Short and Stanford

[2009] FamCA 1007

FAMILY COURT OF AUSTRALIA

SHORT & STANFORD [2009] FamCA 1007

FAMILY LAW – CHILDREN - With whom a child lives - Respondent mother has failed to appear in Court on three consecutive occasions - Child has been living with the father since about June 2009 - Orders made on an undefended basis for the child to live with the father and for the parties to have equal shared parental responsibility - No orders made in respect of the time the child is to spend with the mother

Family Law Act 1975 (Cth)

APPLICANT: Mr Short

RESPONDENT: Ms Stanford

INDEPENDENT CHILDREN’S LAWYER: Ms Moran

FILE NUMBER: NCC 966 of 2008

DATE DELIVERED: 21 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 21 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Cragg Braye & Thornton Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hamilton, appearing as agent for Ms Moran of Coast Law

Orders

1. All former parenting orders are discharged.

2. The father and mother shall have equal shared parental responsibility for the child …, born … June 2007 (“the child”).

3. Each party shall have responsibility for the day to day care, welfare and development of the child when the child is in that party’s care.

4. The child shall live with the father.

5. Any and all outstanding applications are dismissed.

6. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

7. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

8. Pursuant to s 65DA(2) and s 62B of the Act, 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. The oral application made by the Independent Children’s Lawyer for costs as against the applicant father is dismissed.

NOTATIONS

A.No further parenting orders have been made by reason of the mother’s failure to attend Court to adduce evidence and make submissions about such parenting orders.  The mother is at liberty to bring further proceedings in relation to those aspects of parenting arrangements not determined by these orders in the event that the parties are unable to reach amicable agreement.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 966  of 2008

MR SHORT

Applicant

And

MS STANFORD

Respondent

And

INDEPENDENT CHILDREN’S LAWYEr

EX TEMPORE

REASONS FOR JUDGMENT

1. The proceedings before the Court concern a child, a son, born in June 2007 (“the child”).  The child is now barely two years of age. 

2. The parties to these proceedings are the parents of the child.  The father, Mr Short, was born in 1977. The mother, Ms Stanford, was born in 1978. 

3. The parties enjoyed a short relationship between about May 2006 until the time of their final separation on or about 24 January 2008.

4. The proceedings concerning parenting orders in respect of the child were commenced by the father on 17 April 2008.  Interim orders were made by consent in the Federal Magistrates Court on 5 June 2008.  In summary, those parenting orders allocated equal shared parental responsibility for the child to the parties and designated that the child live with the mother and spend time with the father.  With the consent of the parties, those orders ceased being operational in about June 2009, from which time the child has lived with the father.

5. The father filed a further Application on 29 June 2009.  The mother filed an Application on 6 July 2009.  Those further interim proceedings were resolved by an interim hearing before Federal Magistrate Lapthorn on 10 August 2009.  The further interim orders made on that date provided for suspension of the former consent orders made on 5 June 2008 and an order that the child live with the father.  On that date, the proceedings were also transferred from the Federal Magistrates Court to the Family Court of Australia.

6. The matter came before this Court for consideration on 4 September 2009, at which time the respondent mother failed to appear.  Some procedural orders were made on that date and the matter was adjourned to 30 September 2009.

7. On 30 September 2009, the respondent mother again failed to appear.  Some further procedural orders were made and the matter was adjourned to today.

8. On each of the two prior occasions that the matter has been before this Court, the prospect of the parenting proceedings being determined on an undefended basis has been agitated.  Given that the mother has failed to attend today for the third occasion, I accede to the application of the applicant father, which is supported by the Independent Children’s Lawyer, that I proceed to determine this case in the absence of the mother.

9. In support of his position, the father reads in evidence:

   a)An Affidavit of Service filed on 20 October 2009, confirming service upon the mother of the Orders made by this Court on 4 September 2009, in accordance with the orders made that day;

   b)An Affidavit of Service filed on 20 October 2009, confirming service upon the mother of the Orders made by this Court on 30 September 2009, in accordance with the orders made that day;

   c)An affidavit sworn by the applicant father on 9 September 2009, for which leave was granted to the applicant father to file in Court.  Paragraphs 2-6 inclusive of that affidavit give the Court further comfort about the steps taken to notify the mother of the proceedings and the prospect that they may be determined in her absence.

10. The father moves on his Amended Initiating Application filed in this Court on 4 June 2009.  The father seeks orders in accordance with paragraphs 1, 2 and 3 of that document. 

11. Although the father does not seek today to press his application for orders 4-12 inclusive in that Application, that is not to say that the father proposes that there be no time spent between the child and the mother, or that there be no communication between them.  However, in the absence of the mother to contest those issues, I accede to the submission that it is inappropriate to make determinations about those issues.  The mother is free to make subsequent application to the Court in respect of those issues in the event that the parties are unable to make amicable arrangements between themselves.

12. That advocated position on the part of the applicant father is the subject of support by the Independent Children’s Lawyer.

13. In the circumstances, I intend to make final parenting orders in accordance with paragraphs 1-3 inclusive of the father’s Amended Initiating Application filed on 4 June 2009, which application enjoys the support of the Independent Children’s Lawyer.

Application for Costs

1. The Independent Children’s Lawyer makes an application for costs as against the applicant father. 

2. No such application is made against the respondent mother because the respondent mother is not present.  She was unaware that a costs application would be made by the Independent Children’s Lawyer and if the application for costs is pressed against her it would necessitate an adjournment of the proceedings.  The Independent Children’s Lawyer, in those circumstances, laudably does not press an application for costs against the respondent mother.

3. In determining the application for costs against the applicant father, it is submitted from the bar table that the applicant father, although not in receipt of a grant of legal aid, is unemployed.  The Independent Children’s Lawyer fairly accepts the submission from learned counsel on behalf of the applicant father that the father is unemployed.

4. I draw the obvious inference in the circumstances that the financial circumstances of the applicant father are difficult and that the father would suffer financial hardship if he were ordered to bear a proportion of the costs of the Independent Children’s Lawyer. 

5. For those reasons, pursuant to s 117(4)(b) of the Family Law Act1975, I dismiss the application for costs against the applicant father.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  21 October 2009