BASSLER & NORTON (No.2) - [2010] FMCAfam 840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BASSLER & NORTON (No.2)

[2010] FMCAfam 840

FAMILY LAW – Children – parenting orders – variation of consent orders – where father has not seen the child since 2004 – where father did not attend court – where father did not file any response or affidavit – name of child.

Family Law Act 1975, ss.60CA, 60CC
Federal Magistrates Court Rules 2001, r.13.03C

Bassler & Norton [2010] FMCAfam 250

Applicant:

MS BASSLER

Respondent:

MR NORTON

File Number:

SYC 7560 of 2009

Judgment of:

Scarlett FM

Hearing date:

30 July 2010

Date of Last Submission:

30 July 2010

Delivered at:

Sydney

Delivered on:

30 July 2010

REPRESENTATION

Solicitor for the Applicant:

Ms Murphy

Solicitors for the Applicant:

Eleanor Murphy & Co

Respondent:

No Appearance

ORDERS

That Orders 2 and 3 of the orders of Family Court of Australia made on 23 September 2005 are vacated.
That the Respondent spend time with the child of the marriage, [X] BASSLER NORTON born [in] 2000, twice in a year in Australia but no more than twice in any period of three months as follows:
(a)On the first occasion for one hour at the Mother’s home and supervised by the Mother.
(b)On the second occasion for one hour at the Mother’s home again supervised by the Mother at a space of one week from the previous occasion.
That the time to be spent referred to in Order 2 hereof only take place after:
(a)The Respondent having given the Mother three months’ notice of his intention to spend the time referred to with [X];
(b)That such time should only be spent during [X]’s school holidays.
That following the time referred to above [X] be assessed by Dr D and Dr R (“the specialists”) as to the impact of the visits on [X] and whether they should occur again.
That the Respondent will abide by the decision of the specialists, Dr D and Dr R, as to whether there should be any further time spent with [X] by the Respondent.
The said child is to be known by the name [X] Bassler.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney

SYC 7560 of 2009

MS BASSLER

Applicant

And

MR NORTON

Respondent

REASONS FOR JUDGMENT

The application before the Court is an application for final orders. The final orders sought are to vacate orders made by consent in the Family Court Sydney on 23^rd September 2005.
The application seeks alternative orders providing for the Respondent Father to spend time with the child, [X], in Australia initially at the Mother’s home after giving a period of three months’ notice, and that the child’s response to any visits by the Father be assessed by his treating specialists and that they should provide a view as to whether there should be further contact between the Respondent and the child. The order that is also sought is that the Respondent will abide by the specialist’s decision.
Further, there is an order relating to the child’s surname. [X] who was born [in] 2000 was given the name of Norton, being the Respondent’s surname, as he was – and that, of course, is the name that appears in the orders of the Family Court made on 23^rd September 2005.
He has been known as [X] Bassler-Norton, which is the name that the Mother was using at the time of the original orders being made. However, it is now sought that he should be known by the name [X] Bassler. The reason for that is that the school requires him to use the full name for school purposes, in particular logging on to a computer and for other tasks, and he finds it irksome and difficult to use the lengthy surname and has asked his mother why he needs to do that. Those are the orders that are sought.
The background to this matter is that the Mother is 42 years of age and resides in Australia. The Father is 63 years of age. He resides in Brazil but also has a residence in Switzerland. He is an [occupation omitted].
The child, [X], was born [in] 2000. On 18^th April 2001 he was adopted under the law as it applies in Brazil by the Mother and the Father. Some time later the relationship between the parents deteriorated and a Court in [S], Brazil made custody orders in their terms in favour of the Mother providing that [X] should live with her.
Later that year in October 2003 the Mother and [X] moved to Australia. The Father made an application under The Hague Convention relating to International Child Abduction in October 2004, but that application was unsuccessful. Since then on 7^th April [X] has become an Australian citizen.
The Mother sought various orders from the Family Court and those orders were made on 23^rd September 2005. They provided that [X] should live with the Mother and she would have the responsibility for his day-to-day and long-term care, welfare, and development.
Order 2, which is now sought to be varied, provided for [X] to have contact with the Father in Australia in a graduated program until he attained the age of 10 years. Order 3 provided that when [X] attained the age of 10 years he was to have contact with the Father in Brazil or Switzerland for three weeks in any year on certain conditions. Apart from that, Order 4 restrained the Father from otherwise removing or causing the child to be removed from the Commonwealth of Australia. Order 5 sought that the Australian Federal Police place the child’s name on the airport watch list.
It has been the Mother’s view that since the Father has not communicated with the child since The Hague Convention application by the Father in October 2004 that the Father has become a stranger to [X].
There was an incident that precipitated or helped to precipitate this application. On 2^nd September 2009 the Father forwarded an email to the child’s school in which he advised the school that in 2010 the child would turn 10 years and there was a guarantee of his rights to take [X] to Brazil during his vacation.
That email did not appear to have been followed up by the Father, but it had the effect that the Mother took the view that the Orders made in 2005 were no longer appropriate. The Mother has consulted a Dr D, a specialist paediatrician, who has diagnosed this child as suffering from Attention Deficit Hyperactivity Disorder and High Functioning Autism. The Mother has also consulted a Dr R for assistance with this child.
The Mother sought an interim hearing which took place on 11^th March 2010. The Father did not appear although he had been served, nor was there any appearance on his behalf. On that day I was satisfied that the Order 2 relating to contact with the Father in Australia should be suspended[1] and I listed the application for final hearing today. I made orders relating to informing the Respondent of the hearing date.
[1] Bassler & Norton [2010] FMCA 250
I am satisfied from the affidavit of service affirmed by Ms R, a legal assistant, on 29^th July 2010 that the Court’s directions about informing the Respondent of the time, date, and place of the hearing have been followed.
I note that the Father has not filed any response or affidavit, nor does he appear from the Court file to have sought to communicate with the Court in any way. The Mother’s solicitor has informed the Court that she has received no further communication from him and the Mother has confirmed that situation in her oral evidence.
Accordingly, I am satisfied that whilst one of the parties to the hearing is absent that the hearing should proceed generally under the provisions of r.13.03C(e) of the Federal Magistrates Court Rules. I have heard evidence of the Mother as to this child’s latest situation and how he appears to be progressing under a parenting regime which she and her current husband have instituted.
Due to the child’s autism and his needs for routine and predictability they have established such a system and they have provided assistance to him in his learning and it is the Mother’s view that he is progressing well. The Mother has given evidence that this child has received no communication from his father for years and appears to have forgotten him, and in respect of the surname now finds this surname irksome and a burden.
The reason is that the school requires him to write the full surname and she said it takes him so much time to do this, longer than for other children to do so. Whilst changing a child’s surname can be an emotional matter for the parents the facts here relating to a prolonged absence of the Father from the child’s life in any way make this a case where the Court must give favourable consideration to this application.
It is said in section 60CA of the Family Law Act that in deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration. As far as the change of name is concerned there is evidence which persuades me that it is in the best interests of this child for the surname Norton to be discarded and for him to be known by the name of [X] Bassler and I shall make such an order.
As to the variation to the earlier orders sought, again this is a question for parenting orders and the best interests of the child must be the paramount consideration. The primary considerations are set out in subsection 60CC(2) of the Act, including the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence. Suffice it to say that there is no evidence of abuse, neglect, or family violence, or any threat to the child in that way.
It would be of benefit to this child to have a meaningful relationship with both of his parents, but there is no evidence that the Father at any time since late 2004 has made any attempt to have any relationship with this child. There is, however, evidence from the Mother that as she has remarried that [X] has a good relationship with her current husband and regards him, in effect, as a father figure.
It is regrettable that the Father, who is the Respondent to the application, does not have a relationship with the child, but it appears clear from the evidence before me that that is due to the actions or inaction of the Father and it would seem to me that so much time has passed that it would be difficult to revive a parental relationship without a great deal of effort.
One of the additional considerations that the Court must look at is set out in paragraph 60CC(3)(b), the nature of the relationship of the child with each of the child’s parents. I am satisfied that this child has a good relationship with his mother, but it is fair to say he has no relationship with the Respondent.
In the circumstances the orders must be varied to reflect the present reality. Order 3 made on 23^rd September 2005 permits in its present form the Father to have contact with the child in Brazil or Switzerland for a period of three weeks as and from his 10^th birthday which is on 27^th September this year. It cannot be in the best interests of this child for him to be in a position where he is removed from the country and spends time in a country that he does not know with a man whom he does not know. It is no longer in this child’s best interests for the arrangements envisaged by Order 3 to remain.
Clearly, if the Father wishes to play any role in this child’s life he must take steps to reintroduce himself over a graduated period of time, but that arrangement should take place within Australia in circumstances and surroundings where this child is familiar. Taking this child away from familiar surroundings to meet an unfamiliar person would not be of benefit to any child, and particularly not to a child who has the condition of autism because it is well-known that children with this condition need predictability and routine in their lives and react unfavourably if those conditions are removed.
It is for all of these reasons I propose to accede to the orders sought by the mother.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 6 August 2010