Corbett and Booth

[2018] FCCA 1715

FEDERAL CIRCUIT COURT OF AUSTRALIA

CORBETT & BOOTH [2018] FCCA 1715

Catchwords:
FAMILY LAW – Final parenting orders made following undefended final hearing – father has engaged in serious family violence towards Mother and has subjected child of relationship to emotional abuse – intervention Order made on 21 September 2016 protecting Mother, child and child’s half siblings from Father – Intervention Order expires 21 September 2023 – father has only seen child once since 2009 – child fears contact and communication with Father – presumption of equal shared parental responsibility does not apply in these circumstances – order made changing child’s surname – order for Mother to have sole parental responsibility – order that child live with Mother – order that Father be restrained by injunction from spending time or communicating with the child – order made for Mother to obtain a passport for the child without the consent of the Father.

Legislation:

Australian Passports Act 2005 (Cth), ss.7, 11

Family Law Act 1975, ss.60CC, 62B, 65DA(2)

Federal Circuit Court Rules 2001 (Cth), r.16.05

Applicant: MR CORBETT

Respondent: MS BOOTH

File Number: MLC 616 of 2017

Judgment of: Judge Jones

Hearing date: 21 June 2018

Date of Last Submission: 21 June 2018

Delivered at: Melbourne

Delivered on: 21 June 2018

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the Respondent: Ms Said of Trapski Family Law

Solicitors for the Respondent: Trapski Family Law

IT IS DECLARED THAT:

1. It is in the best interests of the child [X] born 2005 to be known as child [X] born 2005.

IT IS ORDERED THAT:

1. Each of the parties henceforth exclusively use the name BOOTH as the surname of the said child until now known as [X] born 2005, and not cause or permit any other person to use any names other than child [X] as his name/s.

2. The mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as [X] born 2005 to child [X], and the said Registrar do register the said child’s name as child [X] born 2005.

3. The mother do all such acts and things and sign all such documents as may be required to give effect to these orders.

IT IS DIRECTED THAT:

1. A sealed copy of these orders be served by the mother upon the Registrar of Births, Deaths and Marriages who IS REQUESTED to give effect to them, and to any application made to the Registrar pursuant to them.

THE COURT FURTHER DECLARES THAT:

1. Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the respondent father to enable the child of the relationship child [X] born 2005 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

THE COURT ORDERS THAT:

1. The mother of the child [X] born 2005 be permitted to apply for an Australian Passport to enable the child to travel internationally notwithstanding that the father of the child has not signed the passport application form and furthermore the said child be permitted to travel internationally without the permission of the respondent father.

AND THE COURT FURTHER ORDERS THAT:

1. All previous parenting Orders be discharged.

2. The mother have sole parental responsibility for the child [X] born 2005.

3. The child [X] live with the mother.

4. The father is restrained by injunction from spending time and communicating with the child [X].

5. All extant applications are dismissed and removed from the list of pending cases.

AND THE COURT NOTES THAT:

A.The respondent Father has liberty to apply to set aside these orders pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 provided that:

a.HE makes such an application within 28 days of service upon him of these amended orders; and

b.HE files an affidavit setting out the basis of the application and explaining his non attendance at Court today.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

NOTATION: These orders have been amended pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth) to reflect the following change to:

• Addition of the word “FURTHER” in the heading “THE COURT DECLARES THAT” between Orders (5) and (6).

• Addition of the heading “AND THE COURT FURTHER ORDERS THAT” between Orders (7) and (8).

• Order 11 – addition of the words “and communicating”.

• Notation A(a) – addition of the word “amended”.

• Notation A(b) – correction of the spelling of  “affidavit”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 616 of 2017

MR CORBETT

Applicant

And

MS BOOTH

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This decision concerns a parenting matter.  The child the subject of the proceedings is [X] born 2005 (aged 13) (“[X]”).  The Applicant Father is MR CORBETT born 1983 (aged 33) (“the Father”).  The Respondent Mother is MS BOOTH born 1986 (aged 31) (“the Mother”). 

2. The Father initiated these proceedings on 23 January 2017.  On 1 May 2018, after the Father failed to attend the Court hearing, Judge Williams made a notation in her Honour’s orders that if the Father did not appear on the next return date, 21 June 2018, the Mother would seek to proceed on a final and undefended basis.  The Mother does seek to proceed on a final and undefended basis today.

3. Judge Williams’ orders on 1 May 2018 provided that the Mother serve a copy of the orders made on 1 May 2018 on the Father by prepaid post and ordinary post at the Father’s address at Suburb A, Victoria.  I have a copy of correspondence sent by the Mother’s solicitor to the Father dated 2 May 2018, which enclosed a copy of the orders of Judge Williams made on 1 May 2018, but further set out specifically the final orders that would be sought by the Mother at today’s adjourned mention hearing in the event that the Father did not appear and that those orders would be sought on an undefended basis.  The Father has not announced his appearance today.  The Father was called outside the courtroom and did not respond to the call.  I am satisfied that the Father was on notice that there would be a mention today and that he was on notice that the Court may proceed on an undefended basis in his absence.  I am also satisfied that the Father was on notice of the final orders that the Mother would be seeking. 

4. Further, the Father has not complied with other orders of the Court.  There were earlier orders made on 20 December 2017 that the Father attend upon Dr S, or other psychologist, for psychological assessment, which the Father has not complied with.  I infer from this and the Father’s failure to attend the hearing today, that the Father does not intend to participate in the proceedings and, therefore, I am satisfied that I should grant leave to the Mother to proceed to final orders on an undefended basis today. 

5. The Mother relies on her affidavit filed in these proceedings on

   
   

   9 October 2017.  In summary, the proposed orders of the Mother are that the Mother have sole parental responsibility for [X]; that [X] live with the Mother; that the Father be restrained, by injunction, from spending time or communicating with [X] or the Mother; that [X]’s surname be changed to the surname of his siblings who reside with him, that is, that [X]’s name be changed from [X] to [X];  and that the Mother be permitted to apply for an Australian passport for [X] without the consent of the Father.

6. [X] has been diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder.  The Mother has three other children, who are not part of the proceedings, who live in the house with [X] and the Mother.  The children are [A] (aged 10), [B] (aged 6) and [C] (aged 2).  The Mother deposes that [X] and the three other children have a very close and affectionate relationship.  The Father also has children from another relationship, however, it is unnecessary to refer to them, save for the fact that there appears not to be a particular relationship between the Father and those children.

7. The issues which require consideration are the very serious allegations of family violence that the Father has perpetrated on both the Mother and [X], the absence of the Father from [X]’s life, and the fact that the Father appears to lack any understanding of boundaries, having approached [X]’s school in 2016 and threatened to take [X] away from the school.  These matters are deposed to in the Mother’s affidavit filed on 9 October 2017. 

8. Turning to the presence of the Father in [X]’s life, the parents were in a relationship for two years, commencing their relationship in 2004 and separating in 2006.  The Father last spent time with [X] on one occasion in May 2014.  Prior to that, the Father had not spent time or communicated with [X] since 2009.  As a result, [X] has no relationship with the Father at all. 

9. I now turn to the issue of family violence. Family violence is a critical issue because under s.60CC of the Family Law Act 1975 (Cth) (“the Act”), the primary considerations for determining what is in a child’s best interests refer to the benefit of a child having a meaningful relationship with the both parents (s.60CC(2)(a) of the Act), but also to the need to protect a child from emotional and physical abuse (s.60CC(2)(b) of the Act). Pursuant to s.60CC(2A) of the Act, the latter consideration is to be given greater weight by the Court than the benefit of a meaningful relationship between, in this case, the Father and child. In her affidavit filed on 9 October 2017, the Mother deposes to the Father engaging in serious family violence during their relationship, including assault, for example head butting, and control. The Mother also deposes to the Father engaging in denigration and bullying of [X], possibly fuelled by the Father’s illicit drug use, being ice, and excessive alcohol consumption.

10. It is relevant, in the consideration of the family violence, that the Father was convicted and served four years in prison for a fatal assault in Western Australia. He was paroled in 2013. Following an order of the Court made on 13 October 2017, the parties attended a s.11F Child Inclusive Conference on 14 December 2017 (“the s.11F Conference”) with Family Consultant Ms W, who subsequently produced a written memorandum (“the s.11F report”). In the s.11F report, Family Consultant Ms W noted that the sentencing judge for the above assault described the Father as displaying “callous disregard” for the wellbeing of the victim. In other words, the Father has a significant problem with violence, whether that is within his family or elsewhere. In the s.11F report, Family Consultant Ms W also noted that at the s.11F Conference the Father was open to attending an anger management behavioural change program, however, there is no evidence of that before the Court because the Father has not filed any affidavit material in the proceedings.

11. An Intervention Order was made on 21 September 2016 with the Father named as the Respondent.  The Mother, [X] and the Mother’s three other children were named as the affected family members.  In her application for the Intervention Order, the Mother stated that the Father, having recently been released from prison, was harassing the Maternal Grandmother and other family members in order to locate the whereabouts of the Mother.  The Mother also said that the Father made threats to her and threatened to take [X] from his school.  The Intervention Order expires on 21 September 2023.

12. One of the factors that is relevant, of course, is how [X] feels about spending time or communicating with his father.  [X] is at an age where his views can be given weight and what he said to Family Consultant Ms W is of concern to the Court.  [X] reported the following to Family Consultant Ms W (Child Inclusive Conference Memorandum dated 14 December 2017 and prepared by Family Consultant Ms W at 5):

    …he was frightened about the prospect of spending time with his father as he thought his father might hurt him and might withhold him.  He reported that thinking about the possibility of being required to meet his father at the Child Inclusive Conference had made him feel nauseous.

13. Family Consultant Ms W goes on to note in the s.11F Report that [X] expressed to her that the Father ridiculed him for not playing cricket as an extracurricular activity. This supports the Mother’s material in which she says that the Father denigrated and bullied [X]. In the s.11F report, Family Consultant Ms W also recorded that [X] recalled one occasion where his Father, who barracks for one particular football team, attended a football game with [X]. [X] was wearing a jumper of another football team and the Father told [X] that he was embarrassed to be seen with him. [X] has also been exposed to the family violence between the Mother and the Father and recalls his father yelling at his Mother.

14. There is no question that [X] has a meaningful relationship with his Mother and that his Mother provides a safe, nurturing and stable environment for [X]. 

15. In the s.11F report, Family Consultant Ms W recommended that the parties sign up for possible supervised contact at the Community Plus Children’s Contact Service in Suburb B, however, there seems to have been no action taken in relation to that and certainly no affidavit filed by the Father saying that he made attempts to do so. Family Consultant Ms W also recommended that the Father participate in a psychological assessment of the risk of future violence he poses towards others, and no doubt specifically towards the Mother and [X]. As I have noted earlier, there was an order made to that effect, by consent, on 20 December 2017. The Father has not complied with that order. I am therefore satisfied that I can infer that the Father’s violent behaviour towards the Mother and [X] would continue unabated absent any evidence that the Father has done anything to deal with his family violence.

16. I have already dealt with [X]’s relationship with his parents. [X] has no relationship with his Father at all. In my opinion, there is no benefit to this child having a relationship with the Father and I doubt whether it could ever be meaningful. The risks of emotional and physical abuse to this child are far too high. The parents do not communicate at all. I am satisfied that the presumption of equal shared parental responsibility under the Act should not apply in this case on the basis that there has been serious family violence and because the evidence before the Court is that the Mother and the Father simply do not communicate. The Father appears to have no understanding of the attitudes and the responsibilities of a parent towards a child in the way that he has behaved, that is, being completely absent from [X]’s life; coming into [X]’s life by way of litigation proceedings; and then not participating appropriately in those proceedings.

17. I am satisfied that a finalisation of litigation must occur on the basis that these proceedings, according to the Mother in her affidavit material, which is not challenged, have disturbed and upset [X].  [X] was once a very settled child, but has progressively developed anxiety and distress about these proceedings, which have been on foot since January 2017.  I have formed the view that the best interests of [X] will be served by [X] having no contact with the Father.  [X] has made his views very clear and, because of the Father’s failure to take any active steps to deal with his family violence and anger management issues, any contact between [X] and the Father would only be to the detriment of [X].

18. [X] and his Mother need the ability to proceed with their lives knowing that there is an order in place that restrains the Father from having any contact with [X].  I have no doubt that the proceedings have distressed the Mother too and that she would have enormous anxiety about the impact of the Father having contact with [X], and that this would affect the Mother’s parenting capacity for [X] for whom she has primary care.  This is a relevant consideration in deciding what is in the best interests of [X].

19. I now turn to the question of changing [X]’s name.  [X] lives in a household where everyone’s surname is CORBETT except for him.  [X], of course, has a very loving relationship with his Mother, but also with his three half-siblings and [X] has expressed a view to his Mother, which I accept the veracity of, that he wants to change his surname to BOOTH.  I am satisfied that there is every benefit to [X] of having his surname changed and that there is certainly no detriment to [X] from changing his surname from CORBETT to BOOTH.  After all, [X] does not know the Father and what he does know of the Father is that he is a violent man.  Consequently, I am satisfied that it is in the best interests of [X] for his surname to be changed from CORBETT to BOOTH.

20. The next issue is the question of a passport for [X].  It is critical that these orders finalise these proceedings.  The Mother should not be forced to come back to this Court in the event that the Father fails to cooperate or communicate with her about signing the necessary documentation to obtain a passport for [X].  Consequently, I am satisfied that an order enabling the Mother to obtain a passport for [X] without the consent of the Father is an order that should be made.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 5 July 2018