MENARD & JAY
[2011] FMCAfam 679
•4 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MENARD & JAY | [2011] FMCAfam 679 |
| FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – whether parties should have equal shared parental responsibility for the child – whether it is in the best interests of the child for the mother to have sole parental responsibility – change of name – where applicant father did not attend court. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 106A Births, Deaths and Marriages Registration Act 1995 (NSW) Federal Magistrates Court Rules 2001, r.13.03C |
| Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510 |
| Applicant: | MR MENARD |
| Respondent: | MS JAY |
| File Number: | SYC 7655 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 July 2011 |
| Date of Last Submission: | 4 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2011 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the Applicant: | No solicitor |
| Solicitor for the Respondent: | Mr Xylas |
| Solicitors for the Respondent: | George Xylas Solicitor |
ORDERS
All earlier parenting orders are discharged.
The Application filed on 6 December 2010 is dismissed under the provisions of Rule 13.03C.
The Respondent Mother is to have the sole parental responsibility for the child of the marriage [X] V born [in] 2004.
The child [X] is to live with the Respondent Mother.
The child [X] is to spend time with the Applicant Father as follows:
(a)During New South Wales public school terms, each alternate weekend from 2:00pm on Saturday until 6:00pm on Sunday, commencing on the first Saturday of each school term;
(b)During New South Wales public school holidays, except for the Christmas school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year;
(c)For the purposes of implementation of Order (5)(a) and (b) above the New South Wales public school holidays are deemed to commence on the first day following the last day of the school term and the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day half way between those first and last days.
Orders (4) and (5) are suspended during the following periods:
(a)From 3:00pm on 23 December until 9:00am on Boxing Day in each year, during which period the child will spend time with the Mother; and
(b)From 9:00am on Boxing Day in even numbered years to 6:00pm on 2 January the following year, during which period the child will spend time with the Father and from 9:00am on Boxing Day in odd numbered years to 6:00pm on 2 January the following year, during which period the child will spend time with the Mother.
The child will spend time with each parent during the following times, and any other order providing for time contrary to this order is suspended:
(a)Between 10:00am and 5:00pm on each Mother’s Day when the child will spend time with the Mother;
(b)Between 10:00am and 5:00pm on each Father’s Day when the child will spend time with the Father;
(c)On the Father’s birthday if it falls on an occasion when the child is not otherwise in the care of the Father, the Father is to spend time with the child between the hours of 5:00pm and 7:00pm on a school day and between the hours of 9:00am and 1:00pm if on a non-school day;
(d)On the Mother’s birthday if it falls on an occasion when the child is not otherwise in the care of the Mother, the Mother is to spend time with the child between the hours of 5:00pm and 7:00pm on a school day and between the hours of 9:00am and 1:00pm if on a non-school day;
(e)On the child’s birthday, the parent who does not have the child in their care is to spend time with the child between the hours of 5:00pm and 7:00pm on a school day and between the hours of 9:00am and 1:00pm if on a non-school day; and
(f)
During the New South Wales Christmas school holidays from
2 January 2012 the child will spend time with the Father and the Mother as follows:
(i)from 6:00pm on 2 January to 6:00pm on 9 January with the Father;
(ii)from 6:00pm on 9 January to 6:00pm on 16 January with the Mother;
(iii)from 6:00pm on 16 January to 6:00pm on 23 January with the Father;
(iv)from 6:00pm on 23 January to the day p[receding the day upon which the child is due to return to school with the Mother.
Unless otherwise agreed with respect to all changeovers the Father is to pick up the child from the Mother’s residence and at the end of the period the Father is to return the child to the Mother’s residence.
The parties are to have reasonable telephone communication with the child at all times.
Neither party is permitted to remove the child [X] from the Commonwealth of Australia without obtaining the consent of the other party.
The child formerly known as [X] V born [in] 2004 is to be known by the name of [X] JAY and the parties shall take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths and Marriages Registration Act 1995 (NSW) is amended so as to disclose the child’s surname as “Jay” and that a fresh birth certificate issues to the child disclosing those details.
In the event that the Father refuses or neglects to execute any deed or document or instrument in compliance with the provisions of Order (11) above the Registrar or a Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds or documents or instruments in the name of the Father and do all acts and things necessary to give validity and operation to the deeds, documents or instruments.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other party about the condition and treatment of the child.
The Mother is to authorise and request the principal of any school attended by the child to provide to the Father at his expense copies of all school reports and school photograph order forms relating to the child.
Each party must forthwith inform the other and keep the other informed in writing of their respective current residential address, landline telephone number, mobile telephone number and email address.
IT IS NOTED that publication of this judgment under the pseudonym Menard & Jay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7655 of 2010
| MR MENARD |
Applicant
And
| MS JAY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders relating to the parties’ son [X], who was born [in] 2004. [X] lives with his mother and spends time with his father from time to time.
The Mother has filed an Amended Response in which she seeks orders on both an interim and a final basis as follows:
a)that the child should live with her;
b)that she should have sole parental responsibility for the child;
c)that the child should spend time with his father:
i)on alternate weekends during the school term;
ii)for half of the school holidays;
iii)at prescribed times between Christmas Eve and Boxing Day;
iv)on Father’s Day;
v)on the Father’s birthday;
vi)for a period of two or four hours on the child’s birthday;
d)that the child should spend time with the Mother on Mother’s Day;
e)that the child’s name should be changed from [X] V to [X] Jay.
f)that the parties should notify each other of any medical emergency, illness or injury suffered by the child;
g)that the Father should receive copies of school reports and order forms for school photographs relating to the child; and
h)the parties should keep each other informed about any changes to their residential address, landline and mobile telephone numbers and email address.
Background
The Father commenced proceedings in this Court by filing an application for orders restraining the mother from removing the child from the Commonwealth of Australia and that the child would spend equal time with each parent.
Orders were made by consent on 6th December 2010 permitting the Mother to take the child out of Australia for a holiday.
The parties attended a child dispute conference with a Family Consultant on 14th April 2011. They agreed that [X] would live with his mother. They came to some agreement about the time that the child would spend with his father but they did not agree about the Mother’s proposal that the child’s name should be changed.
The Mother was legally represented when the application came back to Court on 18th April but the Father did not attend. The application was listed for an interim hearing at 2:15pm on 4th July 2011. The Father was advised that he must attend on the next occasion. He was warned that if he did not attend then orders may be made in his absence.
The Hearing
The Father did not attend Court when the matter was listed for hearing. He was called at 2:26pm and again at 2:45pm. There was no appearance.
The Mother attended Court with her solicitor, Mr Xylas, and her father, who had also sworn an affidavit in support of her case.
As the Applicant Father had not attended Court and there was no explanation for his absence, his Application was dismissed under the provisions of Rule 13.03C. The Mother sought to move on the Orders sought in her Amended Response.
Evidence
The Mother relied on her affidavit sworn on 15th June 2011 and on the affidavit of her father sworn on 16th June 2011. The Mother gave oral evidence. She deposed that the child [X] has always lived with her. She has enrolled him at [omitted] School at [suburb omitted] and has always been involved in his education. She has also enrolled [X] to play soccer with a team called [omitted].
The Mother stated that the child likes spending time with his father but his father only sees him irregularly. She deposed that she believes the Father’s time with [X] should be limited to alternate weekends because she has no trust in the Father’s ability or willingness to maintain a regular routine for the child, such as getting the child to school or to his soccer matches on time.
The Mother wishes to change the child’s surname from “V” to her own surname of “Jay”. The Father has changed his surname to “Menard”. The Mother thinks that it would be in the child’s best interests for him to have the same surname as her, because she is the child’s primary caregiver. At times, she has been addressed at [X]’s school as “Mrs V”. She deposes that she does not wish the child to grow up and suffer any embarrassment from having a name that is different from the name of both of his parents.
The child’s paternal grandfather, Mr J, deposed in his affidavit that he and his wife have assisted the Mother in looking after their grandson when she has to go to work. He would take the child to school or to soccer training and he paid the child’s soccer registration fees in the sum of $220.00 for the 2011 soccer season. They play an active role in their grandson’s life.
The Relevant Law
Section 60CA of the Family Law Act 1975 requires the Court, when deciding to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of Section 60CC of the Act.
When making a parenting order, the Court is required by s.61DA(1) of the Act 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. That presumption does not apply in cases of abuse or family violence (s.61DA(2)) and may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility (s.61DA(4)).
I have considered all those matters.
In Chapman & Palmer[1] the Full Court of the Family Court considered the factors to which a Court should have regard when considering an application to change a child’s surname. Those factors 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 if the child’s name is different from that of the parent with whom the child lives;[2]
d)any confusion of identity which may arise for the child if his 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.
[1] (1978) 4 Fam LR 462; FLC 90-510
[2] The decision uses the old terms of “custody” and “care and control”.
I have considered those matters, also.
Conclusions
It is a matter of regret that the Father has elected not to attend Court on two occasions. The Court can only proceed on the Mother’s evidence, but it is important that there should be an end to litigation. This matter must be finalised and, in the absence of the Applicant Father, the Court will proceed to make final orders. If the Father wishes to vary them or have any order set aside, he will be given the opportunity to apply within 14 days.
The Mother has been the child’s primary caregiver throughout his life, whilst the Father’s contact with him has been erratic and irregular. The Mother’s evidence supports the proposition that it is of benefit to [X] to have a meaningful relationship with both of his parents. The child wants to have a relationship with his father, but the Father has been somewhat erratic in his spending time with his son, which has caused numerous disappointments.
The Mother has deposed to violent arguments between the Father and herself with the Father making threats of violence towards her. The police have intervened on more than one occasion. There is no current family violence order.
Despite all this, the Mother wishes to encourage the relationship between [X] and his father. The child has a positive relationship with his maternal grandparents.
For the above reasons, I am satisfied that it is in [X]’s best interests to live with his mother. The low level of communication between the parties, and the evidence of family violence in the past, are sufficient to rebut the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him, and I am not satisfied that it would be in his best interests.
I propose to order that the child should live with his mother and she should have sole parental responsibility for him. There will be orders that [X] spends time with his father along the lines that the Mother proposes.
I am satisfied that it is in the child’s best interests for his surname to be changed from “V” to the Mother’s surname of “Jay”. At present, he does not have the surname of either of his parents, because his father elected to change his name to “Menard” to distance himself from his criminal past.[3]
[3] Affidavit of Ms Jay 15.6.2011 at paragraph [113]
As his mother is his primary caregiver, I believe that it is in [X]’s best interests for him to have the same surname as his mother.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 July 2011
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