REAGAN & NEVIN
[2012] FMCAfam 1431
•14 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REAGAN & NEVIN | [2012] FMCAfam 1431 |
| FAMILY LAW – Children – parenting – parental responsibility – sole parental responsibility – best interests of the child – where presumption of equal shared parental responsibility does not apply – family violence – where family violence order in force. |
| Family Law Act 1975 (Cth), ss.4, 4AB, 60CA, 60CC, 61DA, 106A Marriage Act 1961 (Cth) Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss.5, 16 Federal Magistrates Court Rules 2001 Rr.13.03C, 16.05 |
| In the Marriage of JG and BG (1994) 18 Fam LR 255; FLC 92-515 |
| Applicant: | MS REAGAN |
| Respondent: | MR NEVIN |
| File Number: | SYC 5674 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 December 2012 |
| Date of Last Submission: | 14 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Saab |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor |
ORDERS
The Mother shall have sole parental responsibility for the child X born (omitted) 2012.
The child X is to live with the Mother.
The child X is to spend no time with the Respondent Father.
The Father shall complete and sign Form 1229 of the Department of Immigration and Citizenship within seven (7) days of the date of these Orders.
The Father shall complete and sign any other documents required to enable the child to obtain Permanent Residency in Australia within seven (7) days of the date of these Orders including any documents required for the child to obtain a valid Indian Passport.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court is appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
The Applicant must forward a sealed copy of these Orders to the Respondent at his last known address by ordinary pre-paid post within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Reagan & Nevin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5674 of 2012
| MS REAGAN |
Applicant
And
| MR NEVIN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of a little girl called X for orders that the child should live with her and that she should have sole parental responsibility for her. X is only eleven months old and lives with the Mother.
The Applicant asks the Court for an order that the child should spend no time with the Father. She also asks for him to sign various documents necessary for the child to obtain a Permanent Residence visa and a valid Indian Passport.
The Father has not appeared at Court and has played no part in the proceedings.
Background
The parties were both born in India. They were married in a religious ceremony in India on (omitted) 2010.
The Father left India for Australia in (omitted) 2010. The Mother also left India about (omitted) 2010 and arrived in Australia the following day. The parties commenced living together in Sydney on (omitted) 2011.
The parties were married in Sydney under the provisions of the Marriage Act 1961 on (omitted) 2011.
The parties’ daughter X was born on (omitted) 2012.
The parties separated on 21st March 2012 after an incident that occurred on 18th March. The Mother left the matrimonial home with the child and went to a Women’s Refuge.
On 22nd March 2012 the Mother attended the (omitted) Police Station and made a statement. She made a further statement to the Police on 29th March 2012.
On 13th April 2012 the Local Court of New South Wales made an Apprehended Domestic Violence Order under the provisions of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The Order is expressed to be in force for a period of twelve months.
The Applicant commenced these proceedings by filing an Application and a supporting affidavit on 21st September 2012. The Application was returnable on 5th November 2012.
On 5th November 2012 there was no appearance by or on behalf of the Respondent and the Application was adjourned to 20th November 2012. Again, there was no appearance by or on behalf of the Respondent. The Application was listed for undefended final hearing on 14th December 2012.
The Applicant attended the hearing accompanied by her solicitor. There was no appearance by or on behalf of the Respondent.
Evidence
The Applicant relied on her affidavit affirmed on 6th September 2012. She also relied on two affidavits, one by Donna Therese Smith, solicitor, sworn 19th November 2012 and the other by Rania Saab, solicitor, sworn 6th December 2012, setting out the steps that they had taken to inform the Respondent of the directions made by the Court and the Court dates.
The Applicant gave oral evidence in which she affirmed the contents of her affidavit and advised that the Respondent stopped paying child support once he received the Application and affidavit.
The Relevant Law
Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, 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 60CC(2) and (3) of the Act.
The matters in subsection 60CC(2) are the primary considerations and concern:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Greater weight must be given to the consideration about the need to protect the child from harm set out in paragraph (2)(b) (see subsection 60CA(2A).
Family violence is also referred to in the additional considerations set out in s.60CC(3). Paragraph (3)(j) refers to “any family violence involving the child or a member of the child’s family”. Paragraph (3)(k) refers to family violence orders.
The term “family violence” is defined by subsection 4AB of the Act:
4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
The term “family violence order” is defined by s.4 of the Act:
family violence order means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
An Apprehended Domestic Violence Order made by the Local Court of New South Wales under the provisions of s.16 of the Crimes (Domestic and Personal Violence) Act 2007 is a family violence order under s.4 of the Family Law Act.
Subsection 61DA(1) of the Family Law Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, under subsection 61DA(2) of the Act, the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child; or
b)family violence.
Conclusions
All of the matters in sections 60CA, 60CC and 61DA have been considered.
It is clear that the issue of family violence is of particular significance in this case, to the extent that it overshadows other considerations (see s.60CC(2A)). There is a family violence Order in place and the Applicant has provided not only a copy of the Apprehended Domestic Violence Order made by the Local Court but copies of the Applicant’s statements to (omitted) Police and the Application made to the Local Court on 23rd March 2012.
The Apprehended Domestic Violence Order is in force for 12 months and restricts the Respondent (described in the Order as “the defendant”) from:
a)assaulting, molesting, harassing, threatening or otherwise interfering with the Applicant;
b)engaging in any other conduct that intimidates the Applicant or a person with whom she has a domestic relationship;
c)stalking the Applicant or a person with she has a domestic relationship;
d)entering the premises at which she resides or works; or
e)approaching or contacting the Applicant except through his legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975.
The term “domestic relationship” is defined by s.5 of the Crimes (Domestic and Personal Violence) Act 2007 in wide terms, including:
For the purposes of this Act, a person has a “domestic relationship” with another person if the person:
(d)is living or has lived in the same household as the other person, or…
(g) is or has been a relative of the other person…
Notwithstanding the fact that the child X is not specifically mentioned as a Protected Person by the Apprehended Domestic Violence Order, the child is included as “a person with whom the protected person has a domestic relationship” in Order 1(a) to (c) of the Apprehended Domestic Violence Order.
The Applicant’s affidavit contains examples of violence towards her by the Respondent, including:
a)pushing and shoving her, pulling her hair, grabbing and squeezing her arm;[1]
[1] Affidavit of Ms Reagan 6.6.2012 at paragraph [22]
b)punching the doors and walls repeatedly in anger;[2]
c)hitting her with a belt twice on her right thigh and calf in about February 2011;[3]
d)pulling her hair and grabbing her by the throat;[4]
e)slapping her across the face;[5]
f)tearing her nightdress and exposing her body;[6]
g)threatening to “bash” her;[7]
h)threatening to harm the child if the Applicant left him;[8]
i)threatening to drop the child on the floor;[9]
j)threatening to kill the child;[10]
k)on or about 7th March 2012 squeezing her face so that her gums began to bleed.[11]
[2] Ibid at [23]
[3] Affidavit of Ms Reagan 6.9.2012 at [27] & [31]
[4] Ibid at [32]
[5] Ibid at [35]
[6] Ibid at [41]
[7] Ibid at [46]
[8] Ibid at [50]
[9] Ibid at [52]
[10] Ibid at [55]
[11] Ibid at [58]-[60], [61]
The Applicant’s evidence, unchallenged by the Respondent, is sufficient to allow the Court to find that there are reasonable grounds to believe that the Respondent has engaged in abuse of the Applicant and family violence. Thus, the presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility for her does not apply.
An order will be made that the mother is to have sole parental responsibility for the child.
The evidence, unchallenged by the Respondent, is also such that it permits the Court to find that there is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse or neglect or family violence. It is well established that family violence is directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children (see In the Marriage of JG and BG[12]).
[12] (1994) 18 Fam LR 255; FLC92-515
In this case, I am satisfied that the Respondent should not spend time with the child on the basis of the evidence before the Court.
The Respondent did not attend Court on any occasion, nor did he seek to file any documents. As there was satisfactory evidence to show that the Respondent was aware that orders may well be made in his absence if he did not appear, a decision was made to proceed with the hearing generally under the provisions of Rule 13.03C. If the Respondent wishes to apply to the Court to vary or set aside any of the Orders made in this proceeding, he will need to make the appropriate application under Rule 16.05.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 December 2012
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