Landau & Marek

Case [2021] FCCA 1869

FEDERAL CIRCUIT COURT OF AUSTRALIA

Landau & Marek [2021] FCCA 1869

File number(s): MLC 10673 of 2018
Judgment of: JUDGE MCNAB
Date of judgment: 13 August 2021
Catchwords: FAMILY LAW – parenting – spend time arrangements – mother to have sole parental responsibility – father to spend gradually increasing time with the child – change of child’s name – child’s surname was changed to reflect the mother’s new partner’s surname – father previously consented to the change of the child’s surname and financially contributed to the cost of changing the child’s surname – father seeks for the child’s surname to be changed to reflect his surname – child’s surname to remain unchanged
Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 64B, 65AA
Cases cited:

Chapman, A.L. and Palmer, R.J. [1978] FamCA 86

Reagan & Orton [2016] FamCA 330
Number of paragraphs: 95
Date of hearing: 16 June 2021
Place: Melbourne
The Applicant: Appearing in Person
Solicitor for the Respondent: Brendan Rothschild Legal Group
Counsel for the Independent Children's Lawyer: Mr N Eidelson
Solicitor for the Independent Children's Lawyer: Altavilla Family Law

ORDERS

MLC 10673 of 2018
BETWEEN:

MR LANDAU

Applicant
AND:

MS MAREK

Respondent

ORDER MADE BY:

JUDGE MCNAB

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The child X born in 2017 (“the child”) live with the Mother.

3.The Mother have sole parental responsibility for the child in respect of all major and long-term decisions including, but not limited to, education, medical, religion, travel and future living arrangements.

4.The child’s surname remain unchanged as “X”, so that the child’s name remain “X”.

5.The child spend time with the Father as follows:

(a)until the child is six years old (being in 2023) and provided that the Father has obtained stable independent accommodation, each alternate Sunday from 10.00am until 12.00pm, increasing by one hour every 4.5 months from the date of these orders, until the Father’s spend time with the child is from 10.00am to 2.00pm;

(b)once the child is six years of age, and provided that Father has obtained stable independent accommodation, the Father’s spend time with the child is to increase to a total of six (6) hours on each alternate Sunday from 10.00am to 4.00pm, then after six months (being after 26 March 2024), if the child expresses to the Mother that he is happy whilst in the Father’s care, the Father’s spend time with the child increase to be from 10.00am on each alternate Saturday to 4.00pm on Sunday;

(c)if the child is six years old and the Father has not obtained stable independent accommodation by that time, then the Father spend time with the child each alternate Sunday from 10.00am until 4.00pm, until the Father has obtained stable independent accommodation.

6.The Father’s time spent with the child pursuant to order 5(a) herein occur outdoors/in public places, or as otherwise agreed between the parties in writing, and any other time spent pursuant to order 5(b) herein not…

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AGLC
Landau & Marek [2021] FCCA 1869
Case
[2021] FCCA 1869
Decision Date

CaseChat Overview and Summary

This case concerned parenting arrangements for a child, X, born in 2017. The dispute involved the father's application to change the child's surname to his own, despite having previously consented to and contributed financially to the child's surname being changed to reflect the mother's new partner's surname. The mother sought for the child's surname to remain unchanged. The matter was heard by Judge McNab.

The court was required to determine the primary parenting orders, including who would have parental responsibility and the arrangements for the child spending time with each parent. A key issue was whether the child's surname should be changed, considering the father's prior consent and financial contribution to the existing surname, and the child's established life with that surname. The court also had to consider the impact of family violence perpetrated by the father on the mother and child when making parenting orders.

Judge McNab reasoned that the child's best interests favoured the surname remaining unchanged, particularly given the father's prior consent and financial contribution to the current surname, and the fact that the child had lived with this surname since 2019. The court noted that the child lived with the mother and her partner, whose surname the child bore. The court made orders discharging previous parenting orders and establishing that the child would live with the mother, who would have sole parental responsibility for all major long-term decisions. The father's time with the child was to gradually increase, subject to certain conditions, including obtaining stable accommodation and ongoing psychotherapy. The court also made specific orders regarding communication between the parents, travel restrictions, and injunctions to prevent denigration of either parent in the child's presence.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The child X born in 2017 (“the child”) live with the Mother.

3. The Mother have sole parental responsibility for the child in respect of all major and long-term decisions including, but not limited to, education, medical, religion, travel and future living arrangements.

4. The child’s surname remain unchanged as “X”, so that the child’s name remain “X”.

5. The child spend time with the Father as follows:

(a) until the child is six years old (being in 2023) and provided that the Father has obtained stable independent accommodation, each alternate Sunday from 10.00am until 12.00pm, increasing by one hour every 4.5 months from the date of these orders, until the Father’s spend time with the child is from 10.00am to 2.00pm;

(b) once the child is six years of age, and provided that Father has obtained stable independent accommodation, the Father’s spend time with the child is to increase to a total of six (6) hours on each alternate Sunday from 10.00am to 4.00pm, then after six months (being after 26 March 2024), if the child expresses to the Mother that he is happy whilst in the Father’s care, the Father’s spend time with the child increase to be from 10.00am on each alternate Saturday to 4.00pm on Sunday;

(c) if the child is six years old and the Father has not obtained stable independent accommodation by that time, then the Father spend time with the child each alternate Sunday from 10.00am until 4.00pm, until the Father has obtained stable independent accommodation.

6. The Father’s time spent with the child pursuant to order 5(a) herein occur outdoors/in public places, or as otherwise agreed between the parties in writing, and any other time spent pursuant to order 5(b) herein not be subject to this restriction.

7. Until the Father is able to obtain professional changeover services at Suburb B Contact Centre, changeovers be affected by trusted agents, preferably the Mother’s partner, Mr C, and one of the Father’s sisters, at a public location with surveillance cameras (such as a McDonald’s Restaurant), as agreed between the parties.

8. The child is not to be taken to or remain at any residence at which the Father’s family reside.

9. The Father may only have one paternal family member around the child at any given time.

10. For the purposes of order 5 herein, upon the Father obtaining stable and independent accommodation, and that no paternal family members also reside at the said accommodation, he shall provide the Mother with a copy of the lease and photos of all areas that the child will be using.

11. The Father is to continue psychotherapy (or any other therapy which the Father is currently participating in) for as long as the therapist or other treating practitioners deems necessary.

12. The signed passport documents and passport of the child are to remain with the Mother.

13. The Court requests that the Australian Federal Police remove the names of the child from the Airport Watch List at all points of international arrivals and departures in Australia.

14. The child is not to travel, be taken to or stop over in Country D, Country E or bordering countries, and that other overseas destinations to which is the child is to travel to with the Father are to be agreed upon between the Mother and Father in writing prior to the child travelling to any overseas destinations.

15. For the purposes of communication between the parties as ordered herein, the Father communicate in writing via text message with the Mother’s partner, Mr C, on behalf of the Mother. In emergency circumstances the Father may call Mr C and if he is unreachable the Father may contact the Mother directly. The parties must reply within 72 hours of receipt of receiving such communications with the exception of emergencies.

16. For the purposes of order 15 herein, the parties and Mr C must provide to each other their current contact details, and must inform the other parties within 48 hours of any change to those contact details.

17. Both parties, their servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other party and their extended family members, and

(b) discussing these proceedings,

to or in the presence or hearing of the child or any of them and from permitting any other person so to do.

18. The order appointing the Independent Children’s Lawyer be discharged.

Background

Background to the litigation

In 2021, the Mother married her current partner, Mr C. They cohabitate together with the partner’s son from a previous relationship. BACKGROUND On 13 September 2018, the Father filed an initiating application seeking final parenting orders. The matter came before the Court on 30 October 2018, and orders were made by consent for the child to live with the Mother and to spend supervised time with the Father for two hours per fortnight. Orders were also made for the Mother to file responding material within 28 days and for the mater to be adjourned to 25 March 2019 for an interim defended hearing. The Mother filed her responding material on 29 November 2019. The matter came back before the Court on 25 March 2019, and orders were made for a family report to be prepared and for the matter to be adjourned to 22 October 2019 for an interim defended hearing and to 26 November 2020 for final hearing. The interim orders made on 30 October 2018 were, in effect, varied so that the Father’s supervised spend time with the child was to occur on every second Saturday. On 13 August 2019, the Father filed an application in a case seeking that time be abridged and the matter be listed urgently. The Father sought that his time with the child be reinstated, pursuant to the orders dated 25 March 2019, as the Mother had withheld the child in breach of those orders since in or around April 2019. The matter came before the Court again on 19 September 2019, and orders were made for, amongst other things:(1)the Father’s time to recommence;(2)the appointment of an Independent Children’s Lawyer;(3)a s11F child inclusive conference to occur on 23 September 2019; (4)an airport watch list order restraining the parties from removing the child from Australia; (5)the Father to attend for a psychiatric assessment for the purpose of a psychiatric report;(6)the hearing on 22 October 2019 to be vacated; and(7)an interim defended hearing to occur on 4 October 2019. A s11F memorandum, prepared by the Family Consultant, was provided to the Court on 1 October 2019. The Family Consultant made recommendations for the Father to spend professionally supervised time with the child each alternate weekend for two hours, with consideration for the time to be increased on receipt of continued favourable reports regarding the Father’s spend time with the child, the results of the Father’s psychiatric assessment, and according to the child’s capacity to manage transitions. The mater came back before the Court on 4 October 2019, and orders were made for the parties to attend upon a psychiatrist as nominated by the Independent Children’s Lawyer, for the parties to successfully complete the POP Program at H Counsellors, the matter to be adjourned to 3 March 2020 for an interim defended hearing and otherwise the orders made on 25 March 2019 to remain in full force and effect. On 13 February 2020 and orders were made for the parties to attend at any conference convened by the Independent Children’s Lawyer and otherwise the matter be listed for directions on 18 May 2020.

Evidence

Evidence Before The Court

The Mother deposes to living in fear of the Father, as the Father has made threats toward her and her partner post-seperation. There is a Family Violence Intervention Order in favour of the Mother against the Father, and he has breached that order on two occasions. The intervention order was recently extended and remains in place in favour of the Mother and child against the Father. The Family Consultants’ EvidenceThe s11F Memorandum By way of the s11F memorandum dated 1 October 2019, the Family Consultant notes that there was an intervention order in place with the Mother and the child as the protected persons and the Father listed as the respondent. The Family Consultant sets out a history of family violence described by the Mother against the Father, including serious physical and sexual assault, verbal abuse and intimidation, as well as ongoing harassment via social media and text messages towards the Mother, Mr C and her extended family. It is said that such family violence was perpetrated by the Father during the relationship and post-separation. The Mother told the Family Consultant that the child was present for much of the family violence that occurred during the relationship and that, despite being an infant at the time, he appeared frightened at hearing the parties yelling at each other. The Family Consultant indicated that the Father admitted to committing family violence against the Mother during the relationship, as well as sending a large number of harassing and threatening electronic messages. The Family Consultant noted that, at the time the s11F memorandum was prepared, the s67Z reports from DHHS in this matter indicate that there was three reports made, and that DHHS ultimately recommended that: […] there be no change to current situation regarding the care of X, as there are no concerns for his safety in his mother’s care. DHHS also recommended that supervised time between X and his father be continued, particularly due to the existence of an IVO, with Mr Landau listed as the respondent and X and Ms Marek as protected persons. It is noted that there are provisions in the IVO that allow for conditions relating to the Family Law Act. In relation to drugs and alcohol, the Mother reported to the Family Consultant that she had concerns about the Father’s alcohol consumption during their relationship, and the effects it had on his mood and behaviour. The Father acknowledged that he would consume large amounts of alcohol in a short period of time during the course of the relationship, which caused him to act aggressively and violently toward the Mother, in situations where the child was sometimes present. The Father told the Family Consultant that, at the time the s11F memorandum was prepared, he only drank occasionally and only consumed one or two standard drinks. In relation to the parties’ mental health, the Mother informed the Family Consultant that, at that time, she was beginning the process of attending upon a therapeutic service to assist her in relation to the abuse perpetrated on her by the Father during their relationship. The Father admitted to having experienced increased anxiety and panic attacks since his spend time with the child ceased in May 2019. He stated that his mental health is managed with support from various services, including weekly counselling with a psychologist.The Family Report

Decision

Reasons for decision

In particular, the Father previously consented to the change of the child’s name and contributed to the cost of changing the child’s name. The child is living with the Mother and her partner (whose surname is the one the child bears) and has had his current surname since 2019. It is in the child’s best interests that his name remain unchanged, in that his name remain ‘X’.CONCLUSION For these reasons, I will make orders in the terms sought by the Mother and supported, for the most part, by the Independent Children’s Lawyer.

Ratio Decidendi

Legal Principle Established

There are issues of risk which arise in this case from family violence perpetrated by the Father on the Mother. The orders that will be made address protective concerns in relation to that risk.Secondary Considerations In terms of dealing with the matters that I must have regard to under s60CC(3), to the extent that I have not already done so, I have regard to the following relevant considerations:s60CC(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; The child’s views have not been ascertained. Even if the child had expressed any views, they would not be given any significant weight, due to the child’s young age. However, it was not in dispute that the child enjoys spending time with the Father and I refer to supervision reports in that regard.s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child); Clearly the Mother is the primary caregiver and the child has a strong relationship with her. The child does have a positive relationship with the Father, but the extent of his relationship with the Father’s extended family, with whom the Father currently lives, is not known.s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; The Mother has made the major long-term decisions regarding the child.s60CC(3)(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 maintains the child with the assistance of her partner. The Father makes child support payments of $81 per week.s60CC(3)(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 that will be made will not change the status quo in this matter.s60CC(3)(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 children’s right to maintain personal relations and direct contact with both parents on a regular basis; These matters were not canvassed in the evidence and are not a factor in this matter.s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;