but he is only a baby and is in no position to express any views.

9. I have considered the matters under section 60CC. There is certainly no evidence of any threat of harm, either physical or psychological, to this child. I am satisfied that the arrangements proposed, both in the orders sought and the informal arrangements that the parents have, together make up the best interests of this child.

10. I have also considered the presumption under s.61DA(1) of the Act that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it is not in the child’s best interests for the child’s parents to have equal shared parental responsibility.

11. In this case, where the Father has neither appeared nor filed any Response or affidavit, it does not appear to me to be in the child’s best interests for his parents to have equal shared parental responsibility for him. I propose to make an order that the Mother is to have sole parental responsibility for this little boy. 

12. I will also make an order that the child is to live with the Mother.    

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  24 October 2013