Hanns & Bampton
[2023] FedCFamC1F 347
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hanns & Bampton [2023] FedCFamC1F 347
File number(s): ADC 2802 of 2016 Judgment of: BERMAN J Date of judgment: 8 May 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Family violence – Where the Court finds that the father’s engaged in overt family violence – Where the father has an obsessive interest in the mother – Where the children have been exposed directly and indirectly to significant family violence – Where the children have been the subject of litigation for six years – Where the children have not spent time with the father since 2017 – Where the children have attended multiple single experts and psychologists – Where reunification therapy has failed – Where the children may be placed at significant emotion or psychological risk should the Court order orders for time spending – Where the experts opine that the children should spend no time with the father – Orders.
FAMILY LAW – CHILDREN – Children’s Surname – Where mother seeks that the child be known by her surname – Where the father opposes the change of the children’s surname –Where the mother has informally changed the children’s surname at their school – Where the Court finds that there has likely been unilateral conduct on the mother’s part to promote the change of surname – Where it would be confusing for the children to be known by two last names – Consideration of which surname is in the best interest of the children – Consideration of the factors set out in Reagan & Orton [2016] FamCA 330 – Where the complete cessation of any connection with the father was not considered by the experts to be in the children’s best interest – Where the mother did not present sufficient evidence that would support a change in name – Where an order is made restraining the mother from using her last name in relation to the children – Orders.
Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 Div 12A, ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(A), 60CC(3), 68B, 69ZN, 69ZT,
Cases cited: Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] 55 Fam LR 218
Champness & Hanson (2009) FLC 93-407
Chapman & Palmer (1978) FLC 90-510
Cotton & Cotton (1983) FLC 91-330
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Sigley & Evor [2011] 44 Fam LR 439
Division: Division 1 First Instance Number of paragraphs: 229 Date of hearing: 14, 16, 17 and 18 November 2022, 31 January 2023, 1, 2 and 3 February 2023. Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Ms Ross Solicitor for the Respondent: Angela Ferdinandy Counsel for the Independent Children's Lawyer: Ms Olsson Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2802 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HANNS
Applicant
AND: MS BAMPTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
8 May 2023
THE COURT ORDERS THAT:
1.Ms Bampton (“the mother”) have sole parental responsibility for the children X born 2009 and Y born 2012 (collectively “the children”).
2.The children live with the mother.
3.In the event that the children do express a wish to spend time with the father, the mother shall inform the father in writing, at the address provided by the father, to the children’s school.
4.The mother will facilitate the children to telephone their father on the telephone number as may be provided by the father to the children’s school in the event that the children express a wish to speak to him.
5.The mother will facilitate the children providing letters, cards and/or gifts to the father at the address provided by the father should the children express a wish to do so.
6.The mother shall authorise the children’s school to provide the father with school reports for each of the children and school photographs, at his sole expense annually and the father shall keep the school updated as to his current address and telephone number.
7.That the mother shall inform the father in writing, to his nominated address, of the name and address of any proposed change of school enrolment for either or both of the children.
8.That the father be restrained and an injunction granted restraining him from:
(a)Removing or causing the removal of the children from the care of the mother;
(b)Attending within 100 metres or entering upon or remaining in any place of residence, employment and education of the children (including sporting events, assemblies and out of hours school care, of the mother.
9.That the mother be at liberty to obtain updated passports of the children without the consent of the father.
10.That the mother be at liberty to travel outside of the Commonwealth of Australia.
11.That the mother shall at least 28 days prior to any departure with the children on an international flight, advise the father in writing of the flight details and overseas accommodation.
12.That the mother shall notify the father of any illness, accident or other issue whether medical or otherwise in respect to the children including, the name and address of any medical or treating practitioner or hospital.
13.The father be at liberty to communicate with and obtain information or direction concerning the children’s physical and/or mental health and welfare from any specialist, medical practitioner, psychologist, psychiatrist or other health professional.
14.The mother be restrained and an injunction granted restraining her from using, promoting or encouraging any other person from referring to the children by a surname other than “Hanns”.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanns & Bampton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Hanns (“the father”) and Ms Bampton (“the mother”) are unable to agree the future parenting arrangements for X born 2009 and Y born 2012 (collectively “the children”).
The father was born in Australia in 1977 and is aged 45 years. The mother was born in the United States of America in 1981 and is aged 42 years.
The parties commenced cohabitation in 2001 in Adelaide. The mother was keen to conclude her study and accordingly, the parties moved to live in the USA in 2005. The parties were married in 2006 and they returned to Australia in 2007.
It is uncontroversial that the parties experienced unhappy differences in their relationship with the mother alleging that she was first assaulted by the father in 2011.
In 2012 the father was involved in a motor vehicle accident partially caused by his intoxication and in 2014 the father lost his licence for six months for another incident.
Thereafter, the parties each allege that the other perpetrated family violence. The mother contends that she was assaulted by the father on various occasions in particular, during a trip to B Region in 2016 and during the Easter 2016 holiday period.
The father alleges that in mid-2015, the mother threw a glass at him and then a month later, she threatened him with a knife.
It is uncontroversial that from late 2015 the father considered that the mother was engaged in a sexual relationship with her immediate superior. The allegation is denied by the mother however the father acknowledges that he did not accept the mother’s denials and held firm to his belief that the mother was having an affair.
The parties separated for a short period in early 2016. During the period of separation, the mother and the children stayed at the maternal grandmother’s residence. The mother alleges that the father continued to perpetrate significant family violence towards her which was often in the presence of the children and that the father maintained the belief that the mother was having an affair. The mother also deposes to an incident one evening whereby the father broke into the maternal grandmother’s home causing the mother and X considerable distress. As a result, the father was charged and convicted and placed on bail condition. The mother obtained an interim Intervention Order in early 2016 and an application to vary the order a few days later.
The parties reconciled in mid-2016 and the mother and the children returned to the former matrimonial home. However, the mother alleges that on 4 May 2016, the father assaulted her in the bedroom by punching and spitting on her. On 11 May 2016, the father assaulted the mother in the dining room and then in Y’s bedroom. The mother alleges that the father threw her on the bed, which subsequently broke, and then proceeded to choke her. The children were present during both of the assaults and on both occasions the children tried to intervene to protect their mother. The catalyst for the alleged assaults was the continuing belief by the father that the mother was engaged in an affair with her boss.
The mother alleges that between April and May 2016, the police attended at the former matrimonial home on several occasions as a result of the father’s violence.
The family travelled to the USA in mid-2016 for a holiday that coincided with a conference to be attended by the mother.
The mother alleges that whilst in C State, the father threatened to kill her and whilst the father complains of aggressive conduct on the part of the mother both towards him and X, following X calling 911, the father was arrested by the local police and imprisoned in the county Detention Centre in C State for about one week.
The parties separated on a final basis on 4 July 2016 and on 6 July 2016 the father was arrested for a breach of the Intervention Order consequent on his attendance at the children’s school.
The proceedings commenced on 29 July 2016 and following Orders being made on 20 September 2016, the father commenced to spend time with the children professionally supervised by Mr D.
The father attended an appointment with Dr E, Psychiatrist.
The parties attempted a therapeutic process with the intention of restoring what was demonstrably a fractured relationship between the father and the children following upon a report by Ms F dated 11 October 2019.
Initially the family were assisted by Ms G and thereafter by Ms H.
The children have not spent meaningful time with the father for six years. The father argues that the mother is not supporting the children’s relationship with him whereas the mother considers that the children are strongly opposed to seeing the father in circumstances where they recall his aggressive conduct and physical assaults upon her.
ORDERS SOUGHT
The father seeks orders summarised as follows:-
(1)That the parties have equal shared parental responsibility of the children.
(2)That the children live with the mother.
(3)That the children spend time with the father, initially on a supervised basis, either by a suitably qualified person or at a Children’s Contact Centre with there being a gradual increase in his time such that the children ultimately spend time with the father as follows:-
(a)From the conclusion of school Friday to the commencement of school Monday each alternate weekend;
(b)In the intervening week, from the conclusion of school on Friday until 7.00 pm;
(c)For the short term school holidays, for the first half in odd numbered years and the second half in even numbered years; and
(d)The Easter period in each alternate year, during the Christmas period including Christmas Day, Father’s Day and the children’s birthdays.
The father seeks that handovers between the parties take place either at the children’s school but if that is not possible, then from a Children’s Contact Service or such other place as the parties may agree.
The father seeks that the children be placed on a Family Law Watch List to prevent their departure from the Commonwealth of Australia.
The mother seeks orders as summarised as follows:-
(1)That the mother have sole parental responsibility of the children.
(2)That the children live with her.
(3)That pursuant to s 68B of the Family Law Act 1975 (“the Act”), an injunction is granted for the personal protection of the children and the mother injuncting the father from:
(a)Removing or causing the removal of the children from the care of the mother; and
(b)Attending within 100 metres or entering or remaining in any place of residence, employment or education of the children (including sporting events and out of hours school care) or the mother.
The mother is prepared to provide appropriate authorities to the children’s school such that they are able to provide the father with school reports, school photos and other school related information, however the mother does seek to restrain the father from attending at the children’s school.
The mother states that should the children express a wish to spend time with the father then she will advise him of same and will facilitate the children providing letters and/or gifts to the father.
Finally, the mother seeks leave to enable her to obtain updated passports for the children without the consent of the father and to change the children’s surname to Bampton from Hanns.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
(1)Amended Initiating Application filed 9 August 2019;
(2)Affidavit of the father filed 6 October 2022 (“the father’s affidavit in reply”);
(3)Affidavit of the father filed 24 June 2022 (“the father’s trial affidavit”);
(4)Affidavit of Ms J filed 24 June 2022; and
(5)Affidavit of Ms K filed 11 July 2022.
The mother relies upon the following documents:
(1)Amended Response to Initiating Application filed 28 September 2022;
(2)Affidavit of the mother filed 2 September 2022 (“the mother’s trial affidavit”);
(3)Affidavit of Ms G filed 7 November 2022;
(4)Affidavit of Ms L filed 14 November 2022 (annexing reports of Ms N); and
(5)Affidavit of Ms L filed 8 September 2016 (annexing report of Ms N)
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:
(1)Psychological reports of Ms F, Clinical Psychologist dated 8 March 2017, 11 October 2019 and 6 October 2022;
(2)Affidavit of Ms G filed 7 November 2022; and
(3)Affidavit of Ms M filed 7 March 2022 annexing report of Ms H.
The ICL supports the orders sought by the mother and in particular, that the mother be at liberty to travel with the children outside of the Commonwealth of Australia and that she be able to apply to change the children’s last name to Bampton by registration with Births, Deaths and Marriages.
Both parties and the ICL filed a Case Summary document at the commencement of the hearing that they sought to rely upon.
ISSUES TO BE CONSIDERED
The children have not seen the father since 18 March 2017. The father acknowledges that in order for the relationship to be restored, the parties and the children would need to attend upon a therapist to assist in the restoration of the children’s relationship with him. Assuming that could be achieved, then the children would spend time with their father on a gradually increasing basis.
A further consideration is the extent to which the wishes of the children should be given weight given that it is acknowledged they have indicated steadfast refusal to reengage with the father.
The mother also seeks to change the children’s surname from “Hanns” to “Bampton”.
THE EVIDENCE
At the commencement of the trial, I highlighted the provisions of Division 12A of the Act in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party, nor the ICL, spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles enunciated in s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to evidence particularly, if it is contentious.
Consideration was given to the objections to affidavits of evidence by application of the Rules and by reference to s 135 of the Evidence Act.
The father
The father relied upon his trial affidavit and affidavit in reply. The father readily admitted that he had installed a surveillance device in the mother’s car because he believed that she was engaged in sexual relations with her boss. He admitted to listening to the recordings over a number of hours.
In late 2015, the father attended a black tie event with the mother for the mother’s then employer. The mother contends that the father consumed a significant amount of alcohol, started chanting “[the mother]’s right arse cheek gets bigger every week” and called the mother’s team member a “faggot”. The mother sets out in her trial affidavit that as a result of the incident, she took time off work, her workplace undertook a formal investigation and due to embarrassment she commenced looking for new employment.
Thereafter the mother commenced employment at O Company which the father renamed with a slur, a name which he commonly said in front of the children.
The father agreed that he had referred to the mother as a “fucking slut” and that during the many violent arguments with the mother, he used strong derogatory language in reference to the mother either in front of the children or likely within their ear shot.
The father firmly believed that the mother was having a relationship with her boss from as early as 2015.
The father’s obsession with the purported extramarital relationship was consistent with the matters raised by the mother in paragraphs 188 to 193 of the mother’s trial affidavit.
The father’s conduct escalated to the point where in early 2016, he went to her work place car park, opened the mother’s car and sat in her car. The father said that not only did the mother invite him to sit in her car but also to sit in her office.
Apparently a third party challenged the father concerning his presence in the mother’s car and his retort was that it was none of that persons business and to “fuck off”.
The father’s suspicion of the mother’s purported affair with her boss was reinforced by the mother apparently retaining a chocolate Easter bunny rather than give it to another person.
The father gave chilling evidence of what he allegedly overheard in the mother’s car concerning a discussion between the mother and her boss.
It is a reasonable summary of the father’s evidence that his belief that the mother was engaging in an extramarital relationship was fuelled by an irrational obsession.
The family went on a holiday to B Region in early 2016. The mother alleged that during the night she was assaulted by the father in circumstances where they argued in the restaurant concerning the father's allegation that the mother was engaged in an affair. The father left the restaurant and returned to the hotel room.
Upon the mother and the children returning to the hotel room, the mother contends that she found empty bottles of wine and beer and the chocolate Easter bunny that she had purchased for the husband, smashed on the floor. It was after the mother had retired for the night that she alleges the father had entered the children’s room where she was sleeping, woke her and the children up, referred to her as a “whore, bitch and slut” and then punched her to her head and body. X then attempted to stop the father from hitting the mother.
The father denied that they had an argument in the restaurant and he contends that the mother was rude to him, was fixated on her phone, not engaging with him and in particular, she was looking at appointments with the person he considered to be her boss.
The father’s evidence is that the mother’s focus on the chocolate Easter bunny was such that he considered it must have a special meaning for her. Accordingly, he smashed the chocolate Easter bunny and thereafter called the mother’s father and said words to the effect of “the [mother] is a fucking bitch and is having an affair”.
The father denies that he used derogatory language towards the mother and in particular, he denies that he hit her or tried to break her fingers, as she contends.
The father does admit that the mother was hugging X and whilst he agrees that there may have been accidental contact with the mother, he did not accept that X had intervened in the argument with the intention of protecting the mother from the physical assault of the father.
The father contends that the children were unaffected by his conduct given that they had witnessed the mother using aggressive and threatening behaviour.
In early 2016, the mother alleges that whilst she was engaged in clothes washing following the family’s return from B Region, the father sprayed her in the face with “Spray & Wipe” detergent, squirted shampoo at her and then poured Coca-Cola over her head.
The father agreed that he had sprayed the mother with shampoo, soap and soft drink but he maintained that it was accidental and benign.
The father acknowledged that the mother was screaming and that she ran outside. The father’s contention is that he wanted her to come back inside to talk to her however, the father’s conduct was observed by a bystander who called the police. The father was arrested and issued with an Interim Intervention Order. The father was charged however, the mother agreed to not press with the charge if the father was prepared to have anger management counselling.
Following the parties separation, the father had obtained photos of the mother attending a wedding in mid-2018 and at a restaurant at which he believed she was accompanied by her current partner.
It addition, on a trip to America in 2019 the mother was allegedly seen at the airport with her partner and a small child.
The father asserted that he was working nearby and just happened to see the mother, her partner and a small child running late to the airport gate.
Photographs were apparently taken not by the father but rather one of his work mates, who decided, without a request of the father, to photograph the mother.
It was put to the father that there was no circumstance where the photographs were taken by sheer coincidence but rather that the father was stalking the mother.
During evidence, the father accepted that he had a problem with excess consumption of alcohol. It is agreed that the father has a history of drink driving behaviour and that much of his conduct may have been exacerbated and/or fuelled by consumption of alcohol.
Whilst the father denied that during the period of the parties’ first separation that he had thrown rocks at the mother’s car or that he had ripped off the side mirror, he did accept that he had forwarded a large number of text messages to the mother which referred to her in offensive and derogatory language.
Ms F noted in her Psychological Report dated 8 March 2017, that during the interview with the father, he made the following admission:
When asked if he had ever been violent at all, [the father] said that when the family went to [B Region] in […] 2016 he saw bruises on the inside of [the mother]’s thighs, which he believed were from her having sex with her boss. He said he did yell, and “thump the bed”, connecting with her ankle, although “not overly hard”. On their return he said he did squirt her with shampoo, and splash her with Coke (see Affidavits). He said “I was arrested because I splashed her with Coke”. The writer asked if looking back he could see why his behaviour was considered concerning. He said he still did not think “much of it”, and again, made allegations that [the mother] herself was aggressive, hitting him, smacking the children, talking about her having thrown a glass at him that reportedly cut his ear (going on to explain that to scare her he bandaged his head/ear, adding tomato sauce for effect).
The father considered that he had gained a greater level of insight through the Court process and in that respect, he was now able to concede that many of the matters expressed to Ms F during the Psychological Report, were accurate.
The father discussed with Ms F the basis for his belief of the mother’s infidelity with her boss.
The father was given the opportunity to read the following extract from Ms F’s Psychological Report dated 8 March 2017 and agreed to its accuracy:
[The father] continues to believe [the mother] had/is still having an affair with her boss, [Mr P]. He said that the boys have told him she had explained to them that they will be getting “Daddy Number Two” who will be a “better Daddy”. He said that when she first started working with [Mr P], [the mother] was excited and “her eyes would flutter” when talking about [Mr P], while in contrast she would be angry at him because dinner was not ready on her return from work. He said he had put a recording device in her car, because she dared him to, and he was disturbed by what he heard (examples he gave were of her making telephone calls to friends and doctors to discuss her concerns for his mental health). [The father] said he knows the affair happened, for a number of reasons (eg. he found a short straight black hair in the bathroom, a handprint on the mirror, and impressions of breasts on the mirror. He believed her vagina was not as tight when they had sex, and noted other things such as the passenger seat in the car being moved back, and there being used wet wipes in the car).
The father’s presentation in evidence supports a finding that whatever insight the father may have gained throughout the legal process, he still held a strong belief that the mother had been in a sexual relationship with her boss.
The father specifically denied that in the presence of the mother’s boss he threatened to kill her.
The father further denied that he had intentionally broken the mother’s phone to deny her the ability to access a recording she had made of the father allegedly threatening her in the middle of the night.
The father’s position was that he was not the aggressor in the relationship but rather it was the mother that engaged in family violence.
The father did concede that X had phoned 911 whilst holidaying in the USA which resulted in the father being arrested.
Exhibit “3” in the proceedings is an audio recording of a verbal exchange between the father and his current partner, Ms J, in September 2020. Exhibit “5” is a transcript of the proceedings in the following terms:-
[Father]: Ehhhh.
[Ms J]: It’s 10 o’clock and he’s here and [Q’s] asleep.
[Father]: She is not asleep she just woke up she’s wide awake.
[Ms J]: Yeah because of who – because of what.
[Father]: Fuck you, you fuck head. Go fuck your fucking boyfriend.
[Ms J]: And he just fucking kicked me.
The exchange between the father and his partner was introduced into evidence to support a submission that the father’s purported insight into his conduct, lacked credibility. To the extent that it may be relevant, the father conceded that his assertion that his current partner was engaged in an extramarital affair was not dissimilar to his belief as to the mother’s conduct.
When pressed, the father admitted that he had perpetrated family violence, that alcohol use or abuse was a relevant factor and that from time to time, but not since separation, the father had used drugs recreationally.
The father presented as an unimpressive witness. Whilst he may well have gained some significant benefit from his ongoing therapy, his assertion that he had effectively moved on and was no longer concerned as to the previous conduct of the mother, was in conflict with the evidence.
I find that the photographs taken by the father, or his associate, of the mother at various venues including the airport, was not serendipity but rather as part of the father’s focus on the mother, her whereabouts and with whom she associates.
It is not necessary for me to find that the father’s conduct is consistent with him stalking the mother but it is sufficient to support a finding that the father retains an obsessive interest in the mother and still considers that she was in an extramarital relationship prior to separation.
Ms J
Ms J relied upon her affidavit filed 24 June 2022. She considered that she had been in a committed de facto relationship with the father for five years and that he had taken a hands on parenting approach to Ms J’s daughter from a previous relationship and now the child of their relationship, Q.
Ms J was complementary of the father’s conduct and had not observed him to commit any acts of physical violence either towards her or the children. She had no concerns as to his capacity to properly care for the children and had never seen the father use illicit substances or drink alcohol to excess.
Under cross examination, Ms J denied that the father had kicked her even though she conceded that the transcript would suggest otherwise.
Whilst I accept the broad observations of Ms J concerning the father’s current conduct, I am readily able to find that the father did perpetrate family violence towards Ms J as evidenced by their aggressive verbal exchange.
To a significant degree, the conduct of the father in his current household is unlikely to be a factor of high relevance in terms of the orders that he seeks but it undermines the father’s current presentation of having gained valuable insight into his conduct and the deleterious effect and impact family violence can have on those around him in particular, the children and Ms J.
The mother
The mother agreed that whilst she would maintain her surname during the course of the relationship, the children retained their father’s surname of “Hanns”.
In early 2022 the mother apparently decided to informally change the children’s surname because she received some communication from their school. The issue however was first raised by X to Ms F. It was not raised again until the mother sought orders for a change of the children’s surname as set out in her Further Amended Response filed 28 September 2022. No request was made via the solicitors and the mother conceded that the last time the children had raised the issue of their surname was about two weeks prior to the hearing.
The mother insisted that the children continue to raise dissatisfaction that their surname remains as “Hanns” rather than their preferred surname as “Bampton”.
The mother was challenged as to her evidence that the father had assaulted her or continued to harass and intimidate her.
In particular, the mother was asked why she was prepared to travel with the father to the USA given the allegations of significant serious and entrenched family violence.
The mother conceded that it was a very poor decision but she felt that divorce was also a bad outcome and she wanted to avoid it. She had a hope that the father may change his conduct and become less aggressive. She realised during the USA trip that the father was unlikely to change.
The mother holds a poor view of the father. She did not consider that he ever really engaged with the children and whilst there were some occasions that might be considered as happy interaction, generally the parenting was left to her.
The mother conceded that whilst there were other injuries sustained to the children as a result of the alleged aggressive conduct of the father, she did not take photos other than of X’s heel.
The mother was prepared to admit that she had some confidence the father would not intentionally harm the children.
The mother remained unconvinced that following the commencement of the Court proceedings, the Orders which allowed the father to spend supervised time with the children were the subject of compliance.
As a result of the photographs in the possession of the mother depicting her attendance at the airport, at a restaurant or restaurants and other places, she formed the view that she was under surveillance by the father. The mother was referred to a police officer in the domestic violence unit of SAPOL and was advised to redirect her mail to a post office box. She also consulted a private investigator in early 2019 to assist her in ensuring that the father was not able to hack into her electronic items, or ascertain in some other way, her address or other details.
The mother’s evidence to the ICL was that the children had frequently observed the arguments between the parties and in particular, the incident of the father attempting to strangle the mother.
Since separation, the children had been in the sole care of the mother and her observations of X was that he demonstrated distress when confronted with the proceedings in particular, when seeing Ms G, Ms F or other persons involved in the gathering of evidence or the assessment of the parties for the purposes of the proceedings.
The mother still considers that the children are affected by the idea that they might be seeing their father.
Whilst the boys are no longer in hiding from the father, their conduct is such that the children are still adversely affected by the idea of meeting their father even in supervised circumstances.
The mother admitted that she had unilaterally changed the children’s name, not formally but by arrangement with the children’s school.
The mother was pressed as to the extent of time that the children were in the father’s primary care when she was working and in particular, was away for an extensive period. The mother considered that the father was not able to look after the children without assistance of the paternal grandmother.
It is likely that the father had a higher level of involvement with the care of the children than the mother was prepared to concede.
The issue is unlikely to require a consideration of whether the father had or would intentionally harm the children but rather their observations of the conduct between the parties has now entrenched their opposition to either seeing or communicating with him.
Following separation, it is also likely that the mother did not focus on promoting the children’s relationship with their father.
Doctor K
Doctor K has been providing therapeutic assistance to the father since August 2016. He continues to consult with Dr K and has had 49 individual sessions with her before he and Ms J attended for couples counselling. In total, there have been 73 sessions involving the father.
Dr K is a Registered Psychologist holding multiple qualifications in Psychology. She is a member of the Australian Psychological Society. Her evidence comprises various reports that have been the subject of request by the father’s solicitors from 2019 to the most recent report of 11 November 2022.
I am satisfied from the information forwarded to Dr K that she is appropriately informed as to the relevant background.
Dr K recorded that the father’s initial presentation was marred by his anger and emotional reactivity. The father’s presentation was such that Dr K was initially cautious and alert however, as the therapeutic relationship developed, the observation of the father was that he was more composed and contained.
By the time of the report dated 26 September 2019 (“the first report”), the father had seen Dr K on 45 occasions.
It was noted that in therapy, the father often referred to the mother’s perceived poor behaviour as a justification for his conduct which at times could be categorised as a catastrophic response.
Dr K was provided with an assessment by Dr E, Psychiatrist, expressing concern that the father’s behaviour may have been exacerbated by the consumption of drugs resulting in episodic psychosis. Dr E considered that the father’s obsession with the mother purportedly having an extramarital relationship might have been a by-product of the father’s abuse of alcohol or illicit substances.
Dr K was also aware that Ms F was concerned that the father’s mental issues were inadequately treated and that at that time, it was unlikely there would be a recommendation for the father to resume time with the children unless he was able to demonstrate that he had child focused behaviour and thinking.
The father said to Dr K in the first report, a summary of his poor behaviour and judgment towards the mother in the following terms:
“It has been almost a year. There has been nothing nasty happening in that time. I’ve respected every court order. I’ve spent $100,000 in order to see my children … I know where they are … I don’t go there.
I’ve done some things wrong … you can’t film your wife … you can’t punch a wife on the legs or the ankles.
I was oblivious to advice from police … I didn’t think ahead … now I look back I think that I could have acted a lot better”.
As at November 2019, Dr K considered that the father had engaged meaningfully in the treatment and therapy and was open and forthcoming in providing information and self‑reflection. The diagnosis was that at the time of the separation, the father may have been experiencing severe depression exacerbated by the stress of the separation of the parties, the restriction in seeing the children and the interview process by Dr E and Ms F.
In broad, the assessment was that even though the father was sad at not being able to spend time with his children, he was observed to have a greater level of insight and emotional control.
Dr K prepared a report on 11 November 2022 (“the second report”) which involved 40 sessions of couples counselling involving the father and Ms J.
The father is recorded as having developed some level of understanding that the children are frightened of him and think that he may well be capable of killing them. He broadly presented to Dr K as having few complaints of anxiety and tension and was calm, optimistic and positive about the future. Dr K did not consider that the father presented as a risk to the children or to the safety of the mother.
The therapeutic assistance provided by Dr K has been extensive.
In evidence, Dr K considered that the father had not yet mastered his sadness but was better able to control himself even though the aggression displayed towards Ms J on 20 November 2020 is an important consideration.
As would be expected, Dr K can be considered as a reliable witness.
Doctor E
Dr E undertook a psychiatric assessment of the father and was assisted by information from the mother and also various Court documents by way of background. He provided a Psychiatric Report dated 24 October 2016 (“the first Psychiatric Report”), which was annexed to an Affidavit of Ms R (the husband’s previous solicitor).
Dr E considered that the father’s presentation, whilst a little defensive, was nonetheless appropriate and did not involve signs of depression, aggressive conduct or grandiose ideation.
The father admitted to Dr E that he had demonstrated anger and inappropriate comments but minimised his violence. Dr E recorded in the first Psychiatric Report that:
[the father] appeared to give a morbid jealously interpretation to what may have been normal occurrences, for example, washing after the holiday at 6:45 a.m. he described as her specifically washing underwear, which was not taken on the holiday at 4:00a.m. He described [the mother] as not trying to get him out of jail when in the United States, but in contrast she described making much effort to get him out of jail. He minimised his drug use. He blamed his cousin and friends. She gave references to the cousin and as concern about his behaviour.
Dr E did not see features of delusional disorder and in searching for a basis for the father holding a false belief as to the mother’s fidelity, in the absence excluding mood disorders, the possibility existed that the father’s possible psychosis was as a result of the use of drugs.
The formal diagnosis was that the father may have suffered from drug induced psychosis.
A cessation of the use of illicit substances and alcohol would likely diminish, to a manageable level, the father’s obsessive belief that the mother engaged in a relationship with her boss.
Whilst Dr E was called to give evidence, he was not the subject of cross-examination by the father’s counsel.
Ms G
Ms G is a Clinical Psychologist who treated the children. She had seen the children up to 27 November 2017 and then on a further 12 occasions up to 18 September 2019. She last saw the children on 10 February 2021. Ms G prepared several reports which are annexed to her affidavit filed 7 November 2022 and the affidavit of Ms M filed 28 November 2017.
Ms G recorded in her report dated 16 October 2019 (“the second report”) that X had described having nightmares involving his father killing everybody on his mother’s side of the family as at November 2017. His present position was that he did not want to communicate with the father nor did he want to receive a Christmas present.
He recalled that he remembered the argument between the parties and that he did not want to see the father. X described his father as a person that had done bad things.
Y was aged 7 years at the time of the second interview and remembered that he considered his father had scared him when he pushed the mother. He was however receptive to receiving a Christmas present from his father but his overall presentation was that he was happy that he did not have to see his father anymore.
In the second report, Ms G summarised the presentation of the children as follows:
Both children continue to report that they do not want to have contact with their father. [X] has become more resistant to any approaches by his father and will no longer accept gifts from him in therapy. He was pleased, however, to have received some acknowledgment from his father that he had hurt his mother. [Y] remains open to gifts and thus appears less resistant about his father overall, although he does not want to see him. Both children continue to report that their father was mean to their mother and physically hurt her, which they have both spontaneously described at different times. [Y] spontaneously recalled earlier this year an incident in the past when he was worried that his father would kill his mother. The spontaneous nature of these recollections and the age-appropriate language with which they are described strongly suggest that they are the children’s own experiences. Positively some of their trauma symptoms (nightmares, fearful, lacking self-confidence, explosive anger) have reduced.
Ms G was of the view that the children would not be willing, nor able, to see their father and that there would be no utility in undertaking further reunification therapy. It was recommended by Ms G that a further consideration of reunification occur in 6 to 12 months’ time namely, towards the end of 2019. It was only if reunification was successful that supervised contact could commence.
In evidence, Ms G considered that a possible way forward would be for the father to back away from the litigation, let time pass and try to reinstate a relationship when the children were older and better able to maturely reflect upon matters that they have experienced.
An important consideration for Ms G was that the children were doing well psychologically and she did not consider there was any need for the children to be further seen by her.
Ms H
Ms H was instructed to assist the parties and the children in the reestablishment of the relationship between the children and their father. Ms H prepared a Summary Therapy Report dated March 2021 which is annexed to the affidavit of Ms M filed 7 March 2022.
Ms H had significant engagement with the parties and the children between 18 August 2020 to January 2021.
She records that the children were unsettled and scared to undertake the process of seeing their father and were apparently steadfast in their opposition to resume any form of relationship with him.
X is recorded as having bad memories when he thinks about his father. X wants the intense emotions that he experiences when thinking about his father to end rather than to cause himself harm.
Y spoke of a memory of his father hurting his mother at a time when he would have been about four years of age.
Despite significant time being undertaken to provide the foundation for the children and the father to explore restoring the relationship, the demeanour of the children was such that Ms H expressed the opinion that a continuation of the therapeutic process would likely be detrimental to their mental health.
Ms H considered that the children were likely to experience distress when the narrative of the father is challenged. The children struggled to consider that the father had changed.
The evidence is that the advances as a result of the therapeutic process were minimal highlighted by Ms H considering that the children’s distress was so extreme that it would not be safe or proper to continue with the therapy.
Ms H spoke to Ms G as a result of a request by the father to do so.
In evidence, Ms H conceded that it would be unusual for Y at age four, to have such a clear recollection of an incident of family violence between the parties.
A further aspect of note was that when speaking to Ms H, the children referred to the father as “Mr Hanns” but made no reference to him as “dad”.
Ms H last saw the children on 10 February 2021 and given her observations of the children and their interaction or otherwise with the parties, no further appointments were arranged and Ms H considered that any further decision to explore the restoration of the children’s relationship with their father should be guided by Ms G.
Ms F
The children were referred to Ms F for an updated Family Assessment Report following an initial assessment in January 2017 and a subsequent review assessment in September 2019.
The most recent assessment, as set out in her Family Assessment Report dated 6 October 2022, is to be seen against the backdrop of Ms F recommending that the children live with their mother and spend no time with their father until there is a clearer picture as to the extent to which the father has gained insight and emotional regulation arising from his therapeutic support.
The review assessment in September 2019 did not alter Ms F’s opinion that the children presented as anxious and vulnerable.
At the time of the final assessment, X was nearly 13 years of age and Y 10 years of age.
The assessment by Ms F was underpinned by the use of standardised tests comprising the Achenbach Child Behaviour Checklist (“CBCL”) which is designed to provide a standardised checklist of behavioural problems as observed or considered relevant by the parents, the Achenbach Teacher Report Form (“TRF”) which is completed by teachers and may highlight a child presenting with depression and anxiety at a clinically significant level, the Achenbach Youth Self Report (“YSR”) to be completed by children and tests to explore the extent that a child may present with depression. The assessment can be considered as extensive.
Ms F reports that the information from the school in general, and the results of the TRF in particular, highlighted that X presented with clinically significant behaviour including anxiety and depression.
X was recorded as being steadfast in his refusal to meet with the father, his partner, the partner’s daughter and his half-sister. He was concerned that his refusal may be seen as being personal to them but emphasised that his preference to not meet them was because of their connection with his father rather than any aspect of their conduct.
It was apparent that X had developed significant anxiety at having to be the subject of further assessment or therapeutic intervention. X referred to his experience with Ms H as very distressing because he perceived that she was attempting to persuade or encourage him to resume spending time with his father.
In the Review Psychological Report dated 6 October 2022, Ms F records X’s recollection of his father “beating mum up and pushing me and [Y] around a lot”.[1]
[1] Affidavit of Ms M filed 2 November 2022, page 11.
Similar to the tense and anxious presentation of X, Y considered that X and the mother had moved on from the father and his recollection of the father was of aggressive conduct with the father trying to hurt the mother, X and himself.
The father considered that the children had been influenced and brainwashed by the mother and that the appropriate way forward would be to introduce the children to him so that they could understand he does not pose a risk to them.
The father acknowledged that at times his behaviour had been aggressive and that the children had witnessed the conflict between the parties. Nonetheless, the father considered that the mother was the aggressor and as such, it would be unfair to categorise him as the sole perpetrator of family violence.
Whilst the father still considered that the mother had had an affair, despite her deception, he had gained sufficient insight that he could now move on.
Ms F reflected upon the five years that had elapsed since the children’s time with the father ceased in 2017. She was complementary of the progress the father had made by becoming more child focussed and had developed relationship skills that were demonstrably absent when the parties were together.
However, attempts at reunification and re-establishing the children’s relationship with the father had been ongoing and unsuccessful.
In the Review Psychological Report dated 6 October 2022, Ms F summarised the children’s presentation as follows:
It is clear from this review assessment that [X] and [Y’s] views about their father remain fixed. They do not present at this stage as having the adaptability to consider changes in their father. While it is not healthy that the boys have been unable to form a more up to date view of their father, the writer cannot see any way of successfully achieving this, given their firm views and associated intense emotional distress. To further push towards this risks the boys further consolidating their strongly negative view of their father. The writer’s only suggestion that may help at this stage is if [the father] agrees to no longer seek time with the boys, that this be explained to them (by the writer or [Ms G]) as an example of their father having heard them and taken on board what they are saying and that he is making this decision to give them peace. This may soften their attitudes towards their father and allow for the possibility that they become more open to the idea that he has made progress and can be child-focused. While in no way guaranteeing it, this pathway does leave open the option for some sort of reconciliation in the future.
Ms F was asked to consider the consequence to the children but in particular, X, if he was forced to see his father. Ms F considered that X was clinically at risk and experienced intense distress at the possibility of seeing the father. At one point, he physically withdrew into himself and couldn’t speak for some time. X was not able to erase the memories of his perception of the father’s aggressive conduct.
Ms F opined that orders which would force the children to see the father, may put them at significant emotional or psychological risk.
Given that the views of the children remain fixed in opposition to seeing their father, Ms F considered that this may not be healthy for them in circumstances where it is likely that the father may well present differently today than their earlier recollection of him. Even with the best of intentions, Ms F, whilst accepting that there might be an advantage to the children in them understanding that the father no longer presented as a risk nor that he was someone to be feared, could not see any way forward which would not have the potential to result in profound emotional or psychological harm being occasioned to the children by the process.
PRINCIPLES RELATING TO PARENTING
The children currently reside with the mother and spend no time with the father.
The evidence supports a finding that the father engaged in overt family violence leading up to the separation in 2016. Moreover, it is likely that the children witnessed the aggressive interaction between the parties and were significantly affected by the conflict with X in particular having a clear recollection of being fearful of his father’s conduct.
The mother seeks sole parental responsibility whereas the father seeks equal shared parental responsibility. The mother further seeks that there should be a change in the children’s surname from “Hanns” to “Bampton”.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest are to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I note the directions contained in s 60CC(2)(A) of the Act and I have regard to the allegations of the mother that the father engaged serious family violence.
I propose to adopt the following approach:
(1)Give consideration to the proposals put forward by the parties;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the children’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the children of having a meaningful relationship with both the children’s parents and the need to protect the children from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
The father does not accept he is the sole perpetrator of family violence and contends that whilst there was high conflict and at times aggressive interaction between the parties likely witnessed by the children, their opposition to seeing him should be considered as extreme and likely to be as a result of persuasion and engendering false belief by the mother.
For her part, whilst the mother remains fearful of the father and does not resile from her accusation that the father perpetrated ongoing and egregious family violence, the issue now is that the matter has progressed to the point where the children are not prepared to see the father and to make them do so would place them at significant risk of emotional and psychological harm.
Meaningful relationship
The father accepts that at present, he has no relationship with the children. He proposes that whilst the children should live with the mother and remain in her primary care that his time with the children should gradually increase to significant and substantial time over a lengthy period.
Following the remarks of Finn J in Blanding & Blanding [2016] 55 Fam LR 218, where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
In Cotton & Cotton (1983) FLC 91-330, Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Sigley & Evor [2011] 44 Fam LR 439, the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “…a chance of a meaningful relationship…which is beneficial to [the child]” was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
There is currently no physical relationship between the father and the children. The father does not communicate with the children and it is conceded that he has scant knowledge of their current circumstances.
The cumulative effect of the reports and the evidence of Ms H, Ms G and Ms F is that there does not appear to be a beneficial emotional attachment remaining between the father and the children. To the extent that there is an emotional relationship, it would appear to have the potential to be damaging.
Ms F was not supportive of a resumption of time spending between the children and their father at this stage of their development. Her strong recommendation, not dissimilar to that of Ms G and Ms H, is that the father should not press his application to see the children but rather to let them mature in their thinking in the hope that the father and the children may reconcile their differences into the future.
Ms F considered that to force time to recommence between the children and their father was likely to cause significant emotional damage to the children.
It is a serious matter that a party should have no effective or meaningful relationship with a child. The focus must be on the extent of the father’s conduct and how that has affected the children and may well overwhelm the benefit to the children of having a relationship with him.
I have found that the father engaged in family violence and that his relationship with the mother was at times overtly aggressive, highly conflicted and damaging to the children.
The children have not seen the father for over five years and there is no mechanism promoted and/or supported by the experts that would represent a way forward.
The father seeks that there be a dramatic approach adopted which would bring the children into contact with the father over a short period of time. Such a proposal was considered by Ms F and rejected on the basis that it had the real possibility of causing harm to the children.
The difficulty therefore is that the evidence does not support that there is a chance of a meaningful relationship. It is reported that even the process undertaken to assess the children’s needs and promote the advantages to the children of re-establishing a relationship with their father was observed to be harrowing to them and would place them at significant risk.
Are the children at risk
According to the evidence of the experts, the stability and wellbeing of the children would likely be disrupted to their disadvantage if orders were made for the children to see the father.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243, the Full Court supported the position that family violence must be given strong weight:-
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child.
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail. Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
(Citations omitted)
The mother contends that the father has not “moved on” or has gained valuable insight into the deleterious consequences of his prior aggressive conduct but rather is still focussed to a level of high obsession with his mistrust and belief that the mother had conducted an extramarital affair with her boss.
The father’s evidence would lend weight to the contention and whilst it is to be acknowledged that he has undertaken extensive therapy to the good effect that the father has gained insight and perspective, he was still fixated on his belief that the mother has not told the truth about her relationship with her former boss.
The children have been affected by the conflict in general and the father’s conduct in particular. The mother is unlikely to alter her position namely, that she remains fearful of the father and does not accept that his behaviour has moderated. It is likely that the mother is not confident that the significant therapeutic input has been of lasting benefit.
Family violence must be given strong weight but it is not determinative in and of itself. It must be considered as one of the factors which needs to be brought to account in determining what is in the child’s best interests.
Whilst it is clearly desirable that children should have a meaningful relationship with a parent that can only occur if it is safe for the children to do so.
Wishes of the children
The children are now 13 and 11 years of age. They have been consistent in expressing the wish that not only do they refuse to see the father, the very thought of the process is distressing and engenders fear and heightened anxiety. In particular, X said that he would rather die than see his father. Whilst Ms F did not consider that X was suicidal, she opined that it was an indication of his anxiety and vulnerability.
It might be argued that the evidence would suggest Y, at age four, could not have fully understood the conflict between the parties. It remains possible that his concern about seeing the father may mirror X’s entrenched view rather than his own.
For whatever reason, the children’s position have remained constant over a long period of time and their wishes must be given significant weight.
The nature of the relationship of the children with the parties and others
The children have a primary attachment with the mother. There is no current attachment with the father. The children are aware of the father’s new partner, her daughter and their half-sister. Whilst the children do not report adversely in respect of the father’s current family, their proximity and relationship to the father is enough to cause them palpable distress.
The likely effect of any changes in the children’s circumstances
It would be a substantial change were the children to commence spending time with the father after more than five years of spending no effective time with him. Therapeutic intervention and assistance has not borne fruit and I accept the evidence from the therapists that there is not likely to be any change in their attitude to the father. To persist with a change would result in a negative emotional and psychological impact.
Family violence
I have found that the father’s conduct falls into the definition of family violence. I have also found that the mother’s fear of the father is genuine and arises as a result of his behaviour towards her in particular, his obsession with the view that she engaged in an extramarital relationship with her boss. That belief resulted in the mother discovering that the father had her under surveillance and had the potential to clandestinely monitor the mother’s movements and use of electronic equipment.
The evidence of the father hiding a recording device in the mother’s car is difficult to overlook.
Further litigation
Given the children’s presentation to the therapists, the best outcome for them is that the likelihood of further litigation be minimised.
X suffered an intense and potentially damaging moment when confronted with the prospect of having to see the father. The children have indicated a fear of further involvement with the therapists and disappointment at any suggestion that they sought to promote the benefits of the children maintaining a relationship with their father to them.
The evidence does not support a finding that the father’s proposal for a graduated increase of the children’s time with him is viable or should be attempted.
PARENTAL RESPONSIBILITY
The presumption of equal shared parental responsibility is rebutted by a finding that family violence was a factor. It is the very antithesis of shared parental responsibility.
The mother remains fearful of the father and his attitude towards her is redolent with mistrust.
It is not reasonable to expect that the mother could enter into any discussion with the father and to do so would only involve the potential for the mother’s emotional fragility to be adversely impacted.
The presumption of equal shared parental responsibility is therefore rebutted and the evidence supports a finding that the mother should have sole parental responsibility.
It is however, important that if there is to be a possibility that later in life the children may reconcile their differences with the father, then he should be in the best position to be able to emotionally and physically engage with the children.
To that extent, there is good reason for orders to be made that would see the father being able to access appropriate information and forward to the children appropriate communication, gifts and presents to mark the children’s birthdays, Christmas presents and gifts that might celebrate milestones achieved by the children.
CONCLUSION
I propose to make no order that would require the children to spend physical time with the father but will require the mother to communicate with the father, information pertaining to their physical and/or mental health and at his expense, to be able to obtain school reports, notices, photographs and any other information that is usually provided to parents by the children’s school.
CHANGE OF THE CHILDREN’S SURNAME
The mother wants to change the children’s surname from “Hanns” to “Bampton”.
The Full Court gave consideration to the change of a child's surname in Chapman & Palmer (1978) FLC 90-510. At 77,674 the Full Court said:-
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
The Full Court provided further assistance at 77,675 - 77,676 in relation to the factors to which the Court should have regard to in determining whether there should be any change in the surname of a child include the following:
(a)The welfare of the child is the paramount consideration;
(b)The short and long term effects of any change in the child's surname;
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
(d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage or relationship; and
(f)The effect of frequent or random changes of name.
The children are reported by the mother to seek to change their surname. The mother supports a change whereas the father is strongly opposed. X now uses “Bampton” instead of “Hanns”. The mother concedes that she has informally changed the children’s surname to “Bampton”.
There is no evidence before the Court that would support a change of name. No evidence was elicited from Ms F or Ms G and the father’s concern is that if there is a change in the children’s surname he will have no residual connection or involvement with the children.
The basis for the mother’s application is that if she has sole parental responsibility and the children spend no time with the father nor are able to engage in any communication then there is no utility in the children maintaining a surname different to the mother as their sole carer.
I do not consider that the mother’s position represents an appropriate basis for a change in the children’s name.
There is some evidence that the children are embarrassed by retaining a surname different to that of the mother. The mother says that children associate the name “Hanns” with their father and causes distress.
The evidence from Ms F is that there remains the potential for the children to reflect upon their relationship with the father and once the proceedings have concluded and they are no longer required to engage in any therapeutic assessment, they may be prepared to resume a relationship with him.
I also consider it important that the father be provided with information as to the children’s health and education.
In the absence of evidence as to the short and long term effects of any change in the children’s surname, I am not satisfied that it would be in the children’s best interests.
Is the mother is able to change their surname?
It is likely that there has been unilateral conduct on the part of the mother to promote, where possible, that the children are known as Bampton as opposed to Hanns. I do not accept that the mother’s conduct should be considered as having a level of inevitability about it, but even if the children appear to seek or promote a name change.
The mother should be restrained from allowing the children to be referred to as “Bampton”. For most of their lives the parties each had separate surnames. The complete cessation of any connection with the father was not considered by Ms F to be in the children’s best interest.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 8 May 2023
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