Lusby and Sherlock

[2018] FamCA 124

FAMILY COURT OF AUSTRALIA

LUSBY & SHERLOCK [2018] FamCA 124

FAMILY LAW ‑ CHILDREN – Undefended hearing ‑ where sexual abuse allegations against the father were substantiated by the Department ‑ where the mother seeks orders for sole parental responsibility, to change the child’s surname, for the child to live with her and for the child to have no contact with the father and paternal family – where the mother has not appeared today – where is insufficient evidence to support a change of the child’s surname in the best interests of the child - where the child has not spent regular time with the father – where the father has filed a Discontinuance of his application and did not appear – where it is in the best interests of the child that such orders be made for the child to live with the mother and the mother have sole parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Mr Lusby

RESPONDENT: Ms Sherlock

FILE NUMBER: BRC 6186 of 2012

DATE DELIVERED: 18 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 18 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms A Bertone

INDEPENDENT CHILDREN’S LAWYER: Stewart Family Law

Orders

1. That all previous parenting Orders be discharged.

2. That the mother have sole parental responsibility for the child, M born … 2010 (“the child”).

3. That the child live with the mother.

4. That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That this Order was made in the absence of the father who had discontinued his Application to spend time with the child.

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 Lusby & Sherlock 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 BRISBANE

FILE NUMBER: BRC 6186 of 2012

Mr Lusby

Applicant

And

Ms Sherlock

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. I deliver some brief reasons.  The child is now aged seven.  She is the only child of the parties in this case, who separated when the child was almost two years of age in 2012.  The mother is 30 years old and is a person who is indigenous and has six other children.  Her four eldest children are in the care of their biological father and the mother says she does not have any time with them.  Whether that is by desire, court order or not, I do not know.  the child has been in her care since separation.  The evidence is that she attends school and is otherwise progressing normally.  The mother and her now partner, Mr B, were blessed with the birth of their son E in 2015.

2. The father has not spent regular time with the child now for some time.  At the very least, it is apparent that a sexual abuse allegation against the father was made by the child to the mother in 2015.  The Department substantiated that allegation, which, from the material, appears to be associated with inappropriate touching.  For example, the mother gave a statement to police to say that the child had said to her that, “Daddy rubs my tootie gently while he plays with his doodle sometimes in his bed”.  After investigation, the Department wrote a letter to the mother indicating that they were satisfied the sexual abuse allegation had been substantiated.

3. The Department expressed the opinion that the child has suffered emotional harm as a result of sexual abuse, with her father being responsible for that harm.  Time having ceased, the father, in June 2016, filed an Application in the Federal Circuit Court.  He sought that the Orders made in 2013, which were the then current parenting orders not being complied with by the mother, be changed so that the child would live with him and spend time with the mother as agreed.  However, the mother’s whereabouts, the father claimed, were unknown.  He sought a Commonwealth Information Order.

4. I infer, from the fact that the mother filed a Response on 23 September 2016, that the mother was found fairly quickly and submitted to the jurisdiction of the Court.  It is, in my view, important to note that the father, in his Application and Affidavit in support and Notice of Risk in support, filed on 14 June 2016, did not give evidence to the Court that the Department of Child Safety had found substantiated sexual abuse by him of the child some months earlier.  In fact, as I noted in my exchange with Counsel for the Independent Children’s Lawyer today, notwithstanding the serious allegation and notwithstanding the fact that the father had, at least for some time, the benefit of legal representation, he has never filed an Affidavit in this Court or in the Federal Circuit Court denying the serious allegations of inappropriate touching by the child as reported by the mother.

5. Lest it be thought that the Court’s statements about the father are harsh, it should be noted that he did deny any inappropriate conduct in his interviews with Mr D, the family report writer, but that as soon as that report was issued and released, his lawyer withdrew and then shortly thereafter, by Notice of Discontinuance filed 24 November 2017, the father discontinued his Application.  When the matter was listed for this Undefended Hearing by Registrar Brooks on 5 December 2017, it was noted that the likelihood is the father would not take any further part in these proceedings and his failure to appear today reflects that intention.

6. At this point, I should note that the mother has also not appeared today.  In view of the mother’s care arrangements for two children, the child aged seven and E two, one may have some sympathy for her inability to appear if, in fact, she had had no notice of her requirement to do so.  She lives in C Town.  It is about an hour by train away.  The mother was directed/ordered by Registrar Brooks to appear personally on what is today an Undefended Hearing.  She was so ordered on 5 December, that is, six weeks ago.

7. Earlier this week, when this matter came into my docket, the mother contacted chambers in some way to see whether she could attend by telephone because she was unable to make arrangements for the care of her children.  She was, I am informed by my Associate, told that as she had been directed to be here and as this was an undefended hearing, she should be here.  She chose not to come because she says she has these other care arrangements.  Courts doing work like this should be able to do so in the best environment possible and that includes parties, who are going to be affected, either adversely or beneficially by orders, should be present, in person.

8. If there is a significant distance involved, a significant health issue or the like; if the matter comes on at short notice and/or if it is a matter merely of procedure rather than substantive, Courts have shown a consistent desire to facilitate the orderly process of a matter by requiring parties to be able to appear by telephone, and sometimes practitioners, but this is not such a case.  Now, of course, one of the difficulties of this case is that with a father who has withdrawn and a mother who, it seems, has chosen not to appear and has got at least a concerning parenting history as the family report of Mr D sets out, the Court needs to be very careful about making orders that are consistent with the evidence and findings it can make on an undefended and untested basis that are in the child’s best interests.

9. To that extent, I have been assisted today, as usually I am, by Ms Bertone who, representing the Independent Children’s Lawyer, has referred me to the material which I have read involving family reports, the Magellan report and the parties’ material and provided me with a copy of the orders being sought by the Independent Children’s Lawyer.  The mother, to the extent that it is possible to know what her position might be today, on 29 November 2017 filed a handwritten Response to an Initiating Application in which she sought the following orders:

   a)That the mother has sole parental responsibility for the child, M born in 2010;

   b)That the child lives with the mother who shall be responsible for the daily care, welfare, development of the child and the major long term and short term decisions for the child;

   c)That the Judge orders that the mother legally can change the child’s name from the father’s surname to the mother’s surname; and

   d)That the Judge orders that the father and paternal family members to at no time contact or go anywhere the child is at all times, eg, school, doctors, home and sporting events.

10. The exchange with Ms Bertone today identified the concerns the Court has in making an effective no contact order against the father.  I did, for the sake of the record, summarise that exchange and the Court’s reasons why it will not make an order for prescribed time but it will not make an order for no time, these Reasons including that, on an untested basis, and in the absence of a finding I am not able to make that no time (even supervised time) is in the child’s best interests, no specific order in this case should be made.  If the father seeks time with the child he would have to pursue a fresh application.  I should also, for the record, confirm that I am not prepared to make an order to change the child’s name as there is insufficient evidence before the Court to identify why it is in the best interests of the child to change her name, although I accept the surname on her birth certificate appears to be that of her biological father.

11. There is no evidence, for example, whether the child E’s surname is the mother’s name or that of his father, Mr B.  I have no birth certificate, for example, of that child.  More importantly perhaps, I cannot be satisfied that even though the father is not here today, that he has had any notice that the mother has sought to change the child’s surname.  The father might be very concerned by a change of name and should be given a fair opportunity to be heard on it if there was going to be a specific parenting order changing the child’s surname.

12. The authorities make it clear a specific parenting order in terms of change of name must be dealt with in accordance with the best interests of the child.  So for all those reasons, I am not prepared to make the order that the mother does not come today to prosecute but nonetheless, may have thought the Court would do anyway.  Whilst it will be a matter for the appropriate authorities who register the births, deaths and marriages of people in this State and change those, it may well be that an order for sole parental responsibility, which the Independent Children’s Lawyer supports, and which I regard as appropriate, is sufficient to enable a change of name to occur.

13. For these reasons, I find that the orders appearing at the commencement of these Reasons are in the best interests of the child at this time.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 January 2018.

Associate:

Date:  5 March 2018