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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrd & Everton

Details

AGLC: Byrd & Everton [2022] FedCFamC2F 236
Case: [2022] FedCFamC2F 236
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) presided over the case of Byrd & Everton, which involved an undefended final parenting matter concerning a young child, X, born in 2017. The primary dispute was about the allocation of parental responsibility and the conditions under which the child would spend time with his father. The case hinged on the best interests of the child, who has been diagnosed with Autism Spectrum Disorder and requires substantial support, and whether the father's erratic behavior and disengagement from the proceedings posed a risk to the child's well-being.

The legal issues before the Court included determining whether the mother should have sole parental responsibility over the child and if the father should have any parental responsibility at all. Additionally, the Court had to consider the conditions under which the child should spend time with his father and whether the child's surname should be changed from the father's to the mother's. The Court was also tasked with evaluating the impact of the father's disengagement from the proceedings and the mother's concerns about the father's conduct on the child's best interests.

Judge Obradovic's reasoning was grounded in the statutory provisions of the Family Law Act 1975 (Cth), particularly sections 60CC and 61DA. The Court found that the mother should have sole parental responsibility for X, as the evidence showed the father had been largely disengaged from the child's life, and there was little to no meaningful relationship between them. The Court considered the father's erratic behavior, his failure to engage with the child's medical and allied health treatments, and his disengagement from the proceedings. Additionally, the mother's proactive involvement in the child's care and development supported the finding that she should have sole parental responsibility. The Court also ruled that the mother should have the sole responsibility to make decisions regarding the child's international travel and change of name, considering the father's disengagement and the child's best interest.

The Court concluded that while the child should spend time with the father, the conditions and arrangements for such time should be agreed upon by the parents. The Court found that the change of the child's surname from Everton to Byrd was in the child's best interest, given the lack of a meaningful relationship with the paternal family and the potential confusion and identity issues that might arise from maintaining the father's surname.

Orders