RAWLINGS & HAWES

[2015] FCCA 2118

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAWLINGS & HAWES [2015] FCCA 2118

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – sole parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA

Applicant: MR RAWLINGS

Respondent: MS HAWES

File Number: SYC 2582 of 2015

Judgment of: Judge Scarlett

Hearing date: 5 August 2015

Date of Last Submission: 5 August 2015

Delivered at: Sydney

Delivered on: 5 August 2015

REPRESENTATION

Solicitor for the Applicant: Mr McLaughlin

Solicitors for the Applicant: McLaughlin & Riordan

Respondent: No Appearance

ORDERS

UNTIL FURTHER ORDER

1. The Father Mr Rawlings is to have sole parental responsibility in relation to the child, [X] born on [omitted] 2011.

2. The child [X] born [omitted] 2011 is to live with the Applicant Father.

3. The child [X] is to spend time with his mother in Australia at times agreed between the parties and supervised by the Applicant Father or by Ms C, the maternal grandmother.

4. The child [X] is to spend time with Ms C as agreed between the Father and Ms C.

5. Until further order the Respondent Mother, Ms Hawes, also known as Ms Hawes, born [omitted] 1983, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X], a male born [omitted] 2011, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

6. Until further order the name of [X], a male born [omitted] 2011, be placed upon the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

7. Unless the Court otherwise orders, the name of the said child [X], a male born [omitted] 2011, on the Watch List shall lapse 12 months from the date that the child’s name was placed on the said Watch List, which is the date of this order.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 2582 of 2015

MR RAWLINGS

Applicant

And

MS HAWES

Respondent

REASONS FOR JUDGMENT

1. The Application before the Court is a parenting application by the Father of a little boy called [X] who was born on [omitted] 2011.  [X] has only recently attained his fourth birthday.  [X] is physically living with his father. 

2. The Respondent Mother has not attended Court today and, indeed, she has not attended Court on a previous occasion.  She is, to the best of the Applicant’s belief, out of the country.  It appears that she may well be somewhere in South America.  She has formed another relationship, and much to the distress of the Applicant Father, the Mother and her new partner appear to subscribe to somewhat strange beliefs, which do not appear to the Father to be conducive to the best interests of young [X].

3. I have heard oral evidence from the Father today and his evidence impressed me as that of a sincere man whose care for his child is manifest.  It is also clear from his evidence that he understands the importance of maintaining [X]’s relationship with his mother, notwithstanding her espousal of these somewhat strange beliefs.  In his affidavit of 29^th July, he says at paragraph 11:

   I would never deny Ms Hawes the right to spend time with [X].  However, it is my wish that her visits with [X] be supervised by a professional person or organisation.  Ms Hawes and her husband believe that their lives are dictated by beings from another planet aided and assisted by angels.  It would be against my wishes if [X] were to spend any time with Ms Hawes’s new husband as he is a person of strange habits and philosophies.

Applications for parenting orders

1. The Court must consider when making parenting orders the matters set out in Part VII of the Family Law Act 1975 (Cth). That includes:

   a)Section 60B of the Act which sets out the objects and principles of Part VII;

   b)Section 60CA, which provides that a Court, when making parenting orders, be they interim orders or final orders, must regard the best interests of the child as the paramount consideration;

   c)Section CC of the Act, which sets out the way in which the Court ascertains what is in a child’s best interests, especially bearing in mind the primary considerations set out in subsection (2) of section 60CC and the additional considerations set out in subsection (3).

2. The Court must also consider when making parenting orders the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility, as is set out in subsection (1) of section 61DA, although subsections (2) and (4) set out circumstances whereby the Court would not apply that presumption and I will return to that in just a moment.

3. If the Court makes an order that a child’s parents should have equal shared parental responsibility for the child, the Court then must, under section 65DAA, consider whether it is in the child’s best interest and reasonably practicable for the child to spend equal time with each parent.

The best interests of the child

1. Whilst subsection (3) of section 61DA provides that in interim proceedings it would normally be the case that there would be equal shared parental responsibility, I am not of the view that equal shared parental responsibility is in this little boy’s best interests.

2. The Mother is not living in Australia.  She is not playing an active or a day‑to‑day role in this child’s life.  I have evidence, albeit one-sided, that the Mother espouses unusual philosophies and I have heard the Father’s evidence about his concern for his child’s welfare in being exposed to such things.

3. There is no evidence of violence or neglect towards the child, but I am satisfied that it is not in [X]’s best interests for the Mother to have parental responsibility at this stage. In my view, the Father should have sole parental responsibility for this little boy, certainly until further order, and I am mindful of the fact that under section 61DB of the Family Law Act 1975, the Court, when making final parenting orders, must disregard the allocation of parental responsibility in making any interim order.

4. The requirements of subsection (2) of section 60CC require the Court to consider the benefit to the child of having a meaningful relationship with each of his parents. He clearly, on the evidence before me, has a meaningful relationship with his father and his father, notwithstanding with concern about the Mother’s unusual beliefs, is anxious to promote a relationship between [X] and his mother. That must be in the child’s best interests. The Court must, however, be concerned about the possibility of psychological harm to the child and the father, in his evidence, has been quite specific about that.

5. It is noteworthy, and to the Father’s credit, that this child is spending regular time with his maternal grandmother.  The Father sets out in his affidavit that [X] resides with him at [L] and currently stays overnight with his maternal grandmother at [M] three nights a week to facilitate his attending preschool at [M].  The Father and the maternal grandmother have a friendly and amicable relationship and the child has his own room in both his grandmother’s house and in the Father’s house.  Clearly, the Father is making arrangements with the assistance of the maternal grandmother to provide a safe and nurturing environment for this little boy.

6. The orders that are sought to be made on an interim basis, that is, until further order, appear to me to be in this child’s best interests.  I will make the orders until further order.

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

Associate: 

Date:  6 August 2015