LESTER & VICKERY
[2011] FMCAfam 817
•20 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LESTER & VICKERY | [2011] FMCAfam 817 |
| FAMILY LAW – Children – parenting orders – where respondent did not attend court – best interests of the child – parental responsibility – where father has spent very little time with the child. FAMILY LAW – Children – name of child – application to change child’s surname – best interests of the child the paramount consideration. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B Family Law Amendment (Shared Parental Responsibility) Act 2006 Federal Magistrates Court Rules 2001, r.13.03C |
| Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510 Beach & Stemmler (1979) FLC 90-692 Mahony & McKenzie (1993) FLC 92-408 Flanagan & Handcock (2001) FLC 93-074 |
| Applicant: | MS LESTER |
| Respondent: | MR VICKERY |
| File Number: | SYC 1415 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 May 2011 |
| Date of Last Submission: | 20 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2011 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | No appearance |
ORDERS
I grant leave to proceed ex parte.
The Applicant mother is to have sole parental responsibility for the child [X] born [in] 2007.
The child [X] is to live with the mother.
The Applicant mother is permitted to change the child’s name from VICKERY to LESTER.
The child [X] is to spend time with the father in accordance with the Minutes of Proposed Orders admitted into evidence and marked Exhibit 1:
“1.[X] is to spend 24 hours at the father’s parents’ residence alternating each week between 10:00 am to 10:00 am the next day and also alternating each week between Saturday and Sunday. The parent who is unable to attend the exchange meeting is to give the other parent 24 hours notice. Each parent is to wait for the other party for 25 minutes before leaving the exchange meeting place.
2.In respect to the paragraph above, [X] is to be dropped off by the mother at [omitted] Police Station and collected by the father at the same place. The father is to drop [X] off at the same place the following day at 10:00 am where [X] will be collected by the mother so as to comply with the Apprehended Domestic Violence Order.
3.The mother reserves discretion to cease contact and apply to the Court to vary these orders if there are any changes in [X]’s behaviour as the contact outlined above.
4.If [X] is unwell during contact with the father, [X] is only to be taken to the local GP at [omitted] Medical Centre, [address omitted]. However, the father can take or arrange for [X] to be taken to the nearest hospital in case of emergency.
5.In the case of one parent travelling overseas, the parent who is travelling should give 6 months’ notice to the other party. [X] is to travel accompanied by his mother.”
IT IS NOTED that publication of this judgment under the pseudonym Lester & Vickery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1415 of 2008
| MS LESTER |
Applicant
And
| MR VICKERY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a little boy called [X] for parenting orders. [X] was born [in] 2007 and will therefore attain the age of 4 years on [date omitted]. [X] lives with his mother.
The father has not attended Court for the hearing of this application, despite having been informed in writing that if he did not attend order may be made in his absence. There is no explanation for his non-attendance.
Background
The mother commenced proceedings in the Family Court on 11th March 2008. A Child Responsive Program issues Assessment was completed by a Family Consultant on 25th June 2008.
That same Family Consultant prepared a Family Report on 16th February 2010.
On 7th June 2010 Rose J made interim orders by consent to deal with the father spending time with the child for the period 12th June 2010 through to the end of November in that year. His Honour also ordered that the proceeding be transferred to the Federal Magistrates after a six month period.
The proceeding was transferred to this Court and the application was listed before me on 4th April 2011. The mother appeared unrepresented but there was no appearance by or on behalf of the father. The application was listed for hearing at 2:15 pm on 20th May. The Court also made the following direction:
The Respondent is advised that if he does not attend Court then orders may be made in his absence.
The Applicant attended Court for the hearing but the Respondent did not attend, nor did he provide any explanation as to his absence. In the circumstances, I decided to apply Rule 13.03C(e) and proceed with the hearing generally.
The Applicant mother gave oral evidence. She had prepared a Minute setting out the orders that she sought, which included parenting orders and a change of the child’s surname from the father’s surname to that of her own.
In her oral evidence, the mother told the Court that the arrangements for the father to spend time with the child “worked fairly well” during the time specified by the Interim Orders, but the father stopped seeing the child after that. She said that the father refused to sign any further order and only wanted an oral agreement. She said that he saw the child once more, in January 2011.
The mother said that she had no more concerns about the child spending time with his father; he is much older now.
She went on to say that [X] lives with her and no other person lives with them.
The mother is employed as a [omitted] for three days a week at [omitted]. Whilst the mother works, [X] goes to day care for two days and spends one day with his maternal grandparents.
The mother also told the Court that there is no longer a family violence order in force. The previous Apprehended Violence Order has expired.
The mother has had no communication from the father about [X].
The Relevant Law
Where a party is applying for a parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
Subsection 61DA of the Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child to 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. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s.61DA(4)).
Where a change in the name of a child is concerned, the Court should be guided by the decisions of the Full Court of the Family Court in Chapman & Palmer[1] and of Connor J in Beach & Stemmler[2] (see also Mahony & McKenzie[3] per Warnick J; Flanagan & Handcock[4]).
[1] (1978) 4 Fam LR 462; FLC 90-510
[2] (1979) FLC 90-692
[3] (1993) FLC 92-408
[4] (2001) FLC 93-074
The matters set out for consideration in Chapman & Palmer are:
a)The welfare of the child is the paramount consideration;
b)The short and long term effects of any change in the child’s surname;
c)Any embarrassment likely to be suffered by the child if his or her name is different from that of the parent with custody or care and control;[5]
d)Any confusion of identity which may arise for the child if his or her name is changed or not changed;
e)The effect which any change of surname may have on the relationship between the child and the parent whose name the child bore during the marriage (or during the period of cohabitation); and
f)The effect of frequent or random changes of name.
[5] The terminology is somewhat outdated. The Family Law Amendment (Shared Parental Responsibility) Act 2006 amended s.64B of the Act so that the reference to the appropriate parenting order would be under s.64B(2)(a) – “the person or persons with whom a child is to live”.
In Beach & Stemmler[6], Connor J added the following considerations:
a)The advantages both in the short term and in the long term which will accrue to the child if his or her name remains as it is now;
b)The contact that the father has had and is likely to have with the child in the future;
c)The degree of identification that the child now has with his or her father; and
d)The desire of the father that the original name be restored.
[6] supra
Conclusions
The father has not attended Court on two occasions, so he has not taken advantage of an opportunity to put his views before the Court. The mother’s evidence is that he has only had limited contact with [X] in recent months, and none since January. Whilst the Court should consider the benefit to the child in having a meaningful relationship with both parents, the evidence from the mother leads to the inference that the father is not doing much to promote this relationship.
The mother is no longer of the view that there is a threat of physical or psychological harm to the child from the father, noting that the previous Apprehended Violence Order has expired and the mother has not sought to extend it or renew it.
[X] is too young for his views to be considered. He is not yet four years old. He has a good relationship with his mother but a somewhat distant relationship with his father. He sees his maternal grandparents every week and it is reasonable to infer that he has a warm and loving relationship with them.
It is in this child’s best interests to remain living with his mother and to continue to see his father at times that can be arranged. It is a matter of regret, on the mother’s evidence, that the father has declined to enter into further consent orders to spend time with the child.
As the evidence from the mother is that the father has a distant and infrequent relationship with his son, and that there has been no communication from the father about the child, I am not satisfied that it is in the child’s best interests for the parents to have equal shared parental responsibility. I propose to order that the mother have sole parental responsibility for the child.
The mother wishes to change [X]’s surname to her own. As his mother is his primary caregiver and he has spent very little time with his father, I am satisfied that it is in the child’s best interests for him to have the same surname as his mother. He is still below school age, and the best time for his name to be changed is before he starts school.
It is for those reasons that I am satisfied that it is in the child’s best interests to make the orders sought by the Applicant.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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