Horan & Freeborn
[2023] FedCFamC1F 674
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Horan & Freeborn [2023] FedCFamC1F 674
File number(s): MLC 5571 of 2021 Judgment of: JOHNS J Date of judgment: 15 August 2023 Catchwords: FAMILY LAW – PARENTING – parental responsibility – spend time arrangements – where the father has spent limited time with the child – where the father has not seen the child since May 2023 – where the mother is the primary carer – allegations of family violence – where the father has ceased participating in proceedings – sole parental responsibility granted to mother
FAMILY LAW – PARENTING – change of name – where the mother seeks to have the child’s surname changed to that of her own – where the mother and half‑sister have a different surname to the child – where the child does not spend time with the father – where the child identifies his mother and half-sister as his family – change of name ordered
Legislation: Evidence Act 1995 (Cth) s 104(2)
Family Law Act 1975 (Cth) s 60B(1), 60B(2), 60CA, 60CC(2) & (3), 61DA,
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.02(5)
Cases cited: Chapman & Palmer (1978) FLC 90-510
Mulvany & Lane (2009) FLC 93-404
Division: Division 1 First Instance Number of paragraphs: 107 Date of hearing: 7 August 2023 Place: Melbourne Counsel for the Applicant: Mr Turner Solicitor for the Applicant: HBH Legal Solicitor for the Respondent: No Appearance Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 5571 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HORAN
Applicant
AND: MR FREEBORN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
15 AUGUST 2023
THE COURT ORDERS THAT:
1.That the mother have leave to proceed with her Amended Application for Final Orders filed 1 February 2023 on an undefended basis.
2.That the child previously known as X FREEBORN born 2019 now be known as X HORAN (“the child”).
3.That the mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name in accordance with Order 2 hereof and do all such acts and things and sign all such documents as may be required to give effect to that registration.
4.That the mother have sole parental responsibility for making all decisions regarding the long-term care, welfare and development of the child.
5.That the child live with the mother.
6.That the child spend time with the father as agreed between the mother and the father in writing.
7.That the mother be permitted to obtain a passport for the child pursuant to s 11 of the Australian Passports Act without the consent of the father.
8.That the appointment of the Independent Children’s Lawyer be discharged.
9.That all extant applications be otherwise dismissed.
10.That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horan & Freeborn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BACKGROUND
By Amended Application for Final Orders filed 1 February 2023 the applicant mother seeks final parenting orders in relation to the child, X, born in 2019 (aged 3 years).
Since the parties’ separation in 2020 X has lived with the mother, and his older half-sister, B (aged 4). X has spent only limited supervised time with the respondent father since separation; he has spent no time with the father since May 2023.
Pursuant to trial directions made 3 February 2023, the matter was listed for final hearing to commence before me on 7 August 2023. At the time those orders were made the father was represented by Counsel.
On 17 May 2023 the father filed a Notice of Discontinuance by which he sought to discontinue his Response to Application for Final Orders filed 1 August 2021.
Rule 10.02(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that:-
Discontinuance of an application or response by a party does not discontinue any other party’s application or response.
The mother seeks to proceed with her application for final parenting orders in relation to X. She seeks orders that X live with her, that she have sole parental responsibility for his long‑term care welfare and development, and that the father spend time with X as may be agreed in writing between the parties. The mother also seeks orders permitting her to change X’s surname to that of her own and to apply for a passport on his behalf.
The Independent Children’s Lawyer (“the ICL”) supports the mother’s application as to parenting arrangements and does not oppose her application to change X’s surname.
For the reasons that follow, I am satisfied that it is in X’s best interests that the mother have sole parental responsibility for him and that he live with her. Further, I am satisfied X’s time with the father should be as agreed between the parties in writing. I am also satisfied that it is in X’s best interests that his surname be changed to that proposed by the mother.
THE HEARING
The mother was represented by Counsel at the hearing. The ICL was represented by In-House Counsel for Victoria Legal Aid. At the commencement of the hearing the husband was called in the Court precincts but did not answer the call.
Given the father’s failure to appear at the final hearing and the Notice of Discontinuance filed on his behalf on 17 May 2023, the mother sought leave to proceed with her application for final parenting orders on an undefended basis. That application was supported by the ICL.
The mother’s Amended Application for Final Orders was filed on 1 February 2023, prior to the hearing before me on 3 February 2023, at which the father was represented by Counsel. Hence, I am satisfied that the father has had notice of the orders sought by the mother in that application.
The Minute of Orders sought by the mother is annexed to her Outline of Case filed 31 July 2023. Those documents were served on the father by email dated 2 August 2023 (Exhibit A1). The orders sought by the mother in that document are in almost identical terms to those contained in her Amended Application for Final Orders, save for the amendment of her spend time proposals to be “as agreed” rather than for specified periods.
In circumstances where the father was represented by lawyers at the time the mother’s Amended Application for Final Orders was filed and at the case management hearing at which the final hearing date was fixed, and has been served with the mother’s case outline and proposed orders, I am satisfied that he has had notice of the mother’s application. I am also satisfied that the father has had notice of the date for final hearing.
The father has, by his Notice of Discontinuance, elected to cease his participation in the proceedings. Further, he has not appeared at the final hearing.
Having regard to all of the above matters I am satisfied that the mother should have leave to proceed with her application on an undefended basis.
MATERIAL RELIED ON
The mother relies upon the following material:-
·Outline of Case document filed 31 July 2023;
·Amended Application for Final Orders filed 1 February 2023;
·Affidavit of the mother filed 24 March 2023; and
·Partial Family Report dated 22 June 2023.
The ICL relies upon the following material:-
·Outline of Case document filed 2 August 2023;
·Notice of Discontinuance filed by the father on 17 May 2023;
·Outline of Case document filed on behalf of the mother on 31 July 2023; and
·Partial Family Report dated 22 June 2023.
BACKGROUND
The mother was born in 1996 and is aged 26 years. She is a full time homemaker and the primary carer for the children.
The father was born in 1997 and is aged 25 years. He is employed as a tradesperson.
The parties commenced a relationship in 2018. At that time, the mother was pregnant with a child from a previous relationship. That child, B, was born in 2018. B is aged 4 years.
There is one child of the relationship, X, born in 2019. X is aged 3 years. Both children reside with the mother.
The parties separated on a final basis in July 2020. At the time of separation X was aged under one year.
The mother filed an Application for Final Orders on 19 May 2021. In that application, she sought orders that the father have no contact with B, and that she have sole parental responsibility for X. The mother also filed a Notice of Child Abuse, Family Violence or Risk, alleging that the father posed a risk of emotional/psychological abuse to X, and a risk of sexual abuse to B. The mother further alleged there was a risk that both children would be exposed to family violence and would experience neglect in the father’s care.
The father filed a Response to the Application for Final Orders on 1 August 2021. In that response, he sought orders as follows:-
1. THAT the Respondent Father see [X] once per fortnight.
2. Any further orders deemed fit by the courts.
The father did not seek any orders with respect to B.
Throughout these proceedings, the mother has raised serious concerns regarding the father’s behaviour towards the children, particularly B. Those concerns related to the father engaging in sexually inappropriate behaviour whilst B was in his care.[1] The mother also alleged that the father favoured B to X, buying her more items and that, on occasions, he insisted on bathing with B.[2]
[1] Affidavit of Ms Horan filed 24 March 2023, [16].
[2] Ibid [17].
As a result of those issues the father undertook a Psychosexual Assessment with Dr C in August 2022. Dr C’s report is annexed to his affidavit filed 13 October 2022.
The mother is also critical of the father’s care of the children. She deposes that at times the father has been neglectful, noting that X has suffered sunstroke when in the father’s care,[3] and that on occasion he has refused to change X’s nappy.[4]
[3] Ibid [14].
[4] Ibid [17].
In addition to the concerns raised by the mother as to the father’s conduct towards the children, she also alleges that the father has engaged in controlling behaviour, attending her home unannounced following the parties’ separation; the mother deposes that this conduct caused her anxiety.[5]
[5] Ibid [11].
The mother alleges that the father has been emotionally and sexually abusive towards her during their relationship. In her trial affidavit, the mother deposes that the father would initiate sex with her whilst she was sleeping, that he would control her finances by checking her bank accounts and that he would transfer her parenting payments to his own account leaving her without funds.[6] Further, the mother deposes that the father would not permit her to leave the house on her own and that he threatened to kill himself if she successfully made application to the Court in relation to the children.[7]
[6] Ibid [29].
[7] Ibid [31].
The mother deposes that the father engaged in controlling behaviour around her consumption of food telling her that she was getting ‘fat’ and not permitting her to eat food purchased by him.[8]
[8] Ibid [33].
The mother deposes that following the parties’ separation, the father informed her that he would pass her home telling her that he had done so to ensure that she ‘wasn’t dead’. The mother deposes that on one occasion when visiting the children, the father told her what she had been watching on television the previous evening. The mother deposes that the father’s surveillance of her made her feel scared.[9]
[9] Ibid., paragraph 35
As a result of the mother’s concerns regarding the father’s behaviour towards her and his capacity to care for the children, he has had only limited supervised time with X since the parties’ separation.
In early 2021 the mother obtained a Final Family Violence Intervention Order against the father for the protection of herself and the children. That order expired in early 2023.
On 17 October 2022, the proceedings, insofar as they related to B were finalised on the basis that there be no orders in relation to her. On the same date, interim orders were made that the father commence supervised time with X at the D Contact Centre.
The father commenced spending supervised time with X on a fortnightly basis at the contact centre in November 2022. The father last spent time with X at the contact centre in May 2023.
During her oral evidence, the mother confirmed that she has had no communication with or from the father since that last occasion of time.
Having regard to that history, the mother seeks orders that she have sole parental responsibility for X, that he continue to live with her and that the father spend time with X as agreed between the parties in writing.
LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 (Cth) ("the Act") sets out the objects of Part VII of the Act, to ensure the best interests of 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a 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).
In deciding a particular parenting order, the best interests of the child is the paramount consideration.[10] Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in a child's best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence.[11] Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order, or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
[10] Family Law Act 1975 (Cth) s 60CA.
[11] Family Law Act 1975 (Cth) s 60CC(2)(b).
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at [76]-[77] as follows:-
It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by parliament as those the court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
There is a presumption that it is in a child’s best interests for parents to have equal shared parental responsibility.[12] The presumption relates to the allocation of parental responsibility, not the time a child is to spend with either parent. For the reasons set out below, I am satisfied that in relation to X, it is not in his best interests for the parents to have equal shared parental responsibility. I am satisfied that the mother should have sole parental responsibility for making decisions regarding X’s long-term care, welfare and development.
[12] Ibid s 61DA.
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)The nature of the cause of action or defence; and
(b)The nature of the subject-matter of the proceeding; and
(c)The gravity of the matters alleged.
I have read all documents upon which the parties have relied. In what follows, statements of fact constitute findings of fact. In determining the matter I have had regard to all of the evidence and had the benefit of observing the mother give evidence. I have carefully considered the matter, and in making findings to the requisite standard I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
THE MOTHER’S EVIDENCE
The mother was called to give evidence and confirmed the contents of her trial affidavit. She confirmed during her oral evidence that she has not had any communication with the father since his last occasion of time with X in May 2023.
The mother was not cross-examined by the ICL.
The evidence of the mother, as contained in her trial affidavit is unchallenged. I accept that evidence.
COURT CHILD EXPERT – MS E
Pursuant to the trial directions made 3 February 2023, Ms E prepared a partial Family Report dated 22 June 2023. On 22 May 2023, Ms E conducted in-person interviews with the mother and X and observations of them for the purposes of the preparation of the Family Report.
Notwithstanding arrangements made, the father did not participate in or attend appointments for the assessment. Accordingly, the partial Family Report is limited due to the father’s disengagement with the process. Nonetheless, the partial Family Report provides a helpful insight to, and assessment of, the mother and the child and their relationship.
As to the mother, Ms E observed her to comply with the interview process and to appear open and balanced in her views. Ms E confirmed that the mother was child-focussed and was positive about X developing a relationship with the father.[13]
[13] Partial Family Report prepared by Ms E dated 22 June 2023, [16]
Ms E notes the mother’s concern for X in the event that the father comes ‘in and out’ of his life. The mother expressed concerns for X’s emotional well-being in circumstances where he has recently been reintroduced to the father who now appears to have withdrawn from the proceedings.[14]
[14] Ibid [23].
As to the mother’s parenting capacity, Ms E observed the mother to have an understanding of the needs of the children, to have acted protectively in relation to B and to have sought appropriate assistance and referrals in relation to her concerns.[15]
[15] Ibid [27].
Ms E observed X to be a happy and cheerful young boy who was ‘comfortable and content in the presence of [the mother] and his sister, [B].’[16]
[16] Ibid [32].
Ms E observed X to be:-
…kind, gentle, focused and displayed attention to detail. He was calm and friendly, and the writer was impressed by his ability to concentrate and remain engaged in an activity.[17]
[17] Ibid.
Ms E reports that X identified his family as being the mother and B.
During observations of the mother and X, Ms E observed that both were content and comfortable in each other’s presence and that there existed a strong maternal-child bond. Ms E observed X to be smiling, happy and active and that the mother was calm and gentle in her interactions with him.[18]
[18] Ibid [36].
Ms E assessed that X’s primary attachment is likely with the mother and that there is evidence of a secure maternal-child bond between them.[19] Ms E noted the reports of the father’s inconsistent time with X and noted the mother’s concerns as to the father’s commitment towards X. Ms E observed that:-
…tt [sic] is of great importance that [X] experiences consistency and predictability, as this assists with supporting the intense emotional and developmental demands a child experiences at this age. [20]
[19] Ibid [39].
[20] Ibid [41].
Further, Ms E observed that if the father’s pattern of inconsistent interaction with X continues:-
…it will affect [X’s] ability to trust and there is potential of his confusion being internalised, and this could be expressed through behaviours such as aggression, withdrawal or a regression in behaviours. In the longer term, these feelings could result in [X] developing a heightened sensitivity to rejection from others which could hinder his social development. [21]
[21] Ibid.
Ms E noted that X would have a limited memory and concept of time, and that if time with the father ceases now that would likely cause less harm than to have the time continue and cease at a later stage or become sporadic.[22]
[22] Ibid [42].
Based upon her observations of the mother and X, Ms E made the following recommendations:-
·X to live with the mother;
·The mother should have sole parental responsibility for X; and
·Unless the father can commit to regular and consistent spend-time of at least once per month, then no spend-time is recommended.
Ms E holds qualifications in social work, sociology and psychology. She has been employed as a Court Child Expert in this Court since 2022. Prior to her employment by the Court, she was employed by other government agencies. She has also worked as a Child Protection Worker. There was no challenge as to Ms E’s qualifications or experience.
Ms E has provided a detailed and considered report in relation to her interviews with and observations of the mother and X. I accept Ms E’s unchallenged evidence in relation to those matters in their entirety.
SECTION 60CC CONSIDERATIONS
The Primary Considerations: Section 60CC(2)
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
Ordinarily it is in a child's best interests to have a meaningful relationship with both parents. The question of what is a ‘meaningful relationship’ was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
[119]…the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents...
…
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
X has spent no time with the father since May 2023. Prior to that time he had spent supervised time with the father, albeit on an inconsistent basis. The father has now disengaged with the proceedings upon the filing of his Notice of Discontinuance and elected not to participate in the final hearing.
Having regard to those circumstances, in my view there is little utility in the Court attempting to frame orders for the father to resume a relationship with X.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Since the commencement of the proceedings, the mother has alleged that X is at risk of exposure to family violence and neglect at the hands of the father. Further, the mother alleges that the father has engaged in sexually inappropriate behaviour in the child B’s presence.
A Magellan report was prepared for these proceedings. That report dated 18 August 2021 notes the involvement of the Department of Families, Fairness and Housing with the family in response to the mother’s Notice of Child Abuse, Family Violence or Risk filed in these proceedings. Both parties were interviewed as a result of the Notice and there were brief observations of B and X. The report notes the father’s denial of the allegations made by the mother as to his conduct and of his then-stated intention to pursue a relationship with X. In conclusion that report notes that there is insufficient evidence to substantiate harm by the father. It was assessed that the mother is providing the children with safe and appropriate care.
In circumstances where the father has withdrawn his application, I am not required to make findings in relation to the mother’s allegations. Nonetheless, I note the mother’s evidence in relation to those matters is unchallenged.
Having regard to the mother’s unchallenged evidence, I am satisfied that she has acted protectively in response to her concerns regarding the father’s conduct. As required by the Act, I will make orders to ensure that X continues to be protected from the risk of physical and psychological harm arising from being subjected to or exposed to family violence or abuse.
The Additional Considerations: Section 60CC(3)
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X was aged three years at the time of interview and observation for the preparation of the Family Report. Accordingly, he does not have sufficient age or maturity to express any view in relation to the issues before the Court.
b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
Throughout the parties’ relationship, the mother has been a ‘stay-at-home mother’. She has been X’s primary care-giver throughout his life, attending to all of his physical, emotional, psychological and intellectual needs.
Ms E observed X to have a secure and strong maternal-child bond with the mother. In addition, she observed that X identified his family as being the mother and his half-sister, B.
The father has withdrawn from X’s life, having ceased supervised time with him in May 2023.
The mother deposes that X continues to have a close relationship with his paternal grandparents who have provided her with significant support and who assist the mother in caring for the children from time-to-time as required. The mother also deposes that the paternal grandparents have provided physical support providing clothing, nappies and gifts for the children. The mother confirmed her intention to continue to support X’s relationship with his paternal grandparents. I accept the mother’s evidence.
Ms E observes in the Family Report that the mother has expressed her desire to continue to support X’s relationship with the father. I accept that evidence.
Notwithstanding the mother’s position and the orders of this Court made to facilitate the development of the father’s relationship with X, the father has elected to withdraw from the proceedings and has ceased engaging with X. As a result of the father’s conduct, his relationship with X has been disrupted.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother deposes at [46] of her trial affidavit that child support for X is collected from the father by the Child Support Agency. At the time of swearing her affidavit, the father disclosed an annual income of $70,000 per annum and was required to pay child support in the sum of $98 per week. The mother deposes that the father has been inconsistent in reporting his income to the Child Support Agency and at times he has been in arrears.
The mother is otherwise solely responsible for X’s support; she receives some assistance from the paternal grandparents.
I accept the mother’s unchallenged evidence as to the financial support she provides to X.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by the mother will ensure a continuation of the existing arrangements for X.
I am satisfied that the mother has and will continue to appropriately attend to all of X’s physical, emotional and intellectual needs.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Currently, X spends no time with the father and it is anticipated that arrangement will continue upon the finalisation of these proceedings.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has demonstrated an understanding of X’s needs and has acted protectively in relation to her concerns for B. Further, I am satisfied that the mother has demonstrated insight and understanding as to the potential impact upon X of the father’s sporadic involvement in his life.
Having regard to the evidence of Ms E, which I accept, I am satisfied that the mother has demonstrated a strong commitment and dedication to her responsibilities as a parent.
In circumstances where the father has elected to disengage from the proceedings and has ceased spending time with X, I am satisfied that he has shown little commitment to his responsibilities as a parent.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family -- any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have addressed these issues earlier in the judgment.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These proceedings have been on foot since 2021 when the child was aged one year. There have been a number of Court events since that time. Further, the child has been exposed to reporting processes for the purposes of the preparation of the Magellan report and more recently, the Family Report.
Having regard to that history, I am satisfied that it is desirable that I make orders that will be least likely to lead to the institution of further proceedings in relation to X. I am satisfied that X’s best interests will be served by final orders that will bring an end to these proceedings and provide him with certainty and stability in relation to future parenting arrangements.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances relevant to the matter.
CONCLUSION
The mother seeks an order that she have sole parental responsibility for X. That application is supported by the ICL.
I am satisfied that in circumstances where the mother has been solely responsible for all aspects of X’s day-to-day care, welfare and development since the parties’ separation in 2020 and in circumstances where the father has disengaged from the Court process, that it would be contrary to X’s best interests were there to be orders that the parties have equal shared parental responsibility.
An order that the mother has sole parental responsibility reflects the realities of X’s world, as she has assumed primary responsibility for all aspects of his care since the parties’ separation. An order for sole parental responsibility will also ensure that the mother is able to continue to fulfil her responsibilities as X’s primary care-giver without interruption. I am satisfied that an order in those terms is in X’s best interests. Accordingly, I will make orders to that effect.
The mother also seeks orders that X continue to live with her. Again, that application is supported by the ICL. An order in those terms will ensure that X has on-going stability and security in his mother’s care. I am satisfied that it is in X’s best interests that an order be made in those terms.
The mother also seeks orders that X spend time with the father at such times as agreed between the parties in writing. The ICL supports an order in those terms.
An order in those terms leaves the door ajar for the father to re-establish a relationship with X in the future should the mother agree that such arrangements are appropriate and in X’s best interests. Having regard to the history of the matter, including my assessment that the mother has demonstrated an insightful and child-focussed approach to parenting X, I am satisfied that an order in those terms is in X’s best interests.
Finally, the mother seeks orders that she be permitted to change X’s surname from ‘Freeborn’ to ‘Horan’, which is the surname she shares with B. It was submitted on behalf of the mother that an order in those terms is in X’s best interests as it will ensure that there is consistency of surnames within his family, it being noted that X identified his family to the Family Report Writer as comprising the mother and his half-sister.
The mother’s application for change of name was not opposed by the ICL.
The Full Court summarised the factors to which the Court should have regard in relation to a change in name in the decision of Chapman & Palmer (1978) FLC 90-510. At pages 77,675 to 77,676 the Full Court stated:-
To summarise the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a) the welfare of the child is the paramount consideration,
(b) the short and long term effects of any change in the child’s surname,
(c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d)any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) the effect of frequent or random changes of name.
Having regard to X’s young age, I am satisfied that any change to his surname at this stage is unlikely to cause him confusion.
It was submitted on behalf of the mother, and I accept, that X will continue to carry his father’s name as his middle name and to that extent will maintain a connection with the father.
X does not yet attend school. Accordingly, if there is a change in his surname at this stage, he is unlikely to suffer any embarrassment as a result of such change and indeed, will be protected from any embarrassment that may arise as a result of having a different surname to that of his mother and B.
In circumstances where he does not have any ongoing relationship with the father who has withdrawn from his life, I am satisfied that it is in X’s best interests that he share the same surname of his primary caregiver, his mother and his sister, being the members of his family with whom he lives.
Accordingly, I will make orders as sought by the mother in respect of X’s surname.
Having found that it is in X’s best interests that the mother have sole parental responsibility, I will also make orders permitting her to make application for a passport for X. Such order will ensure that in the exercise of parental responsibility, the mother is able to make necessary arrangements to travel overseas with X, without delay or disruption that seeking the father’s consent might otherwise cause. Given that the father has withdrawn from X’s day-to-day life and elected not to participate in these proceedings, in my view orders in those terms are in X’s best interests.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.
Associate:
Dated: 15 August 2023
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