Egglestone & Ors and Finnegan & Ors
[2018] FamCA 143
•8 March 2018
FAMILY COURT OF AUSTRALIA
| EGGLESTONE AND ORS & FINNEGAN AND ORS | [2018] FamCA 143 |
| FAMILY LAW – CHILDREN – Best Interests – Where there are seven children with four different fathers – Where the Applicant is the maternal grandmother – Where the Applicant seeks time with the children – Where the Applicant’s Initiating Application has been dismissed – Where the fathers of the children have disengaged or withdrawn from the proceedings – Where orders made for the children to live with the mother and spend time with the fathers as agreed – Where the only live issues are the children’s time with the Applicant and changing the children’s surnames – Where the mother seeks that the children spend no time with the Applicant – Where there is high conflict between the Applicant and the mother – Where the Family Consultant is of the opinion contact with the Applicant would cause conflict and stress that would outweigh any benefit of a meaningful relationship with the Applicant – Orders made for the Applicant to spend no time with the children – Where the mother seeks to change the children’s surnames – Where the Independent Children’s Lawyer opposes a change in the children’s surnames – Where the Family Consultant is of the opinion that a change in surname does not benefit the children – Orders made restraining the mother from changing the children’s surnames. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA |
| Donnell & Dovey [2010] FamCAFC 15 |
| APPLICANT: | Ms Egglestone |
| SECOND APPLICANT: | Mr J Greatbatch |
| THIRD APPLICANT: | Ms Greatbatch |
RESPONDENT: | Ms Finnegan |
| SECOND RESPONDENT: | Mr Greatbatch |
| THIRD RESPONDENT: | Mr Bilson |
| FOURTH RESPONDENT: | Mr Gillies |
| FIFTH RESPONDENT: | Mr Hurst |
| INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
| FILE NUMBER: | PAC | 3136 | of | 2014 |
| DATE DELIVERED: | 8 March 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 16 November 2017 |
REPRESENTATION
| THE APPLICANT: | Self-represented via AAPT link |
| THE SECOND APPLICANT: | No Appearance |
| THE THIRD APPLICANT: | No Appearance |
| SOLICITOR FOR THE RESPONDENT: | Lamrocks Solicitors |
| THE SECOND RESPONDENT: | Self-represented in person |
| THE THIRD RESPONDENT: | No appearance |
| THE FOURTH RESPONDENT: | No appearance |
| THE FIFTH RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
The second Respondent Mr Greatbatch withdraws from proceedings.
By consent of the Applicant, the first Respondent and the Independent Children’s Lawyer orders are made in accordance with paragraphs 1, 3, 7, 9 and 10 of Exhibit 1 subject to the correction of some typographical errors and order 10 is amended by adding the words “or any other person” in lieu of the words “servants or agents”.
Orders are made in accordance with paragraph 2, 4, 5 and 8 of Exhibit 1.
Orders made in chambers
The Applicant maternal grandmother have no contact, either in person or by written or verbal communication with the children other than as instigated by the children.
The mother be restrained from changing the current registration of the children’s surnames.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Egglestone and Ors & Finnegan and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3136 of 2014
| Ms Egglestone |
Applicant
And
Mr Greatbatch
Second Applicant
And
Ms Greatbatch
Third Applicant
And
| Ms Finnegan |
Respondent
And
Mr B Greatbatch
Second Respondent
And
Mr Bilson
Third Respondent
And
Mr Gillies
Fourth Respondent
And
Mr Hurst
Fifth Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Ms Finnegan (“the mother”) is the mother of seven children, one of whom is now an adult. The other six children (“the children”) who are aged between seventeen and three have four different fathers.
All of the children live with their mother and are either completely estranged from their respective fathers or in the case of one father, Mr Greatbatch, have a limited relationship with him.
The children are also estranged from their maternal grandmother, Ms Egglestone (“the Applicant”) who commenced these parenting proceedings in July 2014 seeking orders that would support her having a relationship with the children.
The fathers of the children, other than Mr Greatbatch, either did not participate in the proceedings at all or had ceased to participate by 16 August 2017 when the Respondent mother sought orders listing the proceedings for an undefended hearing. On that date the Applicant also did not appear and her application for orders was dismissed.
The Respondent mother’s application for final parenting orders was fixed for hearing on 16 November 2017. On that date Mr B Greatbatch withdrew from the proceedings.
On 16 November 2017 the two competing applications were the orders proposed by the mother and the Independent Children’s Lawyer (“ICL”) respectively. The two proposals were in very similar terms with the only matter of significance in dispute being the mother’s application that she be permitted to change the children’s surname. The ICL’s proposed minute of order was marked as Exhibit 1 in the proceedings. The mother consented to all orders in Exhibit 1 other than order 11 which restrained the mother from changing the children’s surnames.
The Applicant who participated in the proceedings by telephone, although having ultimately not pursued her own application for orders (and it having been dismissed) consented to a number of the orders proposed by the ICL but maintained her opposition to some of the orders.
With the consent of the remaining litigants being the Applicant, the mother and the ICL, orders were made in terms of paragraphs 1, 3, 7, 9 and 10 of Exhibit 1 which concerned the children’s residence with the mother, the mother obtaining passports for the children and non-denigration.
After hearing submissions from the Applicant in relation to orders 2, 4, 5 and 8 of Exhibit 1 which the Applicant opposed, I made the orders in the terms sought by the ICL and indicated that I would publish my reasons at a later date. These are those Reasons.
The remaining dispute which related to a restraint upon the mother in changing the children’s surname and contact between the Applicant maternal grandmother and the children were the only other outstanding matters to be resolved. I subsequently reserved my judgment. These Reasons also deal with that dispute.
Background
The mother was born in 1978 and was 38 at the time of the final proceedings.
The mother’s oldest child, Mr B, was born in 1997 and is the son of Mr Gillies with whom the mother was in a relationship from 1996 to 1997. Mr B was 20 at the time of final hearing and is not the subject of any application for parenting orders. Mr Gillies has never participated in these proceedings and does not have a relationship with Mr B despite orders made in 2002 which provide for him to spend time with Mr B.
The mother’s second child, C, is the son of Mr Bilson with whom the mother was in a relationship from 1999 to 2000. C was born in 2000 and was 17 years old at the time of the final proceedings. Mr Bilson has never been involved in C’s life and filed a Notice of Discontinuance in these proceedings on 30 June 2016.
The mother and Mr Greatbatch commenced a relationship in 2000 just after the birth of C. They married in 2001.
The mother and Mr Greatbatch’s first child, D, was born in 2001 and was 16 at the time of final hearing.
The mother and Mr Greatbatch’s second child, E, was born in 2004 and was 13 at the time of final hearing.
The mother and Mr Greatbatch’s third child, F, was born in 2007 and was 10 at the time of final hearing. F has been diagnosed with autism.
The mother and Mr Greatbatch separated on a final basis in 2010. The mother was pregnant with their fourth child at the time and claims that her concerns about the father’s mental health and disengagement from the family prompted the separation.
The mother and Mr Greatbatch’s fourth child, G, was born in 2011 and was six at the time of the final hearing. G has been diagnosed with epilepsy, severe speech delay and intellectual delay.
Subsequent to separation the children spent time with Mr Greatbatch on a semi-regular basis as initiated and organised by the mother.
The mother commenced a relationship with Mr Hurst in 2012.
The Applicant maternal grandmother had some involvement in the children’s lives and some form of relationship with each of them.
In early 2012 an incident involving the Applicant and D occurred while Mr Greatbatch was babysitting the children at the mother’s home. The mother deposes to D telling her that the Applicant had pulled her off her bed, sat on her, punched her in the stomach then put her in a cold shower. The mother alleges that the Applicant then told the child not to tell her mother and gave her money to be quiet. D informed her mother that this was not the first time the Applicant had provided the children with gifts or money to remain quiet about incidents that had occurred while the children were in the Applicant’s care.
The mother then ceased contact between herself and the Applicant and the Applicant has had no contact with the children since this incident.
The mother deposes to the Applicant continuing to send the children letters and gifts after this time which causes the children anxiety.
Throughout 2012 Mr Greatbatch’s time with his children decreased due to his difficulties in caring for the children and the mother having to end his contact early on a number of occasions.
Mr Greatbatch ceased having contact with his children in 2013 and has not sought to resume this contact.
On 4 July 2014 the Applicant initiated proceedings in this Court.
The mother’s seventh child, H, was born in 2014 and is the son of Mr Hurst, the mother’s then partner. H was three years old at the time of the final hearing.
On 19 August 2014 an ICL was appointed.
Subsequently the mother, the children, the Applicant, Mr Hurst and Mr Greatbatch met with a Family Consultant for the purposes of the production of a Children and Parents Issues Assessment. The written Memorandum (“CPIA”) of those meetings was produced on 21 November 2014.
On 27 January 2015 the ICL was noted by the Registrar to oppose the applicant spending time with the children at that stage particularly due to the older children’s strong views expressed in the Memorandum.
Following his separation from the mother Mr Hurst filed an application seeking to be joined as a party to the proceedings. That application was withdrawn on 28 September 2015 as the Applicant was not seeking any orders in relation to H, Mr Hurst’s only child with the mother. On that date Mr Gillies was also discharged from the proceedings noting that Mr B, Mr Gillies’ child with the mother, had turned 18. Further orders were made for the Applicant to file an Amended Application.
On 8 December 2015 orders were made for a Family Report to be prepared and the parties were ordered to attend mediation in the intervening period.
In January 2016 the mother separated from Mr Hurst due to his anger management issues. Mr Hurst has no contact with H since separation.
The mother, the children, the Applicant and her partner and Mr Greatbatch and his partner attended on a Family Consultant on 13 September 2016 for the purposes of the production of a Family Report. Mr B was not interviewed due to him not being a subject child of the proceedings. G attended but did not participate in the assessment, either to be interviewed or observed, as she was unwell. H was not interviewed due to his young age (two years) at the time of assessment.
The Family Report was released to the parties on 21 June 2017.
On 16 August 2017 there was no appearance by or on behalf of any party except the mother. On that date all applications and responses in the proceedings were dismissed except the mother’s Response to the Applicant’s Initiating Application. Orders were made for the mother to file an Amended Response and a consolidated affidavit and the proceedings were listed for undefended hearing.
On 16 November 2017 the matter was before me for final undefended hearing and orders were made in the circumstances outlined earlier in these Reasons.
These Reasons concern the mother holding sole parental responsibility for the children, the children’s contact with their fathers and travel outside Australia, the children’s surname and the children’s time with the Applicant.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
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.
The 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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
In this matter, when applying the primary and additional considerations to the proposals of the mother and the Applicant, the Court must not treat those considerations which specifically relate to parents as if they must equally apply to a non-parent party, in this case the Applicant maternal grandmother.
In Donnell & Dovey[1], the Full Court made it clear that if the subject matter of a best interests matter, which is referable only to a parent under section 60CC is also relevant to a non-parent, this should be addressed under section 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than erroneously treating the non-parent as a parent. Where such a factor is being considered by me as relevant to the Applicant, I will do so by application of s 60CC(3)(m).
[1] [2010] FamCAFC 15
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[3] (2007) Fam LR 518
[4] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The mother has been the primary carer for all of the children for the entirety of their lives. It is clear that each of the children has strong and positive relationship with the mother and it is in the children’s best interests that those relationships continue. There is no suggestion that the children are at risk of harm in the care of the mother.
The children have either a fractured or a non-existent relationship with the Applicant and the mother makes allegations that the Applicant has harmed D, and perhaps the other children, in the past.
The Family Consultant, in the Family Report dated 20 June 2017, reported that C, D, E, and F all spoke negatively of the Applicant and indicated they did not wish to see her. They also refused to participate in an observation session with the Applicant. The Family Consultant was of the opinion that the extended period since G had seen the Applicant would mean she could not have a functional memory of the Applicant. H has never had a relationship with the Applicant.
It is clear that the children are well aware of the ongoing conflict between the Applicant and the mother and the Family Consultant opined that the children’s views should be given little weight as they were likely the result of the children’s alignment with and pressure from the mother.
The Family Consultant reported that the relationship between the mother and the Applicant was strained with each making allegations that the other has perpetrated violence against them. It was the opinion of the Consultant that conflict was likely to arise if the Applicant and mother came into contact and there was no indication that reconciliation between the two is likely.
The Family Consultant made the following observations:
[The Applicant] reported a history of sustaining a significant head injury in 2010, prior to the most recent breakdown in her relationship with [the mother]. [The mother], having reportedly been privy to some of [the Applicant]’s medical treatment at that time, suggested that [the Applicant] may have difficulties in her interpersonal relationships and memory for reasons other than a brain injury …
While it was beyond the scope of the Family Consultant’s assessment to determine the causes and extent of the Applicant’s difficulties with memory, emotional regulation and interpersonal relationships, the Family Consultant did opine:
An important aspect of a child’s development to adulthood is achieving the capacity to autonomously regulate their emotional state. The support of caregivers and other important adults is a necessary aspect of the child developing these abilities, particularly for younger children. To provide such support to a child it is important that the adult has the ability to consistently regulate their own emotional state as part of providing predictable care to the child. Contact with significant adults who have poor capacities to regulate their own emotions can have an impact of dysregulating the child (heightening negative emotion states) in the short term, as well as impairing their capacity in the long term to develop their own capacities for emotion regulation.
[The Applicant]’s apparent difficulties in containing her feelings regarding [the mother] when interviewed for this assessment and the earlier CPIA suggests that it is likely that she will have difficulty containing her feelings should she spend time with or communicate with the children. There were indications that [the Applicant] has some insight into the need for the children to be protected from such views, but also that she has little capacity to manage this when in a heightened emotional state. This situation may be consequential to a brain injury or other process of a brain disease or may be related to other as yet unidentified factors.
The Family Consultant was of the opinion that the Applicant’s proposal for the children spending time with her appeared to be focused on meeting her own needs and did not consider that the children may have different needs.
Ultimately the Expert recommended that the children have no contact or communication with the Applicant due to the conflict between the Applicant and the mother. The Family Consultant felt it was likely that the children would experience contact with the Applicant “as stressful and this would likely outweigh any benefit that may arise from them maintaining a relationship with [the Applicant]”.
I accept the opinion of the Family Consultant that in the context of the children’s relationship with their mother and the conflict between the mother and the Applicant, the stress the children would experience if they spent time with the Applicant would outweigh any benefit the children would experience from having a meaningful relationship with the Applicant.
Mr Greatbatch’s four children with the mother do not currently have a meaningful relationship with him. Mr Greatbatch has not been a consistent presence in their lives and has been absent from their lives in recent years. In any event, Mr Greatbatch does not seek any orders in relation to the children that would support his current relationship with them.
The children were not observed interacting with Mr Greatbatch by the Family Consultant in September 2016 as he was not seeking any parenting orders in relation to his biological children at that time. It was noted in the Family Report that Mr Greatbatch reported an interest in re-establishing his relationships with his daughters but had taken no action in this regard. It was recommended that no orders be made requiring or preventing the children from spending time with Mr Greatbatch.
C’s father and H’s father do not have a relationship with their respective children and are not participating in these proceedings.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
The views and relationships of the children have been articulated earlier in these Reasons.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The mother has been the primary carer for the children for the entirety of their lives and she has made all long-term decisions for the children. There is no dispute that the mother has maintained the children and has the capacity to provide for the children’s needs.
The mother deposes to each of the children’s fathers paying limited amounts of child support as assessed but otherwise not being involved in the children’s day-to-day care or any long term decision making for the children.
None of the fathers seek orders in relation to their children in these proceedings and can be taken to be forfeiting their opportunity to participate in decision making for the children or spend time with the children other than as agreed to by the mother.
While the Applicant has had some involvement with the children prior to 2012 such involvement did not amount to her taking on a parental role nor was she involved in the children’s day-to-day care. She has now had no involvement in the lives of the children for over five years. There is limited evidence as to the Applicant’s capacity to provide for the children’s needs if an order were made for them to spend time with her particularly in light of her difficulty with emotional regulation and memory following her head injury and her current ill health.
Likely effect of change in the children’s circumstances
Practical difficulty and expense involved in spending time with and communicating with the other parent
Orders as proposed by the ICL and made on 16 November 2018 that the mother hold sole parental responsibility for the children and concerning the children’s time with their fathers do not change the children’s circumstances and do not pose any practical difficulty or expense in their implementation.
Orders as proposed by the mother and the ICL that the children spend no time with the Applicant also result in no change in the children’s circumstances as the children do not currently spend time or communicate with the Applicant.
There is significant practical difficulty associated with any order for the children to spend time with the Applicant. Any orders for time would require the children to travel to the Applicant’s home on the North Coast of New South Wales. The Applicant cannot travel due to her ill health and lives approximately six hours drive from the mother.
The Applicant has not proposed any orders that would ameliorate the practical difficulty the mother would face in facilitating five children between the ages of 10 and 17 travelling six hours to see the Applicant particularly given her care of a three year old who the Applicant does not seek to spend time with.
Family violence relating to the children or a member of the children’s family
There is no reported history of family violence between the mother and Mr Greatbatch or the mother and the Applicant. While the mother and the Applicant have made allegations of violence perpetrated by the other in the course of these proceedings, those allegations are not weighty factors in light the primary considerations discussed earlier in these Reasons.
Any other relevant fact or circumstance
As noted above, this additional consideration facilitates consideration of the best interest factors conveniently in relation to the Applicant maternal grandmother to the extent that they are relevant.
The mother also seeks an order that she be allowed to change D, E, F and G’s surname from “Greatbatch” to “Finnegan”. This order was opposed by the ICL.
The Full Court in In the Marriage of George and Radford[5] set out the factors which should guide the determination a change of surname application and outlined them as follows:
(a)the final decision must be governed not by supposed parental rights but must be in the best interests of the children;
(b)short-term embarrassment must be weighed against long-term effects;
(c)where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
(d)children should not be subjected unnecessarily to a confusion of identity;
(e)a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.
[5] (1976) FLC 90-060.
The best interests and welfare of the child has been affirmed as the determinative factor in any change of name application by subsequent Full Court decisions.[6]
[6] Malmo & Hartigan [2010] FAMCA 1182; In the Marriage of Chapman and Palmer (1978) FLC 90-510; In the Marriage of Beach and Stemmler (1979) FLC 90-692; Flanagan v Handcock (2000) 27 Fam LR 615; Reynolds and Sherman [2016] FamCAFC 240.
The Family Consultant opined that changing a child’s surname can lead to a disruption in a child’s identity development and understanding of family relationships. It was not recommended that the mother be permitted to change the children’s surnames as no significant benefit of such a change was identified and it may diminish each child’s connection to Mr Greatbatch.
The mother has not suggested any compelling reason for the change in the children’s surname. In circumstances where each of the relevant children has been known by the surname “Greatbatch” for the entirety of their lives and given the Family Consultant’s opinion that a change in surname may be detrimental to the children, I am of the view that such an order is not in the best interests of the children.
The final issue to be considered is the order made on 16 November 2018 that the mother be allowed to travel overseas with the children. The mother and children are well settled in Australia and there is no evidence to suggest that the mother would not return to the country following an overseas holiday. I am easily satisfied that it is appropriate for an order to be made for the mother to be able to travel overseas with the children.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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 for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
An order has been made for the mother to have sole parental responsibility for the children.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the mother will have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the fathers of the children will have none of the duties, powers, responsibilities and authority with respect to the children.
Given the fathers have disengaged or withdrawn from proceedings and the Applicant’s Initiating Application has been dismissed at an earlier stage in these proceedings, the only proposal before the court is for the mother to have sole parental responsibility for the children. In circumstances as outlined in these Reasons I am easily satisfied that it is in the children’s best interest for the mother to have sole parental responsibility for them.
Conclusion
Having regard to all of the foregoing in my view it is not in the best interests of the children to spend time with the Applicant. I am also of the view that in the absence of a compelling reason and given the Family Consultant’s opinion it is not in the children’s best interests that their surnames be changed.
Accordingly, orders will be made in terms sought by the ICL in orders 6 and 11 of Exhibit 1. Those orders are set out at the forefront of these Reasons.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 March 2018.
Legal Associate:
Date: 8 March 2018
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