Ladd & Valcourt
[2022] FedCFamC2F 1736
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ladd & Valcourt [2022] FedCFamC2F 1736
File number(s): MLC 9793 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – undefended hearing – final parenting orders – change of name of child – mother’s surname to become child’s middle name – child to have father’s surname. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), r 15.19
Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 15 November 2022 Place: City C The Applicant: No appearance Counsel for the Respondent: Mr Korke Solicitor for the Respondent: Family Centred Law Counsel for the Independent Children's Lawyer: Mr Carne Solicitor for the Independent Children's Lawyer: Medson Legal ORDERS
MLC 9793 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LADD
Applicant
AND: MR VALCOURT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS THAT:
1.All extant parenting orders be discharged.
2.The father have sole parental responsibility for the child X born in 2014 (hereinafter referred to as “the child”).
3.The child live with the father.
4.The child spend time with the mother as agreed in writing between the father and the mother.
5.The mother be permitted to send letters, cards and gifts for the child to the Father’s postal address not more frequently than monthly.
6.The father shall:-
(a)Ensure that the child is given the letters, cards and gifts sent by the mother pursuant to paragraph 5 hereof; and
(b)Continue to facilitate the child attending on Ms B for therapeutic counselling, as recommended by Ms B.
7.The Mother and the Father shall be at liberty to communicate with Ms B about the child’s therapeutic counselling and participate in such counselling as recommended by Ms B from time to time.
8.Pursuant to Section 65Y(1)(a) of the Family Law Act 1975 (Cth), the father is hereby permitted to take and send the child from the Commonwealth of Australia temporarily, for the purposes of overseas travel and holidays, without the consent of the mother.
9.The Registrar of Births, Deaths and Marriages, Victoria be requested to do all such acts and things as may be required to change and record the name of the child currently known as X born in 2014 to X born in 2014, and thereafter the child be known as and referred to as X LADD VALCOURT.
10.Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) it is ordered that the child be issued with an Australian Passport, upon application by the father, without the mother’s consent and/or signature being required.
11.The father shall:
(a)advise the mother immediately in the event that the child suffers any serious illness or injury requiring hospitalisation;
(b)authorize any medical practitioner upon which the child may attend from time to time, to communicate with the mother in respect to the child’s medical condition and/or requirements.
(c)authorize all schools at which the child may attend, from time to time, to:
(i)provide the mother, at the expense of the mother, copies of all reports, notices and photographs in relation to the child;
(ii)communicate with the mother, either by telephone, in writing or by personal attendance, in respect to the child’s progress;
(iii)attend all functions to which parents are normally invited;
subject to any school policy in relation thereto.
12.The mother shall keep the father advised at all times of her current residential address and telephone number.
13.The Mother, the Father and Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a)The Manager or delegate of the Manager of the day care facility or kindergarten of the school attended from time to time by the child;
(b)The Principal or delegate of the Principal of the school attended from time to time by the child;
(c)Any Medical Practitioner and/or allied health professional attending upon any one or more of the child, the Mother, the Father or any other child of either parent; and/or
(d)The Department of Families Fairness and Housing.
14.That the Order of the Court appointing the Independent Children’s Lawyer be discharged.
15.Pursuant to Rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, it is certified that it was reasonable for the parties to engage a lawyer as Counsel.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Annexure A 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 a pseudonym Ladd & Valcourt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read.
The questions I must decide in this matter are:
·Firstly, whether I should proceed in the absence of the Mother (what we call an undefended hearing);
·Secondly, whether it is appropriate to make final orders about the child’s living arrangements and name in the absence of the Mother; and
·Thirdly, whether it is in the child’s best interests to make the orders that his Father seeks.
Brief background
The parents commenced cohabitation in 2012. They separated either late 2014 or early 2015. The child ‘X’ was born in 2014 (‘the child’). The Mother issued proceedings on 9 September 2020. At that time, the child was living with the Father and had done so since 2018.
The matter first came before the Court on 9 December 2020. The Mother was represented on that occasion by solicitor and counsel. Orders were made, including for the appointment of an Independent Children’s Lawyer (‘ICL’), for the parties to undertake a mental health plan and initial engagement or registration with a children's contact facility.
The matter returned to Court on 25 February 2021, and again the Mother was represented by solicitor and counsel. Orders were made adjourning the matter to 16 August 2021 and provided that the Mother was permitted to send letters, cards and gifts to the child but no more than weekly, that the Father was to ensure that they were brought to the child's attention and to ensure that the child continued to attend Ms B for therapeutic counselling.
The matter was then next before the Court on 12 August 2021, where the Mother was again represented by solicitor and counsel. At that time, the matter was set down for final hearing in the City C sittings of the Court, not specifying the precise date. The Mother was ordered to file and serve any amended application and all affidavits upon which she sought to rely at final hearing no later than 28 days prior to the final hearing. The orders that day also provided that the child was to live with the Father and that the Mother's time with the child was reserved, with the parties (both of them) to have first consulted the child’s therapeutic counsellor. The position of the counsellor was that she had found it very difficult to engage the child with the issue or concept of his mother or time with his mother at all. Those orders or the directions for final hearing also provided at Notation A, which was as follows:
The adjournment to November 2022 will allow time for the therapeutic counselling to take effect and to permit the Mother and the child to rebuild the relationship where there has been a fracture in the relationship.
The family report interviews occurred on 6 July 2022. The Mother attended that report but was not observed in the presence of the child because the reunification process contemplated by the orders of August of the previous year had not yet commenced. The report was released on 16 September 2022. The child was observed with his father and paternal grandmother. In that report (at paragraph 49) the Father told the report writer that he would like the child to enjoy a relationship with the Mother, however, he was immensely concerned that the Mother had not taken up the opportunity in the last 12 months to engage with Ms B to work towards re-establishing her relationship with the child.
It must be noted that the child has two half-siblings because his Mother has two other children who live with her at the moment. When interviewed by the family report writer, the Mother acknowledged that she had not yet contacted the child’s counsellor to re-establish a relationship. Ms B, the therapist, had reported that the child remains refusing to mention his mother or half-siblings and that the subjects are brought up during play therapy with letters and gifts. The therapist is of the opinion that the child is doing well, feeling safe and secure within the Father’s care and is able to attend social events, which he had been unable to do in the past.
The report writer observes that the child currently has no relationship with his Mother, siblings or his maternal family as the Mother has chosen not to engage with the therapist. The Mother told the report writer that she had not been able to engage because she had just been too busy with her other children. There are significant concerns of the nature of the relationship between the child’s Mother and her current partner, particularly as regards family violence. The family report was released on 16 September 2022 and at that time the Mother remained represented by her solicitor.
Whether the matter should proceed undefended
The Mother was the original Applicant in the proceedings and has been called outside the Court today with no appearance. At my request, attempts have been made to contact her today by telephone on the telephone numbers that the notice of ceasing to act provided.
On 13 October 2022, the Mother's solicitor filed a notice of ceasing to act, and that notice of ceasing to act provided two mobile phone numbers as well as an email address as contact details for the Mother. The Father's solicitor emailed the Mother on the email address from the notice of ceasing to act on 26 October 2022 and advised that the matter was listed for final hearing on 15 November 2022 and that she was due to file any material by 18 October 2022. That email included the following:
…We put you on notice that my client wishes to proceed with the final hearing on 15 November and, in the event that you do not file the appropriate documents, or do not attend the hearing, we will seek to proceed with the matter in your absence. …
In addition, that letter was posted to the Mother at Address D. The last known address, according to the notice of ceasing to act, was a different address but merely the same street address but including a unit or apartment number (“ Address E”). The Mother was served with documents, according to a process server (“Mr F”), and on 10 November 2022, Mr F served the Mother at Address E with these documents. Hence, I place no weight on the fact that this letter was posted to Address D when the address was Address E. In any event, I was told, and I accept, that the letter was also emailed to the Mother’s email address.
Further and in addition to that, on 14 October 2022, to one of the Mother’s listed email addresses, an email was sent to the same effect as the letter which I have just quoted, alerting the Mother to the proceedings being listed on 15 November 2022. On 9 November 2022, the Father's solicitor sent, by two separate emails, a further copy of the letter of 26 October 2022, the Father’s amended response and his affidavit of evidence in chief. In any event, on 10 November 2022 the Mother was personally served with the documents by Mr F, and on that day Mr F said, “Are you [the Mother]?” and she replied, “Yes”.
Today the Father's counsel has telephoned both of the telephone numbers on the notice of ceasing to act in an attempt to contact the Mother. One number was answered by a person who, according to the Father's counsel and I accept what he has told me from the bar table, identified herself as the Mother's mother and asserted that the other number was in fact the Mother's number. The Father's counsel rang that number at 12:42pm and at 12:48pm but in both cases the call went through to voicemail.
In all of those circumstances, it is appropriate to proceed in the absence of the Mother and to proceed undefended. I can do so in any event pursuant to rule 15.19 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), the failure to attend a court event, which reads as follows:
15.19 Failure to attend a court event
(1)If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
(a) adjourn the court event to a specific date or generally;
(b) order that there is not to be any court event, unless:
(i) a new date for the court event is fixed; or
(ii) any other steps that the court directs are taken;
(c)if the absent party is an applicant—dismiss the application;
(d)if the absent party is a party who has made an interlocutory application—dismiss the interlocutory application;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
The issue of the final orders
Then turning to the merits of the matter, I note that the orders the Father seeks as final orders effectively represent what has been the circumstances since separation, save for one further matter. He seeks an order that the child's name be changed from the Mother's surname to his surname, and he now seeks that the Mother's surname be retained in the child's name as a middle name. The Father’s surname has a certain grace and gravitas to it, and the Father is to be commended for seeking to keep that connection to the Mother and the Mother's family by the use of the Mother’s surname or family name as the child’s middle name. Sadly, the only connection the child has to his mother at the moment is that skerrick of a connection via his name.
It also appears, in a way that I cannot make precise findings about, that the child suffered significant neglect or abuse whilst in the care of the Mother before coming into the Father's care.
In all of those circumstances and applying the whole of part VII of the Family Law Act 1975 (Cth), I find that the orders as sought by the ICL and the Father this day are in the child’s best interests.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 December 2022
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