WADE & GODWIN

[2015] FCCA 2111

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADE & GODWIN [2015] FCCA 2111

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – sole parental responsibility – overseas travel – one child aged 5 years living with applicant – where applicant wishes to take child to (country omitted) for a holiday to visit extended family – where respondent failed to attend court – where respondent failed to file any Response or affidavit – orders made ex parte.

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

Federal Circuit Court Rules 2001, r.13.03C

Applicant: MS WADE

Respondent: MR GODWIN

File Number: SYC 5021 of 2014

Judgment of: Judge Scarlett

Hearing date: 20 July 2015

Date of Last Submission: 20 July 2015

Delivered at: Sydney

Delivered on: 20 July 2015

REPRESENTATION

Applicant: In Person

Respondent: No appearance

ORDERS

1. The child X born (omitted) 2010 is to live with the Applicant Mother.

2. The Mother is to have sole parental responsibility for making long term decisions about the care, welfare and development of the said child X.

3. The Respondent Father is to spend time with the child X at such times as the parties shall agree.

4. The child X (a female) is permitted to travel outside Australia for the purpose of a holiday in the (country omitted) between 19 December 2015 and 26 January 2016.

5. The Mother must return the child X to Australia no later than 26 January 2016. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 5021 of 2014

MS WADE

Applicant

And

MR GODWIN

Respondent

REASONS FOR JUDGMENT

1. The Application in this matter is an application by the mother of a child called X, for the child to live with her and spend time with the father as agreed between the parties.  The mother seeks an order that she should have sole parental responsibility for the child and she also seeks an order that the child be permitted to travel outside the Commonwealth of Australia for a period of four weeks in December 2015 and January 2016.

Background

1. The Application was filed on 29 April 2015 supported by an affidavit.  The mother has quite correctly filed an affidavit of service prepared by a process server which was filed at the Court on the 10^th of this month.  The affidavit shows that the Initiating Application and supporting documents were personally served on the Respondent on 9 May 2015.  The Respondent has not filed any documents.  He has not filed a Response or an affidavit.  He has not attended court.  I consider, in the circumstances, that it is appropriate for the matter to proceed ex parte and I have granted leave to proceed ex parte.

2. In the absence of the Respondent, for which no explanation has been given, I am proceeding with the hearing generally under the provisions of Rule 13.03C.

Evidence 

1. The mother relies on her affidavit of 29 April 2015.  She has given oral evidence.  She is the mother of the child, X, who was born on (omitted) 2010.  This little girl is now over the age of 5 years.  The mother has two other children from a previous relationship. 

2. The mother was born on (omitted) 1973.  She is 41 years of age.  The father was born on (omitted) 1953.  He is 61 years of age. 

3. The parties met in (omitted) in (country omitted) in early 2008 and commenced a relationship shortly thereafter.  They were married on (omitted) 2009 and separated on a final basis on 9 July 2013.  They were divorced by order of this Court made on 30 September 2014.

4. It is the mother’s evidence that the child, X, lives with her and spends time with the father.  There are no parenting orders in place.  The child, X, is an Australian citizen and has an Australian passport.  The mother wishes to travel to her native (country omitted) for a holiday in December because her extended family, including her mother, live in (country omitted).  Her plans are to travel to (country omitted) and (country omitted) for approximately four weeks with the child to spend time with her grandmother and other extended family members.

5. The father, however, on the mother’s evidence, has refused to give permission for the child to leave Australia because he has told the mother that he fears that she would remove her from Australia permanently.  The mother says that she has no intention of doing that.  She and her older two children are permanently residing in Australia.  She has a permanent resident visa and has had so since 19 January 2012.  She has employment.  She works part time as a (occupation omitted) and she is a full-time student in the (qualifications omitted) in the University (omitted).  The child, X, the subject of this application and the mother’s other daughter, Y, both attend (omitted) Public School, and her son, Z, attends the (omitted) High School at (omitted).

6. The mother gives evidence that she and the children live well in Australia and there is no reason to leave Australia.  What she wants to do is to visit her family, especially her mother, who is 74 years of age, and she does not wish to leave X in Australia if she were to travel to (country omitted) with the other two children.

Conclusions

1. In my view, the father’s failure to file any documents and his failure to attend Court can only be taken as an indication of his intention not to contest these proceedings.  He has been given more than sufficient time to file a Response or an affidavit and to attend, should he choose to do so.

Applications for Parenting Orders

1. There is an Application for a parenting order.  When considering applications for a parenting order, the Court must consider the various matters set out in Part VII of the Family Law Act 1975 (Cth), including:

   a)section 60B which sets out the objects and principles of the Part;

   b)section 60CA which provides that the best interests of the child must be regarded as the paramount consideration;

   c)section 60CC which assists the Court in determining what are in a child’s best interests;

   d)section 61DA which requires the court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility; and

   e)section 65DAA which applies, if the Court does make an order for equal shared responsibility, and it requires the Court to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, failing that, to spend substantial and significant time with each parent.

2. I have considered all these matters.

Orders

1. This is not an equal time case.  This little girl has been living with the mother who is her primary carer and she spends regular time with her father.  I propose to make orders accordingly.  I propose to make orders permitting the mother to take the child out of Australia for the purpose of a holiday in (country omitted) over the December/January school holiday period.  It would seem to me to be of benefit to the child and in her best interests for her to spend time with her extended family in (country omitted) and to obtain some idea as to her (country omitted) heritage.  I propose to make the orders sought by the mother.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  6 August 2015