Choo & Pratt
[2021] FedCFamC2F 594
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Choo & Pratt [2021] FedCFamC2F 594
File number(s): MLC 2633 of 2020 Judgment of: JUDGE BENDER Date of judgment: 18 October 2021 Catchwords: FAMILY LAW – PARENTING – The Father’s application for parenting orders – the Father has since ceased to participate in proceedings – the parties have one child aged two – the Mother is currently incarcerated with the child – the Father has a history of significant alcohol and illicit substance addiction – the Father has spent little time with the child which has only ever been supervised.
HELD – Leave granted to proceed on an undefended basis – orders made for the Mother to have sole parental responsibility for the child, the child to live with the Mother and spend time with the Father as agreed between the parties – the time the child spends with the Father be subject to such conditions as determined by the Mother – orders also made changing the child’s surname to that of the Mother.
Legislation: Family Law Act 1975 (Cth), s.60CC Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 18 October 2021 Place: Melbourne Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Ms Swann Solicitor for the Respondent: Leslie Family Law ORDERS
MLC 2633 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHOO
Applicant
AND: MS PRATT
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
18 OCTOBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
AND IT IS DECLARED THAT:
2.It is in the best interests of the child X CHOO born in 2019 to be known as X PRATT.
AND THE COURT FURTHER ORDERS THAT:
3.The child previously known as X CHOO born in 2019 now be known as X PRATT.
4.The Mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with order 3 herein and do all such acts and things and sign all such documents as may be required to give effect to that registration.
5.Each of the Mother and the Father henceforth exclusively use the name X PRATT as the name of the child X CHOO born in 2019, now known as X PRATT, and not cause or permit any other person to use any name other than X PRATT as the child’s name.
6.The Mother have sole parental responsibility for the child X PRATT born in 2019 (“X”).
7.X live with the Mother.
8.X spend time and communicate with the Father on such terms and conditions as deemed appropriate by the Mother.
9.The matter be removed from the pending cases list.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
B.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the court may vary or set aside a judgment or order made in the absence of a party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Choo & Pratt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE BENDER:
INTRODUCTION
This is the Father’s application for parenting orders commenced by Initiating Application filed on 10 March 2020.
The application relates to the parties’ young son X CHOO who was born in 2019 (“X”). X is currently two years of age.
The parties were in a very brief relationship for approximately 12 months. X was born almost nine months after the parties separated.
After X’s birth, he had some limited supervised time with the Father. The need for supervision, on the evidence of the Mother, is as a result of the Father’s issues with continued substance abuse and the resultant inappropriate pattern of behaviours that inevitably flows for somebody who is abusing illicit substances.
When the Initiating Application was filed, the Mother filed responding material and as a result, interim orders were made on 8 April 2020 providing for the Father to have time with X supervised by his family members subject to the Father undertaking a hair follicle test that was clear of illicit substances. The orders also provided that if the Father failed to undertake the hair follicle test, any time between X and the Father would be suspended until that test was undertaken. The Father was also ordered to engage in appropriate drug and alcohol counselling.
The matter came back before the court on 24 June 2020. On that occasion, it was explained to the Court that the Father had not been able to undertake the hair follicle test. Accordingly, an administrative adjournment was granted and the orders made on 8 April 2020 remained in full force and effect.
In 2020, the Mother was in another court as a result of criminal charges that she faced arising from her embezzling funds from her employer. The Mother pleaded guilty in relation to those charges and in 2020 was sentenced to three years imprisonment with a non-parole period of 18 months.
As the Mother knew the criminal hearing was pending, there had been sensible discussions between her solicitors and the Father’s then solicitors with respect to parenting matters. The parties actually reached agreement in relation to what orders were to be in anticipation of the Mother’s impending incarceration.
Those orders provided that if X and the Mother were not accepted into the Mother and Child Program within the Department of Justice, X would live with the maternal grandmother and any time that the Father spent with X would be on the same terms as provided for in the orders made on 8 April 2020.
Fortunately, the Mother and X were accepted into the Mother and Child Program and he has been with her since her incarceration.
BACKGROUND
The Mother was born in 1985 and is 36 years of age.
The Father was born in 1984. He is currently 37 years of age.
The parties were in a relationship from approximately 2017 to September 2018.
In relation to parenting matters, Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the matters the Court must take into account when making parenting orders. The overriding requirement is that any order be in the best interests of X.
The matters to be taken into account in determining what is in the best interests of X are those set out in s.60CC of the Act.
As previously set out in this judgment, X has been living with the Mother in the Mother and Child Program since her incarceration.
Despite the Orders made on 8 April 2020 the Father has not availed himself of the opportunity to develop a relationship with his son. The Father has not undertaken any form of drug testing. His solicitors have now ceased to act on his behalf. There was a brief time when the Father contacted the Mother whilst she was incarcerated and as I understand it provided a one-off gift of clothes and money for X. However, as soon as it was suggested to him that he needed to still satisfy the Mother and all those involved in this matter that he was drug free, he completely disappeared and has continued to choose not to participate in these proceedings, and more importantly, not to be part of his son’s life.
In these circumstances, the only conclusion that is available to the Court today is that the Father continues to use illicit substances and unfortunately, as is often the case, his addiction overrides any other important responsibilities that he has.
The Mother today advises through her Counsel and her affidavit material that she is eligible for parole in early 2022 and that she is optimistic that that she will be paroled on that date. This reflects that the Mother has been a model prisoner. She has taken advantage of all of the opportunities that the prison has offered through counselling, through parenting programs, and through ways in which she has been able to personally advance herself in order to resume her life when she is released in a manner that is not reflective of the behaviours that led to her incarceration.
PARENTING ORDERS
The Mother is seeking orders today that she be granted sole parental responsibility for X, that he live with her and that the time he spends and the communications he has with his Father be on such terms and conditions as the Mother determines.
In the circumstances that I have outlined, there are no other orders available to this Court that could be seen to be in the best interests of X. He has, unfortunately, a Father who is unable or unwilling to step up and be an active part of his life. The only available evidence before the Court is the Father continues to have major issues with an addiction to illicit substances.
I am also satisfied that the Mother is an appropriate parent for X. The behaviours that led to her incarceration cannot be commended in any way, but she has paid the price. It would appear from the tenor of her material that she would be someone most unlikely to ever embark on a life of dishonesty again. I hope so, because not only X but her two older children deserve her at her best.
The other matter that I am being asked to make orders on is X’s surname. He currently has his Father’s surname. It is not that of the Mother. She currently is known as B. B is the Mother’s former married name and it is her evidence that upon release from jail, she intends to resume her maiden name. The Mother wants X to have the same name as she does, and does so in circumstances where at least on the evidence that is available to the Court, he is not going to have any relationship with his Father.
I am satisfied that it is in X’s best interests that he have the same surname as his Mother. She is and will continue to be his primary carer. She will be the one that will be seeing and dealing with schools, travel, doctors and other professionals and she does not need to explain to them why X has a different name to that which she has.
I have been given a minute of the precise orders that are sought by the Mother which reflect the findings I have made as to what orders are in X’s best interests and accordingly I pronounce orders in those terms on an undefended basis.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 18 October 2021
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