SEREVI & SEREVI

[2015] FCCA 555

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEREVI & SEREVI [2015] FCCA 555

Catchwords:
FAMILY LAW – Children – parenting orders – where respondent did not attend Court – best interests of the child – where father resides in Fiji and has had no contact with the child – parental responsibility – sole parental responsibility.

Legislation:

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

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Applicant: MS SEREVI

Respondent: MR SEREVI

File Number: SYC 5469 of 2014

Judgment of: Judge Scarlett

Hearing date: 2 March 2015

Date of Last Submission: 2 March 2015

Delivered at: Sydney

Delivered on: 2 March 2015

REPRESENTATION

Solicitor for the Applicant: Mr Long

Solicitors for the Applicant: Clinch Long Letherbarrow

Respondent: No appearance

ORDERS

1. The Orders made on 1 December 2014 are vacated.

2. The Applicant Mother is to have sole parental responsibility for the child [X] born on [omitted] 2013.

3. The child [X] is to live with the Mother.

4. If the Father wishes to make contact with the Mother or the child [X], he is to make contact through the Mother’s legal representatives.

5. The Father is restrained by injunction from removing the child [X] born [omitted] 2013 from the Commonwealth of Australia.

6. As provided by s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5469 of 2014

MS SEREVI

Applicant

And

MR SEREVI

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Mother of a little boy called [X] who is only sixteen months old. [X] was born on [omitted] 2013 and lives with his mother in Australia.

2. The Father is a citizen of Fiji and he lives in Fiji. He has not filed any documents in these proceedings and has not attended Court.

Background

1. The Mother was born on [omitted] 1972. She is an Australian citizen and lives in Australia.

2. The Father was born on [omitted] 1981. He lives and works in Fiji.

3. The Mother met the Father in June 2011 when she was holidaying in Fiji. She returned to Australia but again travelled to Fiji in November of that year. They formed a relationship and remained in contact when the Mother returned to Australia.

4. The parties were married in Fiji on [omitted] 2013. By that time, the Mother was pregnant, so she returned to Australia in order to obtain the best medical care possible during her pregnancy.[1]

   [1] Affidavit of  Ms Serevi 18.2.2015 at paragraph [19]

5. The child [X] was born in Australia on [omitted] 2013.

6. The Father has never travelled to Australia and has never met his child.[2]

   [2] Ibid at [26]

7. The Mother deposed that she and the Father separated on a final basis on 26^th August 2014.[3]

   [3] Ibid at [37]

Procedural History

1. The Mother filed an application for parenting orders on 3^rd September 2014. The application was returnable on 1^st December 2014. The Mother attended Court accompanied by her solicitor. There was no appearance by or on behalf of the Father.

2. Interim Orders were made restraining the Father from removing the child from the Commonwealth of Australia. The parties were directed to attend a Child Dispute Conference with a Family Consultant on 7^th January 2015.

3. The Mother attended the Child Dispute Conference in person and the Father attended by telephone.

4. On 3^rd February 2015 the Father was directed to file and serve a Response and a supporting affidavit by 20^th February 2015. The Mother’s application was listed for an undefended final hearing on 2^nd March 2015.

5. The Mother attended Court on 2^nd March 2015 with her solicitor, Mr Long. The Father did not file any documents and he did not attend Court. There was no appearance on his behalf.

6. In light of the Father’s default of appearance and failure to file any documents, a decision was made to proceed with the hearing generally under the provisions of Rule 13.03C.

7. The Mother gave short oral evidence.

Applications for Parenting Orders

1. When the Court is hearing an Application for parenting orders, it must consider the matters set out in sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth). All of those matters have been considered, insofar as they are relevant.

Parental Responsibility

1. Whilst there is a presumption in 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, in this case the Father has had no contact at all with the child for the entirety of his life. I am satisfied that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him.

2. I will order that the Mother is to have sole parental responsibility for the child [X].

The Best Interests of the Child

1. The Court must always regard the best interests of the child as the paramount consideration. I am satisfied that it is in this little boy’s best interests to live with his mother. The Father will be restrained by injunction from removing the child from Australia. If he wishes to have any contact with the child in the future, he must contact the Mother’s solicitors.    

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 12 March 2015