Gimondi & Kirchner

Case [2024] FedCFamC1F 344

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gimondi & Kirchner [2024] FedCFamC1F 344

File number(s): MLC 13848 of 2019
Judgment of: JOHNS J
Date of judgment: 26 April 2024
Catchwords:

FAMILY LAW – PARENTING – best interests – undefended hearing – where the father withdrew from proceedings prior to the final hearing– where there are allegations of family violence – where the mother sought sole parental responsibility and live with orders – where the child has had only had limited and sporadic time with the father since the parties separated in 2017 – where the child had not had electronic communication with the father since June 2023 – where the ICL supports the mother’s application – order that the mother have sole parental responsibility – child live with the mother – no orders for time with the father

FAMILY LAW – PARENTING – change of name – where the mother seeks to change the child’s surname to that of her own – where the child has lived with her mother and step-father since 2018 – where the child has a different surname to all the members of her household, including her half-brothers – where the child is unaware that the step‑father is not her biological father – where the step‑father is seen as her paternal figure – where the child socially identifies with the surname of the mother – change of name permitted  
Legislation:

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 60B(1) & (2), 60CA, 60CC(2) & (3), 61DAA, 64B

Cases cited:

Chapman & Palmer (1978) FLC 90-510

Donnell & Dovey (2010) FLC 93-428

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Division: Division 1 First Instance
Number of paragraphs: 79
Date of hearing: 26 April 2024
Place: Melbourne
Counsel for the Applicant: No Appearance
Solicitor for the Applicant: No Appearance
Counsel for the Respondent: Litigant in Person
Solicitor for the Respondent: Litigant in Person
Counsel for the Independent Children's Lawyer: Ms Brennan
Solicitor for the Independent Children's Lawyer: Inclusive Family Law & Mediation

ORDERS

MLC13848 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GIMONDI

Applicant
AND:

MS KIRCHNER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

26 APRIL 2024

THE COURT ORDERS THAT:

1.That the mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the child X GIMONDI born 2017 (“X”).

2.That X live with the mother.

3.That the mother be at liberty to provide a copy of these Orders and Reasons for Judgment to:

(a)Any school or educational institution X is enrolled in or attends;

(b)Any medical practitioner or allied health professional involved with the care of X.

4.That the mother, as soon as practical, enrol in and subsequently complete a Tuning into Kids Program.

5.That the child previously known as X GIMONDI born 2017, now be known as X KIRCHNER

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Details
AGLC
Gimondi & Kirchner [2024] FedCFamC1F 344
Case
[2024] FedCFamC1F 344
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court heard a parenting case involving Mr. Gimondi and Ms. Kirchner. The central dispute revolved around the allocation of parental responsibility and living arrangements for their child, X, born in 2017. The mother sought sole parental responsibility and for X to live with her, while the father, who had withdrawn from the proceedings, did not contest these claims. The court was also tasked with deciding whether to allow a change in the child's surname from Gimondi to Kirchner.

The legal issues before the court included whether it was in X's best interests to have a meaningful relationship with both parents, given the father's lack of involvement and the mother's allegations of family violence. Additionally, the court had to consider whether the child's best interests would be served by changing her surname to that of her mother. The court gave significant weight to the mother's unchallenged evidence of family violence and the father's withdrawal from the proceedings, which indicated a lack of meaningful relationship between the father and X.

The court found that it would be contrary to X's best interests to establish a meaningful relationship with the father, given his withdrawal from both the proceedings and X's life. The court also noted the mother's evidence of family violence and determined that it was in the child's best interests to protect her from further exposure to such harm. Consequently, the court ordered that the mother have sole parental responsibility for X and that X live with her. The court also permitted the change of X's surname to Kirchner, considering it aligned with the child's social identity and her living situation with the mother and her step-father.

The final orders included granting the mother sole parental responsibility, directing X to live with her, permitting the change of X's surname to Kirchner, and discharging the Independent Children's Lawyer's appointment. The court emphasized the importance of the mother enrolling in and completing a Tuning into Kids Program to support her parenting skills.

Orders

Orders of the court

MLC13848 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GIMONDI

Applicant

AND:

MS KIRCHNER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

26 APRIL 2024

THE COURT ORDERS THAT:

1. That the mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the child X GIMONDI born 2017 (“X”).

2. That X live with the mother.

3. That the mother be at liberty to provide a copy of these Orders and Reasons for Judgment to:

(a) Any school or educational institution X is enrolled in or attends;

(b) Any medical practitioner or allied health professional involved with the care of X.

4. That the mother, as soon as practical, enrol in and subsequently complete a Tuning into Kids Program.

5. That the child previously known as X GIMONDI born 2017, now be known as X KIRCHNER.

6. The mother apply to the Western Australian Registry of Births Deaths and Marriages to register the change of the child’s name, in accordance with Order 5 hereof, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

7. All extant applications be and are hereby dismissed.

8. The appointment of the ICL be discharged.

9. Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

AND THE COURT NOTES

A. Tuning into Kids Programs are available online and at minimal (if any) cost to participants through organisations such as Anglicare, Relationships Australia and Family Life.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Background

Background to the litigation

The Independent Children's Lawyer relies upon:·The Outline of Case Document filed 23 April 2024;·The Family Report prepared by Mr B dated 16 August 2023; and·The report of Dr C dated 26 May 2020 which is annexed to the affidavit of the father filed 22 June 2023, it being annexure MG1 to that affidavit.BACKGROUND By way of background I note the following. The mother is aged 36 years and deposes to being a homemaker. She currently resides in Victoria and is the primary carer for the parties' child, X. The mother has re-partnered and is married to Mr D, with whom she has lived since 2018. Together they have two children, twin boys, who are aged almost three years. The father is aged 34 years and is employed as a tradesperson. He currently resides in Western Australia and works on a fly in/fly out basis. At the time of this hearing, X lived with the mother and had not spent time with the father since May 2023. The parties commenced a relationship in 2016 whilst both were residing in Western Australia. The mother and the father have never lived together. In 2017, the child X was born. Shortly after her birth, the parties ended their relationship. The mother deposes that she experienced significant family violence at the hands of the father, including, but not limited to, verbal abuse, physical abuse, threats to kill and stalking. One example given by the mother as to the family violence experienced by her relates to an incident that occurred in late 2017, when she and X were travelling with the father in his motor vehicle. On that occasion, the mother deposes that the father threatened to drive into a lamp post. She deposes that at the time the father was driving at 100 kilometres per hour in a 60 kilometre zone. The mother also deposes that the father made threats to kill X on various occasions. It is as a result of such conduct that the mother relocated to Victoria with X in 2018. Since that time, she has continued to be X’s primary carer. In mid-2018, the mother obtained a family violence intervention order against the father. That order expired in mid-2021. The mother did not seek an extension of that order, in circumstances where there were no breaches of the order. Since the separation, X has lived with the mother and has spent only very limited and sporadic time with the father. On 10 June 2020, interim orders were made by consent permitting the father to spend supervised time with X on four occasions per year. At the time, the nominated contact service, located in Victoria, had suspended their in-person services due to the COVID-19 pandemic. As a result, due to interstate border restrictions arising from the pandemic, there was a delay in the father's supervised time commencing. Notwithstanding that the border restrictions were subsequently lifted, the mother deposes that since those orders were made, the father has spent time with X on only two occasions, being 6 March 2023 and 15 May 2023. The mother further deposes that the father has not had electronic communication with X since 30 June 2023.

Evidence

Evidence Before The Court

The ICL seeks orders in the terms of the Outline of Case Document filed 23 April 2024. The minute of order sought by the ICL is Exhibit ICL1.THE EVIDENCE In determining this matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:- ·The nature of the cause of action or defence; ·The nature of the subject matter of the proceeding; and ·The gravity of the matters alleged. I have read all documents upon which the parties have relied. In what follows, statements of fact constitute findings of fact. In determining the matter, I have had regard to all of the evidence. I have carefully considered the matter, and in making findings to the requisite standard I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.LEGAL PRINCIPLES Section 60B(1) of the Family Law Act1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act to ensure that the best interests of the children are met. Section 60B(2) of the Act sets out the principles underlying those objects. Those principles include:- ·That children have the right to know and be cared for by both their parents; ·That children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents; ·That parents jointly share duties and responsibilities concerning the care, welfare and development of their children;·That parents should agree about the future parenting of their children; and ·That children have a right to enjoy their culture. The mother seeks parenting orders as defined by section 64B of the Act, that is, she seeks orders relating to with whom X is to live. In deciding what orders are appropriate in a particular case, the Court must regard the best interests of the child as the paramount consideration. That this is so, is set out in section 60CA of the Act. Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. The Court must give greater weight to the necessity to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence. This is provided for in section 60CC(2A) of the Act. Otherwise, there is no requirement for any single consideration to be afforded greater weight than others. Ultimately the weight to be afforded to each of the considerations is a matter dependent upon the unique circumstances of each case. That this is so, was confirmed by the Full Court in the decision of Donnell & Dovey (2010) FLC 93-428 at [103]. There is a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility. That presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Further, given the father's withdrawal from these proceedings and X's life, I am satisfied that it would be contrary to her best interests to make orders for equal shared parental responsibility. As a result, I need not consider the matters raised by section 65DAA of the Act.SECTION 60CC CONSIDERATIONSPrimary considerations Turning to the section 60CC(2) considerations, the first of those is set out at subsection (a) and that is the benefit to the child of having a meaningful relationship with both of the child's parents. Ordinarily, it is in a child's best interests to have a meaningful relationship with both parents. The question of what is a “meaningful relationship” was considered by Brown J in the decision of Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child. Those factors were taken into account and considered by the Full Court in the decision of McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, and I particularly refer to [119] to [122] of that decision. The reality is that X has not spent time with the father for almost a year and has not communicated with him since June 2023. Although the father is the applicant in the proceedings, it is evident by his decision not to participate in the final hearing that he does not seek to pursue a meaningful relationship with X. Accordingly, I am satisfied that there is little utility in the Court attempting to frame orders for the father to spend time and communicate with X. The next primary consideration set out at subsection 60CC(2)(b) is the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As detailed earlier, the mother's unchallenged evidence, which I accept, is that X has been exposed to significant family violence perpetrated by the father against the mother and X. The issue of family violence was considered by Mr B in the Family Report prepared by him dated 16 August 2023. In the context of the preparation of that report, Mr B raised with the father the mother's allegations of family violence. The father did acknowledge some instances of family violence in the context of those interviews. For example, at paragraph [33] of the Family Report, Mr B recounts the father's acknowledgement of an incident where he refused to permit the mother to leave the family home in her car, and that he sat behind the vehicle in order to prevent her exiting the home. The father also conceded that, on that occasion, when the mother arrived at the home, she observed the father hitting his steering wheel with a baseball bat and that she removed the bat from him and then attempted to leave in her motor vehicle. The father also provided limited acceptance that he had made threats to kill in relation to an instance where he concedes that he told the mother that he would run into a pole and kill them all. That instance is referred to by Mr B at [35] of his report.