Ellsom & Hannewell

[2021] FCCA 1779

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ellsom & Hannewell [2021] FCCA 1779

File number:

MLC 3774 of 2021

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

23 July 2021

Catchwords:

FAMILY LAW – undefended final hearing – where mother is seeking sole parental responsibility – name change – where mother is seeking to remove father’s name – service by email – inference from no email ‘bounce back’ – service by Facebook messenger – allegations of family violence – orders made.   

Legislation:

Family Law Act 1975 (Cth) ss 60CA, 64B, 69ZT.

Evidence Act 1995 (Cth) ss 79, 144.

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Chapman & Palmer (1978) FLC ¶90-510

Hiron & Tourle [2021] FCCA 1270

Jones v Tobin [2002] FCA 1150

McGregor & McGregor (2012) FLC ¶93-507

Reynolds & Sherman (2015) FLC ¶93-659

Zane & Allan (2008) FLC ¶93-378

S Odgers, Uniform Evidence Law, (Thomson Reuters, 15^th ed, 2020).     

Number of paragraphs:

66

Date of hearing:

23 July 2021

Place:

Melbourne (via Microsoft Teams)

The Applicant:

Appeared In Person

The Respondent: 

No Appearance

ORDERS

MLC 3774 of 2021

BETWEEN:

MS ELLSOM

Applicant

AND:

MR HANNEWELL

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	23 JULY 2021

THE COURT DECLARES THAT:

1.It is in the best interests of the child X ELLSOM-HANNEWELL born in 2009 to be known as X ELLSOM.

2.It is in the best interests of the child Y ELLSOM-HANNEWELL born in 2011 to be known as Y ELLSOM.

THE COURT ORDERS THAT:

3.The Applicant Mother is authorised to apply to the Registrar of Births, Deaths and Marriages in and for the State of Victoria to change the name of the child previously registered as X ELLSOM-HANNEWELL to X ELLSOM.

4.The Applicant Mother is authorised to apply to the Registrar of Births, Deaths and Marriages in and for the State of Victoria to change the name of the child previously registered as Y ELLSOM-HANNEWELL to Y ELLSOM.

THE COURT DIRECTS THAT:

5.A sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages in and for the State of Victoria who is requested to give effect to any such application.

THE COURT ORDERS THAT:

6.The Applicant Mother have sole parental responsibility for the care, welfare and development of the children X ELLSOM born in 2009 and Y ELLSOM born in 2011 ('the children').

7.The children live with the Applicant Mother.

THE COURT DECLARES THAT:

8.Pursuant to ss.7 and 11 of the Australian Passports Act2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the Respondent Father to enable the children of the relationship X ELLSOM (previously known as X ELLSOM-HANNEWELL) born in 2009 and Y ELLSOM (previously known as Y ELLSOM-HANNEWELL) born in 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

IT IS ORDERED BY THE COURT THAT:

9.The Applicant Mother of the children X ELLSOM (previously known as X ELLSOM-HANNEWELL) born in 2009 and Y ELLSOM (previously known as Y ELLSOM-HANNEWELL) born in 2011 be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Respondent Father.

10.All extant applications otherwise be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled ex tempore reasons.  These are the reasons why I have determined that the orders I make are in the children's best interests.  The Applicant Mother is Ms Ellsom (‘the Mother’) and the Respondent Father is Mr Hannewell (‘the Father’).  In this proceeding, where only the Mother appears before me, I am asked to make orders that provide for her to have sole parental responsibility of the children, X, who is now 12, and Y, who is now 10 (‘the children’).  In addition, the Mother seeks orders that will enable her to obtain a passport without the consent of the Father and also to change their name from a double-barrelled, hyphenated name containing the Father and the Mother's last names to a last name being only her name. 

   PROCEEDING UNDEFENDED

2. The first issue I have to determine is whether it is appropriate to proceed in the absence of the Father.  This hearing is known as an application for an undefended hearing.  I refer to and repeat my previous decision in the matter of Hiron & Tourle [2021] FCCA 1270 and repeat paragraphs [14] and [21]-[25].

   [14]An undefended hearing is a difficult matter.  It means that there is no assistance obtained from the other side.  All important aspects of the matter must be proved on admissible evidence.  Ordinarily in an undefended hearing it is expected and assumed that the other side that is not participating in the hearing will have had the opportunity to look at such evidence as has been provided to them.  Then the court can more readily proceed on the basis of the non appearing party having been provided with all of the evidence and draw the inference that party has chosen not to participate in the proceedings or to make any application. 

   [21]In the Family Court of Australia (another Court which also exercises jurisdiction under the Family Law Act 1975) rules exist to expedite resolution of disputes and those rules from the Family Law Rules 2004 include:

   Rule 1.04the main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case; and

   Rule 11.02(1)   If a step is taken after the time specified for taking the step by these rules, the regulations or a procedural order, the step is of no effect.

   Rule 11.02(2)   If a party does not comply with these rules, the regulations or a procedural order, the court may:

   …

   (c)       determine the case as if it were undefended.

   …

   [22]In Zane & Allan (2008) FLC ¶93-378 (‘Zane & Allan’) at [8] the majority observed:

   [8]The expression “undefended” is not defined, or otherwise explained in the Rules.  However the explanatory guide to the rules (which is expressly stated not to be part of the rules) explains the term “undefended basis” in the following way:

   “…The court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with the rule or order, as if a response had not been filed the court may make orders set out in the application on being satisfied by evidence that the orders should be made.” 

   [23]In the rules that apply to the Federal Circuit Court of Australia there is no reference to an “undefended” hearing. The Federal Circuit Court Rules 2001 provide in different language an equivalent to the main purpose rule of the Family Law Rules 2004 described above:

   Rule 1.03(1)The object of these rules is to assist the just, efficient and economical resolution of proceedings.

   [24]The Federal Circuit Court Rules 2001 at Division 13.1A deal with an order or judgement on default.  Those rules do not mention an undefended hearing and at first blush do not sit comfortably with the issues to be frequently determined in this court including the best interests of children and what are just and equitable orders to be made in regard to property alteration or settlement.

3. Hence, I have jurisdiction to hear this matter undefended or with only the involvement of the Mother. 

   BACKGROUND

4. A short summary of the circumstances is necessary.  The Mother lives in Australia and is aged 48.  The Father, as far as the Mother knows, lives in Country B and is aged 47.  Those parents have two children, X, now aged 12, and Y, now aged 10.  The parties commenced cohabitation in 2008 in Country B, and X was born during that relationship but on an occasion when the Mother had returned to Australia.

5. Following X's birth the Mother returned to Country B and for a short period resumed cohabitation with the Father.  The Mother was subjected to vicious and injurious family violence by the Father, and I will refer to the event that surrounded this time later in the judgment.  The Mother ended the relationship with the Father in or about 2010 by which stage she was pregnant with Y. 

6. Following the Country B equivalent of Children's Court Child Protection proceedings the Mother moved with the children from Country B to Australia shortly prior to Y's birth.  The Mother deposes, and I accept, that save for Facebook Messenger and email communication in late 2020 she has otherwise not had any contact with the Father.  The children have not had any contact with their Father since coming to Australia ten years ago. 

   SUFFICIENT SERVICE

7. It was in that context that in November 2020 the Mother, via the assistance of social media known as Facebook, contacted the Father in or around November 2020.  The Mother deposes, and I accept, that in that Facebook “Messenger” communication she first sought confirmation from him of his email address.  He provided the email to which I find the Mother has sent court documents.

8. After learning of the confirmation of the Father's email, the Mother sent him a letter which stated:

   Hello, (the Father)

   I am writing to obtain your permission to change the boys' surname.  The boys have told me they would like their name to be Ellsom, like mine.  I would like you to agree to this.  Could you please sign and date this letter to confirm you give your permission for this.

   Kind regards,

   (the Mother)

9. The letter provided a place for the Father to sign if he so consented.  Following sending an email with that letter attached to the address and I note that is the same email address which is referred to in the affidavits of service filed by the Mother to which I will come shortly, the Mother then, by Facebook Messenger, advised the Father:

   “I have sent you an email to your address above.”

10. On 26 November 2020 at 11.27 pm Australian Eastern Standard Time the Father responded:

    “I have received your email.  Quite a slap in the face.”

11. The Mother responded:

    “Can you please sign the letter and send it back.”

12. The Father responded:

    “I have replied to your email request.”

13. The Father then sent another email message where he complained about the Mother not responding to previous messages asking about the boys, and in that message he asked to contact the boys over Skype or a phone call.  He stated:

    “…I will not accept an email about it.  Your choice, Ms Ellsom.  I am not signing that paper you sent.”

14. The Father's email response asserted:

    Re: Letter requesting signature for claim to drop Hannewell from the last name of X and Y Ellsom-Hannewell.

    Please be advised that I have considered your request.

    In my estimation, the name "Ellsom" is in their last name, hyphenated with "Hannewell". They should be used to their last name as it sits.

    You have repeatedly ignored my numerous requests for pictures of the boys and for contact with X and Y.

    It is because of you that the boys have not been able to have contact with me. I have offered to help support the boys in the past to which I received no reply from you.

    At this time, I believe that the boys are using the name Ellsom-Hannewell, thus still using their mom's last name.

    Because of your refusal to allow me to have contact with my sons, I do not feel that you are entitled to my signature on this document.

    I hope that you will explain to X and Y that you are the reason for them not having contact with their Father, Grandmother and family here in Country B.

    I hope that you will take this opportunity to tell them that they are well loved and thought of often here in Country B, and that they have family here who hope to meet them one day, or at least have contact with them. •·

    You have taken them away from me and my family, with no thought or consideration. Having my last name in their name is the last vestige of identity I have with them, other than biological.

    Please give X and Y my love and let them know they are constantly in my thoughts and that of my family. We all love them dearly.

    Thank you for your letter, however at this time I do not wish to sign your document.

    Mr Hannewell

15. That exchange of communication demonstrates a number of things, but for present purposes the most important thing that it demonstrates is that the Mother, in fact, had the Father's correct email address in November 2020 and that when documents were sent to the Father at that email address, that he was able to read and respond to them.

16. The Mother issued proceedings in this Court where she sought orders similar to the orders that I have made in this matter.  She filed an initiating application, an affidavit in support of her application and a notice of risk. 

17. Subsequent to filing those documents the Mother emailed those documents to the Father on 7 February 2021 to the same email address.  The Mother again emailed the documents to the same email address on 19 May 2021.  Those documents show that the Mother's application was listed for hearing on Tuesday 15 June 2021 in the Federal Circuit Court of Australia at Melbourne. 

18. Notwithstanding that those documents had, by that court date of 15 June 2021, been sent to the Father's email address on two occasions, the Father did not contact the Mother or the court in regard to the hearing on 15 June 2021. 

19. On 15 June 2021, a registrar of this court made the following orders:

    1.Pursuant to Rule 6.14 of the Federal Circuit Court Rules 2001 the usual requirements for the Applicant to effect service on the Respondent are dispensed with.

    2.Service on the Respondent is to be effected by forwarding a sealed copy of the documents in Order 3 herein to the Respondent as follows:

    (a)To the Respondent’s usual email address being (the father’s email) and

    (b)       By private message on Facebook Messenger

    3.The Applicant must serve the following documents on the Respondent in accordance with Order 2:

    (a)       A sealed copy of these Orders;

    (b)       A sealed copy of the following documents:

    (i)        Initiating Application filed on 7 April 2021;

    (ii)       Affidavit of Ms Ellsom filed on 7 April 2021;

    (iii)Affidavit of Non-Filing of Section 60I Certificate filed on 7 April 2021;

    (iv)Notice of Child Abuse, Family Violence or Risk filed on 7 April 2021;

    (v)       Marriage, Families and Separation brochure;

    4.Service in accordance with Orders 2 and 3 is to be effected not later than 4pm on 17 June 2021.

    5.Upon service in accordance with these orders, the Applicant is to file evidence of such service.

    6.By no later than 4pm on 20 July 2021 the respondent father is to file a Response and an Affidavit in support.

    7.If the respondent father does not file a Response and Affidavit in accordance with the previous order, or appear at court by electronic communication on the next occasion, final orders may be made in his absence on an undefended basis.

    8.        The matter is listed to 23 July 2021 at 9.30am for possible undefended hearing.

20. It is clear and I infer that on 15 June 2021, the court was informed of the Father's email address.  As a consequence of being informed of the Father's email address, as is the usual efficient practice of my associates, an email was sent to the Mother and to the Father's email address and copied to lawyers and others which had attached to it a sealed copy of the order of Registrar Maitland of 15 June 2021. 

21. That order listed this hearing, this day.  It was open, in the absence of contact with the Father, for the Court to deal with the matter entirely on that first return date in circumstances where the Court was satisfied of service.  On this occasion and in this case, the Court proceeded cautiously and, firstly, made an order for substituted service via the Father’s known email address and via ‘Messenger’.

22. At Court on 15 June 2021, the Court had before it the Mother's affidavit of service of 11 June 2021 that set out that she had sent to the Father the relevant documents, together with the information brochure, as well as the email that my associate had sent to her on 7 June 2021 notifying her of the hearing being a Microsoft Teams video link hearing (and providing that link) which she emailed to the Father on 8 June 2021.  So by the time of the day after the 15 June 2021 hearing, the Father had had sent to him by the Court a sealed copy of the order of 15 June 2021 that notified him of the hearing on this day and also had sent to him by the Mother the application, affidavit, notice of child abuse, family violence or risk, court information brochure, on two different occasions:  7 April 2021 and 19 May 2021.

23. In addition to emailing the documents, the Mother also sent with attached scanned PDFs of all of those document described above via the system of Messenger within Facebook by which the Father had communicated with the Mother in the previous November 2020.  Hence the documents had been sent electronically on three occasions.  The Mother told me there was no email bounce back when she emailed the documents. 

24. I took sworn evidence from the Mother this day as to those Messenger communications.  The Mother told me and I accept, that within the Facebook system (and I regard her as having expertise within this as a regular Facebook user) that there is a system of messaging known as Messenger.  That system has within it a system whereby, when a document is accessed or a message is accessed by the recipient, the sender is sent a communication stating “seen”.  The Mother sent, by Messenger, the documents that she was required to send by the Registrar's order shortly before 17 June 2021, and she received the “seen” message back on 17 June 2021. 

25. In this day and age of email communication, particularly with the number of emails that can be sent, an issue is whether a party has actually had the opportunity to see and actually seen an email in their system.  Some people, particularly by operation of marketing via email, receive literally hundreds of emails a day. 

26. The issue is, by sending an email to a person, can the Court be satisfied that the person has received it? In this regard, I note section 69ZT of the Family Law Act 1975 (Cth) (‘the Family Law Act’) that provides that a large part of the usual rules of evidence, as provided in the Evidence Act 1995 (Cth) (‘the Evidence Act’), do not apply in child-related proceedings. 

27. This application is a child-related proceeding, however, there is also the aspect of service which, of itself, may or may not be regarded as a child-related proceedings.  I have proceeded on the basis that all of the proceedings, including determining adequacy of service for the purpose of determining whether the matter can proceed as an undefended hearing, is a child-related proceeding. 

28. By section 69ZT of the Family Law Act, section 79 of the Evidence Act, which is the prohibition against opinion evidence from a non-expert does not apply. I have had regard to section 144 of the Evidence Act, which provides as follows:

    Matters of common knowledge

    (1)Proof is not required about knowledge that is not reasonably open to question and is:

    (a)common knowledge in the locality in which the proceeding is being held or generally; or

    (b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.

    (2)      The judge may acquire knowledge of that kind in any way the judge thinks fit.

    (3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

    (4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 

1. Proof is not required of matters not reasonably open to question.  It also provides that I may acquire knowledge of that kind in any way I think fit.  It was my experience that an email sent to a valid email address where it was sent to an email within one of the major domains such as email address will not “bounce back”.

2. I find that if an email was sent to a valid email address on a widely based service such as “email address”, then in the event of there being any issue or problem with that message being received by the intended receiver, or problem with the service provider of the recipient's email system, there would be what is known as a bounce-back, that is an email message back to the sender demonstrating that such email was not received.  I find that I do not need proof of this matter as it is common knowledge and not reasonably open to question.  In this case, it is the Mother's evidence that following those emails, no contact was received from the Father and there was no bounce-back of any email messages. 

3. Further, I have made inquiries of my court and there was no bounce-back of the email messages attaching the Microsoft Teams link that were sent by my associate. 

4. Stephen Odgers Uniform Evidence Law (15^th edition) states at EA.144.60 as follows:

   It is important to emphasise that this provision only permits a court to take into account “knowledge that it is not reasonably open to question” – the other requirements imposed by the provision are additional to this fundamental requirement. As the Full Court of the Family Court observed in McGregor v McGregor (2012) 47 Fam LR 498; [2012] FamCAFC 69 at [74], “[i]t is not open to a judge to use s 144 of the Evidence Act to ‘inform’ him or herself of matters in respect of which reasonable minds might differ”.

   Examples of general common knowledge are:

   •“reliable clocks or timing devices may show slightly different times”

   •“asbestos is dangerous, and can be deadly”

   •the narrowness of a bicycle is known generally to the community

   •the aesthetic standards of balustrades

   •the nature of the “internet” and the “world wide web”

   •the internet is a “telegraphic” apparatus or system used to transmit and receive electronic communications

   •Australian courts and publish reasons for judgment and in the High Court, transcript of its proceedings, on various websites

   On the other hand, “the benefit to be derived by a child from sibling relationships” is not a matter of general common knowledge. An example of a matter of “common knowledge in the locality” would be, in a trial in a court sitting in Sydney, the location of the Harbour Bridge.

5. In Jones v Tobin [2002] FCA 1150 at [64] Branson J found:

   [64]Section 144 of the Evidence Act 1995 (Cth) ("the Evidence Act"), in my view, renders proof of the nature of the Internet and the World Wide Web unnecessary for the purposes of this case. The general nature of both the Internet and the World Wide Web is now well known. The Country B Human Rights Tribunal in Citron v Zündel (No. 4) (2002), 41 C.H.R.R. D/274 (C.H.R.T.) at [60] described the Internet as follows:

   "The Internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information. Two related sets of communication instructions, Transmission Control Protocol, (TCP) and Internet Protocol, (IP), govern how information will move through the system, defining addresses, routing systems, and all the regulation necessary to permit communication among users."

6. However, if I am wrong about the consequences of an email not bouncing back, I received evidence today from an expert who is the Infrastructure Solutions Team Manager with the Federal Court entities' IT department.  That expert told me that an email being sent to a valid email address of a domain such as “email address” and that email not “bouncing back” can be taken as a reliable indication that the email has in fact been received. 

7. In McGregor & McGregor (2012) FLC 93-507 when referring to section 144 the Full Court of the Family Court set out the sensible limitations upon the matters that do not require evidence under section 144. Section 69ZT of the Family Law Act means section 144 of the Evidence Act applies to children’s matters. 

8. On 19 July 2021, my associate sent the Microsoft Teams link with an invitation to this meeting on 18 July 2021 at 8.55am and has told me there was no bounce-back of that email.  Hence, I am satisfied that the Father has received abundant notice of these proceedings and of the allegations that the Mother makes in the proceedings.  He has had abundant notice of the proceedings and abundant notice of each court event, being today and of the 15 June 2021. 

9. It is in the public interest that court proceedings proceed efficiently and expeditiously. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 the court observed:

   [98]…Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.

10. These are serious matters relating to the welfare of two children.  They should not be unduly delayed, or delayed at all unless there is a good reason.  I find that the Father has had adequate notice and has chosen not to participate in the proceedings.  It may well be that he has chosen not to participate in the proceedings because of the nature of the relationship between he and the Mother.

    FAMILY VIOLENCE ALLEGATIONS

11. The circumstances of X's life with his Mother when his Father was in his life was extremely traumatic.  The Mother has deposed, and I accept, a very violent relationship between her and the Father where she was the victim of repeated serious family violence.  That family violence had tragic consequences for herself, for the Father and for X, and almost for Y.

12. The violence relating to the Father reached a crisis in 2010 when X was a baby.  The Country B equivalent of Child Protection intervened.  The Mother had been trying to separate from, and escape from, the Father because of the violence that he wreaked upon her. 

13. On one assault, and the Mother's recollection is not clear whether this assault was before or after the tragic events concerning X that I will come to, the Mother was seriously assaulted and injured and was battered to her face and received injuries to her ribs, to her hands and cuts and abrasions.  On this occasion, the Father had attended her premises as a result of what she regarded as stalking.  X was in her care at the time.  There were problems for her obtaining extended hospital treatment due to her not having appropriate health insurance, she not being a Country B citizen.  The Father was arrested, he was tried and the mother believes convicted of the serious assault on her and spent a number of months in jail.

14. However, these events were not the end of the nightmare for the Mother.  It transpires that the Children's Aid Society in Country B did not accept that the Mother had in fact separated and would remain separate from the Father and so protect X from family violence.  In those circumstances, it is unsurprising that X was removed from her care.  The Mother was advised that if the government department was successful in its application to the court, then it was likely that X would be placed as available for adoption and adopted.

15. The Mother opposed those proceedings in court, and over a period of five months was able to persuade the relevant Country B court that she had separated from the Father and that it was in the child's best interests that he be returned to her care.  These events only have to be referred to for the horror and trauma of that proceeding which followed upon the savage assault to be brought to mind. 

16. The Mother was then assisted to relocate to Australia by the same Children's Aid Society.  The Mother has thereafter lived peacefully in Australia and brought the children up and she tells me they are fine young men and I accept what she tells me.  The Mother's endurance of that violence and the court proceedings following, whilst pregnant with Y and fighting to have X returned to her care, can only be described as brave and heroic.

17. The end result of that was that Y was then born in Melbourne, a brother for X.  It appears that the last that the Mother has seen of the Father is limited contact with him during that Country B court case.  It is also the Mother's evidence (when I inquired of her today) that the Father's appearance in that court case only made things worse: not better from her perception.

18. In authorities in this Court in 1978, particularly the Full Court decision of Chapman & Palmer (1978) FLC ¶90-510 (‘Chapman & Palmer’), discussed what should be considered when an application to change a child's name is being heard.  I note there is no contradictor in these proceedings and statements of law in these reasons need to be read accordingly.

19. In Chapman & Palmer the Full Court said:

    …We believe that each such case should be approached in an even-handed manner with the object of making a decision that will promote the welfare of the child.

    To summarise, the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:

    (a)       the welfare of the child is the paramount consideration,

    (b)       the short and long term effects of any change in the child's surname,

    (c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

    (d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

    (e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

    (f)       The effect of frequent or random changes of name.

20. In Reynolds & Sherman (2015) FLC ¶93-659 (‘Reynolds & Sherman’) the Full Court stated that it was the Court's tentative view that an order dealing with the child's name falls within the broad terms of section 64B of the Family Law Act and is therefore a parenting order.  Reynolds & Sherman found that it is likely an error to rely upon the Chapman & Palmer principles after the amendments of the Family Law Act in 2006.  I recite paragraphs [53]-[55] of Reynolds & Sherman below:

    [53]The trial judge was not asked to consider whether any of the proposed orders would constitute a “parenting order”, although in her reasons she characterised part of the relief sought by the father as being “an injunction”. Given that the matter was not raised below, and given that we do not have the benefit of full argument, it is not proper to express a concluded view as to whether Order 2 was a “parenting order”. However, our tentative view is that an order dealing with a child’s name falls within the broad terms of s 64B(2)(i) and is therefore a “parenting order”.

    [54]If our tentative view is correct, her Honour was obliged to consider the matters in s 60CC, at least to the extent they were relevant. Her Honour did not do so, electing instead to apply authorities such as Chapman and Palmer (1978) FLC ¶90-510 and Beach and Stemmler (1979) FLC ¶90-692, which were decided prior to the 2006 amendments that introduced s 64(B)(2) in its present form.

    [55]But even if our tentative view is wrong, the child’s best interests were still a most important consideration, and some consideration of the relevant matters in s 60CC would therefore have been desirable…

21. Section 64B of the Family Law Act includes:

    (1)      A parenting order is:

    (a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

    (b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

    (2)      A parenting order may deal with one or more of the following:

    …

    (i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

22. In this case I find that an order relating to a child’s name is a parenting order, and hence I am obliged to apply, and am assisted by Part VII of the Family Law Act and, in particular, section 60CA. Hence, I am required to take into account the children's best interests as the paramount consideration. The primary considerations are the benefit of the children having a meaningful relationship with both of the children's parents and the need to protect the children from physical or psychological harm. In the event that there is a conflict between the benefit to the children of having a meaningful relationship and the need to protect them from harm, I am to apply greater weight to the safety/protection aspect. The matter of a meaningful relationship with the Father does not arise in these proceedings.

23. Additional considerations described in Part VII of the Family Law Act that are relevant in this case are as follows: 

24. I must consider any views expressed by the children.  The Mother has told the Father, and I accept as correct, that the children wish to share her name of ‘Ellsom’. 

25. I am required to take into account the nature of the children's relationship with each of their parents.  The practical reality is the children do not have any relationship at all with the Father.  Were they to do so, or there be any attempt for such a relationship to commence, would have a number of problematic factors. 

26. Most significantly, the Father is the person who has, on more than one occasion, been violent to the Mother and on at least one occasion seriously assaulted her in a most vicious fashion.  The tone of his email that I have referred to above does not demonstrate any remorse or insight into the effect that such actions would have had on the Mother and X.  Further, it is the Father's violence to the Mother that ended up with the circumstance where the Country B authorities found it necessary to separate X from his Mother, whilst a baby, for five months. 

27. I am required to take into account the extent to which each of the child's parents has taken, or failed to take, the opportunity to spend time with the children, participate in decisions and communicate with the children.  The Father asserts via his email and text messages, or Messenger messages, that he has attempted to communicate with the Mother about the children;  she denies that.  He may well have sent some email, or message or some inquiry, but he has not, on the evidence, done much about it, and he has chosen not to participate in these proceedings.

28. I am required to take into account the likely effect of any changes, on the children.  I take into account that the Mother wishes the children to have the same name as her and not to carry the name of the man who has beaten her and who was indirectly responsible for X being removed from her care when he was a baby.  I take into account that the children want this change.  In my view, this change will advance their welfare. 

29. I am required to take into account the attitude to the child and responsibilities of parenthood demonstrated by each of the child's parents.  The Father's violence to the Mother when X was a baby demonstrates an appalling attitude to the responsibilities of parenthood.  The Mother's heroic struggle to get away from the Father, survive extreme violence, contest the state of Country B, move to Australia and get on with a successful life raising the children demonstrates a more than appropriate attitude to the responsibilities of parenthood.  The Mother's attitude demonstrated should be commended in the strongest terms. 

30. I am required to take into account family violence and any family violence order.  I have referred to the family violence and the tragic impact this has had on the Mother, and on the children and, in particular, X's separation from his Mother as a baby. 

31. I must also to take into account any other factor or circumstance that the Court thinks relevant.  I take into account that at the time the Mother registered X's birth as Ellsom-Hannewell, she had at that time a hope that the Father's violent behaviour would change and that she may be able to have a life where he would play a role in the child's life.  Hence, in that circumstance it was appropriate, or at least not inappropriate, that the Father's name be joined to hers in the ubiquitous double-barrelling, hyphenating of names.

32. By the time Y's birth was registered the mother was living in Melbourne, and had escaped the Father and had managed to get X back from the Country B Child Protection Authorities.  She tells me, and I accept, that she wanted Y to have the same name as his brother X, and that was most reasonable in the circumstances.  Time has passed and the Father has not had any role in the children's lives. 

33. The Mother tells me, and I accept, that she has not yet explained to the children, or told them, about the trauma that she suffered at the hands of their Father, and she intends to be careful as to how and when, and the extent to which, she informs them of that.  She takes the view it would not be at this point be healthy for them to know of the details of the horror that she went through.  She is endeavouring to protect them from that. 

34. Taking into account all of those matters, including the assistance of the broad guidelines of the principles set out in the what I will call the pre-2006 authorities including Chapman & Palmer, I find that it is in the best interests of X and Y to have the same name as their Mother.  The major reason that I find that, taking into account all of the evidence and all of those provisions to which I have referred and all of the principles referred to, is that their Mother is the only parent who provides for them and provides care and love to them.

35. The name ‘Hannewell’ attached to their name in the hyphenated double-barrel would ordinarily signify some affection, or knowledge, or care, or support by that person's name.  In this case that person and the name is a matter of horror and grief for their Mother, and in the circumstances it is unnecessary that she be reminded of that on a day-to-day basis.  I note that whether the children wish to have a relationship with their Father in latter years will be a matter for them, and it is likely that there will be some curiosity about their connection to their Father and, indeed, to Country B.

36. However, changing their name so that it lines up with their Mother's will not interfere with or prevent such inquiries in the future if they wish to make them.  I find that it is in the best interests of the boys to have the same name as each other and to have the same name as their Mother because she is their sole carer and she has the sole parental responsibility of caring for them.  It is also in the circumstances of there being no practical, live connection or relationship between the boys and their Father. 

37. I do not make any finding about whether or not the Father has made any attempt, or any half-hearted or otherwise attempts, to have any connection with the boys, but the simple fact is that he has not had one.  I also take into account that this is not a matter of there being any risk of frequent changes of name.  The boys are 10 and 12, and this is the only change in their name.  I also note that the Mother could have, for all purposes, changed their names in any event, and it would only be official events, such as enrolling in school, where she needs a birth certificate or registration, and maybe for social security and like events, that she would need to “officially” change the boys' name.  In fact, she has been at liberty to change the boys' name as she saw fit, but not officially, up to this time, and I also take that into account. 

38. I have also been impressed by the demeanour and care of the Mother in giving evidence, and I also take into account that it is her view that it is in the boys' best interests to change their name to Ellsom, and I place some weight on her judgment about what is in the boys' best interests.  They are my reasons.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       3 August 2021