Gerald & Kenwood
[2013] FCCA 2038
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GERALD & KENWOOD | [2013] FCCA 2038 |
| Catchwords: FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – passports – change of name – where applicant seeks to change the surname of two children of the marriage – where uncertainty about original surname – where respondent cannot be found – best interests of the children – where there is a need to protect the children from family violence – Australian passport – issue of Australian passport – where one parent does not consent to issue of passport – travel – international travel – permission for children to travel internationally. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65Y Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28 |
| Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692 Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510 Whinney & Kelleher [2013] FCCA 1939 |
| Applicant: | MS GERALD |
| Respondent: | MR KENWOOD |
| File Number: | SYC 4693 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 29 November 2013 |
| Date of Last Submission: | 29 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Family Legal |
| Solicitors for the Respondent: | No appearance |
ORDERS
The Applicant is granted leave to proceed ex parte.
The Orders made on 18 November 2013 are discharged.
The Applicant mother is to have sole parental responsibility for the children of the marriage X born (omitted) 2007 and Y also born (omitted) 2007.
The children X born (omitted) 2007 and Y also born (omitted) 2007 are to live with the Applicant mother.
The children X and Y are to spend such time with the Respondent father as the parties shall agree.
The names of the children X born (omitted) 2007 and Y also born (omitted) 2007 are changed to X and Y respectively.
As provided by s.28 of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Applicant mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales to register the names of the children formerly known as X and Y as X and Y respectively.
The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the child formerly known as X as X.
The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the child formerly known as Y as Y.
The Applicant mother is permitted to take the children X born (omitted) 2007 and Y also born (omitted) 2007 out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975.
The children X born (omitted) 2007 and Y also born (omitted) 2007 are permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Applicant mother is permitted to apply for the issue of Australian passports to the children X and Y under the provisions of s.11(4)(b)(i) of the Australian Passports Act 2005.
IT IS NOTED that publication of this judgment under the pseudonym Gerald & Kenwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4693 of 2013
| MS GERALD |
Applicant
And
| MR KENWOOD |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother of six-year old twin children for interim and final orders relating to:
a)Parental responsibility;
b)Residence;
c)Time with the father;
d)Passports; and
e)Changing the children’s surnames.
The father cannot be found and the mother seeks orders ex parte. He has not attended court.
Background
The mother relies on her affidavits of 13 August and 7 November 2013, in which she sets out a comprehensive history of the relationship.
The parties were married on (omitted) 1988. They separated in about (omitted) 2007 and were divorced on 21 May 2012.
There are four children of the marriage, two of whom are adults, aged nineteen and twenty. The two children to whom the mother’s Application relates are X and Y, who were both born on (omitted) 2007. They both live with the mother.
The mother deposed that she left the relationship in May 2007 as a result of the father’s verbal and physical abuse directed to her. She also deposed that the father was often drunk and neglectful of the children. She is of the view that he is an alcoholic.
The father has not seen the children since late 2011 or early 2012, on the mother’s evidence, and has made no attempt to see them since then.
The mother does not know where the father is living, despite having made numerous inquiries, personally and through her solicitor. She has not had any communication with him since March 2013, when he spoke to her about her wish to obtain passports for the children.
Evidence
The mother gave oral evidence on 18 November 2013, in which she confirmed the truth of the evidence in her affidavits of 13 August and 7 November 2013.
The law to be applied in applications for parenting orders
Part VII of the Family Law Act 1975 (Cth) deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:
a)Ensuring children have the benefit of both parents having a meaningful involvement in their lives;
b)Protecting children from physical or psychological harm;
c)Ensure that they receive adequate and proper parenting; and
d)Ensuring that parents fulfil their duties and meet their responsibilities.
The principles underlying those objects are set out in s.60B(2) and include:
a)Children’s right to know and be cared for by both of their parents;
b)Children’s 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; and
c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development.
All of the principles in s.60B(2) are subject to their not being contrary to the children’s best interests.
Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child or children as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.
The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.
Where the Court does make an order providing for children’s parents to have equal shared parental responsibility for them, the Court must then consider the matters under s.65DAA relating to:
a)Equal time with each parent (s.65DAA(1)); and
b)Substantial and significant time with each parent (s.65DAA(2)).
All of these matters have been considered, insofar as they are relevant.
Conclusions
Whilst s.61DA(1) requires the Court to apply the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them, s.61DA(2) provides that the presumption does not apply in cases of:
a)Abuse of the child or another child who was a member of the parents’ family; or
b)Family violence.
In this case there is evidence from the mother of abuse and physical violence by the father against both her and the parties’ elder son, A. At paragraph [12] of her affidavit of 13 August 2013 the mother describes an incident in 2006:
In or around late 2006, when I was pregnant with the children[1], the Respondent tried to hit me in front of my elder son A who was around 13 or 14 years old during that time. A stood up to him and said words to the effect – “You touch her once more and you won’t know what hit you”. The Respondent then started to hit A and then me. A tried to push him away but he continued to hit A.[2]
[1] i.e. the two younger children the subject of the Application
[2] Affidavit of Ms Gerald 13.8.2013 at paragraph [12]
The mother also deposed:
The Respondent inflicted violence on me for the duration of the relationship. Approximately once a week I would be subject to physical abuse including punching, pushing, shoving and pulling. The children would often witness the violence.[3]
[3] Ibid at [13]
I am satisfied that the presumption of equal shared parental responsibility does not apply and I propose to order that the mother is to have sole parental responsibility for the children.
The best interests of the children are the paramount consideration.
Whilst it is a primary consideration under s.60CC(2)(a) that the Court must have regard to the benefit to the children of having a meaningful relationship with both of their parents, the Court is required by s.60CC(2A) to give greater weight to the consideration in paragraph (b) of that subsection, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
There is evidence, set out in paragraphs [18] and [19] above, of the children having been exposed to violence inflicted on their mother and elder brother. This is a matter that the Court must take very seriously.
There is no evidence of the children’s views, but they are still only six years old.
The evidence shows that the mother has always been the children’s primary caregiver and that they have little contact with their father. Presumably they have good relationships with their elder brother and sister, both of whom are now adults.
The father appears to have taken few opportunities to spend time with the children or communicate with them. There is evidence from the mother that he initially agreed to sign passport applications for the children but then denied to the Australian Passports Office that the signature on the documents was his, so the children do not have Australian passports. The mother deposes that he did so in order to make things hard for her.[4]
[4] Affidavit of Ms Gerald 13.8.2013 at [34]
The mother states that she has been the children’s primary caregiver and the father only pays child support in the sum of $7.00 per fortnight. It cannot be said on that evidence that the father is currently fulfilling his obligations to maintain the children.
In view of the father’s alcoholism and his tendency towards violence, it would not be at all in the children’s best interests to live with him or spend any significant time in his company without supervision.
The mother is, on her evidence, providing for the children’s physical, emotional and intellectual needs. The father does not appear to be, other than by way of paying child support in the sum of $7.00 per fortnight.
The mother’s attitude to the children and the responsibilities of parenthood is that she is the one who has always looked after the children and their elder brother and sister, as she sets out in her affidavit. The father’s involvement has been minimal and, where it has been characterised by violence, detrimental.
There is no evidence of any family violence order in force.
It is preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children. The matter has proceeded ex parte, as the father’s whereabouts are unknown. If he wishes to apply to vary or set aside any of the Orders, he will need to apply under Rule 16.05.
In my view, the best interests of the children clearly require that they should continue to live with their mother and only spend such time with their father as he and the mother agree.
Passports
The mother seeks an order that she should have leave to apply for or renew passports for the children X and Y without the father’s consent. She deposed in her affidavit that she had approached the father through their daughter B in about March 2013 to obtain his permission to obtain passports for the children. He initially agreed and signed the application forms. However, the mother deposed:
Shortly after, the passport office called the Respondent to verify he had signed the documents, however he lied and said that it was not him who had signed it. I was informed by the gentleman in the passport office that they had matched his signature to his passport and it’s the same but because he verbally said he did not sign the documents they couldn’t issue the passports for the children. Subsequently, B called the Respondent back to ask him why he is doing that because he is playing with the boys’ lives and obstructing their future. B advised me that the Respondent replied, “To make things hard on mum”.[5]
[5] Affidavit of Ms Gerald 13.8.2013 at [34]
Section 11 of the Australian Passports Act 2005 (Cth) sets out the circumstances in which an Australian passport may be issued to a child without the consent of one of the child’s parents. Subsection 11(1) provides:
The Minister must not issue an Australian passport to a child unless:
(a) each person who has parental responsibility for the child consents to the child travelling internationally; or
(b) an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.
Subsection 11(4) provides:
For the purposes of subsection (1), a reference to:
(a) a person consenting to a child travelling internationally includes a reference to a person consenting to the issue of an Australian passport to the child; or
(b) an order of a court permitting a child to travel internationally includes a reference to an order permitting:
(i) the issue of an Australian passport to the child; or
(ii) contact outside Australia between the child and another person.
The term parental responsibility is given a wide definition for the purposes of subsection 11(5) of the Act:
For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in subdivision D of Division 12 of Part VII of the Family Law act 1975); and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long-term or day-to-day care, welfare and development; or
(c) [repealed]
(d) the person is entitled to guardianship or custody of, or access to, the child under a law of the Commonwealth, a State or a Territory.
The Court has power to make an order permitting a child to be taken or sent outside Australia under s.65Y of the Family Law Act 1975:
(1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
Penalty: Imprisonment for 3 years.
(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).
The mother deposes in her affidavit that she wishes to obtain passports for the children so that they could go on a family holiday to Disneyland “or to (country omitted) to allow the children to see their cultural background and visit family”.[6] The mother’s proposal appears to be in conformity with the children’s best interests and I am satisfied that the mother should be permitted to take the children out of Australia for this purpose.
[6] Affidavit of Ms Gerald 13.8.2013 at [34]
An order will be made under s.65Y(2) permitting the mother to take the children out of Australia. This would also be an order under s.11(1)(b) of the Australian Passports Act and is therefore an order permitting the issue of an Australian passport to the children under the provisions of paragraph 11(4)(b)(i) of the Act.
Changing the children’s surnames
The mother is seeking an order permitting her to apply to the Registrar of Births, Deaths and Marriages to alter the surnames of the children X and Y without the consent of the father. The mother sets out her reasons for this proposal at paragraph [37] of her affidavit:
In or about mid 2013, I contacted the relevant authorities in (country omitted) to obtain the necessary process for the children to obtain Dual Citizenship. On my enquiries I was advised that the surname by which the Respondent and children have been known as, “Kenwood” does not exist and the name on the marriage documents in (country omitted) is “(omitted)”. This is the first time I have ever heard of the name “(omitted)”, but the name on the marriage certificate I have which I was given when the marriage took place is Kenwood. At this stage including the older children the identity of names is uncertain.[7]
[7] Affidavit of Ms Gerald 13.8.2013 at [37]
It is unexplained and the mother does not know why the father used a different surname. There is, at least, no doubt about the surname of Gerald.
In the recent decision of Whinney & Kelleher[8]I considered the legislation and the authorities relating to an ex parte application to change a child’s surname:
[8] [2013] FCCA 1939
12 . When the court is considering whether or not to change the surname of a child, the court is guided by a number of authorities, such as Chapman & Palmer[9] and Beach & Stemmler[10] to consider a number of factors, such as:
[9] (1978) 4 Fam LR 462; FLC 90-510
[10] (1979) 5 Fam LR Note 13; FLC 90-692
(a) the best interests of the child;
(b) any embarrassment likely to be experienced by the child if the child’s name is different from that of the parent with whom the child normally lives;
(c) any confusion of identity that may arise for the child if the child’s name is or is not changed;
(d) the amount of contact that the other parent has had with the child; and
(e) the degree of identification the child has with each parent.
13. The applicable legislation in New South Wales to deal with a change of name is the Births, Deaths and MarriagesRegistration Act 1995 (NSW).
14. Section 22 of that Act provides:
(1) If there is a dispute between parents about a child’s name, either parent may apply to the District Court for a resolution of the dispute.
(2) On an application under subsection (1), the District Court may:
(a) resolve the dispute about the child’s name as the Court considers appropriate; and
(b) order the Registrar to register the child’s name in a form specified in the order.
(3) If any court (including any court of another State or the Commonwealth) resolves a dispute about a child’s name, the court may order the Registrar to register the child’s name in a form specified in the order.
15. Thus, it can be seen that this Court, being a court of the Commonwealth, may, under s. 22(3) of the Act, order the Registrar of Births, Deaths and Marriages in New South Wales to register the child’s name.
16. Section 28 of the Births, Deaths and Marriages Act also provides for registration of a change of a child’s name in similar terms to s.22(3). The section says, relevantly:
(3) An application for registration of a change of a child’s name may be made by one parent if:
…
(c) a court approves the proposed change of name.
…
(5) If any court (including any court of another State or the Commonwealth) approves a proposed change of name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.
17. Where a court makes an order changing the surname of a child, it is not necessary to order the other parent to sign any documents. It is neither necessary nor appropriate to empower a Registrar of the court to sign any documents on the other parent’s behalf. The court itself is given the power to order the Registrar of Births, Deaths and Marriages to register the child’s name.[11]
[11] Whinney & Kelleher [2013] FCCA 1939 at [12]-[17]
I am satisfied that it is in the children’s best interests to change their surnames to the mother’s surname of Gerald. This will permit them to identify with their mother, who is their primary caregiver. The evidence shows that the children have had very little contact with the father in recent years and there are concerns about his drinking and use of violence, to which I have referred above.
Other Orders Sought
The mother also seeks an injunctive order restraining the parties from “abusing, insulting, belittling or otherwise denigrating the other party or the other party’s family to, with or in the presence or hearing of the child[ren] and from permitting any other person to do so”.
In my view, as these orders are being sought ex parte, there seems to be very little utility in making such an order.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 29 November 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Standing
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