Rubira and Depalma

[2019] FCCA 507

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUBIRA & DEPALMA [2019] FCCA 507

Catchwords:
FAMILY LAW – Undefended parenting orders.

Legislation:

Australian Passports Act 2005
Federal Circuit Court Rules 2001

Applicant: MR RUBIRA

Respondent: MS DEPALMA

File Number: MLC 5437 of 2018

Judgment of: Judge Harland

Hearing date: 6 February 2019

Date of Last Submission: 6 February 2019

Delivered at: Melbourne

Delivered on: 6 February 2019

REPRESENTATION

No appearance by the Applicant

The Respondent appeared in person

ORDERS

1. That the Mother have sole parental responsibility for the child [X] born … 2016.

2. The Mother will keep the Father informed of the daughter’s health and education.

3. Child to live with the Mother.

4. Child to spend time with Father at a supervised contact centre or other supervised service.

5. The mother is permitted to obtain the child’s passport pursuant to section 11 of the Australian Passports Act2005 without the father’s consent.

AND THE COURT NOTES THAT:

A.The respondent Father has liberty to apply to set aside these orders pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 provided that:

(a)HE makes such an application within 28 days of service upon him of these orders; and

(b)HE files an affidavit setting out the basis of the application and explaining his nonattendance at Court today.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5437 of 2018

MR RUBIRA

Applicant

And

MS DEPALMA

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application that was filed by the applicant father on 18 May 2018, seeking parenting orders with respect to the child of the relationship, [X], born on … 2016.  In the affidavit filed with his initiating application, he says that the parties separated on 19 September 2017, and says that until recently he had had regular Skype calls with [X]. He also set out periods of time he had spent with [X], supervised by the mother, mainly at various swimming lessons. He makes other complaints anticipating what he thinks the mother could say in her responding documents.

3. The mother filed a response on 18 June 2018 seeking orders that the father spend time with [X] at a supervised contact centre. The mother deposes to the father’s family violence, which she says escalated prior to separation, and says she left home with [X] and stayed in a refuge through Safe Steps. She gives details of several incidents in 2016 and 2017 although I will not detail them here. She says she was the primary carer of [X] and took 12 months maternity leave to look after her fulltime. She also refers to incidents where the father would lose patience with [X], and she refers to [X] having nightmares and being traumatised by the father’s behaviour.

4. The matter first came before the Family Court on 26 June 2018, and on that occasion orders were made by consent for the father to have supervised time each Thursday, supervised by the Family Contact Services, with the father to pay the cost of those services.  The father was also directed to file an amended initiating application as his initial one did not set out any final orders sought.  The matter was transferred to this court with a notation that the father was consenting to the order for supervision without admitting that there was a need for that. 

5. At the request of the parties I vacated the next court date that was due on 7 August 2018 in chambers on 1 August 2018, and the matter next came before me on 13 November 2018.  The father did not attend on that occasion.  The father has not filed any further material since then.  On the last occasion I made orders setting out the final orders that the mother proposed to seek, and put the Applicant on notice that if he did not appear in person on the next occasion then those orders would be made on a final basis.

6. The father has not attended court today again. The mother has tendered two emails from the father dated 11 January 2019 and 23 January 2019 respectively.  What is concerning about those affidavits is that the father talks about missing his daughter and making attempts to see her, and accusing the mother of isolating him from her, but then also says that if it were to go through the courts she would discredit him, and he has decided not to pursue legal action. 

7. Of course, he is the one who commenced these proceedings initially, yet has taken no further action. The father has not spent any supervised time with [X] in accordance with the consent orders made on 26 June 2018. If he had the court would have the benefit of a report about his time with [X]. It raises questions as to whether the father is not pursuing it because he does not want to come under scrutiny.

8. I am satisfied in the circumstances that the orders the mother seeks are in [X]’s best interests, and I propose to make the orders set out in the previous orders on a final basis. 

9. The mother also seeks an order that she be permitted to obtain a passport for [X] without the father’s consent. She informs the Court that [X] has a current passport. In those circumstances, I will make an order permitting her to obtain a passport pursuant to s.11 of the Australian Passports Act 2005 without the father’s consent.

10. I will also make an order pursuant to rule 16.05 that if the father seeks to set aside these orders, he must file an application in a case and a supporting affidavit within 28 days.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  4 March 2019