CLIFTON and LLOYD
[2019] FCWA 41
•21 FEBRUARY 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
CITATION: CLIFTON and LLOYD [2019] FCWA 41
CORAM: TYSON J
HEARD: 14 FEBRUARY 2019
DELIVERED : 21 FEBRUARY 2019
FILE NO/S: PTW 1578 of 2010
BETWEEN: MS CLIFTON
Applicant
AND
MR LLOYD
Respondent
Catchwords:
FAMILY LAW - Child-related proceedings – With whom a child spends time and communicates with - Allegations of family violence, drug use and mental health concerns – Best interests - Children aged 10 and 14 years – Where the children live with the mother and have not spent time with the father since March 2015 – Where previous supervised visits between the father and the children were suspended by the supervision agency given the children’s distress - Where the mother seeks the children live with her and have no contact with the father – Where the father seeks to spend unsupervised extended time with the children – Finding that it is not in the children’s best interests to have direct contact with the father – Where it is found the children are to live with the mother and she is to have sole parental responsibility – Where it is found the father is to be able to send cards, gifts and letters on terms and conditions - Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Lawyer A |
| Respondent | : | Self Represented Litigant |
Solicitors:
| Applicant | : | Law Firm A |
| Respondent | : | Self Represented Litigant |
Case(s) referred to in decision(s):
Bondelmonte & Bondelmonte (2016) 259 CLR 662
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Reynolds & Sherman (2015) FLC 93-659
Stott & Holger and Anor [2017] FamCAFC 152
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
JUDGE TYSON:
1These proceedings concern [Child A] and [Child B], who are the children of [Ms Clifton] [“the mother”] and [Mr Lloyd] [“the father”]. The parties commenced living together in 2002, when the father was 25 years of age and the mother was 16 years of age. Child A was born [in] 2004 and shortly thereafter, the parties separated. They reconciled and resumed living together [in] 2007. That same month, the father was involved in a car accident, which led to him suffering significant injuries including a brain injury.
2[In] 2008 Child B was born. In January 2009 the parties separated on a final basis. Since separation, the children have lived with the mother.
3The mother says she was the victim of significant and sustained violence by the father during the relationship, which was often witnessed by the children. She says the father has continued to behave in an aggressive and abusive manner towards her, the children and her current husband since separation, including the father threatening to kill the mother, to burn down her house and to kill her husband.
4The mother considers the father poses an unacceptable risk of harm to the children and it is not in their interests for there to be any contact. The children have not seen or spent time with their father since March 2015, when the supervision agency suspended the contact due to the children’s level of distress. The father denies that he poses an unacceptable risk of harm. He maintains that the mother has alienated the children against him and considers they are at risk of harm in her care.
5The orders I make must be those that are in the best interests of Child A and Child B. Amongst the issues in dispute, which I need to determine as part of considering what arrangements are in the best interests of the children, are the following:
•Are the children at risk of harm in either parents’ care?
•What is the capacity of each parent to provide for the needs of the children?
•What contact, if any, should Child A and Child B have with their father?
•Parental responsibility.
•Should the children’s surname be changed?
WHAT IS AGREED?
6The parties agree that the children should live with the mother and handed up a signed minute of consent orders on the first day of trial. I am satisfied that order is in the best interests of the children and supported by the available evidence.
WHAT ARE THE ORDERS SOUGHT?
7The mother seeks orders in terms of a minute handed up at trial. She seeks sole parental responsibility of Child A and Child B, to obtain passports for the children and to change their surname from [Lloyd-Clifton] to Clifton. She does not propose the children spend any time with the father. However if the Court considers time to be in their best interests she proposes it be supervised, at the father’s cost, in accordance with the wishes of the children and subject to the advice of the children’s counsellor. She seeks an injunction restraining the father from being within 50 metres of the children without her prior written consent and an injunction restraining him from consuming alcohol or illicit substances 12 hours prior to or during any period of contact with the children.
8At the commencement of the trial, the father explained he was seeking an order for equal shared parental responsibility. He seeks for the children to spend time with him on each alternate weekend from Friday afternoon until Sunday evening, in addition to time on special occasions such as each child’s birthday and Christmas. The father indicated the children should attend counselling for maybe two to three months to “learn the truth”, before these arrangements were put in place. The father opposes the children’s surnames being changed.
WHAT IS THE EVIDENCE RELIED UPON?
9The mother relies upon her affidavit filed 27 August 2018 together with the affidavits of [Mr Clifton] filed 27 August 2018 and [Ms H] filed 14 August 2018. The father relies upon his affidavit filed 27 September 2018 and the affidavit of [Mr S] filed 30 November 2018.
10The parties, together with each of their witnesses attended the trial and were cross-examined.
11Both parties also relied upon the Case Assessment Conference memorandum dated 24 April 2015 and the further Conference memorandum dated 27 February 2017.
WHAT IS MY ASSESSMENT OF THE PARTIES AND THEIR WITNESSES?
12The mother was an impressive witness. She was direct and frank in giving her evidence. She impressed the Court as being a deeply devoted mother and committed to the best interests of her children. She presented as frightened and intimidated by the father. She was in tears and visibly upset when recalling previous incidents of family violence. She presented as genuinely distressed at the prospect of the boys spending time with their father, and the impact on them.
13She was a credible witness, who answered questions in an open and straightforward manner. It was apparent the mother holds considerable guilt over her decision to force the children to continue to attend visits with their father, despite their request that she stop them.
14Mr Clifton is the mother’s husband. He is strongly supportive of the mother and her proposals. I found he was a candid witness, whose evidence was not shaken in cross-examination. He was clear and consistent in describing the impact on the mother by the father’s hostility and the impact on their family following the events at the [baseball] presentation. I considered he was an honest witness.
15Ms H is an accredited mental health social worker and systemic family therapist. She is a director of [a counselling service] and has seen the boys on 10 July 2017, 26 February 2018 and in the week prior to trial in February 2019. She was professional, measured and very helpful in giving her evidence, which I accept.
16The father attempted to answer the questions that were posed to him in a direct and honest matter. He made a number of concessions against self-interest for example, accepting he had used illicit substances, he had breached the VRO for the protection of the mother and the police had been called repeatedly by both himself and his current partner, as a result of allegations of family violence. He conceded he had threatened to kill the mother but said he was simply venting and letting out “hot air”.
17The father’s cross-examination was telling. He was unable to accept or even contemplate that his own conduct had in any way impacted upon his relationship with his sons and their long held, consistently expressed desire not to spend time with him. It was not known whether the father’s injuries may have impacted upon his cognitive functioning.
18There were aspects of the father’s evidence which I did not accept. I reject his denials of family violence, both during the parties’ marriage and since separation, which was inconsistent with aspects of his own evidence. For example, the father maintained he had never hit or hurt the mother, yet he accepted he had held her down during the marriage and he had hit her in the presence of the children after separation. The father admitted he had threatened to kill the mother.
19The father sought to minimise, justify and deflect his conduct, which I will refer to in more detail later. The father presented as concrete and rigid in his thinking. He remained fixed in his views and was incapable or unwilling to see any other perspective, contrary to his own, specifically in relation to why the children may not want a relationship with him. His claims that the mother and her husband had embarked upon a campaign to deprive the children of having a relationship with him, was not supported by the evidence.
20The father was dismissive of Ms H’s evidence that both children presented clearly, consistently and repeatedly that they were afraid of him and did not want to spend time with him based on their own experiences. He ignored Ms H’s evidence that Child A said he would run away if the Court ordered for him to spend time with his father. He was dismissive of the impact on either child if the Court made orders as sought by him, which was plainly against their strong views and the adverse impact it would have on their emotional well-being and mental health.
21Mr S is the father’s friend. To his credit, he was strongly supportive of the father. I consider that he gave his evidence honestly, however it was of limited assistance given the issues in the case.
WHAT IS THE RELEVANT FACTUAL BACKGROUND?
22The father was born [in] 1976. The mother was born [in] 1985.
23The father was previously married and had two daughters, both of whom are now adults.
24The parties met and began living together in 2002.
25In 2004 the mother fell pregnant. During her pregnancy, the father was physically abusive towards her including slapping her, strangling her, pulling her hair and kicking her in the back. When the mother was approximately six months pregnant, the father pushed her down steps at the [local hotel] in [Regional Town A].
26[In] 2004 Child A was born.
27In October 2005 the mother found syringes in the father’s wardrobe. The father admitted he had been injecting amphetamines and he had a drug addiction. The father told the mother that he was growing and selling marijuana and also selling ecstasy. When the mother said she would call the police the father threatened to kill her. The mother told the father she did not want Child A to grow up in that environment and she was leaving.
28On a night in either late October or early November 2005, the father returned home after drinking, woke the mother up, dragged her from the bed and locked her out of the house. He later gave Child A to her. Those events led to the parties separating when the mother and A moved to Perth.
29Following separation, when the mother asked the father for financial assistance, he demanded oral sex in exchange.
30In 2006 arrangements were made for the father to spend time with Child A. At the time the father was working on a fly-in fly-out basis and the mother says she observed positive changes, as the father no longer appeared to be using drugs on a regular basis. Often when the father would come to see Child A, they would spend time together as a family. The mother agreed for Child A to spend alternate weekends with his father.
31In April 2007 the parties reconciled and resumed living together in Regional Town A. The father was in a serious car accident in late April 2017, which led to him being placed in an induced coma for 12 days. He was hospitalised at [Hospital A] and later transferred as a patient to [Hospital B]. There was no current medical evidence before the Court about the father’s state of health. The father acknowledged he suffered frontal lobe damage, which he said caused his anger to go “from 0 to 100 with no in betweens”.
32The father provided an extract from what appears to be the decision which awarded him a compensation payout from the accident, which refers to the father:[1]
•having displayed impulsivity and difficulty with reasoning, and suffered residual cognitive deficits.
•being “quite antisocial and found it difficult to interact with other people…His wife described him as moody and short fused”.
•suffering a lack of anger control, poor memory, lack of concentration and poor problem-solving skills.
[1] Refer to affidavit of the father filed 27 September 2018 annexure 1.
33 The father also produced a letter from [Hospital C] dated 15 July 2016 being a clinical neuropsychology assessment summary. The summary referred to the father:[2]
•Having ongoing issues with anger management and him reporting on 15 October 2015 that it was often triggered by difficulty in communication and after arguing with his then partner, which he said occurred about once a week.
•Having low frustration tolerance and poor impulse control, which the father described as his “blood boiling”, with both verbal and physical aggression noted between himself and [Ms F], who accompanied him.
•Complaining of persistent memory impairment.
•Admitting in 2015 to drinking alcohol to excess, smoking marijuana every few days and methamphetamine once a month. He was advised that drug and alcohol use contributed to his behavioural problems. In January 2016 the father reported he had stopped self-medicating with methamphetamines, but was still drinking.
[2] Refer to affidavit of the father filed 27 September 2018 annexure 1.
34[In] 2008 the parties married when the mother was pregnant with Child B.
35In 2008 the father resumed taking illicit substances and drinking alcohol. The father disputed the mother’s claims that he was using methamphetamine and consuming beer on a daily basis, while continuing to grow and sell marijuana. He says he drank mid-strength beer and smoked cannabis. I am unable to make any specific findings on the available evidence. I accept the father continued to use illicit substances and drink alcohol.
36[In] 2008, Child B was born. Shortly after his birth the father held his hands around the mother’s neck and pushed against the washing machine, causing pain in her lower back and her to fall to the floor where he then began kicking her. The mother had difficulty walking and eventually went to the doctor. X-rays revealed a small fracture in one of her vertebrae. The mother told her doctor she had slipped on water in the laundry.
37In August 2008 the mother contacted the police following an argument. The father told the police he was going to counselling to address his anger management issues.
38In January 2009 final separation took place, following an incident in which the father beat the mother’s head into the tiled floor, in the presence of Child A. Child A was 4 years of age and started hitting his father with a broom. The father took the broom and tried to hit Child A, but the mother was able to push Child A away.
39Following separation the mother remained in the family home while the father moved in with his mother. The mother then arranged for the children to spend time with the father for a few hours. On occasions she says the father was drunk when she collected the children. She says on at least two occasions the father was intoxicated and dropped Child B. Child A would often complain that the father had lost his temper.
40During this period, the father would frequently attend the mother’s home drunk and yelling at her. He would at times take Child B and drive off, before returning.
41In 2009 the father rang the mother late at night saying he was going to burn her house down. She arranged for the children to sleep in her bedroom and put a lock on the door.
42The night before Child B’s second birthday [in] 2010, the paternal grandmother rang the mother and told her to leave town, because the father said he was going to kill her. The mother then moved out of the former family home.
43On 20 July 2009 the police issued a violence restraining order for the protection of the mother and the children, following the father attending her home and demanding to see the children.
44On 21 July 2009 the father threatened to smash the mother’s home, resulting in the police being called again.
45The mother was subsequently granted a two year VRO on 10 February 2010 for her protection.
46After the father was served with the VRO on 11 February 2010, it appears he breached the VRO and on other dates in February 2010 by calling the mother. He also approached her in the [local] shopping centre and followed her into the car park. The mother locked herself in her car and the father punched the driver’s side window. The father was later arrested.
47In 2010 the father commenced proceedings. Interim orders were made for the children to live with their mother and spend time with their father supervised by Anglicare. The father was restrained from attending the children’s school or day care centre.
48On 3 July 2012, final orders were made in terms of the interim orders. Notwithstanding the terms of those orders, the parties had agreed to the father spending unsupervised time with the children, which commenced in around 2011 when the father re-partnered with [Ms J].
49From 2011 the father began spending time with the boys on each Wednesday evening and each alternate weekend. In around 2012 the Wednesday visits stopped.
50While the father was spending time with the children, there were ongoing issues including:
•Ms J contacting the mother saying that the father was using drugs and beating her up. Ms J said on occasions the father’s mother stayed at his home when the children were present, as she was concerned about them being exposed to fights between Ms J and the father.
•The children complaining the father was often drinking with friends, being loud which prevented them from sleeping. They were fearful he would be angry if they said anything.
•The children returning with cuts, grazes and telling their mother they had been allowed to ride motorbikes without helmets, shoes and protective gear.
51In 2011 the mother commenced a relationship with Mr Clifton. They married [in] 2015 and have one child [K], born [in] 2014.
52From around 2013 Mr Clifton then attended handovers of the children. It appears the mother and Mr Clifton made that decision following an incident at handover when the mother was pregnant with K and the father slammed the boot of her car on her.
53From 2013 Mr Clifton facilitated telephone calls and text messages with the father about the parenting arrangements, to avoid the mother being subjected to verbal abuse by the father.
54From 2013 Child A repeatedly asked the mother not to spend time with his father. He complained about the father’s temper and drinking. The mother felt Child A had to attend. She was afraid of Child B attending visits on his own. On occasions Child A complained his father had hurt or threatened him. On one occasion, Child A said the father dragged him out of the car and threatened to push him in front of another vehicle.
55In August 2014 Child A returned from spending time with the father with a cut lip. Child B said that the father hit him.
56[In] August 2014 Child A and Child B were attending [a local sporting] trophy presentation. The children were in the father’s care. After the children received their trophies, the father wanted to take the children’s trophies home, while the children asked the mother to take them home. The mother suggested the children have a photograph with their trophies with the father’s mum. While the mother was taking the photograph, a physical altercation occurred between Mr Clifton and the father.
57The father claims Mr Clifton was standing in his personal space, he pushed him which led to Mr Clifton hitting him and he then swung back in self‑defence. Mr Clifton and the mother both say the father first pushed Mr Clifton and hit him in the face, when then led to a scuffle in which both men traded blows. Mr Clifton was clear and consistent that he had not hit the father first and only did so in self-defence, after having been struck by the father. I prefer Mr Clifton and the mother’s evidence on this topic. My finding is also consistent with the father’s own evidence that he was prone to get angry very quickly.
58Child B ran towards his father and step-father, telling them to stop. The mother pulled him away and heard Child A screaming, while he ran away. Child A later told his mother he was worried the father would hurt him.
59Other members of the club ushered the mother and the children, including K, into the club rooms. [The paternal grandmother] entered the club and attempted to remove Child A and Child B, who were screaming and holding onto their mother. The other parents told the paternal grandmother to leave.
60The mother and Mr Clifton went to the police station and filed a report. Mr Clifton attended hospital suffering cuts, bruises and a headache.
61Child A and Child B were distressed and refused to sleep in their own bedrooms and attend school in case the father attended. The mother obtained an interim VRO which included the children [in] September 2014. Child B suffered nightmares and remained fearful the father would hurt Mr Clifton again. The mother then arranged for the children to attend counselling in late 2014 early 2015.
62The father filed an objection to the VRO. [In] October 2014 the Magistrates Court in Regional Town A granted the VRO for the mother’s protection against the father, with the father’s consent on a without admission basis. The VRO extended to cover Child A and Child B for a period of 12 months. Mr Clifton also was granted a VRO against the father.
63The mother says the father breached the VRO by calling her on 10 September 2015.
64In October 2014 the mother contacted Anglicare to arrange supervised visits between the father and the children.
65The mother commenced further proceedings in December 2014. On 11 February 2015 interim orders were made by consent, without admission as to need, restraining each parent from consuming alcohol to excess or any illicit substances 12 hours prior to or at any time with the children were in their care and for both parents to undergo random drug urine analysis testing at the request of the other party on terms and conditions as specified. Orders were made for the father to spend supervised time with the children.
66The mother filed a Notice of Child Abuse on 9 March 2015. The Department responded noting the concerns did not require further action and they had never intervened or opened a file in relation to the family. The Department said given the concerns expressed in the notification, that any contact between the father and the children should occur through an authorised agency.
67On 22 February 2015 Child A and Child B commenced attending supervised visits through Anglicare. Both children saw the mother during the visit, as Anglicare requested she remain on the premises in case they needed support and reassurance. Following the first visit, Child B wet the bed and slept with his brother for the following three nights.
68On 3 March 2015 the mother spoke with [a therapeutic counselling service] who advised Child A had been upset during a counselling session and in their view, Child A was not ready for further contact with his father.
69On 8 March 2015 a second supervised visit took place. While the mother was waiting in the office, she heard the children screaming and they came into the room where she was waiting, with the father chasing them. She locked the door while the father was banging and yelling. The staff arranged for her and the children to leave.
70On 22 March 2015 the third supervised visit took place. Only Child B attended. Anglicare was supportive of Child A’s wish not attend. Anglicare suggested that the mother leave, which she did. She then received a call saying they were terminating the visits, as it was too traumatising for Child B. Anglicare have since suspended the visits.
71On 20 April 2015 the parties attended a Case Assessment Conference. The mother and Mr Clifton provided clean urine analysis test results. The father did not provide any results. The police information confirmed the father had been charged with one count of drug possession with intent to sell or supply and one count of cultivating cannabis. He told the Consultant he would be pleading guilty, but said the drugs were for personal use only.
72At the time of the Conference, Anglicare had suspended the children’s visits, following three visits and recommended the children reengage with therapeutic counselling.
73The mother told the Consultant the father blamed his accident for everything that was wrong in his life, but claimed that many of his violent, aggressive behaviours were similar prior to the accident. The father denied his head injury impacted upon his parenting and claimed the mother was a psychopath who brainwashed the children. He suggested she should be assessed for bipolar disorder because “she is beautiful then evil [sic]”.
74Each parent detailed the allegations against the other in terms of alcohol use and illicit substances. The father said he continued to drink as he did during the relationship. He admitted that he used ecstasy, methamphetamines and speed about once a week during the relationship.
75The mother alleged the father perpetrated emotional, physical and verbal abuse towards her. She described a pattern of behaviour where his behaviour would escalate after he had been drinking. She described walking on eggshells prior to and after their final separation and her attempts to keep the father in a good mood to avoid an escalation in his behaviour. She said the father would shake the children when they were babies, threaten them and scream in their faces. She said Child A had experienced more abuse than Child B, given his age. She reported in 2014 Child B disclosed that the father split Child A’s lip after hitting him. She described both children as fearful of their father.
76The father told the Consultant that the mother was “an angry girl” who had attacked him and he was fearful of her. He said during the relationship he was afraid she would harm the children, but acknowledged he had never witnessed her hurting the children. The father told the Consultant:
•He yelled and screamed at the children, saying his frontal lobe damage caused him to do so.
•“My bark is bigger than my bite”.
•The children witnessed domestic violence during the relationship, but the mother did not care.
77Despite Anglicare then suspending the father’s time with the children, the mother maintained the children should spend supervised time with him. She told the Consultant the children were traumatised from witnessing the father hit her husband, they were both too scared to sleep in their bedrooms and they were experiencing nightmares.
78The Consultant considered Anglicare had acted protectively in suspending the children’s time and the mother was also parenting protectively.
79The Consultant concluded the parents’ relationship was acrimonious, dysfunctional and they were unable to communicate. The Consultant recommended the father engage in a parenting program and said he appeared to:
..lack insight into parenting and the impact his behaviours have had upon the children. He did not appear to take responsibility for is behaviours. The father may wish to consider engaging in psychological counselling to facilitate his awareness to empathetic responses and behaviours and to gather a greater understanding of the impact of his alleged behaviours upon the children.
It is also recommended the father engages in a behaviour change program, such as changing tracks… and complete… The program prior to spending further time with the children.
80On 22 May 2015 Anglicare wrote that there had been insufficient time to discuss the children’s progress in counselling and the visits remained suspended
81On 2 September 2015 interim orders were made for the mother to have sole parental responsibility and for the children to live with her. Further orders were made for the children to spend supervised time with the father at the direction of their counsellor. The father was restrained from attending the children’s school without the mother’s prior written consent. Those interim orders became final on 30 October 2015.
82The mother then commenced further proceedings, which came before the Court on 31 October 2016. The parties were required to attend a further Conference, which took place on 23 February 2017, with the same Consultant.
83At that time, the main issues in dispute between the parties were the children’s surname and time with the father. The father was seeking to resume spending time with the children, while the mother was not agreeable until the father demonstrated he was no longer using illicit substances or alcohol to excess and he could demonstrate a capacity to protectively parent the children. The father agreed to undergo further testing and to engage in an anger management program. The mother said she would reconsider the children spending time with the father after he had done so, but voiced ongoing concerns that both children were terrified of him.
84The Consultant recommended the father provide a report confirming he had attended and satisfactorily completed therapeutic intervention with the [regional] Alcohol and Drug Services, and that he complete the FAIR program through Relationships Australia. The Consultant recommended after the father had completed these programs, the mother arrange for the children to reengage with their counsellor and obtain a report with recommendations about the children reconnecting with their father.
85In 2016 the father attended some of the boys’ baseball games in Regional Town A. On 21 May 2016 he called out to Child A who ignored him and came off the field, saying he did not want to play with his father shouting at him. Child A was anxious the following week, leading up to the next game. On 28 May 2016 the father again attended the boys’ games and yelled at Child A words to the effect of “come here right now and talk to me or I’m coming on the field…. Get here and talk to me before I drag you off the field”. Child A left the game in tears saying he was afraid, embarrassed and he no longer wanted to play baseball.
86On 11 June 2016 the father approached the mother at a baseball game saying he wanted to see Child B on his birthday. The mother said he needed to contact Anglicare and asked him to leave. The father raised his voice and said he would be going back to Court. Child A ran up, yelling at the father to leave and was upset.
87On Thursday, 9 June 2016 the mother was called to a meeting with the deputy principal of [Primary School A], [Mr L]. The school expressed concerns about Child A. Child A had told Mr L he did not want his father attending baseball games and he was upset and distressed at having the surname Lloyd. Mr L wrote to the mother suggesting the school would support Child A’s name being changed to Clifton, as Child A did not want to be known as Lloyd. The letter went on to state both boys were complaining of being sick, feeling anxious, upset and angry having the surname Lloyd. The school concluded they would support any changes that would provide a less stressful life for the boys which would benefit them by increasing their capacity to focus on their learning and social skills.
88On 13 March 2017 the matter returned to Court and was programmed through to a Readiness Hearing.
89On 13 September 2017 interim orders were made by consent for the mother to have sole parental responsibility for the children including the ability to change the children’s names from Lloyd to Lloyd-Clifton and the father was restrained by injunction from attending upon the children’s school and from being within 50 metres of the children without the mother’s prior written consent. The father agreed to undergo random drug urine analysis testing at the mother’s request.
90In 2017 the father attended the regional Alcohol and Drug Services on four occasions. It was reported that he engaged well and displayed an understanding of his previous use of alcohol and drugs and the impact that had on his life and his family. The father self-reported significant reduction in use of both.
91On two separate occasions in June 2017, the father attended the mother’s work and abused her, calling her a “child thief”.
92On 28 June 2017 the father approached Mr Clifton at the baseball. Mr Clifton considered the father was under the influence of drugs, slurring his words and unfocussed eyes. In June 2017 a further VRO was granted against the father.
93The father attended Relationships Australia’s domestic violence men’s group and completed a 24 week course [in] March 2018. The group was described as a voluntary program for men who acknowledge unacceptable, hurtful, intimidating and controlling behaviours towards their partner and/or children.
94On 14 June 2018 the father again attended the mother’s work place and called her a “bitch” who had “stolen his children”.
95On 6 August 2018 the father underwent a drug urine analysis test which was positive for THC.
WHAT IS THE LAW?
96These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) which contains the framework within which parenting orders must be decided. In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
97Section 60B of the Act sets out the objects and the principles underlying them. The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
98The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
99In deciding whether to make a particular parenting order, s 60CA of the Act directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child’s best interests. I must consider the matters set out in sub‑sections (2) and (3) being the primary considerations and the additional considerations respectively.
100The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to, or exposed, to abuse, neglect or family violence.
101Section 60CC(2A) provides that in applying the 2 primary considerations, the Court is to 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.
Parental Responsibility
102Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for him.
103Equal shared parental responsibility imposes an obligation upon parents to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
104Pursuant to s 65DAA of the Act, a consequence of making an order for equal shared parental responsibility is that the Court is required to consider whether or not the child spending equal time with each parent would be in the child’s best interests and reasonably practicable. If so, the Court must consider making such an order.
105If the Court decides that an order for equal time would not be in the child’s best interests or would not be reasonably practicable the Court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child’s interests and reasonably practicable. If so, the Court must consider making such an order.
106The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility.
107As the High Court observed in Bondelmonte & Bondelmonte,[3] the making of a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in the legislation by reference to the circumstances of the case involves value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the children.
[3] (2016) 259 CLR 662; (2017) FLC 93-763 at [32].
108In determining what parenting orders will be in the best interests of the children, the Court is required to consider the matters set out in the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.
109I am not, in any sense, bound by the proposals of the parties, subject to the requirements of procedural fairness and the parties being given notice of the possibility of an order being made, unless the making of such an order is obviously open on the known material.[4] Nevertheless, the proposals of the parties must be clearly identified, and submissions made by them as to the orders which should be made if orders are not made in terms of their proposals must be considered.
What are the Legal Principles in relation to Change of Name?
[4] Stott & Holgar and Anor [2017] FamCAFC 152 at [26].
110The legal principles in relation to change of name were considered by the Full Court in Reynolds & Sherman (2015) FLC 93-659. The Full Court referred to earlier cases and discussed the principles therein.
111The Full Court said an order in relation to a child's name is a parenting order and the court must regard the best interests of the child as the paramount consideration. Matters therefore to be taken into account are the relevant factors in s 60CC of the Act and also the following:
•Short and long term effects of change in the child's name;
•Any embarrassment likely to be experienced by the child if name is different to that of parent with whom the child lives;
•Any confusion of identity which might arise for the child if the name is changed;
•The effect any change in surname may have on the relationship between child and other parent;
•The effect of frequent or random changes of name;
•The time the child is spending with the other parent;
•The degree of identification the child has with each of the child's parents.
Presumption of equal shared parental responsibility
112The father seeks an order for equal shared parental responsibility. The mother seek that she have sole parental responsibility.
113The statutory presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. For the reasons that follow, I conclude there are reasonable grounds to believe there has been family violence and abuse and accordingly, the statutory presumption does not apply.
114In any event, it is clear from the evidence it is not in Child A and Child B’s best interests for an order for equal shared parental responsibility to be made. I would reach that conclusion regardless of the application or otherwise of the statutory presumption.
THE CONDUCT OF THE TRIAL
115The father represented himself throughout the proceedings. I spent some time at the commencement of the hearing explaining the trial procedure to him. I explained the principles which I was required to give effect in conducting child-related proceedings. I explained the importance of cross-examination if the father sought to challenge factual statements which could properly be regarded as relevant to the matters in dispute. The father initially indicated he did not require Mr Clifton for cross-examination. After my explanation, he confirmed he did require Mr Clifton for cross-examination, which occurred.
116The father was well prepared and he asked a number of relevant questions. The father largely conducted himself appropriately throughout the trial. At times he was visibly frustrated and angry. As a result, I directed that the father pose his questions to the mother and Mr Clifton through me, which I then relayed to each witness.
117I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants.[5] I applied those guidelines during the course of the proceedings and am comfortable that the trial was fair. The father acknowledged in his closing address that I had been lenient and explained the process to him. I am satisfied that the father was able to fully participate.
THE PRIMARY CONSIDERATIONS
The benefit to the children of having a meaningful relationship with both of the children’s parents
[5] Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253].
118Child A and Child B have a close and loving relationship with the mother. She has been their primary caregiver since birth. I accept the children are primarily attached to her and they have a meaningful relationship, which is in their interests to maintain.
119Neither child have spent time with their father since March 2015, when Child A was then aged 10 and Child B was then aged 6. The boys have not spent time with their father for nearly four years, which given their current ages, represents a significant portion of their lives.
120In light of the boys’ statements to their counsellor Ms H and the time since they last saw their father, I am not satisfied either child has a meaningful relationship with the father. Neither child wishes to see or spend time with the father. Each child has clearly articulated consistently over a three year period, they are fearful of their father and feel unsafe in his care. Ms H’s assessment of the boys’ views being genuinely held and not the subject of influence, was not seriously challenged.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Are the children at risk in the father’s care?
121The evidence supports a finding that the children are at risk in the father’s care. I am readily satisfied based upon the available evidence that the mother has been the victim of extensive family violence at the father’s hands, both during the relationship and since separation because:
Firstly, I accept the mother’s evidence in terms of the family violence and my observations of her as presenting as genuine and upset when recalling those events. The father has been physically violent towards her. He has threatened to burn down her house and to kill her. She presented as deeply fearful and frightened of the father. She was clear, consistent and detailed in her allegations of family violence.
Secondly, the mother has been protected by two VRO’s against the father. The father has been convicted of breaching the VRO on multiple occasions. She has also been protected by police orders requiring the father to stay away from her. The mother’s husband and the children have been protected by a VRO against the father.
Thirdly, I accept the mother’s evidence that she has continued to be the victim of family violence in the period since separation, including on occasions when the children were present. For example, after separation when she was driving the father and the children, he hit her which the father admitted to doing but suggested he was provoked. I also accept the children witnessed their father hit their step-father in 2014, which was distressing and frightening for both children.
Fourthly, the father’s admissions to the Consultant that he had yelled and screamed at the children.
Fifthly, since separation, the father has continued to behave in a verbally abusive manner towards the mother, including attending her workplace on three separate occasions, calling her names and swearing.
122Further, there is evidence to support a finding that the father struggles to manage his emotions and he has acted out in a physically violent manner towards other people. For example:
•In 2010 the father ‘king hit’ a victim in a pub which lead to the victim suffering a broken leg, bruising to his face, blood nose, chipped tooth, and a split lip and requiring surgery to repair multiple fractures to his ankle. The father made admissions to the police and explained he had been provoked by the victim who refused to accept his challenge to fight outside. The father was convicted of assault occasioning bodily harm.
•The evidence from the West Australian police indicates similar incidents of family violence between the father and his current partner, Ms F, to the allegations raised by the mother. They include complaints of the father hitting, punching, pushing to the floor and threatening to kill Ms F.
•The father hit the mother’s husband, in the presence of the children in 2014. He attempted to justify his conduct and did not present with any insight into his own actions. [In] 2017 Mr Clifton obtained a VRO against the father, following him threatening Mr Clifton at the baseball.
123I am also satisfied that there is a risk to the children posed by the father’s use of alcohol and illicit substances. While the father has provided some clean drug urine analysis results, on his own case, he has had difficulties with illicit drug use for an extended period of time. The father has admitted to self-medicating with methamphetamines and cannabis. He has been convicted of various drug related offences including possession of a prohibited drug with intent to sell in 2003, 2004, 2015 and possession of smoking implements. It is unclear how frequently the father is currently using illicit substances, given his failure to undergo the drug tests as requested by the mother’s solicitors on 19 November 2018, 20 November 2018, 21 January 2019 and 5 February 2019. When the father was asked to undergo a test on 6 August 2018 he replied “Yeah right”. On 13 August 2018 the father’s test results were positive.
124The father last underwent a drug test at the request of the mother’s solicitors in September 2018. The father admitted he had last used illicit substances in around December 2018.
125There are concerns as to the impact the father’s drug use has on his state of health. The father says he continues to take medication, which has recently been changed, the details of which are not known. It is unclear whether the father’s medical practitioners are aware of his current use of illicit substances and alcohol, and what impact, if any, that has upon his health.
126I am also satisfied and the evidence suggests the children are at risk of emotional and psychological harm in spending time with the father. I have reached that conclusion for the following reasons:
Firstly, Anglicare suspended the children spending supervised time with the father due to the distress that the visits were causing.
Secondly, the children’s counsellor has provided two reports, which confirm neither child wishes to have any contact with their father and the issue of ongoing contact is causing both children anxiety and distress. I refer to the counsellor’s evidence in more detail below.
Thirdly, I consider the boys remain at risk as the father continues to deny acting in a manner that could have caused the children to be fearful of him and to feel unsafe in his presence. He has not demonstrated insight into his behaviour nor expressed any empathy for the boys. While he has, to his credit, engaged in some counselling, having heard his evidence, I am not satisfied that the father accepts any responsibility for his conduct. He has continued to blame the mother, her husband and his brain injury for the current situation. Even the letter he wrote to the mother on 4 September 2017, which he explained was part of the Relationships Australia course, did not demonstrate any ownership for his actions, but instead, maintained that it was not his fault he was unable to control his anger.
Fourthly, the father repeatedly maintained the mother had alienated and brainwashed the children against him, despite the lack of any evidence to support that claim.
Finally, the father on his own case is continuing to use illicit substances and is involved in a relationship that is characterised by family violence. Further, of concern, is the fact the father has allegedly been seriously assaulted by his partner’s former partner and members of her family, including her father and son. The attack occurred at the father’s home and resulted in him being hospitalised, having been struck with a metal pole. When he was admitted, the father was described as having been drinking, suspected to have been under the influence of drugs and was said to suffer from anger issues.
127For these reasons, I am satisfied the totality of the evidence supports a finding that the father poses an unacceptable risk of harm to the children.
Are the children at risk of harm in the mother’s care?
128The father agreed to an order that the children should live with their mother. I was satisfied that order was in the children’s best interest and supported by the available evidence. There was nothing in the evidence, apart from the father’s claims, to suggest the children were at risk in her care or that they had been harmed. It appeared much of the father’s complaint centred on the fact the mother was no longer supportive of the children spending time with him, which he said amounted to child abuse.
129While the father said he was fearful of the mother, nothing in his presentation at trial supported that claim. I accept the mother has physically fought back at times to protect herself, as admitted by her. I do not accept his claims that she was the aggressor and initiated acts of family violence during the relationship.
130I am not satisfied the children are at risk of harm in the mother’s care for the following reasons:
(a)There is no evidence, apart from the father’s claims, to suggest the children have been harmed in her care.
(b)The father did not file a Notice of Abuse. There was no evidence of the Department being involved all any other third party raising concerns about the children’s well-being in their mother’s care.
(c)The children are highly visible. They attend school and participate in various activities including a number of sports. No third parties have raised any concerns about the children being harmed.
(d)The mother denies ever harming the children, which I accept.
131In relation to the allegation by the father that the children are at risk of emotional and psychological harm in the mother’s care, I am not satisfied the evidence supports such a finding. I am not convinced the children have been coached to make false allegations against the father, or brainwashed.
132The mother attended the children’s first two appointments with Ms H and her presence may have influenced the children. The mother did not attend or take the children to their appointment with Ms H this year. I accept that by the children living with their mother, there may be some influence, however there was nothing to suggest that the children’s views and reasons were other than based on their own experiences of their father, as expressed to their counsellor, their school and to the mother. The mother indicated in her opinion, the boys’ views were genuinely held and were not the subject of any coaching, which I accept.
133I will now consider the additional considerations insofar as they are relevant.
ADDITIONAL CONSIDERATIONS
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to children’s views
134In Ms H’s first report Child A was 12 and Child B was 9 years of age. Child B said he did not want to spend time with his father because he threatened to hurt them, he had parties and got drunk and he was often in the newspapers because he was selling drugs. Child B reported that his father had punched his step-father. Child A said he felt unsafe in his father’s care because he had friends over, drinking at night, using drugs and he was worried about them making fun of him. Child A said his father often threatened to hurt him and he had put his hands around his neck. Child A said his father used “violent voices” which he described as raised voices yelling and threats to hit him if he did not do what he was told. Child A said his father had punched him in the arm and pushed him. Child B said his father grabbed and pulled him.
135In the second report Child A was 13 and Child B was 9 years of age. She provided a transcript of her interviews with both boys, which form part of her report. Both boys maintained their desire not spend time with their father.
136Child A reported he had repeatedly asked his mother not to attend visits with his father and he did not enjoy going. Child A was unable to recall any positive memories of spending time with his father and he recounted the incident at the baseball presentation, when he described the father pushing Mr Clifton, which made him feel afraid and upset. When Child A was asked if there was anything in his life that he was missing because his father was not in his life he said “no. My life’s better without him in it. I have a dad” (noting he calls Mr Clifton dad).
137Child B said he did not want to see his father and was fearful of him. He also recounted the incident at baseball which he described as scary. He was worried his father would come again and have a fight with his stepdad and he might kidnap him, because he was crazy. He described his life as better without his father in it and that his step‑father was like a real dad to him. He said even talking about the father made him feel sad and scared.
138Ms H described both boys as confident and well developed, who expressed consistent views with those articulated previously, with more detail in the recent interview. She reported both children maintained that any time with their father was unsafe and they both displayed emotional responses when recalling events with their father which are indicative of a post-traumatic response linked to future fear.
139She expressed an increasing concern about the effect of the father’s past conduct and the ongoing dispute regarding contact on the boys. She wrote:
The notations of fear and associated anger, anxiety and depressed mood indicates a strong need to support the emotional and mental health needs of both [Child A] and [Child B] above all else I do not recommend therapeutic services at this stage, noting that, for [Child A] specially, the continued communication about these issues is causing him further harm. Into the future this may be required, however for now reducing their fear and stabilising their lives is far more important.
140In her oral evidence, Ms H confirmed she had met with both boys prior to trial and their views were unchanged. When she asked Child A about the possibility of the Court ordering him to spend time with his father, Child A said he would run away. She said there would be a risk to the boys’ emotional and psychological well-being if they were required to spend time with their father, even in a supervised setting and she would not be supportive of such arrangements.
141Given the ages of the children and their maturity, I am satisfied that weight needs to be attributed towards their views. I also take their views into account in considering the potential impact on the children of the orders the father asks me to make.
The nature of the relationship of the children with each of the children’s parents and other persons (including grandparent or other relative of the children)
142I have already dealt with the children’s relationship with each of their parents. I am satisfied that the children have a loving and close relationship with their mother. Their relationship with their father is not close or meaningful.
143I am satisfied Child A and Child B have a warm, close and loving relationships with their step-father Mr Clifton, whom they call Dad. He has been part of their lives now for a number of years. Based upon Mr Clifton’s evidence and the children’s statements to Ms H, I accept they share a positive relationship.
144It would appear the boys also share a close relationship with their brother K, who is part of their household. The mother has maintained a relationship with the father’s adult daughters from his first marriage, who also spend time with the boys.
The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children
145I am satisfied that the mother has taken every opportunity to participate in making decisions about the children, to spend time and communicate with them. The mother has been their primary and predominant carer throughout their lives. Given the history of the parties’ relationship, she has also been responsible for making decisions in relation to their long-term and day-to-day welfare. She has had orders for sole parental responsibility.
146The father has consistently sought to spend time and communicate with the children. He wants to play an active and meaningful role in their lives.
The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children
147The mother meets the costs associated with care of the children. The father is currently assessed to pay child support at the rate of around $30 each month. The mother says the payments of child support have been sporadic and unreliable, ranging from $8 to $30. The father is currently in credit with the Agency.
148The father met the costs of supervised visits in 2015. He has not otherwise had the opportunity to directly maintain the children in the sense of meeting expenses when in his care.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents, or any other children or other person (including any grandparent or other relative of the children) with whom he or she has been living
149I am satisfied the orders proposed by the mother will have little effect on the children’s current circumstances, as they have not spent time with or communicated with the father since March 2015. If I make orders sought by the mother, the children will continue to live with her and have no contact with the father.
150The orders sought by the father for the children to spend unsupervised time with him, in my view, are likely to be psychologically and emotionally damaging for them, given the unchallenged evidence of the children’s counsellor.
151The father was completely dismissive of the fact both children have expressed fears and worries about him. His proposals demonstrated a lack of insight into the children’s needs.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
152If orders are made for the father to spend time with the children on a supervised basis, there will be a cost and expense associated with such supervision. I had no evidence as to the costs, availability or willingness of any proposed supervision service to facilitate the father’s time with the children. Anglicare suspended the supervised visits due to the children’s distress. In any event, given my findings as to the risk of harm, this consideration does not feature in my decision.
The capacity of each of the parents and any other person to provide for the needs of the children, including emotional and intellectual needs
153I accept the mother has met the children’s needs to the best of her ability. I am satisfied that she has the capacity to provide for the physical, emotional and intellectual needs of the children, given the available evidence.
154I am not satisfied the father has demonstrated a capacity to provide for the children’s needs for a number of reasons:
•The father’s application demonstrated a lack of insight into the children’s needs. His proposals ignored the evidence of the children’s counsellor, which I accept, that both boys were experiencing fear, anxiety and depressed mood at the thought of time with their father.
•The father’s denial of acting in a manner to cause the children to be fearful and his ongoing persistence that the mother was responsible for alienating the children against him, did not suggest an appropriate attitude or capacity to provide for the children’s needs.
•The father continued to deny any responsibility and lack remorse, with repeated attempts to blame others for the children’s fears of him.
155I also accept that if the Court were to order the children spend time with the father, that would adversely impact upon the mother. She does not want the father to know where she lives or works, as she remains concerned about her safety. I am satisfied those fears are genuinely held and reasonable in circumstances. She has not disclosed what school the children currently attend due to her fears the father may attend.
156Nothing that emerged during the trial is likely to have reassured the mother about the risk the father poses. The matters to which I have referred above are likely to have reinforced, or even increased, her pre‑existing and legitimate concerns and anxieties. Given the totality of the evidence, the mother’s concerns are understandable.
157The need for the children to have the ongoing care and stability, living with their mother, is an important consideration.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant
158Child A is 14 years of age and Child B is 10 years of age. The counsellor describes the boys as confident well developed young boys who have every capacity to understand and articulate their own choices.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents
159I am satisfied both parents love the children. It is clear from Ms H’s reports that the boys are acutely aware of the proceedings and their father’s desire to spend time with them.
160The boys have clearly been exposed to incidents of family violence, including as recently as August 2014, when they witnessed the physical fight between the father and Mr Clifton.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
161The orders proposed by the father would inevitably lead to further institution of proceedings. I am satisfied any order for the children to spend time with the father on a supervised basis, assuming that a professional agency is prepared to provide such a service, would inevitably lead to the institution of further proceedings.
162It is in the boys’ best interests for final orders to be made. In my view, ongoing litigation is likely to cause unnecessary stress to the mother who is the children’s primary caregiver. That cannot be in the children’s best interests.
CONCLUSIONS
Parental responsibility
163I am not satisfied it is in the children’s best interest nor reasonably practicable for the father and the mother to have equal shared parental responsibility. I do not consider that the presumption applies as there are reasonable grounds to conclude that the children have been harmed.
164Orders have previously been made on an undefended basis in 2015 for the mother to have sole parental responsibility. On 13 September 2017 interim orders in those terms were made by consent.
165The parties have a poor relationship and no ability to communicate. I have no confidence they can communicate and cooperate to the extent required by an order for equal shared parental responsibility. The mother has taken primary responsibility for making arrangements and decisions for the children on her own, since separation. She can be trusted to make good long-term decisions for the children.
166In my view the parent with whom the children live should have sole parental responsibility for them. Accordingly I will make orders for the mother to have sole parental responsibility, which I am satisfied is in the children’s best interests.
Where should the children live?
167I am satisfied it is in the best interests of Child A and Child B to live with the mother, as agreed.
Should the children spend time with or communicate with the father?
168After careful consideration of the primary and additional considerations and upon reflection of the evidence, I am not satisfied it is in the children’s best interests to spend time with the father. While it is a serious matter to make an order for a parent to not spend any time, I have reached that decision for the following reasons:
(a)I consider the children are at risk of harm from the father for the reasons detailed above.
(b)Neither child has a meaningful relationship with their father. Neither child has spent time with the father for an extended period of nearly four years.
(c)If Child A and Child B were to resume any contact, I consider they are at an ongoing risk of harm. The father has not demonstrated any insight into his own shortcomings and the risks he poses. He continues to present as fixed and rigid in his views, denying and minimising his past behaviour.
(d)The father has not demonstrated a genuine capacity to meet the children’s needs. Nothing that emerged during the trial gave me the impression that the father was capable of addressing the concerns in terms of his family violence and drug use, in any meaningful manner.
(e)Each child has consistently, clearly and repeatedly expressed strong views not to spend time with their father. Given their ages and maturity, weight must be attached to those views. To force the children to spend time with their father in the face of such strongly held views, would put them at risk of psychological harm. I am required to prioritise the need to protect the children from harm.
(f)I consider if the children were to have any contact with the father, the mother’s capacity to care for the children would be compromised. That cannot be in their best interests.
Gifts, cards and photographs from the father
169I asked Ms H whether in her view the father should be able to send cards and gifts at Christmas and on each child’s birthday to the children. She considered such arrangements would be appropriate, and safe, provided that the mother was able to vet them first.
170The mother should be able to view the items and if they are appropriate, to provide them to Child A and Child B. I am confident that she will do so. The mother will need to provide a postal address to facilitate the items being sent to her. That does not need to be her actual address and I accept she has concerns if the father knows where she lives and works.
171I am satisfied that is in the best interests of the children and propose to make those orders subject to hearing from the parties. Cards and gifts also enable any future counsellor that the children attend upon, with a means of working with the children about their father in the future.
172Such material may assist the children in terms of any interest in their father. In the future, the children may want to know more about him. Either child may choose to seek out the father in circumstances where they are old enough to make that decision and feel safe in doing so.
173I am not satisfied the father should have any direct contact with the children until such time as he is able to acknowledge and demonstrate some insight into his own behaviours, acknowledge his deficits and take sustained positive steps to address them.
Travel and passports
174The mother seeks orders to enable her to travel with the children overseas and for her to be able to obtain the children’s passports, without the need for the father’s consent.
175I have already determined that the mother should have sole parental responsibility. It is appropriate she is able to travel overseas with the children for holidays. There was no suggestion she was a flight risk. I accept her and the children’s lives are based in Perth. She has been respectful and compliant with the Court orders. I will make orders accordingly in the standard terms.
Injunctions
176I consider it appropriate and in the children’s best interests to grant the injunctions sought, to prevent the father from attending at the children’s school or approaching the boys without her prior written consent.
177I further propose, subject to hearing from the parties, to grant an injunction restraining the father from attempting to communicate with the boys, other than through the provision of cards and gifts in terms I will set out.
Change of name
178The mother seeks that the children’s surname be changed from Lloyd-Clifton, to Clifton which the father opposes.
179When the children were born, their surname was Lloyd. In November 2017 the mother changed the children’s surnames to Lloyd-Clifton, pursuant to the consent orders made on 4 September 2017.
180There was no independent evidence from the children’s counsellor about the boys’ views as to their surname. According to Mr L, Child A told his sports teacher in 2016 that he wanted to be called Clifton and not Lloyd. It was observed that afterwards Child A’s attitude changed and he returned to his “old happy self”. When Mr L spoke with Child A on 9 June 2016 Child A was upset and complaining of a sick stomach, saying his mother may not go through with the full name change and he really did not want to be Lloyd. Child A was in tears and sobbing. When Mr L relayed these events to the mother, she explained that the night before she had spoken with the boys about changing their names to be hyphenated Lloyd-Clifton.
181The mother says both boys want to be known as Clifton and to share the same surname as her, her husband and K. She says both boys are distressed at having the surname Lloyd, given the lack of any relationship with their father and the anxiety they currently experience in relation to any contact with him.
182The father wants the children to maintain his surname. He is very proud of his name and his [Country A] heritage. He has bought plots of land for the children in Country A and he says they will not inherit those assets, and others, if their name is changed. He considers the change of name is part of the mother’s attempt to “eradicate” him from the boys’ lives.
183Many children in modern Australian society have a surname different to that of one of their parents. I do not accept that of itself, is an issue that may cause either child difficulties or embarrassment.
184Both boys clearly have an awareness of their surname and it is a feature of their lives.
185I am mindful that the boys’ names have already been changed, however that was by consent. Their names are currently hyphenated to reflect both parents’ surnames. That includes Clifton, being the same name as their sibling and step-father.
186I am satisfied that it is in the boys’ best interests to change their surname to Clifton. Both children have expressed to their mother and Child A has expressed to his school, a desire to change their name to Clifton. Child A and Child B do not have a meaningful relationship with their father. They do not want to have any relationship with him. Child A has been distressed by being unable to change his name to Clifton.
187Child A and Child B are acutely aware that Mr Lloyd is their father. There is no evidence to suggest that either boy having a different surname to their father will impact their relationship with him or their sense of identity. Neither child will be spending time with their father pursuant to the orders I propose to make.
ORDERS
188Subject to hearing from the parties as to the form of the orders only, I propose to make orders as follows:
IT IS DECLARED THAT the Court having found that it is in the best interests of the children, [CHILD A] born [in] 2004 and [CHILD B] born [in] 2008 (the children) for their name to be changed and that the said children henceforth be known as [CLIFTON].
IT IS ORDERED THAT:-
1.The Registrar of Births, Deaths and Marriages, Western Australia do effect the required change to the birth registration of the child, born [CHILD A] born [in] 2004 and [CHILD B] born [in] 2008 to be changed from [LLOYD-CLIFTON] to [CLIFTON] pursuant to this order.
2.All previous parenting orders including injunctions be and are hereby discharged.
3.The Applicant have sole parental responsibility for the children.
4.By consent, the children live with the Applicant.
5.The Respondent be restrained and an injunction is hereby granted restraining the Respondent from:
a.Attending upon the children’s school; and
b.Being within 50 metres of the children;
without the Applicant’s prior written consent.
6.The Respondent be restrained by an injunction, and an injunction is hereby granted restraining him from approaching, contacting or attempting to communicate with the children other than by sending to the Applicant, by post, cards, small gifts and photographs at Christmas and on each of the children's birthdays each year, should he wish to do so.
7.The Applicant will read the Respondent’s cards and open the presents and, subject to her considering the appropriateness of such cards and gifts, if provided in compliance with the preceding order, she will provide the cards and gifts to the children.
8.The Applicant will provide a postal address to enable the Respondent to send cards and gifts, pursuant to the preceding order.
9.The Applicant have liberty to remove the children from the Commonwealth of Australia for the purpose of holidays to overseas, provided there is not a current “DO NOT TRAVEL” warning issued by the Department of Foreign Affairs and Trade at the time of departure, in relation to the proposed holiday destination.
10.To facilitate the orders made herein, the necessity for the consent of the Respondent to the issue of a passport to the said children be dispensed with.
11.Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the said children to enable them to leave the Commonwealth of Australia for the purpose of holidays.
12.The costs associated with the issue of a passport for the children referred to in the preceding orders herein be met by the Applicant.
13.All documents produced by named persons pursuant to subpoena or Section 69ZW be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
14.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.
15.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 13-14 inclusive above do not apply.
16.All outstanding applications and responses otherwise be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate21 FEBRUARY 2019
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