BLUNT & SMYTHE

[2017] FamCA 49

FAMILY COURT OF AUSTRALIA

BLUNT & SMYTHE [2017] FamCA 49

FAMILY LAW – CHILDREN - Parental responsibility –  Where the father wishes to participate in making major long term decisions for the children – Where the mother seeks sole parental responsibility – Whether the parties are unable to communicate - Where the is no evidence to rebut the presumption of equal shared parental responsibility.

FAMILY LAW – CHILDREN – Change of name – Where the mother seeks the hyphenation of her and the father’s surnames for the children – Where the father seeks the children have his surname but use the hyphenation of both surnames for school, medical and extra-curricular activities – Where the children’s names will be changed to a hyphenation of the mother’s and father’s surnames.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637

Chapman v Palmer (1978) 4 FamLR 462
Goode & Goode (2006) FLC 93-286
Reynolds & Sherman 2016 FamCAFC 240
SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT: Mr Blunt

RESPONDENT: Ms Smythe

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: BRC 8856 of 2014

DATE DELIVERED: 8 February 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 6 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Okamoto Lawyers

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McDiarmid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

1. Mr Blunt (“the father”) and Ms Smythe (“the mother”) shall do all acts and sign all documents necessary to change the names of the children:

   (a)       B Blunt to B Blunt-Smythe;

   (b)       C Smythe to C Blunt-Smythe; and

   (c)       D Smythe to D Blunt-Smythe.

2. The father and mother shall have equal shared parental responsibility for the children B Blunt-Smythe born … 2008, C Blunt-Smythe born … 2013 and D Blunt-Smythe born … 2015.

3. All extant applications are dismissed.

4. The Independent Children’s Lawyer is discharged.

5. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. These particulars are included in this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blunt & Smythe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8856 of 2014

Mr Blunt

Applicant

And

Ms Smythe

Respondent

REASONS FOR JUDGMENT

1. This matter came before the Court for a final hearing on 6 February 2017 in relation to ‘live with’ and ‘spend time with’ parenting issues but Mr Blunt (“the father”) and Ms Smythe (“the mother”) were able to agree on most matters.

2. The only issues about which agreement could not be reached concern parental responsibility and name change. The parties elected to proceed ‘on the papers’.

Father’s proposal

1. The father seeks the following order:

   (1)That the father and mother have equal share parental responsibility for the children.

   (2)That the father and mother do all things necessary including completing all necessary paperwork to register the children’s names as:

   (a)[B Blunt];

   (b)[C Blunt]; and

   (c)[D Blunt].

   (3)That the children be known as registered in official documentation as:

   (a)[B Blunt-Smythe];

   (b)[C Blunt-Smythe]; and

   (c)[D Blunt-Smythe]

   including school, medical and extra-curricular activities.

mother’s proposal

1. The mother seeks the following order:

   (1)That the mother have sole parental responsibility for all of the major long term issues of the children and prior to making any long term decision the mother will:

   (a)Advise the father in writing as to the decision intended to be made;

   (b)Seek the father’s response in relation to this decision;

   (c)Consider the father’s response prior to making the decision; and then

   (d)Inform the father in writing of the decision she has made.

   (2)That the parties complete all documents and sign all forms so that the children’s names will be as follows:

   (a)[B Blunt-Smythe];

   (b)[C Blunt-Smythe]; and

   (c)[D Blunt-Smythe].

background

1. The parties met in the United States of America (“USA”) in or about 2005 when the mother was employed by the father and his then wife to work with their three children namely, Mr E now aged 20, Ms F now aged 18 and G now aged 17.

2. The father is a health professional and an American citizen. He lives in the USA and is fifty-two years of age. The mother is a full time mother and an Australian citizen. She lives in Australia and is thirty years of age.

3. The parties commenced a relationship in about November 2007. After B was conceived the mother lived for a time in an apartment paid for by the father.  The mother returned to Australia in May 2008 and informed the father the relationship was over and she would not be returning to the USA.  

4. The parties have three children together, B born in 2008, C born in 2013 and D born in 2015 (“the children”).

5. The father has travelled to Australia on numerous occasions and until at least 2012 the father stayed at the mother’s family home during his visits. The father contends he continued to stay with the mother until 2014. It is uncontentious that the father has not spent significant time with the children although the reasons for same are contentious.  

6. The mother contends that C and D were conceived as a result of non-consensual intercourse but the mother does not seek any finding in relation to that matter. The father denies the allegation.

7. The mother obtained a Temporary Protection Order against the father in January 2015 but later withdrew her application.

8. The parties have agreed that the father will spend time with the children during school term, holidays and special days and communicate with the children by telephone or Skype each Sunday. The children’s time with the father during school term is specified to take place in Australia.

How parenting applications are determined

1. Although the issues now in dispute are very limited the order being sought by each party is a parenting order[1] and as such Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies.

   [1] S 64B(1)(a) provides that a parenting order may deal with the allocation of parental responsibility and in Reynolds & Sherman 2016 FamCAFC 240 the Full Court held that an order in relation to the child’s name is a parenting order as it is an aspect at least of parental responsibility

2. The objects, principles and matters that must be considered when determining what parenting order is proper are set out in Part VII, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[2]

   [2] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

3. The Court is not required to make findings of fact on every factual dispute raised by the parties.[3]

   [3] Baghti & Baghti [2015] FamCAFC 71

4. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

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

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

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

1. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

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

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

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

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

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

1. 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.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

4. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes causing a child to suffer serious psychological harm.

5. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

6. Section 61DA 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 another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in 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.

7. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

8. ‘Major long-term issues’ are defined in s 4 of the Act as issues about the care, welfare and development of a child of a long-term nature and includes but is not limited to issues of that nature about:

   a)The child’s education (both current and future); and

   b)The child’s religious and cultural upbringing; and

   c)The child’s health; and

   d)The child’s name; and

   e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

9. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[4]

   [4] Banks & Banks (2015) FLC 93-637

the Mother’s case

1. Ms Christie, counsel for the mother, submits that the mother should have sole parental responsibility for the following reasons:

   a)The father has had a limited involvement in the children’s lives;

   b)There was no communication between the parties from November 2016 to January 2017;

   c)There is a “complete power imbalance” between the parties as assessed by Ms H, the family report writer;

   d)Ms H recommends the mother have sole parental responsibility “so that she can make decisions regarding the children’s care quickly and without delay”; and

   e)The residential distance between the parties.

2. It is true that the father has had a limited involvement in the children’s lives but the reasons for that are contentious. The father certainly maintains that he wants to be involved in the children’s lives to the maximum extent possible.

3. I note that each party accuses the other of not responding to attempts to communicate. I am unable to resolve that factual dispute. What is clear from the mother’s evidence is that she has not been averse to contacting the father. Indeed the order she proposes would require her to communicate with the father in relation to any decision and receive and consider the father’s response.

4. It was readily conceded that Ms H does not identify in her report the factual basis upon which she based her opinion that there was a complete power imbalance and I was not taken to any evidence to support such an opinion.

5. No examples of a major long term issue requiring urgent consideration were able to be provided to support the recommendation of Ms H or indeed any evidence that the mother had been unable to make a decision in relation to a major long term issue because of delay on the father’s part.

6. In relation to the name change, reference was made to the Full Court decision of Chapman v Palmer[5] where the Full Court identified factors to which the Court should have regard in determining whether any change of name should occur as including:

   (a)The welfare of the child is the paramount consideration;

   (b)The short and long term effects to be experienced by the child if its name is different from that of the parent with custody or care and control;

   (c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;

   (d)Any confusion of identity which may arise for the child if his or her name is changed or not changed;

   (e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;

   (f)The effect of frequent or random changes of name.

   [5] (1978) 4 FamLR 462, 471

7. Apart from referring to those factors counsel for the mother was unable to direct the Court to any evidence upon which any relevant findings might be made in relation to such factors.

8. It is submitted on behalf of the mother that it would be in the children’s best interests to all have the same surname and for that to reflect their connection to both parents. Currently, B bears the father’s surname and C and D bear the mother’s surname. Further, it is submitted that as C in particular has a very close attachment to the mother it may be confusing for C to only have the father’s surname.

9. Finally it is submitted that there should be no change to C’s middle name as he has started to identify himself with his name (although there is no evidence of that).

The father’s case

1. The father wishes to be involved in the children’s lives and participate in making major long term issues for them. Mr Linklater-Steele, counsel for the father, submits that the s 61DA presumption applies in this case and there is no evidence that would rebut the presumption.

2. In response to Ms H opinions, reference is made to Ms H final recommendations where she simply recommends that the Court only “consider” the mother having sole parental responsibility.  Further, it is submitted that Ms H observes that the mother’s self-confidence has improved since the first family report and the mother’s counsellor, Ms I, refers to the mother having made “significant progress and has been committed to engaging in the therapeutic process” and “has been achieving the goals set for herself”. I note also that the mother is now undertaking a course of study and has the support of family and friends.

3. In relation to the name change, it is submitted that there is no evidence to support any disturbance to the child B being known as Blunt or any evidence of any detriment to the mother if the younger children’s names are changed to Blunt.

4. Despite the father’s contention that the children’s surname should be ‘registered’ as ‘Blunt’ he nevertheless proposes that in their day to day lives the children should be known by the surname ‘Blunt-Smythe’ and registered in “official documentation including school, medical and extra-curricular activities” by that hyphenated surname.

5. As for C’s change of middle name reference is made to communication between the parties prior to the birth of B wherein a possible name was mooted.

Independent children’s lawyer proposal

1. The Independent Children’s Lawyer supports the mother having sole parental responsibility for the following reasons:

   a)Ms H recommends it particularly because of the “complete power imbalance”;

   b)Ms I refers to the mother reporting a number of symptoms which are consistent with a diagnosis of Post-Traumatic Stress Disorder including anxiety, depression, fear, hypervigilance, social isolation, and social phobias and described experiencing significant levels of stress as a result of the court proceedings and any contact with the father. It was her opinion that the mother should have minimal contact with the father;

   c)The father deposes to there being no communication; and

   d)Reference was made to the possibility of an issue arising in the event urgent medical attention was required.

2. I was not taken to any evidence to support the opinions of Ms H or Ms I or possible difficulties accessing urgent medical treatment.

3. As to the change of name the Independent Children’s Lawyer supports the hyphenated surname so all three children have the same surname and noted the father’s concession in the day to day lives of the children. A change to C’s middle name was not supported.

discussion

1. A decision to afford the mother sole parental responsibility is one that flies in the face of the presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility and can only be made where there is evidence to support it. It is not submitted that the presumption does not apply and I was not taken to any evidence that would support a rebuttal of the presumption.

2. The mother’s evidence in relation to the father’s impact on her is spoken about in her affidavit either in the past tense, or in relation to having to talk about her past relationship or in the context of the father visiting. There is no evidence from her as to the impact of communicating with the father for the limited purpose of making major long term decisions about the children. Indeed, the mother’s own proposal envisages that communication between the parties would occur for this purpose. I also note the mother’s agreement to weekly communication between the father and the children by telephone or Skype and given the children’s ages I expect the mother will need to have some involvement in facilitating that communication.

3. I am not satisfied that the distance between the parties is a relevant factor given the ease with which communication can occur via email or Skype.

1. I am not satisfied that the mother’s will is so overborne by the father as to justify the opinion of Ms H that there is a complete power imbalance. I note that the mother has made a number of significant decisions contrary to the wishes of the father, for instance, to leave the USA and not return; to end the relationship where clearly the father did not want to do so and to specify when and where the father could spend time with the children. I also note the mother’s improved confidence, family support and commencement of study.

2. While wanting the younger children to also be registered by the surname ‘Blunt’ the father nevertheless presses for an order that they be known in their day to day lives as ‘Blunt-Smythe’ including at school, medical and extra-curricular activities. I do not consider it to be in the children’s best interests to have two different surnames depending upon the circumstance of its use.

3. I am not persuaded that C’s middle name should be changed. There is no evidence in my view that would justify that course.

conclusion

1. For the reasons outlined the parents will have equal shared parental responsibility for major long term issues in relation to their children and the children’s surname will be changed to ‘Blunt-Smythe’. There will be no change to C’s middle name.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 8 February 2017.

Associate: 

Date:  8 February 2017