Barnard & Fentin

[2009] FamCA 307

FAMILY COURT OF AUSTRALIA

BARNARD & FENTIN [2009] FamCA 307

FAMILY LAW – CHILDREN – Undefended hearing – Sole parental responsibility – Change of child’s surname

Family Law Act 1975 (Cth)

APPLICANT: Ms Barnard

RESPONDENT: Mr Fentin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 266 of 2007

DATE DELIVERED: 16 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Piekarski

SOLICITOR FOR THE APPLICANT: Hartleys Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms J. Small

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

1. That the wife have sole responsibility for all decisions relating to the children R born … September 1993 and K born … May 1996.

2. That the children live with the wife.

3. That any communication between the husband and the children or time spent by them with the husband be by agreement between the husband and the wife factoring in the wishes of the children.

4. That within 14 days of this day, the wife provide to the Independent Children’s Lawyer a postal address to be provided by the Independent Children’s Lawyer to the husband at which he may send to the children letters, cards and presents and the wife provide those upon receipt to the children.

5. The wife have permission, without consultation with the husband, to change the surname of the children from FENTIN to BARNARD.

6. The husband’s response filed 16 February 2007 is dismissed.

7. The wife have leave to proceed with her application on an undefended basis.

8. That the reasons for judgment this day be transcribed and be made available to the wife and the Independent Children’s Lawyer with a request that the Independent Children’s Lawyer provide a copy of those reasons and these orders to the husband.

9. That all outstanding proceedings be otherwise dismissed and be removed from the list of cases awaiting a hearing.

10. That any material produced pursuant to a subpoena be returned to the recipient of the subpoena

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 266 of 2007

MS BARNARD

Applicant

And

MR FENTIN

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application by Ms Barnard concerning two children, R, born in September 1993, and K, born in May 1996.  The children are therefore 15 and almost 13 years respectively.

2. The father of the children is Mr Fentin.  He has not participated in the proceedings today, having been called.  There has been no appearance.  The parties were married and have long been separated but for my convenience I propose to refer to them in these reasons as the husband and the wife. 

3. Because of the husband's lack of involvement and failure to comply with ordered obligations, the first application by the wife is to proceed with her application for final orders on an undefended basis.  It is always a very serious step to preclude someone from participating in proceedings that may have a dramatic effect on the life of children.  However, there comes a point in time where it is in the best interests of children that final decisions be made, even if there is not the full cooperation from one of the parents.

4. The lack of provision of information and involvement leads to a conclusion of lack of interest in the welfare of children.  That is the normal view one would take but in this case, I am not at all sure what position the husband is adopting.

5. The parties married in May 1993 and separated a year or so later.  Precise dates do not matter because it is clear the parties have been separated, as I said, for a long time.  On 9 January 2007 the wife filed an application for final orders about parenting issues.  She sought "emergency custody". 

6. On 30 January 2007 the wife, represented by legal practitioners, filed an amended application seeking formal parenting orders which, if granted, would have seen the children live with her and if any parenting orders for time between the husband and children was to have occurred, it was to have been supervised. 

7. On 5 February 2007 the parties attended before Senior Registrar FitzGibbon.  The husband had not filed anything by that day and the matter was adjourned and orders were made for him to file his material.  One of the significant factors in this case is that an independent children's lawyer was appointed by the court and Ms Small has participated throughout these proceedings.

8. On 16 February 2007 the husband filed a response in which he sought that the children live with him.  My recollection from the first day of the less adversarial trial was that he indicated that that was a sort of tit-for-tat situation.  Realistically, he has not pursued that application.

9. On 6 March 2007, again before the senior registrar, the parties reached a tentative agreement that the children live with the wife, but interestingly, that there be no time with the husband.  Though the husband appeared without representation, it is noted on the court file that he consented to those orders.  One of the orders said that no time or communication was to occur with him but that the children attend upon a counsellor to discuss whether they would spend time with their father. 

10. When the matter next came before the court, it was before Dessau J on 13 June 2007.  The husband did not attend.  Her Honour made orders that the matter be adjourned and that if the husband did not attend on the next occasion, the wife was at liberty to seek to proceed on an undefended basis.  There is a very interesting notation to her Honour's orders, in that she almost exhorted the husband to participate and certainly to seek legal advice. 

11. On 16 July 2007, again before the court but this time before the senior registrar, the husband did appear and consent orders were made which included that the husband spend time with the children for two hours at a contact centre for six visits and then a building-up regime was to follow.

12. On 19 October 2008, some 15 months later, the matter came back to court before Registrar Kaur, who ordered an issues assessment report be undertaken and the matter be set down for trial.  On 22 January 2009 I held the first day of the less adversarial trial.  The husband attended, as did the wife, who was represented, and the independent children's lawyer.  I had the benefit of the issues assessment report and it was telling that it indicated that the children were interested to see their father, albeit with some hesitation.

13. Having heard the husband that day, I made specific orders for the final listing of the matter, telephone mention and for the parties to file their affidavits of evidence.  I noted specifically in the orders the consequences of not complying, including being excluded from the proceedings.  Sadly, the husband did not file anything.  He did not participate in the telephone mention which was designed to ensure readiness for trial.  In compliance with the orders that I made, the wife filed her material.  That material is an affidavit and the precise set of orders that she intended to pursue.

14. The wife in her orders sought six things about which there has been some discussion.  The third order, which I have indicated leaves the issue in the hands of the children, will not be pursued.  Subject to some minor variation in wording, I otherwise think that the orders are quite sound. 

15. It is also to be noted that the independent children's lawyer does not oppose those orders including the change of surname of the children from their birth name to that of their mother.  I have been advised by the independent children's lawyer that she has spoken to the children and they are very keen for that to occur.

16. Before dealing with the parenting issues, it is important to deal with the wife's application to have the matter proceed on an undefended basis.  The husband filed an application in 2007 and has not filed anything since.  He knew the matter was on for hearing today because he was here when I listed it in January.  He has not prosecuted his responding document which sets out what orders he seeks and under those circumstances, his response is struck out.

17. I find that this is a case in which the husband has not complied with orders of the court. The power to proceed to hear a case on what is often described as an undefended basis is set out in rule 11.02 of the Family Law Rules 2004. That quite clearly sets out that if a party does not comply with orders, the court can proceed on an undefended basis.

18. An undefended hearing means literally that the respondent does not participate at all.  In this case, as in the case of Tate (2000) FLC 93-047, the husband's application has been struck out, so from that perspective, there was no live, nor is there in this case now any live issue between the applicant and the respondent. The Full Court in Tate said the following:

    The Family Court of Australia is all too frequently confronted with litigants who fail in their duties of full and frank and prompt disclosure of their financial affairs.  Where such failure results in an application or response being struck out as here, then that party ought have no further right to be heard without further order of the court which is a matter for the judge in his or her discretion.

19. Tate's case was a financial one but it seems to me that it is equally apposite for those sentiments to be made in respect of children's matters.  In financial matters there is an obligation to be full and frank, not only with each other but with the court.  In relation to parenting matters, there is an even greater responsibility.

20. In Brown (2004) FamCA 1067, O'Ryan J made the observation that the rules were there for a specific purpose. His Honour made the point that it was not necessary for rule 11.02 to be read as requiring the circumstances to be exceptional. His Honour said:

    No litigant, whether legally represented or not, should harbour any doubt that manipulation of the court's processes through disregard of and deliberate noncompliance with its orders and directions will attract other than the strongest measures from the court.

21. I can think of no stronger measure from this court than to strike out a parenting application which creates problems for the party himself in that if he desires then to seek orders in the future, he has an enormous hurdle to jump to get back into the court process.

22. Under those circumstances it is appropriate in this case that the matter proceed on an undefended basis.  Whether or not the husband was here, I would have probably excluded him from participating on the basis that he has failed to comply with any of the orders that I made.

23. Turning then to the parenting issue, the wife relied upon and said there has been no change to, the affidavit material that she filed on 27 March 2009.  In that affidavit, she made the observation that she had heard the father say that he had been speaking to the boys by telephone and that it was a revelation to her.  She said the boys had never spoken to her about the calls, nor had they mentioned any communication whatsoever with the father.  She has indicated to me today that she did not raise that subject with them and equally they have not raised the subject with her since.

24. The wife says that she checked her phone line and there certainly were two calls that she has presumed related to the father's suggestion that he was in touch with the boys but again she has not spoken to the children about those. 

25. She also made the observation that she could not recall the last time the boys mentioned seeing their father or speaking to him and to a very large degree, that is very sad from the perspective of the boys, having regard to the long period of time they have been separated from their father.

26. In respect of the boys, however, the wife said that R is in year 10 and doing well.  He has elected to do music, psychology and sciences and seems more enthusiastic now about school than he has been previously.  She described his health as good and the various activities outside of school that he loved doing.

27. K is in Year 7 and enjoying high school more than he did primary school and is heavily involved with Scouts and camping. 

28. In respect of the circumstances under which the children will live in the future, the wife described the house in which they lived, along with their pets and the responsibilities that the children have undertaken for those pets.  Sadly, the husband does not make child support payments or contribute financially towards the children, as a result of which the taxpayers of Australia through Centrelink are effectively providing their only form of support.

29. Because of the fact that the husband has not participated in the lives of the children nor shown any sense of responsibility for them for whatever reason, the wife has sought sole parental responsibility for the children.  She sets out in her affidavit that his attitude towards her has always been negative and she was not wanting to be in a position where she would have to consult him about the boys' lives because he would simply take every opportunity to denigrate her and be argumentative for the sake of it.  I must say, having observed him in court in January of this year, there is a ring of reality about those comments.

30. Another parenting issue as well is that the wife wishes the children to have their names changed from Fentin to Barnard.  She said the boys had told her that they felt no connection with their father and given his minimal involvement in their lives for many years, the name meant nothing to them.  K, she said, did not understand why she had a different name to K.  That followed with the observation that the distinction between the two names often caused confusion and awkwardness at school and she found it problematic because people made assumptions about surnames, describing her by the husband’s surname when she was involved with children's activities.  All of that evidence is unchallenged and I see no reason to reject it. 

31. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides that each parent of a child who has not attained the age of 18 years has parental responsibility for that child.  That means that each is responsible for decisions about the future of a child.  Joint parental responsibility under s 61C(3) is always subject to an order of the court and s 61D(1) provides that a parenting order confers parental responsibility on a person but only to the extent to which the court order confers duties, powers, responsibilities or authority in relation to the child.  There is a sad situation here where there is no communication between the parties at all and certainly none about the children.

32. Section 64B(2) provides that a parenting order may deal with a whole range of things, including where a child lives and with whom and what time a child is to spend with another person.  It also provides the possibility of a court making an order dealing with the allocation of parental responsibility.

33. Parental responsibility involves decisions about education, religious and cultural upbringing, health and, importantly, the name of the child.  There is no meaningful involvement of the husband in the lives of these children and as such, it is clear that he has had no involvement in the decision‑making processes concerning their lives.  The objects and principles in Part VII applies are in s 60B.  That provides, amongst other things, 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.  Again, sadly, that has not been happening here and frankly, I see no prospect of it happening during the childhood years of these children.

34. That is very unfortunate because the underlying principles of the Act are, except where it is contrary to the best interests of the child, they have the right to know and be cared for by both parents, have a right to spend time on a regular basis with them and communicate on a regular basis with both parents. The Act provides that that is a philosophical and legal principle, in that parents are to jointly share duties and responsibilities concerning the care, welfare and development of their children but also to agree about future parenting of the children. That has not happened.

35. Fundamental to any decision that I have to make in this case is s 60CA which says:

    In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.

36. In determining what is in the children's best interests, the Act provides s 60CC as a mandatory guide. That sets out, in two parts, various considerations. The primary considerations are the benefit of a child having a meaningful relationship with both parents. My understanding of the husband's position is that he will sort out things without the assistance of the court. Just what that means for the children is hard to know, but at the moment it is hard to see how I can make any order in which the children might benefit from having a meaningful relationship with their father.

37. The wife suggests that if an address is made available to the husband, he can send things such as cards, letters and presents to the children.  Having regard to what the husband has been doing up until now, I am not sure that that would be likely to occur, nor in any event does it really boil down to a meaningful relationship.

38. The second of the primary considerations is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  Whilst there is no specific evidence before me in the affidavit to which I have just referred of family violence or psychological consequences for these children, it is quite clear that the wife has no desire to be negotiating with the husband, having regard to his strident views.  Sadly, also, I am not quite clear about what his views are because he has chosen not to participate in these proceedings.

39. The other considerations are those set out in s 60CC.  They include the views expressed by a child and in this case it is quite clear that whilst the children are interested in having some relationship with their father, they were certainly not strident in their views about particular orders being made. 

40. I am also entitled to take into account the nature of the relationship of the child with each of the child's parents.  In this case the children have a close and loving relationship with their mother as best I can determine and to a very large degree are interested in but somewhat ambivalent about the relationship with their father. 

41. I am entitled to take into account the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  As best I can indicate, the wife has done what she can.  The husband has chosen to be stand-offish and not participate.  He certainly gave no indication to me when I heard the matter in January that he had anything positive to say about the wife’s role in the lives of the children.

42. Another consideration is the likely effect of any changes in the children's circumstances, including the likely effect of separation from either of their parents.  The children do not seem to me to be distressed by the absence of their father and in the hearing in January, the husband told me that he had touched base with the children directly and they were interested to see him.  These children are getting to the stage where they can make up their own minds about what they wish and whether they will have any ongoing relationship with their father.  However, they are already disadvantaged by having to rebuild a relationship which should be continuous throughout every child's life.

1. Another consideration is the capacity for each of the child's parents to provide for the needs of the children, including emotional and intellectual needs.  There can be no doubt in this case that the wife has provided for the daily needs of the children without assistance from the husband and she has provided no evidence, because she cannot, about his personal circumstances.

2. One of the other considerations which I find difficult in this case is that the court is obliged to consider the attitude to the child and the responsibilities of parenthood which each parent has demonstrated.  It is always difficult to decide what to do when a parent refuses to participate for whatever reason.  But as I have already indicated in this case, it seems sad that the husband has chosen not to participate because at the hearing in January, he certainly gave some indications of being positive after some encouragement from me.  He has not provided the necessary assistance that would enable me to form any view about his capacity as a parent or his desire to be one.  It may be that he considers that he can do without the assistance of the court and he may very well be right.  But it is unfortunate, however, that given the opportunity to explain to me about his children and his aspirations for them in the future, he has chosen not to do so.

3. The court is obliged also to take into account family violence and family violence orders.  I need only say in this case that there has been a family violence order in the past and that was filed earlier in the proceedings.

4. One of the final considerations is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.  That has two points to be made about it.  The first is that it is important to put this case to rest so that everybody knows exactly where they stand but it is also important to consider that if the husband does have some desire to have a meaningful relationship with the children and wants to use the court processes in the future to establish that, he will have some difficulty because, as I said, part of the legislation is directed towards ending proceedings between the parties in relation to children so there can be no misunderstanding about the role of parents in the children's lives in the future.  The husband will have some difficulty if he does desire to bring proceedings in the future to establish that he is really serious about participating.

5. Section 60CC(4) also provides mandatory considerations about the involvement of parents but as I have indicated, the husband has chosen not to exercise his responsibilities. 

6. I turn then to the question of the presumption of equal shared parental responsibility.  Because I intend to make parenting orders, s 61DA requires that I apply the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child.  That is not what the wife wants.  I do not know what the husband wants because he is not here to tell me.

7. The rebuttal of that presumption however arises from a finding that would not be in the best interests of the child or children to apply it.  I must find that that is the case here for all of the reasons that I have already set out.  Accordingly, the presumption is rebutted.

8. The husband has not been a significant decision‑maker fulfilling his parental responsibilities and as I said, I do not see that changing.  There is no basis therefore to expect that the wife would have to endeavour to have decisions made jointly.  The wife should therefore have sole responsibility for making decisions about the future of the children.

9. I am also prepared to say that I am satisfied, having regard to what I have heard from the independent children's lawyer, that changing the surname of the children to Barnard, if that is what the mother's application will be through the state authorities, is in their best interests.

I certify that the preceding Fifty One (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  28 April 2009