Byrd & Everton
[2022] FedCFamC2F 236
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Byrd & Everton [2022] FedCFamC2F 236
File number(s): PAC 5880 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 9 March 2022 Catchwords: FAMILY LAW – Undefended final parenting – young child – best interest of child – assessment of risk – parental responsibility – change of name. Legislation: Family Law Act 1975 (Cth) ss. 60CC, 61DA. Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer [1978] FamCA 86
Howard & Howard [2016] FamCA 455
Sander & Hearn [2012] FMCAfam 812
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 14 February 2022 (via Microsoft Teams) Place: Parramatta Appearing for the Applicant: Mr Lennon Solicitors for the Applicant: Sydney West Family Lawyers Appearing for the Respondent: No appearance Appearing for the Independent Children’s Lawyer: Ms Rutkowska Solicitors for the Independent Children’s Lawyer: Ark Law Lawyers ORDERS
PAC 5880 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BYRD
Applicant
AND: MR EVERTON
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
9 MARCH 2022
THE COURT ORDERS THAT:
1.The Applicant Mother shall have sole parental responsibility for the child, X born in 2017 (‘the Child’).
2.The Child shall live with the Mother.
3.The Child shall spend time with the Father at such time and on such condition as agreed between the Mother and the Father.
4.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the Mother shall be at liberty to cause the Child to travel outside of the Commonwealth of Australia.
5.For the purposes of obtaining passports and travel documents for the Child, order 1 confers upon the Mother sole parental responsibility for these purposes such that the Mother may obtain such passports and documents without first obtaining the Father’s consent.
6.The Child previously known as X EVERTON born in 2017, now be known as X BYRD.
7.The Applicant Mother apply to the New South Wales Registry of Births, Deaths and Marriages to register the change of the Child’s name, in accordance with Order 6, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
8.For the purposes of changing the Child’s name in accordance with Orders 6 and 7 above, the Mother shall have sole parental responsibility and shall make all applications and sign all documents without first obtaining the Father’s consent or signature and the Registrar of Births, Deaths and Marriages shall process such application without the Father’s signature and register the Child’s name in accordance with Order 6 above.
9.Following the registration of the Child’s name as “X”, each party shall be restrained from changing the Child’s name without first obtaining the other party’s written consent or Court Order.
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 Byrd & Everton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
X was born in 2017. He has always lived with his mother, the applicant in these proceedings. His father, the respondent, has had limited involvement in his upbringing. X has two half-siblings in the mother’s household.
The parties commenced a relationship in about 2016, and they separated in April 2018, when X was only 6 months old. The parties’ short relationship was marred by some erratic behaviour of the father as described by the mother, and in addition the father had engaged in conduct which resulted in an apprehended domestic violence order being made for the protection of the mother’s other children.
Despite orders for the father to spend supervised time with X being made since these proceedings were commenced in December 2018, and while recognising there have been significant restrictions to free movement in place over the last two years due to the COVID-19 pandemic, there have been difficulties with supervised time occurring for other reasons. Ultimately the father has disengaged from the proceedings.
X has been diagnosed as being on the Autism Spectrum. He is a child with special needs requiring substantial support.
The final hearing proceeded on an undefended basis against the father, with the mother and the Independent Children’s Lawyer being ad idem as to the orders which the Court ought to make.
Relevant Matters
The applicant was born in 1982, and the respondent in 1991.
The applicant has three children from a previous relationship, Ms B who is an adult, and C and D who are 14 and 9 respectively.
The parties met in 2016 and commenced their relationship in 2016.
About half way through the parties relationship, the mother started noticing what she refers to as some “concerning behaviours” from the father. She recalls him telling her that he takes “… pills, cocaine and speed” and she noticed that her Valium tablets were going missing. The father denied taking them, but the mother says that he was the only other person with access and knowledge of their whereabouts. The mother observed the father on multiple occasions telling wild and elaborate stories, which when challenged on would result in the father becoming combative and difficult. The mother also observed the father becoming hyper-vigilant and distrusting. She says her concerns reached a peak when she noticed her other children acting strangely and appearing uncomfortable in the father’s presence.
After the parties separated in April 2018, there were discussions between the parties about the father spending time with X, and ultimately there were various ad hoc instances of when time did occur. It was only for short periods of time as the mother was concerned about the child’s safety in the father’s care. On occasions the mother cut the time short as she was feeling uncomfortable. Eventually due to her ongoing concerns, the mother made the decision to reduce contact to FaceTime only. However, even this broke down eventually.
In May 2018, the father contacted the mother and threatened to commit suicide. The mother says that this was not the only time the father made such threats.
Following the parties’ separation, the mother’s child C told the mother about some of the treatment he had been subjected to by the father, and of his fears of the father. Following these disclosures, the mother took her two children C and D to a police station and reported the father’s behaviour. The police issued an apprehended domestic violence order, which was ultimately made into a final order by the court for a period of two years from 8 January 2019. Only C and D were named as the protected persons on the order.
In June 2019, interim orders were made by this Court for X to spend supervised time with the father.
In September 2019, X was diagnosed as having level 2 Autism Spectrum Disorder and as requiring substantial support. Following the diagnosis and from November 2019, the mother has arranged for X to attend Occupational Therapy. It appears from the Family Report that X has also been diagnosed with epilepsy, which is controlled with medication.
X’s level of special needs has had an impact on the provision of supervisions services. Not only has supervisions been made more difficult by the impact of COVID-19 restrictions in place during relevant periods of time in 2020, but it was also made more difficult by E Families’ lack of available resources to cater for X’s special needs. The father has reported to the mother that he suffered a back injury which has some resulted in him having restrictions in movement, which the mother understood to impact upon the father’s capacity to provide safe care for X. It also appears that the father had relocated from the Sydney metropolitan area and consequently there was lengthy travel required of him to spend limited and supervised time with the child. The travel and the cost of supervision has come at a significant financial cost to the father. The child has not spent any time with the father since September 2020. Time did not occur in November 2020 as arranged due to X’s difficulties in separating from the mother.
It appears from the mother’s evidence that the father has taken the view that the mother is not co-operating and facilitating time between X and the father, that she has put roadblocks in the way of such time happening and that she does not have X’s interest at heart. The father seems to be of the view that the mother is hindering the child’s relationship with the father.
The father did not participate in the Family Report interviews.
The mother lives with X, C and D in a 3 bedroom home in Suburb F.
The mother has been diagnosed with Post Traumatic Stress Disorder and anxiety. Her mental health is currently managed by her general practitioner, and she is prescribed diazepam which she takes as needed.
The mother’s child C has also been diagnosed with intellectual delays and autism spectrum disorder. C, according to the mother, “remains very easily triggered by any reference” to the father. The mother provides an example of where C became “triggered” at a doctor’s surgery when X’s surname was called out, this being the father’s surname.
The mother is in a new relationship, but her current partner does not live with her.
The father’s last known place of residence was in City G.
Family Report
The Family Report writer makes the following recommendations, on the basis of the father not participating in Court proceedings and subsequently not continuing in his proposal that X spend time with him, namely that:
a.the mother is to have sole parental responsibility for X; and
b.the time X spend with the father be at the mother’s discretion.
The recommendations are not to be understood as a suggestion that the Court abrogate its decision making as to appropriate time arrangements to the mother.
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
In determining what is in a child’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 child. 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 (see for example Slater & Light [2011] FamCAFC 1 at [45]).
Consideration does not mean discussion (Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal).
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.
Even in circumstances where a matter proceeds on an undefended basis, the Court is still to be satisfied that the orders it makes in parenting proceedings are in the child’s best interest.
COURT’S DETERMINATION:
Parental Responsibility and Child’s Time with Father
X is very young, and even without being a child with ASD, his expressed views would be given limited weight. In any event, X’s views are not known. During the Family Report interviews, he did not make eye-contact when the family consultant spoke to him nor did he make verbal responses to questions asked of him. The report writer opined that given his age, it is unlikely that he would be able to understand the Court process or provide his opinion in regards to parenting proposals.
The child has not spent any time with the father since about September 2020, and in this young child’s life that is a significant period of time. It is likely that the father is almost, if not entirely, a complete stranger to the child.
There is little evidence of the child’s relationship with the father, and certainly no evidence which would be sufficient for a finding that the child presently has a meaningful relationship with the father. Indeed, it is inferred from the evidence that no such meaningful relationship exists at present.
It is further difficult to assess on the evidence and given the father’s lack of engagement in the proceedings whether the father and the child can have a meaningful relationship, and how such a relationship might be developed. To what level the father has an understanding and appreciation of X’s special needs is a matter about which there is little, to no, evidence.
The mother is the child’s primary care giver, and likely his primary attachment figure.
The mother has made all of the long-term decisions relating to X’s care, welfare and development. She has ensured that he receives appropriate supports for his special needs. The father has not taken any steps to involve himself in the medical and allied treatments which X has been the subject of.
X has experienced difficulties in spending time with the father, not only when time was supervised but also over FaceTime. This has to be understood in the context of X’s special needs.
The father now lives a distance of some 2 hours’ drive from the mother’s home. There is no evidence as to how X might cope with travelling any significant distance to spend time with the father, nor is there any evidence as to the practicalities of time away from Sydney. Time to date has occurred in Sydney and has by and large been supervised by professional supervisions services. It is likely given the father’s disengagement that there would be continued difficulties in supervised time occurring, which would not be in X’s best interest.
The mother submits that she was the subject of family violence perpetrated by the father, during and post the parties’ relationship. A final apprehended domestic violence order was made in January 2019 for the protection of the mother’s two children, C and D. That order is now expired.
The mother proposes to leave the door open for X and the father to spend time together, if appropriate arrangements can be put in place and subject to the parties’ agreeing on those arrangements. The mother has shown a willingness to facilitate time between X and his father, and the Court accepts that she would do so in the future. It is appropriate in all of the circumstances of this case, that the orders as sought by the mother for X to spend time with the father be made. Notwithstanding the findings directly below, the level of communication between the parties is not such that it would be prohibitive of any agreements being reached as to time. It might be difficult, but it is possible.
There has been no direct communication between the parties since December 2020. The parties were prior to that, able to have some meaningful discussions about X’s care and his best interests. They were able to agree as to supervised time and various other arrangements that were put in place as a result of difficulties with the supervisions services. However, their level of co-operation has been limited, and while the father remains disengaged, it is difficult to see how any joint decisions could be made. The recommendations in the Family Report support an order for the mother to have sole parental responsibility. The mother has been a proactive and engaged parent. As such, on the evidence as a whole, the presumption of equal shared parental responsibility has been rebutted. In all of the circumstances, an order that she have sole parental responsibility for X is supported by the evidence and is in X’s best interest.
The mother also moves the Court for an order that she be able to travel with X internationally without the father’s consent. While there are no immediate travel plans for the mother and the child, international travel may be a positive experience for the child, provided it is safe. Once again, noting that the parties have not had any direct communications since December 2020, and that the father has disengaged, if the mother in the future wants to travel with the child overseas she should be able to do so without having to obtain the father’s consent for such travel.
Change of Name
The principles regarding a change of name for children were explained by the Full Court in Chapman & Palmer [1978] FamCA 86.
In a helpful summary, which the Court respectfully adopts, Judge Turner in Sander & Hearn [2012] FMCAfam 812 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.
The mother deposes in her affidavit to an opinion that it will be confusing for X if he has a different surname to his sibling and the mother in circumstances where he has no interactions with any of the father’s family. The mother earlier in her affidavit gave evidence that her three children from a previous relationship, have the surname “H” which is not the same as her surname and which is different to the surname she proposes for X.
The Court does accept that if the mother and her other children have always referred to X as X Byrd, instead of using his actual surname, then it will be confusing for the child, particularly noting his special needs, to be referred to as Everton when at school.
The Court is mindful of the lack of engagement the father has had in the child’s life, including his disengagement from the proceedings. Except for perhaps some cultural norms, there is no rhyme or reason, and certainly no evidence, as to why the child was given the father’s surname instead of the mother’s at the time of registration of his birth.
Hearing X’s surname is a trigger for C, a household member and sibling of the child. This is a relevant factor for the Court to consider, as it is likely to have an impact on the stability and safety the child experiences in the mother’s home due to flow on effects on the mother and the child personally if C, who also has special needs, is behaving in a manner which is upsetting to him and to those around him.
X is still very young and he is yet to start school. His identity is tied to the surname Byrd, which is the surname the mother and her other children use when referring to X. Sadly, X has no ties with the paternal family.
The mother’s proposed change of surname for X was not a matter which was canvassed with the Family Report writer, and as such there is no expert opinion on the issue one way or the other.
Even on the limited evidence before the Court, on balance, the Court still finds that it is in the child’s best interest to make an order for the child’s surname to be changed from Everton to Byrd.
CONCLUSION
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 9 March 2022
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