Undefended Hearing Due to Father’s Absence results in Mother getting Sole Parental Authority

Coggins & Tebbitt [2019] FCCA 3930 (12 December 2019)

An undefended hearing was held because of the father’s absence.  The best interests of the child would be best served if the court proceeded with the hearing which ordered sole parental responsibility for the mother considering that the latter can adequately provide the emotional and intellectual needs of the child herself. 

Facts:

The applicant mother sought to discharge previous court orders for the child X to live with the mother and have the sole parental responsibility for the child.  Despite all possible efforts made to put the respondent father on notice, there was still no response.  No appearance was made by the father so the Court proceeded with the case and its orders on an undefended basis.  The best interests of the child take precedence over the benefit of the child having a meaningful relationship with his father.  The mother has shown that she is capable of providing for X’s emotional and intellectual needs.

Issue:

Whether or not it is in the best interest of the child to make the orders sought by the mother.

Applicable Law:

Family Law Act 1975 (Cth), ss 60CC, 61DA - sets out the consideration of the child having a meaningful relationship with both parents and the presumption of equal shared parental responsibility for the best interests of the child.

Federal Circuit Court Rules 2001 (Cth), rr 6.14, 6.15 - a substituted service order should be made upon the respondent 

Analysis:

The order sought by the mother which is for her to have sole parental responsibility is compliant with the best interests of the child because the mother is capacitated to nourish the emotional and intellectual needs of the child overcoming the need for the child to have a meaningful relationship with a father with an absence which may affect the child negatively.  The presumption of equal shared parental responsibility cannot be applied because of the family violence perpetrated by the father toward the mother.  Since the court has complied with issuing substituted service orders, the court finds that it is appropriate to make the orders sought by the mother.

Conclusion:

The orders made on 25 August 2011, in the Federal Magistrates Court of Australia as it then was, at Parramatta, are discharged.  The Applicant mother has sole parental responsibility, and sole responsibility in any manner required by the relevant legislation, and in particular, the Australian Passports Act 2005, in relation to application for an Australian passport for the child X, born in 2009, and in relation thereto, any requirement in relation to the consent of the Respondent father, Mr. Tebbit, born in 1962, is dispensed with.  Any time to be spent between the child and the Respondent father, will be at the discretion of the Applicant mother.