Gimondi & Kirchner
[2024] FedCFamC1F 344
•26 April 2024
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.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
This matter comes to Court today to finalise the parenting arrangements for the parties' child, X, aged six years.
The father, Mr Gimondi, commenced proceedings on 17 September 2019 in the Family Court of Western Australia by way of an Application for Final Orders, in which he sought orders for equal shared parental responsibility, that the child, X, live with the mother and spend time with the father for specified periods.
On 23 March 2024, the father's lawyer filed a Notice of Discontinuance with respect to that application.
By way of an Amended Response to Application for Final Orders filed 16 April 2024, the respondent mother, Ms Kirchner, seeks orders that she have sole parental responsibility and that X live with her. In addition, she seeks orders that she be permitted to change X's surname from “Gimondi” to “Kirchner”.
The orders sought by the mother are supported by the Independent Children's Lawyer (“ICL”), save that reservations are expressed by the ICL as to whether or not a change of surname is in X's best interests. Accordingly, that part of the mother's application is opposed.
In light of the notice that was filed on behalf of the father, and given that the matter had been listed for a five-day hearing to commence on 13 May 2024, I called the matter on for mention on 26 March 2024. At that mention hearing, the father's lawyer confirmed his client sought to discontinue the proceedings. Accordingly, I granted leave then for the father to withdraw his application.
The mother, who represents herself, confirmed she wished to press her applications before the Court. It was in those circumstances that I listed the matter for a one-day hearing and granted the mother leave to proceed with her application on an undefended basis. At the time I made that order, the father was represented by his lawyer. Accordingly, I am satisfied that the father has been afforded procedural fairness; he has had notice of this hearing and of the orders sought by the mother.
MATERIAL RELIED UPON
The material relied upon by the mother is as follows:
·Amended Response to Application for Final Orders filed 16 April 2024; and
·Trial affidavit of the mother filed 16 April 2024.
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.
Today, the mother seeks parenting orders in the terms of her Amended Response to Application for Final Orders, filed 16 April 2024. Although that response raises issues as to costs, I am informed by the mother that she does not seek to press that part of her application.
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.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the child's best interests, and reasonably practicable for them, to spend equal time or substantial and significant time with each parent.
In circumstances where the mother's unchallenged evidence is that she and the child have been subjected to significant family violence at the hands of the father, I am satisfied that the presumption in favour of equal shared parental responsibility is rebutted.
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 CONSIDERATIONS
Primary 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.
Nonetheless, Mr B observes that in relation to those incidents, the father is noted to have sought to minimise the seriousness of the statements made by him on that occasion.
Those observations of Mr B accord with the observations made by Dr C in his assessment of the father conducted in 2020.
In conclusion, Mr B made the following observation as to the father's account of the family violence and his insight in relation to his own behaviour. At [64] of the Family Report, Mr B observed as follows:-
The family violence allegations in this matter are significant with some of the most potent forms of psychological harm alleged to have been perpetrated in the forms of threats to kill, not only [the mother] but also [X] by [the father]. [The father]'s presentation during the assessment is a mixture of accountability and insightfulness, minimisation and deflection. [The father]'s attendance to a Men's Behavioural Change Program will have provided an opportunity for him to recognise his actions as harmful, which he does, and should have also provided an opportunity to recognise how family violence continues to impact on family’s long after the actual incident has occurred. While he accepts the responsibility of his actions as being harmful to [the mother], and is insightful in being able to recognise the differences he can make in managing his own behaviours, he deflected the potency of the alleged family violence and minimised what occurred. [The father] presented with a shifted narrative from his admission of fault in [Dr C]’s report dated 26 May 2020, to that of a misunderstanding of communication. This is concerning as it does not show a pattern of understanding that is demonstrative of sustainable change in his attitude towards family violence.
Those sentiments echo the observations of Dr C in his report. In the concluding paragraph of his report, dated 26 May 2020, Dr C notes of the father's presentation as follows:-
[The father] appears to have very little insight into the impact of his threatening and intimidating behaviour on [the mother] and he justifies his behaviour on the grounds that he never intended to act on these threats.
Having regard to the independent evidence of both Dr C, who conducted the psychiatric assessment of the parties, and Mr B, the Family Report Writer, I am well satisfied that there is a need to protect X from physical and psychological harm in the father's care. I am satisfied that there is a risk of X being exposed to family violence by the father.
Additional considerations
I now turn to the additional considerations as set out in section 60CC(3) of the Act.
Firstly, in circumstances where X has no knowledge that the applicant is her father, and further, having regard to her age and maturity, I am satisfied that any views expressed by her are not relevant or helpful in these proceedings.
As to the nature of X’s relationship with her parents and any other persons. the evidence of the mother and Mr B indicates that X has a secure, loving and close relationship with the mother and the mother's partner, Mr D, whom she considers and acknowledges to be a father to her, and to her younger siblings.
I am satisfied that X has no ongoing relationship with the father. As I have already noted she has not spent time with him or communicated with him since the middle of 2023.
The next consideration relates to the extent to which each of X's parents have taken, or failed to take, the opportunity to participate in making decisions regarding her care or to spend time with her. The mother has been active and committed to ensuring that all of X's needs have been met. She has been X's sole carer since she was born.
The father has not pursued his application for time with X and has had no engagement with her since mid-2023.
The next consideration is the likely effect of any changes in the child's circumstances. I do not propose to make any orders which will have the effect of changing X's settled and secure care arrangements.
As to the capacity of each of the child's parents to provide for X's needs, including emotional and intellectual needs, the weight of the evidence supports a finding that the mother has demonstrated a strong commitment to X's care. X's physical, emotional and intellectual needs have been met by the mother, who has acted protectively towards her at every stage of her development.
Having regard to all of those matters, I am well satisfied that the orders sought by the mother and the Independent Children's Lawyer that the mother have sole parental responsibility for making decisions regarding X's long-term care, welfare and development, are in X's best interests.
An order in those terms reflects the reality of X's world. The mother has been the person who has made all of those decisions for almost all of her life. There is no reason that those arrangements ought be disrupted, and further, in circumstances where the father has withdrawn from these proceedings, there can be no benefit to X in making an order other than that the mother have sole parental responsibility. Accordingly, I will make an order in those terms.
Similarly, I will make orders as sought by the mother and the ICL that X live with the mother. Again, that reflects X's lived experience. She is settled and secure in the home with the mother and Mr D.
Orders are sought by the Independent Children's Lawyer that the mother be at liberty to provide a copy of these orders to X's school and treating health practitioners. The mother does not oppose those orders. I consider such orders to be in X's best interests. They will ensure that all of the people charged with the responsibility of attending to her educational and medical needs are well apprised of X's family history and circumstances and will be guided by that history in their care of X. Accordingly, I will make orders in those terms.
The ICL also seeks an order that the mother attend upon and enrol in a course known as “Tuning into Kids Program”. That issue was raised by Mr B in his Family Report at [69], in which he made observations as to the potential of X being exposed to the mother's views and her fears in relation to the father. What Mr B reports in relation to those matters is as follows:-
[The mother] has attempted to protect [X] from being exposed to family violence and mitigate the impact upon her. Unfortunately it appears that she has been unsuccessful in doing so as indicated by both her own comments of placing the responsibility of her saddened presentation to something that [the father] is responsible for, and in [X]'s clearly articulated comments that [the father] "tried to hurt us and mum told me this". This could be considered as a deliberate attempt to influence [X] negatively towards [the father]. What is more likely though, is that [the mother] has attempted to use her limited emotional tools to guide [X] on the topic of [the father]'s alleged family violence, ineptly resulting in an inadvertent alignment away from [the father]. [The mother] may benefit from attendance to a parenting Program such as Tuning into Kids that will help her to understand how to separate her own experiences of family violence from the emotions of what she presents to [X].
The mother submitted that she did not consider it necessary to attend such a program. She pointed to the fact that she is engaged with a psychologist. She also submitted that, in circumstances where she is responsible for the care of three young children, she has limited capacity to undertake such a course.
Whilst I note the challenges and the burden that will be placed upon the mother in undertaking that course, I do consider that it would be in X's best interests were that program to be undertaken.
The reality is that the evidence of Mr B indicates that X has been exposed to the mother's views and fears in relation to the father. X has made a number of comments to Mr B, to her treating doctor and at the Family Contact Centre that would indicate she has been exposed to those views. They are views from which she ought be protected.
The program recommended by Mr B is designed to support and assist the mother in relation to those matters, and therefore I consider that it would be in X's best interests if that course be undertaken. Accordingly, I will make orders in those terms.
The next issue that arises is the mother's application seeking permission to change X's surname from “Gimondi” to “Kirchner”. That application is not supported by the Independent Children's Lawyer, albeit sensibly, concessions were made on behalf of the Independent Children's Lawyer as to the potential benefits to X of such change being effected.
The position put by the mother is that, again, a change of surname will reflect the reality of X's life. She lives in a household where all other members of her family bear the name “Kirchner”. The only father figure X has ever known is the mother's partner, Mr D. X has two younger siblings who bear that surname.
The mother expressed concern that as X has now commenced school and is learning to read and write, she will begin to question and may well be impacted upon learning that her surname, as recorded in the birth register, is different to that of her other family members.
There is much force in that submission. The question of a change of surname was considered by Mr B at [72] of the Family Report. He noted the mother's proposal and observed that if X is to have a change of name, it could essentially result in all connection to her biological father being erased, and unless there are sufficient therapeutic supports ensuring her awareness of the father, there is a risk that he have no role in the future.
Of course, at the time Mr B made those observations, the father was the applicant in these proceedings and was actively pursuing a relationship with X. That position has changed. The father has withdrawn from the proceedings. He does not pursue a relationship with X and will have no active role in her life in the future.
The father is named on X's birth certificate as her biological father. Accordingly, there will always be that connection to him.
As with all decisions in relation to children, in the determination of this issue the best interests of X is the paramount consideration. That this is so, was confirmed in the decision of Chapman & Palmer (1978) FLC 90-510. In that decision, the Court identified a range of factors that may be relevant to the determination of an application to change name.
Those considerations included:-
·The best interests of the child;
·The short and long-term effects of any change in the child's surname;
·Any embarrassment likely to be experienced by the child if her name is different from that of the parent with custody or care and control. Clearly, that is a relevant consideration in this matter as X's surname is different from that of her mother and the other members of her immediate family; and
·Any confusion of identity which may arise for the child if his or her name is changed or is not changed. Again, that is a live issue in this matter, particularly in circumstances where currently X is unaware that Mr D is not her biological father.
The mother submits, and I accept, that it is her intention with Mr D to inform X as to the true identity of her biological father in the future and with the support of a psychologist. It would be most unfortunate for X were she to learn of the existence of Mr Gimondi as her biological father prior to being informed of that fact by the mother. Accordingly, I am satisfied that the potential for confusion for X in having a different surname to that of her mother, her brothers and Mr D is a significant factor that weighs heavily in this matter.
I also have close regard to the decision taken by Mr Gimondi to withdraw from the proceedings. Again, that is a factor that weighs heavily, in my view, in support of a change of surname.
I am, having regard to all of those factors, well satisfied that such change of surname is in X's best interests. I am satisfied that the change of surname will reflect the realities of X's world insofar as her social and family networks are concerned. It will reinforce her connection with the mother and Mr D, whom the father acknowledged has been the primary paternal figure in X's world. That this is so is recorded in Mr Bs report. Therefore, I will make orders permitting the change of name.
As I have noted, the mother does not press her application for costs. Accordingly, I will make orders for the discharge of the Independent Children's Lawyer and will otherwise dismiss the applications that are before the Court.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 22 May 2024
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