CLARKSON & ZAMMIT

[2014] FCCA 1099

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKSON & ZAMMIT [2014] FCCA 1099

Catchwords:
FAMILY LAW – Where respondent is registered as the father of the child but is not the father – whether the child should live with the mother or the respondent – whether the child should spend any time with the respondent.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA

Births, Deaths and Marriages Registration Act 1996 (Vic), ss.13(1), 20(2)(b)
Status of Children Act 1974 (Vic), s.8(1)

Applicant: MS CLARKSON

Respondent: MR ZAMMIT

File Number: DGC 1720 of 2013

Judgment of: Judge Phipps

Hearing dates: 31 March & 1 April 2014

Date of Last Submission: 1 April 2014

Delivered at: Dandenong

Delivered on: 30 May 2014

REPRESENTATION

Counsel for the Applicant: Mr Potter

Solicitors for the Applicant: Quintessential Lawyers

Counsel for the Respondent: Mr Stanley

Solicitors for the Respondent: Gigiliotti Lawyers

Counsel for the Independent Children's Lawyer: Mr Gates

Solicitors for the Independent Children's Lawyer: McCormack &Co

ORDERS

1. That all previous orders are discharged.

2. That the mother have sole parental responsibility for the child X born (omitted) 2012.

3. That the child live with the mother.

4. That the child spend time and communicate with the respondent as agreed with the mother.

5. The court declares that the respondent Mr Zammit is not the father of the child X born (omitted) 2012.

6. The court directs that the name of the respondent Mr Zammit be removed from the registrable information in relation to the child in the Register under the Births, Deaths and Marriages Registration Act (1996) (Vic).

7. Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Clarkson & Zammit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1720 of 2013

MS CLARKSON

Applicant

And

MR ZAMMIT

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Ms Clarkson, is the mother of X born (omitted) 2012.  The respondent, Mr Zammit, is named as the father on the child’s birth certificate, but he is not the biological father.  The father, Mr B, is not a party to the proceedings.  He has been notified of the proceedings but has taken no part.  The mother says that Mr B has told her he does not want to be part of the child’s life.  There is no reason to doubt what the mother says.

2. The child has lived principally with the respondent and his parents since late June 2013.  The respondent proposes that this continue.  The applicant proposes that the child should live with her and have no time or communication with the respondent, or only as agreed.  The Independent Children’s Lawyer supports the applicant’s proposal.  The applicant, supported by the Independent Children’s Lawyer, proposes orders that the respondent’s name be removed from the child’s birth certificate.  The respondent does not actively oppose the order but does not consent or concede that it should be done.

3. Part VII of the Family Law Act 1975 (Cth) contains children’s provisions. The word parent has its ordinary natural meaning in Part VII. The presumption of equal shared parental responsibility contained in s.61DA(1) applies to parents so does not apply. The respondent proposes an order for equal shared parental responsibility but I do not intend making that order.

4. This means that the relevant provisions of the Family Law Act 1975 (Cth) are the objects of Part VII and the principles underlying it contained in ss.60B and 60CA which provides that in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration and s.60CC which contains the considerations for determining what is in a child’s best interests.

Proposals

1. The applicant mother proposes that the child live with her, that she have sole parental responsibility for the child and that the respondent’s time with the child be reserved.  Towards the end of the hearing her counsel put to the family report writer that an order that time with the child be as agreed would be not inappropriate so I will assume that this is an alternative proposal by the mother.  She proposes orders that the father’s name be removed from the child’s birth certificate.

2. The Independent Children’s Lawyer makes the same proposal as the mother.

3. The respondent proposes that the parties have equal shared parental responsibility for the child and that the child live with the mother:

   a)until the child turns three on 3 July 2015 each week from 10.00am Monday to 4.00pm Tuesday, from 10.00am Thursday to 4.00pm Friday and from 10.00am until 4.00pm on Sunday;

   b)From 3 July 2013 until the child commences the second term of his first year at school, each alternate week from 10.00am Monday until 4.00pm Wednesday, and in the alternate week 10.00am Wednesday until 4.00pm Friday;

   c)From the commencement of second term of the child’s first year of school, each alternate weekend from the conclusion of school on Friday until the conclusion of school on Tuesday, and each alternate Monday from the conclusion of school until the commencement of school on Tuesday.

4. The respondent proposes that the child live with him at all other times up to the commencement of second term of the child’s second year at school and then after that the child live week about with each parent.  He proposes that school holidays be shared and the child have time with each parent on the various celebratory occasions.

Background

1. The mother was born on (omitted) 1991 and is 22 years old.  The respondent was born on (omitted) 1980 and is 33 years old.  The parties met in 2008 when both were working in a (employer omitted).  The mother was 16 years old and the respondent 27 years old.  They formed a friendship but did not have a sexual relationship.

2. In 2011 the mother was dating Mr B.  She became pregnant and the relationship with Mr B ceased after she knew that she was pregnant.  Mr B did not wish to be involved with the child.

3. The mother told the respondent that she was pregnant.  They started dating and then the parties commenced living together.  Initially they lived some of the time at the mother’s house and some of the time at the respondent’s parent’s house.  The relationship between the mother and her mother became very difficult and they moved full time to the respondent’s parent’s house.

4. The respondent told the mother that he would support her and the child and when the child was born the respondent was registered on the birth certificate as the child’s father.  The mother says she was upset and confused with the situation she was in and thought that having the respondent as the father on the birth certificate would be a better option than having no father for the child.

5. At the time the mother made this decision she had no income herself apart from social security payments, she was young, aged 20 years, pregnant to a man who did not want to be involved with her or the child and with nowhere to live except her mother’s house or the applicant’s parent’s house, but with a deteriorating relationship with her mother.

6. The respondent told his parents that he was the child’s father and they accepted that they would be the child’s grandparents.  They built a self-contained unit at the rear of their house to accommodate the mother, the respondent and the child when born.  They had intended to build it at some stage for the respondent’s maternal grandmother, but at the time it was built specifically for the respondent, the mother and the child.

7. The respondent attended medical appointments and ultrasound appointments with the mother prior to the birth and was present at the birth of the child.  His parents and family visited in hospital.  There was an altercation between the respondent’s family and the mother’s mother, it’s cause and exact from being disputed, but there is no doubt that the respondent’s parents thought they were visiting their grandchild, and there is no reason why they should have thought otherwise.  The mother at that stage was treating the respondent as if he was the child’s father.

8. The mother started using marijuana when she was 18 years old.  She stopped when she became pregnant and resumed again when the child was about three months old, after she had stopped breastfeeding.  She says she had many stressors, the care of a young child, a deteriorating relationship with the respondent, lack of money and her poor relationship with her mother.  She says that at the peak she was using marijuana about five times a week using a gram a day.  She now acknowledges that when affected by marijuana she was incapable of caring for the child, in her own words she was “stoned half the time”.

9. In April 2013 the respondent obtained employment (occupation omitted) for (employer omitted).  Initially it was during the day but then became night shift work.  The respondent describes the mother’s increasing use of marijuana, her behaviour and his concerns for her care of the child.  I do not need to recite the detail because of the mother’s acknowledgment that she was incapable of caring for the child for significant periods.

10. The parties’ relationship deteriorated.  The mother left with the child on 10 June, 2013.  The respondent spent some time with the child and the mother came to his residence at times.  On 24 June 2013 the child was with the respondent.  He spoke to the child protection services and he said they told him that if he was concerned for the child with the mother he should keep the child with him and that is what he did.  He advised the mother.  The mother then commenced these proceedings on 25 June 2013 that led to orders on 27 June and 9 July 2013.  Communication and disputes between the parties on 24 June 2013 are described in affidavits, but the detail now does not need to be recited.  The mother now acknowledges her inability to care for the child and the appropriateness of the orders made in June and July 2013.

11. The mother says that she has not used marijuana since 24 June, 2013.  She says losing the child was a shock to her and a wake-up.  Drug tests since then are consistent with the mother’s evidence.  She has complied with the Independent Children’s Lawyer’s requests for drug screens.  The first two tested positive for cannabinoids, consistent with her using until 24 June, 2013.  The screens since then have been clear.  I accept what she says, that she has not used marijuana since 24 June 2013.  I cannot find that she will never use marijuana again but the risk that she will, particularly while she has the care of young child, is low and does not need to be taken into account as best interests considerations.

12. The respondent has some history of drug use.  He says he used marijuana once with the mother.  The mother says it was more than that, but I do not need to make a finding.  The respondent was found in possession of amphetamines in November 2011, was convicted of drug use and trafficking and received a six months suspended term of imprisonment.  He says the reason was that he was suspended from his (omitted) course because he had conducted his own research into drug use without approval and his upset at that caused him to use amphetamines.  He says because of the way he had acquired it in company with a friend he was also guilty of trafficking.  Whether that is correct or not the court sentencing him considered the circumstances serious enough to impose a sentence of imprisonment, but suspended.

13. He has another conviction for drug use about 11 years earlier.  He acknowledges using amphetamines or “ice”.  His drug screens, carried out as requested by the Independent Children’s Lawyer, have all been clean and so his position in relation to the use of drugs is the same as the mothers.  I accept that he has not used amphetamines since late 2011 and at the risk of him doing so in the future is so low that it need not be taken into account as a best interest consideration.

14. The order made on 27 June 2013 provided for the child to live with the respondent and spend time with the mother each Monday, Wednesday and Sunday at the home of the maternal grandmother between 12.00 noon and 2.00pm and each Thursday, Friday and Saturday at the home of the paternal grandparents any time between 10.00am and 9.00pm at times agreed between the parties.

15. The order made on 9 July 2013 provided for the child to spend time with the mother until she returned three consecutive drug screens each Sunday, Monday, Wednesday and Thursday from 1.00pm to 3.00pm with the any one of a number of named people present and once the clear drug screens were provided from 12.00 noon Monday to 12.00 noon Tuesday, 12.00 noon Thursday to 12.00 noon Friday and 10.00am to 3.00pm Sunday with a requirement that the child sleep overnight at the home of the applicant’s mother.

16. Ms M interviewed both parties on 5 August, 2013 and had telephone contact with them on 13 September 2013.  At the time of the interviews the parties were considering reconciliation and the mother was coming to the respondent’s residence each day and seeing the child.  By the time of the telephone conversation on 13 September 2013 the prospect of reconciliation was gone and the respondent had insisted that the mother’s time with the child be strictly in accordance with the orders made on 9 July 2013.

17. The child had all the normal appointments with the maternal health and child welfare nurse.  The child had not had all the usual vaccinations because the respondent was opposed to vaccination.  He gave evidence that he had done his own research and at one stage said that there was no evidence that vaccination worked.  After some questioning he said that he had no objection to the vaccinations being completed.

18. The child’s last visit to the maternal nurse was the 18 month check up in early 2014.  The mother had attended all the earlier appointments but not this one.  She said she was unaware of a 2014 appointment and I accept that that is correct.

19. The respondent presented as emotional and said on a number of occasions in his evidence that he loved the child.  I do not doubt that is correct but his attitude to the child is such that Ms M queried his mental health, although emphasising that she was not qualified to make an assessment of his mental health.  The respondent’s attitude to the child and the mother, and his relationship with the child is significant to the mother’s proposal that the respondent’s time with the child be reserved.

20. Prior to the hearing the respondent had not acknowledged that he was not the child’s father.  In the affidavits he filed he describes himself as the father.  An affidavit by the mother shows correspondence from her solicitors asking for confirmation that the respondent accepted that he was not the child, but it did not come.

21. There is no doubt that the respondent is not the father of the child.  He says that he had sexual intercourse with the mother once in December 2011.  The child was born in (omitted) 2012 and was not premature and so even on the respondent’s evidence he cannot be the father.  The respondent’s evidence at the hearing was that he knew the child was born at a full-term weight and so he could not be the father.  He said this in his evidence in chief but at various times in his cross examination he seemed to claim that he was in fact the father.

22. Ms M’s evidence is contained in her report and in her evidence at the hearing.  She says that the respondent comes across as if he is trying to make himself believe that he is the natural father of the child and that he is having difficulty reconciling himself with the fact that he is not.  She said that for the first 20 minutes of her interview with the respondent he spoke as if he was the father.  Notes from the maternal health nurse file for February 2014 at the 18 month check up are he had said to the nurse that he may not be the natural father and it was being checked. Ms M sees this as further evidence of the respondent’s difficulty in his attitude towards the child.

23. Ms M said that the respondent had told her that he still loved the mother.  Ms M said that the respondent could not separate his feelings towards the child and the mother.  She said that this was detrimental to the respondent and would put pressure on the mother and impact on the child.  Her opinion is that the respondent was using the child to get to the mother.  In the week before the hearing the respondent had accessed the mother’s Facebook page and had seen that she was communicating with a former boyfriend.  He had told the mother that she should not let that person near his son.  Ms M saw this as further evidence of the respondent wanting to control the mother.

24. Because I did not think it clear that the respondent’s position was he was not the father I asked him the specific question “Are you the father of X” and said to him that there were only three possible answers, “yes, no, or I don’t know”.  His answer was “I don’t think so” and then immediately he changed it to “no”.  His answer demonstrates that he still has the problem Ms M describes, that is he has difficulty in reconciling himself with the fact that he is not the father.

25. Ms M has a clear opinion that the child should be principally cared for by the mother and that this should happen if the mother was not using marijuana, had secure accommodation and support from her own mother, that support including potentially financial support and housing if necessary.  I am satisfied that all of these are in place and so Ms M’s evidence supports the child living with the mother.

26. Ms M initially in her evidence at the hearing said that the mother’s time with the child should progress until once the child turned two the child might spend one night overnight with the respondent and the rest of the time with the mother.  After the evidence about the respondent’s ambivalent attitude had been put to Ms M she agreed with the proposition that it would be not inappropriate for orders that the child live with the mother and spend time as agreed between the mother and the respondent.

27. Some other matters from Ms M’s evidence should be noted.  She said that with the respondent’s continuing attitude and attempts to control the mother the mother would be extremely insecure when the child was in the respondent’s care.

28. The mother says that they did not have sexual intercourse in December 2011 and that they did not until well into 2012, and I accept that that is correct.  The respondent says that she was consoling him because of his troubles at the time, his suspension from university and his conviction for possession of drugs.  This explanation is improbable.  The parties had been friends for several years and had not had a relationship that could in any way be described as romantic.  They did not commence dating until some months later and so a single instance of sexual intimacy is unlikely.  It is not impossible, but I prefer the mother’s evidence.  A plausible explanation for what the respondent says is that it was part of the mindset he developed that he was the father of the child.  His equivocal answer about paternity close to the conclusion of his evidence shows that even after giving evidence that he was not the child’s father he could not let go of his wish that he was.

29. The respondent is named on the child’s birth certificate as the father. He should not be. Section 13(1) of the Births, Deaths and Marriages Registration Act 1996 (Vic) requires registration with the Registrar of Births, Deaths and Marriages of the birth of a child born in the State of Victoria. This Registration Act includes provision for the registration of parentage details and various parts of the same Act and the Status of Children Act1974 (Vic) contains the definition of parent and presumptions of parentage. The respondent is not the biological father of the child and does not come within any of the presumptions.

1. The respondent should not be registered as the parent of the child. His remaining registration can have detrimental consequences for the child. Section 8 (1) of the Status of Children Act 1974 (Vic) provides:

   Where the name of a parent of a child is entered in the register of births in the Register maintained under the Births, Deaths and Marriages Registration Act 1996 in relation to the child a certified copy of the entry purporting to be made or given under section 46 of that Act shall be prima facie evidence that the person named as a parent is a parent of the child.

2. Production of a birth certificate is required for many normal activities in life, opening bank accounts, obtaining passports and obtaining various government benefits.  Family history is important in medical diagnosis and treatment.  Ms M said that once the child was old enough to understand the child would start to question why someone who was not his father was on his birth certificate as his father.  The importance for the child of an accurate as possible record of his birth is obvious.  Yet, despite the mother, as part of this proceeding, applying for an order for the name of the respondent be removed from the birth certificate, and despite correspondence from the mother’s solicitors to the respondent solicitors asking for his consent, the respondent has not agreed.  His Counsel said at the beginning of the hearing that the respondent did not consent to the order for the removal of his name but wanted the court to make the order.

3. The respondent’s attitude to the birth certificate is another indication of his equivocal attitude to the issue of whether or not he is the father of the child.  If he loves the child as he says, he would want the best for the child which includes a birth certificate without information that is wrong.  His attitude supports Ms M’s conclusions that he cannot separate his relationship with the mother from his relationship with the child, that he has difficulty reconciling himself to the fact that that is not the child’s father and that he still wants to control the mother and the child.

Best Interests

1. The evidence has to be considered in the context of the best interests considerations in s.60CC.

2. The first of the primary considerations, the benefit to the child of a meaningful relationship with both of the child’s parents applies to the mother only since the respondent is not a parent.  I accept Ms M’s evidence that the mother, as the biological parent and because of her relationship with the child, needs to be the principal carer.  The respondent’s inability to accept that he is not the child’s father, his inability to separate his feelings for the child and the mother and his actions in attempting to control the mother show that if he has a continuing involvement in the child’s life there is a real risk that he will interfere with the child’s relationship with the mother to an extent that would be detrimental to the child.  This is what is at the heart of the submission made on behalf of the Independent Children’s Lawyer that the mother should be free to parent the child without interference from the respondent.  The benefit to the child of a meaningful relationship with the mother would be compromised by continuing to have the respondent in a position where he has influence over the care of the child and so the ability to exert pressure on and attempt to influence the mother.

3. The second of the primary considerations is the need to protect the child from harm.  Findings I have already made are that there is no risk of harm to the child in the care of the mother or in the care of the respondent.

4. The child is too young to express any views so that the next relevant consideration is the additional consideration of the child’s relationship with each parent and other persons.  What is said under the first of the primary considerations applies equally here to the mother’s relationship with the child.  So far as the respondent is concerned he has been a major presence in the child’s life.  The mother treated the respondent as the father and he acted as such.  Both parties and the child lived at the respondent’s parent’s house and that is where the child has lived while with the respondent.  The respondent’s parents believed that they were the child grandparents because that was what both the mother and the respondent had told them.  They only learnt that they were not after the parties separation.  They have had a significant part in the child’s life including a large part of day to day care.

5. Ms M’s initial view was that because of the child’s significant involvement with the respondent the transition to living predominantly with the mother should be gradual leading to the child spending one night a week with the respondent.  Her initial view was that the child should continue to have an involvement with the respondent, but once she was aware of the details of the respondents continuing inability to accept that he was not the child’s father, that his separation from the mother was permanent and his controlling behaviour, she changed her view to one where she agreed with the proposition that it would be not inappropriate for an order that the child spend time with the respondent as agreed.

6. What I have said about the first of the primary considerations is equally relevant under this consideration.

7. The benefit for the child of a relationship with the respondent is outweighed by the detriment that would cause to the child’s relationship with the mother.  The mother’s ability to be the primary carer of the child would be compromised.  The proposal that time with the respondent be as agreed between the mother and the respondent is one which leaves open the possibility of the child having a relationship with the respondent in circumstances where the respondent cannot attempt to exercise control.

8. Most of the other additional considerations are concerned with parents and so not relevant here.  The two which are of relevance are the effect on the child of any separation from somebody other than a parent and the ability of a parent or any other person to provide for the needs of the child.

9. Ms M acknowledges that the child will miss the respondent.  The transition to substantial care by the mother has already happened.  At the conclusion of the hearing I made orders which removed the requirement for the child’s overnight time to be spent at the maternal grandmother’s residence and ordered that the child spend time with the mother from 12.00 noon Sunday until 12.00 noon Tuesday and from 12.00 noon Thursday until 12.00 noon Saturday.  This meant that the child since the conclusion of the hearing on 1 April 2014 has been spending four nights a week with the mother and three nights a week with the respondent.

10. I made these orders because it was clear at that stage that the child should be living a majority of his time with the mother.  The reasons I give here show why I had formed that view.  I reserved the decision because of the need to consider the question of whether there should be any time with the respondent.  While there will be an effect on the child in not seeing the respondent that is outweighed by the relationship considerations.

11. Interim orders in this case were made in circumstances where there was doubt about the mother’s ability to care for the child because of her use of marijuana.  That issue is resolved.  The mother has suitable accommodation and the support of her mother.  She has the ability to provide for all the child’s needs.  In so far as it is relevant the respondent has shown that he can provide day to day care for the child.

12. Parental responsibility is an issue.  The mother needs to be able to provide for the child’s needs without potential interference from the respondent.  The child’s best interests are met by the mother having sole parental responsibility for the child.

Birth Certificate

1. Section 20(2)(b) of the Births, Deaths and Marriages Registration Act (1996) (Vic) provides:

   (2) If a court (including a court of another State or the Commonwealth) finds that—

   (b) the registrable information contained in an entry about a birth in the Register under this Act or a corresponding law is incomplete or incorrect—

   the court may direct registration of the birth or the inclusion or correction of registrable information in the Register under this Act or the corresponding law (as the case may require).

2. The respondent is not the father of the child, should not be registered as the father of the child and so an order must be made under this section.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 30 May 2014