Amos and Topping and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMOS & TOPPING & ANOR

[2014] FCCA 1800

Catchwords:
FAMILY LAW ̶ Whether orders should be made for applicant to have time with both of two children when he is not the father of one.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.124

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61C, 61DA, 65DAA

Applicant:

MR AMOS

First Respondent:

MS TOPPING

Second Respondent:

MR DANIELS

File Number:

DGC 3263 of 2013

Judgment of:

Judge Phipps

Hearing date:

28 July 2014

Date of Last Submission:

28 July 2014

Delivered at:

Dandenong

Delivered on:

15 August 2014

REPRESENTATION

The Applicant:

Appearing in person

The First Respondent:

Appearing in person

The Second Respondent:

No appearance

ORDERS

That all previous orders are discharged.
That the applicant and the first respondent have equal shared parental responsibility for the child Y born (omitted) 2006.
That the children X born (omitted) 2003 and Y born (omitted) 2006 live with the first respondent.
That the children X and Y spend time and communicate with the applicant as follows:
(a)Each alternate week from after school on Friday to 5.00pm on Sunday;
(b)Each alternate week from after school on Monday to 8.00pm on Monday;
(c)On the children’s birthdays, if not otherwise in the applicant’s care, by agreement and failing agreement:
(i)If a school day, from after school until 6.30pm; and
(ii)If a weekend or public or school holiday, from midday until 4.00pm.
(d)Over the Christmas period as follows:
(i)From 6.00pm on Christmas Eve, 24 December until 3.00pm on Christmas Day, 25 December in odd numbered years; and
(ii)From 3.00pm on Boxing Day, 26 December until 6.00pm on 27 December in even numbered years.
(e)For Easter, from 9.00am Good Friday until 5.00pm Easter Monday in even numbered years;
(f)For the first half of all school holidays in even numbered years;
(g)For the second half of all school holidays in odd numbered years;
(h)At such other times as may be agreed.
That the applicant’s time with the children pursuant to paragraph 4 is suspended:
(a)On Mother’s Day each year;
(b)For Easter from 9.00pm Good Friday until 5.00pm Easter Monday in odd numbered years;
(c)On public holidays in odd numbered years, except when it conflicts with paragraph 3(c)(ii).
That on the weekend when Mother’s Day falls the applicant return the children to the first respondent at 6.00pm the previous day to Mother’s Day.
That change overs when not at school take place at the first respondent’s residence.
That the applicant is entitled to attend the children’s school for parent teacher interviews, extra curricular activities, award nights and other school events normally attended by parents.
That unless varied in writing between the applicant and first respondent, the applicant and the first respondent are entitled to travel interstate with the children during their time with them provided that at least twenty one days notice of the intended travel and detailed travel itinerary is provided to the other parent. Neither the applicant nor the first respondent will unreasonably withhold the consent to such travel.
That the applicant and first respondent notify the other of any serious medical illness or serious injury that either child may suffer from time to time and any attendance by either child upon a medical practitioner for serious illness or serious injury and provide authority for the other parent to speak to any medical practitioner that may have attended upon either child as a result.
That the applicant and first respondent permit each of the children to contact the other parent at the child’s requests.
That the applicant and first respondent keep each other informed of their residential address, mobile telephone number and email address.
That the applicant and the first respondent communicate on matters concerning the children by text message or email.
That the applicant and the first respondent are restrained by injunction:
(a)From discussing family law proceedings with or in the presence of the children or permitting any other person to do so;
(b)Denigrating the other to or in the presence of the children or permitting any other person to do so.
That neither the applicant nor the first respondent relocate to a distance of greater than 60 minutes travelling time in weekday non peak hour traffic without providing the other two months’ notice and unless otherwise agreed the moving parent fulfilling the additional travel time for the purposes of compliance within the changeover provisions of these orders.
That the first respondent is authorised to apply to the Registrar of Births, Deaths and Marriages, that the children previously registered as Y and X - Daniels to be now registered as Y and X.
Otherwise all extant applications are dismissed.

IT IS DIRECTED:

THAT a sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages, who is requested to give effect to any such application.

IT IS NOTED that publication of this judgment under the pseudonym Amos & Topping & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3263 of 2013

MR AMOS

Applicant

And

MS TOPPING

First Respondent

MR DANIELS

Second Respondent

REASONS FOR JUDGMENT

Introduction

The application concerns two children X born (omitted) 2003 and Y born (omitted) 2006. Y’s parents are the applicant Mr Amos and the first respondent Ms Topping. X’s parents are the first respondent Ms Topping and the second respondent Mr Daniels. Mr Amos and Ms Topping have known each other since they were teenagers and became involved in a romantic relationship when X was about one month old. They separated in 2007. Since then the children have lived with Ms Topping and spent regular time with Mr Amos.
The children regard each other as sisters and X sees Mr Amos as her father. The children have spent time with Mr Amos on a regular basis, always together, since the parties separated. For convenience I will call Mr Amos the applicant and Ms Topping the mother.
The mother’s response proposed an order that she be permitted to relocate with the children to Queensland and that was her proposal when interviewed for the family report on 31 March 2014. At the hearing she no longer made that proposal. She gave a rational explanation for the change. She said that in the past she had had employment at $80,000 per year but had to give up that employment because she could not combine it with caring for the children. She now has employment at a lower rate working for a (employer omitted) as a (occupation omitted). She has just completed a (omitted) Certificate course which qualifies her to work as a (occupation omitted). She had wanted to be able to move to Queensland because that is where her parents reside and she would be able to live with them and have their financial assistance if she could not obtain employment. She is now satisfied that even if her current employment came to an end she could find alternative employment and so no longer proposes having the ability to move to Queensland.
The second respondent filed a response and attended at the appointments for the preparation of the Family Report. He does not see X and does not propose any orders that she spend any time with him. He appeared at court representing himself on the first court date 25 January 2014 when interim consent orders were made that the children live with the mother and spend time with the applicant but did not appear at the final hearing.
The family report writer Ms C says Mr Daniels impressed as having a highly developed understanding of the impact that can occur for children when there is conflict and communication difficulties post separation. She says that for this reason he determined not to participate with the mother in court processes and spending time with X. He has not seen her since she was one month old. He hoped that X would seek to have a relationship with him when she is old enough to make that decision.
Interim orders made by consent on 28 January 2014 provide for the children to live with the mother and spend time and communicate with the applicant:
a)Each alternate week from after school on Friday to 5.00pm on Sunday, beginning on 7 February 2014;
b)Each alternate week from after school on Monday to 8.00pm on Monday beginning 3 February 2014;
c)For one half of the term school holidays (being the first half unless otherwise agreed between the applicant and the mother);
d)Such further and other times as agreed between the applicant and the mother in writing and/or SMS text message.

Proposals

Both the mother and the applicant were represented by counsel on 28 January 2014. Both were self-represented at the hearing. The mother’s proposal was presented in a document headed “Statement by Ms Topping”. She proposed orders in relation to Y as in the interim orders with the addition of detailed orders about various special occasions as proposed by the applicant in his initiating application with some amendments. She did not propose orders in relation to X other than this:
A family consultant be appointed by the Court and after consultation with X determine a suitable arrangement giving her access to Mr Amos and that such arrangement be reviewed by the Family Consultant with X on a quarterly basis.
I explained to the mother that such an order could not be made. She said that she intended sending X with Y but did not propose an order because it might restrict what Y might want to do as she became older.
The applicant proposes orders for time with the children as in the interim orders. His initiating application sets out provisions for holiday time, on special occasions and some other orders. The mother largely agrees with them but with some changes.
The applicant’s proposals which the mother wishes to amend are:
a)That the applicant and the first respondent be entitled to travel interstate with the children during their time with them, provided that at least within twenty one days’ notice of the intended travel and detailed itineraries be provided to the other parent. Neither the applicant nor mother will unreasonably withhold the consent to any such travel. The mother proposes the addition “unless agreed in writing between the applicant and the mother”.
b)That the children remain at their current school until they complete their grade six graduation. The mother proposes adding “unless varied in writing between the applicant and the mother or as recommended by a child psychologist independently appointed by the applicant and the mother or in the absence thereof by a child psychologist nominated by the Family Court of Australia”;
c)That neither parent will relocate residence to a distance of greater than 30 minutes travelling time in weekday non-peak hour traffic, without providing the other parent three months’ notice in writing and the moving parent fulfilling the additional travel time for the purposes for compliance with the changeover provisions within these orders. The mother proposes “60 minutes” to replace “30 minutes” and “two months” to replace “three months”.
The mother proposes that Y’s name be changed to Y- Topping and X’s name be changed to X. The applicant opposes the change in Y’s name.
The mother proposes a final order as in the interim order of 28 January 2014 that the applicant be restrained by injunction from bringing the children into contact with Ms N at his residence or the residence of Ms N. The applicant opposes the order.
The mother proposes an order that the applicant assist with taking carer’s leave on each alternate sick day for Y and an order the substance of which is that the children’s time with the father be suspended during any interstate visits from her parents upon receiving 21 days notice.
She proposes certain financial orders which would need to be made under s.124 of the Child Support (Assessment) Act 1989 (Cth) as orders for provision of child support otherwise than in the form of periodic amounts paid to a carer entitled to child support. Her response did not contain such a proposal nor did her affidavit material contain the evidence necessary to found the making of such an order.

Brief background

The mother was born on (omitted) 1979 and is 35 years of age. The applicant was born on (omitted) 1976 and is 38 years of age. Both are in good health and both are in employment.
The mother and the applicant lived together from about late 2004 or early 2005. They separated in 2007. The children have lived with the mother since separation and spent time with the applicant largely every second weekend and some time during the alternate week and during holidays and on special occasions. Each party alleges communication difficulties and inconsistencies in time and blames the other party. They agreed on a parenting plan at the Family Relationship Centre (omitted) in 2009 and then had a further mediation in 2012 when they failed to reach agreement.
The applicant spent no time with the children from late October 2013 until February 2014 when time pursuant to interim orders commenced.

The child X

The mother’s opposition to specific orders for X is because the applicant is not X’s father. From her evidence further grounds for opposition appear to be that she says that the children have started showing a reluctance to spend the time with the applicant. She says that X has missed three birthday parties because the applicant would not take her and she says that as the children get older they will have play dates and may miss them because of the time with their father. Nonetheless, she proposes orders for Y which coincide with the applicant’s proposal and she says that she will continue to send X with Y.
This means that in practical terms the mother is not proposing a change in the time the children currently spend with the applicant.
The applicant’s application proposes an order that the mother and the applicant have equal shared parental responsibility for both children. The presumption in s.61DA of the Family Law Act 1975 (Cth) that it is in the best interests of the child for the parents to have equal shared parental responsibility applies to Y but not X since the applicant is not a parent of X. The mother’s response does not deal with the question of parental responsibility but her document “Statement by Ms Topping” does propose an order for equal shared parental responsibility for Y. Nothing in the evidence suggests there should be a contrary order.
That the presumption in s.61DA does not apply to X does not conclude the question of whether there should be an order for equal shared parental responsibility. The applicant’s relationship with X has been coextensive with his relationship with Y and thus I can readily accept that in decision making in relation to X he would have X’s best interests at heart. Nonetheless Mr Daniels, the second respondent, has not excluded the possibility of having a relationship with X in the future. The family report records that his two eldest children from another relationship live with him full time. He told Ms C, the report writer, that he hoped that X would seek to have a relationship when she is old enough to make that decision. He believes that may be in a couple of years but his understanding is that X is a sensitive girl and that she may not wish to distress her mother by requesting to see him. He has friends who have met X and who have passed on to him some information about her and about the parenting she had received from Mr Amos. He was appreciative of Mr Amos relationship with X and hoped that stability would enhance her well-being.
The mother says that since the two children asked why they had different surnames she had commenced the process of informing them about Mr Daniels and eventually of telling X that the applicant was not her father. If Mr Daniels’ hopes are realised and X does commence a relationship with him it is not in X’s best interests that her father be excluded from decision-making concerning her future or at least that the possibility of him being involved be complicated by the presence of an order allotting parental responsibility to the applicant.
Section 61C of the Family Law Act 1975 (Cth) provides:
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1:      This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2:      This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3:       Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note:         Section 111CS may affect the attribution of parental responsibility for a child.
Making no order for parental responsibility for X means that the mother and the second respondent, Mr Daniels would have parental responsibility under s.61C. The mother could make decisions without reference to Mr Daniels because there would be no order which compelled her to consult him. On the other hand, if Mr Daniels did become involved in X’s life he would have the ability to participate in decision making. X’s best interests are served by making no specific order about parental responsibility for her.
When Ms C prepared the family report the main issue between the parties was the mother’s proposal to relocate to Queensland. Now the main issue, is whether the order for time with the applicant should include X.
Since I propose making an order for equal shared parental responsibility for Y, I must consider the requirements of s.65DAA, that is whether it would be in the best interests of Y and reasonably practicable for her to spend equal time with each parent or if not equal time substantial and significant time. Since the parties are in agreement and their agreement coincides largely with long-standing arrangements and with the family consultant’s recommendation I can conclude that equal time or substantial and significant time beyond what is agreed is not in Y’s best interests.
X’s relationship with the applicant can best be described by quoting two paragraphs from the family report:
48. X impressed as a sensitive, quietly spoken but reasonably confident young person who was articulate and who spoke at length about the benefits of the potential move to Queensland. She thought the reason for the assessment was to discuss the potential move.
49. X was positive about her experience of Mr Amos and spending time at the weekends with him. She clearly regarded him as her father and referred to him as Dad. She wished for both parents to be happy.
Ms C observed both children with the applicant. They greeted him with a hug and a kiss. They both played bowling on the Wii and X moved away between her shots drawing on the whiteboard. She says both girls looked to the applicant for acknowledgement which he gave appropriately and individually.

The best interests of the child is the paramount consideration in making parenting orders (s.60CA). The best interests considerations are contained in s.60CC. The relevant considerations for X are the first two of the additional considerations, the views of the child and the child’s relationship with the applicant. X’s views are clear, she sees the applicant as her father and is positive about her experience of him and spending time at the weekends with him. The relationship with him is that of father and daughter and it is a strong and positive relationship.
Ms C assessment of the mother was in the context of the mother wishing to relocate with the children to Queensland. Ms C said that the mother appears to prioritise her own needs ahead of the children’s and the belief that if she feels successful, that will automatically benefit them and there would be no significant distress to them if they spent much less time with their father.
One possible explanation for the mother not wanting orders in relation to X is that she may see it as giving her the ability not to send X as it suits her. Not sending X with Y is undesirable. It might affect the relationship between the children as well as X’s relationship with the applicant. The children are sisters with a close sibling relationship. They should not be separated.
X’s views are that she wants to see the applicant and her relationship with him and her sister is such that both should continue to see him together. The mother may not have an intention to separate the children in their relationship with the applicant but even apart from that since it is in X’s best interests to spend the proposed times, alternative weekends and an evening alternate Mondays with the applicant, it is in her best interests that the order be made.

Name change

The mother’s response, filed on 21 January 2014 proposes a change of name for Y from Y to Y. The document “Statement by Ms Topping” proposes a name change to Y and a name change for X to X. Ms C says in her report in relation to X’s awareness of her biological father that the mother informed that both girls had been advised in an age-appropriate manner about why they had different surnames. The mother said this occurred when X was eight and was the result of the children reporting that other children said they were not real sisters because their surnames were different. The mother gave similar evidence at the hearing and says that Y has asked to have the same surname as her mother and sister. She says that Y has started writing her name as “Y”.
The applicant opposes any change of name and says it should be a matter for Y when she is older.
The mother gave evidence that X is known as X. Her birth certificate has the surname Topping-Daniels.
The initiating application names X as “X”. The second respondent’s response names her as “X”. The mother’s response, while applying for a name change for Y, does not for X.
X does not have a relationship with her father. She is known by the surname Topping. Alteration of her birth certificate will not affect any potential relationship she may have with her father. The one best interest consideration of relevance is her relationship with her sister. Another consideration, which comes under the best interest consideration of any other fact or circumstance which the court considers relevant, is that the name she uses be the same as her birth certificate. Currently, when she reaches an age when she wants a bank account, learner’s permit, driver’s licence and other official documents she would have to use a name other than the name she commonly uses. I am satisfied that it is in her best interests to make an order which will permit the mother to change X’s name on the birth certificate.
Y does have a relationship with her father and so the best interests considerations are her relationship with her father, her relationship with her sister, and her views.
Y’s proposed name change is dealt with by Ms C in the family report. The family report says this at paragraph 59:
Y stated it was her idea to have her name changed to Y and that her mother liked the name too. Y thinks it is a good name for someone who wants to be “a (omitted) like her dad” and “pretty like her mum”.
At paragraph 69 Ms C says:
The children appear overly aware of their mother’s distress. The words used by X and Y were similar to those of their mother and seemed focused on her working life and the lot of women as burdensome. Y’s reported desire to change her surname may also be indicative of her wish to be seen as fair by her mother, and perhaps to ameliorate her mother’s apparent distress. It seems likely Ms Topping has referred to her current perceived situation as unfair to the children, given those were similar to words used by Ms Topping at interview. Y seem sensitive to gendered fairness, which may result from her perception of her mother’s predicament. Alternatively, the name change could be an attempt by Y to be theatrical and sophisticated beyond her years, a tendency which she had displayed during interview.
Under the best interest consideration, the views of the child, I have to take into account what Y has told Ms C, but do that in the context of her age and the remarks Ms C has made. Y is eight and influenced by her mother. On the other hand, the mother’s evidence that the two girls have asked why they have different surnames and that other children at school have said they are not real sisters has a ring of probability. This may have influenced Y.
The consideration of Y’s relationship with the applicant is relevant. He is her father and she has a close relationship with him. The mother’s proposal would see her retaining the father’s name as part of a hyphenated surname and so the connection would remain. Given the long-standing and secure relationship between Y and the applicant her relationship with him would not be affected by a change of name.
The relationship of each child with the other is relevant. They are sisters and currently they believe they are full sisters. They will eventually learn that they are not but their relationship with each other now is important. They have a close sibling relationship and so a safe conclusion is that different surnames are not affecting them. On the other hand, schoolyard remarks about them not being sisters because they have different surnames can be unsettling. I am satisfied that having the mothers surname in common, even if Y’s is hyphenated with her father’s, may be of some benefit in promoting the children’s relationship with each other.
When I take Y’s views into account, even with the qualifications I have referred to, and the possible benefit to the relationship between X and Y and the fact that I do not see it affecting Y’s relationship with her father I am satisfied that it is in Y’s best interests to have a hyphenated surname which includes her mother’s surname.

Other matters

The mother proposes the continuation as a final order of the paragraph in the interim order of 28 January 2014 that the applicant be restrained by injunction from bringing the children into contact with Ms N at his residence or the residence of Ms N. This paragraph was an order of the court, opposed by the applicant.
The mother says that Ms N was a lifelong friend of hers until she, the mother ended the friendship. She says that Ms N is a cocaine user and finances her use by the sale of cocaine. In her oral evidence the mother produced screenshots of a Facebook message by Ms N to her former boyfriend and a response by the former boyfriend. The former boyfriend is in prison. The dates of the screenshots were not recorded but the events that they were referring to occurred towards the end of 2012. Both messages are abusive. They do not contain any evidence of an admission by Ms N of current drug use.
The applicant has a relationship with Ms N. They do not live together but occasionally spend time in each other’s residence. The applicant says he knows nothing of drug use by Ms N in the past or at present. There is no allegation that the father has any history of illicit drug use.
The mother’s evidence relates to a time several years in the past. The only current evidence is the applicant’s evidence that he knows nothing of any drug use by Ms N.
This evidence falls for consideration under the second of the primary best interests considerations, the need to protect the children from harm or risk of harm. The evidence is only an allegation by the mother that sometime in the past Ms N used cocaine and sold cocaine. The mother says that her former boyfriend is in prison and the applicant accepts this as correct. There is no evidence that Ms N has had any involvement with the police or the criminal justice system because of drug use.
The evidence does not permit a finding of current drug use by Ms N. That is not the end of the consideration. I have to consider whether there is sufficient evidence of risk to the children such that a restriction should be placed on the applicant’s relationship with Ms N. I am not satisfied that it does. The evidence is the allegation by the mother of behaviour by Ms N some years in the past. I am satisfied that the applicant has both children’s best interests at heart and if he became aware that Ms N was using illicit drugs he would take steps to protect the children.
The mother proposes an order that the applicant assist with taking carer’s leave for each alternate sick day for Y. This is an impractical suggestion likely to lead to conflict between the parties and further litigation. The best interest consideration relevant is whether it is preferable to make an order least likely to lead to litigation.
The mother proposes an order that the applicant’s time with the children be suspended during interstate visits from her parents. This is effectively a proposal for the children to spend time with the grandparents. It is not in the mother’s response. She proposed the order only on the day of the hearing. It would be unfair to the applicant to make such an order. In addition I am not satisfied that it would be in the children’s best interests to interrupt their relationship with the applicant to the extent the mother proposes.
The mother consents to the father’s proposed order in paragraph 8 of his application that both be entitled to travel interstate with the children on giving 21 days’ notice of travel and detailed itinerary. The proposed order includes that neither the applicant nor mother will unreasonably withhold the consent. The mother proposes the addition of the words “unless varied in writing between the mother and the applicant”. The addition seems unnecessary but I will make it.
The father proposes an order in paragraph 14 of his application that the children remain at the current school until they complete their grade six graduation. The mother’s proposed amendment is to add unless varied in writing or as recommended by a child psychologist.
I do not propose to make any order about which school the children should attend. The mother does not have a current intention of changing the children’s school. She does say that if she has to find alternative employment that means she has to move her residence, that might involve a change of school. The applicant’s proposal for a restriction on the mother’s ability to change the children’s residence is dealt with below. Since there is no suggestion by the mother of a change of school in the immediate future there is no need for an immediate order. If the mother does move her residence and so a change of school becomes necessary the order for equal shared parental responsibility for Y means that the mother and the applicant must consult about a new school for Y. An order which restricts the school to the current school may lead to further litigation which may have been unnecessary if the order was in place. I do not think the children’s best interests will be met by making this order.
The applicant proposes an order that restricts relocation by the mother and the applicant to a distance greater than 30 minutes travel without providing the other parent three months’ notice. The mother proposes 60 minutes and two months.
The mother’s current employment is in a (employer omitted). Her employer is aged 68. There are two employees, the mother and a receptionist. The mother says that if her employer decides to retire she will have to look for other employment. She needs employment so that she can support the children. If she finds employment which is 60 minutes away she wants to be able to move her residence.
The mother and the applicant now live close to each other and the children’s school. The move by the mother 60 minutes away will not prevent him spending time with the children as proposed. The applicant’s proposed order includes a provision that the moving parent fulfil the additional travel time and the mother does not in her statement oppose this provision.
The mother makes her proposal on the basis that she wants to enhance her ability to obtain other employment if necessary and so provide for the children. The relevant best interest consideration is her ability to provide for the needs of the children. The children’s best interests are served by permitting the mother to move to a distance up to 60 minutes away without the consent of the applicant. Two months notice of any proposed move is reasonable.
Several of the orders proposed by the applicant and consented to by the mother are not necessary. There are three individual orders in relation to medical matters. The applicant proposes notification of all medical matters. That is necessary. Minor matters need not be notified. I will make provision for serious illness and injury.
I have altered the wording of other orders so they are clearer. An example is the order for attendance at school events.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 15 August 2014

[2014] FCCA 1800

15 August 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

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