Henn and McKneil

[2014] FamCA 542

FAMILY COURT OF AUSTRALIA

HENN & MCKNEIL [2014] FamCA 542

FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child
FAMILY LAW – ADOPTION - Leave to commence proceedings

Family Law Act 1975 (Cth)

Chapman & Palmer (1978) FLC 90-510

APPLICANT: Ms Henn

RESPONDENT: Mr McKneil

FILE NUMBER:  CAC 596 of 2014

DATE DELIVERED: 7 May 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 7 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Roberts

SOLICITOR FOR THE APPLICANT: Garden & Montgomerie Solicitors

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. Leave is granted for this application to be heard ex parte.

2. Service of the application on the respondent father, Mr McKneil, is dispensed with.

3. To the extent that it is necessary to do so, the requirements of section 60I of the Family Law Act 1975 are dispensed with in so far as they require the parties to attend some form of mediation or counselling.

4. The applicant, Ms Henn have sole parental responsibility for B, born on … 2005.

5. The child will live with her mother.

6. The child will not spend any time with her father, or communicate with her father.

7. Pursuant to section 60G of the Family Law Act1975, proceedings may be commenced for the adoption of the child by her stepfather Darren Henn.

8. The child’s mother, Ms Henn, be at liberty to change the surname of the child from McKneil to Henn.

9. I request that the Registrar of Births, Deaths and Marriages in the State of Victoria effect a change to the official records, and in particular to the name recorded in relation to the child’s birth certificate, reflected in the earlier order made by me this day.

10. The matter is removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henn & McKneil has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 569 of 2014

Ms Henn

Applicant

And

Mr McKneil

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings involve the child B, who was born in 2005. The application before me seeks a number of matters: that there be leave to proceed on an ex parte basis; that service be dispensed with; and that the requirements of section 60I of the Family Law Act 1975 be dispensed with.

2. I will return to those matters briefly in a moment. The substantive order sought is that the mother have sole parental responsibility for the child and that the child live with her mother, and spend no time with her father. The proceedings also seek that leave be granted pursuant to section 60G of the Family Law Act 1975 for proceedings to be commenced for adoption of the child by her stepfather, Darren Henn.

3. Finally, an order is sought in relation to a change of name from B McKneil to B Henn. 

4. In this matter, the affidavit of Ms Henn sets out, in some detail, a very vexed history in relation to the nature of the relationship between her and the child’s father.  I am satisfied, from that evidence (acknowledging that evidence has not been tested by cross-examination), that there is a reasonable basis for determining that, first, there has been violence between the parties, such as would negate and rebut the presumption of equal parental responsibility, even if it did not occur precisely as has been recorded in the affidavit.

5. Secondly, even if that were not the case, the presumption that it was rebutted in that way, would be rebutted on the basis of what would be in the best interests of the child.  In this regard, the Family Law Act 1975 prescribes a number of matters to be taken into account in determining what would be in the best interests of the child, and I briefly make mention of those that I consider to be applicable.  The first and foremost of the primary considerations is the safety of the child.

6. On the evidence before me (the sworn evidence which I accept in these circumstances for this purpose), there would be a potential for danger for the child to spend time with her father either on a regular basis or, if I were to accept all the evidence without qualification, possibly at all.  She may suffer some physical injury herself, but even more importantly the incidents referred to in the affidavit would give rise to the very serious doubt that Mr McKneil could provide an adequate role model for his daughter, even assuming that he were able to change some of his behaviour and restrain himself physically from some of the activities in which he has previously engaged.

7. The second primary consideration is the desirability of the child having a relationship with her father, and the Act prescribes that the Court should take account of the benefit to the child in having a relationship.  On the information supplied to me, in particular the past actions of Mr McKneil, and even more particularly the present actions of Mr Henn in supporting the child, and his role as a parent in all other respects for the child, it seems to me that the advantages for the child in having a relationship with Mr McKneil diminish to the point of not being capable of being properly weighed or taken into account.

8. I look also at other matters I am obliged to take into account.

9. I have no direct information about the child’s views of the matter.  I accept that at her age, her views would need to be tempered by a consideration of her maturity and her ability to understand the nature of the issues before her.  I am satisfied from the affidavit, however, that she has exhibited, in different ways, both an affection for, and an acceptance of, Mr Henn as being her father.

10. In those circumstances, and given her lack of knowledge of her father, and the circumstances in which she last had any contact with her father at all, it seems to me that I can reasonably accept that the child’s views would coincide with the application that is before the Court.

11. The responsibilities that each of the parents have demonstrated towards parenthood, I think, are exemplified in the material provided in the affidavit of the mother, by her continuing and devoted commitment to the child and her wise choice, as it appears with Mr Henn, in setting up a new life.

12. The mother has overcome what was an appalling background, which might have dissuaded other people, or caused them to take steps which would be inappropriate.  To that end, I am satisfied that not only has the applicant demonstrated a proper commitment and fulfilment of her obligations as a parent, but that she has done so under extremely difficult circumstances, at least when she was in an associational relationship with Mr McKneil.  Mr McKneil himself has exhibited no recognition of his obligations as a parent (that I can find).

13. I accept from the objective information supplied, by the Child Support Agency, that his contributions for the child’s financial care have been virtually nonexistent and that his attempts, if any, to contact her have been either perfunctory or inadequate.  He has certainly not attempted, by making any application to the Court of which I am aware, to seek any orders that would permit him to fulfil his obligations as a parent, or to accept those obligations voluntarily. This would have been an appropriate thing to do.

14. The relationship that the child has with her mother and with Mr Henn, I accept from the mother’s affidavit, as being one which is appropriate. It represents on their part a commitment to her, and an acceptance by her of that commitment, and an environment of trust.

15. I accept that there is no violence in the current relationship, and I accept that her relationship with her siblings is a positive and beneficial one.  I accept, further, that her physical and educational interests are properly cared for by her mother, and by Mr Henn.

16. In these circumstances, there are no other matters of which I am aware that I should take into account (including I have no information that there is any Aboriginal connection, or any cultural matter of significance which should be taken into account).

17. Accordingly I would be prepared to make an order that the child lives with her mother, that her mother should have sole parental responsibility for her, and that the child not spend any time with her father.  I will make those orders.  In addition, there are satisfactory reasons given why the child’s name should become Henn, particularly as she gets older, and there are complications associated with her having two names, particularly the name of a person with whom she has no current association.

18. In those circumstances, based on the principles outlined, and authorities such as Chapman & Palmer (and others), it is appropriate that there should be an approval by this Court on the part of the mother, as the person with sole parental responsibility, for the child’s surname to be changed to Henn.  I understand that it may require, in a formal sense, an application to the County Court in Victoria for an order to formally change the name on the Register of Births, Deaths and Marriages in Victoria, but that the registry is likely to accept from this Court a request that the order that I make in relation to the change may be implemented by way of a formal amendment to the Register in the Registry.

19. I will make such a request, and expect that in those circumstances there will be appropriate amendments to the formal records.  I wish the mother and Mr Henn good luck in their application for adoption.  I regret they live in New South Wales.  If they were in the ACT, because cross-vesting still applies here as between the Supreme Court and the Family Court, I would be able to conduct the adoption.  But, unfortunately, that does not apply so far as New South Wales is concerned, so I wish them luck in their further proceedings.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 7 May 2014.

Associate: 

Date:  22 July 2014