AKOL & MAGEED
[2015] FCCA 249
•17 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKOL & MAGEED | [2015] FCCA 249 |
| Catchwords: FAMILY LAW – Paternity – change of children’s surname – whether jurisdiction to order change of name. |
| Legislation: Births, Deaths and Marriages Registration Act 1996 (Vic), ss.4(1), 26(1) & (3) County Court Act 1958 (Vic), s.4(1) Family Law Act 1975, ss.60CC, 61DA, 62B, 65AA(1), (2) and (3), 65DA(2) |
| Leggett & Willis [2014] FCCA 1779 |
| Applicant: | MR AKOL |
| Respondent: | MS MAGEED |
| File Number: | MLC 6840 of 2012 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 July 2014 |
| Date of Last Submission: | 24 July 2014 |
| Delivered at: | Melbourne (by telephone) |
| Delivered on: | 17 February 2015 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| For the Respondent: | In person (with the assistance of an interpreter) |
ORDERS
That the Mother, Ms Mageed (“Mother”) have sole parental responsibility for the children [W] and [X] (both born [omitted] 2003), [Y] (born [omitted] 2006) and [Z] (born [omitted] 2009) (“Children”).
That the Father, Mr Akol (“Father”) spend time with the Children:
(a)commencing Saturday 21 February 2015 and each Saturday fortnight thereafter from 3.00pm to 7.00pm; and
(b)commencing Sunday 28 February 2015 and each Sunday fortnight thereafter from 2.00pm to 6.00pm;
(c)if requested by the Father, for one weekday (Monday to Friday) in each week of any school holidays from 10.00am to 4.00pm.
That the Mother take the Children to [omitted] Park (“the Park”) in [omitted] for the commencement of the Children’s time spent with the Father, and collect the Children from the Park at the conclusion of the Children’s time spent with the Father.
That the Mother inform the Father of any attendance by any of the Children on a medical practitioner, dentist or allied health practitioner, and the reason for and outcome of the attendance, within 24 hours of the attendance.
That the Mother provide the Father with a copy of the Children’s school reports within 7 days of their receipt by the Mother.
The Mother and Children attend upon Anglicare in [omitted] for the purpose of undergoing counselling to assist the Children and the Mother with issues relating to paternity and the Children’s ongoing relationship with the Father.
The Father undertake counselling to assist him in developing parenting skills with particular regard to childhood development and how to engage meaningfully with the Children.
Save as provided in these orders, all extant applications be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Akol & Mageed is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6840 of 2012
| MR AKOL |
Applicant
And
| MS MAGEED |
Respondent
REASONS FOR JUDGMENT
Introduction
In this application, Mr Akol (“the Father”) seeks to have equal shared parental responsibility with Ms Mageed (“the Mother”), and that their children live with the Mother and spend time with the Father, and that the children have their family name changed to that of their Father’s father.
History of the proceedings prior to final hearing
Father’s application
On 31 July 2012 the Father applied for final orders in the following terms:
1. The Applicant Father and the Respondent Mother have equal shared parental responsibility of the children, namely, [W] and [X] both born [omitted] 2003, [Y] born [omitted] 2006 and [Z] born [omitted] 2009.
2. The children live with the Mother.
3. The children spend time with the Father and communicate with him at such times as the Court deems appropriate.
4. The children [W], [X] and [Y] have their family name changed to [M].
The Court notes that “[M]” in proposed order 4 above should read “[M]”. The Court also notes that, apart from [X] who is female, the children are male.
Interim proceedings
On 5 September 2012 further orders were made as follows:
3. The Father, within 14 days, apply for full birth certificates for each of [W] born on [omitted] 2003 (“[W]”), [X] born on [omitted] 2003 (“[X]”), [Y] born on [omitted] 2006 (“[Y]”) and [Z] born on [omitted] 2009 (“[Z]”).
4. The Father, within 21 days, file and serve an affidavit attesting to and exhibiting the results of his application for birth certificates for [W], [X], [Y] and [Z].
5. The Mother attend personally on 22 October 2012 at 10.00am.
It would appear that the affidavit ordered to be filed by order 4 of the 5 September 2012 orders attesting to and exhibiting the results of the Father’s application for birth certificates for the children was not filed within the 21 days required, or at all.
On 22 October 2012 orders were made in terms of a minute of proposed consent orders which was in the following terms:
1. Pursuant to s.69W(1) of the Family Law Act 1975, the Applicant and the Respondent do everything required for a DNA parentage testing procedure to be carried out on each of them and on their children [W] born [omitted] 2003 (‘[W]’) and [X] born [omitted] 2003 (‘[X]’), [Y] born [omitted] 2006 (‘[Y]’) for the purpose of obtaining information to assist in determining the child’s parentage (“the DNA test”).
2. The DNA test be carried out in compliance with Division 2 of the Family Law Regulations 1984 by a NATA Accredited Laboratory.
3. A report be prepared in accordance with Division 3 of the regulations and given to the parties (“the report”).
4. The Respondent file and serve all Responding material at least 14 days prior to the next return date.
The matter was adjourned by consent to 29 January 2013 for an interim hearing. On that day the matter was adjourned to 7 March 2013 at 10.00am, the Court noting that the purpose of the adjournment was to enable the Mother and relevant children to undergo parentage testing.
On 7 March 2013 the matter was adjourned to 13 March 2013 and orders were made for the provision of a s.11F report under the Family Law Act 1975[1] to be given orally to the Court on 13 March 2013.
[1] “FL Act”.
On 13 March 2013 the matter was adjourned to 25 March 2013 for interim hearing.
On 25 March 2013 orders were made for:
a)the preparation of a Family Report;
b)a two day final hearing in or after August 2013; and
c)the children live with the Mother, and spend time with the Father on each alternate Saturday afternoon for two and a half hours commencing 20 April 2013, with the Mother to deliver the children to [omitted] Park in [omitted] at the commencement of the time spent with the Father and to collect the children from the same place at the conclusion of the time spent with the Father.
A Family Report was prepared dated 11 June 2013.[2] The contents of the Family Report are dealt with further below.
[2] “Family Report”.
On 12 August 2013 the Father filed an application in a case seeking that the Mother comply with the orders with respect to the children spending time with the Father and in relation to the place of changeover.
At an interim hearing on 13 September 2013 a final hearing which had been listed for 17 and 18 October 2013 was vacated and the Court made orders with respect to:
a)counselling for the Mother and children in relation to issues of paternity and the children’s ongoing relationship with the Father;
b)release of the Family Report;
c)the Father undertaking counselling to assist him in developing parenting skills; and
d)the appointment of an independent children’s lawyer.
The Court noted that the Mother undertook to comply with the 25 March 2013 orders with respect to the Father’s time spent and changeover.
On 12 November 2013 further orders were made with respect to the separate representation of the children and the appointment of the independent children’s lawyer, and the matter was adjourned to 19 December 2013 for mention, and to 27 March 2014 for final hearing.
On 19 December 2013 the Court ordered that the children spend three hours each Saturday with the Father commencing 28 December 2013.
On 27 March 2014 the matter was adjourned for final hearing on a date to be advised with an estimated hearing time of two days.
Mother’s involvement
The Court notes that the Mother filed no response and no affidavit evidence. Further, there were occasions when she did not appear before the Court when orders were made, namely 5 September 2012, 12 November 2013 and 19 December 2013.
Final hearing on 24 July 2014
A final hearing was held in this matter on 24 July 2014. Further details of that hearing are set out below.
Evidence
The evidence which the Court has considered for the purposes of these reasons includes:
a)the Father’s affidavits sworn 27 July 2012,[3] 8 August 2013[4] and 21 March 2014;[5]
b)the affidavit of Mr V sworn 8 April 2013,[6] Mr V being the Chief Reporter Forensics & Paternity with Genetic Technologies Ltd in [omitted] in the State of Victoria;
c)the Family Report; and
d)the Father’s oral evidence at final hearing on 24 July 2014.
[3] “Father’s July 2012 Affidavit”.
[4] “Father’s August 2013 Affidavit”.
[5] “Father’s March 2014 Affidavit”.
[6] “Mr V’s Affidavit”.
Father’s July 2012 Affidavit
In the Father’s July 2012 Affidavit the Father says that:
a)he was born on [omitted] 1985 in Sudan and migrated to Australia on 1 October 2003, becoming an Australian citizen in 2005;
b)the Mother was born on [omitted] 1975 in Sudan and migrated to Australia in April 2003;
c)the Mother and Father met in Cairo in 2002 and formed a relationship. At that time the Mother was with her husband,[7] and the Mother and the Mother’s Husband had two young children aged about four years and two years;
[7] “Mother’s Husband”.
d)whilst living in Cairo the Mother fell pregnant with twins, and informed the Father that he was the Father of those twins;
e)in April 2003 whilst pregnant with the twins the Mother migrated to Australia with the Mother’s Husband and the two children from her marriage;
f)the eldest two children were born on [omitted] 2003, and prior to their birth the Mother told the Mother’s Husband that the eldest two children were not his children, which led to difficulties in the marriage and the Mother’s Husband left the marital home;
g)the Father migrated to Australia on 1 October 2003, at which time the Mother and the Mother’s Husband were living together;
h)upon the Father’s arrival in Australia he and the Mother resumed their relationship and he visited her at home one or two times each week and at times they went out together. They maintained a sexual relationship;
i)the third child was born on [omitted] 2006, prior to which the Mother and the Mother’s Husband had fallen out and the Mother’s Husband had moved out of the marital home;
j)following the third child’s birth the Mother and Father continued with their relationship and the Father spent time at the Mother’s home on a regular basis and developed a bond with the children. The visits occurred approximately four times per fortnight;
k)the fourth child was born on [omitted] 2009, and has a surname insisted upon by the Father, which is the first name of the Father’s father, in accordance with Sudanese tradition that the children’s surname be the first name of their grandfather;
l)prior to the birth of each of the four children the Mother informed the Father that the children were his;
m)in the period following the birth of the fourth child the Father continued spending time with the Mother and continued spending time with the children, being approximately four times per fortnight;
n)in November 2011 the Mother’s Husband moved back into the marital home and the Mother informed the Father that he was no longer permitted to visit, and should he do so there would be a fight between the Mother and the Mother’s Husband and the Mother did not want this;
o)the Mother informed the Father that the property in which she lives is owned together with the Mother’s Husband and that he was assisting the Mother with the expenses and with the children;
p)the Father asked the Mother to meet him at a shopping centre so that he could see the children but she did not agree, nor did she agree to the Father seeing the children at their school;
q)the Father sought mediation through a family relationship centre but the Mother did not participate; and
r)the Father is employed on a fulltime basis as a [omitted]. His hours of work are from Monday to Friday 8.00am to 4.30pm and he has a Victorian driver’s licence and owns his own vehicle.
Father’s August 2013 Affidavit
The Father’s August 2013 Affidavit was sworn in support of the application in a case for orders that the Mother comply with the consent orders of 25 March 2013 for the Father to spend time with the children on alternate Saturday afternoons and for adherence to the place of changeover. Having referred to those orders the Father then says:
a)the place of changeover is in close proximity to where the Mother lives;
b)he attended at the place of changeover on 20 April 2013, waited for an hour and a half, but the Mother and the children did not attend;
c)he went to the home of the Mother’s neighbour, and ascertained through the Mother’s neighbour that the children were at home and in the care of the Mother’s Husband. The Father did not spend any time with the children on this occasion;
d)letters were forwarded by the Father’s solicitor on 29 April 2013 and 1 May 2013 seeking compliance with the 25 March 2013 consent orders;
e)on 4 May 2013:
i)the Father attended the place of changeover, as did the Mother together with the four children. The eldest two children refused to go with the Father, but the Father was able to take the youngest two children to McDonalds where he bought them something to eat, during which time the third child told the Father that the Mother had said to the children that they should not go with him and that he was not their father; and
ii)the Father spent from 3.30pm until 6.00pm in the company of the youngest two children;
f)the Father’s next scheduled time spent with the children was on 18 May 2013, and he telephoned the Mother asking her to confirm that the children would be provided and that he would spend time with all four children. The Father says that the Mother complained that the younger children had been taken to McDonalds and were sick afterwards, and complained about the Father bringing them sweets. The Father says that he questioned the Mother as to why she had not told him about this earlier and asked as to whether the Mother had taken the children to a doctor, to which the Mother replied that it was none of his business;
g)the Father attended the place of changeover at 3.30pm on 18 May 2013, but the Mother did not attend and nor did the children. The Father telephoned the Mother and she told the Father that the children did not want to attend and that the children did not want him;
h)on 16 July 2013 the Father’s solicitor wrote to the Mother requesting that the Father be able to spend time with the children at the place of changeover on Sunday 21 July 2013, following which the Father telephoned the Mother on 19 July 2013 to see whether the children were to be made available to him on that Sunday. The Father says that the Mother told him that it was [omitted] birthday on Saturday and did not commit to having the children attend at the place of changeover on the Sunday; and
i)on Sunday 21 July 2013 the Father telephoned the Mother at approximately 2.00pm and asked whether the children would be attending for time spent, and the Mother said that the children did not want to attend and that they did not want to see him, and that based on this advice he did not travel to the place of changeover on Sunday 21 July 2013.
Father’s March 2014 Affidavit
The Father’s March 2014 Affidavit says that:
a)to the best of the Father’s knowledge the Mother had not complied with the 13 September 2013 orders to undertake counselling;
b)in relation to the 13 September 2013 order for the Father to attend counselling he had contacted an organisation to make arrangements and been told that there was a waiting list and had not yet been advised that he could start counselling;
c)he had obtained a booster seat for his car and fitted the car with proper child restraints so that he could transport the children (thereby overcoming the restraining effect of order 7 of the 13 September 2013 orders);
d)between Saturday 21 September 2013 and Saturday 23 November 2013 he was only able to see the children on 21 September 2013 and 19 October 2013, and the Mother did not otherwise make them available;
e)the Father noted the Mother’s undertaking (noted in the 13 September 2013 orders) to comply with the time spent and changeover orders 2 and 3 of the 25 March 2013 consent orders;
f)on the two occasions that the Father had spent time with the children that time proceeded happily and he took the children for a meal on one occasion and to a shopping centre for a snack on the second occasion, on which occasion he also bought the children toys;
g)the Father travelled to South Sudan on 28 November 2013 and returned to Victoria on 30 January 2014;
h)on 19 December 2013 the Court made orders increasing the Father’s time spent with the children to three hours each Saturday commencing 28 December 2013;
i)since 1 February 2014 the Father had not been able to see the children as his car needed repairs and he had not been able to arrange those repairs. The Father had therefore been unable to collect the children from the place of changeover near their home, and without a car was unable to transport the four children for outings. The Father’s view was that it was not practicable and he was worried about the children’s safety if he used public transport with four children, as there was no bus route near their home and the nearest train station was a 15 minute walk away;
j)the Father had rung the Mother to advise that when he had the use of his car again he would let her know and could come again to see the children, to which the Mother agreed;
k)on 27 November 2013 the Father’s lawyers had written to the Mother and proposed as a long-term solution that the Father spend time with the children as follows:
A two (2) week cycle on the first week on a Saturday from 3.00pm until 7.00pm and in the second week on a Sunday from 2.00pm until 6.00pm.
and made inquiries as to whether the Mother had commenced the counselling provided for in the 13 September 2013 orders;
l)as at the date of swearing the Father’s March 2014 Affidavit (21 March 2014) the Mother had not responded to the Father’s lawyers’ letter of 27 November 2013;
m)it was important as part of the Father’s heritage that the surname of the three oldest children be changed from “[A]” to “[M]” in accordance with the South Sudanese tradition of giving children the surname of the paternal grandfather, a process which the Mother had agreed for the youngest of the children because the Father was present at the hospital when that child was born; and
n)the Father’s full name is “[omitted]”. Akol is the first name of the Father’s paternal grandfather.
Mr V’s Affidavit
Mr V’s Affidavit indicates that he is the Chief Reporter Forensics & Paternity at Genetic Technologies Ltd. He has held that position since 2008, prior to which he worked in the biological examinations branch and biology division of the Victoria Police Forensic Services Centre for eleven years. Mr V holds an honours degree in science from La Trobe University. Mr V took samples from the three eldest children, and from the Mother and Father, and prepared a DNA Parentage Testing Procedure Report[8] in accordance with the FL Act. In the Parentage Report Mr V calculates that in relation to:
a)the male twin child, the Father is 65,455,839 times more likely to be the father of [W] than an unrelated man chosen at random from the African population and that the relative chance of paternity is 99.999998%;
b)the female twin child, the Father is 2,454,216 times more likely to be the father of [X] than an unrelated man chosen at random from the African population and that the relative chance of paternity is 99.99996%; and
c)the third child, the Father is 36,060,105 times more likely to be the father of [Y] than an unrelated man chosen at random from the African population and that the relative chance of paternity is 99.999997%.
[8] “Parentage Report”.
Family Report
The Family Report essentially confirms the factual background set out by the Father, but with one major exception, that being that the Mother asserts that each of three pregnancies resulting in the birth of the four children were the consequence of non-consensual sex with the Father.
The Mother has two other older children, seemingly born in or about 1998 and 2001, and fathered by the Mother’s Husband.
Although the Mother has not filed any documents in the course of the litigation the Mother did indicate to the Family Report writer that her response to the Father’s application was to have the children live with her, and to spend such time with the Father as was deemed appropriate by the Court.
The Mother otherwise indicated to the Family Report writer that:
a)the Mother’s Husband left the marital home after the paternity of the twin children was disclosed by her, but that they have subsequently reunited, and the Mother’s Husband accepts those children which are not his own as his own, an arrangement that is accepted in the Sudanese culture;
b)she refused a request from the Father to move into the marital home following the Mother’s separation from the Mother’s Husband, the Mother saying that she did not believe that the Father was safe to be in the company of the children, but continued to allow the Father to visit the children in the family home. The Mother said that the Father did not have any meaningful interaction with the children during those visits;
c)she has advised the children of their paternity and the results in the Parentage Report, and indicated that the children were upset and asked why they had not been informed sooner;
d)she denied the need for counselling and did not believe there was any merit to encouraging a relationship between the Father and the children, and said that the children were resistant to spending time with the Father and that she was concerned about their safety in his care. The Mother was supportive of the children engaging with a counsellor to discuss the identity of the Father and as not wanting to be perceived as alienating the children from their Father;
e)she has a sister to whom she is close who lives in Melbourne; and
f)the children attend school and day care and there do not appear to be any problems with their schooling or relationships either externally or with the Mother, save for what she says about her concerns with respect to their relationship with the Father.
In relation to the Father the Family Report writer wrote that:
a)the Father presented to the Family Report writer “as a forthright and engaging person”. He shared a one bedroom place with a friend and was employed at [omitted]. He was the youngest of six children from his Father’s five wives, his mother being the second wife. His father was not a presence in his life, save for showing him how to look after the family cow;
b)the Father and Mother knew each other in Sudan as young children and grew up together according to the Father, and then re-met in Cairo and commenced a relationship. The Father says that the Mother was unhappy in her marriage and wanted to separate;
c)the Father came to Australia because of the problems in Sudan, and came to Melbourne where he had family. The Father says that he and the Mother resumed the relationship when he came to Australia, and that he had been spending as many as three times a week with her, and that the Mother had come to visit him at his house;
d)the Father said that the relationship between the Mother the Mother’s Husband was erratic and they separated and reunited on many occasions, but that he believed that the Mother’s Husband was currently living with the Mother;
e)the Father said that he had spent time with the children when the Mother’s Husband was not present for up to two to three times a week, and that the children had not been aware that he was their father and referred to him as “uncle”. He said that he played with them, took them on outings, shopping and to a Sudanese party. The Mother had stopped him from spending time with the children in 2011;
f)the Father asserted that he had financially supported the Mother with school fees and also bought her a car;
g)the Father said that he had spent time with the children at the local Hungry Jacks, since being allowed to spend time with them from May 2013, but that only the younger two children had chosen to attend the visits; and
h)the Father was emphatic that the Mother had not discussed paternity with the children and claimed that she tells the children that the Mother’s Husband is their father.
Each of the three eldest children interviewed by the Family Report writer identified the Mother’s Husband as their father. There was some ambiguity about this, but one of the eldest two children and the youngest child said that they did not know the Father and did not see him and that he had not attended the family home. The other eldest child says that she had met the Father twice but was not sure who he was, but had seen him in the park and that when he does come to the house he does not help. Each of the children described their relationship with the Mother’s Husband in relatively positive terms, and each of the children said that they were closest to their Mother.
The Family Report writer’s evaluation was as follows:
44. The purpose of this report is to consider the Father's application to spend time with his children. The applicant and the Mother provide contradictory accounts about the Father's relationship with the Mother and children. The applicant claims that he and the Mother have had a longstanding yet erratic relationship and have never lived together. He claims that he has spent time with the children as an uncle figure and is unsure whether the children have been informed about his identity as their father. The Mother claims that she and the applicant have not had a consensual relationship and that the applicant has controlled the relationship. She fears for the safety of the children in his care due to the nature of their relationship.
45. The Mother presented as an assertive person who was quite unemotional in her presentation. Her account of her relationship with the applicant appeared to have inconsistencies. She appeared to suggest that her four children were conceived by three separate acts of rape. If her account is reliable it would appear that her caution about his future relationship with the children is appropriate and protective. As such the court would need to consider the safety issues with regard to the Father spending time with the children. The Mother's emotional affect in describing her encounters with the applicant was not laden with any emotions such as anger, distress or sadness. The only emotions were ones of positive concern, when she was cautious about disclosing the applicant's identity out of fear that he might be harmed by her family. It is difficult to establish whether her lack of affect suggests that the relationship was plutonic or whether there is a cultural consideration to her being emotionally detached. The Mother seems intent on supporting the children in their relationship with Mr. [A]. However she is not supportive of their relationship with the applicant and is likely to undermine it without support from an external source such as a counselling service.
46. The applicant presented as a person intent on pursuing a relationship with his children. From his account he has spent significant time with the children within the confines of the secretive and erratic nature of this relationship. The Father's interaction with the children appeared to be guided by his own upbringing. His understanding of a meaningful relationship appears to be based on his own childhood experience. Given the complex nature of his relationship it does not appear that he has established any meaningful attachment with the children. His relationship appears to have been based on his practical support of the Mother without any effective engagement with the children. It appears that the applicant may need guidance in establishing this relationship by learning more effective means of engagement with his children. If the applicant had no foundation in his own childhood he may need support with learning to how to have play and have fun with his children.
47. If the Father's account is reliable and the court deems there are no protective issues, it is in the children's best interests to develop a meaningful relationship with their Father. The process is complicated by the couple's dynamics and the cultural issues. The children do not appear to have any bond with the applicant and identify with the Mother's former husband as their father. They are vague about the applicant's identity which would suggest that they either have not been informed or are in denial about his identity. In order to advance their relationship, the children and the applicant will need support in exploring his paternity and in developing a more meaningful means of interaction. Any introduction will need to be gradual and appealing to the children and would be enhanced by activity based contact.
48. Consideration also needs to be given to the Mother's older children. They will also need to be informed about their sibling's paternity as it is likely to impact on their identity and understanding of their family structure.
On the basis of the information available the Family Report writer recommended that:
a.The children live with their Mother.
b.That at this stage the Mother has sole parental responsibility for the children.
c.The children spend time with their Father on a more regular basis to develop their bond. It is recommended that they spend time for a three hour period once a week on either a Saturday or a Sunday.
d.The Father and Mother to engage with a family support service to assist in supporting the children's relationship with their Father. This service may be able to provide counselling regarding the paternity issues and support the Father in developing more effective means of engaging with the children. A suggested service that may be able to provide an outreach service to the Mother in her home is Anglicare, [omitted].
e.The Father also engage with a counsellor to assist him in developing parenting skills. In particular developing an understanding of children's developmental issues and how to engage with them in a more meaningful relationship. A suggested service is Lifeworks Ph: 99743200.
f.The issue of changing the children's surname be reserved until all parties have engaged in counselling about the applicant's paternity.
g.The matter be reviewed after a period to review the parties progress.
Oral evidence, submissions and other matters at hearing on 24 July 2014
At the hearing on 24 July 2014 both the Father and Mother were self-represented. There was no independent children’s lawyer, it appearing that one was not appointed notwithstanding the Court’s orders of 12 November 2013. At hearing the Father and Mother each had the assistance of an interpreter in the Dinka language.
Both the Father and Mother were obviously unfamiliar with the Court’s practice and procedure. The Father did however go into the witness box because the Mother indicated that she wished to cross-examine him. The cross-examination was short, and largely ineffectual, and the Mother did not in cross-examination, or otherwise, challenge the change of name application or the Father’s paternity of the children, or significantly challenge the Father’s time spent application.
In response to questions from the Court the Father did say that he also sought orders with respect to:
a)access to the children’s school, school activities and school reports and extra-curricular activities, and medical reports and advice concerning medical incidents; and
b)to spend time with the children for half of the school holidays, with the caveat that because of accommodation difficulties (discussed further below) that he pick the children up each morning and return them to the Mother’s home each night.
Subject to what is said below, the Mother raised no objection to any such orders being made.
Further questioning from the Court elicited from the Father that he occupied one bedroom in a two bedroom house, the other bedroom being occupied by his “colleague” and consequently there was “no room” in the house for the Children to stay over.[9]
[9] Transcript, page 9.
The Father also said that before he took “responsibility” for the children he wanted the change of name to be processed.[10]
[10] Transcript, page 9.
The Mother did not suggest in her cross-examination of the Father that he ought not spend the time he sought with the children. The Mother did however object to the Father’s suggestion that his lack of suitable accommodation meant that if he were, for example, to spend time with the children for half of the school holidays, he would have to pick up and return the children each morning and afternoon respectively. The Mother said she did not accept this arrangement, and that the Father should have all of the children for the relevant period, save for the female child whom she said should be returned to her each night.
The Mother chose not to give evidence at the hearing, and indicated she was content for the matter to be decided on the material that the Father put before the Court, together with the Father’s oral evidence.
Consideration – name change
It is convenient to consider the name change issue first, because the Father’s position on equal shared parental responsibility is partially conditional upon the outcome of the name change issue.
The Father’s application to change the name of the three eldest children to reflect the paternal grandfather’s name in accordance with Sudanese tradition was not opposed by the Mother, and she did not cross-examine the Father with respect to the name change.[11] Nor was there any challenge to the admissibility or content of Mr V’s Affidavit (including the Parentage Report) as to the paternity of the children, and which, in the Court’s view, establishes that the Father is the father of the three eldest children. That is consistent with the Mother’s discussions with the Family Report writer in which she acknowledges that the Father is the Father of the Children, but asserted that each of the three pregnancies resulting in the delivery of the four children over a period of more than six years was as a result of non-consensual sex with the Father. In any event, on the evidence, there is no dispute, and the Court finds, that the Father is the father of the three eldest children.
[11] Transcript, pages 5-6.
The question arises as to whether the Court has power to change the name of the three eldest children, or any of them.
In the state of Victoria the power to register and change a child’s name is prescribed by s.26(1) of the Births, Deaths and Marriages Registration Act 1996 (Vic).[12] Section 26(1) of the BDMR Act provides that:
The parents of a child may apply to the Registrar in the approved form for registration of a change of the child’s name if –
(a)the child’s birth is registered in Victoria; or
(b)the child –
(i)was born outside Australia; and
(ii)is a child whose birth is not registered in Victoria or another state or a territory; and
(iii)has been ordinarily resident in Victoria for at least 12 months immediately before the application is made.
[12] “BDMR Act”.
It is not necessary to address the criteria for a change of name by reference to the evidence in this case because there is a further, and more fundamental, difficulty which stands in the road of this Court making an order that there be a change of name on an application made by one parent. That difficulty is s.26(3) of the BDMR Act which provides as follows:
An application for registration of a change of a child’s name may be made by one parent if:
a)the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law; or
b)there is no other surviving parent of the child; or
c)the Court approves the proposed change of name.
There is no evidence that the Father is the sole parent named in the registration of any of the children’s births, whether under the BDMR Act or any other law, and there is another surviving parent of the children, and therefore s.26(3)(a) and (b) of the BDMR Act could not apply, even if this Court had power to change a child’s name under those paragraphs, which it does not, that power being vested in the Registrar under the BDMR Act.
For the purposes of s.26(3) of the BDMR Act, the word “Court” is defined by s.4(1) of the BDMR Act as follows:
“Court” means the County Court.
Although not further expressly defined, it is apparent that the County Court is the court established as “The County Court” under s.4(1) of the County Court Act 1958 (Vic).
The consequence of the definition of “Court” in s.4(1) of the BDMR Act is that in Victoria only The County Court has jurisdiction and power to approve a change of name for the children. This Court has no jurisdiction to approve or order a change of name for these children resident in Victoria.[13]
[13] See Leggett & Willis [2014] FCCA 1779 at para.34 per Judge Scarlett (“Leggett”) where the same conclusion was reached.
In order to obtain approval to change the children’s name, and to have that change of name registered in Victoria under the BDMR Act, the Father must make an application to The County Court in Victoria.[14]
[14] BDMR Act, s.26(3)(c); Leggett at para.34 per Judge Scarlett.
Consideration – parental responsibility and time spent
The Court sets out below its consideration of the primary (FL Act, s.60CC(2)) and other (FL Act, s.60CC(3)) factors for consideration in relation to parental responsibility and time spent. In so doing the Court is cognisant of the necessity to have overall regard to the best interests of the children when considering time spent with the children by the parents,[15] and to the presumption that it is in the best interests of the children for there to be equal shared parental responsibility.[16]
Benefit to the children of having a meaningful relationship with both parents – FL Act, s.60CC(2)(a)
Parental facilitation and encouragement of a close and continuing relationship between the Children and other parent – FL Act, s.60CC(3)(c)
Attitude to the children and parental responsibilities – FL Act, s.60CC(3)(i)
[15] FL Act, s.65AA(1), (2) and (3).
[16] FL Act, s.61DA.
There is no doubt that children generally benefit from a meaningful relationship with both parents. In this case the children appear to have had a lifelong and seemingly meaningful relationship with the Mother, and the Mother’s Husband, the latter having been recognised by them, and in particular the eldest two children, as their father.
The children have not had, overall, a meaningful relationship with the Father during their lifetime. It is a relationship which has been erratic and episodic, reflecting the Father’s relationship with the Mother in that respect, and with limited contact between the children and the Father. The nature of the relationship identified by the Family Report writer is, at best, avuncular, and certainly involves considerable equivocation on the part of the children as to their relationship with the Father, and at worst, and in particular in relation to at least two of the children, a denial that they know the Father.
There are difficulties with the Father establishing a meaningful relationship with the children in the short term. The first two of those have already been identified, namely:
a)the erratic and episodic relationship that the Father has had with the children who are now 12, 8 and 5; and
b)the children’s attitude to the relationship, as set out above.
There are, however, other difficulties. The first is a self-imposed one: the Father does not wish to take on increased parental responsibility until the children’s name is changed to that of their paternal grandfather in accordance with Sudanese tradition.
The second is the nature of the accommodation presently occupied by the Father. The Father occupies one of two bedrooms in the house in which he has a co-occupant who is another male. Whilst too much can be made of the supposed need for every child in a family to have a bedroom and individual toys and technological accoutrements, a single bedroom in a house to be shared between a father and four children (three males and a female turning 12 this year) is unlikely to be of benefit to the relationship the children have with the Father when, or if, they are required to spend time with him, and in particular overnight time.
The third factor is the Mother’s attitude. The Mother has failed to engage in mediation or counselling designed to enhance the Father’s relationship with the children. She has not readily facilitated the Father spending time with the children on all occasions on which she has been required to do so by order of this Court. It would also appear that it took some time for the Mother to properly acknowledge to the children that the Father was in fact their father.
The above matters go not only to the benefit of the children having a meaningful relationship with both parents, but the last in particular goes to the parental facilitation and encouragement, on the part of the Mother, of a close and continuing relationship between the children and the Father.
The position is further complicated by the fact that the Mother’s Husband appears to have accepted the Mother’s four children by the Father as his own, and that the children consequently appear to accept him as their father. The children have two older half-siblings from the marriage of the Mother and the Mother’s Husband, and they appear to operate as a family with six children.
All of the above matters make it very difficult for the Father, in the short term, to have a meaningful relationship with the children, notwithstanding his evident preparedness to do so. It is apparent that the Father will need assistance to properly undertake the role of a parent, and that the Mother will also need assistance to properly facilitate the Father playing a role in the children’s lives appropriate to his status as their father. Because of the existing situation with the Mother’s Husband, and the two oldest half-siblings, the development of a relationship between the children and the Father, and the undertaking of parental responsibilities by the Father, will have to be managed carefully and not simply imposed on all of the parties concerned.
Risk of Harm to the children – FL Act, s.60CC(2)(b)
There is no evidence of any family violence orders, or any complaints of violence, in relation to the children and the Father. Implicit, however, in the Mother’s discussion with the Family Report writer was a suggestion that there was a risk of harm to the children, and in particular the female child, if the children were to spend significant amounts of time with the Father. And, yet, the Mother urges that the children are to spend time with the Father, including, for example, school holidays with the Father, if ordered by the Court, and they should spend that time as a block of time with him, save for the female child, whom the Mother would have brought home every night by the Father. The Mother seemed to suggest that her alleged experience at the hands of the Father, alleging that she was sexually assaulted three times resulting in the birth of the four children, might mean that there was some risk of harm to the children.
In the Court’s view it is unlikely that the Mother was sexually assaulted on each occasion resulting in a pregnancy and the birth of the children. Rather, she appears to have had a long-term, possibly secretive, but certainly erratic and episodic relationship with the Father (who appears to be 10 years her junior), whilst married to the Mother’s Husband, continuing across two continents and for more than a decade, resulting in the birth of the four children.
Two of the children were born in Australia, and it does not appear that there has been any complaint of alleged sexual assault made at any time to the police, or to anyone else, save the Family Report writer, and then not until almost four years after the birth of the youngest child. In the Court’s view the allegations of sexual assault seems unlikely to be true. The Court is reinforced in that view by the fact that the Mother has previously been prepared to allow the Father to spend time with the children on numerous occasions, both within her home and outside of it, and with the children in her absence. The Father does not suggest that the children would be at risk of harm if they were to spend time with him.
In all of the circumstances, the Court is of the view that there is not a risk of harm to the children if they are to spend time with the Father.
The Court does, however, understand the Mother’s reluctance to allow the female child, who will be 12 later this year, to stay overnight with the Father in a house with another male about whom the Court was told and knows nothing. For this reason, amongst others discussed above and below, the Court will not make orders requiring the female child (or the other children) to spend time with the Father overnight.
In the circumstances, the Court is of the view that the children will not be exposed to a risk of harm if required to spend time (other than overnight time) with their Father.
Views expressed by the children – FL Act, s.60CC(3)(a)
The views expressed by the children are fairly limited, but appear to be conditional, and perhaps conditioned by the views of the Mother and the dynamics of the relationship between the Mother and the Mother’s Husband and the Mother and the Father. Effectively, the children have in the past seen the Mother’s Husband as their father, and the Father as some kind of “uncle”, at least until they were apprised of the fact that the Father was their father by the Mother. That occurred only during the course of these proceedings, and then fairly late in the proceedings. It appears that the youngest two children may be more accepting of the Father as their father than are the eldest two children. It is however tolerably clear that any arrangement for the Father to spend time and exercise parental responsibility with respect to the children is going to have to be one that is to be implemented gradually given:
a)the history of the matter; and
b)the family dynamics involving the Mother, the Mother’s Husband and the two older half-siblings, who together with the four children the subject of these proceedings, have effectively formed an eight person family unit.
Relationship of the children to parents and other significant persons – FL Act, s.60CC(3)(b)
Much of the nature of the relationship of the children to the parents is covered in the preceding discussion. There are, however, significant other persons in the children’s relationship, as indicated above, namely, the Mother’s Husband, and the two older half-siblings from the marriage of the Mother and the Mother’s Husband. There is not detailed evidence available to the Court about these relationships, but what is apparent from what evidence there is, is that the Mother’s Husband has been considered by the children and the two half-siblings to be their father. The Mother’s Husband and the two half-siblings were not seen by the Family Report writer, and it is difficult to gauge what impact an order of the Court with respect to the children spending time with the Father and or imposing equal shared responsibility might have on the Mother’s Husband and the two older half-siblings. In the factual circumstances outlined above, and in particular where the Mother’s Husband is seen as, and has effectively been, the father of a six children family unit through the lives of those six children, a sudden disruption or rendering apart of that family relationship is not desirable. The Mother’s Husband, and the two older half-siblings, have been, and must continue to be, a significant factor in the children’s lives, particularly in circumstances where the Mother’s Husband contributes to the house in which they all live.
Likely effect of changes in the children’s circumstances – FL Act, s.60CC(3)(d)
The likely effect of the changes in the children’s circumstances if there were to be a change in time spent with their Father and in relation to equal shared parental responsibility is sufficiently discussed above.
Practical difficulty and expense of children spending time and communicating with parents – FL Act, s.60CC(3)(e)
Insofar as the Father seeks orders to spend one afternoon per weekend with the children that is a proposal which does not appear to give rise to any practical difficulty or expense, it being effectively the current interim position as ordered by this Court. If there is any practical difficulty with the existing orders it is with the Mother’s compliance, and the willingness of the eldest two children to see the Father. Assuming, for present purposes, that the Mother will comply with the orders of the Court and ensure, so far as is possible, that the children attend to spend time with their Father in accordance with any orders of the Court, there would appear to be no practical difficulty, or expense issue, associated with the children spending one afternoon per weekend with the Father.
With respect to school holidays the Father indicated at hearing that he would seek to have school holidays time spent on the basis of an equal sharing of school holiday time with the Mother. As indicated above, the Mother had no difficulty with this, except that she did not agree with the Father’s suggestion that he return the children each night, and save that the Mother wanted the female child returned each night. It is clearly impracticable for the Father to have the children overnight in a house in which he occupies just one bedroom. Further practical difficulties with introducing arrangements for the Father to have equal time spent with the children over school holidays are that it represents a sudden and significant change to the present arrangements with respect to time spent, and the Father and Mother are not in agreement with respect to the arrangements for all of the children to spend that time with the Father. As the Family Report writer has indicated there will need to be a graduated approach to the question of time spent by the children with the Father, and this must include any time spent on school holidays. Furthermore, there is no evidence as to how the Father might or might not be able to arrange his work commitments to facilitate further time with the children on school holidays. That said, the Father ought to be able to spend some time with the children during the school holidays. In the circumstances, the Court proposes to order that the Father spend time with the children, if he requests to do so, for one weekday (Monday to Friday) from 10.00am to 4.00pm in each week of the school holidays.
As to the question of equal shared parental responsibility the evidence of the financial position of each of the Mother and Father is limited. Save for the fact that the Father works full-time as a [omitted], there is no evidence of the parties’ financial positions before the Court. Given, however, that the Mother is presently apparently meeting whatever expenses are associated with fulfilling the parental responsibility role (seemingly with the assistance of the Mother’s Husband), there is no reason to consider that if the Father were to have equal shared parental responsibility, the financial position would be any worse. The Father would and will presumably have some capacity to meet expenses a consequence of his full-time employment. If, as recommended by the Family Report writer, the existing arrangement whereby the Mother has sole parental responsibility is ordered, then the current position does not change, and it does not appear that there is any expense issue arising with respect to the children spending time and communicating with the parents under the existing arrangements.
Fulfilment of obligations to maintain, and capacity to provide for the needs of, the children – FL Act, s.60CC(3)(a) and (f)
Having regard to the discussion in relation to the immediately preceding factor it is apparent that whether an order for equal shared parental responsibility or an order for the Mother to have sole parental responsibility is made, that both the Father and the Mother have the capacity to continue to provide for the needs of the children.
Maturity, sex, lifestyle and background of the children and Parents – FL Act, s.60CC(3)(g)
The Court’s views in relation to this issue are sufficiently otherwise canvassed above.
Aboriginal and Torres Strait Islander children – FL Act, s.60CC(3)(h)
Not applicable in this case.
Family Violence or Family Violence Orders involving the Children or a member of the family – FL Act, s.60CC(3)(j) and (k)
There are no family violence or family violence orders in evidence, and no reference was made by the parties to any issue of family violence or family violence orders, save for that discussed in relation to the risk of harm to the children factor discussed above. Having regard to the conclusion reached above, and the fact that there is no family violence and no family violence orders involving the children or a member of the family, so far as the Court has been made aware, there is nothing in this factor which would prevent orders being made as sought by the Father.
Order less likely to lead to further proceedings – FL Act, s.60CC(3)(l)
From the foregoing discussion it is evident that there will need to be a gradual approach to the increasing involvement of the Father in the lives of the children in this matter. It is apparent that the necessity for a graduated approach in relation to the time to be spent by the children with the Father might mean that, in time, there will be further proceedings between these parties. Furthermore, for reasons which are set out above and dealt with below, the Court is of the view that equal shared parental responsibility is not presently in the best interests of the children in this case,[17] but that does not mean that it might not become appropriate once the Father has had the opportunity to become more involved in the children’s lives or if his circumstances, particularly in relation to his accommodation arrangements, change. Thus, it appears to the Court to be inevitable that at some future point in time, but not in the short term, that there will be further proceedings. For the short-term at least, the orders to be made should preclude further proceedings in this Court over the next year or so.
[17] FL Act, s.61DA(4).
The Court notes that the name change issue will have to be dealt with in The County Court of Victoria, and that is another circumstance which might factor into a change in the arrangements with respect to parental responsibility, but that any application in The County Court of Victoria will itself take some time to resolve, and consistent with the view expressed immediately above, it is unlikely that any name change order from The County Court of Victoria will be likely to give rise to further proceedings in this Court in relation to these parties within the next year or so.
The Court effectively recognises that the present orders, although in the form of final orders, will be a form of longer-term interim order.
Further consideration, conclusions and orders
With respect to the issue of parental responsibility the Court is cognisant that:
a)the Father does not want any “increased” parental responsibility until the name change issue has been resolved;
b)the Mother’s approach to these proceedings has made it difficult for the Father to demonstrate his capacity to undertake equal shared parental responsibility (but the Mother should be aware that causing ongoing difficulties of this type is likely, in the longer term, to work against her);
c)the Father’s existing living arrangements not only make it difficult for him to properly undertake both an increased amount of time spent with the children, but also equal shared parental responsibility, there being no evidence before the Court as to how the other occupant of the Father’s house might react to, for example, children playing games or having friends visit, children using any bathroom, or the necessity to have quiet time to enable the children to do homework or get to sleep; and
d)a gradual approach to the Father undertaking both increased time spent and increased parental responsibility is likely to be more appropriate and in the best interests of the children, in line with the conclusions and recommendations made by the Family Report writer.
The Court is also cognisant that:
a)in terms of “parental” responsibility for the children, the Mother’s Husband has effectively been the children’s father, and that the children are part of a larger family unit together with the half-siblings; and
b)any significant and sudden increase in the Father’s share of parental responsibility at this stage might be disruptive or counter-productive in terms of the wider and relatively settled living arrangements of both the Mother and the children, and therefore might be contrary to the best interests of the children.
Those are matters in respect of which all of the parties concerned with the welfare of the children (including for these purposes the Mother’s Husband and the two elder half-siblings) must adopt a gradual, but cooperative, approach in the future.
In all of the above circumstances, the evidence establishes that the best interests of the children dictates now is not the time to give the Father equal shared parental responsibility.[18] That time may come, but it will be necessary for the Father and Mother to undertake counselling and receive guidance with respect to how equal shared parental responsibility might be achieved in the longer term. The Mother should not, and ultimately cannot, obstruct any proper increase in the Father’s parental responsibility by refusing to undertake any necessary counselling or receive any necessary assistance in this regard. For present purposes, however, the Mother ought to retain sole parental responsibility. There will be an order accordingly. There will also be appropriate orders for both the Mother and Father to undertake counselling and seek assistance with respect to how the Father might be further involved, both in terms of parental responsibility and time spent, in the lives of the children.
[18] FL Act, s.61DA(4).
With respect to time spent, the Father seeks, at this stage, only four hours on one afternoon each weekend with the children and additional school holiday time. The weekend time is not problematic, and there will be an order that the Father spend time with the children fortnightly on Saturday afternoons from 3.00pm to 7.00pm, and on Sunday afternoons on the alternate fortnight from 2.00pm to 6.00pm. As discussed above, sharing of school holidays is problematic, and in the circumstances, the Court will make an order for the Father to spend time, if he so requests, with the children on one week day (Monday to Friday) of each week of any school holidays from 10.00am to 4.00pm.
To assist, albeit in a minor way, the Father’s greater involvement in the children’s lives, the Court considers it appropriate that the Father be given copies of the children’s school reports, and be informed of any medical, dental or allied health attendances by the children, and the reasons for them. This will facilitate the Father having more information about the children and their lives, and a greater opportunity to discuss issues with them, in respect of matters (and in particular their education) which form a significant part of the usual parent-child interaction. For reasons otherwise expressed above, it is not appropriate at this stage, given the necessity for a gradual approach to the Father’s increasing involvement in the lives of the children and for further counselling and assistance in that regard, for the Court to go further and provide for the Father to be engaged in or attending school functions and activities. That said, there is nothing to prevent the Father and Mother from agreeing that he may do so. Likewise, there is nothing to prevent the Mother and Father from agreeing to the Father having additional time spent with the children at any time.
The Court will make orders in line with the above Reasons for Judgment, and otherwise dismiss all extant applications.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 17 February 2015
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Family Law
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