Balfour & Ferber
[2022] FedCFamC2F 1419
Federal Circuit and Family Court of Australia
(DIVISION 2)
Balfour & Ferber [2022] FedCFamC2F 1419
File number(s): MLC 6089 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 21 October 2022 Catchwords: FAMILY LAW – Parenting – presumption of equal shared parental responsibility – concession of historical family violence – father is incarcerated – change of name – mother to have sole parental responsibility – child to live with mother – child to have telephone time and video calls with father. Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 61DAA Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer [1978] FamCA 86
Jones v Dunkel [1959] HCA 8
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4 at [15]
R v Balfour [2021] VCC 155
Rice & Asplund [1979] FamCA 84
Sander & Hearn [2012] FMCAfam 812
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 106 Date of hearing: 10 and 11 October 2022 Place: Parramatta Counsel for the Applicant: Mr Whitchurch Solicitors for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Ms Pearson Solicitors for the Respondent: Keane Family Law ORDERS
MLC 6089 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BALFOUR
Applicant
AND: MS FERBER
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
21 October 2022
THE COURT ORDERS THAT:
1.The mother, Ms Ferber, shall have sole parental responsibility for the child X, born in 2013.
2.The child previously known as X born in 2013 now be known as X.
3.The mother, Ms Ferber, is authorised to apply to the Victorian Registry of Births, Deaths and Marriages to register the change in the child’s name in accordance with order 2 above.
4.The child shall live with the mother.
5.The child shall spend time with the father, Mr Balfour, conditional upon the father not making any reference during such time to the child regarding the child’s care arrangement, and not denigrating the mother, as follows:
(a)via telephone on Monday and Thursday each week between 5.00pm and 5.30pm;
(b)via one (1) letter per week; and
(c)via one (1) video call every 3 months to occur on a Saturday or Sunday as can be accommodated by Town C Correctional facility.
6.The mother shall, as soon as reasonably practicable, inform the father of any serious illness, injury or medical condition sustained by the child and provide relevant particulars of any treatment received by the child together with the name of any hospital where the child is a patient and the name of any treating medical specialist.
7.The father shall be at liberty to receive any and all information related to the child’s schooling (from the child’s school) and engagement upon medical and allied health professionals (from such professionals), with this order to serve as an authority for same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Balfour & Ferber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are parenting proceedings in relation to X, born in 2013. X is the only child of the applicant father, Mr Balfour and the respondent mother, Ms Ferber.
X’s father is presently incarcerated for serious criminal offences. He is serving a 6 year and 5 month term of imprisonment, which commenced in 2021. He will be eligible for parole after serving 3 years, which means, not before about mid-2024.[1] By that stage, X will be about 11 years old.
[1] The County Court of Victoria took into consideration 107 days already on remand at the time of sentence
The issues for the Court’s determination are firstly whether the parents are to have equal shared parental responsibility for X, or whether the mother is to have sole parental responsibility, and secondly whether X’s surname is to be changed from Balfour to Ferber. There is also an application for time with the father which is pressed, in circumstances which are described below under the heading “Procedural History” in respect of the child’s time with the father.
Procedural history
Originally proceedings were commenced by the paternal aunt, Ms D, in February 2021, but withdrawn.
The Initiating Application which was filed on 1 June 2021, identifies the father, as applicant one and the paternal aunt, Ms D as applicant two. The final orders which were sought by that Initiating Application were for the parents to have equal shared parental responsibility for the child, and that the “First and Second Applicant otherwise be excused from particularising his final orders”: an embarrassing application. Interim relief was also sought, including that the application be heard on an urgent basis. In addition to an order that the child live with the mother[2], the applicants sought that the child spend significant and substantial time with the paternal aunt, and that the “First Applicant’s time with the child be facilitated by the Second Applicant during the time in which the child is in their care”. The applicants also sought an interim order that the child be at liberty to contact the father and the paternal family at all reasonable times and that the mother facilitate such contact.
[2] While the father remained incarcerated
On 26 July 2021, the matter first came before the Court and was given a listing for an interim hearing. By that stage, the mother had filed a response and an affidavit. She sought orders both on an interim and a final basis for the child to live with her, and for the child to have telephone communication with the father and for the father to be at liberty to write one letter to the child per week (subject to conditions). The mother otherwise did not agree to any of the orders sought by the applicants.
On 28 July 2021, the Court heard the competing interim applications. Orders were made for the child to live with the mother, for telephone time with the father for one hour per week and with the paternal aunt for one hour per week. Both applicants were at liberty to write a letter a week to the child. The mother and the paternal aunt, were directed to attend upon a practitioner for the purposes of therapeutic counselling and mediation.
On 9 November 2021, the Court made a number of what appear to be final parenting orders. On the face of the record, it is clear that the father and the paternal aunt, are named as the applicants and that the mother, is the respondent. It is also clear from the record that the applicants were at the time represented by the same law firm, Pentana Stanton Lawyers.
The orders are headed “Final parenting orders between the Respondent Mother and the Second Applicant Aunt” and the Court had identified that they were made by consent. The orders on the Court’s view of the record, also bind the father on a final basis (even if made by consent as between the paternal aunt and the mother only). Those orders were duly published. There is no evidence of any attempts by the solicitors for the applicant or the solicitors for the respondent to seek to correct the record in any way, whether pursuant to the slip rule or otherwise, or indeed to appeal the orders made. This is so despite the record indicating an appearance for the father (and presumably also for the paternal aunt) on 9 November 2021, and despite the submissions made at final hearing on 10 October 2022, by counsel for the father, that there are no final orders in respect of the child’s time with the father[3].
[3] After judgment was reserved, the trial Judge accessed and listened to the audio recording of the Court event on 9 November 2021. It may be that the orders as published do not reflect the orders as pronounced, particularly in respect of whether all of the orders made were final orders.
In any event, despite the publication of the orders made on 9 November 2021, no application has been made at any time in respect of those orders.
A number of procedural orders were also made by the Court on 9 November 2021, setting the matter down for final hearing on 2 February 2022, and directing the father and the mother to file their evidence. At that stage of the proceedings, the applicants’ application for the parents to have equal shared parental responsibility had not yet been determined.
On 31 December 2021, an Amended Initiating Application was filed continuing to name the two applicants. It does not appear from the record that any leave was firstly obtained for the filing of such amended application[4] albeit the orders made on 9 November 2021, do include an order that “the Father make (sic) file and serve any material he intends to rely upon 35 days prior to the final hearing”. That amended application sought new and different orders. It included an application:
[4] The amended application does not comply with Rule 2.50 of Federal Circuit and Family Court Of Australia (Family Law) Rules, as applicable by virtue of Rule 2.01 of Federal Circuit and Family Court Of Australia (Division 2) (Family Law) Rules
3. That the child spend time and communicate with the Applicant Father as follows:
3.1 For a minimum of two (2) telephone calls per week for thirty (30) minutes:
3.1.1 Each Monday and Thursday between 4.30pm and 6.30pm,
3.2 For no less than one (1) video call per month to occur on Saturday or Sunday as can be accommodated by the E Correctional Facility.
3.3 That the Applicant Father be at liberty to contact the child on special occasions such as, Birthday’s (sic), Fathers’ Day, Graduation or any other event which a parent would attend.
4. That the child be at liberty to contact his immediate paternal family at all reasonable times using his mobile phone or tablet provided by the Father, and the Mother is to do all things to facilitate such contact including but not limited to:
4.1 Ensuring that at all reasonable times the telephone and tablet is on, charged and not set to silent or airplane mode; and
4.2 Ensuring that at all reasonable times the phone and tablet is accessible to the child.
5. The Mother be restrained by way of injunction from relocating interstate or overseas with the child.
6. The Mother shall as soon as possible inform the Applicants of any serious illness, injury or medical condition sustained by the child whilst in her care and further provide any particular of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
7. That the Father be at liberty to receive any and all information related to the child’s schooling
8. With the exception of an emergency, the parties should otherwise communicate in writing (including written letters & email) on matters pertaining to the children’s welfare, long-term major decisions and time arrangements.
9. That the parents, their servants, partners, friends and relatives be and are hereby restrained by injunction from:
9.1 Exposing the child to any family violence;
9.2 Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and/or any members of the other parent’s extended family;
9.3 Discussing these proceedings to or in the presence or hearing of the child and/or from knowingly permitting any other person to do so; and/or
9.4 Placing derogatory or critical comments about the other parent or that parent’s extended family on a public forum such as Facebook, Twitter or any other form of internet social media.
The hearing date of 2 February 2022 was vacated on 28 January 2022, and the matter was listed for final hearing on 5 April 2022. A number of procedural orders were also made[5], but did not include any leave for further amended applications/responses. The matter did not proceed to final hearing, but instead on 5 April 2022, the Court made an order for the preparation of a Family Report pursuant to s.62G of the Act. The hearing subsequently re-scheduled for 8 September 2022, could not proceed as a result of circumstances which were beyond the parties’ control. The matter was heard on 10 and 11 October 2022.
[5] Which the parties unfortunately seem to treat as a suggestion rather than an order, given the lack of compliance
At final hearing, the paternal aunt attended as a witness in the father’s case only. She did not press for any orders. Counsel appearing for the father told the Court that the paternal aunt would not be participating as a party. The (further) Amended Initiating Application filed 23 August 2022, only identified the father as the applicant. The relief sought by the father was as follows:
1. That the parents have equal shared parental responsibility for the child [X] born [in] 2015 (‘the child’).
2. The First and Second Applicant otherwise be excused from particularising his final orders.2. That the child live with the Mother.
3. That the child spend time and communicate with the Applicant Father as follows:
3.1 For a minimum of two (2) telephone calls per week for thirty (30) minutes:
3.1.1 Each Monday and Thursday between 5:00pm and 8:00pm,
3.2 For no less than one (1) video call per month to occur on Saturday or Sunday as can be accommodated by the E Town B Correctional Facility.
3.3 That the Applicant Father be at liberty to contact the child on special occasions such as, Birthday’s (sic), Fathers’ Day, Graduation or any other event which a parent would attend.
3.4 In-person visits, as can be agreed between the parties in writing and facilitated by the Paternal Aunt MS D or any other member of the paternal family as agreed between the parents in writing.
4. That the child be at liberty to contact his immediate paternal family at all reasonable times using his mobile phone or tablet provided by the Father, and the Mother is to do all things to facilitate such contact including but not limited to:
4.1 Ensuring that at all reasonable times the telephone and tablet is on, charged and not set to silent or airplane mode; and
4.2 Ensuring that at all reasonable times the phone and tablet is accessible to the child.
5. The Mother be restrained by way of injunction from relocating interstate or overseas with the child.
6.The Mother shall as soon as possible inform the Applicants of any serious illness, injury or medical condition sustained by the child whilst in her care and further provide any particular of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
7. That the Father be at liberty to receive any and all information related to the child’s schooling and engagement upon medical and allied health professionals, with this order to serve as an authority for same.
8. With the exception of an emergency, the parties should otherwise communicate in writing (including written letters & email) on matters pertaining to the children’s welfare, long-term major decisions and time arrangements.
9. That the parents, their servants, partners, friends and relatives be and are hereby restrained by injunction from:
9.1 Exposing the child to any family violence;
9.2 Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and/or any members of the other parent’s extended family;
9.3 Discussing these proceedings to or in the presence or hearing of the child and/or from knowingly permitting any other person to do so; and/or
9.4 Placing derogatory or critical comments about the other parent or that parent’s extended family on a public forum such as Facebook, Twitter or any other form of internet social media.
Such relief was pressed notwithstanding the final orders made on 9 November 2021, dealing with most of these matters.
The mother by way of her Amended Response filed 30 March 2022, sought orders as follows:
1. The Mother have sole parental responsibility for [X] born [in] 2013 (“the child”).
2. That the child, [X], live with the Mother.
3. That the Father spend time with the child as follows:
(a) via telephone (audio only) for up to one (1) hour per week;
(b) That the Father be at liberty to write one letter to the child per week; and
(c) Such communications be subject to
onthe following conditions:a. that the Father does not make reference to the child's care arrangements which includes but is not limited to, asking the child to contact or spend time with other people, asking the child to visit him and/or asking the child to do video calls;
b. That the Father does not ask the child to send him photographs; and
c. that the Father does not denigrate the Mother and/or the Mother's family in any way.
4. That the Mother be at liberty to terminate a phone call between the Child and the Father in the event the Father breaches the conditions in paragraph 3(c) and/or the Mother identifies that the Child is feeling uncomfortable or upset by the breach/es.
5. That the Mother be at liberty to review any letters written by the Father to the child and also be at liberty to not deliver them to the child if the Father has breached the conditions listed in paragraph 3(c) above.
6. Unless otherwise agreed by the parents in writing neither party is permitted to allow [MS D] to have in person contact with the child.
7. The mother be at liberty to change the child’s name to [X FERBER].
8. That the Father pay the Mother’s costs as assessed.
The mother through her counsel, submitted at the conclusion of the final hearing that given the final orders made on 9 November 2021, she only pressed paragraphs 1, 7 and 8 of her Amended Minute of Order handed up during the hearing.
Relevant Legal principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in these children’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[6]
[6] see for example Slater & Light [2011] FamCAFC 1 at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[7] The focus is not on the relationship as such, but on the benefit the relationship might have for the particular child.[8]
[7] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]
[8] McCall at [122]
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[9]
[9] MRR v GR [2010] HCA 4 at [15]
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is not only that discussion does not mean consideration[10] but also because the issues to be determined by the Court were significantly narrowed at the conclusion of the evidence and before submissions. Likewise, not all of the evidence at trial has been discussed in the reasons, and only the relevant factual findings are referred to.
[10] Banks & Banks [2015] FamCAFC 36
Relevant findings
The mother was born in 1977 and is currently 45 years of age.
The father was born in 1979 and is currently 43 years of age.
The parties were in a relationship by about 2011[11] and they married in 2013.
[11] The father says the parties met and commenced a relationship in 2011, while the mother says the parties met in 2009 and commenced cohabiting in 2011
Early in the parties’ relationship, the father admits that he grabbed the mother by the throat on one occasion leaving marks.
The parties have one child together, namely X (“X”) born in 2013.
In or around 2014 or 2015, the parties separated on a final basis.
The parties were divorced on 2 July 2016.
On 23 November 2016, the father was arrested in relation to serious drug related offences. The mother says that X was spending overnight time with his father when the police raided the father’s residence and arrested the father. The father conceded in cross-examination that X was present when the father was charged. X was 3 years and 9 months old at the time.
The father plead guilty to those charges in 2020. He was sentenced in 2021. The charges the father plead guilty to are as follows:
(a)Serious drug related offences;
(b)Conducting a business of drug offences;
(c)Possessing a controlled drug; and
(d)Failing to comply with an order.
Following the father’s arrest in 2016, the mother had the sole care of the child.
The father was then released on bail in or around early 2017. On both parties’ evidence, the child spent regular time with the father between early 2017 until he returned to custody for sentence in or around 2021.
In 2021, the father was sentenced to a term of imprisonment of six years and five months. The father is to be eligible for parole after serving a sentence of three years and eight months.
Between late January and until about September 2021, the child did not communicate or spend time with the father or the paternal family.
The father conceded in cross-examination that he knew his conduct of drug offences was against the law, yet he continued to do it. He said though, that he did not engage in such criminal conduct knowing that he might get caught, evidence which the Court does not accept. The father also said that he stopped engaging in criminal conduct after his arrest. He plead guilty to charges in respect of conduct said to have occurred in 2016.
The father’s evidence when asked about the seriousness of his criminal conduct and his consequent loss of certain privileges that the rest of society enjoys, answered “You’re making it like I’m a mass murderer… In the eyes of the law these were serious offences, but not in the eyes of the public… It’s not the end of the world, selling drugs… In the scheme of things it’s not a huge deal…”.
To the Family Report writer, the father offered the opinion that using the dark web and bitcoin does not require a significant amount of technical skill and that many young people with computer and web awareness could easily do it.
The mother, who was present at the father’s sentencing hearing, annexes to her affidavit (as part of her case) the Reasons for Sentence of Judge F dated 2021[12]. Those reasons reveal that:
[12] R v Balfour [2021] VCC 155
(a)The father relied on two reports of Mr G, who also gave oral evidence before the County Court of Victoria[13];
(b)The account the father provided to Mr G of his offending, was full of understatement and the downplaying of the father’s role and criminality[14];
(c)The father is a narcissistic and arrogant individual, with a lack of insight and with limits to his ability to feel genuine remorse[15];
(d)The Court found that the father gave “obviously false and self-serving statements downplaying his [criminal]… role to Mr G”[16]
(e)The Court was not satisfied that the father demonstrated any genuine remorse for his criminal acts[17];
(f)Mr G was of the opinion that the father was egocentric and rather grandiose person[18], that he has a mixed anxiety disorder and that he meets the criteria for narcissistic personality disorder with anti-social features[19];
(g)The father is reluctant to acknowledge his faults and weaknesses[20]; and
(h)The father’s “unmistakably serious criminal conduct” commenced in 2016 and ran until his arrest in late 2016. It was not an isolated bad decision. The father played a lead role in a business of drugs with the use of the dark web and encryption and Bitcoin.[21]
[13] At [20]
[14] At [51]
[15] At [52]
[16] At [53]
[17] At [54]
[18] At [92]
[19] At [93]
[20] At [94]
[21] At [121], [124]
Even though the County Court of Victoria found the father to be the ring leader of the drug business, his co-accused was sentenced to a much longer sentence than that of the father. This appears from the reasons to be because of the difficulties that were associated with the charges as originally laid. The police operation which resulted in the charges against the father and his co-accused was a federal operation involving federal authorities. The news articles annexed to the mother’s affidavit indicate that the co-accused was also involved in serious drug offences.[22]
[22] Affidavit of Ms Ferber filed 30 March 2022 at page 73
The father did not put before this Court any detail of his criminal conduct, nor the report of Mr G which were obtained for his sentence. In this regard, the Court draws a Jones v Dunkel[23] inference.
[23] Jones v Dunkel [1959] HCA 8
The observations of the sentencing Judge about the father’s remorse in respect of his criminal conduct, and his attitude in providing self-serving statements, are consistent with the Court’s observations of the father in these proceedings. They are also consistent with the opinions expressed in the Family Report[24] of the father not accepting responsibility and minimising his conduct (in respect of family violence) and that he lacked insight about the impacts of his behaviours, including his criminal behaviour, on the mother and on the child[25].
[24] The father was interviewed on 9 Aug 2022
[25] Family Report at [132]
While the father’s criminal conduct per se is not relevant, his attitude towards authority, his propensity to down-play his bad behaviour, his demonstrated lack of insight into his own behaviours, are all relevant matters for the Court to take into consideration in determining what is in X’s best interest.
The father has engaged with a counsellor since December 2021.[26] Despite those counselling sessions, he has not gained any insight into his behaviours or the impact that those behaviours have had on X or on the mother.
[26] Pre-dating the father’s interview with the Family Report writer by at least 8 months
There is significant dispute between the parties about the care arrangements for the child from the parties’ separation until the father’s incarceration in early 2021. Neither parent was cross-examined about their evidence in respect of the care of the child prior to the father being incarcerated.
What is clear though, is that X spent at least significant and substantial time in his father’s care, if not the majority of his time. He had at the time of the father’s incarceration, a strong and loving bond with him. There is no evidence that the bond has to date been weakened as consequence of the father’s incarceration and the subsequent reduction in time the child has been spending with his father.
In April 2021, the mother applied for an intervention order against the father. It is unclear when, but an interim intervention order was made, presumably in terms similar to the final order which was made on 22 June 2022, for the protection of the mother and X. The father consented to the making of the final order (without admission of allegations in the application). The allegations are set out in the father’s evidence, and include an allegation of a physical assault on 27 December 2020 and hostile and threatening communication. The father says that he acknowledges sending the mother letters, but does not agree that he was hostile and threatening.
Annexed to the mother’s affidavit is a handwritten letter by the father dated 17 February 2021. That letter starts off with “What have you done? What are you doing? I just wrote pages upon pages to you and then teared (sic) them up. You no longer deserve my time. You think you can step up and the past is forgotten. The fear of people knowing what a horrible mother you have been drives you to change…” It then goes on to say further on “…The way you have been behaving and what I have been told is not surprising but is disgusting… You are a sick person and after all the forgiveness I have given you over the poor decisions you have made is a disgrace…” The Court understands from reading the letter in its entirety, that these comments were made by the father in circumstances where the child was not spending time with the father and/or the paternal family after the father’s incarceration. The father is clearly blaming the mother for the child not seeing him and telling her that she should allow the lawyers to create a parenting plan and to stop what she is doing (i.e. not facilitating time between the father and the child, and between the child and the paternal family).
When he was being asked questions about engaging in family violence, the father conceded that he did engage in one act of physical violence early in the parties’ relationship, when he put his hands around the mother’s throat and left marks. He said that he has never engaged in any other behaviour which he considers to be family violence. In his oral evidence, the father made it clear that referring to the mother a “horrible mother” was not conduct which he considered could be described as family violence. It is likewise inferred from the father’s evidence that the father’s reference to the mother as a “sick person” is in his eyes, not conduct which could be described as family violence.
On 1 June 2021, the father and paternal aunt commenced these proceedings.
Orders were made on 9 November 2021, as set out earlier in these reasons.
The child currently, pursuant to orders made on 9 November 2021, communicates with the father via telephone on Monday and Thursday each week between 5pm and 5:30pm. The father is at liberty to send the child one letter per week, and so far he has sent two letters and a birthday card all of which have been passed onto the child by the mother.
The parties both agree that there have been some ongoing issues relating to telephone time with X and the father. The father says that X appears to be restricted in his responses and is not able to fully express himself because the mother is always present during these phone calls and refuses to allow X to take the phone off loud speaker and/or move to another room. However, the mother’s evidence regarding this issue is different. The mother says that the father puts pressure on X in relation to his family, particularly for him not wanting to see his extended paternal family and will often promise X things that are not realistically possible given his sentence. Further, the mother provides a number of accounts where she says the father has continuously demanded X to send him photographs “When are you going you send me some photos? How much longer. I want photos. Are you going to write me a letter or what?”. The mother says that X has expressed an unwillingness to send such photographs as he does not want his photo displayed in the father’s cell room for other inmates to also see. The Court accepts the mother’s evidence.
Another example of what the mother says are problematic phone calls between X and the father is that during a phone call on 4 October 2021, the father said to X that he should check on his jet ski and that he should ride it around every now and then. When X responded that he needed a license to ride the jet ski, the father said “You are a Balfour so you don’t need a licence”.
The father conceded in his oral evidence that he did say to X that he does not need a licence (to drive the jet ski) as he is a Balfour. He also conceded same to the child that he should go online and obtain a fake vaccination certificate so that he did not miss out on activities. The father also said that these comments were said as a joke and that they are taken out of context. In light of the father’s criminal conduct and his evidence about the seriousness of such conduct, the Court does not accept that these were off the cuff remarks, but rather that they are indicative of the father’s poor attitude towards the law and his lack of respect for authority.
The father relies on a report of Ms Byrne, which was prepared for the purposes of the sentencing hearing. Ms Byrne provides some opinions about the impact on X if the father was to be incarcerated. It is notable that the mother did not participate in the interviews. Ms Byrne accepted for the purposes of her report, that the father had been the primary care giver to X, and that the child would be significantly impacted if his father was incarcerated.
The Family Report writer opines that “It is likely that X suffered grief from the loss of living with his father… that is likely to be a complex grief. X may also have been traumatised by the police raid when he was present when his father was arrested, and the loss of knowledge of the person his father is, given that, as all the parties believe, X did not know about his father’s criminal activities.”[27]
Determination
[27] Family Report dated 23 August 2022 at [135]
Parental Responsibility
The father has made an admission of engaging in family violence, albeit historical. The admission relates to an event early in the parties’ relationship, after which the parties remained in a relationship and indeed married. Whether historical or not, it was still an act of family violence, and on all accounts a serious one. The father grabbed the mother by the throat and left marks.
Section 61DA of the Act provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. The Act does not put a time limit on when the act of violence is to have occurred. Given the admissions by the father of family violence, the presumption of equal shared parental responsibility does not apply in the circumstances of this case.
The mother says she is unable and unwilling to communicate with the father. She says she is scared of the father and has no intention of speaking to him. She gave evidence that when he calls to speak to X, if the child is not available, she will play a pre-recorded message to tell the father when to call back or will simply answer the phone and let the father hear the sound of the surroundings of where the mother and child are at that moment (usually at sports training) to know to call back later.
The mother and the paternal family are clearly estranged.
The mother does not trust the father. This was explained by the Family Report writer as being an expected outcome resulting from his lack of truthfulness to the mother between 2016 and 2021 about the seriousness of his criminal conduct.
The father has expressed some mixed views of the mother. On the one hand he trusts her to make appropriate medical decisions should something happen to X, but then does not trust that she will make appropriate decisions in respect to X overall. The father is of the view that the mother is not really concerned about X when she asks the Court to change his surname, but rather is doing it to get back at the father because he is in gaol.
When asked about how he proposes to make joint decisions with the mother (in the exercise of equal shared parental responsibility) the father suggested that the mother communicate her proposal to him in respect of the relevant matter and he then tell her whether he agrees with her or not. The practicalities of such communication whilst he is incarcerated and in circumstances where the parties do not communicate at all, were also explored with the father, and he was not able to offer any practical solution, except to suggest that the mother can contact him through his family and that it is really up to her in essence, to overcome her difficulties in communicating with him.
While it would be a good thing for X to know that his parents are able to co-operate about long term decisions which concern him, the evidence does not support an order for equal shared parental responsibility. If such an order was made, it is likely that it would cause further and significant conflict between the parties, given their distrust of each other and present incapacity to effectively communicate (or indeed communicate at all). Such conflict would not be in X’s best interest, and it might have the added result of important decisions being stalled and/or not being made at all.
Furthermore, the Family Report writer came to the recommendation that an order for sole parental responsibility would be in X’s best interest.
In all of those circumstances, it is in X’s best interest that there be an order for the mother to have sole parental responsibility for the child.
Time with the Father
On 9 November 2021, an order was made for the child to spend time with the father twice each week via telephone on Mondays and Thursdays between 5pm and 5.30pm and via one letter per week, subject to certain conditions.
Neither party sought to disturb that order, although there was some disagreement about whether the order was final or not. The father’s amended application was for a minimum of two calls per week for thirty minutes to be made between 5pm and 8.30pm. No submissions were made in respect of the timing of the call and why the order ought to be varied as sought.
Furthermore, the father sought an order that the child spend time with him for no less than one video call per month to occur on a Saturday or Sunday as can be accommodated by the correctional facility. The mother opposes the order and says to the Court that X does not want to have video calls with his father. She also expressed concern for X’s and her own safety if those video calls were to occur. She expressed a fear founded out of hers and X’s experiences with the telephone calls to date.
At the time the November 2021 orders were made, the child had not seen his father for months nor had he had any communication with him. Things have settled into more of a routine, where X now has the benefit of regular telephone communication with his father. This is a sufficiently changed circumstances to answer any Rice & Asplund[28] issue, which in any event is not raised by the mother.
[28] Rice & Asplund [1979] FamCA 84
By all accounts, X can be a worrier. He is clearly missing his father. He has been hurt by the absence of his father from his life. He is likely feeling very anxious about what is happening to his father and he does not yet have the capacity, or the maturity, or the knowledge, to understand why his father is in gaol.
The mother has been able to actively monitor and ensure that the phone calls X has with his father are enjoyable for X. The father also gives evidence of how meaningful the phone calls are to him and for X.
The mother has indicated a willingness to facilitate video calls if X expresses a wish to communicate with his father in this manner while the father remains incarcerated.
However, the way that the mother spoke in her oral evidence about the worries she had about the father’s manner of communication with the child, included references to “X and I” may be indicative of some enmeshment. It resonates with a concern raised in the Family Report that X’s inability to say anything negative about his mother could not be ultimately interpreted other than that it indicates that he did not feel free to express his genuine opinions.
For this reason, and given the high conflict between the parents, it would be an unfair burden to put on X to expect him to tell his mother that he wanted to have a video call with his father.
On balance, and taking into consideration the recommendations of the Family Report writer, in respect of video calls, the Court finds that an order for X to have video calls with his father every 3 months is in the child’s best interest. The time interval for such calls is a safety mechanism for X and the mother, while still permitting some visual contact between the child and the father.
No submissions were made in support of an order that X spend face to face time with the father. On the evidence, including the evidence of the psychological impacts of the father’s incarceration on X to date, such an order would not be in the child’s best interest.
Change of Name
The principles regarding a change of name for children were explained by the Full Court in Chapman & Palmer[29].
[29] Chapman & Palmer [1978] FamCA 86.
In a helpful summary, which the Court respectfully adopts, Judge Turner in Sander & Hearn[30] held that consideration must be given to:
(a)The welfare of the child being the paramount consideration;
(b)Any short or long term effect of any change in the child’s name;
(c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
(d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
(e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
(f)The effect of frequent or random changes of name.
[30] Sander & Hearn [2012] FMCAfam 812
As noted at the commencement of these reasons for judgment, the mother moves the Court for an order that the child’s surname be changed from Balfour to Ferber. The father opposes the order. Indeed, the father says that the mother is not genuine in her application and is only wanting to change the child’s surname in order to hurt the father.
The name Ferber is the surname the mother is known by and it has been her name for the best part of twenty years. It is not her birth name.
It appears that the child has always been known by the surname Balfour. The mother, upon her marriage to the father, did not change her own surname to that of the father. As such, the child’s parents have always had different surnames, and X has always had a different surname to his mother.
The mother explains to the Court that the reason she seeks the change in surname for X is so that he is protected from embarrassment and stigma associated with his father’s criminal conduct and incarceration. She puts before the Court numerous media articles and makes reference to social media posts, where the father is identified by name and surname as a convicted criminal. For example, in 2020, the mother was notified by a friend of an online article published two days earlier by the Herald Sun, which was a report about the father’s plea hearing and associated crimes. The article included a photograph of the father posing with the child, with the child’s face only slightly blurred. The mother contacted the publisher objecting to the unauthorised use of X’s image. The photograph was thereafter removed.
The mother says that most of the articles which she has seen focus on the fact that the father is a “Dad”. X is the only child of the father. The articles also commonly mention that the father is from Suburb H. One such article is titled “Suburb H dad Mr Balfour begs judge for leniency after serious criminal offences”. The father is also identified by name in an article titled “Newspaper Article J”.
Online articles have been published this year as well, in 2022, more than 12 months after the father was sentenced. The article published in 2022 is titled “Newspaper Article J”. When cross-examined about the 2022 articles, the father replied with “Must have been a slow day”. Such remarks fail to take into account the serious nature of the potential impacts upon X and show a flippant attitude to the father’s offending.
The mother also gives evidence about X’s embarrassment in respect of his father’s conduct. She says that in February X’s class were doing presentations about their families, and that X became upset and said to her “I had to say my surname and now they all know”. The mother says that X is “devastated and humiliated that people know his father is in jail for serious criminal offences”.
Determining whether X’s surname should be changed is no easy task. The child has been significantly negatively impacted by the loss of his father’s presence in his everyday life. He has already been significantly negatively impacted by his father’s incarceration, including by virtue of the community stigma which the child is said to have experienced associated with the father’s criminal conduct. There is no reason not to accept the mother’s evidence about these matters.
The Family Report writer opines as follows:
In relation to changing [X]’s name, it is likely to significantly impact [X]’s sense of his own identity to do that now, while he is most likely struggling with the grief [of the loss of living with his father and loss of contact with paternal family]… If the Court accepts that the risk to [X] is likely to be significantly negative by retaining his name and being associated with his father’s criminal history, the additional identity challenges may be worth the possible risks of the change. However, [X] is likely dealing with significant psychological challenges at present and a further identity related challenge could cause him significant negative psychological problems either in the short term or the long term.[31]
[31] Family Report at [136]
The difficulty with the expert’s evidence is that the short and long term “negative psychological problems” have not been articulated in any way. As such, it is difficult (if not impossible) to weigh up those potential risks against the risks of any negative impact on the child’s identity resulting from the name change.
The Family Report writer said in her oral evidence that the sought name change might also be a protective factor for the child, given the stated impact on him of associations with his father and the father’s criminal conduct.
The proposed change of name was not a subject broached by the Family Report writer in her interviews with the child. She explained that she did not ask him any questions about this as he was already stressed enough and had started to “shut down”.
The expert opined that part of children’s identity is associated with their parents, and that if a parent is denigrated, the child might also feel denigrated, especially if the child does not have a good understanding of why that parent made bad decisions. The Family Report writer said that given the father’s lack of commitment to change and minimisation of his conduct, she had low confidence that the father would be able to explain his incarceration to X in a way that takes responsibility. She further said that if the father was on board with the name change, that would significantly assist the child with the change. The father however is totally opposed to X having a different surname.
Furthermore, the Family Report writer said that while there can be a positive for children whose parents have made bad decisions, where those parents take ownership of those bad decisions and make change, if X does not experience this from his father, and his father is a poor role model then this is likely to impact upon X’s confidence, in a negative way.
There is no evidence of any confusion that might arise for the child with or without a name change in respect of his identity. Likewise, there is no evidence that the child may experience any embarrassment if his name is different to that of his mother, who is his primary carer and the person with whom he lives. As noted earlier, the child has always had a different name to his mother. There is evidence however, that the child has experienced embarrassment as a result of having the same surname as his father due to the association of that name with the father’s criminal conduct.
Submissions were made that the child’s relationship with the father would be affected by a change in surname, although those submissions were not supported by any evidence. It may be that there will be some negative effect if a change of name is ordered. However, given the evidence of the expert that a change of name might also be a protective factor for X, it may be that if there is a name change that this would have a positive impact on the child and his relationship with the father, as it would shield him from the father’s reputation but still allow him to have a relationship with him with some absence of the stigma associated with the father’s surname.
On balance and taking into consideration all of the relevant considerations noted above, the Court finds that the factors in favour of a name change outweigh the factors against it. As such, an order will be made for the child’s surname to be changed to Ferber.
Other Orders Sought
The parents agree that X should live with the mother.
The father seeks an order that the mother notify him of any medical emergency. The mother has agreed that she will do so. An order to this effect will be made.
Although initially part of his application, the father conceded that there was no basis for the injunctive orders sought preventing the mother from relocating, or from exposing the child to family violence, abusing, insulting etc., the father or any members of his family, or discussing these proceedings with the child or making derogatory remarks on social media about the father and/or his family. No such injunctions were sought in the mother’s case, although an injunction in terms made by order 3(c) (i) on 9 November 2021, will be made in respect of any video calls with the father. In order to ameliorate any confusion about which orders bind the mother and father, orders 3(a), (b) and (c) made on 9 November 2021 will be included (with slight amendments) in the orders made herein.
In respect of the father being provided with authority to receive information related to the child’s schooling, or engagement with medical practitioners, the mother indicated that she did not want the father to have access to the child’s photographs as the child was concerned about other inmates looking at his photograph. This is an issue of trust between the parents.
The father shall be at liberty to receive any and all information related to the child’s schooling, and engagement upon any medical and allied health professional. This is particularly important given the order that will be made for parental responsibility. There is little likelihood that the mother will keep the father informed about these matters given her stated fears of the father and total lack of communication. The father can make his own enquiries as appropriate.
For all of those reasons, orders as set out at the forefront of these reasons for judgment will be made.
107 I certify that the preceding one-hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 21 October 2022
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