EAGLE & SCARLETT (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAGLE & SCARLETT (No.2)

[2019] FCCA 3584

Catchwords:
FAMILY LAW – Parenting – Risk of Harm to young child – No time ordered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

Johnson & Page [2007] FamCA 1235

M & M (1989) 166 CLR 69

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR & GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MR EAGLE

Respondent:

MS SCARLETT

File Number:

PAC 2781 of 2016

Judgment of:

Judge Obradovic

Hearing dates:

27, 28, 29 May 2019 and 17 June 2019

Date of Last Submission:

17 June 2019

Delivered at:

Parramatta

Delivered on:

13 December 2019

REPRESENTATION

Appearing for the Applicant:

In person

Counsel for the Respondent:

Mr Daniel

Solicitors for the Respondent:	Reid Legal
Counsel for the Independent Children's Lawyer:	Mr Greenaway
Solicitors for the Independent Children's Lawyer:	JLM Family Lawyers

ORDERS

The mother, Ms Scarlett, shall have sole parental responsibility for the child X born … 2015.
The child shall live with the mother.
The child shall spend no time with the father.
The child X (female) born … 2015 shall be henceforth known as X.
The mother is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (female) born … 2015 be now registered as X.
Pursuant s28(5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 5 herein.
The Court directs that the mother forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2781 of 2016

MR EAGLE

Applicant

And

MS SCARLETT

Respondent

REASONS FOR JUDGMENT

Introduction

These are the reasons for judgment with respect to parenting proceedings between the applicant father, Mr Eagle and the respondent mother, Ms Scarlett in relation to their child X born … 2015.
The primary issues for determination are:
a)Parental responsibility;
b)The time the father spends with the child and whether any such time ought to be supervised;
c)Whether the child’s name ought to be changed to also reflect the mother’s surname; and
d)Whether the mother be permitted to relocate to the Town N area with the child.

Documents relied upon

The father relied on the following documents at hearing:
a)Amended Initiating Application filed 13 July 2018;
b)Affidavit of Mr Eagle affirmed and filed on 9 September 2016; and
c)Affidavit of Mr Eagle affirmed 11 June 2018 and filed on 13 July 2018.
The mother relied on the following documents at hearing:
a)Amended Response filed 27 April 2018;
b)Affidavit of Ms Scarlett affirmed 28 March 2019 and filed on 5 April 2019; and
c)Affidavit of Ms Scarlett affirmed 13 April 2018 and filed on 17 April 2018.
The following documents were tendered as exhibits in the proceedings:
a)Exhibit 1 – Father’s drug screening results;
b)Exhibit 2 – Material produced under subpoena from New South Wales Police as identified and contained in Sleeves 11 and 21;
c)Exhibit 3 – Father’s antecedents produced under subpoena from New South Wales Police contained in sleeve 23;
d)Exhibit 4 – Material produced under subpoena from Suburb D Hospital as identified and contained in sleeve 10;
e)Exhibit 5 – Material produced under subpoena from New South Wales Police, being pages 3, 4, 5 and 8 as identified and contained in sleeve 23;
f)Exhibit 6 – Family Report of Ms E dated 7 February 2018;
g)Exhibit 7 – Material produced under subpoena from the Department of Family and Community Services as identified and contained in sleeve 14 (part 2 of 2); and
h)Exhibit 8 – Mother’s minute of order.

Competing Proposals

The father seeks inter alia that:
a)the parents have equal shared parental responsibility for the child;
b)he spend significant and substantial time with the child during school terms and school holiday time;
c)he spend time with the child on specific religious festivals including for Eid-ul-Fitr, Eid-ul-Adha, on the twenty-sixth day of Ramadan and on the ninth day of Thul-hijjah in each year; and
d)he have regular telephone communication with the child whilst the child is not in his care.
The mother seeks that:
a)She have sole parental responsibility for the child;
b)The child live with her;
c)The child’s name be changed to “X”; and
d)The child spend no time with the father.
The orders sought by the Independent Children’s Lawyer are as follows:
a)The mother have sole parental responsibility for the child;
b)The child live with the mother; and
c)The child spend no time with the father.

Relevant Legal Principles

The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]

The Relevant Facts

The father was born on … 1977 and at the time of hearing was aged 41 years.
The mother was born on … 1988 and at the time of hearing was aged 31 years.
The father was in custody at various times between 1990 – 2014 for offences including assault and armed robbery including a sentence of 10 years and six months up until 2014.
On … 2009 the mother gave birth to her first child, A from a previous relationship.
On … 2012 the mother gave birth to her second child, B from another relationship.
In 2013 the mother was referred to Brighter Futures in relation to a report made by a third party as to the living conditions and risk to her two children from previous relationships in her care.
The father was released from custody in early 2014.
The parties met via an online dating site and commenced a relationship in … 2014. The parties never lived together.
In … 2015 the mother informed the father that she was pregnant with his child.
On … 2015 the child the subject of these proceedings was born.
The parties separated on a final basis in December 2015.
On 17 June 2016 the father commenced proceedings seeking to spend time with the child.
On 21 June 2016 a final Apprehended Domestic Violence Order was made in favour of the mother as against the father for a period of two years.
On 2 December 2016 the Court made orders for the father to commence spending time with the child for four hours three times per week.
On … 2017 the mother gave birth to her fourth child H, from her then partner, Mr G.
On 21 November 2017 the Court found the mother guilty of contravening interim orders for the father to spend time with the child following the filing of a contravention application by the father on 3 April 2017.
In January 2018 the father was convicted of common assault of the mother and was sentenced to a two year good behaviour bond.
On 7 February 2018 the Family Report of Ms E was released to the parties.
The mother gave birth to her fifth child F on … 2018.
The parties attended mediation on 11 October 2018 however were unable to resolve their parenting dispute.
On 30 July 2018 the matter was set down for final hearing commencing on 5 December 2018 for three days.
On 5 December 2018 the matter was marked not reached and listed for final hearing to commence on 27 May 2019 for three days.

Evidence of the Parties

The father

At the time of hearing the father was 41 years of age and lived in Suburb O. His evidence is that he attends the home of his father some nights per week to help. He receives a carer’s pension for his father.
The father was first incarcerated at the age of 17 years and spent time in a number of Youth Detention Centres until being moved to an adult facility at the age of 21. He has spent approximately 20 years of his life in prison having most recently being released from custody in 2014.
The father began using heroin when he was approximately 19 years of age and states that he has used a number of other illegal substances including marijuana, ice and cocaine in the past. He says that since being released from prison in 2014 he has only had marijuana on one occasion and drank alcohol occasionally.
The father is currently prescribed the drug ‘suboxane’ which is an opioid narcotic prescribed to assist him in remaining heroin free.
The father contracted Hepatitis C during his imprisonment, a fact he says the mother was aware of at the time of their sexual relationship. In his affidavit filed 13 July 2018 the father states that he has “recently cleared hepatitis c”.
Tendered in the proceedings were eight urinalysis reports for the father. The samples were not provided in accordance with a chain of custody, nor were they collected at an accredited collection centre. The reports show that none of the substances tested for were detected in the samples provided.
The father is presently either working or about to commence employment on a casual/part-time basis as a labourer. Both of his parents are alive, although his mother suffers from dementia. He has siblings. He is of Country P origin and a Muslim. There was no evidence of any specific cultural or religious practices and beliefs which he engages in.

The mother

At the time of hearing the mother was 31 years of age and resided within the Suburb J Council area of Sydney in a four bedroom rental home with her five children. The mother identifies as an Aboriginal woman. She does not have a licence and relies on Mr G or public transport to assist her in transporting herself and her children.
The mother has five children being:
a)A born … 2009;
b)B born … 2012;
c)X born … 2015;
d)H born … 2017; and
e)F born … 2018.
The mother does not have any contact with the fathers of the eldest two children and those children refer to the mother’s most recent partner Mr G as their father.
At the time of Family Report interviews the mother was in a relationship with Mr G, however at the time of final hearing that relationship had ended, albeit on good terms, with Mr G being a support to the mother and her children.
The mother states that she was unaware of the father’s criminal history at the time she became pregnant to him and that the parties had only had intercourse on the one occasion resulting in the pregnancy.
The mother explains that the parties’ relationship ended in December 2015, some 12 months after first meeting, as she became concerned about his abusive and controlling behaviour towards her.
The mother seeks to relocate her residence and that of the child to the Town N area where she says she will receive support from her family and where she will have a greater opportunity of obtaining employment and cheaper rental accommodation.
In her affidavit filed 5 April 2019 the mother explains that Mr G wishes to move to the Town N area should she be permitted to relocate and that he has been offered employment with her brother in-law.
The mother’s evidence in relation to her family support in the Town N area was limited.

Allegations of Risk and Family Violence

The mother has detailed a history of abuse by the father towards her and maintains that she is terrified of the father due to his past actions, threats and psychological disturbances.
The mother is fearful of what the father may do to her and asserts that the child is at an unacceptable risk of harm if he continues to spend time with the child.
In her affidavit filed 17 April 2018 the mother explains a number of instances of abuse and violence perpetrated by the father towards her including:
a)In March 2016 the father attended the mother’s home demanding she give him the child. He was holding a black bag and threatened to blow her head off if she did not comply with his demand;
b)The father becoming angry with the child at changeover on numerous occasions if she is crying;
c)At changeover on 18 December 2016 the father approached the mother and spat at her saying words to the effect of “you’re nothing but a liar. The AVO is a lie. The Judge hates you and the solicitors hate you. You’re nothing but a liar”; and
d)At changeover on 27 December 2016 the father “angrily shoved” the child into the pram because she was crying then lifting the two front wheels of the pram and slamming them to the ground. The mother reported this incident to the police.
In her affidavit filed 28 March 2019 the mother says that earlier in 2018 at changeover the father had blocked her path and abused her saying words to the effect of “You’re a fat dog and fucking mole. I know where you live. Don’t think you’ll report me. You know I’ve bashed these dogs before”.
The mother raises concerns that the father continues to abuse her at changeovers.
The mother raises concerns in her evidence about the care of the child whilst spending time with the father and has in the past alleged that the father may have inappropriately interfered with the child. In particular the mother describes an incident at changeover on 23 May 2017.
At changeover on this date the father said to the mother “she likes to smash her head on things hey… she was smashing her head on the metal poles at McDonalds at the playground. Then she started rolling her eyes and her head and had a twenty minute sleep afterwards”. The mother said “poor baby you have a lump and bruise on your head. Mummy will take you to the doctors”.
Whilst in the car following this changeover the mother noticed the child needed her nappy changed. The mother says that she noticed a red rash on her inner thighs and that she had a scratch “about half a centimetre long near her bottom”.
Upon attending the local doctor the child was referred to Suburb C Hospital for further examination by a paediatrician. The child was assessed with a mild head injury and “the doctors also noticed X had breaks in her skin and private areas”.
The child was further examined and “on 23 May 2017, the paediatric registrar noted a small superficial liner skin tear between the vagina and the anus which was not present on 24 May 2017. The mother was told on 24 May 2017 by a paediatrician that there were no signs of any physical injury to the child and that there was no evidence of non-accidental injury or child sexual abuse at the examination”, although it was possible that an assault had occurred but that physical findings may not be present. There was no action by the Department of Family and Community Services
The mother opines that on 8 April 2018 the child was extremely upset and screaming at the commencement of changeover and was saying words to the effect of “no”, “bad man hurt me”, “hurt my face”.
On 10 April 2018 the child was again screaming at the commencement of changeover saying “no, no, no” and trying to climb over the mother’s shoulder.
In the family report dated 7 February 2018 the mother expresses that her children A and B are fearful of the father as the father had once thrown the child B against a wall and that the child fell onto his bed.

Family Report

Family Consultant Ms E completed a family report in this matter on 7 February 2018 which was released to the parties on the same date. The Family Report became Exhibit ‘6’ in the proceedings.
Ms E stated in her report that the mother was “somewhat vague and contradictory” about the history of her relationship with the father indicating at the interviews that they were not in a relationship but that the father was present at the child’s birth, staying at the mother’s home, going on holiday with the family and contributing financially to the household[7].
[7] Paragraph 45 of the Family Report
The mother’s eldest child, from another relationship, A was interviewed by the report writer and said that she was fearful of the father because he had once “thrown B on the bed five times”. A also reported that she was fearful because the father had hit her dog with a stick in the past but that the father was “always nice to X”.
A described an incident to the report writer where she saw the father holding his fist to the mother’s face and kicked the door. She described an occasion where the father had said that the child (X) was going to disappear and that the mother would be in the ground which she took to mean that the mother would die and her sister X would live with the father.
The mother’s child B was likewise interviewed by the report writer. B said that they had asked the father “to go because he threw me on the bed” and that he had hit his head on the bed.

B reported that he was likewise frightened of the father because he had “kicked the door when my mum was at the door” and that the mother had hit her head.
The report writer observed the child playing with the mother and her then partner Mr G. The observations demonstrated that the child was comfortable and the adults allowed the child to lead the play. The mother assisted the child in reading a book, encouraged the child to tidy up the spilled sand and engaged well with the child.
When the father entered the room the child “smiled broadly, kissed her mother goodbye and ran to Mr Eagle”. Likewise, the child appeared to be comfortable in playing with the father and the father allowed the child to lead the play and was encouraging the child in her play.
The father appeared to overall communicate well with the child despite not understanding all of her speech. He was conscious of possible dangers to the child and placed his hand between the child’s head and the corner of the doll’s house so that she would not hurt herself.
The report writer noted that the child “appeared relaxed and comfortable during the interaction” with the father who would often kiss the child and tell her that he loves her.
There was nothing remarkable to report when the child was observed playing with her siblings, mother and Mr G other than that the children were all well behaved.
Importantly, the consultant opined:
114. If the Court considers that Mr Eagle poses an unacceptable level of risk to X it would not be appropriate for her to spend any time with him. Promoting a relationship with a person that poses an unacceptable level of risk would not be in a child’s best interests.
115. If the Court were to make such a determination but feel that X may benefit from some form of contact or information for identity purposes, photographs and potentially a letter in the future could be appropriate. This would require some level of co-operation from Ms Scarlett or facilitation from another source, like an ICL.
116. Should the Court find that Mr Eagle does not pose an unacceptable risk to X and that it would be in her best interest to have an ongoing relationship with him, the parenting arrangements will need to take into consideration her developmental needs, her need to maintain relationships with all the important people in her life and maintain her stability.

Parental Responsibility

The relationship between the parents is simply not conducive of any real or meaningful co-operation, and the Court finds that the presumption of equal shared parental responsibility has been rebutted on the evidence, in particular due to the common assault of the father as well as the orders for the protection of the mother.
The Court will make an order for the parent with whom the child primarily lives to have sole parental responsibility.

Risk of Harm

As sometimes happens at final hearing, the Court for the first time heard evidence of matters and events which ought to properly have been put before the Court previously. While there is no duty of full and frank disclosure per se in parenting proceedings, it is imperative for the Court to be able to discharge its duties properly in respect of making the all-important determination as to what may be in a child’s best interest, and that it has before it all of the relevant evidence.
Where a party is self-represented it is more likely than when a party is represented, that relevant evidence will not be put before the Court. In these proceedings the mother was legally represented, and the Court appointed an Independent Children’s Lawyer as early as 2 December 2016. The father was at all times self-represented. Until the final hearing in these proceedings, the evidence remained untested.
The Independent Children’s Lawyer submitted that ultimately this was a finely balanced case, turning on the Court’s assessment as to whether or not the child would be at an unacceptable risk of harm if she was to spend time with the father. The Court accepts this submission.
While the mother has not done her best to promote a relationship between the father and the child, and has in the past been found guilty of contravening orders without reasonable excuse, these proceedings are ultimately decided on the basis of risk.
The father is adamant that he does not suffer from any mental health issues, such as paranoia or delusion, that he does not take illicit substances and that his associates and former lifestyle do not pose an unacceptable risk of harm to the child.
On 9 January 2017 the father contacted emergency services because he believed he was being followed by armed persons in a vehicle. Father stated to police that “they are going to knock me, I’m not strapped here and I’m scared”. As a result, the father was transported back home in a contained police vehicle.
On 11 January 2017 the father again contacted the police reporting that he was being followed. The father then forced himself into the guard’s room of Suburb K Railway Station and scared transit staff. Police attended the scene where they advised the father to “move on”. The police were of the opinion that the father was suffering from paranoia.
On 1 February 2017 the father jumped off the train platform at Central Railway Station and climbed the fence to get to another platform. He did this because he believed he was being chased. Police were called and he asked the officers if they were real police officers. The father explained in cross-examination that the reason he did this was because some of his acquaintances had in the past impersonated the police, so to him it was not unreasonable to assume that these police officers were being impersonated. He was conveyed by ambulance to hospital and sedated. He says the psychologist saw him at the hospital and concluded “there’s nothing wrong with this bloke”.
On 8 February 2017 the father locked himself in the toilet of a restaurant where police were called to intervene. The father was transported to Suburb Q hospital due to his “erratic and aggressive behaviour”.
Later that year, on the 29 May 2017 the father again contacted the police reporting he was being pursued by unknown armed persons who were attempting to shoot him. Police arrived at the father’s home and found him suspended over the balcony. The father was conveyed to Suburb D Hospital and sectioned under the Mental Health Act. Once the father had been admitted to hospital, a psychiatrist had diagnosed him with paranoia and referred him to L House. The father did not accept the psychiatrist’s diagnosis and so released himself from treatment.
The father is adamant that he was pursued and that the unknown assailants wanted to harm him on each of these occasions.
These incidents occurred while orders for father to spend time with child were in force. They did not occur in the presence of the child. The father says to this court; “what’s weird about it? …. I can guarantee he’s not going to hurt children... I went into hiding…. Do I arm up?... What do I do?… What’s so weird about it?”
In the world where the father spent most of his life, such incidents might not be extraordinary. To most people though they are not only extraordinary but dangerous, unusual and highly concerning.
The idea that a defenceless child at 3, 4, 5 years of age (or older) could be put in harm’s way in this manner is simply unacceptable. To have the father hanging off balconies and roofs in an attempt to escape being seriously hurt or killed, in any reasonable world is a situation which is dangerous and highly so. To suggest that these criminals would not hurt a child because that’s not the type of people they are is so fraught with irrationality that it makes the Court find that the father lacks insight and understanding into his actions and how they could have impacted the child.
The father has had plenty of opportunity to be on his best behaviour and to show the Court (and the mother) that he was serious about being a good parent and citizen. Whilst the Court feels a fair amount of sympathy for the father given his difficult life, and understands that in the scheme of things, the father has probably done fairly well to turn his life around, these proceedings are not about the father. It is not an experiment. It is not about giving him the chance to prove he can do something. He has already had ample opportunity of proving himself. He did not come clean about serious dangerous episodes, because he does not consider those things to be important. He did not tell the psychologist who prepared a report about each and every incident because “it’s been sorted”.
It is, in one sense, pure luck that no harm has come to the child. The mother was not aware of what was going on, the father did not tell her and the documents which shed some light had not yet been produced to the Court under subpoena. The ICL did not know about it, she had some warning as a result of limited material being made available to her and consequently sought that the father obtain a mental health assessment.
That assessment which was completed on 2 February 2018 by Ms M, psychologist must be given little to no weight. The opinion was not based on a full disclosure of relevant facts and as such is of little to no relevance. Ms M was not called to give evidence, her report was simply annexed to the Father’s affidavit.

Court’s Determination

While the child at present has a relationship with the father, the benefit of the child having a meaningful relationship with him must be weighed against the need to protect her from physical or psychological harm. The harm which the child could come to as a result of the father’s behaviours is serious. While Ms M’s report seems to suggest that the father does not suffer from any mental health issues, that opinion as explained above, will not be given any weight. The evidence suggests otherwise.
Alternatively, the father’s past associations are such that he has continued to lead a lifestyle which is unusual and carries with it a significant amount of danger, not only for him, but for the child. The father simply does not accept that there is anything unusual, wrong or risky with the way that he has acted in the early part of 2017. While those episodes do not appear to have repeated themselves, in the exercise of the Court’s discretion the Court is not prepared to test the waters by putting the child in a situation where she is at an unacceptable risk of harm.
In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating the risk that, in this instance, erratic and dangerous behaviour by the father will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of such behaviour.[8]
[8] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62] to [74]
The High Court has clearly stated that “… a Court would not grant custody or access to a parent if that custody or access will expose to child to an unacceptable risk of [harm]…”[9]
[9] M & M (1989) 166 CLR 69
In addition, the Court has serious concerns about the father’s behaviour towards the mother and her children, and towards the subject child.
The Court finds that unsupervised time between the father and the child would place her at an unacceptable risk of harm.
Next then is for the Court to consider whether the risks which have been identified might be ameliorated by supervision of the child’s time with the father. The mother proposes to relocate to the Town N area or indeed in the Sydney Metropolitan area. The evidence in support of that relocation is scant. However, she is the child’s primary carer and there is no competing application by the father for the child to live with him.[10]
[10] Given the findings of unacceptable risk of harm, such an order would not in any event have been made
There is no evidence before the Court about what, if any, supervision services there might be available in the Town N area, nor is there any evidence as to whether or not the available supervisions services would be able to guard against the risks which the father poses to the child.
While an order for a child to spend no time with a parent is almost always an order of last resort, there are no alternatives available to this child at present. Even if the mother was to remain living in or near her current location, so that there would be less of a practical difficulty with the child spending time with the father, once again without specific evidence as to what safety guards there might be in place by a proposed supervision service, the Court would not be able to make a finding that the risks have been appropriately ameliorated.
In all of the circumstances, the only order which will provide the necessary safety guards for this young and vulnerable child at present is for her not to spend any time with the father.
As for the suggestion that there be provision of letters, cards and similar for identity purposes, there is no evidence that there would be co-operation from the mother about this, indicated by the family consultant.

Change of Name

The mother seeks an order for her surname to be added to the child’s existing surname. In circumstances where she is the child’s primary carer, where the child will live with her and spend no time with the father, it is an order which is in the child’s best interest. The child will retain her father’s surname and will therefore retain that part of her identity.

Conclusion

For all of these reasons orders as set out at the forefront of these Reasons for Judgment are made and are in the child’s best interests.

I certify that the preceding one-hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 13 December 2019

[2019] FCCA 3584

13 December 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies