Elderton & Boston

[2021] FamCA 103

FAMILY COURT OF AUSTRALIA

Elderton & Boston [2021] FamCA 103

File number(s):	NCC750 of 2019
Judgment of:	CLEARY J
Date of judgment:	2 March 2021
Catchwords:	FAMILY LAW – PARENTING – Where the father has been sentenced and is imprisoned for the sexual assault on the mother’s youngest daughter from an earlier marriage and who has always been a member of the mother’s household – Where the subject child does not presently have a meaningful relationship with the father – Where the child has been sheltered from knowledge of the assault on his sister and others in the father’s past – Where the mother is fearful that upon the father’s release from gaol he will act punitively towards herself and the child – Where an order has previously been made by consent for the child to live with the mother – Where the presumption of equal shared parental responsibility does not apply – Where there is no benefit to any form of time and communication in the circumstances – Where the mother seeks to change the surname of the child – Where the father expressed opposition to a change of the child’s surname – Ordered mother to have sole parental responsibility for the child extending to change of surname of the child – Ordered no time and communication between the child and the father – Ordered father be restrained from approaching the mother and the child in all settings.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	23
Date of hearing:	2 March 2021
Place:	Newcastle (via telephone)
Counsel for the Applicant:	N/A
Solicitor for the Applicant:	Mr Quinn
Counsel for the Respondent:	N/A
Solicitor for the Respondent:	Self-Represented
Counsel for the Independent Children's Lawyer:	N/A
Solicitor for the Independent Children's Lawyer:	Foat Roberts Lawyers

ORDERS

NCC750 of 2019

BETWEEN:

MS ELDERTON
Applicant

AND:

MR BOSTON
Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	2 MARCH 2021

THE COURT ORDERS THAT:

Further to the order made by consent on 3 August 2020:

1.The child X ELDERTON BOSTON born … 2013 live with the mother.

The following orders are made:

1.That the mother shall have sole parental responsibility for the child.

2.That the child shall spend no time and have no communication with Mr Boston (“the father”).

3.That the father be restrained from contacting, attempting to contact, and from approaching the mother and the child and entering at or coming within 100 metres of:

i)The place of residence of the mother and the child; and

ii)Any school or extra-curricular activity when attended by the child.

4.That the mother may, without reference to the father, apply to the Registrar of Births, Deaths and Marriages to register a change of name for the subject child from X Elderton Boston to X Elderton.

THE COURT NOTES THAT

(A)The father expressed his willingness for the mother to obtain a passport for the child.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elderton & Boston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CLEARY J

1. This is an application for parenting orders in respect of one child, X aged seven years five months.

2. The application is made by the mother Ms Elderton.  She proposes that the child continue to live with her, that she have sole parent responsibility, extending to change of surname of the child.  Also, that there be no time or communication with the father and that the father be restrained from approaching herself and the child in all settings.

3. The father who is presently in gaol, attended the hearing and represented himself.

4. The Court had the benefit of submissions from both parties and the Independent Children’s Lawyer.

   EVIDENCE

5. The documents relied on in respect of the application were as follows:

   The Applicant mother

   (a)Initiating Application filed 13 March 2019;

   (b)Notice of Child Abuse or Risk of Family Violence filed 13 March 2019;

   (c)Affidavit of the mother filed 13 March 2019;

   (d)Further affidavit of the mother filed 17 February 2021;

   The Respondent father

   (e)Minute of Order filed 3 December 2019;

   (f)Affidavit of the father filed 26 August 2019.

6. In mid-2020 the father entered a plea of guilty to several charges of sexual assault of the mother’s youngest daughter from an earlier marriage.  That young person is now 16 and has always been a member of the mother’s household.

7. In late 2020 the father was sentenced in the District Court for a total of seven years imprisonment with a non-parole period of four years and eight months.  Accordingly he will be released between July 2023 and November 2025.

8. The mother has expressed fear that the father will seek her out on his release from gaol and act punitively towards herself and the subject child.

9. The current Apprehended Violence Order protecting the mother and others expires on 12 August 2022.

   PARENTAL RESPONSIBILITY

10. Pursuant to s 61DA(2)(a) of the Family Law Act, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or another child who at the time was a member of the parents’ family or family violence.

11. The criminal conduct of the father falls within this section such that the presumption does not apply.

12. The father properly conceded that the mother was a good mother.  The evidence before me supports such a finding.  It is entirely appropriate that the mother have all the responsibility of parental decision making including the change of surname.

13. I endorse the reservation of the Independent Children’s Lawyer that the mother might consider taking some time about when that change is to be made, if it is.

14. I accept that the mother is concerned about physical security and the child being tracked down by his surname.

15. She also wishes to provide reassurance for the child by his having the same surname as herself.

16. The third area of concern is the potential distress for the child when he learns that his father hurt and assaulted his sister and the child has the same surname as the father.

17. The mother should be free to take that step and orders will allow her to do it.  The change however will, in my view, have greater significance for the child if he has informed input after coming to understand the reasons for it in due course.

    TIME AND COMMUNICATION

18. The child does not presently have a meaningful relationship with the father.  He has not seen him for two or three years.  He has been kindly sheltered from knowledge of the assault on his sister and others in the father’s past.

19. There is no benefit to any form of time and communication in these circumstances and potential for distress, confusion and emotional harm if it was to take place.

20. The father representing himself expressed opposition to a change of surname and willingness to agree to a hyphenated surname. He otherwise accepted that it will be a matter for him to make a fresh application for any time or communication with the child after his release from gaol.  That is not to say he would be inevitably successful with such an application rather that his circumstances will change by his release from gaol.

21. The orders made are largely as sought by the mother.

22. I have included a notation about the father’s willingness for the mother to obtain a passport for the child but have not made an order given that the order was not sought.  It should be said that reference to a passport was an error on the Court’s part.  It was no part of any party’s application.

23. Orders are made accordingly.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Cleary.

Associate:

Dated:       2 March 2021