Kerr & Sloan

[2008] FamCA 141

FAMILY COURT OF AUSTRALIA

KERR & SLOAN [2008] FamCA 141

FAMILY LAW – CHILDREN – with whom a child lives – parental responsibility – family violence – father discontinued application for final orders – proceeded on undefended basis – presumption of equal shared parental responsibility rebutted due to family violence – significant risk of psychological abuse of child by father – not in child’s best interests to spend time with father – child to live with mother – mother have sole parental responsibility for child.

FAMILY LAW – CHILDREN – change of name – welfare of child paramount consideration – consideration of benefit and detriment to child, confusion to child and child’s wishes – change of name in best interests of child – father’s name to remain part of child’s full name – whether father’s participation in name change process required – pursuant to orders mother sole guardian of child – only mother’s authority required.

Family Law Act 1975 (Cth) ss 60CC and 61DA

APPLICANT: MR KERR

RESPONDENT: MS SLOAN

INDEPENDENT CHILDREN’S LAWYER: MARILYN J. BUCKERFIELD

FILE NUMBER: ADF 1886 of 2005

DATE DELIVERED: 4 March 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms A. Du Barry

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S COUNSEL: Mr M.A. Boehm

INDEPENDENT CHILDREN’S SOLICITOR: Legal Services Commission of SA

Orders

1. The child, Robert, live with the mother and that the mother have sole parental responsibility for the child’s care, welfare and development.

1. The father is restrained from attending at the mother’s place of residence, her workplace or from contacting her directly or indirectly.

1. The father is restrained from attending at the child’s school or the school of his siblings.

1. The child be henceforth known as Robert Kerr Sloan and that the mother do all things and sign all such documents as may be necessary to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages to the surname of Sloan with the other names of Robert Kerr.

1. The appointment of the Independent Children’s Lawyer be discharged three [3] months from today.

1. Liberty to the mother to apply in relation to the orders for the change of the child’s name.

1. Remove all matters from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1886 of 2005

MR KERR

Applicant

And

MS SLOAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application in relation to parenting orders brought by the mother.  The proceedings concern the child Robert Kerr who was born in October 1997 and is therefore aged 10.  The proceedings have been on foot since December 2005 and were listed to come on for trial as a reserve matter this week.

2. On 21 February 2008 the father filed a notice of discontinuance, discontinuing his application for final orders.  The proceedings that therefore came on before me today came on as the undefended proceedings of the mother for the orders which she seeks in her amended response filed on 13 November 2007.

3. At the hearing before me the mother appeared represented by Ms Du Barry of counsel and the independent children's lawyer appeared represented by Mr Boehm of counsel.

4. I have been referred to the relevant documents on the Court file, in particular the affidavit of the mother's evidence-in-chief filed on 13 November 2007 and the reports of the experts, the most recent being the report of Dr M dated 4 December 2007 annexed to the affidavit of the Independent Children's Lawyer, which was received by me this morning.  The earlier expert's report of Dr H, which is annexed to her affidavit filed on 28 August 2006, was a report dated 24 August 2006.

5. The orders which the mother seeks by way of final orders are that the child live with her and that she have sole parental responsibility for the child's care, welfare and development, that the father be restrained from attending at her residence, workplace, or from contacting her directly or indirectly, that the father be restrained from attending the child's school or the school of his siblings, and that the child's surname be changed from Kerr to Sloan, or, in the alternative, Sloan-Kerr. 

6. The orders sought by the mother are supported by the independent children's lawyer.

7. Notwithstanding that this matter is undefended, it is still necessary for me to ensure that the orders I make are in accordance with the provisions of the Family Law Act, including that I am satisfied that the orders are in the best interests of the child.

8. The Family Law Act clearly sets out, under section 61DA, that the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. That presumption, however, does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or any other child who at the time was a member of the parents' family, or family violence.

9. The evidence before me is the uncontested trial affidavit of evidence-in-chief of the mother filed in November 2007 and the material contained in the two experts' reports.  Without going into specific detail, there is more than sufficient material in the mother's affidavit to establish that the presumption is rebutted because of family violence.  In particular I refer to the mother's affidavit material in which she describes numerous incidents in which the father has been responsible for family violence.  The children have also described to experts that they have witnessed the father's violence towards the mother.

10. I am satisfied, in the unusual circumstances of this case, that the presumption does not apply.

11. I need also to consider the general provisions of the Act which require me to consider various matters when determining what is in the child's best interests.  The primary considerations are clearly the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

12. In this case, again the expert reports are significant in that both of the reports substantiate that there is a significant risk to the child in relation to psychological abuse in particular if he were in a situation where he was required, against his wishes, to spend time with the father. 

13. I am satisfied that, because of the detail in the mother's affidavit but more significantly in the two expert reports, it is not in the child’s best interests for him to spend time with his father, at this time.  I say that because it appears from the expert reports that the father's behaviour towards the mother, and the father's behaviour in the presence of the child and his siblings, has been such as to indicate that his behaviour has prevented the child from having a meaningful positive relationship with the father.

14. The additional considerations which I take into account when determining what is in the child’s best interests are set out in section 60CC(3).  I shall deal with each of those in the appropriate order.

15. The first is: 

    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.

16. The reports of Dr H in 2006, and Dr M as recently as December 2007, clearly set out that the child does not wish to have anything to do with his father.  It also sets out the reasons that form the basis for the child’s views.  In particular, each of those reports deals with the child’s perception of his father as a violent and frightening person.  The wishes expressed by the child are taken into account by the experts in the circumstances in which the child found himself; namely, that he had not had any contact with his father since an incident occurred in 2004, when his father allegedly broke into the mother's home and the children, including the child, were frightened by the events of that occasion.

17. Obviously the issue as to whether the child has formed his views of his own accord, or has been influenced inappropriately to form those views, has been taken into account by the experts.  I am satisfied, from the two expert reports, that the child’s views are based upon the child’s own perceptions. 

18. In particular, the report of Dr H takes into account the interviews with the children; namely, the child and his two siblings and both of the parents.  Dr H refers to the child needing time to adjust to what he presents as his "lived reality" of exposure to his father's violence.

19. Dr M also interviewed both of the parties and the three children and concluded that the child’s siblings felt that they could not trust the father and that he was still dangerous to their mother.  They both expressed a wish that he would stay away from their family and did not think contact between the child and his father would be good for the child.

20. The report continues:

    [The child] reported similar memories of his father.  For example, he said he remembered his father yelling at his mother and he had worries that his father might harm his mother.  He was clear he wanted no contact with his father, excluded his father from his nominated family and said that he did not miss him.

21. The report continues:

    While he reported the presence of symptoms consistent with those of high anxiety in the past, and although there is some evidence of residual anxiety remaining, his reports of his current emotional functioning indicate he is functioning without difficulty on a day-to-day basis, and is able to concentrate at school and enjoy the company of his friends.

22. The conclusion in that report by Dr M is that the child had been affected by significant levels of anxiety in the past as a consequence of his father's behaviour towards his mother.

23. I am therefore satisfied that the child’s expressed views being those of a child aged 10 are, in these particular circumstances, a relevant matter to which significant weight should be given. 

24. Another factor to take into account is:

    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).

25. Obviously there is a strong relationship between the child and his mother and the child and his siblings as described in both of the reports and in the mother's affidavit.  The reports also indicate that there has been a breakdown in the relationship, or any good relationship, between the child and his father.

26. The next factor is (c):

    The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

27. There is no evidence to indicate the father's willingness to support and encourage the relationship between the child and his mother.  There is significant evidence, by the very nature of this application, that the mother is currently not willing to support and encourage a close relationship but that she provides evidence of the basis of her lack of willingness at this stage.

28. The next factor is (d): "The likely effect of any changes in the child's circumstances."  The mother is not proposing any significant change in the child's circumstances other than a change of name, which she says would bring about a positive change for the child.

29. "Practical difficulty and expense" is not relevant in this matter, nor are the factors contained in subparagraph (h). 

30. In relation to "the capacity of parents to provide for the needs of the child, including the emotional and intellectual needs," I am satisfied from the reports of Dr H and Dr M that the mother has shown a capacity to provide for the day-to-day needs and the intellectual and emotional needs.  I understand she has continued to support the child obtaining counselling for any problems he may have.

31. The factors contained in subsection (g) are in my view not highly relevant to this matter. 

32. In relation to (i): "the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents" I am satisfied that the attitude of the mother is an appropriate one, taking into account what she considers to be in the child’s best interests.

33. Subsection (j) deals with "any family violence involving the child or a member of the child's family."  This is a significant matter in this case.  The father has denied the violence and aggression asserted by the mother.  However, it is clear from the reports of Dr H and Dr M that the three children experienced incidents in which they perceived the child’s father to be threatening, aggressive, if not violent, towards the mother and in those circumstances those matters must be given significant weight.

34. I am not aware of any family violence order that applies in this matter.  However, the material before the Court in relation to the alleged violence is in itself significant.

35. I am also required to consider 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.  I will attempt to make those orders.

36. The material under section 60CC(3) does not specifically deal with questions in relation to the change of name of the child, but in relation to that I again consider that the welfare of the child is the paramount consideration.  The Court should give consideration to factors such as the benefit to the child, or the detriment to the child, including any short-term effects and long-term effects.  The question of the child's confusion about a name change and the child's wishes about a name change are significant. 

37. I am satisfied that from the particular material in the mother's affidavit and in Dr M’s report that supports the child changing his name, to have the same surname as his siblings and mother.  The evidence before the Court clearly indicates a strong attachment to the mother and a strong feeling of identity as part of the mother's family, including the siblings.  At the same time the evidence suggests a strong negative feeling by the child and fear of the child concerning his father.

38. The evidence does not indicate any detriment to the child from a change of name at this stage.  I am satisfied that the welfare of the child and the best interests of the child, from a psychological point of view, encourage the Court to make an order that will permit the child to change his name. 

39. I have given consideration to maintaining the use of the name Kerr as part of his name, so that his surname would be Sloan but his full name would be Robert Kerr Sloan.  I understand that that is not necessarily the preference of the mother.  However, this would allow the child to have, for future reference, sufficient to identify himself with the father but have the surname he prefers to use on a day-to-day basis (the name Sloan). 

40. The child’s name, for all daily purposes, would obviously be Robert Sloan, as I am not suggesting that it be a hyphenated surname of Kerr-Sloan but that the child's full name be Robert Kerr Sloan.

41. This also takes account the future possibilities that the child may need to seek out his father and take further steps to explore his identity when he reaches adulthood or shortly before that. 

42. I have given consideration to the need for the father to participate in the process, but I propose to make an order that the mother should have sole parental responsibility, therefore I consider the mother to be the sole guardian of the child.  Therefore her permission is the only authority required for the change‑of‑name exercise. 

43. I trust that this will be recognised by the authorities which require guardians to consent to the change of name.  The order that I propose to make will, in effect, make the mother the sole guardian of the child and therefore the only person whose authority should be required for the change of the child's name.

44. In summary therefore, in this unusual case, I am satisfied that the provisions of the Family Law Act promote the orders that are sought by the mother, primarily because of the child's wishes and because of the issues of family violence involving the child's family.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  7 March 2008