Lenton and Keble & Anor (No 2)

[2020] FamCA 1136

FAMILY COURT OF AUSTRALIA

LENTON & KEBLE AND ANOR (NO. 2) [2020] FamCA 1136

FAMILY LAW – CHILDREN – final orders – where the applicant, the first respondent and the independent children’s lawyer consent to final parenting orders – where the second respondent consents to the orders being made save for in relation to two issues – where the second respondent is the child’s biological father – where the second respondent spends sporadic time with the child – where the second respondent opposes the applicant’s applications regarding  a change of the child’s family name and the names by which the applicant and first respondent are to be referred – substantive orders made by consent – order that the child’s name be changed  – order that the parents continue to encourage the child to call the applicant “dad”, as is the status quo.

Family Law Act 1975 (Cth)

APPLICANT: Mr Lenton

FIRST RESPONDENT: Ms Keble

SECOND RESPONDENT: Mr Davie

INDEPENDENT CHILDREN’S LAWYER: Heinz & Partners

FILE NUMBER: MLC 8563 of 2017

DATE DELIVERED: 1 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 1 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Lia, Sarah Lia

SOLICITOR FOR THE FIRST 

RESPONDENT:

Ms Stone, Ballarat Lawyers

THE SECOND RESPONDENT:	In person
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Gleeson, Heinz & Partners

Orders

BY CONSENT IT IS ORDERED

1. In these orders:

   (a)       "Mother" means Ms Keble

   (b)       "Father" means Mr Lenton

   (c)"Child" means Z Keble-Davie (also known as Z Lenton-Keble), born … 2014

   (d)       “Parents” means Ms Keble and Mr Lenton

2. That the Mother and Father have equal shared parental responsibility for the child, including decisions about his education.

3. That the child live with each parent on a week about basis with changeover to take place at the commencement of school or 9.00am on Friday.

4. That notwithstanding Clause 3 hereof, the child spend such further and other times with the parents as follows:

   (a)For one week of the Victorian Term School holidays to coincide with the week about routine at Clause 3 hereof;

   (b)For Christmas 2020 and each alternate year thereafter with the mother from 4.00pm Christmas Day until 4.00pm Boxing Day and with the father from 4.00pm Christmas Eve until 4.00pm Christmas Day.

   (c)For Christmas 2021, and each alternate year thereafter with the mother from 4.00pm Christmas Eve until 4.00pm Christmas Day and with the father from 4.00pm Christmas Day until 4.00pm Boxing Day.

   (d)During the long summer school holidays on a week about basis.

   (e)For the 2023/2024 long summer school holiday and every fourth year thereafter, the mother will be at liberty to spend a two week period with the child in New Zealand commencing on 22 December, provided the mother gives the father no less than 90 days’ notice of her intention to travel to New Zealand, and if the mother does take the child to New Zealand the father is afforded the same two week period in the following long summer school holiday, and if the mother does not take the child to New Zealand then time defaults to Clauses 4(b) to 4(d) above

   (f)On the child’s birthday the child shall spend time with the non-resident parent from after school until 7pm on a school day and from 3pm to 7pm on a non-school day, with both parents to be flexible in relation to either parents’ work commitments and not unreasonably withhold their agreement to change these times.

   (g)If the child is in the father’s care on the mother’s birthday, the child shall spend time with the mother from after school until 7pm on a school day and from 3pm to 7pm on a non-school day, with both parents to be flexible in relation to either parents’ work commitments and not unreasonably withhold their agreement to change these times.

   (h)If the child is in the mother’s care on the father's birthday, the child shall spend time with the father from after school until 7pm on a school day and from 3pm to 7pm on a non-school day, with both parents to be flexible in relation to either parents’ work commitments and not unreasonably withhold their agreement to change these times.

   (i)With the father from 5pm the Thursday prior to Good Friday until 5pm on Easter Saturday in even numbered years and from 5pm Easter Saturday to 5pm Easter Monday in odd numbered years provided that the child spend time with the mother from 5pm Easter Saturday to 5pm Easter Monday in even numbered years and from 5pm the Thursday prior to Good Friday until 5pm Easter Saturday in odd numbered years.

   (j)If the child is not ordinarily resident with the mother on Mother’s Day, the child shall spend time with the mother from 6pm the Saturday preceding Mother’s Day until 6pm on Mother’s Day.

   (k)If the child is not ordinarily resident with the father on Father’s Day, the child shall spend time with the father from 6pm the Saturday preceding Father’s Day until 6pm on Father’s Day.

   (l)Such further and other times as may be agreed between the parents in writing including text message.

   Changeover

5. That for changeovers that do not occur at the child’s school, changeover shall occur at McDonalds, C Street, City D.

   Telephone Contact

6. That the child is permitted to contact either parent at any reasonable time on the parent’s mobile telephone and that such telephone calls shall be facilitated by the resident parent. The resident parent shall provide the non-resident parent and the child privacy during the call and the call should not occur on speakerphone.

7. That the non-resident parent be permitted to contact the child on the resident parent’s mobile phone number between 6pm-6:30pm each Monday and Wednesday and the other parent shall facilitate the telephone call and provide the non-resident parent and the child privacy during the call and the call should not occur on speakerphone.

   Interstate and Overseas Holidays

8. In the event that either party wishes to take the child on a holiday outside the State of Victoria they are to provide the other party with a minimum of 14 days’ written notification of such holiday, and such holiday is to occur during the time that they would otherwise be spending with the child.

9. That either parent be at liberty to take the child overseas for a holiday, provided that the other party is provided with written notice 60 days prior to travel, and such time is to occur within the time they would otherwise be spending with the child, unless otherwise agreed in writing, and the party intending to travel overseas is to provide the other with a copy of return tickets no less than 14 days prior to travel.

   Passport

10. That within 14 days of a request by the other parent, either parent will sign all documents and do all such acts and things necessary to obtain a passport for the child.

11. That the parent requesting and paying for the passport retain possession of the child’s passport for safekeeping and if the other parent is travelling overseas with the child that the parent with possession of the passport providing the other parent with the child’s passport not less than 4 weeks prior to the date of intended departure and that the child’s passport be returned to the other parent within 72 hours of return from any overseas holiday.

    Medical Treatment

12. That the parents advise each other and the second named respondent as soon as practicable of any significant illness and/or injury suffered by the child or either of them, whilst in the respective care, along with the names and contact details of any treating medical, dental and/or allied health professionals so that each parent may liaise with same.

13. That in the event the child requires admission to hospital (including attendance at an emergency Department) or specialist treatment, both parents shall be permitted to be present and to attend that appointment and the parent making the appointment will ensure the other party is given reasonable notice of the appointment, and will also notify the second respondent of the hospitalisation or specialist treatment as soon as practicable.

14. That neither party make arrangements for the child to attend with any mental health professional consultant or counsellor without the prior written consent of the other parent and that if such appointment is agreed to and arranged, then both parents are able to attend such appointment.

15. That the child attend E Primary School.

16. That the parents agree that neither one of them is permitted to relocate the child to another residence without the prior written permission of the other parent if that residence is more than 30km from City D Town Hall.

    Communication

17. That the parents communicate by text messages and messages must be responded to or acknowledged without unreasonable delay.

18. That the parents, for the purposes of communication, not block the other parent’s mobile phone number.

19. Each party must keep the other party informed of any change of mobile telephone number or contact address within 24 hours of such change.

    Restraints

20. That the parents be and are hereby restrained from denigrating, criticising, belittling, undermining, abusing and harassing the other parent or their partner in presence of or within the hearing of the child or allowing any other person to do so.

21. That the parents be and are hereby restrained from discussing these proceedings or showing documents in these proceedings to the child.

22. That the parents be and are hereby restrained from using the child as a messenger to convey messages between the parents.

23. That the parents be and are hereby restrained from publishing on the Internet or any other social media about the other parent or the respective family members, save for any images or information relating to the child, so long as those images relating to the child are not on adult only and/or dating sites.

    School Notices

24. That both parents be noted as enrolling parents and emergency contacts at the child’s school, other care providers and other extracurricular activities.

25. That both parents be permitted to attend and participate in all usual parent/child activities and extracurricular activities to which parents are normally invited or expected to attend (even if such activities occur outside of their scheduled time with the child).

26. That each parent be entitled to receive or access information and documents from the child’s school including, but not limited to, reports, letters, photographs and the like in relation to the child that parents are normally encouraged to access or receive and any costs be at the expense of the party requesting such document from the school (if any).

27. That both parents be permitted to discuss all matters pertaining to the child’s education, health and wellbeing with his school and medical and like practitioners.

28. That the child’s time with Mr Davie be determined by the mother and such time is to occur when the child is living with the mother.

29. Whilst the child is in their care neither party will take illegal substances or drink alcohol to excess and will not expose the child to any other person doing so.

AND BY ORDER OF THE COURT

1. The parents do all such acts and things and sign all such documents as may be required to amend the birth certificate of the child Z Keble-Davie, born … 2014 to register his name as “Z Lenton-Keble”, with the cost of this to be borne equally by the parents.

2. That the parents refer only to the father as “Dad” or “Daddy” and the mother as “mum” or “mummy” and encourage the child to do so.

3. Pursuant to Section 65DA(2) and section 63B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES

A.The parties shall attempt to resolve any conflict that might arise in relation to parenting issues by attending mediation in preference to litigating.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8563 of 2017

Mr Lenton

Applicant

And

Ms Keble

First Respondent

And

Mr Davie

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today for final hearing in relation to the parenting arrangements for the child Z, who is aged almost six years.  Z has been the subject of litigation since 2017 and his family constellation is complex.  The mother, who is the first respondent in the proceedings, is aged 25.  The applicant, who is Mr Lenton, is aged 27.  Although not his biological father, Mr Lenton has, for all intents and purposes, been Z’s father since his birth.  The second respondent, Mr Davie, is Z’s biological father. 

2. The background to the matter is as follows. The applicant and the first respondent commenced a relationship in 2013.  They had a brief separation during 2013 and it is during that period that Z was conceived.  The applicant and the first respondent resumed their relationship in 2014 prior to Z’s birth.  At the time of his birth it was the belief, certainly of the applicant, that he was Z’s biological father.  The applicant and the first respondent resumed cohabitation in 2014 and lived with the paternal family up until the time of the parties’ separation in July 2017.

3. At that time the first respondent vacated the home with the child.  Following separation, Z was cared for by the applicant and the first respondent on a week‑about basis.  In 2018 it was agreed that there be DNA parentage testing in relation to Z.  It was at that time that the second named respondent was confirmed as Z’s biological father.

4. Z has continued to remain in the care of the applicant and the first respondent since separation, save for a brief period following the DNA parentage testing when Z was withheld from the applicant’s care by the first respondent.  Certainly since February 2018 Z has spent significant and substantial time in the care of the applicant.  Orders were made in May 2018 which provided for Z to be cared for as between the applicant and the first respondent on a nine/five split, with Z spending nine nights per fortnight with the mother and five nights per fortnight with the applicant.

5. Z has had sporadic contact with the second respondent since that time.  That time has largely been arranged with the cooperation of the first respondent.  Although named as a party in these proceedings, the second named respondent has not participated in any meaningful way in the proceedings since they were transferred to this Court in 2018.  There have been two family reports prepared for the purposes of these proceedings.  The second respondent has not participated in the preparation of either of those reports.

6. At the commencement of the hearing, the second respondent sought an adjournment of the final hearing to enable him to obtain legal advice.  Given the matter’s history and in circumstances where the second respondent has not complied with orders, including that he file trial affidavit material, and having not attended the previous hearing in this matter, the second respondent’s application was refused. 

7. At the commencement of the hearing I was presented with a proposed minute of order which is an order that is consented to by the applicant, the first respondent and the Independent Children’s Lawyer (“ICL”).

8. I have heard submissions from the lawyers representing the applicant and the first respondent, and also from the ICL.  I have also invited submissions from the second named respondent in relation to the proposed orders.  He finds himself in a somewhat difficult position insofar as he has not filed any trial affidavit material, therefore he has no evidence before the Court.  Ultimately, upon hearing submissions from him it became apparent that there was little in dispute between the parties. 

9. In seeking to confirm his position in relation to the proposed orders, it became apparent that really there were two issues as between he and the applicant and the first respondent.  The first of those issues relates to the registration of Z’s name. 

10. Upon his birth, Z was registered with the Registrar of Births, Deaths and Marriages with the name Z Lenton.  The registration of name was amended in December 2017 as a result of orders made in the Federal Circuit Court on 22 February 2018.  Paragraph 2 of those orders provides as follows:-

    The parties do all things necessary including making an application and executing documents, to seek the alteration of the registration of the name of the child and the child’s father in the register of births in the State of Victoria; and pay in equal shares such fees, if any as are applicable to an application for alteration of the register as aforesaid.

11. Although that order does not stipulate that the child’s name be changed, it seems that the Registrar of Births, Deaths and Marriages interpreted the order to require a change to Z’s name to incorporate the second respondent’s surname.  It would seem that the intent of that order was, in fact, to ensure that the second respondent was noted on the birth certificate as Z’s father.  The alteration to the Births Register went beyond that so as to alter Z’s name to include that of the second respondent.  As a result, since December 2019 it has been registered as Z Keble-Davie. 

12. The position of both the applicant and the first respondent is that there should be a further alteration to the registration of Z’s name to reflect the reality of his world, such that his name be changed and the Births Register be amended to record his name as Z Lenton-Keble.  It is that application that is opposed by the second respondent.  He submits that given that he is Z’s biological father his name should be included in Z’s registered birth name.  That application is opposed by both the applicant and the first respondent. 

13. The submission made on behalf of the applicant and first respondent is that for most of his life Z has had the name Lenton as part of his surname.  It is the intention of his primary carers, being the applicant and the first respondent, that the name be amended to reflect the role of both the applicant and the first respondent in his world.  It is for that reason that they seek orders enabling the amendment of his surname to include the mother’s surname.  Indeed, it is submitted that the applicant and the first respondent entered into heads of agreement on 7 February 2020 to record the fact that it was the intention of both parties that Z be referred to as Z Lenton-Keble. 

14. In determining this issue, I must have regard to what is in Z’s best interests.  Having heard submissions from the lawyers representing each of the parties, and having regard to the history of this matter, I am satisfied that the appropriate course is for the registration of Z’s name to be amended to reflect the realities of his world.  That is, that he is parented by both the applicant and the first respondent.  The amendment of his name will reinforce his connection to and relationship with both parents. Accordingly, I am satisfied it is in Z’s best interests that his name be amended so that he is registered as Z Lenton-Keble. 

15. The second respondent’s biological link to Z will continue to be recorded on Z’s birth certificate; there will be no alteration to his position as Z’s biological father and the birth certificate will reflect that.  The orders that I make will simply make an alteration to his surname.  “Lenton” is a name that Z is familiar with, that he has used since his birth, and it is, in a social context, a name important to him.  Equally so, the incorporation of his mother’s surname reflects the reality of his world, he having been in her primary care since his birth.  Therefore, I will make orders as sought by the applicant and the first respondent.

1. The other issue between the parties relates to the question of how Z is to address the first respondent and the applicant.  What is proposed is set out at paragraph 32 of the proposed minute.  That is, an order that the parents will refer to the applicant as Dad or Daddy, and that the first respondent be referred to as Mum or Mummy, and that each party will encourage the child to refer to the applicant and the mother in that manner.  The evidence before the Court as set out in the first respondent’s trial affidavit is that Z refers to the applicant as Dad or Daddy and the first respondent as Mum or Mummy.  She further deposes that the second respondent is referred to by the child as Father.

2. The family report dated 11 May 2020 prepared by Family Consultant F confirms that is the manner in which Z refers to the applicant and the first respondent.  Whilst the second respondent takes issue with that evidence, there is no evidence from him before the Court in relation to those matters.  Having regard to the unchallenged evidence of the first respondent, and the matters contained in the family report, I am satisfied that it is in Z’s best interests that orders be made as sought at paragraph 32 of the proposed minute.  Again, that order reflects the realities of Z’s world.  It is consistent with the manner in which he has addressed both the applicant and the first respondent throughout his life, and will maintain that consistency.  It also confirms for Z the significant role played by the applicant and the first respondent in his care, welfare and development.

3. Otherwise, I will make orders in the terms of the proposed minute of order, which will be orders by consent save in relation to those two orders to which I have referred, which will be orders of the Court.    I confirm that I am satisfied that the proposed orders as contained in the balance of the proposed orders are appropriate and in Z’s best interests.  I have had the opportunity of considering all of the trial affidavit material filed.  I have also taken into account the observations and recommendations contained in the family report prepared by Family Consultant F on 11 May 2020.  That being so, I am satisfied that it is appropriate I make orders by consent as indicated.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 June 2020.

Associate: 

Date:  14 January 2021