Shevan & Hollie
[2023] FedCFamC1F 1006
•20 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shevan & Hollie [2023] FedCFamC1F 1006
File number: SYC 3368 of 2023 Judgment of: CHRISTIE J Date of judgment: 20 November 2023 Catchwords: FAMILY LAW – PARENTING ORDERS – Undefended hearing – Where the respondent has been notified of proceedings and has not engaged - Where the subject child was born in the United Kingdom – Where the mother fled with the child from the United Kingdom and has not informed the putative father - Where the putative father is not listed on the birth certificate - Where the father has discovered the mother is now living in Australia – Where the mother is living in Western Australia – Natural forum for proceedings – Paternity testing orders – Arrest warrant declined – Airport Watch List orders for child and parent – Order for the respondent to pay the applicant’s costs. Legislation: Family Law Act 1975 (Cth) ss 45, 69E, 69W, 114, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 9.05
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 20 November 2023 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Lander & Rogers Respondent: No appearance ORDERS
SYC 3368 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHEVAN
ApplicantAND: MS HOLLIE
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
Airport watch list
1.Until further order, the Respondent Mother, MS HOLLIE born 2002, her servants and/or agents are restrained, irrespective of authenticated consent as contemplated in Part VII of the Act, from removing or attempting to remove or causing or permitting the removal of the child, X, born 2022 (the Child), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the Child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist for the said period, or until the Court orders its removal, whichever occurs first.
2.Until further order, pursuant to section 114(3) of the Family Law Act 1975 (Cth) the Respondent Mother, MS HOLLIE born 2002 (Mother) be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED, that the Australian Federal Police give effect to this order by placing the name of MS HOLLIE born 2002, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain MS HOLLIE's name on the Watchlist pending the Mother's compliance with these Orders.
Parentage testing
3.Pursuant to section 69W(1) of the Act, the parties do all acts and things necessary to participate in a parenting testing procedure facilitated by DNA Labs, in relation to the parentage of the Child.
4.For the purpose of Order 3 above:
(a)Within 14 days from the date of these Orders, the Applicant Father do all acts and things to submit an Application for DNA Testing to DNA Labs;
(b)The Respondent Mother do all acts and things necessary to submit to parentage testing, and to make the Child available to submit to parentage testing, at a DNA Labs collection centre located at:
(i)B Collection Centre - C Street, Suburb D WA; or
(ii)E Collection Centre- F Street & G Street, Suburb H WA;
within fourteen (14) days of receiving by registered post and/or email the information pack from DNA Labs to make an appointment.
(c)The Applicant Father do all acts and things necessary to submit to parentage testing at his nominated international doctor, within fourteen (14) days of the date of these Orders;
(d)The Applicant Father be responsible for the Case Fee associated with engaging DNA Labs to undertake testing; and
(e)In the event that either party makes an appointment with DNA Labs for parentage testing and fails to attend such appointment, or cancels the parentage testing at any stage either directly or by failing to engage with DNA Labs, that the party responsible for such cancellation be responsible for any associated cancellation fee.
5.Within seven (7) days of receiving results of parentage testing from DNA Labs confirming that the Applicant is the biological father of the Child, the Respondent Mother is to provide the following particulars to the Applicant Father:
(a)The current residential address at which the Child resides;
(b)A contact mobile telephone number with which the Respondent Father may contact the Child in accordance with these orders;
(c)A contact email address through which the parties may communicate in relation to the Child.
Interim Parenting Orders
6.Upon receiving results of parentage testing confirming that the Applicant is the biological father of the Child and until further order, the Applicant Father be permitted to speak with the Child by telephone/facetime (or similar) communications, and for this purpose:
(a)The Respondent Mother, or a nominee on her behalf, facilitate contact between the Applicant Father and the Child at the following times:
(i)From 3:00pm to 3:30pm AWST time (being 7:00am to 7:30amGMT time) each Monday, Wednesday, Friday and Sunday; and
(ii)At all other times as agreed to between the parties;
by holding the phone in front of the Child with all audio and visual capabilities necessary for the Applicant Father and the Child to communicate visually and verbally as the communication requires, switched on and unobstructed.
Injunction
7.Until further order, the Respondent Mother be restrained from relocating the Child's residence from the Perth metropolitan area.
Transfer
8.The proceedings are, on the oral application of the applicant, transferred to the Family Court of Western Australia at Perth.
Costs
9.The Respondent pay to the Applicant the sum of $2,817.70.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for parenting and other orders in respect of a child x born 2022 which is being dealt with undefended.
The application was filed by Mr Shevan the putative father of the child and the respondent is Ms Hollie, the mother of the child.
The application has not been served on the respondent although there have been a number of methods utilised to bring the application to the attention of the respondent consistent with an order for substituted service which was made on 29 August 2023.
BACKGROUND
X (“the child”) was born in 2022 in Region J in the United Kingdom.
The applicant and the respondent were in a relationship although they were not cohabiting at the time of birth of the child.
The applicant is not listed on the child’s birth certificate.
Both parties are British citizens and both the parties were living in Region J at the time of the birth of the child.
The applicant was present on the day that the child was born at the hospital and visited the child in hospital and had contact on a handful of occasions after the child was released from hospital.
The applicant’s affidavit material sets out that there were text messages between the applicant and respondent that acknowledged paternity. Those include the following:
(a)“[This] is your last month before officially being a dad”;
(b)“Your son just said he wants a sundae from [K Shop] sometime soon”; and
(c)In response to a photo of the baby: “Is he not the exact same as [T]”.
In addition, the applicant gives evidence of preparing for the arrival of the child by purchasing necessary items and discussing names.
Late 2022 was the last occasion on which the applicant had any contact with the child. The respondent left Region J in early 2023 and proceedings were commenced by the applicant in the United Kingdom almost immediately. The matter came before the Court in Region J and was before the Court in early 2023 on several occasions. Orders have been made by the Region J court requiring disclosure of an address for the respondent.
The applicant contends that the respondent has been residing with her mother, Ms L (“the maternal grandmother”), both in the United Kingdom and later in Australia. An order was made requiring the maternal grandmother to disclose the mother’s address and the father through his affidavit material provides evidence which indicates that it is likely that the maternal grandmother provided a false address.
An arrest warrant dated early 2023 was issued for the arrest of the maternal grandmother by the Region J court.
The applicant has obtained legal advice and because he is not a person with parental responsibility and not listed on the child’s birth certificate he cannot make an application pursuant to the provisions of the Hague Convention for return of the child to the United Kingdom.
In April 2023 the applicant performed a search and found that the maternal grandmother had been registered as a health professional in Australia in early 2023. For reasons outlined in the applicant’s affidavit, he understood that the mother had likely moved to Australia, he therefore commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) which proceedings have been transferred to this Court.
It seems apparent from the mother’s text communication with the applicant that she intends to keep the location of the child secret. In late 2022 she sent the following message: “You do not have parental rights so other than DNA there is no 50/50 so UNFORTUANTLEY i do make 100% of the decisions regarding [X’s] well-being and care”. In early 2023 the father sent the mother a text message indicating that he had been informed that she was in Country R and she responded “Catch me if you can”.
Apart from the fact that the mother has taken the child from the jurisdiction and is not informing the applicant of the child’s whereabouts, the applicant only raises only one issue in respect of harm to the child which arises out of conversations he had with the respondent when the two were in the United Kingdom. The applicant says that the respondent told him that she was cautious not to allow her mother to hold the child when an infant if her mother had been drinking because of a concern that the combination of alcohol and medication may cause her mother to be inattentive to the needs of a small child.
The applicant seeks orders set out in a Minute of Order which became Exhibit 1 in the proceedings:
Airport Watchlist Order
1. That until further order, the Respondent Mother, [MS HOLLIE] born […] 2002 , their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Act, from removing or attempting to remove or causing or permitting the removal of the child, [X], born […] 2022 (the Child), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the Child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist for the said period, or until the Court orders its removal, whichever occurs first.
2. That pursuant to section 114(3) of the Family Law Act 1975 (Cth) the Respondent Mother, [MS HOLLIE] born […] 2002 (Mother) be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED, that the Australian Federal Police give effect to this order by placing the name of [MS HOLLIE] born […] 2002, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain [MS HOLLIE's] name on the Watchlist pending the Mother's compliance of these Orders.
Parentage Testing
3. That pursuant to section 69W(1) of the Act, the parties do all acts and things necessary to participate in a parenting testing procedure facilitated by DNA Labs, in relation to the parentage of the Child.
4. For the purpose of Order 3 above:
4.1 Within 14 days from the date of these Orders, the Applicant Father do all acts and things to submit an Application for DNA Testing to DNA Labs;
4.2 The Respondent Mother do all acts and things necessary to submit to parentage testing, and to make the Child available to submit to parentage testing, at a DNA Labs collection centre located at:
4.2.1 [B Collection Centre] - [C Street], [Suburb D] WA […]; or
4.2.2 [E Collection Centre] – [F Street] & [G Street], [Suburb H] WA […]; within fourteen (14) days of receiving by registered post and/or email the information pack from DNA Labs to make an appointment.
4.3 The Applicant Father do all acts and things necessary to submit to parentage testing at his nominated international doctor, within fourteen (14) days of the date of these Orders;
4.4 The Applicant Father be responsible for the Case Fee associated with engaging DNA Labs to undertake testing; and
4.5 In the event that either party makes an appointment with DNA Labs for parentage testing and fails to attend such appointment, or cancels the parentage testing at any stage either directly or by failing to engage with DNA Labs, that the party responsible for such cancellation be responsible for any associated cancellation fee.
5. That in the event the Mother fails to comply with Orders 3 and/or 4 herein, pursuant to section 65Q of the Act, an Arrest Warrant is issued for the Mother and that the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:
5.1 Stop and search any vehicle, vessel or aircraft and search premises or place for the purpose of finding the Mother and the Child; and
5.2 Deliver the Mother to either of the DNA Labs collection centres set out at Order 5.2 so the Mother and the Child can submit to the parentage testing.
Child's Details
6. Within seven (7) days of receiving results of parentage testing from DNA Labs confirming that the Applicant is the biological father of the Child in accordance with Orders 3 to 4 above, the Respondent Mother is to provide the following particulars to the Applicant Father:
6.1 The current residential address at which the Child resides;
6.2A contact mobile telephone number with which the Respondent Father may contact the Child in accordance with Order 7 below;
6.3A contact email address through which the parties may communicate in relation to the Child;
6.4Details of the day-to-daycare of the Child, including but not limited to:
6.4.1The full name of each person with whom the Child resides; and
6.4.2The full name of any person or service providing care for the Child other than the Respondent Mother including but not limited today-care services, hired babysitters, family or friends, together with particulars as to the frequency of such care, when and where it occurs; and
6.5The name and contact details for all medical practitioners upon which the Child attends or has attended.
Interim Parenting Orders
7.That, upon receiving results of parentage testing confirming that the Applicant is the biological father of the Child in accordance with Orders 3 to 4 above and until further order, the Applicant Father be permitted to speak with the Child by telephone/facetime (or similar) communications, and for this purpose:
7.1The Respondent Mother, or a nominee on her behalf, facilitate contact between the Applicant Father and the Child at the following times:
7.1.1From 3:00pm to 3:30pm AWST time (being 7:00am to 7:30am GMT time) each Monday, Wednesday, Friday and Sunday; and
7.1.2 At all other times as agreed to between the parties;
by holding the phone in front of the Child with all audio and visual capabilities necessary for the Applicant Father and the Child to communicate visually and verbally as the communication requires, switched on and unobstructed.
Injunction
8.That until further order, the Respondent Mother be restrained from relocating the Child's residence from the Perth metropolitan area.
Costs
9. That the Applicant Father's costs be reserved.
As a consequence of the filing of the application the Airport Watch List was engaged but the applicant now seeks, for abundant caution, orders which contain the full name and date of birth of the mother and the child.
The applicant seeks interim parenting orders. He also seeks orders for electronic communication and parentage testing and that the mother be restrained from relocating the child’s place of residence.
CONSIDERATION
The first consideration is whether the Court has jurisdiction to hear and determine these proceedings.
Section 69E of the Family Law Act 1975 (Cth) (“the Act”) provides:
69E Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
relevant day, in relation to proceedings, means:
(a)if the application instituting the proceedings is filed in a court – the day on which the application is filed; or
(b)in any other case—the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
The applicant cannot himself satisfy a jurisdictional requirement. I am comfortably satisfied that s 69E(1)(c) of the Act is engaged as the mother was present in Australia on 15 May 2023 being the date on which the proceedings were instituted. The mother filled out an incoming passenger card which is attached to the affidavit of Ms M. That document bears the date April 2022. In the context of the evidence as a whole I accept that this is likely to have been an error and should read April 2023.
In any event, in a letter for Ms N, Deputy Tipstaff, Royal Courts of Justice dated 1 August 2023 it says:
Further to the location order issued by the Honourable Mrs Justice Knowles [in] March 2023 I have received information that the respondent mother is currently residing at [O Street], [Suburb P], [City Q], Perth, Australia. WA […]. As from [early] 2023.
Having established that there is jurisdiction the next step is to consider the appropriateness of proceeding undefended.
The father’s evidence demonstrates compliance with the order for substituted service and the message from the mother’s sister is confirmatory that the proceedings have been brought to the mother’s attention. The mother is not required to participate but if she fails to participate then orders can be made in her absence without her having the opportunity to present evidence. Given the circumstances of the removal from the United Kingdom and the mother’s failure to engage I find it is appropriate to hear the application in her absence.
I now need to consider the various orders sought.
Airport Watch List
If the mother arrived in April 2023, she represented to the Department of Home Affairs that the stay was for three months. There is no evidence that she has left Australia. Her text message to the father “Catch me if you can” is sufficient to ground the injunctive relief sought. I will make the Airport Watch List orders in respect of both parent and child and the order which restrains the mother from changing the place of residence from outside the Perth area.
Parentage testing
An order for parentage testing is not a “parenting order”. An order for parentage testing can be made where the parentage of a child is an issue in the proceedings.
In this case there was an exchange of text messages between the parties relating to decision making responsibility, which is set out above.
That interchange was an indication by the mother to the father that while she considered he was a parent she had declined to include him on the child’s birth certificate to preserve her sole decision making power at law.
The failure to place the putative father on the birth certificate has had an impact on the relief he has been able to seek and secure to date.
On one level, there does not seem to be any controversy about the child’s parentage. However, I accept that the respondent has (it would appear – based on her own messages) been using the lack of formal recognition of parentage as a means to avoid the operation of the law in the United Kingdom and accordingly, I consider that parentage is an issue in these proceedings and s 69W of the Act applies. I will therefore make parentage testing orders.
Arrest Warrant
The applicant seeks a self-executing order – namely that if the mother fails to comply with the parentage testing orders a warrant may issue. That may in due course be the most appropriate course but I raised with counsel who appeared on behalf of the applicant the question of transfer of the proceedings to the Family Court of Western Australia given the evidence supports the conclusion that the respondent is in Western Australia. I do not intend to make a self-executing order for a warrant in circumstances where the applicant made an application for transfer (referred to below), which I propose to grant.
Parenting orders
The applicant sought some parenting orders in the event that parentage testing confirmed he was the father.
If parentage testing confirms that the applicant is the father then the mother will have engaged with the process of DNA testing and ought be in a position to engage with the parenting application.
The orders which the applicant seeks would not pose any significant change in circumstances for the child who would continue to live with and be cared for by the mother.
In making an interim parenting order I have to be satisfied that any order I make is in the best interests of the child. When making an application for ex parte orders the applicant is obliged to put before the court any and all information that might be relevant to the making of the orders. I am satisfied that it is appropriate to consider the making of an order for electronic communication. There is evidence in the father’s material capable of supporting the conclusion that the mother acknowledges the applicant is the father of the child. But more importantly than that I was taken by counsel for the applicant to the text message which said: “[X] will always know EXACTLY who his dad and it’s up to you if put the effort in”.
The applicant is not in Australia (although I was told from the bar table that he has an intention or desire to travel to Australia). For a child the age of this child and given the circumstances of significant geographical distance and it would appear considerable lack of cooperation on the part of the parties, it is difficult to imagine how electronic communication orders could be of significant value to the child. However, I am conscious that the mother has indicated she was not moving to remove the applicant from the child’s life. I am satisfied that she involved the applicant in the period immediately after the birth. If the child is to have the benefit of a meaningful relationship with both parties then it may be that the opportunity to hear the father’s voice and see the father’s image will aid the making of orders in due course. There is no evidence to indicate it will cause harm to the child or carer.
Because these are interim orders (and made in her absence) the mother will have the opportunity to file material to seek different orders if in her view these orders are not in the best interests of the child.
Transfer
Given the information about the location of the mother, child and maternal grandmother and given the potential need for enforcement proceedings I invited the applicant to seek transfer of the proceedings. An oral application for transfer was made.
Section 45 of the Act provides:
45 Stay and transfer of proceedings
…
(2)Where there are pending in a court proceedings that have been instituted under this Act and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court. However, this subsection does not apply to particular proceedings if:
(a)the first-mentioned court is the Federal Circuit and Family Court of Australia (Division 1) and the other court is the Federal Circuit and Family Court of Australia (Division 2); or
(b)the first-mentioned court is the Federal Circuit and Family Court of Australia (Division 2) and the other court is the Federal Circuit and Family Court of Australia (Division 1).
Note 1:For transfers from the Federal Circuit and Family Court of Australia (Division 1) to the Federal Circuit and Family Court of Australia (Division 2), see section 52 of the Federal Circuit and Family Court of Australia Act 2021.
Note 2:For transfers from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1), see sections 51 and 149 of the Federal Circuit and Family Court of Australia Act 2021.
(3)A transfer under subsection (2) may be made on the application of any party to the proceedings.
(4)A transfer under subsection (2) may be made on the transferring court's own initiative if the transfer is:
(a)from a Family Court of a State to a court of summary jurisdiction prescribed in regulations made for the purposes of section 44A; or
(b)from a court of summary jurisdiction prescribed in those regulations to a Family Court of a State.
Rule 9.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
9.05 Transfer of proceeding between courts exercising family law jurisdiction
(1)A court exercising jurisdiction under the Family Law Act ( the transferring court) may transfer a proceeding to another such court (the receiving court) under section 45 of the Family Law Act.
(2)A transfer under this rule may occur on the application of a party or, to the extent permitted by section 45 of the Family Law Act, on the transferring court’s own initiative.
(3)Unless the transferring court otherwise orders, an application for transfer must be made on or before the first court date for the proceeding.
(4)Unless the transferring court otherwise orders, the application for transfer must be made by application supported by an affidavit or included in a response supported by an affidavit.
(5)In deciding whether to transfer a proceeding under subrule (1), the transferring court may consider the following:
(a) the public interest;
(b) the financial value of the claim;
(c)the complexity of the facts, legal issues, remedies and procedures involved;
(d) whether the proceeding, if transferred, is likely to be dealt with:
(i) at less cost to the parties; or
(ii) at more convenience to the parties; or
(iii) earlier;
(e)the availability of a judicial officer specialising in the type of proceeding to which the application relates;
(f)the availability of particular procedures appropriate for the class of proceeding;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns;
(h) the wishes of the parties.
(6) Subrule (5) does not apply to:
(a)a proceeding raising, or relying on, a cross‑vesting law in which a party objecting to the proceeding being heard in the transferring court applies to have the proceeding transferred to another court; or
(b)the transfer of a proceeding under the Corporations Act 2001; or
(c)a proceeding that must be transferred in accordance with a legislative provision.
I am satisfied that the application of the Rules to the facts as described above make this an appropriate case for transfer and will so order.
COSTS
Before me is an application for costs following the interim proceedings which were heard on an undefended basis. Section 117 of the Act provides the usual rule is that each party bears his or her own costs of proceedings. However, if there are circumstances justifying the departure from the usual rule then an order for costs can be made. Section 117(2) of the Act sets out some of the examples of the situations in which there will be justifying circumstances. They include things such as the financial position of the parties, the conduct of the proceedings, whether a party is legally aided, whether there have been offers of settlement.
The most significant factor in this case which is relevant to the assessment of costs is the conduct of the proceedings. As set out in my earlier reasons for judgment it is plain that the respondent to these proceedings has been avoiding litigation both in the United Kingdom and Australia in circumstances where, based on the Order for substituted service and the engagement otherwise of the respondent’s family, it is plain that she is aware that there are proceedings taking place. When one reads that together with the text messages which she sent to the applicant it is plain that the applicant has had to bring the proceedings in order to endeavour to locate the child. That conduct is sufficient to persuade me that there are justifying circumstances to depart from the usual rule.
The costs have been calculated with the scale under the Rules in the sum of $2,817.70.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 20 November 2023
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