ABIDIN & OMMAR
[2020] FamCA 79
•14 February 2020
FAMILY COURT OF AUSTRALIA
| ABIDIN & OMMAR | [2020] FamCA 79 |
| FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where the father ceased engaging in the proceedings – Where the father is currently in custody – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother. |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Denyan & Beattie [2011] FamCA 155 Fooks v McCarthy [1993] FamCA 117; (1994) FLC 92-450 Goode and Goode (2006) FLC 93-286 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Rules 2004 (Cth) r 11.02, 16.07 |
| APPLICANT: | Ms Abidin |
| RESPONDENT: | Mr Ommar |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Weaver |
| FILE NUMBER: | PAC | 1940 | of | 2014 |
| DATE DELIVERED: | 14 February 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 12 December 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Al Hashimi of John Spence & Associates |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders Made On 12 December 2019
The children X born … 2002 and Y born … 2009 live with the Applicant mother.
The mother have sole parental responsibility for the children.
The said children X born … 2002 and Y born … 2009 are permitted to obtain an Australian travel document and to travel internationally.
The Applicant mother may apply for an Australian passports for the said children X born … 2002 and Y born … 2009 without first obtaining the consent of the father Mr Ommar.
The Applicant mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as X born … 2002 be now registered as X.
Pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in the previous order.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.
The mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as Y born … 2009 be now registered as Y.
Pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in the previous order.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.
All outstanding applications be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abidin & Ommar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1940 of 2014
| Ms Abidin |
Applicant
And
| Mr Ommar |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings commenced by the applicant mother by Initiating Application filed 8 August 2014.
The application concerns two children: X (“the oldest child”) who was 17 years old at the time of hearing and Y (“the youngest child”) who was 10 years old at the time of hearing (“the children”). The parties also have another child Mr W (“the older brother”) who was initially a subject child of the proceedings but during the course of the proceedings turned 18 years old.
The father, who is currently incarcerated and serving a 12 year sentence, has more recently failed to engage in these proceedings and proceedings were heard on an undefended basis.
At trial the mother relied upon the following documents:
a)a Minute of Proposed Orders tendered on the day of hearing; and
b)her Affidavit filed 6 December 2019.
The mother sought orders that she have sole parental responsibility for the children, the children live with her, orders to obtain a passport for the children and orders to change the names of the children.
The Independent Children’s Lawyer (“ICL”) supported the position of the mother submitting that the father’s lengthy incarceration for offences perpetrated towards the mother clearly supported the making of orders that the children should live with the mother and that she should have sole parental responsibility for the children.
Orders were made by the Court in terms sought by the mother on 12 December 2019 and reasons were reserved. These are those reasons.
Context
The mother was 42 and the father was 53 years old at the time of hearing.
The parties commenced a relationship in 1996 and separated around 2011.
The parties gave birth to their first child, who is not a subject child of these proceedings, in 1999.
The oldest child in these proceedings was born in 2002.
The youngest child was born in 2009.
The father is currently incarcerated and serving a sentence with an eight year and four months non-parole period and an additional term of four years and two months for eight counts perpetrated towards the mother. The offences include assault occasioning actual bodily harm, aggravated sexual intercourse without concern and indecent assault.
The father has not seen the children since April 2014.
The proceedings
Proceedings were commenced by the mother on 8 August 2014 in the Federal Circuit Court of Australia relating to financial matters only.
On 17 October 2014 the father filed a Response to the mother’s application for financial orders.
On 3 February 2015 the proceedings were transferred to this Court.
On 30 March 2015 the father then filed an Amended Response introducing parenting orders in his application.
The proceedings in this Court were frequently delayed awaiting the outcome of the father’s criminal proceedings.
On 30 March 2015, the father filed an Amended Response seeking that the children spend time with him each alternate Saturday until he located appropriate accommodation which will allow them to spend overnight time with him at his residence. Thereafter he sought orders that the children spend time with him each alternate weekend, half the school holidays and on special occasions.
On 8 May 2015, the mother filed a Reply seeking that the children live with her, that she have sole parental responsibility for them and that the children attend B Group’s ‘the Anchor’ program.
On 11 February 2016, interim parenting orders were made by consent that the children live with the mother and spend supervised time with the father at a contact centre for two hours each alternate Saturday to progress to three hours each Saturday.
On 17 February 2016 the parties were ordered to attend upon a family consultant for the preparation of a Family Report.
On 23 August 2016 the orders made as to the children spending supervised time with the father were suspended.
On 8 June 2017 the parties resolved the property aspect of the proceedings and orders were made by consent that provided for the sale of the parties’ former family home, the proceeds be divided equally between the parties and the parties, otherwise, retain any property in their possession.
On 15 January 2018 the father filed an application to spend supervised time with the youngest child at a supervision centre. On 22 January 2018, the mother informed the Court that she had no objection to such an order provided that supervised contact arrangements are appropriate in the circumstances of this matter. This application was listed for interim hearing on 7 March 2018 and on this date the father discontinued his application.
On 15 March 2018 the father filed a Contravention Application (which was amended 14 May 2018) making a complaint that the mother had, without reasonable excuse, breached orders in not informing him as to the respective schools attended by the children in 2017 and 2018, had not provided to him required information in relation to the children’s medical issues and other various allegations. This application was struck out on 1 February 2019.
The matter was back before the Court on 30 September 2019 for case management. On this date the Court was informed that the father had been convicted of serious offences perpetrated against the mother and had been remanded in custody for sentencing on 11 October 2019. The proceedings were adjourned for further case management or undefended hearing in the event there was no appearance by the father or arrangement for him to attend Court by other means on the adjourned date.
On 12 December 2019 the matter was again before the Court and there was no appearance by or on behalf of the father. He had by this time been sentenced as discussed below to a significant period of imprisonment.
In these circumstances it was clearly appropriate that the matter be heard without further delay on an undefended basis.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…
Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
Such is the case presently before the Court for consideration.
The solicitor for the mother tendered evidence of correspondence sent from the father’s solicitor on 22 November 2019 that the father did not intend to defend any “undefended or other hearing” in the Family Court. In circumstances where the father did not then arrange to attend by electronic means on the date listed for case management or possible undefended hearing and where he did not have a solicitor appear on his behalf, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis notwithstanding that the father was in custody.
Orders were made that the mother have sole parental responsibility for the children, that the children live with her, that she be permitted to apply for a passport for the children without the consent of the father and that the mother be authorised to apply to change the children’s surnames.
Family Report
On 24 May 2016 the parties attended upon a family consultant for the preparation of a Family Report.
Both parents reported to the family consultant that the father had only seen the children on three occasions since November 2013. The first occasion was an accidental interaction and on this occasion the father and mother’s companion had a physical altercation in front of the children. By agreement between the parties, the children then spent time with the father on two other occasions after he agreed to provide the mother with the former family home in their property settlement. After these two occasions, the father withdrew his offer and the children ceased spending time with the father thereafter.
The father told the family consultant that he was now seeking orders that the children live with the mother, for the parents to share parental responsibility for the children, for the youngest child to spend time with him in accordance with his Amended Response, but that the other two children spend time with him as per their wishes given their ages and their response to seeing him during his recent interactions with them, having agreed that such visits had not gone well.
The father denied that there had ever been physical or verbal family violence in his relationship with the mother. He said that whilst he and the mother argued, this was never in front of the children. The father told the family consultant that the mother had made many false allegations against him since separation and that the mother had fabricated the sexual assault allegations to further her family law case.
At the time of the interview the parties’ child Mr W, who is no longer a subject child of these proceedings, was interviewed as he was 17 years old at that time. He expressed a strong desire to have no relationship with the father and told the family consultant “I don’t have a Dad”.
The family consultant first observed the [the youngest child] who was seven years old at the time with her father:
[The father] asked [the youngest child] if she wanted to give him a hug. She shouted “Don’t touch me”. [The father] then asked [the youngest child] why she was upset again. [The youngest child] started to cry, and was observed to start shaking again. [The youngest child] said she wanted to see her mother or her brothers. It was agreed that [the youngest child] and the Family Consultant would get [the oldest child] to come into the observation room with her. The Family Consultant asked [the father] to move away from the observation room door so [the youngest child] could exit without getting too close to him given her expressed fear.
…The Family Consultant asked [the youngest child] and [the oldest child] to come back to the observation room… [the youngest child] stated that she did not wish to return to the observation room again, even with [the oldest child], and started to cry. The Family Consultant said that [the youngest child] did not have to return to the observation room with [the father].
The family consultant observed the following of the interaction between the father and [the oldest child]:
The first thing [the oldest child] said to [the father] was “you are not my father”. He said “you hate me like you hate [the older brother]”. [The father] asked [the oldest child] who had told him this and stated that it was untrue. [the oldest child] replied “no-one”. [The oldest child] started shouting comments at [the father] such as “you ruined my life”, “I want to live my life without you”, “I hate you” and “you called me gay”. …
[The oldest child] did not attempt to answer [the father’s] questions, and instead told [the father] to “stop pretending in front of the lady”. …
[The father’s] voice started to rise slightly in what appeared to be frustration, though he was not observed to yell as [the oldest child] was. He attempted, without success, to ask [the oldest child] to calm down and talk to him. …
After observation with [the oldest child], the father told the family consultant that he was surprised at his attitude towards him and said that the child had not expressed the same level of anger towards him at their last visit in April 2014. The father suspected that [the oldest child] had been influenced by [the older brother].
The family consultant opined that if there was no basis to the mother’s allegations regarding the father’s abuse to her and the children, the Court may need to consider whether a change of residence for the children would be in their best interest. The family consultant further opined:
The Court may need to consider that this case may contain elements of the children being realistically estranged from [the father] due to possible deficit, though not abusive, parenting practices which have been magnified by [the mother] due to the parental conflict post separation.
On the other hand, however, the family consultant opined that if the Court considered that the children were at an unacceptable risk of harm on the basis of the charges against the father (as at that point the father had not been convicted of any of the offences with which he had been charged) an order that the children spend no time with the father may be in their best interests.
The family consultant also opined that all children could benefit from individual counselling to help them discuss their family situation.
The father’s perpetration of violence and sexual abuse
The father’s perpetration of significant family violence throughout the parties’ relationship towards the mother was detailed in the Family Report. This included repeatedly forcing the mother to have sexual intercourse against her will and perpetrating physical abuse towards her including kicking her, pulling on her arm or hair and throwing items at her such as their television. The mother described to the family consultant of the violence perpetrated by the father which the family consultant said constituted “coercive controlling violence” if it occurred as described.
The mother also told the family consultant that the father would bring women home and try to insist that she have sexual intercourse with them whilst he watched.
The father perpetrated psychological abuse towards the mother by threatening to kill her if she did not comply with his requests and by calling her names, controlling the parties’ finances and controlling who she spent time with.
The father continued to harass the mother post separation by driving past their house despite orders which prohibited him approaching her.
The father also used regular physical discipline towards the children such as hitting them on the back of the head and the mother told the family consultant that the father had been “emotionally and physically abusive to the children.”
The mother told the family consultant that the older brother had told the police in late 2015 that the father sexually abused him. It appears the father was not dealt with in regard to this allegation.
Objective Evidence: The Reasons for Sentence
The transcript of the father’s sentencing in the District Court of NSW in the criminal proceedings in 2019 reveals that the father appeared for sentence in respect of eight counts in respect to which he was found guilty:
Count 1: Assault occasioning actual bodily harm
Count 4: Sexual intercourse without consent
Count 7: Aggravated sexual intercourse without consent
Count 8: Sexual intercourse without consent
Count 9: Aggravated sexual intercourse without consent
Count 13: Indecent assault
Count 14: Indecent assault
Count 15: Common assault
Count 1 related to an incident where the father deliberately kicked the mother in the foot causing her nail to bleed. The mother attended hospital but did not implicate the father as having been the cause of the injury. The presiding judge found that the father had not intended any actual injury but found it was violent and disrespectful conduct which resulted in actual bodily harm and was a serious offence of its type. The mother has had ongoing difficulties with the injured toe and the nail has not regrown.
Count 4 related to an incident where the father held the mother’s hair and pushed his penis hard into the mother’s mouth, causing the mother to throw up. The father then said to the mother “you disgust me, go clean it” and ordered the mother to clean the vomit. The presiding judge concluded that the mother clearly did not consent to the conduct and the father knew that she did not consent. The presiding judge said “the gravity of this matter and indeed all the matters, needs to be considered on the basis of what was, on the evidence, generally oppressive bullying and disrespectful conduct throughout the marriage” and that the activity was “degrading and demeaning conduct by the [father] and it is a serious example of an offence of its type”.
Count 7 was the offence of aggravated sexual assault where he, without the mother’s consent, pushed a square metal belt buckle in and out of the mother’s anus, causing it to bleed.
Count 8 was a conviction of sexual intercourse without consent which related to the father using the handle of a razor as a sex toy, inserting this into the mother’s anus.
Count 9 aggravated sexual intercourse was for inserting a cucumber into the mother’s anus, which became stuck and caused the mother significant pain and resulted in bleeding. The father was eventually able to remove the cucumber and then again spoke to the mother in a degrading manner. This count was described as an “upper mid-range” offence.
Count 13 was described by the sentencing judge as a “serious example of indecent assault” being an offence where the father put a sock in the mother’s mouth and then acted without her consent for his sexual satisfaction.
Count 14 related to the father’s act of whipping the mother on the vagina with a belt, causing her significant pain. Again, the trial judge described this offence as “a serious example of an indecent assault and involved actual violence”.
Count 15 common assault came about after the mother asked the father for a divorce. The father became angry and threw a television against a wall and then choked the mother with a pillow for about two minutes while one of the parties’ children, who was 20 months old at that time, was present.
His Honour imposed an aggregate sentence for all offences except Count 1all up of 12 years and six months with a non-parole period of eight years and four months which commenced 11 July 2019 and will expire 10 November 2027 with an additional term of four years and two months. The sentencing judge did not impose a sentence for Count 1 but recorded a conviction for this offence.
Parenting
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)…
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In relation to parental responsibility, the family consultant was of the view:
Given the allegations of family violence, the continuing parental conflict, and poor communication between the parents shared parental responsibility appears contra-indicated, and is likely to lead to the children being exposed to further parental conflict. In this situation it is recommended that orders be made that provide for the parent the children live with to have sole parental responsibility for the children.
In the present case, the Court is easily satisfied that the father perpetrated serious family violence towards the mother and the Court attaches significant weight to the transcript of the father’s sentencing in the criminal proceedings. Given the background of family violence, the presumption does not apply and the Court is satisfied that the order sought by the mother and supported by the ICL that she have sole parental responsibility is in the child’s best interests.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The mother has at all times been the primary carer for the children which has ensured a meaningful relationship between the mother and children. The orders proposed by the mother as supported by the ICL will see the continuation of the meaningful relationship that has always existed between the mother and children.
The father has not spent time with the children since November 2013 other than three occasions as well as his interaction with the children during the Family Report interviews in May 2016. At the present, his relationship with the children is, for the reasons outlined above, non-existent and the orders sought by the mother would see this continue.
Section 60CC (2)(b) – need to protect
This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.
This consideration is determinative in these proceedings given the father’s conviction for a series of violent offences perpetrated towards the mother, giving rise to a significant concern about the overwhelming need to protect the children from exposure to family violence and the physical and psychological harm which may flow from their exposure to family violence.
The following opinion expressed by the family consultant is relevant to the need to protect the children from harm:
Children who are emotionally, or physically abused by a parent; or exposed to family violence, are more likely to experience poorer behavioural and mental health outcomes than those who have never been abused. They are likely to experience difficulties in their own social and intimate relationships, which may impact on their relationships both at school and into adulthood. These children are also likely to engage in more risk taking behaviours such as drug and alcohol use as they enter their teenage years. If the abuse occurred by [the father] towards [the mother], or the children, is found to have occurred as alleged, it is considered that this could have led to the children being realistically estranged from [the father], and the Court may need to consider whether a no time order is in the children’s best interest
The family consultant was of the view that “if the Court considers on the basis of these charges that the children are at unacceptable risk of harm if they spend time with [the father], it may be in the children’s best interests that no order is made for them to spend time with [the father]”.
Having regard to the opinion of the family consultant as to the significant consequent harm that may flow to the children from exposure to family violence, and in light of the father’s conviction for several serious violent offences perpetrated towards the mother, it is clearly appropriate to make orders as sought by the mother and supported by the ICL that the children continue to live with the mother and spend no time with the father.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)The nature of the relationship of the child with:
i)Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)Any other fact or circumstance that the court thinks is relevant.
Many of the considerations above are relevant in the context of the background matters discussed. The considerations as discussed below as a whole support orders being made as sought by the mother.
Both children expressed the view that they did not want to spend time with the father. The oldest child (who was aged 13 at the time of the interview) told the family consultant that he has no relationship with the father. The family consultant opined that given his age and developmental stage, it seemed unlikely he would comply with any order of the Court that went against their expressed wishes.
Records produced by the oldest child’s school of meetings with a school psychologist (Exh “D”) records that in April 2019 he expressed the view that he was “fearful of the outcome [of the father’s criminal proceedings], he is very worried that dad will hurt mum and siblings as a result”. In a subsequent meeting with the psychologist in July 2019, it is documented that the oldest child wanted to tell the psychologist of the outcome of the father’s criminal proceedings and it is recorded by the psychologist that the oldest child “appeared overwhelmed with happiness” and told the psychologist he felt “free and safe”. In light of the aforementioned, significant weight should be attached to the oldest child’s views.
The youngest child (who was seven years old at the time of interview) told the family consultant that she did not want to spend time with the father but was not able to detail her reasons for this view with much substance. The family consultant opined that given her age and developmental stage not much weight should be attached to her views.
The children appeared to the family consultant as having positive and established relationships with the mother.
The family consultant opined that following her observations of the children with the father in which both children presented as extremely rejecting of the father that “their ability to have a relationship with [the father] in their current environment is limited.” The family consultant was also of the view that the children’s relationship with their father had deteriorated following separation.
The father’s indication that he no longer intended to defend the parenting proceedings and disengagement from the proceedings can only be taken as a total forfeiture by the father of an opportunity to participate in the children’s lives.
The father historically has not paid the mother any child support.
The orders sought by the mother and supported by the ICL would see a maintenance of the status quo for the children as it would see the continuation of an arrangement where the children live with the mother and spend no time with the father. This is the only proposal before the Court.
The father’s non-parole period will expire in November 2027 at which point both children will already have attained the age of 18.
The mother has at all times been responsible for meeting the needs of the children. The oldest child described to the family consultant how the father would return home late from work and said that he “hardly ever saw” his father. In comparison, the oldest child told the family consultant that the mother had “played the role of both mother and father to him”.
The children’s attendance records are of concern (Exh “C” and Exh “D”) with both children having a significant number of absences in 2019. The youngest child’s school records reveal that in November 2019 the mother was contacted by the school regarding the youngest child’s attendance to raise concern regarding her attendance and that a “Home School Liaison Officer” at the school would work with her to develop an Attendance Improvement Plan to restore the youngest child’s attendance to an appropriate level. In the event there is no improvement in the child’s attendance, the school advises that the Department of Education and Communities would become involved.
The parents and the children are of Muslim faith. In the absence of any evidence, otherwise, it can be presumed that the children will have the opportunity to enjoy any aspects of that religion/ culture in the mother’s care.
Given the father’s disengagement from the proceedings, the orders sought by the mother would be least likely to lead to the institution of further proceedings.
Otherwise, the mother sought orders which would permit her to obtain a travel document for the child without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a passport for a child absent the consent of the other parent. Having regard to the father’s lengthy incarceration for offences perpetrated towards the mother, the Court is satisfied this order is proper.
The mother also sought orders which would permit her to change the children’s surnames to that of her own. The mother explains that the children have requested their names be changed because of concerns they have that the father will find them when he leaves gaol. She asserts that she has change her own name which she has not disclosed to the Court to protect herself and the children when the proceedings are finalised. The oldest child also told the ICL that he wishes to change his name.
As Austin J observed in Denyan & Beattie [2011] FamCA 155 at [129]:
Any decision about the name by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) FLC 90-510). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many conceivable consideration (see Flanagan v Handcock [2000] FamCA 150; (2001) FLC 93-074 at [19-38]; M v B [2001] FamCA 894 at [35-37] Marriage of Mahony & McKenzie [1993] FamCA 78; (1993) FLC 92-408).
In Fooks v McCarthy [1993] FamCA 117; (1994) FLC 92-450 Warnick J said at [14]:
There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.
The factors frequently considered in determining whether there should be any change to a child's name include:
a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
d)The effect of frequent or random changes of name;
e)The contact that the non-custodial parent has had and is likely to have in the future with the child;
f)The degree of identification that the child or children have with their non-custodial parent; and
g)The degree of identification which the child or children have with the parent with whom they live.
A consideration of the section 60CC factors having regard to the reality, that is, this point the children have no real relationship with the father and no prospect of such relationship supports the making of orders as sought by the mother as being in the best interests of the children. Such orders will allow the mother to parent the children as she has done for the last several years and allow her to change the children’s names which seems to be in accordance with both their wishes.
All the aforementioned considerations are indicative of orders made in the best interests of the children as sought by the mother.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 February 2020.
Associate:
Date: 14 February 2020
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