Landau & Marek
[2021] FCCA 1869
•13 August 2021
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 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.
AND THE COURT NOTES THAT:
A.The Independent Children’s Lawyer does not consent to paragraph 4 of the orders herein, however the Independent Children’s Lawyer indicated that the order would not be opposed on the basis that both parents are in firm agreement.
B.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.
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 under the pseudonym Landau & Marek is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION
In this matter the Applicant Father is 27 years old and is employed as a factory worker. The Respondent Mother is 29 years old and is employed full-time.
The parties met in or around 2011, when the Father was living in Country D and the Mother was living in Melbourne. The parties’ relationship commenced online in this period, and they communicated via various electronic means. Between 2011 and 2014, the Mother travelled to Country D twice to spend time with the Father.
In 2014, the Applicant migrated to Australia on a spousal visa and the parties commenced cohabitation shortly thereafter in Victoria.
In 2015, the parties were married.
In or around June 2016, the parties moved to live in Suburb F, renting a property from the Maternal Grandmother and Maternal Step-Grandfather.
In 2017 the child of the parties X (also known as X) was born.
On or around 24 February 2018, the parties separated on a final basis. The Father moved out of the property in Suburb F and the Mother moved out of the property to live with the Maternal Grandmother in Suburb G, Victoria.
On 25 January 2019, the child’s name was changed to X. The Father consented to the change of name in writing and paid a portion of the cost to effect the same.
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.
On 18 May 2020, orders were made confirming the final hearing was to be heard on
26 November 2020.
On 19 May 2020, the Father filed an application in a case seeking orders that the matter be listed for an interim defended hearing on the next available date, for the child to live with the Mother and for the child to spend unsupervised time with the Father for three hours each alternate weekend.
The matter came before the Court on 23 June 2020 for an interim defended hearing, and orders were made for the child to live with the Mother and to spend unsupervised time with the Father for two hours each alternate Saturday. Orders were also made restraining the Father from bringing the child into contact with the paternal family.
On 28 October 2020, a family report, prepared by the Family Consultant, was provide to the Court. By that report, the Family Consultant relevantly made recommendations as follows:
(1)the child live with the Mother;
(2)the child spend unsupervised time with the Father each alternate weekend (presumably Saturday), with his time to increases by one hour every six months until it reached from 10.00m until 2.00pm, with this arrangement to continue until the child is in grade 1 at school;
(3)
if the Father attained independent accommodation by the time the child is in
grade 1 (and provided evidence to the Mother of the same), then the child’s spend time with the Father increase to 10.00am on Saturday until 4.00pm on Sunday;
(4)the Father to continue to undertake therapy, in particular, focusing on strategies that help him to not be violent, and
(5)the Mother continue to obtain support as needed.
On 18 November 2020, the Father filed an amended initiating application. By that application, the Father sought, amongst other things, that the parties have equal shared parental responsibility for the child, the child live with the Mother, and he spend unsupervised time with the child from 11.00am to 1.00pm each alternate Saturday. The Father also sought orders that his spend time gradually increase to him spending time with the child from the conclusion of school on Friday to the commencement of school on Monday each alternate weekend, should he obtain independent accommodation. The Father also sought that the child’s name be officially registered as ‘X’.
On 20 November 2020, the Mother filed an amended response. By that amended response, the Mother sought, amongst other things, that she have sole parental responsibility for the child, the child live with her, and the child spend time with the Father from 10.00am to 12.00pm each alternate Sunday, with that time to gradually increase to 10.00am on Saturday to 3.00pm on Sunday, should the Father obtain independent accommodation.
The matter came before Judge Riley of this Court on 26 November 2020 for final hearing, and was heard across two days. At the conclusion of the second day of the hearing, the matter was adjourned to a date to be advised before a Judge other the Judge Riley, as the parties had conveyed a settlement agreement to the Court, which one of the parties subsequently decided to resile from.
The matter ultimately came before the Court for final hearing on 16 June 2021. The Applicant appeared in person, the Respondent was legally represented and Counsel appeared on behalf of the Independent Children’s Lawyer. Judgment was reserved at the conclusion of the hearing.
ORDERS SOUGHT
The Father’s Proposed Orders
By way of a proposed minute of orders provided to the Court on 16 June 2021, the Father seeks orders for, amongst other things:
(1)the child to live with the Mother “until the child expresses that he is happy for this to continue”;
(2)the parties to have equal shared parental responsibility for the child in respect of all major issues, including, but not limited to, education, medical needs, religion, travel and future living arrangements;
(3)the child’s surname be changed to ‘X’ so that the child’s name would be ‘X’;
(4)until the child reaches the age of six, the Father have unsupervised spend time with the child from 10.00am to 12.00pm each alternate Sunday, increasing by one hour every four and a half months until it reaches 10.00am to2.00pm, provided that the Father has obtained independent accommodation;
(5)once the child is six years old and the Father has obtained independent accommodation, the Father’s spend time with the child increase to a total of six hours, from 10.00am to 4.00pm, then after six months, if the child expresses that he is happy in the Father’s care, the child’s spend time with the Father increase to include each alternate weekend from 10.00am on Saturday until 4.00pm Sunday;
(6)in the alternate, if the Father has not obtained independent accommodation by the time the child is six years old, then the Father spend time with the child each alternate Sunday from 10.00am until 4.00pm and will remain this way until the Father has obtained independent accommodation;
(7)the Father’s spend time with the child is to be in public places, and the child is not to be taken to any home in which the Father’s family reside;
(8)the Father may only have one paternal family member around the child at any given time;
(9)upon the Father obtaining independent accommodation and that no paternal family members also reside in that residence; he shall provide the Mother with a copy of the lease and photos of all areas that the child will be using;
(10)the Father is to continue therapy for as long as the therapist deems necessary;
(11)the child’s name remain on the airport watch list;
(12)the child is not to travel or be taken to interstate or international destinations unless agreed to by the Father; and
(13)the Mother may communicate in writing via text message with the Father and in emergency circumstances the Father may call the Mother’s partner, 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.
The Mother’s Proposed Orders
By way of a proposed minute of orders provided to the Court on 16 June 2021, the Mother seeks orders for, amongst other things:
(1)the Mother to have sole parental responsibility for the child and for the child to live with her;
(2)the child’s surname to remain unchanged, being that the child’s name remain ‘X’;
(3)until the child reaches the age of six, the Father have unsupervised spend time with the child from 10.00am to 12.00pm each alternate Sunday, increasing by one hour every four and a half months until the spend time reaches 10.00am to 2.00pm, provided that the Father has obtained independent accommodation;
(4)once the child is six years old and the Father has his own residence, the Father’s spend time with the child increase to a total of six hours, from 10.00am to 4.00pm, then after six months, if the child expresses that he is happy in the Father’s care, the child’s spend time with the Father is to increase to include overnight each alternate weekend from 10.00am on Saturday until 4.00pm Sunday;
(5)in the alternate, if the Father has not obtained independent accommodation by the time the child is six years old, then the Father’s spend time with the child each alternate Sunday from 10.00am until 4.00pm and will remain this way until the Father has obtained independent accommodation;
(6)the Father’s spend time with the child is to be in public places, and the child is not to be taken to any home in which the Father’s family reside;
(7)the Father may only have one paternal family member around the child at any given time;
(8)upon the Father obtaining independent accommodation and that no paternal family members also reside in this residence; he shall provide the Mother with a copy of the lease and photos of all areas that the child will be using;
(9)the Father is to continue therapy for as long as the therapist deems necessary;
(10)the child’s name be removed from the airport watch list;
(11)the child is not to travel or be taken to, or stop over in Country D, Country E or bordering countries, and that other overseas destinations are to be agreed upon by the Mother; and
(12)the Father may communicate in writing via text message with, the Mother’s partner, on behalf of the Mother. In emergency circumstances the Father may call the Mother’s partner 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.
The Independent Children’s Lawyer’s Proposed Orders
The Independent Children’s Lawyer indicated that they would consent to orders being made in accordance with the Mother’s minute of proposed orders. However, the Independent Children’s Lawyer also wishes that a notation be included that, in respect of an order for the child’s name to remain ‘X’, the Independent Children’s Lawyer does not consent to such an order, but will not oppose the order being made on the basis that both parties are in agreement to that order.
EVIDENCE
The Father’s Evidence
The Father gave evidence at the final hearing, relying primarily on his affidavit filed on
18 November 2020, which I will not set out in any great detail.
In his affidavit, the Father variously deposes to having a loving relationship with the child, and during their spend time, it is said that they have positive interactions.
The Father acknowledges that between May 2019 and July 2019 he sent ‘inappropriate text messages’ to the Mother, for which he is said to be remorseful, and he subsequently consulted with his General Practitioner for a mental health plan and a referral to a psychologist. The Father acknowledges at [34] of his affidavit that he and the Mother engaged in verbal and physical arguments, which the child was exposes to. The Father says those disagreements predominately related to parenting styles. At [35] of his affidavit, the Father states that:
35. While I note that Ms Marek’s position is that I was the instigator of violent behaviour and that she is a non-violent person, I say that she is actually violent. Ms Marek’s hand is crooked from punching the floors, walls and my face. She also has three parallel self-inflicted cut marks on her stomach from when she threatened to stab herself if I tried to leave her.
At [65] of the affidavit, the Father says that the Mother would be verbally abusive and physically violent towards him, and that he would then retaliate. In response to allegations made by the Mother that the Father was sexually violent towards her post-separation, the Father denies those allegations, and notes that he has not been charged by Victoria Police with any offence in relation to those allegations.
In oral evidence, the Father confirmed that he had previously consented to the change of the child’s name but had apparently come to a different position since that time. In giving oral evidence, he proposed that the child’s name should be “J”. This proposal was unhelpful and indeed unsettling, and suggested that the Father was not taking the proceedings seriously.
The Father gave further evidence of being unsettled in relation to housing arrangements and had in fact previously been homeless for a period of time. He currently lives with his extended family, with seven family members in the one house. He did not present as being particularly engaged with the case and did not have strong views on the question of whether the Mother should have sole parental responsibility or the question of parental responsibility generally.
The Mother’s Evidence
The Mother gave evidence at the final hearing, relying on her trial affidavit filed on
20 November 2020 and her affidavit filed on 11 June 2021. The Mother’s evidence was, in part, recounted in the Family Report and the relevant parts of it are set out below.
By her affidavit filed on 20 November 2020, the Mother says that the child has known her current partner since he was five months old, and considers him to be his ‘dad’. Whilst the Mother concedes that the child also calls the Father ‘dad’, the Mother says that this is likely a result of staff at the supervised access visits referring to the Father as ‘dad’ to the child. The Mother says that the only person who can comfort the child whilst in her care, besides herself, is her partner.
The Mother alleges that she was subjected to verbal and physical family violence by the Father throughout the relationship, which included the period when she was pregnant and after she gave birth, including at times when she was physically holding the child. The Mother deposes that the Father’s family was present on occasions when family violence was perpetrated against her, and did not attempt to intervene. At [18] of her affidavit the Mother states:
18. […] Whilst married to the [Father], I was subjected to verbal and physical violence, for many reasons. These ranged from his hatred for working, as he would say, “for the white men” to seeing something on television that he did not like, which would result in him taking his anger out on me. During our relationship, the Applicant destroyed at least three (3) television sets and left me with a credit card debt of approximately $20,000, due to the fact that he is not a permanent resident and could not apply for his own. He has not once offered to assist in the repayment of this debt.
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’ Evidence
The 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
By way of the family report dated 28 October 2020, the Family Consultant makes reference to the fact that the Father acknowledged that he takes responsibility for his violent behaviour during his relationship with the Mother, but did not inform the Family Consultant what his behaviour included. The Family Consultant states in the family report that Father denied that he committed any severe physical violence, such as strangling and punching the Mother whilst she was pregnant, and characterised the violence as either mutual conflict or that the Mother was the aggressor.
The Family Consultant says that it is striking the Father does not appear to understand what ‘taking responsibility’ means, in circumstances where the Father has completed a 20-week Men’s Behaviour Change course and was undertaking psychotherapy for family violence. The Family Consultant states that, while it is explained to a degree in the Father’s affidavit, the Father appeared to be denying responsibility for his actions towards the Mother.
The Family Consultant notes that some of the text messages included as annexures to the Father’s affidavit raise questions about whether the parties’ relationship was as violent as the Mother suggests in her evidence, but that the Mother responded in relation to that in her affidavit by saying that she was under pressure from the Father to withdraw from her family.
In respect of any risk that the Father poses to the child, the Family Consultant states at [55] – [57] of the family report that:
55. Dr K’s report suggested that Mr Landau’s behaviour towards Ms Marek, if it were found to be at the level of seriousness Ms Marek alleged, does not necessarily suggest that Mr Landau would be violent towards X. However, there are known to be negative impacts on children when their mother remains fearful after serious family violence. These impacts can occur at the level of subliminal awareness and are not necessarily related to anything said by the fearful parent.
56. In my opinion, a person with a background of family violence within their family of origin, who has absorbed that behaviour into their own repertoire of behaviours, may perpetuate that behaviour on their own child especially when that was the parental modelling they received. This is likely to occur when the child expresses differentiation from that parent. However, children who are younger are at significant risk of trauma effects when they witness family violence between others even if it is not directed at the child. Mr Landau’s explanation of his learning about family violence over the last 18 months did not reassure that he has learnt what is usually intended in such courses.
57. Mr Landau’s responses about his parents and their behaviour was not reassuring that risks of family violence in the home of the paternal grandparents had stopped. It would benefit X if he does not spend time in that home.
In relation to whether the child’s name should be changed, the Family Consultant states in the family report that whilst children may ask about their different surnames, they are quite capable of understanding that there are different parents, in particular, if the child spends time with their parent of the same surname. The Family Consultant notes that there was clearly confusion about whether the Father had agreed to the change of the child’s name.
In relation to the question of spend time arrangements, the Family Consultant states at [63] of the family report that a long period of gradually increasing spend time will enable the Father to practice the skills he is learning and for the Mother to adjust to the arrangements and perhaps build some trust that the child is safe whilst in the Father’s care.
In relation to parental responsibility, the Family Consultant states at [64] that, given the level of allegations made by the parties, in particular the Mother, and the Mother’s strong wish for her residential address not to be disclosed to the Father, it would be of benefit to the child if decisions in relation to his educational and medical needs were made by the Mother, and otherwise equally shared between the parties.
On that basis, the Family Consultant made recommendations at [65] – [74] of the family report as follows:
65. X live with his mother.
66. X spend time with his father each alternate weekend on a graduated plan such that his time increases with his father by one hour each six months until it reaches from Saturday 10am until Saturday 2pm.
67. That X’s time with his father be unsupervised.
68. That this arrangement continue until X is in Grade 1 at school.
69. That changeovers be facilitated by an agreed agent for either the mother, such as Mr C or the father, such as his sisters, and that it occurs in a public place where there are cameras available such as McDonalds.
70. That if Mr Landau has moved into an independent accommodation by the time X is in Grade 1, that the time X spends each alternate weekend increase to include from 10 am Saturday until 4pm Sunday.
71. That Mr Landau provide to Ms Marek a copy of proof of his independent accommodation such as a lease with his name listed as the tenant and if there are other tenants their names and details.
72. That Mr Landau also provide Ms Marek with photographs of the bedroom provided for X when Mr Landau is living independently and prior to X’s time increasing to include overnight time.
73. That Mr Landau continue to undertake his therapy and particularly the strategies that focus on him learning new strategies that are not violent.
74. That Ms Marek continue to obtain support from SECASA, or a therapist as needed.
The Family Consultant was not called to give evidence at the final hearing.
Dr K’s Evidence
Dr K, Consultant Psychiatrist, provided a forensic psychiatric report of the Mother and the Father by way of an affidavit filed by the Independent Children’s Lawyer on 17 February 2020. Dr K was not called to give evidence at the final hearing.
The report of the Mother, which is dated 30 December 2019, indicates that the Mother denied any significant psychiatric history prior to the relationship with the Father. The Mother told
Dr K that the parties would have weekly fights, both verbal and physical, which would make her feel anxious. She described having brief periods of irritable moods, but denied any associated depressive symptoms.
The Mother alleged that the Father raped her, and that this caused her further anxiety, although there were no physical symptoms of that anxiety. She told Dr K that, as a result of the incident, she avoids the Suburb F area, as that is where the alleged incident occurred. The Mother’s anxiety is said to be on-going, but the Mother does not believe it affects her ability to parent. The Mother acknowledged making multiple threats to harm herself during the long-distance part of her relationship with the Father. The Mother told Dr K that she was frustrated and denied any specific intent to harm herself.
In summary, Dr K gave the opinion that, despite some of the Mother’s behaviour, including her threats to self-harm, the Mother does not suffer from any identifiable mental condition, and the ongoing counselling she receives is appropriate and should continue.
In respect of the Father, Dr K provided a report dated 30 December 2019. By that report, Dr K states that the Father described a history of anxiety, commencing during his childhood. The Father described having two panic attacks in 2012 (during the long-distance portion of the relationship) for which he was admitted to hospital. The Father denied having panic attacks since coming to Australia, but described ongoing periods of anxiety and shortness of breath in the context of conflict during the relationship with the Mother.
The Father acknowledged difficulties with anger, and says he yells and acts impulsively at times, including in respect of abusive text messages he sent to the Mother, her partner and her family.
I note that at [40] of the report, Dr K states:
40. [The Father] completed a Men’s Behavioural Change program and said he was angry about it for the first fifteen or sixteen sessions; he felt like he was the victim and he said it was rubbish but once he completed more of the program, it started sinking in and he recognised he was responsible for his own behaviour. He recognised that he is still quite reactive at times in terms of his behaviour but believed that he had improved.
Whilst I accept the report is from December 2019, in summary, Dr K gave the opinion that the Father suffers from an adjustment disorder with anxious and depressive mood, in the context of difficulties in the relationship with the Mother and post-separation, including lack of spend time with the child. Dr K indicates that the Father has some symptoms of PTSD, but they are insufficient to diagnose the condition.
At [67] of the report Dr K relevantly states:
67. Whilst an adjustment disorder of itself can contribute to disturbance in conduct, in my opinion, separate to this, Mr Landau has difficulties with impulsivity and anger which I believe are related to his previous significant physical and emotional abuse and reflect difficulties in his personality although I do not believe that he got a personality disorder as such.
However, Dr K states that the risk the Father posed, and may continue to pose, to the Mother does not necessarily translate to risk toward the child. In the context of the Father continuing to receive ‘psychological input’, Dr K gave the opinion that a graduated increase in spend time in a supervised setting would be justified on mental health grounds.
CONSIDERATION
The Court must now determine the following issues in this matter:
(1)parental responsibility and spend time arrangements; and
(2)the dispute as to the child’s surname.
Parental Responsibility and Spend Time Arrangements
Section 61DA(1) of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that when making a parenting order in relation to a child, 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 for the child.
However, s61DA(2) of the Family Law Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility for the child.
In my view, the Mother should have sole parental responsibility for the child. There is no cooperation between the parties as to parenting matters, indeed, the Mother is deeply fearful of the Father. She had been the primary caregiver of the child and is in a stable relationship. It is in the child’s best interests for the Mother to assume sole parental responsibility for the child.
Statutory Considerations
By operation of s60CA of the Family Law Act, the Court is required to have regard to the best interests of the child as the paramount consideration when making parenting orders. To determine what is in the best interests of the child in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Family Law Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Family Law Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
The orders that will be made contemplate the child having a meaningful relationship with the Father and the times provided for the child to spend time with the Father recognise this, whilst recognising the limitations created by the Father’s current living arrangements. Notwithstanding the issues around family violence and the Father’s behaviour generally, the Mother has not proposed that the child spend no time with the Father.
s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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;
There are issues of capacity in relation to the Father which are canvassed in the evidence of Dr K, as set out above.
s60CC(3)(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;
The Father’s living arrangements and the issues in his home, where he lives with a number of extended family members, create difficulties. These issues are canvassed in the family report and I accept the recommendations of the Family Consultant and the orders made will reflect this.
s60CC(3)(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;
This is not a relevant consideration in this matter.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
This is set out above.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
Family violence, as alleged by the Mother against the Father, is a significant issue in this case. A further issue is the Father’s apparent failure to acknowledge the impact of that family violence. The Mother’s allegations in relation to family violence are recounted in her evidence and in the Family report.
s60CC(3)(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;
The Mother has a family violence intervention order against the Father, and the Father has previously contravened that intervention order on at least two occasions. The intervention order was extended, and currently applies, with the Mother and child as the protected persons.
s60CC(3)(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 that child;
The orders, as made, are made for the purpose of seeking to avoid the need for further proceedings between the parties.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
There are no further circumstances which are relevant to the determination of this matter.
The Child’s Surname
In Chapman, A.L. and Palmer, R.J. [1978] FamCA 86 (“Chapman”) the Full Court stated at [44] that:
44. The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
At [56] of Chapman, the Full Court went on to provide a non-exhaustive set of factors that the Court should take into account when determining whether a child’s surname should be changed, which are as follows:
56. To summarise, the factors to which the Court should have regard in determining whether there should be any change in the surname of a child include the following:
•The welfare of a child is a paramount consideration;
•The short and long-term effects of any change in the child’s surname;
•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;
•Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
•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 or relationship; and
•The effect of frequent or random changes of name.
In Reagan & Orton [2016] FamCA 330, Foster J stated at [34] that:
34. The factors frequently considered in determining whether there should be any change to a child’s name include:
a) Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
b) Any confusion of identity which may arise for the child if his or her name is changed or not changed;
c) The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
d) The effect of frequent or random changes of name;
e) The contact any non-custodial parent has had and is likely to have in the future with the child;
f) The degree of identification that the child or children have with their non-custodial parent; and
g) The degree of identification the child or children have with the parent with whom they live.
Having considered the evidence and the submissions made by the parties at the final hearing, I find that it is in the child’s best interests for his name to remain as ‘X’.
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.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 13 August 2021
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