Shabul and Moylan and Anor

[2011] FamCA 1074

FAMILY COURT OF AUSTRALIA

SHABUL & MOYLAN & ANOR [2011] FamCA 1074

FAMILY LAW – CHILDREN – Interim arrangements – applicant is non-biological carer of child – child currently lives with applicant – child’s mother is living in another State – no indication of when mother will return – child’s father recently completed detoxification course – child’s father has made no attempt to spend time with the child – relevant Family Law Act 1975 (Cth) s 60CC factors considered – Aboriginal culture and kinship obligations – equal shared parental responsibility allocated to the applicant and the child’s mother – child will live with the applicant

FAMILY LAW – PRACTICE AND PROCEDURE – Service – substituted service.

APPLICANT: Mr Shabul

1st RESPONDENT: Ms Moylan

2nd RESPONDENT: Mr Lomard

FILE NUMBER: CAC 1660 of 2010

DATE DELIVERED: 13 December 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 13 December 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr A. Bak, Farrar Gesini & Dunn

SOLICITOR FOR THE 1ST RESPONDENT: No appearance by or on behalf of Ms Moylan

SOLICITOR FOR THE 2ND RESPONDENT: No appearance by or on behalf of Mr Lomard

Orders

1. The applicant effect service of the documents, being the application and the affidavit in support as follows:

   (a)       On the first respondent by informing her over the telephone the next time he receives a telephone call from her and inviting her to telephone the Registry of the Family Court at Canberra or provide an address to which copies of documents can be sent.

   (b)       On the second respondent by sending a copy of the documents, via Registered Post, to the address:

   Mr Lomard

   
   

   B Street, Suburb C, ACT  2612

2. Until further order the applicant, Mr Shabul, and the first respondent, Ms Moylan, have equal shared parental responsibility for D, born on .... 

3. D will live with the applicant, Mr Shabul.

4. Mr Bak, on behalf of Mr Shabul, was advised that it would be necessary for some information to be supplied to enable the Court to comply with the provisions of s 61F in relation to the kinship obligations and child rearing practices of the child’s Aboriginal culture and that unless the circumstances otherwise change, in relation to s 65G if the Court is to make an order by consent in favour of Mr Shabul then I would propose to proceed pursuant to s 65G(2)(b). 

5. The matter is otherwise adjourned to 23 February 2012 at 9am for further determination.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 1660 of 2010

MR SHABUL

Applicant

And

MS MOYLAN and MR LOMARD

Respondent

REASONS FOR JUDGMENT  

1. In this matter, the subject child D, born this year. The child’s mother is Ms Moylan, the first respondent and the child’s father is Mr Lomard, the second respondent. The applicant is Mr Shabul. Mr Shabul and Ms Moylan have one child together. That child is currently in Mr Shabul’s care. The subject child, D, is also currently in Mr Shabul’s as is another child of Ms Moylan’s.  On this occasion, in Court is Mr Shabul and the little boy, the child.  

2. In the circumstances set out in the affidavit filed on 6 September 2011, the child came to live with Mr Shabul, and at the moment, the child’s father has apparently just completed a detoxification course but has not contacted Mr Shabul again to see the child in recent times.  The child’s mother went to Western Australia, leaving the child with Mr Shabul, and although she said she would be back in two weeks, she has not yet returned, nor is there any indication when she will return.

3. The circumstances are such that an order for equal shared parental responsibility, as is sought on an interim basis, is appropriate on an interim basis.  the child should spend time with his mother, but that is not practicable at this point.  He should, however, spend his time with Mr Shabul, who has become, for all practical purposes at the moment, his father. 

4. The orders sought by the applicant include service on the respondents in different ways, and the ways suggested are entirely appropriate. 

5. Any order that I make must be in the best interests of the child. 

6. In this matter, I take account of the need to protect him and also the need ultimately for him to have a relationship with each of his parents if that is possible.

7. When his parents, sadly, do not seem to want to spend time with him at the moment or to share in the responsibilities for him, there is nothing more that can be done than to give him to someone who has proved in the past that he is an appropriate and proper parent for these children, not only his own, but also others. 

8. I am satisfied that physical and other circumstances relating to the child can be satisfactorily provided by Mr Shabul.  I am satisfied that he will do what he can to encourage the child to have a relationship with each of his parents in due course.  I am satisfied that he has the capacity to provide for the child’s intellectual and educational responsibilities in due course.

9. The orders I make are interim orders, and I note that there will be an opportunity for the parents to participate in the proceedings in the future if they wish to do so.  There are no issues relating to family violence or family violence orders which I need to take into account as relevant to these proceedings.

ORDERS DELIVERED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 13 December 2011.

Associate:

Date:  28 March 2012