Alberts and Bagnoli

[2016] FamCA 835

FAMILY COURT OF AUSTRALIA

ALBERTS & BAGNOLI [2016] FamCA 835

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates - Orders that father spend no time with the child without written consent of the mother or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth) – Order that mother have sole parental responsibility for the child including the issue of a passport - Application by mother to change child’s surname – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Alberts

RESPONDENT: Ms Bagnoli

INDEPENDENT CHILDREN’S LAWYER: Mr A Ladopoulos

FILE NUMBER: SYC 3899 of 2012

DATE DELIVERED: 15 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 15 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr Hill

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

CBD Legal

Mr Ladopoulos

Legal Aid NSW

Orders

1. All previous parenting orders in relation to B born … 2011 (‘the child’) are discharged.

2. The child spend no time with Mr Alberts (‘the father’) without the written consent of Ms Bagnoli (‘the mother’) or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

3. The mother be permitted to record the change to the child’s name to ‘B Alberts-Bagnoli’ noting that Bagnoli is the child’s family name.

4. The mother be granted leave and is authorised to apply to the Registrar of Birth, Deaths and Marriages in Australia and that the child be registered under the name to which I referred.

5. The mother have sole parental responsibility for the child including responsibility for the issue of a passport and including responsibility to enable the child to travel overseas for the purpose of holidays from time to time.

6. Leave be given for the mother to make copies of the family reports obtained in this matter to any of the child’s treating medical practitioners.

7. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. All outstanding applications be dismissed.

9. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS DIRECTED

1. A copy of these reasons be taken out and placed on the court file.

IT IS NOTED

1. The father filed a notice of discontinuance and did not participate in these proceedings and if necessary leave is given for him to discontinue.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Alberts & Bagnoli 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 SYDNEY

FILE NUMBER: SYC 3899 of 2012

Mr Alberts

Applicant

And

Ms Bagnoli

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Alberts (‘the father’) and Ms Bagnoli (‘the mother’) had a short relationship in 2011.  It appears that they did not live together, but as a consequence of that relationship, the child B (‘the child’) was born in 2011.  He has just celebrated his fifth birthday.  He is fortunate enough to have three siblings: C, aged 8; Mr D, aged 18; and Ms E, aged 22.  He lives with his mother and she is his primary carer. 

2. The father did not see the child until about July 2012.  The father then saw the child with his mother from time to time until May 2015, just over a year ago, except on one occasion in May 2016 at the time that the child saw the father through the Family Consultant.

3. The father has demons of his own to manage, which are set out in the Family Report and I do not intend to repeat them here except to note that they were there.  The father has decided not to see the child, and this has caused problems with the child, as set out in the Family Report, about not understanding why it stopped.  The mother, who is the child’s primary carer, also has concerns about whether this stop/start arrangement will continue and how she will manage it and, of course, how she can manage in her primary task as a parent of this child with such pressure on her.

4. The father has now walked away from these proceedings, and I intend to make final orders. 

5. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent

   consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

7. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

8. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

9. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

10. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

    (1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

    (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.

    Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

    (3)Additional considerations are:

    (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;

    (m)      any other fact or circumstance that the court thinks is relevant.

1. I have considered the relevant factors under section 60CC of the Act and all of the other factors to which I have to have regard, of which I have had regard to in terms of these orders. This is one of those rare cases where there is a question about whether there is a benefit to the child in having a meaningful relationship with his father given the facts deposed by the mother in her affidavits and, as importantly, the material set out in the Family Reports.

2. There are risks to the child in terms of the unsupervised care by the father and his capacity to parent. There are risks to the child in the father coming in and out of the child’s life and how that will impact upon the child. There are also risks to the child, dare I say, about not having a father and wondering where the father is and why the father is not involved in the child’s life. The primary carer, as I said, is the mother. The father has had little involvement in the child’s life. I note, accept and adopt the submissions on the other section 60CC factors, as set out in the case outline, in a limited way.

3. The child’s views are not relevant given the age and maturity of the child.  I have set out the nature of the relationship.  I have had regard to the father’s involvement with the child, to which I have referred earlier. 

4. The mother is the primary carer of the child and the father has not fulfilled his obligations to maintain the child in any meaningful way.   

5. There is a change to the child’s circumstances in that the child will not see the father except with the mother’s consent, but given the material set out in the Family Report, I am satisfied that this is, in all the circumstances, appropriate.

6. There is practical difficulty in terms of the child spending time with the father given the matters to which I have alluded earlier and are referred to in the Family Reports. 

7. There are some issues of violence which were raised, and there was an application for an intervention order, although the mother withdrew those proceedings.  I have considered all of the facts and circumstances.  This is not a matter where there could realistically be an order for equal-shared parental responsibility.  It would just not work and it would deprive this child of decision-making during the most important years of the child’s life.  To put in place equal shared parental responsibility would freeze that task and would undermine the mother’s role in that respect.  The mother ought to have sole parental responsibility given the history. 

8. Clearly the child should continue to live with the mother.  The father is not a viable option, on the material provided to me, at the current time.  There ought not to be an order that the child spend time with the father, although that ought to be left open so that the mother can consider it in the terms of her role as the primary carer of the child, having regard to the needs of the child, particularly as the child develops, and perhaps hopefully the improvement of the father in terms of his approach to parenting.

9. But that will be a matter for her, although it is always open for people to come back to a Court and ask the Courts to intervene.  Therefore, this is not a matter where I need to consider equal time or significant and substantial time.  Given the history, that is entirely appropriate because it would not have made an order given the circumstances in that regard.  I raised with the parties the ability of the mother to use the Family Reports should this child need any psychological, psychiatric or medical assistance so that there can be an objective assessment provided to the doctors.

10. It is supported by the Independent Children's Lawyer and is supported by the mother. 

11. The mother is seeking orders that the child’s name be changed so that the mother’s surname is the child’s family name.  The Independent Children's Lawyer suggests that the father’s name should be the child’s middle name, and the mother consents to that.  That seems sensible and consistent with the name of the closest sibling to the child in chronological terms.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 August 2016.

Associate:     

Date:              29 September 2016