Hazelwood & Desantos
[2023] FedCFamC1F 823
•28 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hazelwood & Desantos [2023] FedCFamC1F 823
File number(s): PAC1987 of 2019 Judgment of: BAUMANN J Date of judgment: 28 September 2023 Catchwords: FAMILY LAW – Parenting – Where the mother seeks the child spend no time with the father – Where the father seeks to communicate with the child by telephone – Where the parents relationship was influenced by domestic violence and illicit substance use – Where the mother seeks that her location remain undisclosed to the father – Where the mother seeks a change of the child’s last name Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 61DAA, 65Y, 68B, 68C Cases cited: Beach & Stemmler (1979) FLC 90-692
Chapman & Palmer (1978) FLC 90-510
Hedlund & Hedlund (2021) FLC 94-056
Division: Division 1 First Instance Number of paragraphs: 39 Date of last submission/s: 22 September 2023 Date of hearing: 11 September 2023 Place: Parramatta Counsel for the Applicant: Ms Rebehy Solicitor for the Applicant: Redfern Legal Centre Counsel for the Respondent: Ms Vogel Solicitor for the Respondent: Censeo Legal Counsel for the Independent Children's Lawyer: Mr Scarlett Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 1987 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAZELWOOD
Applicant
AND: MR DESANTOS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.That all previous parenting Orders are discharged.
2.That the Applicant Mother is to have sole parental responsibility for the child X born 2008 (“the child”).
3.That the child live with the Applicant mother.
4.That the Respondent father spend no time with the child.
5.That, in accordance with s 68B of the Family Law Act 1975 (Cth), the father be restrained by injunction from:
(a)Approaching or contacting the child by any means except through his legal representative in writing and from requesting, encouraging or causing any other person to approach or contact the child by any means, including on his behalf;
(b)Attempting to locate the child and/or any person with whom the child lives or requesting, encouraging or causing any other person to do so, including on his behalf;
(c)Assaulting, threatening, stalking, harassing or in any way intimidating the child or requesting, encouraging or causing any other person to do so, including on his behalf;
(d)Attending at or contacting any school or other educational facility that the child attends from time to time AND requesting or obtaining any information about the child, including about his enrolment, attendance or performance; or
(e)Attending any function or other event at the child’s school or other educational facility that parents are ordinarily permitted to attend.
6.That commencing forthwith and in accordance with s 68B of the Family Law Act 1975 (Cth), the father be restrained by injunction from:
(a)Approaching or contacting the mother by any means except through his legal representative in writing and from requesting, encouraging or causing any other person to approach or contact the mother by any means; or
(b)Assaulting, threatening, stalking, harassing or in any other way intimidating the mother or requesting, encouraging or causing any other person to do so.
7.That for the purposes of paragraph 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the child X born 2008 is permitted to have an Australian passport.
8.That the mother is permitted to apply for an Australian passport for the child X born 2008 and the consent of the father to the child having an Australian passport is not required.
9.That for the purposes of section 65Y of the Family Law Act 1975 (Cth) the mother is permitted to take or send the child X born 2008 to any overseas country.
10.That in accordance with the provisions of section 102PE of the Family Law Act 1975 (Cth) on the ground that such Order is necessary to protect the safety of the child and the mother, this suppression Order prohibits the publication or disclosure of Order 9 above and any details from within the Court file, from any Application or evidence given or read in these proceedings or information disclosed during these proceedings that relates to and or identifies the child’s change of name AND this Order remain in force until 17 June 2029 or such other period as the Court may order.
11.That in accordance with the provisions of section 67ZC and s 68B of the Family Law Act 1975 (Cth) the father is restrained from procuring any information or copies of any document from the Court’s manual or electronic file that tends to disclose any of the information protected by Order 10.
12.That the mother’s application to change the name of the child be dismissed.
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 Hazelwood & Desantos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
Since the parents of X (now aged 15 years) separated in difficult circumstances in May 2017, the Respondent father (now aged 43) has effectively spent no time with his son. The Applicant mother (also now aged 43 years) has taken steps to try and ensure the father does not know where she (and X) live, and the events at separation and the delays in this matter being determined on a final basis have caused tensions to increase.
When the trial commenced before me on 11 September 2023, the issues in dispute were narrow, but important. What was not in dispute was that:
(a)The child would live with the mother, and she would have sole parental responsibility;
(b)Where the father did not seek an order to spend physical time (even supervised time) with X, the issue of whether communication between the child; the father and in some respects, the mother arose as an issue;
(c)The mother seeks a range of restraints said to be in the best interests of the child pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”);
(d)The mother seeks an order to change the name of the child without the father’s consent;
(e)The mother seeks an order that she be permitted to apply for an Australian passport for the child and, for the purposes of s 65Y of the Act, be permitted “to take or send the child” to any overseas country;
(f)In addition to the father seeking to communicate with X monthly, the father sought orders that he be permitted to provide the child with a mobile phone and seeks an order that the mother inform him of any serious illness or injuries to X.
As these Reasons will reveal, I deal with each of these discrete issues in dispute after providing a brief contextual history and making findings about some key issues.
Although listed for a three day final hearing, the evidence, including cross-examination, and thereafter, submissions were all completed within one day – although some further brief evidence was adduced when the Independent Children’s Lawyer’s oral application to reopen was granted on 13 September 2023.
I acknowledge the way in which Counsel for the mother Ms Rebhey; Counsel for the father Ms Vogel and Counsel for the Independent Children’s Lawyer Mr Scarlett turned their cross‑examination and advocacy to those areas requiring determination, for if they had not done so, with the history of conflict between these parents, every bit of the allocated three days might have been consumed.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
Although the father, the mother and the Court Child Expert Ms B were the only witnesses the subject of the cross-examination, the father relied upon an affidavit by his mother, Ms G and the mother relied upon earlier affidavits by her mother, Ms C and her step-father Mr D. None of the parties supporting witnesses were required for cross-examination.
As a result of the order made by Curran J on 16 June 2023 the mother was given leave to attend the final hearing and give evidence by Audio Video Link (AVL). The father made an application to also appear by electronic means, which I determined in his favour over opposition by the mother and Independent Children’s Lawyer, at the start of the trial. The reason for such inability to attend personally from his home in City E was as set out in Exhibit 1 – namely he was said by his General Practitioner to be unable to physically travel to Sydney because “he is suffering a medical condition”. Frankly, the evidence was not compelling but, in the exercise of my discretion, sufficient.
BREIF CONTEXTUAL HISTORY
After commencing cohabitation in early2002 when the parents were nearly 20 years of age, X was born in 2008. I am satisfied that the relationship was volatile and shaped by immaturity, domestic violence and illicit substances use. And that the events on or about mid-2017 occurred and caused a final separation could not have been entirely unanticipated.
X was approaching his 9th birthday at the time of separation and although the parties offer different perspectives of the nature of the father/son relationship at the time of separation, it is not necessary to make a specific finding – other than it is fair to observe that the mother had since birth been the primary carer and that the father had developed a relationship which was in existence, forged over the first nine years of the child’s life.
I deal with the events of at least mid-2017 and subsequent breaches of the Apprehended Domestic Violence Order (ADVO) made resulting in terms of incarceration imposed upon the father below.
The mother commenced proceedings in May 2019. At that time, as now, the mother sought orders that the child spend no time or otherwise communicate with the father. The father’s filed Responses have sought different orders from time to time – however as earlier noted by the time of the final hearing he was not seeking any physical time orders.
It is a curious feature of the case management of this matter, that although as early as the father’s Amended Response filed 30 July 2020 the orders sought by him only sought telephone time essentially, no attempt seems to have been taken to resolve the matter quickly at that time. I accept the parties, at that time, were also grappling with a de facto property dispute – which was ultimately resolved by consent orders on 16 February 2022 resulting in the mother receiving a payment of $85,000.
Nonetheless, Court Child Expert Ms B (both when employed by the Court and then after commencing private practice), conducted a number of family assessments being:
(a)Child and Parent Issues Assessment filed 1 May 2020;
(b)Addendum to Child and Parent Issues Assessment filed 20 July 2020;
(c)A Family Report filed 11 October 2021 (marked Exhibit 4);
(d)And most relevantly in terms of the issues, the Single Expert Report dated 6 September 2023. This final report completed a longitudinal assessment of the issues by this experienced social worker and concluded at paragraph 60 with the following opinions and recommendation:
60.Based on the information available to this assessment, in particular [X’s] age and stage of development and [Mr Desantos’] presentation during this interview, it could not be recommended that any order orders be made than that [Ms Hazelwood] [sic] sole parental responsibility for [X], that [X] live with [Ms Hazelwood] and that [X] spend no time and/or communicate with [Mr Desantos]. As previously stated, it is recommended that any orders that can be made that restrain or prevent [Mr Desantos] from contacting or locating [X] and/or [Ms Hazelwood] and/or other maternal family members be put in place.
As I raised during the hearing, and was acknowledged by Ms B, the issue of changing the child’s name was not raised with her and, as a result, she did not explore that issue with either of the parents or importantly with X in the electronic interviews conducted on 9 and 11 August 2023.
The issue of the earlier Family Report in October 2021 and, I infer, the resolution by consent of the property dispute as well as available evidence at the time, seemed to be a catalyst for an Amended Application in a Proceeding to be filed by the mother on 11 July 2022. This Application came before a Senior Judicial Registrar on 17 October 2022, and in the absence of the father, the following interim orders were made:
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. Pursuant to section 68B of the Family Law Act 1975 (Cth) (the ‘Act’), the Father [Mr Desantos] born […] 1982 be, and hereby is, restrained by injunction from:
a. Contacting or attempting to contact the Mother; [Ms Hazelwood] born […] 1982, by any means, including through a third party other than through a legal representative;
b. Contacting or attempting to contact the child; [X] born […] 2008, by any means, including through a third party, via social media or other electronic means other than through a legal representative;
c. Approaching or coming within 100 metres of the Mother of child;
d. Approaching or coming within 100 metres of any place where the Mother and child might reside from time to time;
e. Approaching or coming within 100 metres of any place where the child might attend school, attend before or after school care, or where the child may attend extracurricular activities; or
f. Approaching or coming within 100 metres of where the Mother might work from time to time;
2. Pursuant to section 68C(2) of the Act, the s.68B Orders above are intended and expressed to be for the personal protection of the Mother and the child.
3. If a Police officer believes, on reasonable grounds, that the Father; [Mr Desantos] has breached the injunctions in a manner referred to at section 68C(1)b) of the Act, then the Police Officer may arrest the Father without warrant.
4. Leave is granted for a copy of the Orders relating to these restraints and injunctions, to be provided to any school, care facility, Policing authority, or treating practitioner where the child or Mother engages or attends.
THE COURT FURTHER ORDERS IN CHAMBERS THAT:
5. The matter to be referred to the Judicial Services Team Leader for allocation of a first date before a Division 1 Justice.
6. The Mother to serve the Father with a copy of these orders forthwith.
The interim orders made on 17 October 2022, seem to be the only substantive parenting orders made on an interim basis since the proceedings commenced over three years earlier. Justice Curran on 4 April 2023 listed the matter for final hearing commencing 11 September 2023 and subsequently made other directions, including for an updated single expert report by Ms B. Subsequently on 16 June 2023 Justice Curran ordered the father to undertake a hair follicle test. Her Honour directed that a transcript of the Case Management Hearings on 4 April 2023 and 16 June 2023 be produced at the Cost of the Court and made available for the trial judge. Those transcripts were tendered and marked Exhibit 3.
The trial began and was completed on 11 September 2023, although there was a limited reopening and further evidence and submissions made in accordance with the orders of 11 September 2023.
THE CRIMINAL HISTORY AND RELVEANT OFFENDING BY THE FATHER
The tendered documents marked as Exhibits 6 to 14 (inclusive) relate to the father and some of his past criminal behaviour. It was not necessary for Counsel for the mother or the Independent Children’s Lawyer to cross examine the father about most of these events, as the evidence frankly speaks for itself. By way of summary my findings from the evidence are:
(a)Exhibit 9 is the father’s New South Wales Police Force criminal history with the record establishing that:
(i)Between April 2017 and May 2017, the father committed offences of Common Assault upon the mother; destroying property; using a carriage service to menace/harass/offend for which he was convicted and sentenced to a term of imprisonment commencing mid-2017 and concluding mid-2018;
(ii)Amazingly, whilst it seems the father was incarcerated, he committed other offences including attempt to breach prohibition/restriction in a domestic AVO and use of carriage service to menace/harass/offend that resulted a further term of imprisonment, that was served concurrently. He was released on parole, with extensive conditions (including participation in an anger management program and domestic violence programs);
(iii)After his release, he committed an offence of possession of a prohibited drug (in mid-2018); driving with an illicit substance present in blood (mid-2018) and an earlier similar driving offence (mid-2018).
(b)Exhibit 7 contains evidence from the Region H Corrective Services Department including a pre-sentence report for a Court event in early 2021. A copy of the father’s police criminal history for offences in Region H was not tendered, but the pre-sentence report summarises offences as:
“…a substantial criminal history spanning across [Region H] and […] across NSW. [Mr Desantos’] criminal record is inclusive of use of carriage service to menace/harass/offend, traffic in controlled drug other than [an illicit substance], aid and debt unlawful confinement, fail to vote, common assault, damage or destroy property, contravene prohibition/restriction in AVO (domestic), attempt to breach prohibition/restriction in domestic AVO, possess prohibited drug and multiple driving offences (drive vehicle with illicit drug present in blood and special category driver with special range PCA).”
(As per the original);
In accordance with the recommendation in the pre-sentence report, in early 2021, the father was sentenced to a Good Behaviour Order,, with an imprisonment period of one month. A condition was imposed “to attend educational/psychological or other assessments/programs as directed regarding drug use and mental health”.
POSTINGS ON FATHER’S FACEBOOK PAGE AND OTHER CONCERNING STATEMENTS
As the letter from NSW Police dated early 2019 makes clear, Police hold concerns in relation to the father finding out the mother’s whereabouts and have provided her with advice to conceal her address as much as possible from members of the public and corporations. The evidence supports a finding that the mother has been relatively successful in ensuring the father does not know where she (and X) live and where X goes to school.
However the mother’s affidavit, and Exhibit W-1 (marked as Exhibit 15) provides examples of posts that have come to her attention, which the mother says are directed to her and demonstrate the risk the father poses. In these Reasons I record some examples (marked as Exhibit 2) of more recent posts that have been identified for the Court, namely:
(a)In September 2023: “Every dog has its day promise ya you took from me and I promise ill take from u your shit and so is your family pack of dogs”
(As per the original);
(b)In September 2023:
“Anyone who stops the other parent from seeing there kids deserves every thing they get 100% if more people made a stand and did something the system would change or there would be less dogs out there whats jail hahahaha only time lost that’s it its lost any way not seeing your child”
(As per the original);
and those additional posts which are annexed to affidavit of Ms F filed by leave on 13 September 2023 namely:
(c)On the day the hearing commenced, 11 September 2023: “People are so stupid you can change your name as much as u want will never change your appearance hahahahaha stupid I never forget a face ever hahahahahahaha stupid Sunbird hahahahahaha”
(As per the original);
(d)After Judgment was reserved at approximately 5.00pm on 11 September 2023:
(i)“Hahahahaha what system pushes blokes to edge then says we can’t protect u” (As per the original); and
(ii)“3 times today the judge said […] hahahahaha got to listen when people talk they give u all the info u need even judges” (As per the original).
Furthermore the father has with some degree of arrogance, it seems to me, said:
(a)During the most recent family report interviews when he maintained he has made no threats to harm the mother or X (paragraph 31), the recorded comments seek to convey that whilst he has posted comments on social media he asserted he did not care if his comments (allegedly directed to the maternal family) caused them fear because “I just want to see my son. I just want them to stay out of my way”.
(b)At paragraph 32, the father confirmed that he had said on social media that he will see his son in defiance of any Court orders, declaring “Yeah, one hundred percent. I’ve (even) told the Judge that”. That he “told the Court” is confirmed by the transcripts tendered. Furthermore the father stated firmly that regardless of whatever orders are made he intends to locate X and speak with him.
(c)The father admitted to the Report writer (at paragraph 38); Justice Curran and in his cross examination that he still uses illicit substances. Although ordered to undertake a hair follicle test, he did not do so – I infer because he knew the results would confirm his admission of current drug use is correct.
ASSESSMENT OF RISK
I find that the father is an unacceptable risk to X and that even if the father had sought physical time orders – and without even taking into account the child’s clear wishes against time and adding the mother’s concerns, which are well founded – the Court would find it is not in the best interest of the child to spend physical time with the father.
The overall evidence strongly suggests the father has a mental health condition which is untreated because, it seems in part, it is both undiagnosed and denied by the father (see paragraph 35 of the family report).
The mother expresses, and I accept, she holds a genuine and reasonably based fear that if the father became aware of her (and the child’s) residence he might at least harass and intimate them. That that there is no evidence for some years to establish that he has approached, contacted directly or stalked the mother is more a reflection of her efforts to hide her whereabouts.
The mother has not been prepared to make an application for a domestic violence protection order under state legislation, because to do so would require her to enliven a state jurisdiction – thus confirming to the father the state in which she lives. This concern was, I infer, the primary reason the mother sought (and obtained) the orders in October 2022 from the Court. However, if the mother was under any misapprehensions about the difficulties she may face in enforcing the s 68B injunction, her attendance at a Police Station in early 2023 (as demonstrated by Exhibit 11) confirmed the difficulties. I return to this subject later in these reasons.
Before I deal with the discrete issues I need to determine, a brief and succinct summary dealing with the primary considerations (s 60CC(2)) and the additional considerations (s60CC(3)) provides some necessary context.
PRIMARY AND ADDITIONAL CONSIDERATIONS
Section 60CC(2A) requires the Court to give greater weight to the need to protect the child from physical or psychological harm than the benefit to the child of having a meaningful relationship to the parent. Sadly, X has no meaningful relationship with the father at this time, and I accept the agreed position of no physical time creates hurdles to seeking to develop any relationship.
The child’s wishes not to have any communication or spend time with the father have been consistent and, as the report writer opines, should be given significant weight. I agree. The child has no relationship with the father, or it seems, the paternal family. X is happy and secure in the almost exclusive relationship he enjoys with the mother.
I accept since separation, despite his desire to do so, for the reasons already set out, the father has not had the opportunity to spend time or communicate with X. In circumstances where the mother contends, and I accept, that her whereabouts remain undisclosed, it is not necessary to consider practical difficulties in spending time.
Whilst the father is critical of the mother – asserting by example that she has “alienated” the child from him and his family – his perspective (which I suspect he genuinely feels) ignores and minimises how his behaviour, particularly at and since separation has created a fear in the mother. I could not ignore that the mother’s fears are likely to be well known by the child. The Father says that the child is not scared of him. Ms B in her report and oral evidence opined that although X may express with a sense of bravado, that he does not fear his father he does at some level. I think the child’s lived experiences are likely to have influenced his expressed wishes, more than anything the mother has done.
ISSUES TO BE DECIDED
I rely upon, but do not repeat, earlier findings made which shape the following determinations:
(a)It is not in the best interests of X to have any telephone communication or other electronic communication with the father. Certainly to allow the father to have knowledge of a phone number that he could ring the child creates concerns (based on the father’s posts) that he would use such access to locate the child and/or the mother. Even setting up one telephone call to say “goodbye” to his son – a wish the father expressed to Justice Curran – whist raised by the Court as a possible order, is I am satisfied on all the evidence likely to cause more anxiety to the child. For the same reasons I will not order the child to communicate with the father monthly, even if, as the father offered, the father provided X with a mobile phone and phone credit;
(b)The restraints the mother seeks, and the Independent Children’s Lawyer supports, pursuant to s 68B are much wider than those contained within the interim order. Although from an ease of enforcement perspective, the speed by which the State Police are able to obtain and activate domestic violence protection orders (where an alleged breach has occurred) is why they are the appropriate protection. In this case, the mother has reduced her options. At least they, the protection orders, may offer some protection although these orders cease when the child turns 18 years (see Hedlund & Hedlund (2021) FLC 94-056 at [123]). In this regard I was invited by Counsel for the mother to find that the posts of the father should be found to constitute a breach of the interim orders of the Senior Judicial Registrar. In circumstances where no such relief, by way of any enforcement type application, was raised properly by the mother it is not so appropriate in my view to merely add on that relief. I accept the mother would need to carefully consider initiating enforcement proceedings relying on s 68B injunctions made in the orders. A number of legal hurdles may be encountered, not the least being establishing that a post by the father on his Facebook page in the terms already posted, are a direct threat to the mother. I accept the father posted them. I accept that he was aware the mother had a third person who, on her behalf (either with or without her knowledge) was keeping an eye on his posts. Whilst I am satisfied the posts that I have referred to in these Reasons, considering their timing and content were posted to unsettle the mother (and clearly have done so), whether they amount to a breach of the earlier orders is not without evidentiary problems – and where it was not an issue I was formally required to decide, I do not do so.
(c)In that regard, I do not encourage a person with no standing or interest in a case (other than as a public observer exercising the privilege offered by the Australian open justice principles) to take it upon themselves to investigate and then make comment arising from evidence heard in a trial. Whilst the deponent of the affidavit might be a highly qualified professional, the nature of some of the evidence (for example, an opinion about “themes”) and her relationship, could have created both some embarrassment and delays in this case had the Court permitted a party to cross examine her;
(d)In this respect, I have further considered the father’s affidavit in Reply sworn 19 September 2023 and further written submissions of Counsel for the father. As the evidence of Ms F, save for identifying the additional posts by the father (which he admits to), deserves little weight no purpose on balance is served in reconvening the trial so as to call Ms F to be cross-examined. In this regard written submissions filed by the Independent Children’s Lawyer at 5.48pm on 22 September 2023 have not been considered as they were filed outside of the struct time limits set out in the Order of 13 September 2023. I do not agree however with the submissions of Counsel for the mother (at paragraph 27), that the Court should not place any restraints on the child being able to change his name should he wish – without accepting the assertion that “at fifteen years of age, the mother cannot change his name if she does not consent”. That assertion can only be properly tested if the Court was examining the relevant State legislation, which the Court is not required to do.
(e)The mother should have the right to obtain a passport for the child and be permitted to travel overseas for a holiday. The father’s objection based on a concern about health risks arising from the child’s infant difficulties and travelling to a “third world” country are not made out. The mother has never travelled overseas and indicated she has no plans to do so in the foreseeable future;
(f)I have generally supported orders – even in no time cases – where a parent is able to send cards or gifts on special occasions to their child. It may convey a subtle message to a child that even when a parent is not in contact with the child, that parent still cares about them and loves them. Whilst I am prepared to accept the father does love X, the mother’s concerns about any such contact leading to her whereabouts becoming known in this case, persuades me on balance not to make such an order. Those same concerns persuade me that I should not order that the mother formally inform the father of any serious illness or injury to X. The mother knows how to contact the paternal family. The father’s residential address (and he currently lives with his parents) is disclosed in his affidavit. It is to be hoped that no serious issue arises about X’s health, but if it does, I am content to leave it to the good judgement of the mother to do the right thing.
This leaves an order that the mother seeks to change the child’s name. Her application to do so has no particularity at all, and Ms Rebehy of Counsel had to concede that the mother has not provided any evidence to establish why it is in the child’s best interests save for her assertion that it is to protect the child. A long line of authority has made it clear that changing a child’s surname has a potential significant impact on a child. The mother could have raised the issue with Ms B, so that perhaps the child’s wishes might have been recorded.
Decisions like Chapman & Palmer (1978) FLC 90-510 and Beach & Stemmler (1979) FLC 90-692 have assisted parents in understanding the range of factors a Court should consider before ordering a change of name. No real attempt by the mother to adduce much evidence was made. It is not sufficient, even on the facts of this case, to adduce no real evidence but simply to rely on a view that the mother has expressed that it will better protect the child.
The child will turn 18 years of age in 2026. As an adult he can change his name if he wishes to do so. I further note that the order the mother seeks does not (perhaps understandably) identify the name she wishes the child to carry. He has been registered at birth with the surname “[Desantos]”.
He clearly would obtain no protection as the mother seeks, from adopting the mother’s surname “[Hazelwood]”. I do not accept the submissions of the Independent Child’s Lawyer this matter is akin to achieving “witness protection”.
The mother’s application to change the child’s name, is dismissed.
Otherwise the orders which appear at the commencement of these reasons are in the best interests of X, on the evidence, at this time.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 September 2023
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