Godfrey and Hampton and Anor

FAMILY COURT OF AUSTRALIA

GODFREY & HAMPTON AND ANOR

[2009] FamCA 717

FAMILY LAW – CHILDREN – With whom the child spends time – Supervision of the Father – Non-compliance with supervision order rendering it meaningless – No forthcoming contravention applications of the Mother – Discharge of requirement for supervision FAMILY LAW – CHILDREN – Change of the child’s surname – Application for birth certificate and passport to reflect surname used by child – Application acceded to – Not an attempt to alienate the Father FAMILY LAW – CHILDREN –Taking the child on holidays overseas – Need for paternal grandfather to apply to the courts for permission – Maternal grandfather at liberty to travel with the child – Father too lacking in stability to travel alone with the child – Passport to be released to the Mother FAMILY LAW – CHILDREN – Parental responsibility – Application of the Mother for sole parental responsibility – Father continually refusing to cooperate – Sole parental responsibility granted to the Mother FAMILY LAW – CHILDREN – Time spent with Father – Where child lacks stability – Time reduced
Godfrey & Hampton [2002] FamCA 983
APPLICANT:	Ms Godfrey

FIRST RESPONDENT:

Mr Hampton

SECOND RESPONDENT:

Mr Godfrey

FILE NUMBER:

SYF

6752

1998

DATE DELIVERED:

15 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Barry J

HEARING DATE:

6 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mara of Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT:

Adamson Solicitors

SOLICITORS FOR THE FIRST RESPONDENT

The First Respondent Father appeared in person

SOLICITOR FOR THE SECOND

RESPONDENT:

The Second Respondent Maternal Grandfather appeared in person

Orders

IT IS ORDERED THAT:

The child, J HAMPTON (ALSO KNOWN AS J GODFREY) born … May 1997, live with the Mother.
All previous orders be vacated.
The Mother have sole responsibility for the long term and short term care, welfare and development of the child.
The Mother be responsible for choosing the child’s school and the child is to be enrolled as “J GODFREY” and that all parties be restrained from using the name J HAMPTON or variant on any of the child’s clothes, school books or other property that may come into contact with school staff or contemporaries of the child at the school where the child may attend.
That the within Orders hereby authorise the school/s attended by the said child to provide to the Father, upon his request and at his cost, copies of school reports, school newsletters, applications for class photographs and the like AND FURTHER to provide information to the Father in relation to the said child’s educational and social progress.
That the within Orders hereby authorise any medical and/or allied health professional consulted by the said child to provide to the Father, upon his request and at his cost, copies of documents and/or information in relation to the said child’s health and welfare.
The Mother and Father to keep the other informed in writing as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to each party.
The Father to spend time with the child from 6.30 pm Friday until 7.30 pm Sunday each alternate weekend with the Father to return the child to the Mother’s residence at the conclusion of each such period.
The child spend time with the Maternal Grandfather in a four (4) weekly cycle during any school term as follows:
a.in week 1 from after school Tuesday until the commencement of school the following day;
b.provided week 1 is not a weekend when the Father is spending time with the child pursuant to these Orders from after school Friday to the commencement of school on Monday;
c.in week 3 from after school Tuesday until the commencement of school the following day.
Providing that the above cycle be suspended from the last day of the school term and recommence on the first week of the next school term. Thus if for example the last week of term was a “Week 1” and the intervening school holiday period was for two (2) weeks then the first week of the next term would be deemed to be “Week 4” except that in the event that scheduled, gazetted or optional school events outside of normal school hours such as school camps and excursions that require overnight absence occur during either the Father’s or the Maternal Grandfather’s contact times, then such contact is deemed to be suspended with no make up provisions.
The child is to spend the following periods with each of the parties during school holidays:
a.   for the end of term 1 school holidays, nominally the “April school holidays” equally with the Father and Mother with the Father having the first half in odd numbered years and the Mother the first half in even numbered years;
b.   for the end of term 2 school holidays in June/July holidays with the Maternal Grandfather for the first seven (7) days of the holidays with the remainder split equally between the Mother and Father. The Father shall spend time with the child for the first half of the remaining days in odd numbered years and the Mother shall spend time with the child the first half of the remaining days in even numbered years;
c.   for the end of term 3 school holidays, the September/October holidays with the Father and Mother with the Father having the first half of the holidays in even numbered years and the Mother having the first half in even numbered years.
For the end of term 4 holidays, the Christmas holidays:
a.   the child is to spend five (5) hours each Christmas Day with the Maternal Grandfather as agreed with the Mother or the Father, whoever is caring for the child at that time as the case may be and, in the absence of agreement between them from 11.30 am and 4.30 pm;
b.   with the Maternal Grandfather for two (2) continuous weeks which in the absence of agreement shall be the last two (2) weeks of those holidays with the remainder being split equally between the Mother and Father. The Father shall have the first half of the school holidays in even years and the Mother the first half in odd years;
c.   notwithstanding the Orders above the Mother shall spend time with the child between 4.30 pm on Christmas Day and 4.30 pm on Boxing Day on even years and the Father having a period between 4.30 pm on Christmas Day and 4.30 pm on Boxing Day on odd numbered years. This time shall be deemed to be one day’s entitlement in calculating each parent’s total entitlement;
d.   the remaining “half” of the school holidays shall be calculated by taking the total number of whole days less the fourteen (14) days that the child spends with the Maternal Grandfather.
The school holidays are deemed to commence from after school on the last day of term until 5.00 pm on the day preceding the first day of the new term. The holiday period is to be counted in whole days only and in the event that there is an odd number of days in the holiday period then the parent who has the second half of the holidays for that year shall spend time with the child for that additional day.
For the purposes of spending time with the child during school term each party shall make their own arrangements to collect and deliver the child to and from school.
Subject to the terms of Order (8) hereof in the case of a spend time with changeover period during non-school hours then for the purpose of these Orders, in the absence of agreement to the contrary, this shall occur by the party who is to spend time with the child collecting him from the home of the party where the child has been spending time. Those residences are considered the Mother’s home, the Maternal Grandfather’s home at F and the Father’s residence is considered to be the Paternal Grandmother’s residence at B.
The Father spending time with the child from 6.30 pm Friday until 7.30 pm Sunday to be suspended during school holidays.
All parties shall have telephone communication with the child every Tuesday and Thursday including during school holiday periods. This telephone communication shall occur at a time to be agreed by the parties in writing but failing agreement between 6.30 pm and 7.30 pm.
The Father not be permitted to spend time with the child if he is intoxicated and also be restrained from communicating with the child by telephone should he be intoxicated.
If a school event or excursion requires the child to leave the Commonwealth of Australia for a period no longer than six (6) weeks then he only needs the permission of the Mother to do so.
The Mother and the Maternal Grandfather be permitted to remove the child from the Commonwealth of Australia.
The Maternal Grandfather be permitted to remove the child from the Commonwealth of Australia when the child is spending time with the Maternal Grandfather subject to the Maternal Grandfather performing the following:
a.giving to the Mother and the Father no less than fourteen (14) days notice in writing of the proposed trip including a detailed itinerary, details of flights, countries and cities to be visited and intended accommodation;
b.ensuring that, where practical the child telephones each of the Mother and the Father at least once each week whilst the child is abroad at a time to be agreed, and in the absence of agreement between 7.00 pm and 9.00 pm Australian Eastern Standard Time or Australian Eastern Daylight Saving Time as the case may be;
c.the Maternal Grandfather will also facilitate the child calling either parent on other occasions if required by the child.
The child’s passport is to be retained by the Mother and be given to the Maternal Grandfather in sufficient time to enable any such trip to be booked and for the child’s overseas holiday, on condition that upon the child’s return to Australia the Maternal Grandfather shall forthwith cause the child’s passport to be returned to the Mother for safe keeping. The passport shall at all other times be in the Mother’s possession or control unless there is the written consent of all of the parties or by further Order of this Honourable Court.
That not less than six (6) months prior to the expiry of the child’s passport, the Mother and the Father shall do all acts and things and sign all documents necessary and sufficient for the issue of a new passport for the child, and for the retention of the passport by the Mother on the same terms that apply to the child’s current passport.
In the event a passport application form for the child, … born … May 1997, is not signed by the Mother and/or the Father, as per Order (21) above, then a Registrar of this Honourable Court is authorised to sign such a passport application in lieu of the signature of either parent who has neglected to sign such passport application.
The name of the child on his Birth Certificate currently registered with the New South Wales Registry of Births Deaths and Marriages as J HAMPTON be changed to J GODFREY but that all other details on the Birth Certificate including the child’s father’s name remain the same.
The Australian Passport Office on production of a new Birth Certificate in the name of J GODFREY be approached to change the name of the child’s Australian passport from J HAMPTON to J GODFREY.
The Father be restrained from placing the child’s name on the Airport Watch List other than by agreement in writing with the Mother or by further Order of this Honourable Court.
Any further applications to be re-listed before the Honourable Justice Barry, however, in the event of the Honourable Justice Barry’s unavailability as nominated by the Coordinating Judge of the Sydney Registry.

IT IS FURTHER ORDERED THAT:

The parties shall not, without leave of a Court having jurisdiction under the Family Law Act 1975 (As Amended) institute proceedings pursuant to the said Family Law Act 1975 (As Amended) in any Court, either State or Federal in respect of Parenting Orders involving the said child without having first obtained such leave, PROVIDED THAT, any application for leave be applied for at first instance on an ex-parte basis.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Godfrey v Hampton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF6752/98

MS GODFREY

Applicant

And

MR HAMPTON

First Respondent

And

MR GODFREY
Second Respondent

REASONS FOR JUDGMENT

This matter was set down to proceed to trial on child-related issues over three days, commencing Monday, 6 July. On Friday, 3 July 2009, the father forwarded, by facsimile, to the case coordinator a letter of that date in the following terms:
"As discussed, please find a copy of my notice of discontinuance. I will post the original to the Court as directed. Thanking you.”
The attached faxed notice of discontinuance indicated that the father was discontinuing the whole of the orders sought in a response to an application in a case filed on 5 June 2009. At paragraph 4 of that document he indicated he wished to discontinue the whole of the response.
On Monday, 6 July, the father attended at Court and sought to withdraw the notice of discontinuance, claiming the Registrar had contacted him and persuaded him he should contest the proceedings. He argued the notice of discontinuance had not actually been accepted for filing by the Registrar. I do not propose to canvass what may or may not have occurred between the Registrar and the respondent. The matter proceeded before me as if the notice of discontinuance had been withdrawn. I allowed the issues in dispute to be litigated.
This litigation concerns orders which govern the life of a child, born in May 1997. The child is 12 years of age and, by all accounts, is a bright, intelligent boy, who, unfortunately, since shortly after his birth, has been caught up in this prolonged dispute. The dispute has been between his parents and also, at one stage, with the maternal grandparents. The maternal grandparents were in fact the child's primary carers for many years, from the time when the child was about 10 months of age.
The lengthy history of litigation, one would have thought, should have been resolved by the determination of Coleman J in October 2002, after his Honour delivered detailed reasons for judgment, following a three-day trial. Each of the parties – namely, the maternal grandparents, the mother and father – was legally represented by counsel at that time. It is common ground that at that time the mother and the father had issues with drugs and, for the reasons given by his Honour in 2002, the child was placed primarily in the care of the maternal grandparents. I do not propose to recount the unfortunate history of this litigation through the Court system since that time.
At the present time the issues in dispute are as follows:
Supervision
The father says that it is not necessary for his time with the child to be supervised. The mother says such time should be supervised.
The Child's Surname
The mother wishes to change the child's surname on his birth certificate to match her surname, namely, Godfrey. The father is adamantly opposed to this. The consequence of changing the name on the birth certificate is that the child's passport would thereafter issue in whatever name is shown on the birth certificate.
The third issue in dispute is whether the father should be permitted to take the child overseas
The father seeks an order in these terms and the mother opposes the same.
Fourth issue – joint or sole responsibility
The fourth issue is whether there should be an order for joint parental responsibility or sole parental responsibility in favour of the mother.
Fifth issue - whether the alternate weekend contact of the father should commence on a Thursday or Friday, after school; whether the father's time should conclude on a Sunday evening or by way of return to school on a Monday
Sixth issue – who is to hold the child’s passport
The final issue for determination is whether the child's passport should be held by the Court, by the mother's solicitor or by the mother herself
A family report was prepared by Ms M. That document is dated 29 May this year. It is certainly not the first of the reports, but it is the last. In her assessment she expressed the view that the two areas the father remained firm about were joint parental responsibility and the child's name. The position adopted by the mother and the maternal grandfather were at all times in identical terms. At the final sentence, at page 7 of the report, Ms M notes, under the heading "Evaluation", what the father and the mother are agreed about, however, since they stated it independently of each other, is that the child wants the fighting to be at an end. Hopefully, one positive outcome of the current litigation is that all parties agreed that an order should be put in place whereby any party to this litigation is to be restrained from commencing further proceedings of any kind under the Family Law Act 1975, unless leave is granted to do so by a Judicial Officer having authority to make orders under the Act.
I have had regard to the terms of section 118 of the Act, which deals with frivolous or vexatious proceedings. I have also had regard to r 11.4 of the Court Rules, which deals with frivolous or vexatious cases. The view that I express is that it is not necessary for present purposes for me to make a finding that any individual has been vexatious, provided I am satisfied the order is made in the best interests of the child and the parties are all consenting to the making of such an order. That consent, fortunately, was forthcoming during the course of this hearing. A party is not being denied access to a Court of law under this proposed order, but each agrees that, before engaging the other parties, it is appropriate that leave be granted by a Judicial Officer, in effect, being satisfied that a prima facie case on the issue has been established.
I am more than satisfied that on a significant number of occasions the father has initiated proceedings and then failed to attend Court hearings. The latest such incident was a directions hearing to be conducted by telephone link-up on 12 June this year. The father, without any explanation, simply did not take part in this important process. The Court has gone out of its way on numerous occasions to leave messages for the father to contact it and such like, often to no avail. It has been necessary for the maternal grandfather to make application in virtually every year from 2003 onwards for permission to take the child overseas. Whilst some of those applications were ultimately dealt with by consent, I am satisfied that, at least initially, on each such occasion the father was opposed to the making of such an order. It is not apparent to me why cooperation on such a basic issue was not forthcoming.

THE MOTHER'S EVIDENCE

The report writer records, at paragraph 10 of her report, the applicant expressing the view:
"She feels that [the father] has an emotional investment in maintaining the conflict. [The mother] expressed the view that [the father] is, in reality, 'not open to anything'."
I accept the validity of this observation expressed by the mother to the report writer. I shall have other observations to make when dealing with the evidence of the parties, but, for present purposes, I do not find it necessary to make a specific finding that the father has been vexatious in the past, simply on the basis that all of the parties have agreed to an order in the terms as outlined and, for the reasons given, I propose to put in place such an order.

I turn to consider the specific issues in dispute. I note that the only witnesses in the case were the mother and the father. The report writer was not required and, although the maternal grandfather cross-examined and made submissions, he was not required as a witness.

SUPERVISION

Sexton FM pronounced consent orders on 23 August 2006. The first order made on that date was, once again, for the maternal grandfather to have permission to take the child overseas. Paragraph 8.5 of those orders is in the following terms:
"For the purpose of the father's spending time with [the child], the father is to ensure that either the paternal grandmother or the paternal grandfather is present at all times."
I stress that they were consent orders.
Moore J made orders on 11 February 2008. Her Honour ordered:
"On or before three weeks from this date, the father is to file and serve an affidavit from his treating medical practitioner relating to his current state of health and prognosis, together with an explanation of the medication currently prescribed and any referrals to other medical practitioners. It is noted that documents have been produced, in 2006, by the [R] Hospital and it is the intention of the parties to issue a further subpoena to the hospital, to bring to Court further documents, if any, related to the father's health."
In paragraph 3 her Honour adjourned the matter to a Registrar on 6 May 2008:
"To determine whether the issues that are remaining have resolved and, if not, to make directions necessary to prepare the matter for hearing".
Her Honour ordered the preparation of an updated family report. One of the issues identified by her Honour at sub-paragraph (b) of those orders was:
"The need, if any, for the father's time with the child to be supervised and, if so, the appropriate arrangements for that supervision."
I read the material and heard submissions in September last year. On 11 September, when dealing with this matter, I made an order in the following terms, paragraph 8:
"The first respondent father's time with [the child] be supervised by either the paternal grandmother or the paternal grandfather."
The paternal grandparents were in Court at the time that order was made. Orders for supervision are not made lightly by a Court at any time.
The orders for supervision in this matter have been in operation for the past three years. It is abundantly clear, on the evidence before this Court, that this requirement for supervision has been more honoured in the breach. The evidence indicates that the paternal grandfather resides in the northern coast area and only returns to Sydney periodically, for brief periods of time. There is no evidence he has supervised time between the respondent and the child. The maternal grandmother works on weekends whilst the father is having time with his son. The father resides in accommodation by himself. The evidence indicates that, on occasions, he takes the child to his mother's residence for a meal or to otherwise spend time with her, but it is abundantly clear that the maternal grandmother has not supervised the father's time, as required by the Court orders. She was present in Court during the course of the hearing before me, Monday of last week, but no application was made to adduce evidence from her on this important issue.
The mother, in her affidavit filed on 22 May this year, at paragraphs 11, 12 and 13, deposed in the following terms.
"11.On Sunday, March 15, 2009, [the father] was spending time with [the child J] and [the child] had to do a school assignment with fellow students at another student's home in [B]. This is located just a few hundred metres away from [the father’s] home, in [B].
12.I telephoned [the father] to remind him about the occasion and he said to me, words to the effect of, '[…], I simply cannot take [the child] anywhere without adequate notice, because of my mental health. I need a day's notice. He either can't go or you'll have to take him.' I replied to [the father], words to the effect of, '[…], I have to pack my baby up and drive 20 minutes to your house, to pick [the child] up and then drop him round the corner and then drive 20 minutes back. Surely you can take him.' [The father] still refused. I packed my baby daughter, [K], who was only 10 months old at the time, and I collected [the child J] from [the father’s] home.
13.[The child] came out and I said to him, words to the effect, 'I'll take you to […’s] house, but how will you get back?' He replied, words to the effect of, 'Dad said when I'm finished I have to phone him, but he cannot come into […’s] house because of his mental health and he can't be in the presence of adults, so I'll have to wait outside until he collects me.'"
The father did not challenge the fact that the mother had to drive a considerable distance in order to transport her son a matter of a few hundred metres on this particular occasion. His explanation for his conduct at that time bordered on the bizarre. He said he was not being supervised at the time by his mother and he did not want to be seen driving his son, in case other people saw him with his son in an unsupervised environment, blatantly breaching the Court orders. Presumably, the people he was concerned about reside in the residence where the child was to do his assignment. This explanation given by the father simply does not gel with the fact that the father was to collect the child from this residence, although the father would have the Court believe that, by the time the child was to be collected, his mother would have returned from work and she would accompany him. I place no credibility whatsoever on the evidence of the father. I accept unhesitatingly the account given by the mother. Whether it is a genuine explanation that the father purports to give to the mother and to the child at that time I am unable to say - namely, that he had mental health issues - but that is certainly what the child told his mother as the explanation given by the father for his conduct and it is the mother's evidence that this is what he said to her over the phone.
I note the father has not complied with the direction of Moore J to obtain an affidavit from his treating medical practitioner. His explanation was that his solicitor would not go to the Health Centre to witness the affidavit and there was no Justice of the Peace at the health centre. This is but one more sad example of the father not complying with Court orders and directions, although he is quite insistent that others, at all times, comply with orders made in his favour. I am extremely sceptical of the explanation given by the father as the justification for his non-compliance with the direction to file an affidavit from his treating medical practitioner. The father's evidence reveals a consistent pattern of blaming others if any criticism is directed towards him. That pattern was starkly revealed in the course of the cross‑examination of the father by counsel for the mother.
There are a number of reasons why supervision was ordered. It included - the father's heavy drinking, combined with the fact that many years ago he had three drink-driving offences; the evidence of the father's past drug use; the evidence of the father having had psychotic episodes in the past; evidence of the father not taking his medication on a regular basis; the failure of the father to produce a report from his treating psychiatrist, giving him a clean bill of health. I note that, despite having clear evidence that the father's time with his child has not been supervised, the mother has not brought contravention proceedings against him, nor has she stopped the visits until she was satisfied the father would comply with the supervision requirements. By paragraph 11 of her proposed orders, the mother seeks the continuation of the supervision order.
I do not normally subscribe to a practice of rubber-stamping a litigant's non‑compliance with orders by discharging such an order. However, it seems pointless to continue with the supervision requirement when the terms of such an order are blatantly breached on a regular basis. When they are breached, the mother elects not to do anything about that situation. It is not for the Court to move, of its own motion, by initiating contravention proceedings. In making these observations, I am not being critical of the mother. She clearly has her reasons for not initiating contravention proceedings, not the least of which is such action would run counter to her fervent wish for the litigation process to cease. Somewhat reluctantly, I propose to remove the requirement of supervision, as it currently serves no useful purpose. In doing so, I take into account the child is an intelligent 12 year old, well able to report to his mother in the event the father engages in conduct which is contrary to the child’s wellbeing and safety. In the event that the father gives such cause for such complaint to be made by the child, the likely outcome would be for the Court to reluctantly suspend all time between father and son. There would be no point in ordering supervised time in the future, as the father has blatantly ignored this order over a lengthy period of time. There may be some basis for ordering the father's time with the child to be spent at a contact centre, but, for my own part, I would be most reluctant to be sending a 12 year old boy along for a couple of hours a fortnight at a contact centre.
In her draft orders, as set out in the case outline document, at paragraph 12, the mother seeks an order that the first respondent father not be permitted to spend time with the child if he is intoxicated, and also be restrained from communicating with the child by telephone, should he be intoxicated. No specific submissions were made in relation to this proposed order, but, in the absence of a supervision order, I am of the view that an order in these terms is appropriate. It matters little whether the father is driving a vehicle or not at that particular time. I deem it is not in the child's interests to spend time with his father if he is clearly under the influence of liquor. It would have been helpful if the proposed order provided that the determination of such an issue rested with the mother, but I will leave it as an issue of credibility if the issue has to be determined at some future point in time; in other words, if the mother says, "I stopped the weekend time with the father because he was clearly under the influence of liquor," and the father says, "No, I wasn't," some Judge, at some future point in time will have to decide that issue.
I turn to consider the child's surname. This seems to be a bigger issue for the adults than the child, I expect. In making this observation, I am conscious that an individual's name is fundamental to his or her identity. This observation I make echoes a similar comment made by Coleman J almost seven years ago in Godfrey & Hampton [2002] FamCA 983. At paragraphs 37-39 of his judgment he noted, paragraph 37:
"Someone, in the course of the case, made the point that, generally, it is the situation with young children and surnames that it is ultimately only the adults who become really worried about this. Children seem to deal with relationships on the basis of the quality of them, not the name or names which are attached or not attached by adults."
Paragraph 38:
"Objectively, there is no right or wrong answer about the child's surname. He has lived in the household of the [Godfreys] for so long that it would be somewhat unnatural at this time for him to be known by any other surname. There is, I think, however, a superficiality in the cross‑examination which underpins the challenge to the grandparents’ case and that is that, because the child is known as '[Godfrey]', he cannot be a [Hampton]. The Court has been concerned to look at the underlying realities in order to see whether this issue of the surname masks something more significant. In the mind of the father, it might. On the evidence the Court has heard, it does not. I do not find that the use of the surname '[Godfrey]' by the maternal grandparents and the mother, whatever the mother and father originally intended would be the child's surname, reflects any more or less than the realities of life; that being that this child really only knows one home - that is, his current home - and in that home everybody's surname is [Godfrey]."
Paragraph 39:
"More importantly, the evidence of the child's relationship with his father and the efforts of the maternal grandparents to facilitate that relationship and preserve it, and indeed enhance it, are inconsistent with their use of the name '[Godfrey]' as an attempt to alienate the father from the child. I do not see the surname issue as reflecting adversely on the maternal grandparents. It does not reflect adversely on the father, for that matter, but it is, I think, symptomatic of a number of features of his approach to the residence issue and to the proposals for the child, which is to see things in terms of his own interests first and those of the child second."
I accept fully that, at that particular point in time, the child was only five years of age and the significance of his surname was far less relevant than it is to a 12 year old boy. Nonetheless, the force of the observations made by his Honour still carry significant weight, particularly his observations that it is not an exercise in alienation. The name on the child’s birth certificate and passport is "Hampton". For all other purposes, the child is known by the surname of "Godfrey". He is enrolled at school by that name. There is evidence that he signs his name as "Godfrey". The mother and the maternal grandfather annex to their affidavits an array of documents evidencing his use of that name. The child's photo has appeared in the local paper; he is shown as "J Godfrey". I accept their evidence of the difficulties encountered, where the child's birth certificate does not match his known surname. The mother wishes to remove the incongruous situation that a child who, in all aspects of his life, identifies himself by the name of "Godfrey", is identified in the only official documentation by a different surname. I am satisfied on the following aspects:
·The applicant's desire to change the child's surname on his birth certificate and passport is not an attempt to alienate the child from his father. The mother's proposal is that the child's second Christian name continues to be the father’s Christian name. If she was genuinely wanting to alienate the father, one would expect that she would make some effort to have that Christian name removed from the birth certificate.
·In seeking this order, the applicant is not motivated by a wish to hurt the father or punish the father for his past behaviours.
·It is possible that the child told his father he wanted a hyphenated name to "stop the bloody fights". I refer to Ms M’s family report, at paragraph 5, in that regard.
·It is likely that the child does not want to offend his father or hurt his feelings in any way on the surname issue and, for this reason, is seeking to appease his father by accepting a suggestion of a hyphenated‑surname compromise.
It is my assessment that it would be very stressful and embarrassing for the child to suddenly be known as “Hampton” or “Hampton-Godfrey” albeit he will shortly be commencing in a new school environment. All his friends and associates know him as "Godfrey". He has an array of extracurricular activities, ranging from music practice to sporting events and school debating, et cetera; all of his friends, colleagues and associates identify him as "Godfrey". I am not enamoured of the hyphenated option being put forward as some sort of compromise arrangement. I find it is more likely than not, as I have observed, that the child put forward this proposal simply as a means of not offending his father. The view I take is that official documentation should follow the reality of the situation, that the child identifies himself as "Godfrey".
In the circumstances, I will accede to the mother's application and make an order directed towards the Registrar of Births, Deaths and Marriages in New South Wales to alter the birth certificate name accordingly. In the event of the father not signing the requisite documentation, a Registrar of this Court will be empowered to do so in his stead. Orders are sought for the Court to direct the Department of Foreign Affairs to issue a passport in that name. I will hear submissions on that aspect, but I am far from convinced that the Court has power to tell the Department of Foreign Affairs how to issue their passports.
The next issue I turn to is whether the father should be permitted to take the child overseas. The father conceded he does not have the finances to take the child overseas at the present time, but he may wish to go on a trip, funded by his parents, with his parents accompanying him. In light of the fact that his parents are separated, I find it likely he would only be travelling with one of his parents at a given time. As I understand the situation, the mother is not opposed to such travel but would want to be given a detailed itinerary and assurances that there would be proper supervision of the child at all times. In view of the father's ongoing non-compliance with Court orders, over many years, not a great deal of confidence can be placed on the reliability of any assurances given by him. I do not need to reiterate how many times and in how many ways he has simply ignored or breached Court orders. The view that I take is that, if the paternal grandmother or paternal grandfather wish to be given permission to travel overseas for a holiday with their son and grandson, they can apply to the Court, as the maternal grandfather has had to do on so many occasions. I would be quietly confident that the mother would not withhold permission for such travel, provided reasonable conditions were accepted, such as the availability of return tickets, confirmation of return times, confirmation of the itinerary, with reasonable accommodation being booked, and the safety of the venues to be visited. I do not propose to put in place an order as sought by the father. I would not countenance the father taking the child overseas on his own, given the instability inherent in his behaviour. As the case developed, I did not understand the father to press for such an option.
I turn to consider the important issue of joint responsibility or sole responsibility to the mother. The issue of parental responsibility is dealt with in Division 2 of Pt VII of the Act. Section 61 is in the following terms:

Section 61A - What this Division does

"This Division deals with the concept of parental responsibility, including, in particular:
(a) what parental responsibility is; and
(b) who has parental responsibility."

Section 61B - Meaning of parental responsibility

"In this Part, parental responsibility, in relation to a child, means all the duties, powers and responsibilities and authority which, by law, parents have in relation to children."

Section 61C - Each parent has parental responsibility (subject to court orders)

"(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationship of the child's parents. It is not affected, for example, by the parents being separated or by either of them marrying or remarrying.
(3) Subsection (1) has effect, subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section.)"

Section 61DA - Presumption of equal shared parental responsibility when making parenting orders

"(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child, as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt within section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child."

The mother's case is based wholly and solely on sub‑paragraph (4). In her affidavit, filed on 4 June 2009, paragraphs 63-88, she sets out in considerable detail the reasons why she should be given sole parental responsibility, notwithstanding the presumptions contained in the legislation. She is adamant that the father has shown little interest in the child's schooling and in many other aspects of his life. The father always expresses a negative attitude to any proposals she has.
The father's cross‑examination of the mother was an unedifying experience to witness. He was, for the most part, aggressive in manner. His attempts to convince the applicant during the course of this cross‑examination that they could communicate with each other on a reasonable basis bordered on the farcical. At paragraph 71 of her affidavit, the mother deposes:
"Where an issue has arisen with [the child] that needs input, cooperation or permission from [the father], he simply refused to agree to anything, for example, permission for school activities, dates of holiday contact medical issues and permission for [the child] to go overseas, as my father will no doubt testify."
In orders previously made, on 10 September 2008, the mother had been given responsibility for choosing the child's school. The father, in the proceedings before me, took issue with the proposed change of schooling to the W Grammar School, for which the child has recently won an important scholarship. It is but one more example of the father protesting at any reasonable proposal. The father's protest was in vain because, clearly, the mother had power, under the previous order, to make decisions about the child's schooling.
At paragraph 75 of her affidavit, the mother deposes:
"Over the years there have been many instances where [the father] has taken an obstructionist stance, despite the fact it was against [the child’s] best interests."
I accept the validity of this observation made by the mother. During the course of the hearing, I characterised the father's behaviour as resembling oppositional defiance disorder displayed by young children. The father, on occasions, also displays obsessive traits, particularly in relation to this litigation. In the course of cross‑examination it was apparent that he had typed out, and retained in a folder, a copy of every text message received by him, or sent by him to the mother. He was attempting to belittle the mother in her assertions that the communication between the parties was poor. The cross‑examination had exactly the reverse effect to what was intended. He was cross-examining on a wide range of those text messages, some going back four or so years. The mother's evidence was that, the few times when there is phone communication between the father and herself, almost invariably, he yells at her and abuses her. For this reason, she seeks to communicate with him as little as possible.
I have no hesitation whatsoever in accepting the evidence of the mother, as detailed in her affidavit material and in her oral evidence to the Court. The mother's behaviour, in my view, at all times has been exemplary. She deserves praise, not criticism. At no time, in my view, has she attempted to sabotage the relationship between father and son, despite provocation over a long period of time. Her wish is to avoid conflict. She at all times wishes the best for her son, which includes the continuation of a relationship between father and son. I can record that, if it was in my power to hand out Australia Day awards, the mother would be high on my list, for the courage, the patience and the parenting qualities that she has displayed.
I turn to consider the father's evidence. The father attended Court dressed in board shorts. When challenged about the suitability of such apparel, he informed the Court that he did not have any long trousers and his suit no longer fitted him. Once again, I am extremely sceptical of this explanation. No‑one in our society is so poor they cannot afford a pair of trousers, particularly given op shops and all sorts of other outlets where they can be bought for a matter of a couple of dollars. I accept it is not mandatory to attend Court so attired, but it reflects an attitude on the part of the father. The father has been unemployed for the greater part of the last four or five years. He shows little motivation in any aspect of his life. He exudes anger and resentment towards both the mother, the maternal grandfather and, I expect, society at large. I have considerable difficulty accepting any part of his evidence. I reject his evidence where it is in conflict with an account given by the mother. He has been in breach of Court orders on so many numerous occasions, over such a lengthy period of time, I can place little reliance on any assurance he would give to the Court in the future.
For the above reasons, I propose to make an order that the mother have sole responsibility for the care, welfare and development of the child. I will, however, make orders that the father be entitled to approach the schools, medical practitioners, hospitals and other institutions, seeking information, at his own expense, as to the child’s progress. I would be reasonably confident that either the mother or the child would, as a matter of course, if requested, provide copies of school reports, school photos and the like to the father, but I do not propose to make any specific order in that regard. I will make an order requiring the mother to inform the father, in writing, in the event the child has any serious medical condition or requires any urgent medical care. In other words, the mother can make the decisions, the father can be informed of those decisions but he cannot veto the decisions the mother takes, be it health issues, educational issues, travel issues, extracurricular activities the child might engage in and such like.

Whether contact should commence on Thursday afternoon or Friday afternoon and whether contact should cease Sunday evening or Monday morning

I refer to the mother's affidavit, paragraphs 89-99. On this issue the mother raises a number of concerns, including the fact that the father allows the child to stay up late at night on a Sunday evening and used to allow the child to stay up at night on Thursday evenings. The child tells her the television shows that he watches. She has looked those up and finds what time the shows are on, and they are on from something like 10.30 pm until 11.30 pm at night. She confirms reports from the school of the child being tired on Fridays and Mondays and not being properly attired in his school uniform. Her evidence in this regard is confirmed by the school reports. At paragraph 93 of her affidavit she says:
"By not reinstating Thursday evenings and eliminating Sunday nights, it should make it far easier for [the child] to do his homework and eliminate the weight of material he has to carry to school Thursday and Monday mornings.
It's currently an embarrassment for him to arrive at class with several bags for future events, when his classmates arrive only with the current day's requirements.”
I note that Friday is sports day and the child has to wear a different uniform; it is a further complication. I accept the force of what the mother says in this regard. When orders issued on 11 September 2008, they acceded to the mother's then application to reduce the father's alternate weekend time, so that it operated from Friday afternoons until Sunday evenings. The order was subsequently amended by me on 25 September, reinstating the father's time back to Monday mornings, but excluding the Thursdays. This was done, in part, in response to the father's expressed view that it would reduce the conflict that the child may be subjected to if handovers occurred at the school, rather than to the care of his mother or maternal grandfather on a Sunday evening.
The father's proposal, as reported to the family report writer, at paragraph 12, was to "leave it as it is". I assume this means that the time would be as at present, namely, Friday afternoon after school through to Monday before school. However, the father's proposal at the hearing was to revert to Thursday afternoon until Monday morning, until the end of the current year, at which time he was agreeable to the time being reduced to Friday afternoons until Sunday afternoons. Again, I have great difficulty in understanding the significance of delay of six months. For reasons submitted by her counsel and as detailed in her affidavit, the mother is adamant that it should be Friday afternoon until Sunday afternoon, effective as of now. I am minded to accept the force of the mother's position. As the child's education progresses, the need for disruption should be minimised. I have concerns about the child doing homework at his father's residence. I have concerns about the father complying with school requirements, such as uniforms. I have concerns about the hours the child is allowed to keep at the father's residence, the general lack of discipline in the father's household. I have concerns about the burden it places on the child to be with the father for four nights out of 14.
As a result of the orders I will be putting in place, the father will be having holiday time with his son, as he has had in the past. Notwithstanding the restriction on overseas travel, there is no restriction on the father holidaying anywhere in Australia with his son, although I note that he has rarely travelled with him; I assume this is because of his impecunious state. I make no criticism in that regard. I am of the view the father will be able to adequately maintain his relationship with his son if the time was reduced to Friday pm until Sunday pm, and I propose to order accordingly, for the reasons given.

Whether the child's passport should be held by the Court, by the wife's solicitor or by the wife herself

At paragraph 14 of her report, Ms M noted that the father was agreeable to the child’s passport being held by the mother's lawyer. The current situation is that the passport is held by the Court, a situation which I am usually reluctant to endorse. The orders that I made on 11 September last year were intended to allow a passport to be issued for the child in time for him to travel overseas later that year. This did not happen. I place the blame for the passport not issuing fairly and squarely on the father's shoulders. He gave me an assurance that he would sign the passport application. The mother says that a mistake was made, in that the forms had been changed and the wrong forms had been completed. She says, as soon as she became aware of this, she delivered the correct forms to the father's letterbox, but it was not until sometime in November last year that the father took any action. The father says it was not until November that the mother delivered the forms to him. As I have previously noted, when it comes to credibility between these litigants, it is a no contest. As I have indicated, I have great confidence that the mother's account of events is a far more reliable one. Why the mother did not request a Registrar to sign the passport documents when the father failed to return them has not been made clear. The attitude of the father in relation to the passport issue is but a continuation of his bloody‑minded approach in not agreeing with any proposal put to him by the mother or members of her family.
I see no reason whatsoever why the child's passport should not be held by the mother, and I propose to so order. I see little point in why it should be held by her solicitor. I propose additionally to order that the mother and/or the maternal grandfather be at liberty to travel overseas with the child and I will make that a specific order. The father will be restrained from, at any time, applying for a passport watch which would in any way restrict the child from travelling overseas. This matter, on this issue, has been a great waste of Court's time and resources, of enormous stress and expense to the parties and, most importantly, to the child himself. I accept the paternal grandfather's account that the child had an expectation of travelling overseas with him late last year and was frustrated in that regard, and it would have been disappointing. I have no hesitation in finding that the child enjoys the travel with his grandfather; it is a mind‑broadening experience for him and it must have been disappointing indeed that he did not get to travel at that time. I accept that, with giving the mother an order for sole parental responsibility, it is inherent in that that she can approve overseas travel, but, in view of the sad history of this matter, it is imperative that orders be put in place such that the matter never again comes back to Court.
Before concluding, I wish to make a cri de coeur.

RECORDED : NOT TRANSCRIBED

Let the child enjoy the last few years of his childhood. This child is fortunate to have a devoted grandfather in Mr Godfrey. He has assisted the child financially, to a very generous extent, and the Court acknowledges that. The child, as I have found, has benefited enormously from overseas travel. I accept that Mr Godfrey has, in many ways, filled the role of father and grandfather for the child, but has not done so in the sense of wanting to alienate the father from the child's life. What he has done he has done out of proper motivation and he has done it in exemplary fashion. His influence on the child has been one of great benefit to the child.
I propose to put in place a further order that any further applications are to be relisted before myself, and I can deal with those by either phone line or video link from Queensland. However, in the event of my unavailability, it is to be listed before such other Judge as may be nominated by the coordinating Judge for the Sydney Registry.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 15 July 2009

[2009] FamCA 717

15 July 2009

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