HILLIER & TRUMAN

[2014] FCCA 2407

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILLIER & TRUMAN [2014] FCCA 2407

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – best interests of the child – one child aged 2 years and 6 months – where father has not seen child for 15 months – where father did not file a Response – where father did not attend Child Dispute Conference – where father did not attend Court.

FAMILY LAW – Children – name – change of name – where mother seeks to change surname of child – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64C

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28

Cases cited:
Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Gerald & Kenwood [2013] FCCA 2038
Rennick & Yardman [2014] FCCA 556
Vine & Wands [2013] FCCA 2284
Whinney & Kelleher [2013] FCCA 1939

Applicant: MS HILLIER

Respondent: MR TRUMAN

File Number: NCC 1002 of 2014

Judgment of: Judge Scarlett

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Newcastle

Delivered on: 17 October 2014

REPRESENTATION

Solicitor for the Applicant: Ms Cummings

Solicitors for the Applicant: Walker Legal Taree

The Respondent: No appearance

ORDERS

1. MS HILLIER (“The Mother”) shall have sole parental responsibility for the child X born (omitted) 2012 (“The Child”).

2. The child shall live with the Mother.

3. The Mother, MS HILLIER be authorised to apply to the Registrar of Births, Deaths and Marriages, New South Wales that the child registered as “X” be now registered as “X”.

4. Pursuant to Section 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in Order 3 herein.

5. That the Court forward a sealed copy of this Order to the Registrar of Births, Deaths and Marriages New South Wales.

6. The child shall spend time with the Father as agreed between the Mother and Father in writing however failing agreement, at the sole discretion of the Mother.

7. In the event that the parties agree in writing for the child to spend time with the Father, within 7 days of a request from the mother for such time to be supervised, both parties will contact Interrelate (omitted) on (omitted) (“The Contact Centre”) for the purpose of completing the Contact Centre’s Intake Process and for the purpose of the child’s supervised time with her father:

   (a)the mother and father shall attend all appointments scheduled by the contact centre for the child to spend time with her father but not more than once per month;

   (b)the Mother and the Father follow all reasonable directions and recommendations of the Contact Centre; and

   (c)the Father must pay 100% of the fee to be determined by the Contact Centre.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1002 of 2014

MS HILLIER

Applicant

And

MR TRUMAN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Mother of a little girl called X, who was born on (omitted) 2012. The Father attended Court on one occasion but has not filed a Response or an affidavit setting out the facts upon which he would rely if he were to seek any orders other than the ones sought by the Mother. The parties were directed by the Court to attend a Child Dispute Conference with a Family Consultant on 11^th August 2014. The Mother attended; the Father did not.

2. On 29^th August 2014 his Honour Judge Coakes adjourned the proceedings until today for a directions hearing or undefended final hearing. The Court also ordered that:

   2. If the Respondent has not filed a response, or fails to comply with directions or does not appear on the next occasion the matter will proceed on an undefended basis on 17 October 2014.

   3. If the father has filed and served his response and affidavit by 10 October 2014 the mother is excused from personal attendance on 17 October 2014.

3. The Father has not filed a Response or an affidavit. He did not attend Court for the hearing and no message has been received by the Court indicating that he has been hindered, delayed or prevented from attending Court due to illness, injury or other unforeseen circumstance.   

Orders Sought

1. In her Application, filed on 24^th April 2014, the Mother seeks orders providing that:

   a)The child should live with her;

   b)She should have sole parental responsibility for the child;

   c)The child’s surname should be changed from “Truman” to the Mother’s surname of “Hillier”;

   d)The Father would spend time with the time by agreement with the Mother on one occasion per month under supervision at a Contact Centre in (omitted).

2. The Father has not filed a Response so it can be inferred that he is not seeking any orders.

Background

1. The Applicant Mother deposed in her affidavit that the subject child, X, is the youngest of her four children, but her only child by the Respondent. Her son Y, born on (omitted) 2008, lives with her and X, but her two older children, a son and a daughter aged 14 and 17, now live elsewhere.

2. The Mother states that the father has had very limited input into X’s life since the parties separated on 13^th July 2013. He last saw the child for an hour on 20^th July 2013, a week after the parties separated. The Mother says that during the relationship, which lasted from February 2010 to 11^th July 2013, the Father drank alcohol, smoked marijuana and was on a methadone program.

3. The Mother deposes that she and the Father argued about his drinking and drug abuse. They separated on more than one occasion and in November 2012 the Father entered the (omitted) Rehabilitation Centre in (omitted) for one month.

4. It is also the Mother’s case that the Father’s behaviour was violent and abusive, particularly when heavily affected by alcohol. The Mother has filed a Notice of Child abuse or Family Violence in which she particularises instances of threatening or violent behaviour directed towards her or her young son.

5. The Mother claims that the Father does not have the capacity to care for X unsupervised because of:

   a)His transient lifestyle, which includes frequent periods of homelessness;

   b)His serious alcohol abuse;

   c)His previous drug habit;

   d)His lengthy criminal and history of imprisonment for crimes of dishonesty or violence; and

   e)His tendency to drive a motor car whilst affected by drugs or alcohol.

6. The Mother claims that she fears the Father, and so does her son Y.

7. It is part of the Mother’s case that she wishes to change the child’s surname from Truman to her name of Hillier, so that the child will have the same surname as her mother and half-brother.

The Relevant Law in regard to Parenting Applications

1. When the Court is considering making parenting orders, it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, the Court should have regard to the provisions of:

   a)Section 60B;

   b)Section 60CA;

   c)Section 60CC;

   d)Section 61DA; and

   e)Section 65DAA.

Section 60B of the Family Law Act

1. The Court must have regard to the objects of Part VII of the Act and the principles underlying those objects.

2. The objects of Part VII are set out in subsection 60B(1) and include:

   (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.

3. These two objects are reflected in subsection 60CC(2) of the Act.

4. The principles underlying the objects of Part VII are set out in s.60B(2) of the Family Law Act.

Section 60CA of the Family Law Act

1. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.

Section 60CC of the Family Law Act

1. Section 60CC sets out the way that the Court determines what is in a child’s best interests.

2. The primary considerations are set out in subsection 60CC(2) of the Act. They are:

   (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.

3. The additional considerations are set out in subsection 60CC(3).

Section 61DA of the Family Law Act

1. Whilst section 61DA requires the Court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child, the presumption does not apply in cases of abuse, neglect or family violence.

Section 65DAA of the Family Law Act

1. Section 65DAA applies when the Court has made an order that the child’s parents are to have equal shared parental responsibility for the child. It will not be relevant in this case.

Conclusions in respect of the Application for Parenting Orders

1. The matters in sections 60B, 60CA, 60CC, 61DA and 65DAA have all been considered, insofar as they are relevant. In my view, this is not a matter where the presumption of equal shared parental responsibility applies, because of the evidence of abuse and family violence. The mother should have sole parental responsibility for the child.

2. The best interests of the child remain the paramount consideration. Subsection 60CC(2A) requires the Court to give greater weight to the primary consideration in s.60CC(2)(b), namely the need to protect the child from physical or psychological harm from abuse, neglect or family violence. Here, the evidence of the father’s drug and alcohol abuse and his violent and threatening behaviour require the Court to make orders that would safeguard this young child, who is two and a half years old, from harm or neglect.

3. This little girl should live with her mother. Although the Mother has sought orders that would eventually provide for the Father to have supervised time with the child at a Contact Centre, the time for this arrangement would appear to be a long way off, due to the Father’s failure to participate in the proceedings in any meaningful way.

4. It is difficult to see why, at this stage, it would be in this child’s interests to make any parenting order in the Father’s favour, other than the limited orders sought by the Mother. There is no evidence that he has had any involvement in her life for fifteen months, when the child was fifteen months old. The Father moved out of this little girl’s life when she was still a baby. She would not recognise him.

5. The Father’s participation in these proceedings has been minimal, and limited to one attendance at Court and an unsuccessful application for legal aid. He did not attend the Child Dispute Conference. He has not filed a Response or an affidavit. He has not attended Court.

6. I am not persuaded that it would be in this child’s best interests to make any other parenting orders in favour of the father than the orders proposed by the mother.

The Law in respect of changing a Child’s Name

1. There are a number of authorities that assist the Court in deciding whether to change a child’s surname. These authorities include the decisions of Chapman & Palmer[1]and Beach & Stemmler[2]. Those decisions have been followed in a number of decisions of this Court, including Gerald & Kenwood[3], Rennick & Yardman[4], Vine & Wands[5] and Whinney & Kelleher[6].

   [1] (1978) 4 Fam LR 462; FLC 90-510

   [2] (1979) 5 Fam LR Note 13; FLC 90-692

   [3] [2013] FCCA 2038

   [4] [2014] FCCA 556

   [5] [2013] FCCA 2284

   [6] [2013] FCCA 1939

2. The Court should consider:

   a)the best interests of the child;

   b)any embarrassment likely to be experienced by the child if the child’s name is different from that of the parent with whom the child normally lives;

   c)any confusion of identity that may arise for the child if the child’s name is or is not changed;

   d)the amount of contact that the other parent has had with the child; and

   e)the degree of identification the child has with each parent.

3. The applicable legislation in New South Wales to deal with a change of name is the Births, Deaths and Marriages Registration Act 1995 (NSW). Section 22 of the Act empowers a court, including a court of another State or the Commonwealth, to order the Registrar of Births, Deaths and Marriages to register the child’s name in the form specified in the order.

4. Section 28 of the same Act allows an application for registration of a change of a child’s name to be made by one parent if a court approves the proposed change of name. If the court, including a court of another state or the Commonwealth, approves a proposed change of name, the court may order the Registrar to register the child’s name in a form specified in the order.

Conclusions about the Child’s Name

1. The Mother wishes the child to bear the same surname as herself and also the child’s half-brother, Y, who lives with them. The Father’s contact with the child has been minimal for half the child’s lifetime and it is unlikely that he will play any significant role in her life in the foreseeable future.

2. I am satisfied that the Court should approve the proposed change of name from the current surname of Truman to the Mother’s surname of Hillier because it appears to be in the child’s best interests. I will order accordingly.   

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 17 October 2014