STEGGALL & BAUER

[2015] FamCA 910

FAMILY COURT OF AUSTRALIA

STEGGALL & BAUER [2015] FamCA 910

FAMILY LAW – PARENTING – Undefended hearing – Where the mother has failed to participate in the proceedings – Where the mother’s whereabouts and living arrangements are unknown to the court – Where the father has passed away – Where the children reside with the paternal uncle and the paternal uncle has sole parental responsibility for the children on an interim basis – Where final orders are made for the children to continue residing with the paternal uncle and for the paternal uncle to have sole parental responsibility for the children – Order made that the children spend time and communicate with the mother in accordance with their wishes and as agreed between the paternal uncle and the mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Steggall

RESPONDENT: Ms Bauer

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: SYC 489 of 2014

DATE DELIVERED: 21 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 18 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Orders made 18 May 2015

1. Mr Steggall (“the paternal uncle”) shall have parental responsibility for B born … 1999 and C born … 2005 (“the children”).

2. The children live with the paternal uncle.

3. The paternal uncle is permitted to remove the children from the Commonwealth of Australia for the purpose of a holiday.

4. The paternal uncle is permitted to renew an Australian passport for either of the children.

5. All previous orders made by this court are discharged and I note that the effect of this order is that the current order in favour of the mother for the children to spend time with her shall be discharged.

6. The children are to spend time and communicate with their mother in accordance with their wishes and as agreed between the paternal uncle and the mother from time to time.

7. The paternal uncle is to attempt to notify the mother of these orders.

8. My reasons for the above orders are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Steggall & Bauer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 489 of 2014

Mr Steggall

Applicant

And

Ms Bauer

Respondent

REASONS FOR JUDGMENT

1. I heard this matter on an undefended basis in a busy duty list. I made orders on that day and reserved my reasons. These are those reasons.

2. Mr Steggall (“the paternal uncle”) seeks final parenting orders in respect of the two children, B, born in 1999 and currently aged 15 years old, and C, born in 2005 and currently aged 9 years old. The orders sought by the paternal uncle include orders that the children reside with him, that he have sole parental responsibility for the children, and orders permitting the paternal uncle to take the children on overseas holidays.

3. The parents of the children are Ms Bauer (“the mother”) who is the respondent in these proceedings, and Mr Steggall who is the brother of the paternal uncle and passed away on 23 November 2005.

4. The solicitors for the paternal uncle made attempts by email, text message and post to contact the mother to inform her of the court hearing, but no response was received to any of the attempts.

5. On 4 April 2007 final consent orders were made between the mother and the paternal grandmother, Ms D Steggall, providing for the children to live with the mother and spend time with the paternal grandmother each alternate weekend. The mother commenced proceedings in 2010 to vary those orders and final orders were made by consent on 1 June 2012 providing for the children to live with the mother, for the mother to have sole parental responsibility for the children and for the children to spend time with the paternal grandmother each school holiday period in Sydney. The mother relocated to the Region E, had re partnered and had another child.

6. In 2013 the paternal uncle and his family spent increasing amounts of time in the Region E to assist the mother in caring for the children. The paternal uncle had increasing concerns about the children’s frequent absences from school, domestic violence between the mother and her new partner, the mother drinking alcohol to excess and B’s strong views about not wanting to live with the mother.

7. Following spending school holiday time with the paternal family in Sydney in January 2014, the children refused to board a plan to return to the mother in the Region E and since that time have continued to reside with the paternal uncle.

8. The paternal uncle filed an Initiating Application on 30 January 2014 and orders were made on 21 February 2014 suspending the orders made 1 June 2012, and providing that the children reside with the paternal uncle and spend time with the mother each alternate weekend.

9. On 28 March 2014 B refused to spend further face to face time with the mother.

10. On 2 June 2014 the mother failed to return C to the care of the paternal uncle in accordance with the orders.

11. On 17 October 2014 orders were made varying the orders of 21 February 2015 and providing for the paternal uncle to have sole parental responsibility for each of the children and for the mother to spend time with C only, each alternate Saturday between 12.00pm and 6.00pm, subject to the mother satisfying the Independent Children’s Lawyer about her circumstances. No time occurred in accordance with those orders.

12. Neither the lawyer for the paternal uncle nor the Independent Children's Lawyer made specific submissions in respect of matters pursuant to s 60CC(2) and (3) of the Family Law Act 1975 (Cth) and it is not necessary for the purposes of these reasons to address them seriatim.

13. The children have had a long standing relationship with their paternal family both prior to, and after, their father’s death. There have been significant difficulties in the relationship between the mother and the paternal family. It is noted however that there has, in the past, been extensive cooperation and support between the mother and paternal family, enabling the children to enjoy a strong relationship with their extended paternal family.

14. The children have now resided with the paternal uncle and his family since January 2014. The paternal uncle has provided for all the children’s physical, emotional and financial needs, with the assistance of his extended family.

15. The children have not maintained a relationship with the mother or their younger half-sister. The mother’s whereabouts and living arrangements are unknown to the court. The mother has not been involved in these proceedings since March 2014 and the children have not seen her since June 2014. The paternal uncle has annexed copies of communication the mother has had with B via Instagram where I find she has been threatening and verbally abusive. For example, the mother told B “I have been speaking to channel 10 here and they want to buy my story how a family court got payed (sic) of bye (sic) the [surname of family] family”. The mother also wrote “and how your uncle was up on child abuse charged and gets u in his care…I remember u wanting to kill yourself. Every time u came back from your fucked up grandma house”.

16. It is submitted by the Independent Children’s Lawyer, and I accept, that the children need certainty and stability which will be provided by the finalisation of these proceedings and the allocation of parental responsibility to the paternal uncle.

17. The children have attended schools in Sydney since February 2014. B is currently in Year 10 and has been minimally absent from school since his enrolment. B is reportedly “behind in school” but the paternal uncle and his wife ensure his homework is completed each night. The paternal uncle has also arranged for B to attend private tutoring. B plays rugby league and does boxing. The paternal uncle takes B to training and the paternal family attend his weekly rugby league games.

18. C is in Year 3 at the same school the paternal uncle’s daughters attend. C has commenced piano lessons.

19. The children travelled with the paternal uncle and his family to Country F and Florida for a four week holiday in March 2015.

20. Although the Independent Children's Lawyer questioned the necessity to make an order about the renewal of passports for B given that he is now aged 15 years old, I do not see that there is any downside to making that order. It may facilitate the paternal uncle’s interaction with the passport office.

21. I agree with the Independent Children's Lawyer’s submission that it is appropriate to include a generic order to allow the children to spend time and communicate with their mother in accordance with their wishes and as agreed between the paternal uncle and the mother from time to time.

22. The paternal uncle is to attempt to notify the mother of these orders.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 October 2015.

Associate:

Date:  21.10.2015