CARSON & LEARY
[2019] FCCA 2660
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARSON & LEARY | [2019] FCCA 2660 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – time with father – whether father poses a risk to the child – best interests – change of name. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Cases cited: Chapman & Palmer (1978) FLC 90-150 |
| Applicant: | MR CARSON |
| Respondent: | MS LEARY |
| File Number: | PAC 592 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 13, 14 and 15 March 2019 |
| Date of Last Submission: | 15 March 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Counsel for the Respondent: | Ms Cotter-Moroz |
| Solicitors for the Respondent: | Edwards Family Lawyers |
| Counsel for the Independent child's Lawyer: | Mr Lee |
| Solicitors for the Independent child's Lawyer: | Hills Legal Group |
ORDERS
All prior parenting orders with respect to the child X born … 2014 are discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father:
(a)From the date of these orders up to and including 22 January 2020, each Wednesday from 9am to 5pm;
(b)Commencing on 27 September 2019 and each alternate week thereafter, from 9am on Friday to 10am on Saturday;
(c)Commencing on 22 November 2019 and each alternate week thereafter, from 9am on Friday to 6pm on Saturday;
(d)Commencing on 20 December 2019 and each alternate week thereafter from 9am on Friday to 10am on Sunday;
(e)Commencing on 17 January 2020 and each alternate week thereafter during the school term from 3pm or after school on Friday to 9am or before school on Monday;
(f)Commencing on 5 February 2020 and each Wednesday thereafter during the school term from 3pm or after school to 7pm. (The Court notes that the child will not be spending time with the father on Wednesday 29 January 2020);
(g)During the school holidays at the conclusion of the first school term in 2020 for a block period of four days as agreed between the parents, but failing agreement from 9am on the first Monday of the school holidays to 9am on the first Friday of the school holidays;
(h)During the school holidays at the conclusion of the second school term in 2020 for a block period of six days as agreed between the parents in writing, but failing agreement from 9am on the first Monday of the school holidays to 9am on the second Sunday of the school holidays;
(i)For half the school holiday period at the conclusion of the third school term in 2020 as agreed between the parents in writing but failing agreement for the first half of that school holiday period;
(j)For a block period of 12 days during the school holidays at the conclusion of the 2020 school year as agreed between the parents in writing but failing agreement from 9am on 2 January 2021 to 9am on 14 January 2021;
(k)Commencing in the 2021 school year and each odd numbered year thereafter, for the second half of each school holiday period;
(l)Commencing in the 2022 school year and each even numbered year thereafter, for the first half of each school holiday period; and
(m)At all other times as agreed to by the parents in writing.
Notwithstanding any other order, the child shall spend time with the mother on Mother’s Day from 9am to 6pm and the child shall spend time with the father on Father’s Day from 9am to 6pm.
Notwithstanding any other order, the child shall spend time with the father on the child’s birthday from 3pm to 6pm unless the child is already spending time with the father on that day pursuant to these orders.
Notwithstanding any other order, the child shall spend time with the mother on the child’s birthday from 3pm to 6pm unless the child is already living with the mother on that day pursuant to these orders.
The father shall collect the child from either the mother’s residence or the child’s school (including pre-school) at the commencement of the child’s time with the father and the mother shall collect the child from either the father’s residence or the child’s school (including pre-school) at the conclusion of the child’s time with the father.
Until the child reaches 12 years of age, the father is restrained by injunction from having any third party who is not a family member of the father or is otherwise not known to the child reside in the father’s home during periods of time the child is spending time with the father.
The parents shall together attend upon an appropriately qualified professional for the purpose of working on their communication and co-parenting. The parents shall equally be liable for the costs of such professional services.
The father may communicate with the child by telephone each Tuesday and Thursday from 6pm to 6.30pm.
Neither parent shall denigrate or permit any other person to denigrate the other parent or any other member of the parent’s household in the presence or hearing of the child.
Each parent shall ensure that the other is advised properly of any medical emergency or significant illness relating to the child.
Each of the parents shall:
(a)Be entitled to attend all events involving the child including sporting fixtures, extra-curricular activities that allow for parental attendance, school functions and events including concerts, assemblies, sport days, parent teacher interviews, canteen duties and social functions;
(b)Notify the other parent of the name, address and telephone number of any medical or health practitioners that the child attends upon from time to time, including but not limited to General Practitioners, specialists, mental health practitioners, allied health professionals, including physiotherapists, speech therapists, occupational therapists and any other medical professionals, and shall authorise that medical or health practitioner in writing to release to the other party particulars of the child’s health or treatment at any time requested by the other parent;
(c)Notify the other parent as soon as possible and in any event within four hours of any serious injury or illness suffered by the child whilst in the care of that party;
(d)Notify the other parent within seven days of changing their address, email address, landline or mobile telephone number, of such change;
(e)Notify the other parent and keep the other parent notified of a telephone number where they may be contacted in the event of an emergency;
(f)Give all necessary consents to facilitate and be at liberty to contact the child’s school to obtain copies of any information relating to the child including, but not limited to, school reports, school circulars, school notices, school invitations, school correspondence, school photographs and other documents concerning the education and the school activities of the child, and any other information in relation to the child’s academic progress and any involvement he may have with the school counsellor;
(g)Be permitted to attend all school functions (including parent-teacher interviews), all sporting events and any other extra-curricular activities that the child participates in which parents are usually permitted to attend, regardless of whom the child is spending time with when those events occur;
(h)Encourage, supervise, assist with, and facilitate homework, home study and all necessary extra-curricular practice by the child during periods of contact; and
(i)Provide the other parents with an address and telephone number of the place where the child will be staying during periods of holiday contact.
The child X (male) born … 2014 shall be henceforth known as X.
The father Mr Carson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (male) born … 2014 be now registered as X.
Pursuant s.28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 15 herein.
The Court directs that the father forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Carson & Leary (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 592 of 2017
| MR CARSON |
Applicant
And
| MS LEARY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings relating to one child, X born on … 2014.
The parties to the proceedings are the applicant father, Mr Carson born on … 1973 and the respondent mother, Ms Leary born on … 1975.
The issues before the Court are:
a)Parental responsibility;
b)The time the father is to spend with the child; and
c)The child’s surname.
Currently, orders provide for the father to spend each Wednesday and Friday with the child for six hours. These orders were made by consent at the conclusion of the evidence in the final hearing being 15 March 2019. Prior to this, the child was spending two hours on each of those days with the father. The interim orders made on 15 March 2019 provided for time to increase initially to four hours on each of those days for four weeks and thereafter six hours on each of those days.
The parties’ positions changed during the final hearing, particularly so with respect to the mother’s case. The parents agree that X should spend overnight time with the father and they agree that he should have a relationship with the father. They cannot agree on when that overnight time is to start, how many overnight periods there will be and what a meaningful relationship might look like for X and the father.
Each of the parties is critical of the other. The mother is particularly concerned about the father not having sufficient parenting skills and capacity. The mother is particularly fearful that the father will put X at risk and that he has done so in the past.
The Court has before it, not only the parents’ evidence, but also the evidence of the maternal grandmother, Ms A who is the author of the Family Report and the evidence of Mr B, psychologist, who was the father’s treating practitioner at the time of final hearing. Although not required for cross-examination, Dr C was a witness in the father’s case as was Dr D. Dr C and Dr D provided limited expert opinions concerning the father.
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.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. 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.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 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 s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
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.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[8] affirmed the legislative pathway.
[7] (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] [2010] HCA 4
Short Chronology
The father was born on … 1973 in Country H.
The mother was born on … 1975 in Australia.
The father moved to Australia from Country H in 2007.
The parties met online in … 2013 and commenced a relationship.
The father was diagnosed with Attention Deficit Hyperactivity Disorder – inattentive type in 2013.
The parties commenced cohabitation in … 2014.
The parties’ child, X was born on … 2014.
The parties separated in either July 2014 on the mother’s evidence or September 2014 on the father’s evidence.
Between September and November 2014 the father spent time with the child supervised by the mother and the maternal grandmother for six to eight hours per week.
The father ceased to have time with the child between 7 November 2014 and 20 December 2014 following an operation.
Following this, the father recommenced supervised time with the child for a period between two and six hours per week.
The parties attended mediation on 7 September 2016.
The father initiated parenting proceedings on 13 February 2017.
On 3 April 2017, being the first return date of the father’s initiating application, the Court made orders by consent for the father to spend time with the child for three hours each Tuesday supervised by the maternal grandmother and for the father to spend time with the child at the Suburb E Children's Contact Service once the parties had been assessed by that service, on a day and time nominated by the service. The matter was also adjourned for interim hearing on 16 June 2017.
On 16 June 2017 the matter proceeded to interim hearing and the Court reserved its judgment to be delivered on a date to be advised.
On 7 July 2017 the Court delivered its reasons for judgment with respect to the interim hearing heard on 16 June 2017 and made orders as follows:
a)The mother to have sole parental responsibility for the child;
b)The child to live with the mother;
c)The child to spend time with the father:
i)Each Wednesday from 1pm to 3pm with such time supervised by the maternal grandmother at an agreed location; and
ii)On a day and time nominated by the Suburb E Children's Contact Service.
d)The father to obtain a report from his treating Psychiatrist, Dr C within 28 days;
e)Placing the child on the Australian Federal Police Airport Watchlist; and
f)Appointing an Independent Children’s Lawyer.
On 2 March 2018 the Court made orders by consent:
a)Appointing Ms A as a Chapter 15 Expert to prepare a Report in the proceedings;
b)Discharging the order for the father to spend time with the child each Wednesday between 1pm and 3pm as ordered on 7 July 2017;
c)For the father to spend time with the child each alternate Wednesday between 1pm and 3pm with such time to continue to be supervised by the maternal grandmother; and
d)For the father to commence spending short unsupervised times with the child.
On 22 June 2018 the Expert Report of Ms A was released to the parties and the Independent Children’s Lawyer.
On 19 October 2018 the Court made further orders by consent discharging previous orders requiring the father’s time with the child to be supervised and for the father to spend unsupervised time with the child each alternate Wednesday between 12 noon and 2pm and each Friday from 10am until 12 noon.
On 23 January 2019 the Court listed the matter for final hearing on 13, 14 and 15 March 2019.
The Main Issues
X was two months old when his parents separated, after a very brief period of cohabitation. The mother moved out of the home where the parents had been living together with X, and she has been living in the home of the maternal grandmother since. The mother has been X’s primary carer his whole life.
X has a very strong attachment to the mother. He also has a very strong attachment to the maternal grandmother, who has been a significant and important member of the mother’s household.
X has a growing attachment to the father. He has been spending limited time with him, initially supervised but thereafter unsupervised. He knows his father and he loves his father. That this relationship has been encouraged and facilitated is a significant credit to the mother.
At the time of final hearing, X was not yet five years old. As noted earlier, he is due to commence formal schooling in 2020. There are big changes ahead for him from the beginning of next year. Transition to kindergarten is a big step for children, and the expert evidence is that it is typical for most children to have some period of adjustment to kindergarten, as it is a different set of rules and expectations. This can take usually between three to six months.
The mother’s evidence is that after spending time with the father, X returns home in a mood which is not usual for him. It is not the same as when he returns from day care. The mother is concerned that the father is not able to meet the child’s needs as a result of her assessment of how the child usually behaves compared to how he behaves after returning from the father. The expert Ms A was not asked any questions in cross-examination about this and what it might mean for X. Certainly, the parents have very different parenting styles, which do not always match. The father seems to take a much more permissive approach which according to the expert, might mean that there are not appropriate boundaries for X and that he will therefore struggle. According to the expert:
[H]e will struggle to learn rules and comply with authority if there are no rules. It might also impact how safe he feels if children don’t know or understand boundaries. It might make them feel less safe with a particular parent or with a particular carer.
The father takes the view that his way of parenting is appropriate as it is the way in which he was brought up by his mother. His style, as noted earlier, is permissive, such that if for example if X hits him he will not stop him from doing so but rather will say “Why are you hitting daddy? Daddy loves you.” The father says that this type of emotional guidance is what his mother used on him as a child. According to the expert this style of parenting is not appropriate. She was of the view that when the child was hitting the father, and the father dealt with it by kissing the child, he was “seeming reinforcing that behaviour, so yes, I would consider that hitting is not an appropriate behaviour.”
The expert was critical of the father in the way that she saw he did not set appropriate boundaries while spending time with the child at a contact centre. She noted that the contact centre supervisors had to step in and set limits on the child’s behaviour. To this Judge’s mind, this is not the role of the contact centre. It is their role to ensure that the child is not at risk from the parent whom they are supervising, it is not their role to parent the child. If a child is hitting a parent and the parent is responding by kissing the child, it is extraordinary to suggest that the child might at this point in time be at risk such that the supervisor needs to step in and “set limits”.
The father’s evidence is that his style of parenting has resulted in the child stopping the inappropriate behaviours. For example, the father says that X stopped hitting him after three such occasions. The father also says that once his time with X stopped being supervised, he has been able to focus on his father and take appropriate cues from him rather than the supervisors who were previously stepping in.
There are many different styles of parenting. The fact that the parents of this particular child parent in different ways does not make one way of parenting better than the other, what it does, if the two are not compatible, is it creates confusion for the child. However, X will learn what type of parent his father is as he has learnt what type of parent his mother is. The more time he gets to spend with the father, the more their relationship will develop. The mother will remain his primary carer. As X grows, he will, as all children do, test the boundaries with both of his parents. It is a skill of parenting to learn to deal with these things and try different strategies as the child grows, matures and develops.
The mother is also concerned that the father’s behaviour at times places the child at risk. Her evidence speaks of instances of verbal abuse towards her whilst the parents were together, including after X was born and whilst he was in hospital as a premature baby. Her evidence also speaks of instances of verbal and psychological abuse after the parties separated. The father was not cross-examined about the detail of the allegations. The behaviours which the mother describes are concerning, not only in terms of risks to the child but also in terms of risks to the mother.
The mother asks the Court for an order for sole parental responsibility. She says that she and the father simply cannot communicate in any meaningful way about important long term decisions. She gives evidence that the father is self-focused and not able to understand or comprehend her point of view. She says he is belittling and aggressive towards her.
The father’s demeanour during the three days of hearing did not present itself as aggressive. He was courteous to the mother during the entire proceedings. He was courteous to the Court and to the expert. The Court understands and appreciates that being a self-represented litigant is a hard task, and that litigation is very stressful. The Court is mindful that the father was in a situation of high stress and one that had very great importance to him. That he behaved courteously and appropriately during the proceedings is to be expected. He is an intelligent man.
However, during cross-examination there were many rambling questions[9] asked by the father which were by way of explanation for his behaviour, mannerisms and understanding of things, which were focused on him rather than the child and the proceedings. His behaviour in Court was similar to the self-focused behaviours which the mother described in her evidence. Such observations do not lead the Court to make any findings about the father per se, indeed it would be completely inappropriate for the Court to do so. What they do lead the Court to find is that the mother does have difficulties in communicating with the father for reasons which are explained in her evidence.
[9] accepting that cross-examination is a very difficult task and not being critical of the father simply for the ‘rambling’ nature of his questions, but rather because of the focus of such
As for the mother, her demeanour during the proceedings appeared to be defensive at times, she appeared to be frustrated at other times but always genuine in her attempt to place X’s needs above her own. She also appeared genuine in respect of her attempts to facilitate and encourage X’s relationship with the father.
It is a difficulty for X that his parents are such different people, and that they have not yet worked out a way to always effectively communicate with each other. The expert has suggested that the parents would benefit from some communication counselling, or other professional assistance to help them communicate better. It is a well-founded suggestion, one which the Court will embrace in the orders it makes.
In all of the circumstances, the Court finds on balance that the presumption of equal shared parental responsibility has not been rebutted on the evidence notwithstanding the difficulties in communication. Although some decisions in respect of X’s long term welfare have already been made, it is in X’s best interests for both parents to have a say in such matters.
The father has already shown a willingness and ability to do what is required of him such that his relationship with X is meaningful. He has undertaken a parenting course and he has undertaken counselling, all in line with the recommendations of the expert. He has listened to the experts and taken on board her suggestions.
In terms of risks to the child, the mother’s evidence is such that she has concerns the father does not place appropriate safeguards in place and thus may put X at physical risk of harm. An example of such behaviour is the account of when X was at a swimming pool and the father allowed him to go underwater in order to teach him water safety. The child was ultimately not in any real danger. The father knew what was happening and the Court accepts his evidence that he would not have let anything happen to X.
Another example is the father leaving his medication (paracetamol, antacid and psychostimulant) within reach of the child. During the time when the maternal grandmother was supervising the child’s time with the father, the father had antacids in the car where the child could reach them, and his other medication either in his little pouch bag or in his backpack which the child opened. The father was present on each of these occasions, and each time the chid asked the father “what is this?” The father then explained to the child that it was medication and that it was not for X. Leaving medication in places which a child may reach of itself creates a risk for the child, however, not leaving the child unattended near places where he may locate such medication certainly alleviates the risk. X is in any event now, much older than when these incidents occurred. He is less vulnerable to such dangers than when he was a toddler, and will continue to be so as he grows older.
One of the other concerns which the mother raises in respect of the father’s behaviour, is his visit in May 2018 to the pre-school which X then attended. The mother says that she was contacted by the pre-school who advised her that they were troubled by the way the father behaved when he visited the pre-school. The father wrote to the pre-school and enquired when might be an appropriate time for him to visit so that he could view the facilities. He received a response which indicated that he was welcome to attend at any day which suited him, he was provided with times which the centre preferred or otherwise given the option of making an appointment. This correspondence occurred in September and October 2017.
It was not until May 2018 that the father attended the pre-school to see what the pre-school facilities were like. By this stage X had already been attending for over two months. On the day he attended, the father was spoken to by staff and then permitted to look around the pre-school himself. He then walked around and looked at the gates, the play area and other parts of the pre-school.
Whist the correspondence from the pre-school indicated that the father was more than welcome to come and visit “any day that suits you” that correspondence must be understood in terms of what it was a response to. The father wrote to the pre-school on 24 September 2017, before X started attending. It was an enquiry by the father about viewing the facilities in that context. It is certainly unusual that it took him almost eight months to attend. No doubt, the pre-school would have been surprised by the father’s visit in May 2018, given that there was no other communication between the father and the pre-school after 10 October 2017.
The father’s health
The father has a number of health issues. He is diagnosed as suffering from “mild form Attention Deficit Hyperactivity Disorder – inattentive type” (“ADHD”) and he takes medication which manages this condition. He also has “sympathetic nerve response” which the Court understands is a side-effect from an operation the father had a few years ago. He otherwise has no other physical or psychological disabilities, although this was not the case when the parties were together or when X was very young.
The father’s case included evidence from Mr B, who is a psychologist whom the father had been attending upon in accordance with the recommendations of the expert Ms A. Mr B was required for cross-examination. He was an impressive witness. It was his opinion that the father had appropriate insight and skills to parent X, and that he did not pose any risk to the child, whether as a result of his health issues or as a result of his parenting style and other behaviours.
The Court accepts the opinion of Mr B, although it is limited to the facts which were presented to Mr B by the father and to his interactions with the father. Such interactions with the father were for a much longer period that then interaction between Ms A and the father. Mr B also had the father undergo the same tests which were undertaken by the father when he was interviewed by Ms A. The results are different. Ms A hypothesised that the father was able to complete the test differently as he had already received her report and the comments she made in respect of the testing which was undertaken. Mr B was of the view that the test results could not be manipulated in this manner because the father did not have access to the actual results or the answers sheet.
Dr D and Dr C were also witnesses in the father’s case although they were not required for cross-examination. Dr D was of the opinion that the father:
“… continues to impress as a reliable man, who is organised and able to focus on required tasks. These attributes not only assist Mr Carson going about his daily duties, but also equip him to satisfactorily perform the role of father to his son, X.”
Dr D has been a child, family and adult psychiatrist since 1996. He is an experienced professional with a busy private clinical and medico-legal practice. Dr D saw the father in his rooms on four occasions in 2017 and had a phone appointment with him in early 2019.
Dr C, is a consultant adult psychiatrist. He initially saw the father in September 2012, and had a most recent consultation with him in August 2017. He was the father’s treating psychiatrist. Dr C has since retired. In Dr C’s opinion, the father’s mild form of ADHD affected his professional development and his performance of his occupation, it did not appear to affect him in his every day activities or his relationships with others. “Thus, other than at work, his ADHD symptoms do not and did not affect him in his usual/normal conduct of his daily life.”
Ms A’s opinion that “Mr Carson likely has a number of psychiatric diagnoses” and her conclusions that:
he can be overly dramatic, self-focused, has a pre-occupation with somatic symptoms, and has problems with interpersonal communication. He also has a poor attention span, is sensitive/reactive to sensory stimulation, is easily frustrated, has some depressive symptoms, and has problems reading/processing information.[10]
are based on an interpretation of earlier notes and reports of two of the father’s treaters, as referred to in paragraphs 26-28 of her Report. Those interpretations, upon a close reading, are themselves difficult to accept given the selective emphasis on particular issues and an unfair analysis of those matters. For example, Ms A reaches a conclusion that:
Interestingly, in Dr F’s report dated 21/8/2017, he opined that Mr Carson’s mild AD/HD affected his professional development but not his every day activities or relationships with others… This is inconsistent, however, with the information Mr Carson provided to Ms G.
[10] Contained in 1.2(ii) of the Report
Dr F is a psychiatrist who saw the father from September 2012 to August 2017. Ms G, a psychologist, saw him for cognitive testing in March 2013. Mr Carson claimed to Ms A that Ms G had been mistaken in parts. There was no cross-examination of Mr Carson about any of these matters. It appears that at least some of Ms A’s opinions are either not based on established facts, or are based on an interpretation of facts[11] which is contrary to the direct evidence, and /or which seem to challenge the opinions of a treating psychiatrist who was not required for cross examinations. As such her opinions which are not based on established facts will be given no weight.
[11] It is also unclear on what basis Ms A thought it was appropriate to question the findings and opinion of a (treating) psychiatrist, given her own qualifications as a psychologist and limited interactions with the parties.
Other relevant matters
The parents agree, through their respective applications, that X will benefit from having a relationship with both of his parents, and that he has a meaningful relationship with both of them. The mother is X’s primary attachment figure, and she is the person he feels the safest around. He has a strong and developing attachment to the father.
The evidence does not support any finding that X will be placed at an unacceptable risk of harm due to family violence, abuse or neglect at either of his parents’ homes. Indeed, both parents love and care for X very much, and while they have differing parenting styles they each care for him in a safe and appropriate manner.
Given his young age and maturity, any views which he may have expressed are not given weight. This is particularly so where he has unfortunately not had the benefit of spending meaningful and substantial time with the father to date.
The mother has had the benefit of an order on an interim basis for sole parental responsibility since 2017. It is while this order has been in force that the mother has made the decision that X would be commencing formal schooling in 2020 and it is while this order has been in force that the mother has made enquiries as to an appropriate school for X close to the mother’s residence. She has also previously notified the father of her decision about X attending pre-school, and provided him with information about the pre-school and her reasons for choosing that particular institution.
What the mother did unilaterally (and without the benefit of an order for sole parental responsibility) was to have the child baptised in the Catholic faith while he was a baby. She did this because it was important to her, knowing that the father was … and that he did not consent to the baptism. The father was not at the baptism.
What the mother also did was to register the child’s birth using her own surname rather than that of the father. While the parties seem to agree that there was an issue which the father raised as to paternity, and that he did not want to sign the registration of birth papers, the mother’s evidence as to the father’s reasons for doing so are different. The mother said in her evidence in chief that the father refused to sign the registration papers because she would not list the child’s surname be Carson. Her oral evidence is that the father refused to sign because he was contesting paternity, and it was after this that she changed the surname on the form for registering the child’s birth from Carson to Leary.
The father would like to be involved in the long-term decisions concerning X. He has however said that he has not made enquiries about the school the mother is proposing that X attend and he does not have any suggestions for other schools for X.
The father wants X to learn about his heritage and religion. He wants him to be involved in celebrating and observing holy days. He would like X to one day travel to Country H with him. The father initially wanted the Court to somehow “reverse” the baptism. This is not an order which the Court would make. There was no evidence before the Court as to whether being baptised in the Catholic faith would prevent the child (whether as a child or as an adult) from practicing any other faith if he so chose to do or if his father wanted him to do so. The mother is not opposed to X learning about the father’s religion and heritage from the father. The father speaks Language J, a language which he can also teach X.
The father does not pay any child support or provide the mother with any financial assistance towards the cost of child rearing. He does from time to time purchase an item of clothing or similar for X. However, it is the mother who bears the entire financial burden associated with child rearing.
Both parents have demonstrated an ability to meet the child’s emotional and physical needs. As noted earlier in these reasons, they have differing parenting styles which appear to be a mismatch. This of itself might have some long term consequences for their ability and capacity to continue parenting the child, particularly as he grows older and starts to test the boundaries, but it might not. It is also a possibility not a probability.
It is not for this Court to say that one style of parenting is better than the other, however, it is appropriate that there is consistency and respect between the households. No doubt, as the parents continue in their journey of rearing X, and through the professional assistance they will receive in respect of their capacity to communicate more effectively, they will reach a deeper understanding of the other’s approach. The father already accedes to the mother in respect of some daily issues, such as foods which the child prefers to eat. It would be helpful if there were similar approaches about other things, such as the use of technology and consistency across this.
The Court accepts Ms A’s evidence that X would benefit from a gradual introduction of overnight time with the father and a relatively slow progression of time to consecutive overnights. Part of the reason for Ms A’s recommendation was that not only has X been spending limited time with the father to date, but also about the mother’s capacity to parent being negatively affected by her inability to cope with X spending overnight time with the father in a manner which she considered was problematic and dangerous for X.
At the conclusion of the evidence, the Court made orders for X’s time with the father to increase to six hours twice per week. He has now been in that routine for a few months. An increase to overnight time from this regime will not be as big a change as it might have been from two hours twice per week. It must be managed together with other changes which are ahead for X, including starting school. X will also have the benefit of not only spending overnight time with the father, but also of having a day in the middle of the school week where the father can pick him up from school, help with homework or after school activities, have dinner and then be returned to the mother’s home.
The Court also accepts Ms A’s evidence as to appropriate time between the father and X during school holidays, and that half the school holidays from the beginning of 2020 would be too much too soon for X. For that reason, graduated increased block time over school holidays will also be ordered.
The father lives in relative proximity to the mother. There is no practical difficulty with the child spending time with the father whilst living with the mother. The only difficulty for X might be if the father continues to let out his house as an ‘AirBnB’ which he has done in the past. It is potentially very dangerous for a child to be staying overnight in a home where there are complete strangers. For this reason, there will be a restraint on the father having such strangers in his home whilst X is spending time with him, until X reaches 12 years of age, at which point in time he will be sufficiently mature to be able to recognise certain risky behaviours in others.
The mother has sought to place the child’s name on the Airport Watch List. While the father has Country H citizenship, he has lived in Australia since 2007. He has only been back to Country H once. There is no evidence that either of the parents are a flight risk or that there is any real risk that the child might be taken out of the jurisdiction. No such order will be made. The parents should be able to each take the child on holidays provided there is agreement about this, particularly as X grows older and is able to appreciate such matters.
Neither party put before the Court any evidence of particular celebrations which are undertaken in their respective households on any particular holy day. While the mother did seek orders for time with the child from Christmas Eve to Boxing Day each year and Easter, there was no evidence in support of such an order (except that the mother practices the Catholic faith and that the child has been baptised as Catholic). There was no evidence in the father’s case in respect of any special religious occasion. As such, the Christmas and Easter holidays will fall to be celebrated with the parent with whom the child is spending time that particular year. The parents can of course agree to alternate or additional arrangements.
Should the child’s surname be changed?
The principles regarding a change of name for children are articulated in the Full Court decision of Chapman & Palmer[12].
[12] (1978) FLC 90-150
In a helpful summary, which the Court respectfully adopts here[13], Judge Turner in Sander & Hearn[14] 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.
[13] And which has previously been adopted; see Mayes & Denning [2017] FCCA 1754; Jepson & Fleming [2018] FCCA 400
[14] [2012] FMCAfam 812
The child will be living with the mother after the making of these orders. He will also be spending time with the father in accordance with these orders, which for the purposes of the legislation will soon be significant and substantial.
The reason why the child’s surname is the mother’s surname is because this is the name the mother gave him when she was registering his birth. She had asked the father to sign the registration papers which the father did not want to sign. The mother knew that the father was the child’s biological parent. The father, for reasons which have not been explained, decided not to trust the mother about this. In any event, the mother handed in the birth registration papers without the father’s signature, and also after she noted the child’s surname as Leary.
The child carries the given name which his parents agreed on. It is a Country H name. The parents also agreed that the child would have as his second name, the maternal grandfather’s name.
The father asks the Court for an order that the child’s surname be changed to Carson-Leary. His initial application was that the name be changed to Carson, however, at the conclusion of the hearing his position changed.
The mother is opposed to the child’s surname being changed at all. She is of the view that the child will be ridiculed if he has a rhyming double-barrelled surname. She is also of the view that he has been known as Leary his whole life and that there is no reason for the change in name.
X is due to commence kindergarten, that is, formal schooling, in 2020. Whilst he is enrolled in day-care under the surname Leary, there is no evidence from an appropriately qualified expert or otherwise, as to any particular connection the child has to this surname. The Court accepts that X likely knows that Leary is his surname and that it is also his mother’s surname. There is no doubt that X would also know that his father has a different surname to his mother and to himself. He knows who his father is and he will continue to have a relationship with his father. His father will continue to be meaningfully involved in his life.
The mother says she is concerned that X will be ridiculed if he has a rhyming double-barrelled surname. She is however not opposed to the name Carson being added as another given name.
One of the orders the mother seeks is to have sole parental responsibility in respect any issues concerning the child’s name. She wants to be able to make the decision as to what name the child now has and will have into the future. It is not the mother’s application that there be any change to the child’s name at all.
The father says it is important for X to have his surname because this will mean that he will be able to identify with the paternal family and his Country H heritage. It will also give the child an immediate visible connection with the father.
The orders which the father proposes will see X having both of his parents’ surnames, it will give him an immediate connection to both the maternal and the paternal families. It will give him an immediate and recognisable connection to his heritage on the father’s side.
Whilst the Court accepts that the mother has some concern about any ridicule which X might potentially face as a result of having a rhyming double-barrelled surname, the Court finds that such concern is purely speculative.
If there is to be any name change, it is likely that the impact of any name change will be less now than into the future, particularly once X starts formal schooling.
There is no evidence that X will suffer from any embarrassment if his surname is double barrelled and thus different to his primary carer. There is no evidence that X’s relationship with the mother will in any way be affected if his surname is changed to include the father’s surname.
There is no evidence that there will be other name changes or that any are proposed by either parent.
The Court finds that an order for the child’s surname to be changed from Leary to Carson-Leary is appropriate and in the child’s best interest. Such an order will therefore be made.
Conclusion
For all of the above reasons, orders are made as set out at the forefront of these Reasons for Judgment.
I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 20 September 2019
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Costs
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Remedies
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Statutory Construction
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