After initially consulting with our client in early 2020, our representation recently resulted in the newly merged Federal Circuit & Family Court of Australia (FCFCOA) determining it was in the child’s best interests to make the Orders sought by our client, including an order for sole parental responsibility of the child.
What Is Parental Responsibility?
There is a presumption in the Family Law Act 1975 that parents have equal shared parental responsibility for children. The court does not lightly make Orders for sole parental responsibility, which refers to major decisions about a child: where the child lives, what school the child attends, what religion they practice, consents for major medical treatment or surgeries.
If you are separated and no longer in contact with the other parent of a child, you may have experienced difficulties in school enrolment forms seeking two signatures, or in applying for a passport for your child needing signatures and documents from both parents, or in applying to change your child’s name.
Our Client And The Child’s Circumstances
After separation, the child lived with our client and spent 2 nights each week with the other parent, for about 3 years. Suddenly and unexpectedly, the other parent moved interstate, effectively abandoning the child. Since then, our client had been entirely responsible for caring for their young child.
Our client attempted to maintain telephone contact between the child and the other parent, however, weekly phone calls saw excuses being made by the other parent as to being unable to call, each more far fetched than the last. This in turn caused distress to the child who would be soothed by our client.
The child continued to be impacted by the actions of the other parent. Our client made tremendous efforts to access and fund necessary assistance for her child’s welfare, to ensure that the child’s psychological wellbeing and education would not continue to be negatively affected.
Our client has also continued to maintain contact between the child, other parent’s family and half-sibling.
Our client has not received any financial support (or child support) from the other parent since separation.
Legal Steps Taken
Our client invited the other parent to enter into parenting Consent Orders, which would give her sole parental responsibility, and which allowed for the child to spend time with the other parent during school holidays. As instructed we prepared documentation for Consent Orders which was sent to the other parent. After a number of follow ups there was still no response.
Our client attempted to engage in mandatory Family Dispute Resolution processes, as required by the FLA prior to commencing parenting court proceedings. The other parent did not participate.
We commenced court proceedings: the writer drafted an affidavit including the history of parenting during the relationship, since separation, impacts on the child, and addressing relevant considerations of the FLA. Orders were structured to buffer sole parental responsibility by providing our client (who witnessed the pain irregular contact caused the child after the other parent’s sudden departure) with discretion, should the other parent seek to contact the child in future.
Unsurprisingly, the other parent filed no response and difficulties were experienced in attempting to personally serve the court documents (as required by the FLA).
On the first return date, the matter was listed for an undefended hearing, provided we were able to satisfy the court that the other parent was aware of the proceedings. The writer filed an application in a case together with supporting evidence and the court was satisfied that the other parent had sufficient notice of the court proceedings.
Difference Between Other Civil Court Cases: There Is No Default Judgment In Family Law
It is worth noting here that unlike other civil jurisdictions, where the court can enter default judgment if the other party does not file any material or contact the court, this does not happen in family law. Just because one parent asks the court to make orders about a child, if the other parent fails to turn up or does not care, the FCFCOA will not simply make the Orders you have asked it to. It is bound to follow the law which requires it to only make Orders that have been found to be in the best interests of a child.
Undefended Hearing Day
A case outline and submissions were drafted by the writer addressing relevant considerations of the FLA for the court, in determining whether to make the orders sought by our client, including, sole parental responsibility. Oral submissions were made to the court by Jason Neo.
The court found it was in the best interests of the child to make the Orders sought by our client and commended our client on her parenting of the child following the other parent’s abandonment.
This was a favourable outcome for our client and the child. Our client was a pleasure to represent and we wish her and the child all the very best going forward with their lives.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
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