Hyde & Fahey

[2021] FedCFamC2F 270

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hyde & Fahey [2021] FedCFamC2F 270

File number(s):	DGC 1716 of 2021
Judgment of:	JUDGE BURCHARDT
Date of judgment:	25 October 2021
Catchwords:	FAMILY LAW- Ex tempore ruling on father’s application for final orders including change of name for one of two siblings – father’s proposal giving mother liberty to apply within a fixed timeframe – independent children’s’ lawyer supporting father – mother’s circumstances difficult and disordered - Court making orders as sought by father but extending time for mother to have liberty to apply
Legislation:	Family Law Act1975 (Cth)
Cases cited:	Rice & Asplund [1978] FamCA 84
Division:	Division 2 Family Law
Number of paragraphs:	20
Date of last submission/s:	25 October 2021
Date of hearing:	25 October 2021
Place:	Dandenong
Solicitor for the Applicant:	Mr Young
Solicitor for  the Respondent:	The Respondent appeared in person
Solicitor for the Independent Children’s Lawyer	Ms Taylor

ORDERS

DGC 1716 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HYDE Applicant
AND:	MS FAHEY Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	25 OCTOBER 2021

THE COURT ORDERS THAT:

1.The order appointing the Independent Children’s Lawyer dated 22 June 2021 be discharged.

2.Final orders are made in terms of the father’s attached minute of proposed orders, the Independent Children’s Lawyer agreeing and the mother opposing.

THE COURT NOTES THAT:

A.The mother not to face a Rice & Asplund [1978] FamCA 84 objection if she files an application on or before 25 January 2022.

B.Pursuant to ss.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 are set out in Attachment A and these particulars are included in these orders.

THE COURT ORDERS UNTIL FUTHER ORDER:

3.That a reference to 'the children' in these orders means:

a.X born in 2012 ('X')

b.Y born in 2011 ('Y')

4.That the Applicant Father is hereby granted leave to proceed on an undefended basis.

5.That the Applicant Father have sole parental responsibility for the children.

6.That the children live with the Applicant Father.

7.That the children spend time and communicate with the Respondent Mother as agreed with the Applicant Father.

8.That the Respondent Mother be restrained from:

a.        Exposing the children or either of them to MR B;

b.Exposing the children or either of them to family violence perpetrated by MR B including any injuries incurred by her;

c.Consuming illicit substances during, or 48 hours before, any spend time with the children or either of them.

9.That the parties are each hereby restrained from:

a.        abusing, insulting, belittling, rebuking or otherwise denigrating the mother

b.discussing these proceedings or these order with or in the presence or hearing of the children or any of them and from permitting any other person to do so and from permitting the children or any of them to remain in the presence of any person so doing.

10.That the mother have liberty to apply on or before 25 January 2022.

Change of Name

11.The child previously known as Y FAHEY born in 2011 now be known as Y HYDE.

12.The applicant father apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child's name in accordance with Order 9, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

13.The applicant be father is hereby granted leave to provide a copy of these Orders to the Victorian Registry of Births, Deaths and Marriages.

14.In the event a Victorian Registry of Births, Deaths and Marriages in the first instance request a signature of the mother, the mother shall sign documentation required to give effect to these orders. If the mother refuses to sign the father may file an Affidavit with this Court without further notice to the mother, and a Registrar of this Court may sign such documentation on the mother's behalf pursuant to s106A of the Family Law Act.

15.That the appointment of the Independent Children's Lawyer be discharged.

16.That the extant proceedings are otherwise dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
(AS REVISED FROM TRANSCRIPT)

JUDGE BURCHARDT

1. I’m going to determine this matter on the submissions that were made when we were together this morning.  So you needn’t concern yourself overly much as to what Mr Young has just had to say.  I will give you my reasons now.  I will have them typed up from transcript and edited and forwarded to you all as soon as I can.

2. In order to understand the competing interlocutory decisions of the parties, it is necessary to describe the history of this matter.  On 29 April 2021, the father filed an application.  He sought equal shared parental responsibility for the two children, X Hyde who was born in 2012 and Y Fahey, who, if I get the matter correctly, was in fact before her on 19 May 2011.He sought that they live with him and spend such time with the mother as the court might order.  He sought orders prohibiting contact with MR B, and sought to change Y’s name from Fahey to Hyde.

3. The affidavit in support reveals the following matters.  The father was born in 1985 and the mother was born in 1993.  The father deposed to violence by Mr B, and surmised that the mother might have mental health problems.  He and the mother entered into a relationship in 2010, and separated in 2013, and the children lived with the mother initially post-separation, and he spent every second weekend with the children until about May 2019.

4. The parties then moved to a week about arrangement which continued until May 2020 when the children were placed in the father’s care with the encouragement of the then DHHS.  Time with the mother persisted on from Saturday to Sunday each alternate weekend at the maternal grandparent’s home.  There has been departmental involvement in late 2019 and Y made a further disclosure in May 2020.  No doubt as a result of this, a full intervention order was taken out on 15 June 2020 against Mr B and I have seen annexed to the father’s affidavit a DFFH care plan. It noted, amongst other things, ongoing violence by Mr B and the children’s exposure to this.  The father’s affidavit continued to detail that the mother’s time with the children had been erratic, and there was some query as to whether she was selling drugs in the company of the children.  The father deposed to Y’s surname being Fahey, but that the mother had commenced an attempt to change his surname to Hyde.  On 6 May 2021, the court made its first order, which was to release report from the DFFH, which is dated 4 May 2021.

5. Relevantly, this asserts eight reports between 2015 and 2020 have resulted in two protective interventions occurring in September 2019 and again in June 2020.  Reported concerns have been unexplained bruising to Y’s face following being in Ms Fahey’s care, allegations of MR B hitting the children, regression in the children’s behaviour/development, MR B having a history of family violence and drug use relative to a previous partner and child, and Ms Fahey allegedly neglecting the children’s hygiene, with the children expressing not wanting to return to her care.

6. Protective intervention occurred when it was reported that the children disclosed seeing Mr B punch their mother to the face, causing her to fall to the ground before continuing to assault her, causing injuries.  Further, it was reported that Mr B punches holes in the walls and kicks the family dog in the stomach.  Ms Fahey admitted to verbal arguing only between her and Mr B.  Both children disclosed witnessing family violence incidents perpetrated by Mr B against their mother when interviewed by child protection. They stated they felt scared and unsafe when Mr B yells and screams.

7. Mr B admitted to yelling at Ms Fahey only.  Mr B agreed to engage with a family violence support service, that he would monitor his triggers and leave the house when he felt heightened, and that he would apologise to Y and X for making them feel afraid of him.  Police issued an intervention order with limited conditions that allowed Mr B to remain in the home with Ms Fahey and the children.  Less than six months later, a second protective information order was required when Y and X disclosed further incidents of family violence in the home by Mr B, including him raising fists to the mother, damaging property, throwing objects and verbally abusing Ms Fahey.

8. X disclosed being hit on her waist by Mr B, leaving a bruise.  Ms Fahey admitted to verbal arguing only.  Mr Hyde took custody of the children.  Police varied the intervention order for the children to prohibit Mr B from contact with them.  Ms Fahey made clear her intention to remain in a relationship with Mr B, therefore child protection assessed that the children were to remain in the primary care of Mr Hyde.  Mr Hyde was advised to formalise this arrangement by the family law system.  Ms Fahey was informed of child protection’s assessment.

9. There are some further matters of direct relevance at the moment.  The next event was the filing of an affidavit of service on 20 May 2021, which confirmed, as indeed the signed acknowledgement itself confirms, that the mother was served with the originating application, affidavit and notice of risk on 10 May 2021.  On 22 June 2021, there was the first court appearance, and the mother attended and was self-represented.  I made an order for the appointment of the independent children’s lawyer, and I ordered the mother to file her materials within 21 days.

10. I also made orders excluding Mr B, and ordered the mother to undertake supervised urine drug screens on request.  I adjourned the mother to 3 August 2021, and, of course, the mother was in court when that took place.  On 3 August 2021, there was another court appearance, but the mother did not attend.  Hair follicle testing was ordered, and the independent children’s lawyer was to request VLA funding for this.  The mother was given an additional 21 days again to file her material.  Leave was granted to the father to proceed undefended if the mother failed to comply.

11. The mother did not comply.  The matter came back before the court today.  Ms Taylor for the independent children’s lawyer gave the relevant background, and pointed to what was submitted to be the failure of the mother to comply.  Ms Taylor informed the court of numerous calls she had made to the mother reminding of her obligations, and reminding her to attend to the matters that had already been ordered.  I think it is fair to describe as the submission being made with regret, but nonetheless it was submitted, that the orders the father seeks should be made.

12. Counsel for the father, unsurprisingly, supported the independent children’s lawyer’s position.  Counsel observed this was the third hearing, and the applicant father is self-funded.  He sought the orders numbered 1 to 14 that had previously been sent to the court.  These essentially provide for the children to live with the father, who is to have sole parental responsibility, and time with the mother to be as agreed.  He also sought a change of name for the child Y to the name Hyde.

13. The mother, who was self-represented, nonetheless was able to inform me that she had been violently assaulted by Mr B at the start of July, who had been arrested and sentenced to two months jail.  She had been in a refuge until one month ago, and if I understood the matter correctly, she has been found housing with the assistance of those who provide assistance to victims of family violence.  She explained that she had not been able to access anything because the father has her birth certificate.  It was not quite clear to me how all that devolved, but I would have accepted, before Mr Young told me about it, that there are steps available to enable people to get a replacement certificate, should that be necessary, and other identifying documentation.

14. It’s implicit in what she said that she seeks more time to organise herself and get on top of the difficulties that she faces, and, of course, I would make it clear that for my part, I would have nothing but sympathy for the problems she must have had arising out of the way she was treated by Mr B. However, the following points need to be made. First of all, the children’s best interests are the paramount consideration pursuant to section 60CA of the Family Law Act.

15. Second, as Ms Taylor submitted, the children have been through a lot.  Ms Taylor’s submissions are amply supported by the material from the DFFH as well as the narrative in the father’s affidavit.  The mother has also been through a lot, but I note that, notwithstanding the matter having been in the court for over half a year, she has filed no affidavit material and I note that she denied violence by Mr B to the department, which is a worrying history.  Although, of course, I take note of the fact that women in these dreadful relationships often are overborne as to their will.

16. It is clear on any view of the matter that the mother’s life is in a state of disorder.  As I say, she has not participated in the proceeding, even though served on 10 May, well before the dreadful assaults that occurred in July.  Our assessment of the future is, with respect, informed by our experience of the past.  The court can have no confidence that if the matter is further adjourned, the mother will indeed comply should a third set of orders be made to enable her to file materials.

17. I propose to make the orders that the father and the independent children’s lawyer seek, and note that these do not indeed ultimately to shut the mother out.  In the event that the mother can organise herself appropriately, she can apply for order without facing the Rice & Asplund [1978] FamCA 84 objection, provided, however, that such application is filed within three months. Just to explain, Rice v Asplund is a case that stands for the proposition that where final orders are made, the court will not ordinarily permit the matter to be revisited unless there has been a material change of circumstances.  The orders proposed by the father and the independent children’s lawyer give the mother liberty to apply within 28 days of today.  But in the mother’s difficult circumstances, and given the time of year, I think that is an unrealistically rapid period.

18. I’m going to extend the time in order 8 to being on or before 25 January 2022.  In my view, this is a reasonable amount of time for the mother to resolve her difficulties and put her best foot forward, should she be so advised.  In my view, in the face of this history, this outcome is in the best interests of the children.  It gives certainty to the father, and it gives the mother a way forward if she is so advised.  So, as I say, the liberty to apply will be extended to 25 January 2022.  And although it might not be necessary in the circumstances, there will be a notation that the mother is not to face a Rice v Asplund objection if she files on or before that date.

19. Otherwise, there will be final orders in terms of the father’s proposed minutes, with the independent children’s lawyer agreeing, and the mother opposing.  I will also discharge the independent children’s lawyer.  I should say, albeit that it puts the matter briefly, that the application for the change of name is clearly in Y’s best interest.  He lives with his father.  It’s entirely appropriate, in my view, that the child Y be known by the same name as the sibling, and avoid the confusion that must necessarily be present if his name is different.

20. Indeed, I note that the mother had, as I say, apparently attempted to change the name in any event in the past.  So although that puts the matter shortly, in the face of the materials on the court file and the affidavit material, the change of name is plainly indicated as being in Y’s best interest.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       25 October 2021