Chace & Huxley
[2021] FedCFamC1F 26
•9 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chace & Huxley [2021] FedCFamC1F 26
File number(s): MLC 8708 of 2017 Judgment of: WILLIAMS J Date of judgment: 9 September 2021 Catchwords: FAMILY LAW – CHILDREN – Final parenting orders made on an undefended basis in circumstances where the mother has not participated in the proceedings since November 2019 and has not spent any time with the child since February 2020 – Allegations by both parents that the other parent poses an unacceptable risk to the child – Held the father does not pose an unacceptable risk to the child, but the mother does – Orders made for the child to continue to live with the father and for him to have sole parental responsibility – No orders made for the child to spend time with her mother – No evidence of mother’s current circumstances – Serious concerns about the mother’s mental health and capacity to care for the child supported by a forensic psychiatric assessment and the family report – Orders made for the child to assume the surname of her family unit Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer (1978) FLC 90-150
M v M (1988) 166 CLR 69
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 74 Date of hearing: 30 August 2021 Place: Melbourne Counsel for the Applicant: Ms Fisken Solicitor for the Applicant: Johnstone And Reimer Lawyers Counsel for the Independent Children's Lawyer: Ms McNamee Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 8708 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHACE
Applicant
AND: MS HUXLEY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
9 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for the child, X born … 2013.
2.The child live with the father.
3.The child spend time and communicate with the mother as agreed between the father and mother in writing.
4.The mother and father and their agents be restrained as follows:
(a)from denigrating, criticising or belittling the other parent, their partner and family in the presence or hearing of the child or of speaking with the child, or to any other person in the child’s presence or hearing, in derogatory terms about the other parent or members of the other parent’s household or extended family;
(b)from coaching the child in making allegations or what to say;
(c)perpetrating any type of abuse on the child including, but not limited to, physical and/or psychological abuse.
5.The mother be restrained by herself or her agents as follows:
(a)from administering any medication to X unless agreed between the mother and father;
(b)from referring to any person other than the father as the child’s father in any medium;
(c)from referring to the father by his given name to the child;
(d)from contacting the child either directly or through her agents including, but not limited to, via telephone, social media, mail or email unless otherwise agreed in writing between the parties;
(e)from attempting to locate or contact the father’s and his wife’s and/or the child’s and/or any member of the father’s immediate household or place of residence, workplace, school or other place they regularly attend unless otherwise agreed in writing between the parties;
(f)from accessing or amending the child’s medical reports and records with any treating medical practitioner or allied health professional, including but not limited to the B Hospital;
(g)referring to the child by any name other than X.
6.The child be known as X and the father be permitted to approach the Registrar of Births, Deaths and Marriage in the state of Victoria to change the child’s name and register himself as the child’s biological father.
7.The father be permitted to obtain and/or renew the child’s passport without the consent of the mother.
8.The father be permitted to travel overseas with the child.
9.The child continue to attend upon her play therapist as directed by the said therapist.
10.All previous orders be discharged.
11.The Independent Children’s Lawyer be discharged.
12.The Independent Children’s Lawyer to serve upon the mother as soon as is practicable a sealed copy of the Orders made this day and Reasons for Judgment when available.
13.The service referred to in Order 12 hereof be effected by email to the mother at her last known email address, there being nothing known as to the mother’ current residential address.
14.The father be permitted to provide a copy of the Orders made this day and the Reasons when available to any investigative Authority or Magistrate in a Court if the mother initiates Intervention Order proceedings in the future.
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 the pseudonym Chace & Huxley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
The applicant is the father and the respondent is the mother of the child X (“the child”) born in 2013. The parents are in dispute about the living arrangements for the child.
In December 2017, interim orders were made in the Federal Circuit Court, prior to transfer to the Family Court, providing for the child to live with the father and for the mother to spend supervised time with her. The mother has not spent any time with the child since 1 February 2020.
On 27 May 2021, procedural orders were made by the court for the proceeding to be listed for trial on 30 August 2021, including orders for an electronic trial, if required, due to the Covid-19 pandemic.
On the date fixed for trial, Melbourne was in lockdown due to the Covid-19 pandemic. The mother did not appear at the electronic trial. Both counsel for the father and counsel for the Independent Children's Lawyer sought that the matter proceed on undefended basis and that the court make final parenting orders pertaining to the child.
On the date listed for the trial, subsequent to submissions from counsel for the father and the Independent Children’s Lawyer, orders were made as set out at the commencement hereof and these are my reasons for those orders.
Should the matter proceed undefended?
The mother has not filed any documents in the proceeding since June 2019 and has failed to participate in the court process since November 2019.
On 27 August 2021, my associate forwarded to the mother at her last known email address an email advising her that the trial would proceed electronically on the scheduled date and provided her with a link to enable her to attend.
Between 18 June 2021 and 20 August 2021, the Independent Children's Lawyer sent the mother eight emails enclosing various documents and reports, in anticipation of the trial commencing on 30 August 2021. There was no response by the mother to any of the Independent Children's Lawyer's emails.
On 27 August 2021, the father's lawyers filed three affidavits of service pertaining to service of documents on the mother. The affidavits establish the following:
(a)on 26 July 2021, the mother was served at two personal email addresses with copies of the father's Further Further Further Amended Initiating Application, the father's affidavit affirmed on 26 July 2021, an affidavit of the father's wife affirmed 26 July 2021 and affidavits of each of the paternal grandparents affirmed 26 July 2021. The documents were also emailed to the mother's former solicitors;
(b)on 17 August 2021, the documents referred to in the previous subparagraph were posted to the mother at her residential address;
(c)on 17 August 2021, the mother was emailed at two personal email addresses a letter dated 17 August 2021 which stated as follows:
We refer to the above matter and to the upcoming Defended Hearing commencing on 30 August 2021. We note that you have not responded to any of our correspondence or provided any court documents in accordance with the procedural orders made 27 May 2021 (a copy of which is enclosed for your reference).
We enclose here with further copies of our clients’ affidavit and witness affidavits (x3) each filed 26 July 2021. We also enclose our clients Further Further Further Amended Initiating Application filed 26 July 2021 and confirm that a precise orders sought by our client are contained within that document.
We hereby put you on notice that our client intends to proceed on an undefended basis on 30 August 2021 due to your failures to comply with previous orders.
The letter referred to in the previous subparagraph was also posted to the mother at her address and emailed to her former solicitors.
On 23 August 2021, the mother was served at two personal email addresses with copies of the father’s Case Summary and his Court book. A copy of the email was also emailed to the mother’s former solicitors.
I am satisfied that the mother is aware that a final trial of the father's application was fixed for determination on 30 August 2021 and that the father would seek to proceed on an undefended basis if she did not participate in the proceedings. The father's lawyers have served the mother on numerous occasions with all documents sought to be relied upon by the father. The Independent Children’s Lawyer has also sent numerous emails to the mother about the forthcoming trial. The mother could not be in any doubt that the father intended to seek orders as set out in his documents, on the date fixed for trial.
The litigation pertaining to the child has been ongoing since August 2017 when proceedings were initially commenced in the Federal Circuit Court. The matter was transferred to the Family Court in May 2018, as a result of an application by the maternal grandparents to join in the proceedings. The maternal grandparents subsequently ceased their involvement in the proceedings. It is in the interests of all parties that a final determination in relation to the child's living arrangements is made without further delay, particularly in circumstances where the mother has declined to participate in the proceedings since November 2019 and indeed has declined to spend time with the child since 1 February 2020 and where the child has been the subject of litigation for over half her life.
Documents relied upon by the parties
The father relied on the following documents:
(d)Further Further Further Amended Initiating Application filed 26 July 2021;
(e)affidavit of the father filed 26 July 2021;
(f)affidavit of the father’s wife filed 26 July 2021;
(g)affidavit of the paternal grandfather filed 26 July 2021
(h)affidavit of the paternal grandmother filed 26 July 2021;
(i)affidavits of service filed 27 August 2021 referred to in these reasons;
(j)Case Summary Document.
The mother did not file any documents for the trial.
The Independent Children’s Lawyer relied upon the following documents:
(a)Family Report of Ms C dated 16 May 2019;
(b)Section 67Z report of DHHS dated 16 May 2018;
(c)Magellan report dated 13 September 2018;
(d)Three affidavits of Dr D, psychiatrist, one filed on 4 March 2019 and two filed on 18 March 2019;
(e)affidavits of Ms E sworn 24 September 2018, 7 March 2019 and 16 April 2020;
(f)affidavits of Ms F sworn 30 April 2019 and 1 April 2020;
(g)affidavit of Ms G sworn 23 April 2020.
Proposals
The proposals of both the father and the Independent Children’s Lawyer were remarkably similar differing only to the extent that the proposal of the Independent Children’s Lawyer included a minute that the child spend time and communicate with the mother, as agreed between the father and the mother in writing, whereas the father’s initial proposal did not. During submissions by counsel for the father, I was advised that the father was agreeable to the inclusion of such an order.
The orders sought by the father and the Independent Children’s Lawyer are as follows:
1.That the Father have sole parental responsibility for the child, X born … 2013.
2.That the child live with the father.
3.That the child spend time and communicate with the Mother as agreed between the Father and Mother in writing.
4.That Mother and Father and their agents be restrained as follows:
a.From denigrating, criticising or belittling the other parent, their partner and family in the presence or hearing of the child or of speaking with the child, or to any other person in the child’s presence or hearing, in derogatory terms about the other parent or members of the other parent’s household or extended family.
b.From coaching the child in making allegations or what to say.
c.Perpetrating any type of abuse on the child including, but not limited to, physical and/or psychological abuse.
5. That the Mother be restrained by herself or her agents as follows:
a.From administering any medication to X unless agreed between the Mother and Father
b.From referring to any person other than the Father as the child’s father in any medium;
c.From referring to the Father by his given name to the child.
d.From contacting the child either directly or through her agents including, but not limited to, via telephone, social media, mail or email unless otherwise agreed in writing between the parties.
e.From attempting to locate or contact the Father’s and his wife’s and/or the child’s and/or any member of the father’s immediate household or place of residence, workplace, school or other place they regularly attend unless otherwise agreed in writing between the parties.
f.From accessing or amending the child’s medical reports and records with any treating medical practitioner or allied health professional, including but not limited to the B Hospital.
g.Referring to the child by any name other than X.
6.That the child be known as X and the Father be permitted to approach the Registrar of Births, Deaths and Marriage in the state of Victoria to change the child’s name and register himself as the child’s biological father.
7.That the Father be permitted to obtain and/or renew the child’s passport without the consent of the Mother.
8.That the Father be permitted to travel overseas with the child.
9.That the child continue to attend upon her play therapist as directed by the said therapist.
10.That all previous orders be discharged.
11.That the Independent Children’s Lawyer be discharged.
12.The Independent Children’s Lawyer to serve upon the Mother as soon as is practicable a sealed copy of the Orders made this day and Reasons for Judgement when available.
13.The service referred to in Order 12 hereof be effected by email to the Mother at her last known email address, there being nothing known as to the Mother’ current residential address.
14.The Father be permitted to provide a copy of the Orders made this day and the Reasons when available to any investigative Authority or Magistrate in a Court if the Mother initiates Intervention Order proceedings in the future.
The mother obviously did not propose any orders.
The Applicable Law- parenting applications
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying 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 (s 60CC(2A)).
Abuse is defined in s 4 of the Act and family violence is defined in s 4AB of the Act.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
Applicable Law in relation to unacceptable risk
The High Court in M v M (1988) 166 CLR 69 (“M v M”) at [76] stated that the Family Court is not required to "resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence".
The High Court, also stated, that in appropriate cases the court can and should make such findings.
At [23]–[25] the High Court said:
23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless [...]
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. […]
25.[…] In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The concept of "unacceptable risk" referred to in M v M was in the context of resolving "the wider issue" of what is in the best interests of the child.
In Stott & Holgar and Anor [2017] FamCAFC 152, the Full Court of the Family Court has recently succinctly considered the law with respect to unacceptable risk.
At [35]–[38] the Full Court stated:
35.The "unacceptable risk" test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [89].
36.In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to "achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access". In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38.We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
Allegations of unacceptable risk
Both parents have made allegations that the other parent poses an unacceptable risk to the child.
Historically, the mother made extremely serious allegations about the father including that he had raped her and sexually abused the child. It is difficult to reconcile these allegations with the mother’s lack of participation in the proceedings and the time which has elapsed since she last saw her daughter.
The father asserts that the mother engaged in erratic behaviour and neglect of the child, and that the mother has serious psychiatric issues which cause her to undermine the relationship between the father and the child.
The father commenced proceedings in this court in August 2017 when the child was aged four, as a result of his concerns about the mother’s conduct.
In September 2017, the DHHS, as a result of an investigation, removed the child from the mother’s care and placed her in the care of the paternal grandparents. In December 2017, after various assessments, the DHHS placed the child in the father’s care, where she has remained.
The DHHS endorsed the father’s view that the proper arrangements for the care of the child should thereafter be determined by the family courts. In December 2017, interim orders were made which provided for the child to live with her father and to spend weekly supervised time with the mother. Orders were also made providing for a psychiatric assessment of the mother by Dr D, psychiatrist.
Between December 2017 and October 2018, the mother did not spend time with the child and provided various reasons for her non-attendance. The mother also disputed the child’s paternity and notwithstanding a conclusive paternity test, the maternal family still dispute the child’s paternity. They allege that the father somehow manipulated the paternity testing process including providing forged documentation. The father has proposed a further paternity test to allay the concerns of the maternal family but the mother has declined the proposal.
In May 2018, the maternal grandparents applied to participate in the proceedings, when they sought that the child be placed in their primary care. As a result of that application, the matter was transferred from the Federal Circuit Court to the Family Court and placed in the Magellan list. On 26 September 2018, orders were made for all parties to the proceedings to undertake a psychiatric assessment by Dr D.
The father, mother and maternal grandparents undertook assessments in February 2019 as the mother had not complied with the earlier order for a psychiatric assessment. An affidavit of Dr D’s assessment of the mother was filed on 4 March 2019. Dr D was of the opinion that the mother displayed a presentation consistent with hysterical or pathological lying. He also concluded that she had very little insight into the child’s needs for a relationship with the father.
At paragraphs 72 to 73 of his report of the father dated 18 March 2019, Dr D summarised his findings of each party as follows:
72.Mr Chace does not describe symptoms of a current psychiatric condition. There is no suggestion that he suffers from a Personality Disorder. He does not impress as being a risk to his daughter in respect to either his character or any psychiatric condition
73.I have now assessed Ms Huxley, her parents Ms K and J Huxley, and Mr Chace. Based on paternity testing (which is uncontested), Mr Chace and Ms Huxley are the parents of X, their only child (DOB … aged 5½). Ms K Huxley does not believe that Mr Chace is the father of X.
In relation to the mother, at paragraph 74, Dr D said:
74.I found Ms Huxley to suffer from Pseudologia Fantastica (pathological lying). Her views of Mr Chace were similar to and aligned with that of her mother's account of Mr Chace. Ms K Huxley holds Mr Chace in contempt, describes him in the darkest terms, and is utterly convinced that he has abused X sexually, physically and emotionally and that X needs to be protected from him, and according she and Mr J Huxley are making an application for residence of X.
At paragraph 58 of his report of the maternal grandparents, Dr D described the maternal family as sharing in their household a “folie-a-trois” of a negative and unfettered hatred of the father.
The psychiatric assessments of the mother and maternal grandparents are a significant concern and Dr D considers that there is no possibility of the maternal household changing its position and attitude towards the father. He commented that the maternal grandparents could barely contain their hatred and animosity for the father.
The father relies on affidavits as to the mother’s uncontained presentation during supervised time in December 2019, and in particular during that period when she introduced the father of her new child, as the child’s father, during supervised time. The child was instructed to call the mother’s partner ‘daddy’ and at the commencement and conclusion of time the mother changed the child into completely new outfits. She also attempted to administer Ventolin during a supervised visit without any medical basis for doing so.
The Family Consultant, for the family report dated May 2019, interviewed both parents, the father’s wife and the maternal grandparents. In the family report she raises serious concerns about the presentation of the mother during the observation session and her insistent questioning of the child that the child was wearing makeup, when she was not. She describes the mother’s behaviour during supervised visits, at paragraphs 111 and 112 of the family report, including changing the child’s clothing at the start and end of visits, as abusive.
There was no evidence that the mother had addressed the considerable issues with her neglect of the child and her conduct, which led to the removal of the child from her care by the DHHS in 2017.
In terms of the mother’s allegations against the father, the allegations have escalated in nature and have all been investigated by Victoria police, SOCIT and DHHS and rejected. The father denies all the serious allegations made against him, including criminal and sexual misconduct and argues that the allegations are baseless fabrications. The assessments by independent professionals during the course of these proceedings, including a psychiatric assessment by Dr D and the family report, have concluded that the father does not pose any risk to the child. Additionally, the allegations have been raised in the Magistrate’s Court, where the mother has unsuccessfully sought to obtain intervention orders against the father.
There is no corroborative material to substantiate any of the mother’s allegations, yet despite numerous investigations she persists with her allegations against the father.
In the context of numerous investigations into the mother’s allegations against the father, the fact that the child has lived with him since December 2017 and the mother’s lack of involvement in the child’s life and failure to spend time with her as permitted by court orders, I have no hesitation in finding that the father does not pose an unacceptable risk to the child.
In terms of the mother’s conduct, I am persuaded for the reasons referred to in these reasons, and in particular the professional opinions of Dr D and the family consultant, whose uncontradicted evidence I unconditionally accept, that the mother poses an unacceptable risk to the child.
With whom should X live
The father submits that the child should continue to live with him, as she has done so for the past four years. She is thriving in a loving and stable home, with her father, his wife and their daughter. The father facilitates a positive relationship between the child and her paternal grandparents.
In terms of her current circumstances, she is in grade 2 at school and despite considerable challenges she faces, is doing well and has a supportive social network. She is engaged with a play therapist and has recently been diagnosed with ADHD and has been prescribed appropriate medications. She also continues to consult her haematologist and paediatrician.
The father and his wife both work and provide for the child’s educational health and financial needs, without assistance from the mother. The father concedes that at times the child says she misses her mother and half-brother, and to his credit, he engages in appropriate conversations with her about her mother and encourages her to speak freely about her. The father is able to put aside his own feelings about the mother to enable the child to express her feelings about the mother.
It was submitted on behalf of the father that the mother has no capacity whatsoever to adequately care for the child and support a relationship between the child and her father. There was no evidence before the court about the mother’s current circumstances, such as where she lives, who lives in her household and her future proposals for the child, nor whether she has addressed her neglectful care of the child, as identified by DHHS.
Notwithstanding the mother has sought not to participate in the proceedings or spend time with her daughter, she has recently filed an application for an intervention order against the father, still persisting with allegations that the father has sexually abused the child and raped the mother. Such conduct demonstrates that the mother has become more fixated in her keeping up her delusional narrative.
I accept the submissions of counsel for the father that it is manifestly in the child’s best interests that she continue to live with her father who has demonstrated appropriate care of her over the last four or so years.
Are there any steps which could be taken to ameliorate the risk the mother poses to the child?
The mother has only spent supervised time with the child subsequent to the orders of the Federal Circuit Court made in December 2017. There have been considerable problems with the mother’s conduct during supervised visits, and also during the assessment for the family report. The mother has continued to expose the child to the proceedings, denigrating the father and his family in the child’s hearing, coaching and manipulating the child and is unable to identify the child’s needs from her own. She has also posted inappropriate material about the child and the father on social media. It was submitted that the changing of the child’s clothing at the commencement and conclusion of supervised time, changing her hairstyle, mispronouncing her name and lying about the paternity, all directed towards distancing the child from the father. I agree with and accept those submissions.
It seems that there is little that can be done to contain the mother’s behaviour and presentation in the presence of professional supervision and assessment for a family report. I have no optimism that the mother’s conduct, if she were to resume supervised time with the child would differ in any manner.
In this regard, I accept the evidence of Dr D pertaining to the mother’s serious psychiatric problems and in particular her hysterical and pathological lying, which Dr D has described as Pseudologia Fantastica. I have no confidence that the mother would have any insight to acknowledge that she suffers from that diagnosis, nor that she may benefit from intensive treatment to challenge her views. That is particularly so because the mother has not spent time with the child for almost 18 months, despite orders enabling her to do so, and has not sought to participate in the proceedings to agitate her allegations against the father.
In these circumstances, there are no steps which could reasonably be taken to ameliorate the unacceptable risk which the mother poses to the child, which would warrant any orders providing for the child to have any relationship whatsoever with her mother. Significantly, it is the mother’s decision not to avail herself of time with her daughter.
Parental responsibility
Unsurprisingly, the father seeks an order for parental responsibility for the child. He does so on the basis that is not practicably feasible, or in the child’s best interests for the parties to share parental responsibility.
Section 61DA provides, when making a parenting order in relation to a child, 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 if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The father has had the primary care of the child for the past four years and will continue to do so in the future. The mother has not played any role in making decisions for the child during the last two years and has repeatedly demonstrated her inability to act in the child’s best interests, including attempting to undermine the father’s decisions including stopping the child attending kinder and cancelling medical appointments.
In the context of the mother continuing to make what the father considers baseless allegations against him, and making reports to the police and applying for intervention orders, which are later withdrawn, the father is concerned that any communication with the mother would result in her attempting to use the legal system to assert that he has committed family violence against her.
The father has not had any communication with the mother in more than 12 months and her current address and contact details are not known to him.
It is therefore impossible for the father to consult or communicate with the mother, and it was submitted that he should not be required to do so in the face of the mother’s utter contempt and hatred of the father and his family.
It is a serious decision to remove parental responsibility from a parent however the circumstances of this family undeniably warrant that an order for sole parental responsibility should be vested in the father. To require him to communicate with the mother or convey any information to her would, in my view, result and her continuing to make allegations against the father which could lead to further litigation. Because of the mother’s psychiatric issues, as identified by Dr D, I also have concerns about her capacity to make rational decisions in the best interests of the child.
In the context of my findings that the mother poses an unacceptable risk to the child and the factors relied upon to reach that conclusion, support a finding that there is sufficient evidence to conclude that it would not be in the best interests of the child for the parents to have equal shared parental responsibility, and that the father should have sole parental responsibility.
Should the child’s surname be changed
The father also seeks to change the child’s surname to his surname and that of his wife, as he understands that is the child’s preference and it is of significant importance to her. A change of surname would also have practical benefits, to enable family bookings to be simplified and avoid misunderstanding about the child’s parentage.
In 2018, the father married his wife and the family, including the child’s half sibling, commenced using a hyphenated surname. The child is aware of the family surname and has also requested to use that name, to reinforce that she belongs to her family unit with her father, stepmother and half-sister.
The child attends school, extracurricular activities and medical appointments and has expressed sadness that she does not share the same name as other members of her primary household.
In contrast, the mother has consistently attempted to exclude the child’s father from her life, including denying his paternity despite DNA evidence to the contrary, preventing the father from being listed on the child’s birth certificate and refusing to allow the child to assume her father’s name.
The considerations relevant to a change of name, as set out in Chapman & Palmer (1978) FLC 90-150, may be summarised as follows:
(a)the welfare of the child is paramount;
(b)the short and long-term effects of any change of name;
(c)any embarrassment which is likely to be experienced by the child if the child’s name is different to the parent who has the child’s custody and control;
(d)any confusion of identity which might arise for the child if the name is or is not changed;
(e)the effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
As the child has lived with her father for the last four years and has not had any time with her mother since February 2020, and is not likely to do so in the near future, and she will continue to live in her father’s household, it is axiomatic that the child’s welfare and best interests dictate that she should have the same surname as her family unit. Not to do so would invite confusion and embarrassment particularly as the child may not have any relationship with her mother in the future. It is appropriate for an order to be made changing the child’s surname to accord with her family unit.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 9 September 2021
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