Yeates and Tank

[2013] FamCA 9

FAMILY COURT OF AUSTRALIA

YEATES & TANK [2013] FamCA 9

FAMILY LAW – CHILDREN – Parental Responsibility – Where the Mother has not appeared – Where there is evidence that the Mother effectively consents to or does not oppose the orders sought – Father to have sole parental responsibility – Mother’s consent for the obtaining of a passport for the child be dispensed with

Family Law Act 1975 (Cth)

APPLICANT: Mr Yeates

RESPONDENT: Ms Tank

FILE NUMBER: BRC 2149 of 2007

DATE DELIVERED: 21 January 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 January 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Yeates in person

Orders

1. By way of variation of the final orders made by the Honourable Justice Jordan on 7 October 2008, in lieu of the order for the parents to have equal shared parental responsibility (order (2) of the “Short Minute of Order”), the Father, Mr Yeates, have sole parental responsibility with respect to the child B born … June 1997. 

2. Pursuant to section 65Y Family Law Act 1975 (Cth), the Mother’s consent in relation to the obtaining of the child B’s passport be dispensed with.

3. The Father, as soon as reasonably practicable, serve upon the Mother these Orders and a copy of the reasons for judgment. 

4. The Mother have liberty to apply within fourteen (14) days of service upon her as provided in Order (3) above, on the giving of seven days notice to the Father, with respect to these Orders. 

5. In the event that there is no further application pursuant to the liberty to apply provision in Order (4), this case be removed from the pending cases list and all other extant applications otherwise be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeates & Tank 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 BRISBANE

FILE NUMBER: BRC 2149 of 2007

Mr Yeates

Applicant

And

Ms Tank

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an amended initiating application, filed 28 November 2012, The Father sought both final and interim orders with respect to the child B (“the child”), born in June 1997 who is now aged fifteen and a half. The final orders sought were that the Father be given sole parental responsibility in respect of the child and that an order be made pursuant to section 65Y of the Act, that the Mother’s consent to the child having a passport or obtaining a passport be dispensed with.

2. The interim order sought on the application related to the dispensation of the Mother’s consent to obtaining a passport, in circumstances where the father explains, in his affidavit filed 26 November 2012, the opportunity available to the child to attend a school-based function in East Asia that she is keen to participate in.

3. On this current application, the Father advises that service was affected by forwarding the relevant documents by Registered Post to the Mother on 12 December.  I have marked as exhibit 1 in the proceedings what the Father and his current wife explains is the response received from the Mother, which she apparently sought to file in the Federal Magistrates Court.  I have, earlier today, given leave to the Father to attend this hearing by telephone in the unhappy circumstance that his own father is temporarily ill.  Up until that, it was clearly the Father’s intention to attend on the hearing and in the event, his present wife is in attendance.

4. It is not usual for the Court to make any orders by way of final orders in circumstances where neither parent is actually in physical attendance but the circumstances here are obviously unusual.  Unfortunately, this matter has a very long and convoluted, litigious history and it would appear, on the records, that something like seven family reports have been prepared in this and another related case and that a range of orders have been made over time, culminating in what appears to be the last of the final parenting orders made, which were those made by Jordan J on 7 October 2008.

5. Relevantly, those final orders provided for the Mother and Father to have equal shared parental responsibility for the child and in circumstances of the current application that order for equal shared parental responsibility obliged the Father to obtain the Mother’s consent in relation to obtaining of a passport.  I have marked, as exhibit 1 in the proceedings, the response that was received by the Father to service of the current application.  In that response, so far as the final orders sought by the Father are concerned, the Mother expresses her agreement to the Father having an order for sole parental responsibility.

6. Whilst the agreement is said to be expressed “reluctantly”, the reluctance seems to be based on disputed issues of fact that have attended this matter for the decade in which litigation has been on foot between these parents.  The Mother, having expressed her albeit reluctant agreement to an order for the Father to have sole parental responsibility, thereafter expresses her agreement and approval for a passport to be issued for the child.  To similar effect, the Mother expresses her agreement to the other final order sought, namely that there be dispensation of the Mother’s consent in respect of the passport issue.

7. On the response in exhibit 1, it would seem that the Mother was not, in essence, troubled by the child receiving a passport but has things to say about what she says are amendments to the child’s birth certificate without her knowledge or agreement. It is unnecessary for me, on this application, to trouble myself with any of the factual issues disputed by the Mother; the focus is upon her expressed agreement, both to an order for the Father to have sole parental responsibility and for an order under section 65Y with respect to dispensation of the passport.

8. Again, it is unusual for a court to make final orders in this context without the parties affected, namely the parents, being present.  In this case, the Mother is not even present by telephone, however there is a note to the response she provided to the Father and which he has sought to file in court to the effect that she has minimal financial means and cannot afford to attend today’s hearing. 

9. The notation goes on:

   I expect your Honour’s ruling will occur.  I am comfortable with it under the circumstances (noting [Mr Yeates] has ‘family money and support’ and there is no likelihood that any action by me will sway this decision) and I sincerely request that my non-attendance not be viewed, in any way, as an affront to the court.

10. It would appear that the expression in that notation, consistent with the Mother’s response to the final orders sought, is the expectation that the court will, today, make an order for the Father to have sole parental responsibility and an order pursuant to section 65Y. Whilst in the absence of the Mother attending, physically or by telephone, it is not appropriate to treat the orders as being made by consent it seems to me that, on the material referred to, there is in substance no opposition by the Mother to the making of the orders as sought by the Father.

11. I will include in the orders a provision that the orders made by the Court be served by the Father upon the Mother and a copy of my reasons will be provided to the Father and he should also serve these reasons, together with the order, on the Mother and I will give her liberty to apply in the event that I have misunderstood or misinterpreted anything in the documents she has provided.  Of course, if it were the case that the Mother took up that invitation and brought further application to Court, it would be necessary for me to consider, amongst other things, any issue of costs for any further inconvenience the Father would be put to if the Mother seeks to reagitate the issues I have briefly discussed in these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 January 2013.

Associate: 

Date:  21 January 2013