CHILDES & TAPPER
[2020] FamCA 628
•3 August 2020
FAMILY COURT OF AUSTRALIA
| CHILDES & TAPPER | [2020] FamCA 628 |
| FAMILY LAW – CHILDREN – Where undefended hearing – Where discrete issues as to child’s surname and overseas travel – Where mother seeks that the child be known by mother’s surname – Where mother seeks that the child be permitted to travel internationally – Where mother seeks that she obtain passport for child without father’s consent – Where appropriate matter proceed on an undefended basis – Consideration of best interests principles – Orders made that the mother be permitted to register the child’s surname as mother’s surname and to obtain passport for child for international travel. |
| Australian Passports Act 2005 (Cth) s 11(1) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 68B |
| Flanagan & Handcock [2000] FamCA 150 MRR v GR (2010) HCA 4 |
| APPLICANT: | Ms Childes |
| RESPONDENT: | Mr Tapper |
| FILE NUMBER: | PAC | 157 | of | 2020 |
| DATE DELIVERED: | 3 August 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 June 2020 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | Ms Childes in person |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
Orders Made On 15 June 2020
The Applicant mother have leave to proceed to hearing on an undefended basis.
The mother be authorised to apply to the Registrar of Births Deaths and Marriages NSW that the child registered as X Childes-Tapper born … 2004 be now registered as X Childes.
Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 NSW the Registrar register the child’s name in the form specified in Order 2 herein.
The Court forward a sealed copy of this order to the registrar of Births Deaths and Marriages NSW.
The child X Childes born … 2004 is permitted to have an Australian travel document and to travel internationally.
The mother may apply for an Australian travel document (passport) for the child X Childes without first obtaining the consent of the father Mr Tapper.
Reasons for judgment is reserved to a date to be advised.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Childes & Tapper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 157 of 2020
| Ms Childes |
Applicant
And
| Mr Tapper |
Respondent
REASONS FOR JUDGMENT
Introduction
These are discrete parenting proceedings commenced by the applicant mother by Initiating Application filed 14 January 2020 and later amended on 24 March 2020.
The application relates particularly to the question of the name of the child X Childes-Tapper born in 2004 (“the child”) and the question of international travel for her.
The father’s whereabouts are unknown and orders for substituted service were made facilitating the mother effecting service by forwarding a sealed copy of her application to him via social media and to the paternal grandmother at her last known address. Despite service being effected in accordance with orders and the father thus being notified of the hearing date, the father filed no material in response to the mother’s application and leave was granted for the proceedings to be heard on an undefended basis.
At trial, the mother relied upon the following documents:
a)her Amended Initiating Application filed 14 January 2020; and
b)her affidavit filed 14 January 2020;
The mother sought orders that she be permitted to amend the child’s surname such that it be registered solely as the mother’s surname and not the father’s. She also sought orders that she be permitted to obtain a passport for the child without the father’s consent and that the child be permitted to travel internationally.
Orders were made by the Court in the terms sought by the mother on 15 June 2020 and reasons were reserved. These are those reasons.
Context
The mother is currently aged 52 and the father 47.
The parties commenced a relationship in around 2000 but never married. They separated on a final basis in 2012 when the child was about eight years old.
Since birth the mother has been the primary carer for the child and following separation the child spent irregular time with the father including via electronic means.
The mother deposes to a long history of family violence perpetrated by the father during their relationship which continued even after separation. The father was physically and emotionally abusive towards her and the child, and on many occasions when the father contacted the child following separation, he continued to verbally abuse her leaving her extremely frightened and unwilling to continue telephone communication with him.
Other issues raised by the mother related to the father’s impaired parental capacity and, in particular, his substance misuse.
In 2015 the child ceased all contact with the father and has not had contact with him since.
For several occasions in late 2015 and early 2016 the child engaged in counselling sessions to manage her resulting stress and anxiety. Records obtained from the child’s treating psychologist annexed to the mother’s affidavit noted that:
…[the child] was indeed experiencing some anxiety in the context of past parental conflict, subsequent parental separation and reported outbursts and threatening behaviour towards the mother by the father…[the child]’s anxiety response was reported to be triggered by contact with the father.
Aside from being the subject of verbal and emotional abuse from the father and being exposed to his violent behaviour towards the mother, in around 2015 the child then 11 years of age expressed a desire to remove the father’s surname from her birth certificate due to his overall association with criminal behaviour. It is her fear that given the father’s criminal history, including that he has been the subject of various Apprehended Violence Orders from 2008 until 2015 and been charged with malicious damage, and that as he associates with known criminals, being associated with him could potentially deny her job opportunities in the future.
The mother seeks to change the child’s surname to facilitate the child obtaining a passport to visit the mother’s home country, and to also facilitate her obtaining her driver’s licence in due course.
The proceedings
On 14 January 2020 the mother commenced these proceedings.
In her Notice of Child Abuse and affidavit filed in support of her application, the mother sets out the father’s abusive behaviour and the negative impact it has had on the child.
On 15 January 2020 a Registrar of the Court listed the matter for directions on 27 February 2020.
The next day the matter was considered by a Magellan Registrar who refused to allocate the matter into the Magellan Program[1] noting that the allegations made against the father were not recent and did not meet the criteria for such a program.
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 27 February 2020 the Registrar noted that the mother’s affidavit evidence did not adequately provide information regarding substituted service for which the mother also initially sought orders. Orders were then made directing the mother to file a further affidavit addressing this issue.
On 17 March 2020 the mother filed an affidavit in accordance with the Registrar’s orders deposing to her various unsuccessful attempts at contacting the father for the purposes of service.
On 7 May 2020 an order was made for substituted service allowing the mother to effect service of her Amended Initiating Application by forwarding copies of the application to a social media account owned by the father, and by posting copies to the paternal grandmother’s last known address with instructions for the paternal grandmother to forward the documents to the father. Service was effected by the mother accordingly and an affidavit proving compliance was filed shortly thereafter.
On 9 June 2020 the Court instructed the mother to notify the father of the hearing date listed for 15 June 2020. In an affidavit filed 11 June 2020 the mother deposes to complying with the Court’s instruction and annexes the father’s response to her message in which he was seen to denigrate her and engage in other verbally abusive language towards her.
There was no appearance by or on behalf of the father on 15 June 2020 and the matter proceeded on an undefended basis with the mother appearing on her own behalf.
Procedural fairness
As outlined above, the father has had no involvement in the proceedings despite being served the mother’s application and being sufficiently notified of the final hearing date. In these circumstances, the Court is satisfied that it is appropriate for the matter to proceed on an undefended basis.
The discrete issues to be determined
With respect to a change in a child’s name, ss 28(3) and (5) of the Births Deaths and Marriages Registration Act 1995 (NSW) relevantly provides:
(3)An application for registration of a change of a child’s name may be made by one parent if:
(a)the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law (including a corresponding law), or
(b)there is no other surviving parent of the child, or
(c)a court approves the proposed change of name.
...
(5)If any court (including any court of another State or the Commonwealth) approves a proposed name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.
With respect to obtaining a passport for a child, s 11(1) of the Australian Passports Act 2005 (Cth) relevantly provides:
(1)The Minister must not issue an Australian travel document to a child unless:
(a)each person who has parental responsibility for the child consents to the child having an Australian travel document; or
(b)an order of a court of the Commonwealth, a State or a Territory permits:
(i)the child to have an Australian travel document; or
(ii)the child to travel internationally…
Both these issues require this Court to have regard to the best interests of the child.
The relevant principles in relation to parenting proceedings are set out more fully in Goode & Goode [2006] FCA 1346; (2007) 36 Fam LR 422, and the pathway to be followed by the Court was confirmed by the High Court in MRR v GR (2010) HCA 4.
Section 60B outlines the objects and principles underlying the legislation in relation to children, and s 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the interests of the child as the paramount consideration.
Section 60CC sets out the best interest considerations in relation to the child being the primary – subsection (2) – and additional considerations, subsection (3).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
As parental responsibility for the child is not a live issue in the present case and the proceedings are as to discrete issues, it is appropriate to determine those discrete issues by having regard to the best interest considerations set out in s 60CC of the Act.
The child’s name
The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan & Handcock [2000] FamCA 150. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a s 68B injunction or a parenting order, either directly or indirectly the paramountcy principle of the child’s best interests is applicable.
In Fooks v McCarthy (1994) FLC 92-450 Warnick J held:
There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.
The factors frequently considered in determining whether there should be any change to a child's name include:
a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
d)The effect of frequent or random changes of name;
e)The contact that the non-custodial parent has had and is likely to have in the future with the child;
f)The degree of identification that the child or children have with their non-custodial parent; and
g)The degree of identification which the child or children have with the parent with whom they live.
As is clear from the mother’s evidence, the mother has been the primary carer for the child since birth and even more so after the parties’ separation. She asserts that the father “rarely assisted” in the child’s daily care and that following separation, the father did not actively involve himself in the child’s life and has only had limited contact with her such as telephone communication on an irregular basis. It is likely, therefore, that the child’s primary attachment is to the mother and, therefore, identifies more with her than with the father.
As a result of the father’s verbal and emotional abuse, and exposure to his perpetration of family violence towards the mother, the child ceased all contact with him in 2015. Since this time, the child has been “adamant” in removing the father’s surname from her birth certificate given it brings with it a “negative association”.
In circumstances where there is evidence that the child received psychological assistance for the emotional distress and heightened anxiety she suffered as a result of her experiences of the father, there is a strong inference that any memory of the father that may be associated with his surname may adversely affect her wellbeing.
Further, the removal of the father’s surname from the child’s surname would not compromise the relationship between the father and child, given it appears their relationship is already extremely fractured and there is little prospect of reconciliation or communication between them.
In the circumstances, the Court is satisfied that it is in the child’s best interests to amend her surname to solely that of the mother’s.
Passport application and international travel
As outlined above, orders for obtaining a passport for a child without the consent of a parent and permission for that child to travel overseas must be determined by the application of the best interest principles set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
In the circumstances of this matter, and as it is readily apparent that the mother has been the primary carer of the child since birth, it is proper that an order be made permitting her to obtain a passport for the child and travel overseas with the child without the father’s consent.
There is little evidence to suggest that the father has been actively involved in the care of the child, much less long-term decision-making relating to her in the years following separation. He has also demonstrated little interest in making decisions for the child through his disengagement in the proceedings, which also reflects poorly on his attitude to the child and to his responsibilities of parenthood.
In light of the child’s strong attachment to the mother as her primary carer, it would be in the child’s best interests to travel internationally to the mother’s home country, as intended, in order to facilitate the child’s connection to the extended maternal family and the mother’s European culture. It is important that the child have such knowledge and understanding so that the child’s existing meaningful relationship with the mother further develops.
Further, given the father’s violent history and the parental conflict to which the child has been exposed, the need to protect the child from physical or psychological harm or being subject to or exposed to abuse or family violence is a factor that looms large in the context of these proceedings.
A consideration of the s 60CC factors having regard to the background of this matter, and the reality that the child is virtually estranged from the father, supports the making of orders as sought by the mother.
Orders will be made accordingly.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 August 2020.
Associate:
Date: 3 August 2020
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