Hemman and Kallum

[2007] FamCA 1427

FAMILY COURT OF AUSTRALIA

HEMMAN & KALLUM [2007] FamCA 1427

FAMILY LAW – CHILDREN – Final parenting orders and change of name – Father attended court but failed to participate in the proceedings – Orders made in terms of mother’s application as supported by Independent Children’s Lawyer

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

D & D [2005] FamCA 356
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598
Rice & Asplund (1979) FLC 90-725
KB & TC [2005] FamCA 458
Flannigan & Handcock (2001) FLC 93-074

APPLICANT: Ms Hamman

RESPONDENT: Mr Kallum

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLF 3925 of 2003

DATE DELIVERED: 14 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J. Stewart

SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms E. Bender

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victoria Legal Aid

Orders

1. That the mother have sole parental responsibility for the child B HAMMAN-NANDAN born … February 2003.

2. That the child live with the mother.

3. That the child spend time and/or communication with the father as may be agreed between, or on behalf of, the mother and the father from time to time and evidenced in the writing providing that all such time be supervised by a person nominated by the mother (“the supervisor”) AND IT IS NOTED that the effect that this Order is that there is currently no enforceable order entitling the father to spend time with or communicate with the child.

4. That the father not consume alcohol or take illicit drugs 48 hours prior to, or during, his periods of time with the child and he notify the mother and/or the supervisor in the event that he is to spend time with the child and has within the previous 48 hours taken illicit drugs or consumed alcohol.

5. That the Court being satisfied that it is in the best interests of the child B HAMMAN-NANDAN born … February 2003 to be known as B HAMMAN:-

   (a)each of the parties henceforth exclusively use the name HAMMAN as the surname of the child B born … February 2003, now known as B HAMMAN, and not cause or permit any other person to use any name other than HAMMAN as his surname;

   (b)the mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as B HAMMAN-NANDAN to B HAMMAN, and the said Registrar do register the said child’s name as B HAMMAN.

6. That as soon as is reasonably practicable, the mother:-

   (a)provide to the father a copy of each school report in relation to the child provided that the mother be at liberty to first delete any reference to the name or vicinity of the educational institution attended by the child and this Order does not apply to any reports issued prior to 2007;

   (b)advise the father of any significant health issue concerning the child;

   (c)provide the father with at least one photograph of the child in each 12 month period commencing 1 July 2007.

7. That the father make a contribution to the mother’s costs of and incidental to the Court events on 4 April 2007 and 11 May 2007 such contribution to be fixed in the sum of $664 and the payment be made by 4pm on 14 August 2007 directly to the solicitors for the mother.

8. That the father advise and keep advised the mother of a postal address to which she can send the school reports and photographs referred to in paragraph 6 of this order and a telephone contact number through which the father can be advised of any health concerns affecting the child and, for the time being and pending any advice in writing by the father to the contrary, the address to which the mother can send all such correspondence and items is …, C and the father’s contact telephone number is ….

9. That the father’s response filed on 25 July 2005, insofar as it sought parenting and other orders, be and is hereby dismissed it being the case that he elected not to prosecute those proceedings before the Court.

10. That the amended application of the mother filed on 8 November 2006 be otherwise dismissed.

11. That this matter be removed from the pending cases list maintained by the Court.

12. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

13. That all exhibits tendered in these proceedings be returned, to the party on whose behalf the exhibit was tendered, at the expiration of one calendar month unless an appeal is lodged.

14. That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner at the expiration of one calendar month unless an appeal is lodged.

15. That the Order made on 11 September 2003 requesting the appointment of an independent children’s lawyer be and is hereby discharged with effect from

    
    15 June 2007

    .

16. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the independent children’s lawyer.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3925 of 2003

MS HEMMAN

Applicant

And

MR KALLUM

Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. These proceedings concern the child B, born in February 2003, and was heard by me today on the basis that the mother is the applicant and seeks certain parenting orders which are wholly supported by the independent children's lawyer. The father, whilst he attended court, did not take part in the proceedings but sat at the bar table and observed. 

2. Pursuant to an order made on 11 September 2003, Mary Lonergan of the Legal Aid Commission of Victoria was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Act.  As such, her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1] She is not a legal representative retained by the child and she is not bound by any instructions from the child.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

3. The applicant's application was filed on 2 May 2007.  The mother seeks sole parental responsibility for the child, that the father's entitlement to spend time with the child and communicate with the child as may be agreed between her or on her behalf and the father from time to time, and that she be at liberty to change the child's family name from that which appears on his birth certificate as "[Hamman-Nandan]" to her family name of "[Hamman]". I have pronounced orders in this matter and what follows are my reasons for making those orders. 

4. The father is nearly 32 years of age.  He was born in June 1975.  The mother is 25 years of age.  She was born in September 1982. 

5. The parents commenced to live together in February or March 2002. In February 2003 the parties' tenancy of rented premises in Geelong was terminated for non-payment of rent and the mother went to live with the maternal grandparents in Melbourne’s western region.  At that stage the parents had just been delivered of the child who was born in February 2003. 

6. The parents resided together for some time with the maternal grandparents, but eventually the parents separated, with the father leaving the maternal grandparent’s residence in approximately June 2003. The mother alleges that prior to that time there were significant instances of violence with which I will deal later in these reasons. 

7. It is common ground as between the independent children's lawyer and the mother, and it is not otherwise contested by the father, that since the middle of 2003 there has been no direct communication between the mother and the father.  In late June 2003 there was a brief involvement by the Department of Human Services (“DHS”).  It appears that that was as a consequence of a notification made by the father to DHS in relation to the mother's care of the child.  No action was taken. 

8. In the context of what the mother has deposed was a threat by the father to remove the child from her care, the mother issued proceedings in this court on

   
   17 June 2003

   .  In July 2003 the mother obtained an interim intervention order against the respondent father pursuant to state domestic violence legislation.  The first event in this court was on 29 June 2003 when the parties attended a case assessment conference.  It was directed that they attend some conciliation counselling on 9 September 2003 and the matter was listed for an interim hearing on 11 September 2003.  It is not clear that the parties attended any form of mediation or conciliation on 9 September 2003, but a memorandum on the court file indicates that on 11 September 2003 the parties were seen separately by Family Consultant, Mr F.  There was no resolution of the matter.  It was recommended by Mr F, however, that an independent children's lawyer be appointed.  

9. At this point the mother's application was for the parents to have in effect joint parental responsibility and for the father to have such time with the child as may be agreed. The father's application was contained in a response filed on

   
   4 August 2003

   in which he sought orders for joint parental responsibility and for regular unsupervised time with the child, including overnight from 4pm on Friday until 4pm on Sunday each week and from midday until 4pm each Wednesday.  He sought that the child otherwise reside with the mother. 

10. On 18 August 2003 state family violence proceedings came before the Magistrates Court for a contested hearing. An order was made on 18 August 2003 for the personal protection of the mother and it was expressed to last until 19 August 2004.  It has since lapsed. 

11. On 11 September 2003 the matter came before Senior Registrar FitzGibbon in this court by way of interim hearing.  It was ordered that the child live with the mother and the father spend time with the child for two hours each Sunday under the supervision of Ms L. An independent children's lawyer was appointed in due course.  The supervisor provided for in the orders made in September 2003 ceased to be available and on 9 December 2003 there was a further interim hearing before the Senior Registrar in which the interim parenting orders were varied to provide for the child to have a minimum of four hours on one day each week with the father as supervised by the paternal grandmother. Otherwise, the father was to complete a parenting course and submit for supervised random urine tests. 

12. It appears that the father did complete the parenting course.  I am informed by counsel for the independent children's lawyer from the bar table, and accept, that on 17 occasions from 5 March 2004 to 25 February 2007 she has requested that the father undergo a supervised urine test to detect the use by him of illicit drugs.  He has only complied on one occasion and that was in May 2005 when the relevant result indicated that his system was clear of illicit substances. In May 2004 the father ceased to be represented by his then solicitors. In February 2005 orders and directions were made at a trial notice list to set the matter on a path for a final hearing.  Amongst other things, the court ordered that a family report be prepared and in due course and Mr H was nominated as the counsellor.

13. The father did not present for the assessment with Mr H and whilst a report was produced, the matter was placed in the defaulters’ list. 

14. On 1 July 2005 in the defaulters’ list it was ordered that the father file and serve the affidavit material upon which he relied and a very modest order in the sum of I think $100 was made against the husband by way of contribution to the mother's costs.  I understand that amount remains unpaid.  On 25 July 2005 the father filed an amended response in which he still sought that the child live with the mother but spend time with him each alternate weekend from 6pm on Friday until 6pm on Sunday.  On 17 August 2005 the matter came before the court by way of a pre-trial conference, the purpose of which was to set the matter down for hearing. 

15. The mother in her affidavit material deposes to having been made aware of a threat to kill communicated by the father but directed to the mother. The proceedings were adjourned to the trial notice list. 

16. On 3 November 2005 the father's then solicitors ceased to act on his behalf and since that time he has represented himself. 

17. In June 2006 the paternal grandmother withdrew as the supervisor for the time which the father was entitled to spend with the child. The matter was not returned to court.  Instead, the maternal grandfather stepped in as a supervisor and has regularly facilitated and supervised the father spending time with the child. That has not been necessarily each week or even each alternate weekend.  It has depended upon the availability of the maternal grandfather.  It has also not been for a period of four hours on each occasion.  In fact it appears from the evidence of the maternal grandfather, which is not in any way contested, that the periods have varied from 40 minutes to two hours, depending on the contentedness or happiness of the child to stay. 

18. On 20 October 2006 the matter was again given directions for a final hearing.  On 8 November 2006 the mother filed the amended application that I am today asked to determine. In that amended application the mother sought an order that the child's family name be changed to Hamman, thereby deleting the family name of Nandan. Nandan is the second component of the hyphenated family name in which the child's birth was registered. 

19. As part of the court's preparation of the matter for trial, a further family report was ordered.  It was allocated to Ms N, family consultant, who saw the parents on 17 January 2007 individually and in the presence of the child. 

20. Ms N's report is dated 29 January 2007.  It was released on 8 February 2007.  For the avoidance of doubt, I have received it into evidence this day in case it had previously not been put into evidence.  As will appear from these reasons, the report seems to me to be a well-reasoned report.  The observations of the counsellor do not strike me as in any way being inconsistent with my own.  The consultant's qualifications were not put in issue.  As will become apparent, I consider that significant weight can be given to the expert opinion of Ms N. 

21. On 4 April 2007 the matter went back into the defaulters’ list and there was a hearing before Mushin J. The mother's costs of that day were reserved.  Certain orders were made. 

22. On 11 May 2007 there was a further court event at which the parties were required to be represented and the matter was listed for a final hearing today. 

23. But returning to the real substance of the case, since the parties filed their application the Family Law Act 1975 has been significantly amended by the FamilyLaw Amendment (Shared Parental Responsibility) Act 2006 (“the amendments”), the provisions of which came into operation on 1 July 2006.  Certain procedural elements of the amending legislation do not apply to this case as it was commenced before 1 July 2006.  The new law is complex so

    
    

    I will set out the relevant provisions in this judgment. 

Evidence

1. At trial the applicant relied upon the following evidence:-

   ·    her affidavit of evidence-in-chief sworn on 2 May 2007;

   ·    the affidavit of her father, the maternal grandfather, sworn on 2 May 2007;

   ·    her viva voce evidence which was brief and confined to a correction in relation to her weekly income, the basis upon which she believes that the child will be able to continue to see the father without there necessarily being any order entitling either the child or the father to do so, and the basis of her concerns about the father knowing the whereabouts of any school which the child will attend. 

2. The respondent father does not participate. He was present in court when

   
   

   I went through the mother's documents with counsel for the mother.  The father has filed a response, an amended response and some affidavits earlier in these proceedings, the last being filed in 2005.  However, he said he relied on nothing.  When I asked the father, he said that he did not seek to cross-examine the mother or the maternal grandfather, nor the family consultant.  When the mother gave the evidence in relation to the basis of her fear about the father knowing the school at which the child is to attend the father did indicate that he wanted to cross-examine the mother.  I allowed him to do so.  However, given the opportunity, he made a brief statement, he did not pose a question. 

3. For all intents and purposes, the father has been an observer in these proceedings.  He has not been a participant. 

4. The independent children's lawyer relied on the report of Ms N to which I have earlier referred.  She also tendered one paragraph of an affidavit affirmed by the father on 22 July 2007, being paragraph 3 which reads as follows:

   I was born on […] June 1975.  I am currently 30 years of age and I suffer Bipolar and thus I have to take medication, namely Zoloft and Zyprexa. 

   
   

   I adhere to all my medication on a regular basis.  I had an emotional breakdown in December 2004 and since this time I have been on this medication that I have adhered to. I am monitored by my psychiatrist,

   
   

   Dr [R]. 

5. Obviously the father is not qualified to give evidence of his own mental health or medical state, however, it is clear that in the context of these proceedings and in July 2005 the father was accepting of the proposition that he was suffering from mental illness which required medication and that he was compliant in the taking of medication.  It is also clear that his mental health was being "monitored" by an appropriately qualified person.  It cannot be said that any such evidence exists in relation to the current situation. 

6. I had a brief opportunity to observe the mother give evidence.  She appeared to give evidence fairly carefully and in a fairly tentative way.  At one point she seemed close to tears in response to what was a relatively neutral question.  She impressed me as being of fairly fragile emotional state and quite possibly not merely as a result of the tension of the final hearing which was conducted today. 

Findings of fact

1. In assessing the evidence, I apply the balance of probabilities as the standard of proof.  In the unreported decision of Justice Carmody in D & D [2005] FamCA 356 delivered in Brisbane on 11 May 2005, his Honour analysed comprehensively the ‘standard of proof’ applicable in family law proceedings and made the following observations:-

   [140] The relevant test is found in s 140 of the Evidence Act, 1995 (Cth).  Sub-section (1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.  Sub-section (2) introduces notions of weight and variability into the forensic process

   …

   [145] Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings in his judgment in Re: H & Ors[5] in the context of a wardship application.  His Lordship relevantly stated:

   "Despite their special features, family proceedings remain essentially a form of civil proceedings.  Family proceedings often raise various serious issues, but so do other forms of civil proceedings. 

   The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. 

   Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".

   [146] What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [6] 

   [147] Thus, civil proof is not a simple matter of belief and persuasion but of "reasonable satisfaction" following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s 140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw[7] and in the light of the parties' respective power or capacity to produce or contradict it. [8]

   [148] The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters.  However, the law looks for probability not certainty.  There are degrees of probability but, when the law talks about "the balance of probabilities", it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not.

   [149] Where, as here, proof of a fact in issue hinges on rational inferences based on circumstantial, as distinct from, direct evidence, the conclusion contended for must be rational and reasonably open.  There has to be something more than mere conjecture or suspicion.  A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes.”

   [5] (1996) 1 All ER 1, 16.

   [6] Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.

   [7]  See generally, A Ligertwood, Australian Evidence (2004, 4^th ed) 82-83.

   [8] Blatch v Archer (1774) 1 Cawp 63, 65; 98 ER 969, 970. See also Vetter v Lake Macquarie City Council (2001-2002) CLR 439, 454[36]; Burke v LFOT Pty Ltd (2002) 187 ALR 612, 647[134].

1. In this case the mother's evidence is not challenged in any way and that constitutes the evidence that she gives and also the evidence of the father.  The opinion or expert evidence of Ms N is also not challenged. 

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act.  Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.  

2. Subject to the best interests of the child being the paramount consideration,

   
   

   s 60B sets out the aims and principles of Part VII.  The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case.  Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive. 

3. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The objects may be regarded as the core values of the legislation.  Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests. 

5. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the child’s best interests:-

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. 

Determining the child’s best interests

1. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in

   
   

   s 60CC of the Act. 

The primary considerations

1. The primary considerations echo the first two objects set out in s 60B of the Act.   The primary considerations are set out in s 60CC(2) and are described as follows:-

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The benefit of a meaningful relationship as a primary consideration

1. I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the father and the child by reference to additional considerations.  It is a prospective enquiry.  I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of the child’s parents is going to be beneficial and of advantage to the child into the future. 

2. The mother does not dispute that there is a benefit to the child having a meaningful relationship with the father.  The evidence that I have had to weigh and draw conclusions on in these proceedings relates to how a meaningful relationship can be maintained between the child and the father in circumstances where I am far from satisfied that a necessarily meaningful relationship now exists.  As indicated, the mother's position is that the child should continue to see the father but on a strictly supervised basis facilitated by her father in whom she appears to place complete trust and who it appears is able to constructively be present and supervise the time that the child spends with the father. 

3. In essence, the mother's case is that she will do her best via supervised time to have the child have as meaningful a relationship with the father as is possible. 

Protection from harm – as a primary consideration

1. The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.

2. The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[9] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[10]

   [9] s 4(a) Family Law Act 1975 (Cth).

   [10] s 4(b) Family Law Act 1975 (Cth).

3. ‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[11]  

   
   

   A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances.  ‘Neglect’ is not defined in the Act. 

   [11] s 4 Family Law Act 1975 (Cth).

4. This factor also requires a prospective evaluation.  As such, I must assess the future risk of exposure by the child to physical or psychological harm and formulate orders which protect her from that harm. 

5. In this case the mother's evidence is that there was significant violence perpetrated by the father to her during their relationship.  She deposes:-

   [9]. The Respondent was physically, verbally and emotionally abusive towards me during our relationship and it was the Respondent’s attitude to wards both [the child] and I and his failure to accept his personal responsibilities in respect of [the child], which ultimately, led to the breakdown of our relationship.

   [10]. Following our separation, the Respondent continued to verbally and emotionally abuse me and made threats against me. In this respect:-

   a) The Respondent suffered from severe mood swings during our relationship and his behaviour was erratic and unpredictable.  Some months into my pregnancy, the Respondent threatened to take me to Geelong to have an abortion.  I did not want to have an abortion, was some months pregnant at the time and communicated this to the Respondent. The Respondent reacted violently, pushing me against a fence on the Geelong Bridge, and choking me.  Fearful of the Respondent, I did not report the incident to police.  The following day, the Respondent was apologetic and told me that he loved me.

   b) Shortly prior to our separation, the Respondent threatened that he would make an application to the Honourable Court, to “take [the child] away..” from me if I left him.

   […]

   d) On 16 June 2003, the Respondent attended at the home of my parents, under the pretence of discussing our relationship and the return of my motor vehicle. During the course of our discussions, the Respondent threatened to commit suicide, and showed me cuts on his left arm, which he said he had done with a broken razor blade.  The Respondent suggested that he had tried to overdose, and told me that he had taken a handful of his father’s prescription drugs. I was concerned for and felt sorry for the Respondent and so, suggested that he go home, take my car and return it another day. 

   e) Between June 2003 and August 2003, the Respondent sent numerous harassing and threatening text messages to my mobile phone. 

   g) I am told by my solicitors and verily believe that at the Pre Trial Conference on 17 August 2005, and in response to my proposal to travel to Thailand for a holiday, the Respondent threatened to kill me, saying to his then solicitors words to the effect of “… If she goes to Thailand, she’ll come back in a coffin”.  I believed that the Respondent would carry out his threats against me. A statement was made by my solicitor to police in respect of the Respondent’s comments.  Notwithstanding, the Respondent denied making such statements and no further action was taken by investigating police. The Respondent’s then solicitors filed a Notice of Ceasing to Act on 3 November 2005. 

6. Not all of the above paragraphs depose to instances of physical violence, but all are confined to abusive or violent behaviour between the adults. 

7. It was conceded on behalf of the mother that there has been no violence or abuse directly specific to the child and that the mother's case in this respect was really put on the basis of the parenting capacity.  It seems to me, having had the benefit of reading the evidence, that that was an entirely appropriate concession to make. 

Treatment of the additional considerations

1. The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive.  It is only necessary to consider those which are relevant to this case and then is a fairly curtailed manner because there is no opposition to the orders sought by the mother.  I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the child the benefit that may flow from having a meaningful relationship with both parents and ensuring that he is protected from harm and exposure to abuse, neglect or family violence. 

2. Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[12] 

The child’s views[13]

[12] B and B: Family Law Reform Act (1997) FLC 92-755.

[13] s 60CC(3)(a) Family Law Act 1975 (Cth).

1. In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.  Previously there was a similar provision,[14] which required the court to take into account the child’s ‘wishes’. There is significant jurisprudence from this court in relation to children’s wishes which, as will become apparent,

   
   

   I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act.

   [14] The repealed s 68F(2) Family Law Act 1975 (Cth).

2. The Full Court of the Family Court considered children’s wishes in

   
   R & R: Children's Wishes

   (2000) FLC 93-000. The Court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944:

   The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.  

3. There is a distinction between the concept of children’s wishes and children’s views.  ‘Views’ will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion.  ‘Wishes’ are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind.  The requirement to focus on the child’s views, as opposed to wishes, means that I may have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make enquiries or elicit the child’s ultimate preference or wish.  

   
   

   I agree with the reference in the Revised Explanatory Memorandum[15] that consideration of the children’s views will:

   … allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[16] 

   Consideration of a child’s views does not exclude consideration of a child’s wishes. 

   [15] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).

   [16] Ibid paragraph 56.

4. Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare.  This process was is described by the Full Court in R & R , in relation to children’s wishes, as follows:-

   42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications.  Ultimately the overall welfare of the child is the determinant.  That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view. 

   54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested.  Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.

5. I consider that in the discussion by the Full Court in R & R, reference to ‘wishes’ may be read interchangeably for ‘views’. 

6. The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[17] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[18]

   [17] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.

   [18] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.

7. The child is only four years old.  The evidence before me does not indicate that he has articulated any wishes and nor has he articulated any views.  There was an extended period of observation by the family consultant of the father and the child and that is set out in her report on pages 6, 7 and 8 as follows:

   [35]. [The child] was in the toilet when [the father] entered the child mind room, and he immediately tried to go into the toilet, even when the Family Consultant asked him to wait. However, [the father] kept calling out to [the child], whilst telling the Family Consultant that [the child] might need him. Then [the child] came out, and his father told him to hold his hand. [The child] refused to do this, walked to the slide and ignored his father.

   [36]. Whilst [the child] was on the slide his father asked him to “come here”, and when [the child] refused, his father’s response was “don’t say no to Daddy”. [The child] then told his father he was playing, and then [the father] informed the Family Consultant that [the child]’s speech should be better for a 4 year old, as his other son had better speech at the same age, and that ear infections were common on his side of the family. [The child] could hear this conversation. Then [the father] called [the child] four times, getting louder each time, and asked if he wanted to draw a picture. [The child] refused, and his father told the Family Consultant that this is how he normally behaves, and he continued to talk about [the child] in front of him. Then he told the Family Consultant, apropos of nothing, said, that “his mother won’t get a god damn cent from me”.

   [37]. He then commented that [the child] was wearing the same clothes as he had at the weekend. The Family Consultant stated that the clothes were clean and had probably been washed since then, (this was Wednesday), and then his father said that he “expected [the child] to wear new clothes each day. What ever he touches when we go shopping we buy. I will not see my child without like I did as a child”.

   [38]. The Family Consultant then asked [the father] and [the child] to accompany her to the child assessment room, as there were too many distractions in the child minding room. On entering this room [the child] went to the sandpit, and when his father asked him a question he answered “because”, and his father told him not to say that to him. Then, out of the blue, [the father] told the Family Consultant that “his mother lay in bed and did nothing”. The Family Consultant then asked him to concentrate on [the child] and not talk to her, but [the father] seemed incapable of doing this for any length of time, except to tell [the child] how not to behave.

   [39]. Then his father asked [the child] questions, such as did he like apples or bananas, and then asked the Family Consultant “do we just sit here?” When told she was just watching their interaction, he said, “then that’s about it, unless I roll on the floor and he leaves marks on my face”.

   [40]. When his father then asked [the child] to show him what he was doing, [the child] refused, his father then told him he was stubborn, yelled at him to come to him, and then said he was a naughty boy. After the above, his father actually interacted with [the child] by holding a small container whilst [the child] filled it with sand. This continued until [the child] moved to the black board, and when his father asked him for a kiss, he refused, and his father said, “you are my son, you belong to me”. Still [the child] refused to kiss him.

   [41]. The above continued, with [the father] asking [the child] to do something, and [the child] refusing, until [the father] again began talking to the Family Consultant, saying “when my oldest son was 4 he was pulling apart radios. I try to bring them up with no violence. His mother made it clear it was around him. She was untouchable because of her father being with the police. She had PND. It can last 5 years. She got depressed and moved to her parents’ home. I told her she hadn’t bonded with him like me. He was my reason for everything”.

   [42]. Then [the child] began knocking on the wall, his father told him not to, and picked him up and told him he was leaving. “Give Daddy a kiss”, and [the child] did, “say you love Daddy”, and [the child] said “no”. When he finally said goodbye to [the child], [the child] squirmed and kept looking away from his father.

   [43]. In the waiting area [the father] asked the Family Consultant how it went and she told him that in her opinion there were some issues. His response was, “that’s because of his mother, and I’m not seeing enough of him”, and as he left he stated “I’m the voice of authority here”. The Family Consultant could hear [the child] screaming and screaming as his father left the room.

   [44]. In the Family Consultant’s view, [the father] had little idea how to talk to his son, other than to reprimand him and in a loud voice. He also had no understanding of what should and should not be said in the presence of a child, and no insight into his affect on [the child].

1. From the interaction that was observed by the family consultant, I extrapolate that currently the child has a fairly indifferent attitude to seeing the father. Of course he is too young to appreciate the long-term implications of any such position and even if he did express any other view, I would have difficulty according much weight to it. I also note that in relation to the mother's application to change the child's family name to refer only to her family name of Hamman, the child has not expressed any views specifically.  The mother's viva voce evidence was that the child refers to himself as being Hamman and does not use the other family name appearing in his birth certificate.

The nature of the child’s relationships[19]

[19] s 60CC(3)(b) Family Law Act 1975 (Cth).

1. I consider the nature of the child’s relationship with each of the parents and other persons inclusive of grandparents and other relatives. 

2. The unchallenged evidence before me satisfies me that the mother has an appropriate and loving relationship with the child.  The family consultant made the following observations in her report:

   [45]. When his mother entered the child minding room [the child] rushed towards her and then ran to the table and together they played a game, with them both looking at the box, in order to work out how to play the game. [The child] appeared calmer and more settled with his mother, and did not refuse any of her requests, which were minimal anyway.

   [46]. [The child] then told his mother he had played in the sand with his father, and then, when he wanted a toy another child had, and his mother told him he had to share toys, he cried and cried, and his mother cuddled and comforted him on her lap. After he had settled down, they drew together at the table, and on his way out [the child] began playing with the train set, and appeared to have recovered from his previous upset.

   [47] [The mother] handled him well, was able to console him, and he showed none of the open defiance he had shown to his father.  It was clear that their relationship is warm and [the child] feels secure and loved by his mother. 

3. In a written summary of argument the mother draws a distinction between the nature of the relationship which she has with the child and the nature of the relationship that the child has with the father.  It is submitted that the child's relationship with the father appears to be strained and somewhat defined, that the father exhibited a proprietorial and controlling attitude toward the child and that the father's preoccupation with denigrating the mother in the presence of the child, a propensity to blame the mother for certain matters and an apparent lack of insight into his own behaviour and attitudes and how they may impact upon the child and his psychiatric or psychological health were impediments to the father developing or maintaining a relationship.  It is fair to say that those matters are accessible from the observation of the family consultant and the father which is set out in her report. 

4. However, even leaving aside the evidence of the mother and the expert evidence of Ms N, the uncontested evidence is that the parents separated when the child was very young.  Thereafter they maintained a relationship until only June 2003 by which time he was four months old.  Since that time the father has not had any overnight time with the child and has seen the child on a weekly or fortnightly basis for somewhere between 40 minutes and four hours, but most recently something less than two hours on each occasion. 

5. I have regard to the observations made by Ms N which are extracted above.  I accept her observations as being accurate.  I am satisfied that any relationship between the child and the father is really in its earliest stages.  At this  stage, the relationship between the child and the father:-

   a)can be built upon and consolidated; or

   b)it could wither and not amount to a relationship of much significance to the child in the long term. 

6. I also consider the relationship of the child with the maternal grandparents.  He lives in their home and he would regard them as carers and nurturers, although not to the primary extent that he would regard the mother.  They are significant persons in the child's life, but the orders sought by the mother do not in any way impact upon that. 

7. I consider the relationship of the child with the paternal grandmother who for two and a half years supervised weekly visits of some four hours duration between the father and the child. It must have been during that time that the child had an opportunity to develop some relationship with the paternal grandmother. There is not any evidence of this. I raise it now only in the context of my observation that the fact that the child does not have an ongoing relationship with the paternal grandmother is that the father has severed that relationship in June 2006.  It is a matter of the father's doing.

8. Of course I take into account the nature of the child's relationships with his parents and others in the context of the mother's application to change the child's family name to refer only to her own. That will mean that the child continues to be referred to by the same family name as the mother and the mother's parents (who are the persons with whom the child lives).  I am satisfied that permitting the mother to alter the child's family name will not adversely impact in any way on the relationship which the child has with the father.  As I have indicated, the father has not participated in these proceedings. 

The willingness and ability of each parent to facilitate and encourage the children’s relationship with others[20]

[20] s 60CC(3)(c) Family Law Act 1975 (Cth).

1. I am required to consider the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.  It is also necessary for me to assess the extent to which each of the parents has, to date fulfilled or failed to fulfil their obligations or frustrated the other parent’s participation in this regard.[21] 

   [21] s 60CC(4) Family Law Act 1975 (Cth).

2. I am satisfied that the mother has been prepared to facilitate and encourage a relationship between the child and the father.  I note that the family consultant at paragraph 48 of her report refers to "[The mother] believes that [the father] will eventually be permitted to spend unsupervised time with his son. She is very concerned as to whether he will be able to care for [the child] on his own and whether [the child] will be safe with him", from which I infer that the mother has not only maintained what relationship she can until now but has turned her mind to how the relationship may develop in the future. 

3. As should be apparent from the history set out above, the supervisor for the father's time with the child from September 2003 to December 2003 was a person then associated with the father.  Thereafter, when that person ceased to be available because of some disagreement with the father, the paternal grandmother was nominated as a supervisor.  That was acceptable to the mother and continued for about two and a half years.  Then there was a breakdown in the relationship between the father and his own mother such that the paternal grandmother was not prepared to continue to supervise time between her son and her grandson.  At that point I feel safe in concluding that the mother could have not taken any proactive or constructive steps to continue an arrangement whereby the child saw his father. The ball was clearly in the father's court to come back to court and regularise whatever time he would have in the future.  However, it was not necessary for him to do so because, without any apparent delay, the maternal grandfather stepped in and has continued to supervise time between the father and the child such as his work and other commitments permit. 

4. At this stage I should mention that the mother's father is employed.  He holds a senior position with Victoria Police.  From that, I infer that he works a regular week, perhaps even some overtime.  He is 48 years old.  He resides with the mother's mother, the maternal grandmother, in their home in Melbourne’s western region.  I am prepared to conclude that he is probably at a time in his life when he could look forward to some peace and quiet on weekends when he does not have to work, but it is the case that every week or every fortnight or whenever he is able he takes a trip of approximately one and a half hours round trip from the maternal grandparents residence to the father’s residence and sits with the child and the father whilst they spend time together.  He does so in the father's home.  The father is not critical of his involvement in contradistinction with the father's attitude to his own mother. 

5. In paragraph 21 of the family consultant's report he refers to the maternal grandfather's involvement as follows:-

   Because I asked her to so she could see him too [the paternal grandmother] supervised this time for a year. Then he fell out with his mother who would argue with him in front of [the child] and tell him not to touch [the child].  "I'm the parent and I'll touch him.  I'm sick of the theatrics." Then after a friend supervised for a period of time, [The mother]'s father took over the supervision and it "goes very well.  He doesn't discipline me, is good and he joins in".  However, he stated that often lately [the child]'s grandfather has had other commitments and so he misses out on seeing him and that for the past six weeks he's only seen [the child] fortnightly. 

6. The fact that the mother has enlisted the support of her father to facilitate the time that the child and his own father can spend together is indicative of the fact that she has facilitated and encouraged a relationship between the child and his father. 

7. There has been occasions when the maternal grandfather has not been available.  That is accepted by the family consultant who opines in paragraph 52 of her report that:-

   Unfortunately, [the mother]'s father cannot be expected to continue his supervision of [the father] indefinitely and unless there is another appropriate supervisor available, the family consultant recommends that [the father]'s time with [the child] takes place at the [local] Children's Contact Centre for two hours each fortnight.

8. The mother does not embrace the child contact centre as a viable alternative to using her father as a supervisor.  A children's contact centre would obviously have the benefit of being available for an extended period on a reliable and regular basis.  I accept that period would not be indefinite. 

9. I am satisfied that in the mother not taking up the recommendation of the family consultant this in no way indicates an unwillingness on her part to facilitate a relationship. As I will deal with later in the context of considerations pursuant to s 60CC(3)(e), there are very sound grounds why the current arrangement ought to continue in favour of the involvement of the contact centre. 

The likely effect of any changes in the children’s circumstances[22]

[22] s 60CC(3)(d) Family Law Act 1975 (Cth).

1. In determining what is in the best interests of the child I am required to consider the likely effect of any change in the child’s circumstances particularly in relation to separation from his parents, other children, wider family including grandparents and other persons with whom the children have a relationship.

2. The orders that I will make accord with the mother's application and do not involve significant changes for the child.  The child will continue to reside in the care of the mother with her supported by her family.  The mother's father will continue to supervise time between the child and the mother, at least insofar as can be agreed on behalf of the mother and the father.  I did hear viva voce evidence from the mother in relation to her preparedness for this to continue into the future.  I am satisfied that whilst there will be no legal compulsion for her to see that the time occurs, that she will continue to do so.  That is because she has done so in the past in circumstances where I am satisfied there was justification in her not doing so. 

3. I have considered the likely effect of any changes in the child’s circumstances also in the context of the mother's application to change his family name.  The mother seeks to delete the reference to the name associated with the father, being Nandan.  But that is not a change for the child because, as far as the child is concerned, I accept that he has not used that name.  There is of course no alternation to the father's details as they appear in the birth certificate now issued and will continue to appear in the new birth certificate which issues showing the child's family name as merely "[Hamman]". 

Practical difficulties and expense associated with contact[23]

[23] s 60CC(3)(e) Family Law Act 1975 (Cth).

1. I consider the practical difficulty and expense of the child spending time with and communicating with the parent with whom he will not be living and whether this will affect his right to maintain personal relations and direct contact with both parents on a regular basis.

2. There is no direct evidence in relation to the father's means of transport.  In the family report it is apparent that he told Ms N that:

   He now wants to spend time with [the child] from Saturdays at 3pm until Sundays at 3pm weekly and for [the mother] or her father to do all the transport as he no longer has a car or motorcycle.  The changeover venue would be at his home. 

3. As I indicated earlier in relation to the father's income, I do not have any direct evidence about transport.  I am similarly not satisfied that he has the means to transport himself to a contact centre and that would represent a significant practical impediment to using a contact centre.  In the context of this additional consideration, the mother's proposal, which I have ordered, best provides for the child's needs. 

4. The unchallenged evidence of the maternal grandfather, in particular paragraph 18 of his affidavit sworn on 2 May 2007, makes it apparent that there is considerable flexibility about the time that the child spends with the father.  It can be as short as 40 minutes or up to two hours each week.  That flexibility is achievable because the grandfather remains with the father and the child.  He is able to step in and conclude the visit when it appears to both the maternal grandfather and the father that that is what the child wants to do.  That is a factor which I take into account when making orders predicated on the maternal grandfather's ongoing involvement.  

5. Counsel for the mother made a submission to the effect that alternative arrangements for the father to spend time with the child such as a contact centre may be counterproductive in that they could actually change the tenor of the relationship, the attitude of the father and the child to spending time together. 

   
   

   I accept those submissions. The father's own indications to the family consultant make it clear that he does not regard the maternal grandfather's involvement with any hostility. 

Capacity of the parents to meet the children’s needs[24]

[24] s 60CC(3)(f) Family Law Act 1975 (Cth).

1. In determining what is in the best interests of the child, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs. 

2. There is no issue in relation to the mother's parental capacity. 

3. There is a very significant issue in relation to the father's parental capacity; that is, his capacity to provide for the child's needs, including his emotional and intellectual needs. As set out at the beginning of this judgment, the independent children's lawyer tendered one paragraph of an affidavit previously sworn by the father in which the father accepted that he had a mental illness which required treatment and he was being compliant with treatment.  There is no such evidence before me now. 

4. I have already set out in detail above the family consultant's observations of the child with the father, the interaction and lack of interaction between the child and the father, the father's imprudent and inappropriate remarks in the presence of the child, the father's assertion that "I want to aggressively parent" the child, indicate that the father currently lacks the requisite capacity to relate to the child and to engage the child in a manner enjoyable to the child at the moment.  I accept the submission made on behalf of the mother that absent a significant change in the father's behaviour there would appear to be little prospect of the father acquiring the capacities and the skills that I am satisfied he now lacks. 

5. Returning briefly to the mother's parental capacity, I accept the submission of her counsel that having returned to the home of her parents and enlisting their support on a day-to-day basis for herself and the child the mother has shown a responsible and careful attitude to her parenting. 

The children’s maturity, sex, background and other characteristics[25]

[25] s 60CC(3)(g) Family Law Act 1975 (Cth).

1. I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and his parents. 

2. It appears that the child is a child who is meeting developmental milestones.  There is mention in the report of the father's Sri Lankan background which of course is also part of the child's background. There is no evidence, however, upon which I can be satisfied that the child's Sri Lankan heritage has made its way into his lifestyle or into his day-to-day culture. At paragraph 11 of the family consultant's report she records:-

   [The father] does not have contact with his mother.  He has not seen her for the past three and a half years.  He sees his father twice a week, speaks to him daily and wants [the child] to be involved with his extended family that is Sri Lankan. However, at the moment they do not see [the child], although the paternal grandfather has seen him twice. 

3. The considerations which are relevant under s 60CC(3)(g), in my view, relate more to the maintenance of cultural heritage than to the introduction of a child to their cultural heritage. The first step in this case, and absent any application brought independently by the paternal grandparents, is for [the child] to develop a relationship with his father before the additional consideration of [the child]'s experience as a person of Sri Lankan heritage really comes to the fore. I have taken into account [the child]'s background also in relation to the mother's application to change his family name. The mother's evidence, which is not challenged, is that the family name of Nandan reflects the paternal grandfather's family name. I note that the birth certificate which has been tendered as exhibit “M1” describes the father as being Mr Kallum. The family name of Nandan does not appear as a component of the father's name at all as shown on the birth certificate.

4. There is no evidence which suggests to me, much less satisfies me, that deleting the reference to Nandan as part of the child's family name will in any way adversely impact on his cultural heritage or his background.  I note that the orders that I have made do not have the effect of in any way excising the reference to the father from the child's birth certificate. 

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[26]

[26] s 60CC(3)(i) Family Law Act 1975 (Cth).

1. I must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil his/her responsibilities as a parent.  This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[27] with and communicate with[28] the child and to participate about major long term issues concerning child[29].  It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the child financially[30] or otherwise maintain the child.  It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare[31] and the other parent communicating with the child[32] or spending time with the child.[33] 

   [27] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).

   [28] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).

   [29] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).

   [30] s 60CC(4)(c) Family Law Act 1975 (Cth).

   [31] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).

   [32] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).

   [33] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).

1. I am required, and do, have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[34]

   [34] s 60CC(4A) Family Law Act 1975 (Cth).

2. On the unchallenged evidence of the mother I conclude that she has discharged her parental responsibilities more than adequately in relation to the child by the provision of day-to-day care, financial support and emotional support.  I accept the submission of counsel for the mother that she has also acted responsibly by facilitating an ongoing relationship between the child and the father to the extent that she has.  On the other hand, I am satisfied that the father has largely been a disengaged participant in the child's life to date. 

3. The financial support that he has made to the child's household appears to be confined to a child support assessment which I am told is $268 per year.  That is his statutory responsibility.  If he pays it, he has done everything that the Child Support Agency, and inferentially the government, ask him to do.  It does not appear, however, to be all that he could do if he is in fact employed, but that is a matter about which I do not have adequate evidence in order to make a finding. 

4. I note that at paragraph 23 of the family consultant's report which I have extracted above the father discusses in some particularity his parental responsibilities.  He says, "I want to aggressively parent [the child], and I've done a parenting course with Anglicare in August 2005."  His dilemma about weekly or fortnightly time was that he would actually prefer fortnightly because he wants to go out over the weekends and enjoy life but did not want others to think that he was "running away from my responsibility".  I find that the father has not sought to be significantly involved in the child's life.  I base that finding in part on his lack of preparedness to engage in these proceedings or to participate at this final hearing. 

5. The general welfare jurisdiction which this court has does not alter the nature of these proceedings from being ones of private law.  If a party wants to be meaningfully involved in his or her child's life, it is incumbent on that party to step forward and put a case about what is in the child's best interests.  Not only did the father not do so, but he chose to attend court and sit and not participate. 

Any family violence involving the children or any member of the children’s family and family violence orders[35]

[35] ss 60CC(3)(j) and (k) Family Law Act 1975 (Cth).

1. As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.

2. There are no current family violence orders.  As I have indicated, the last order expired on 18 August 2004.  The mother alleges violence which has been significant, but the orders that I have made do not, in my view, put her at risk of further violence. 

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[36]

[36] s 60CC(3)(l) Family Law Act 1975 (Cth).

1. Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. 

2. Ideally courts should make parenting orders that minimise the prospects of future litigation.  Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively.  Parents and children are readily distracted by litigation. 

3. Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.  

4. Counsel for the mother submitted that the orders which she sought and which

   
   

   I ultimately made are in fact the orders which are least likely to lead to the institution of further proceedings because they are orders predicated on consensual and cooperative time being spent between the child and the father facilitated by the maternal grandfather.  I think that is right.  Shortly these proceedings will be finalised.  It is only in the event that one of the parties can satisfy the court that there has been a significant change in circumstances in relation to the child that that party should be permitted to relitigate any parenting issues which the orders I have made now determine. That is the principle in Rice & Asplund (1979) FLC 90-725 and KB & TC [2005] FamCA 458.

5. I am not asked to make any order under s 118 and indeed there is not the evidentiary basis for me to do so. However, I do want to make a few observations about the proceedings which have concluded before me.  I accept that the mother has through her parents paid some $13,000 to conduct this litigation since 2003.  That is not the most expensive case in the court, but I am satisfied that is an enormous impost on this family's finances and represents a dependence by the mother on her parents which both of them would have thought at her age she would not have to have. 

6. I am advised from the bar table by counsel for the independent children's lawyer that there is a cap of $12,000 applicable to the funding for the independent children's lawyer; that is, the funding for the representation of the child's interest.  That cap is met.  That resource is entirely exhausted. 

7. In the event that the matter returns to court, it is likely to be without an independent children's lawyer being able to be appointed and additional and possibly intolerable financial cost to the mother and her family. 

8. It would surprise me if the matter were permitted to be relitigated in the absence of some cogent and persuasive evidence of a change in the father's attitude and his parental capacities. In this matter the independent children's lawyer sought a psychiatric assessment of the father, but he would not cooperate. It would surprise me if subsequently the father were permitted to relitigate the issue without going down the path of a thorough psychiatric and psychological assessment as to what, if any, mental illness he suffers, an assessment of whether any such illness is amenable to treatment and cogent and compelling evidence that he has undergone and cooperated with that treatment.  But these are matters for the court at another time. 

Parental responsibility

1. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[37]  In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[38] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:

   [37] s 61B Family Law Act 1975 (Cth).

   [38] s 61DA(1) Family Law Act 1975 (Cth).

   … issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a)the child’s education (both current and future); and

   b)the child’s religious and cultural upbringing; and

   c)the child’s health; and

   d)the child’s name; and

   e)changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

2. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[39] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[40] and to ‘make a genuine effort to come to a joint decision about that issue’.[41] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared. 

   [39] s 65DAC(2) Family Law Act 1975 (Cth).

   [40] s 65DAC(3)(a) Family Law Act 1975 (Cth).

   [41] s 65DAC(3)(b) Family Law Act 1975 (Cth).

3. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

   a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[42] or abuse of the child or another child who is a member of the parent’s family;[43]

   b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[44] or

   c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[45]

   [42] s 61DA(2)(b) Family Law Act 1975 (Cth).

   [43] s 61DA(2)(a) Family Law Act 1975 (Cth).

   [44] s 61DA(3) Family Law Act 1975 (Cth).

   [45] s 61DA(4) Family Law Act 1975 (Cth).

4. In this case I am satisfied that the unchallenged evidence of the wife and of her father and of the family consultant establishes that it is not in the child's best interests for the father to have any ongoing parental responsibility for the child, much less that the mother be required to share it equally with him. 

5. The parents have not spoken for approximately four years. There is no evidence before me to suggest that the father has the willingness or the inclination to make well-reasoned decisions in relation to the child or to be able to communicate with the mother.  There is evidence based on his day-to-day interaction and in particular his failure to participate in these proceedings in any meaningful or constructive way which give me concerns for the contrary proposition; that is, that he ought not to have any ongoing parental responsibility. 

6. I note that in the family consultant's assessment of the father she has referred at paragraph 18 of her report as being impressed that the father had "definite and strong views that he had no intention of modifying".  I have already extracted above the observations of the family consultant in relation to the lack of restraint that the father showed when discussing matters about the child's hearing, his speech, his clothes, the mother's generosity or ability to provide material things for him in the extracted paragraphs 25, 36 and 37 above. 

7. Finally, the family consultant makes clear in paragraphs 49 and 53 of her report that her assessment is that there is no communication between the parties such that an order for equal shared parental responsibility could work in the child's best interests.  She says:

   [49] A difficulty with this matter is that there is no communication between the parties, and [the mother] is still very frightened of [the father]. This means that she has no way of gauging [the father]’s behaviour, and how he would cope on his own whilst caring for [the child]. If the Family Consultant’s observation is anything to go by, then it is dubious that

   
   

   [the father] would be able to either keep [the child] safe, or make him feel safe at the present time. [The father] also seemed to have no understanding of the long term effects of his violence towards [the mother], instead blaming her for over reacting.

   [….]

   [53]. At the moment there does not seem to be a solution for these parents’ lack of communication and cooperation. The past family violence issues are still unresolved for [the mother], who fears [the father] and does not trust him, and it may be that supervised time with his son may need to be on going for [the father] until otherwise is recommended by his psychiatrist.

8. Finally, I note that given the history of this matter, these parents lived together as a family for only a matter of weeks. They have no experience of each other's day-to-day parenting. Lack of familiarity with each other is an additional challenge that these parents must face. 

9. I am satisfied that the father does not have the requisite capacity to share parental responsibility with the mother in relation to the child and it would be quite contrary to the child's best interests to enable the father to do so. 

10. As the presumption in relation to parental responsibility is not applicable in this case, I am not required to go on to consider equal or substantial or significant time between the child and the father.  In any case, there is no application that

    
    

    I do so.  It is not as if the father comes to court seeking any orders defining the time that he is to spend with the child or the conditions in which that time is to be spent.  The only application is that of the mother. 

11. On the basis of the foregoing, I am satisfied that the parenting orders in relation to living and time and the exchange of information about the child are in the child's best interests. 

Change of name

1. In relation to the mother's application to change the child's name, I note that she deposes to the following in her affidavit:-

   [47]. The Respondent has, since the commencement of our relationship, changed his surname some three times.

   [48]. When I first meet (sic) the Respondent he was known as […]. I do not know the origin of the Respondent’s then surname.

   [49]. In or about August 2003, the Respondent changed his surname to “[Kallum]” informing me that if he did so, he would be able to “…wipe his debt”.

   [50]. [The child]’s surname on his birth certificate (being [Hamman-Nandan]) reflects, what I understand is the Respondent’s father’s surname.

   [51]. Whilst the Respondent’s surname has been acknowledged in these proceedings as “[Kallum]”, I do not know whether the Respondent has in fact changed his surname, since August 2003.

   [52]. I am concerned that the Respondent will continue to change his surname and note in the Family Report that the Respondent proposes changing his surname back to “[Nandan]”.

   [53]. I believe that [the child] would benefit from having a surname that he can identify with, and in order to avoid any confusion and in light of the Respondent’s name changes in the past, propose that [the child]’s surname be changed to “[Hamman]”.

2. It is clear from authorities such as Flannigan & Handcock (2001) FLC 93-074 in paragraphs 35 to 38 inclusive that it is the best interests of the child which is the paramount consideration in determining a change of name application.

3. As I have said earlier, this is a court of private law.  If the father had any basis upon which to oppose the orders the mother sought, I assume he would have participated in the proceedings to adduce that evidence and make those submissions.  He did not.  

4. I am satisfied in the circumstances that it is also in the child's best interests to change his family name to only “[Hamman]” and that is why I have done so. 

Costs

1. It is in respect of the appearances on 4 April 2007 (defaulters’ list) and 11 May 2007 (procedural hearing) that the mother made an application that the father pay her costs.  It is apparent that the reason that the matter had to return to court was non-compliance by the father with orders for the filing of documents.  I was addressed in relation to the parties' relative financial circumstances.  There is reference in the family consultant's report to the father being employed on a part-time basis working 48 hours per week and paying $100 a month in child support.  He told the family consultant that he was paying rent for independent accommodation at $155 per week and was going to make some improvements to put in play areas for the child. 

2. The mother's evidence in these proceedings is not contradicted by anyone. The statements made by the father to the family consultant in relation to his own circumstances do not constitute evidence before me.  The mother is in part-time employment.  She receives income from that of about $220 per week and she is otherwise reliant on social security payments and the material support of her parents where she and the child reside. 

3. In family law proceedings each party is required to bear his or her own costs unless there are circumstances which justify a departure from that. The relevant considerations are in s 117(2) of the Act and some considerations clearly outweigh others. In this case I have taken into account the financial circumstances of the parties as best I can.  I am satisfied that the mother can ill afford proceedings. Otherwise, I am satisfied that the court events on 4 April 2007 and 11 May 2007 were as a result of the father's failure to file documents and comply with directions and it is appropriate that an order for costs should be made.  I do not make it in the sum sought, which was $1155, because that would represent solicitor own client costs and I am not satisfied that this is a case which falls under the special circumstance of that calculation being warranted.  The costs will be calculated in accordance with scale, and that is $664.

Generally

1. For these reasons, I have made the orders set out at the beginning of this decision.  I am satisfied that the orders pertaining to the child are in the child’s best interests.  

I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  11 December 2007