Menzies and Drew

[2019] FamCA 337

FAMILY COURT OF AUSTRALIA

MENZIES & DREW [2019] FamCA 337

FAMILY LAW – CHILDREN – Best interests of child – previous final orders made in 2013 – Order made for mother to continue to have sole parental responsibility – Order made permitting father to send emails, letters and appropriate gifts to the child.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Goode & Goode (2006) FLC 93-286
APPLICANT:	Mr Menzies

RESPONDENT: Ms Drew

FILE NUMBER: BRC 9113 of 2009

DATE DELIVERED: 28 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 25, 26, 27 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Neaves

SOLICITOR FOR THE APPLICANT: Ryan Lawyers

COUNSEL FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE ICL Mr G Andrew

SOLICITOR FOR THE ICL

Ms L Wiid

Lyrene Wiid Lawyer & Migration Agent

Orders

1. That the mother shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, K born … 2008 (“the child”) save that the mother shall, prior to making the sole ultimate decision about any such issue:

   (a)use her best endeavours to advise the father in writing of the decision intended to be made;

   (b)seek the father’s written response in relation thereto;

   (c)consider, by reference to the best interests of the child, any such response prior to making any such decision; and 

   (d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

2. That the mother have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst the child is in her care.

3. That the father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst the child is in his care.

4. The child live with the mother.

5. That the child shall communicate with the father, unless otherwise agreed in writing (or by text message) between the parents as follows:

   (a)The father may send to the child emails, letters and appropriate gifts to the address nominated by the mother;

   (b)The communications by the father shall not make any hurtful remarks or comments about the mother, her partner, her lifestyle or her extended family and shall not seek to raise issues about these or earlier legal proceedings; and

   (c)The mother shall hand all communications and gifts to the child and encourage the child to respond with courtesy and respect. The mother shall facilitate the child’s responses being sent to the address nominated by the father.

6. That the mother shall inform the father of any serious illness or urgency suffered by the child within fourteen (14) days.

7. That this Order is authority for the father to receive, at his cost, a copy of any school reports issued by any school attended by the child and such other information that a child’s parent enrolled at that school is reasonably entitled to receive.

8. That if the child expresses to the mother a desire to speak to the father, then the mother shall facilitate the child being able to do so.

9. That to facilitate the exchanges between the parents and/or the child under this Order, each parent shall, within fourteen (14) days:

   (a)advise the other parent of their nominated postal address, mobile telephone number and suitable email address (if available); and

   (b)inform the other parent of any changes to these particulars within fourteen (14) days of such change.

10. That the Independent Children’s Lawyer is directed to seek funding from Legal Aid Queensland (as required) to enable the family report writer Ms V to explain to the child these Orders.

11. That the Independent Children’s Lawyer shall be permitted to provide a copy of the Reasons for Judgment delivered 28 February 2019 to:

    (a)the family report writer Ms V;

    (b)any Psychologist or Counsellor attended by the child;

    (c)any Psychologist or Counsellor attended by the mother; and

    (d)any Psychologist or Counsellor attended by the father.

12. That the mother shall, within fourteen (14) days, forward to the father all necessary forms that now correct the birth registry of the child so as to reveal the father to be Mr Menzies. The father shall return the forms, duly executed, within fourteen (14) days of receipt and thereafter within fourteen (14) days of return by the father to the mother, the mother shall lodge the forms with the Registry of Births, Deaths and Marriages and be responsible for the applicable fee.

13. That upon the expiry of thirty (30) days the Independent Children’s Lawyer is discharged.

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 Menzies & Drew 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 9113 of 2009

Mr Menzies

Applicant

And

Ms Drew

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. K, aged 10 years, has been the focus of litigation between her parents, who never lived together after her birth.  Despite a hearing in 2013 and numerous orders and efforts, the child has not spent any time with the father since 18 December 2016. 

2. The reasons as to how this matter has evolved to this point are sad and the options now to move forward in K’s best interests are stark.  In preparing these reasons, it was hard for the Court not to have a sense that many opportunities to support K forming and maintaining a relationship with the father have been lost. 

3. The father, essentially, hopes the Court will try again, through Court orders compelling parents to do certain things, to re‑establish K’s relationship with him.  Whether this can be achieved now, considering what the history has been and what the child now says, is the dilemma facing this Court.

Contextual history

1. It is not necessary to provide a complete history of events since separation of the parents in June 2008; at least because the reasons for the first trial orders in this Court, after a trial conducted before Justice Murphy on 23 January 2013 and published 24 January 2013, set the scene to that date.  The statements of fact which follow should be construed as findings of fact.  The reasons of Justice Murphy comprehensively explain that:

   a)The father was not an unacceptable risk of sexual harm to K;

   b)It was in the best interests of the child to spend time with the father, despite K only have limited time with him and no supervised time, to that point; 

   c)It was appropriate for orders to be made for the child to live with the mother and for the mother to have sole parental responsibility for major long-term issues;  and

   d)K’s best interests, on the evidence at that time, required an order for her to spend time with the father, initially supervised (for five months) before graduating to unsupervised time and, ultimately, leading to K spending every second weekend and half the school holidays by the time K was to commence grade one. 

2. By at least September 2013, these final orders were not being complied with, causing the father to bring a Contravention Application and the mother to engage Dr W, a psychologist, to provide therapy for K, then aged four years. 

3. The domestic violence proceedings instituted by the mother resulted in a Protection Order on 2 June 2014 for a period to 4 May 2016. 

4. Justice Hogan, when dealing with the father’s Contravention Application on 24 July 2014, ordered three supervised visits under section 65L of the Family Law Act1975 (Cth) (“the Act”) and, eventually, supervised time recommenced from on or about 14 December 2014 at the Town T Children’s Contact Centre.

5. The evidence establishes that there were six fortnightly visits to 22 February 2015 before unsupervised full day fortnightly visits began on 8 March 2015.  The schedule of visits set out in annexure “…” to the mother’s trial affidavit filed 4 February 2019, which I accept to be accurate, reveal these unsupervised contact visits began to break down by about November 2015, with the Town T Children’s Contact Centre withdrawing their services for supervision of changeovers in March 2016.

6. Although there is a dispute as to why there was a discontinuation of this service, I am not required to make any finding on that issue and, in any event, the evidence was insufficient to do so. 

7. On 11 February 2016, the father discontinued his part-heard Contravention Application when deciding to apply to this Court to vary the final orders made on 24 January 2013.  Senior Registrar Spink, on 14 July 2016, with the benefit of a Child Inclusive Conference memorandum by Family Consultant Ms P, dated 15 April 2016, ordered by consent that time was to recommence from 30 July 2016 each alternate Saturday from 9am to 5 pm, and telephone communication was to occur each Wednesday. 

8. It is not in dispute that after recommencement of visits, they were maintained and continued until 17 December 2016, which ended up being the final physical interaction between the father and K, save for the events of 18 December 2016, which I deal with below discretely.  Such has been the importance of that day and the period thereafter that I deal with it as a discrete issue.

9. Before the final visit, K and the parents had participated in Family Report interviews and observations conducted by experienced social worker, Ms V, on 10 October 2016 and 1 November 2016.  A report dated 3 November 2016 is before the Court. 

10. Relevantly, Ms V also interviewed Ms Q who is a friend of the mother and was selected by the mother to supervise some visits between the father and K.  By the time of the interviews, Ms Q had supervised four contact visits.  No evidence from Ms Q was offered to the Court, however, I was referred to her comments to Ms V (see paragraphs 6.1 to 6.7) and all parties agreed I could safely accept the observations of Ms Q that, at that time, K did not appear “fearful” of the father and, by the last visit, she noted the father and K “to hold hands and to enjoy spending time together”. 

11. In circumstances where the child’s interviews with Ms V on 10 October 2016 seemed to give Ms V confidence that an observation session between the father and K would be worthwhile, such a session took place on 1 November 2016.  Paragraphs 9.1 to 9.10 of the first family report records the observations and this was summarised at paragraph 10.2 in the following terms:

    “10.2   The contact I observed between [K] and [Mr Menzies] indicated a natural and relaxed relationship and there were no overt signs of anxiety in her prior to, during or following this period.”

12. Although Ms V was aware of the mother’s presenting as a “very unwilling participant in facilitating K’s relationship with her father”, and that the mother strongly believed that K “should not have contact” with the father (see paragraph 10.7), nonetheless, Ms V recommended that:

    a)K spend unsupervised time with the father from 9 am to 5 pm each alternate Saturday;

    b)contact to increase to overnight following consultation with K’s psychologist, Dr W; and

    c)this contact to progress to her spending time from 5pm on a Friday until 5pm on the Sunday each alternate weekend in the future.

13. With the benefit of this family report, the Senior Registrar made consent orders on 10 November 2016 that the child spend time with the father on defined weekends (but not overnight) unsupervised, between 9am until 3pm.  Those agreed days included 17 and 18 December 2016, Christmas Eve 2016, and 7 and 8 January 2017.  The Senior Registrar adjourned the matter “for further directions” to 15 December 2016. 

14. When the matter came before the Court on Thursday, 15 December 2016, seemingly because of the positive momentum that was developing in the child’s time with the father, the Registrar adjourned the applications for six months, on the basis that a Legal Aid conference might be arranged. 

15. Tragically, as has turned out, just three days later, the final visit between the father and K occurred. Sadly, and without real adequate explanation, in my view, no applications by either a party or the Independent Children’s Lawyer were filed to draw to the Court’s attention the breakdown in time, such that on 8 June 2017, when the matter came before the Registrar, it was merely allocated to the trial pool;  effectively, put in abeyance. 

16. After a further period of 12 months, the matter came before me.  I was informed an updated family report (finally released on 8 October 2018) would be required.  Although an earlier trial date was offered, the parties indicated that a trial date of 27 February 2019 was suitable.  The trial proceeded on that day. 

17. On the first day of the hearing before me, K had not spent any time or communicated with her father for over 26 months.  It is hardly surprising, in these circumstances, that the father, with the history that has transpired since he first became aware he was the biological father of K two years after her birth, that he has become frustrated and has demonstrated and articulated a lack of respect and confidence in the family law system. 

18. As I now explain, however, his attempts to blame the mother entirely for what has occurred shows a lack of insight into how his inactions have also contributed to where we now find ourselves. 

Findings about parents

1. Although neither of the Counsel - Mr Neaves for the father or Mr Andrew for the Independent Children’s Lawyer - made any submissions as to credit,  I think it provides some context for the reasons which follow to make some findings about the parents’ characteristics. 

2. In doing so, as the previous short history reveals, these parents had a short and ambivalent relationship which ended months before K was born.  The child’s paternity was disputed, initially, and the parents have been in litigation in one form or another for over nine years. 

3. The father has become frustrated with the behaviour of the mother and the actions of the Court.  He relies on a disability pension arising from serious injuries sustained in a vicious attack upon him in October 2008.  One of the attackers was the mother’s uncle who was ultimately convicted and ordered, after an appeal, to serve six years imprisonment.  The father lives with the consequences of that attack, which has damaged his memory and, I assess, contributes to his dislike of the mother. 

4. He is a big man whose manner can reflect impatience and assessments of him by the independent family consultants and report writer (Ms P and Ms V on two occasions) were interrupted by the behaviour of either disengaging or him being hostile and aggressive.  I accept the observations of the family consultants and report writer. 

5. The father has, I find, continued to focus on achieving a relationship with a daughter he feels blessed to have and clearly loves.  His lack of time and the mother’s consistent entrenched view that he presents as a risk to K make him angry.  He feels an injustice is occurring.  Sadly, however, he has shown little insight, in my view, into how his own behaviour has contributed to the views the child expresses about him now, which means he simply cannot accept K’s expressed wishes not to spend time with him are genuine feelings of her.  He sees them, rather, as shaped by the mother’s influence and, he firmly believes, her alienating behaviour. 

6. The mother is an experienced parent of four children, one of whom is now an adult but still lives on her property at Town S.  K’s sibling, N (aged 13 years), lives with the mother whilst her sibling, M (aged 14 years), previously was a member of the household but after the mother chose to move to Town S with her new partner, Mr L, in early 2018, M decided to live with her father on the mainland and visits during school holidays. 

7. The mother works in health care.

8. The father really makes no criticisms of the mother’s parenting of K.  He accepts K should live with the mother and that she should continue to exercise sole parental responsibility as ordered by Justice Murphy in 2013.

9. What is clear, however, from the material filed by the mother as an unrepresented litigant in these proceedings and in interviews with Ms V, that she believes no value at all arises from K having a relationship with her father.  Her testimony only reinforced her strong views in this regard:

   d)at one stage, admitting she believes the father sexually abused K in 2011 and has the capacity to do it again;

   e)she believes that one of the reasons the father persists in seeking unsupervised time is that is “grooming” her for his sexual needs as he is a “sexual predator”;  and

   f)she “loathes” the father and could not countenance him being the father of K and wants “nothing to do with him and wished he did not exist”.

10. These are very strong negative views about the father which the mother accepts the child is aware of.  The capacity for K to feel empowered at her age to explore a relationship with her father (without putting at risk her primary source of support from the mother) is, I find, severely compromised.  I have no doubt the mother loves K and wants the best for her.  As I say, she is a competent mother who has looked after all her other needs very well and sometimes, it would seem, under significant pressure, because of other choices in relationships she has made.  I have no doubt the mother loves K and wants the best for her. 

11. As far as the father is involved, the mother has an immovable emotional blockage and that the counselling she says she is undertaking has neither removed or even weakened this blockage.  I have no evidence from that counsellor.  I indicated to the mother that, in my view, she needs further therapeutic support to do so, otherwise there is a prospect that her long-term relationship with K could be damaged.  It seemed to me that the mother probably does not see that as a likelihood, at this stage. 

12. I should make some brief observations about K, a child described by Ms V as both “confident” and articulate, mature for her years and probably strong willed.  She has a bubbly personality and is doing well at school (both socially and academically), as her reports, tendered as Exhibit 1, attest.  She is healthy, has no special needs and it seems clear on the evidence, feels secure and stable in her mother’s primary care and her relationship with her siblings.  She is, in all respects, a happy little girl.  

13. She has seemingly coped fine with the changes in her household (as the youngest sibling) and of all the siblings’ lifestyles and decisions and interactions with her that change as a result.  She gets on well with the mother’s new partner, Mr L, and appears to have adjusted to the quieter life on Town S and the smaller school she now attends.  There is much about the little girl K has become, to this point, to be proud of and the mother deserves the credit for assisting her development in this way. 

The incident on 18 December 2016 and its effect

1. After an unsupervised visit for K with the father on Saturday, 17 December 2016, the child, on the following day, refused to spend time with the father.  The father’s perceptions and, therefore, evidence about the event significantly differ from those of the mother and the child.  In my view, the sworn evidence of the mother and the statements made by the child to Ms V (recorded at paragraphs 5.3 and 5.4 of the updated family report), I accept to be broadly correct.  I prefer their version to the father’s version.  The father’s version was largely based on a denial that he swore at the child, pointed his finger at K and said bad things about the mother and her family to K.  I do not accept that evidence of the father. 

1. Little turns on whether it was a “salami sandwich” or a bacon and egg pie that the child said made her feel sick.  It is, in my assessment, that the child’s expressed views were so strong and her recollection so clear when speaking to Ms V on 24 August 2018, nearly two years after the event.  Sadly, and considering the otherwise increasingly positive engagement that was occurring until December 2016, the consequences and actions after 18 December 2016 had been very regrettable, including:

   a)No action being taken by the father or the ICL to seek, by application in a case or otherwise, a relisting of the matter before June 2017 to see if any remedial actions or steps could be taken;

   b)The father did not seek to spend time with the child as, for example, by even attending at the home as the order of 10 November 2016 prescribed and permitted, on Christmas Eve or 7 and 8 January 2017 and thereafter;

   c)Although the child was still engaged with psychologist Dr W during 2017, I have no evidence at all (which I found curious and disappointing, to some view) as to how the psychologist supported K to understand what was likely to be seen by the child as her rejection by the father.  It would be unfair to speculate on what that evidence might be;

   d)How the child perceived the mother’s actions in preparing her for visits from her father every weekend when he did not attend.  The mother says she stopped doing so in April 2017.  Ms V agreed with my proposition that “setting up” the child for these fortnightly visits, when the mother really knew that the father was not likely to attend, would have been emotionally hurtful for K. 

2. A combination of all these factors has contributed to the child, in my view, expressing the firm feelings recorded at paragraph 5.5 of the second report, that:

   “5.5  K clearly told me she does not wish to have contact with her father today and she felt very nervous about coming today and being forced to see her father.  She told me she would be okay with her father sending her cards or letters, however, she is unsure about whether she would write back to him.”

3. I agree with the submission of Counsel for the Independent Children’s Lawyer that the events of 18 December 2016 have had a disproportionate destructive effect on this family and on K’s journey of a relationship with her father. 

Competing proposals

1. The father’s case outline, filed 18 February 2019, seeks orders which broadly seek to recommence a similar regime as ordered by Justice Murphy six years ago.  As I pointed out to the Counsel for the father, Mr Neaves (who I acknowledge could have said nothing more to advance and promote his client’s instructions and proposals than he did), much has changed in the last six years.  At the very least, the child is now 10 years of age and expressing strong views.  The father does not contend for an interim order to be made. 

2. The mother’s proposed minute of final orders adopts, generally, the recommendations of the family report writer and, in effect, the father be permitted to write letters and, otherwise, he must await the child, as she gets older, to initiate other forms of contact with him. 

3. The Independent Children’s lawyer supports the proposal of the mother and gave detailed oral submissions as to why those provisions are in the best interests of K, at this time. 

4. The mother, who, as I say, was unrepresented during the trial, adopted his submissions.  Mr Neaves argued strongly for his client’s proposal. 

Statutory framework

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act 1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Additional and primary considerations

1. I adopt, but do not repeat, findings already made above and in the narrative summary of the evidence, touching onto section 60CC(2) and section 60CC(3) considerations as follows:

   a)The child has a meaningful relationship with the mother, who has been her primary carer since birth.  Although I find the child would benefit from developing a meaningful relationship with her father, the difficulty now confronting the Court is how, from the position we now are in, that could be possibly achieved.

   b)The father has limited parenting skills because he simply has not been given the opportunity to develop them with K.  He demonstrates a lack of insight into how his gruff presentation and, at times, hurtful remarks and frustrated manner has contributed to the child’s expressed views.  I do not assess that he is emotionally attuned to K but he loves her dearly and I hold no concerns he would intentionally harm her in any way. 

   c)The mother is a good and loving mother, however, her inability to see the father other than as a risk to K, in many ways exposes, in my assessment, K to emotional harm in her care. 

   d)The child’s wishes are clear and I am satisfied that, although I believe she is aware of the mother’s reluctance to support her relationship with the father, and her negative views of the father (probably shared by the mother’s other children and siblings of K and wider family network), I accept the opinion of Ms V that her views expressed have not been coached or coerced by the mother.  To some extent, I believe they are shaped by the child wanting an end to litigation and her wish to not be under the pressure she has been required to navigate all her life. 

   e)The father has no real relationship with the child, at this stage, sadly, although she does know him and she has, previously, expressed that they have enjoyed spending time together.  The child’s primary relationship is with the mother and her siblings.  The importance to the mother of a relationship with her children and the sibship relationships was demonstrated by the “family commitment” ceremony recently undertaken.  None of the children’s fathers were involved in that ceremony.

   f)As the mother has had an order for sole parental responsibility since 2013, the father has neither been asked to participate, nor has he had the opportunity to make decisions about K.  In short, the mother and father do not communicate in any effective way, other than through lawyers or with the conduit of the Independent Children’s Lawyer. 

   g)Apart from the fact that the mother now lives on Town S, no significant practical difficulties arise from the child spending time with the father, in my view. 

   h)I have, by assessing the parents and the risk to the child, dealt with the issues of parental capacity and attitude, as required by the Act, in my view.

   i)There are no current family violence orders in place, the last one expiring in May 2016.  Even when, for a limited time, changeovers took place at the front of the mother’s home, no significant issues appear to have arisen until the exchange (regrettably, in the presence of the child) which occurred on 18 December 2018. 

   j)I formed the view that any order for time, as prescribed by the father on the current evidence, is likely to break down as it did after similar orders were made in 2013.  The orders proposed by the mother are orders that, in my view, would be least likely to lead to further proceedings. 

Conclusion

1. The competing proposals reveal that there is agreement for the child to live with the mother and for the mother to have sole parental responsibility.  On the evidence, a substantial factor, in addition to those already dealt with in these reasons, is the consideration of section 60CC(3)(d): namely, the likely effect of any changes in the child’s circumstances. 

2. If the orders contended for by the father were to be made, I am satisfied the mother would do her best to comply with them but, as Ms V opines, the strong views held by K mean that forcing K to spend time with the father would be detrimental to the child. 

3. The father, not surprisingly and understandably, merely wants an opportunity to see his child so that he can, as I understand it, explain his position and his love for her.  In my view, it could completely sever any possibility of the father having a long-term relationship with his child, which may be assisted by counselling (without any guarantee) but would possibly redevelop if the child is able to see some demonstration of the father’s continuing interest in her, rather than being forced to spend time with her now, against her wishes. 

4. The father would, I predict, find it hard to limit his frustration and demonstration of his anger and disappointment in any “face to face” contact, but he may be able to limit his demonstration of those traits through written communication.  The best way for the child to put the events of 18 December 2016 and the lack of time thereafter is not to force the child to spend physical time with the father but, as Ms V opines, build positive and healthy communication through cards, gifts and encouragement of the child. 

5. I accept the father has no confidence that the mother will facilitate the child communicating with the father.  Her strong negative views must make that a risk. However, generally speaking, the mother has complied with all orders of the Court, unless she had a basis for saying that it was contrary to the child’s best interests at the time, for which she would claim a reasonable excuse.  Although there is a risk the mother may not support the child in terms of the orders which I propose to make, I am prepared, on balance, to accept that she would. 

6. For the reasons given, I pronounce the orders I will make shortly.

Additional matter

1. One additional matter was raised during the hearing yesterday, which is that on 13 September 2011, Federal Magistrate Jarrett (as he then was) ordered, inter alia:

   “5.The mother, at her expense, within 30 days of these orders, do all acts and things and sign all documents necessary to make application with the Registrar of Births, Deaths and Marriages, Queensland, to:

   a)    request the child, now registered as [K] (sic), born in 2008, be registered as [K];

   b)    request the registry to amend the registration to include the father, Mr Menzies’s details as the father on the child’s birth certificate.

   6.Both parents shall ensure that, henceforth, the surname of the child, “[Menzies]”, is recorded on all health, education and/or any other records relating to the child and to give effect to this order, the mother shall, within 30 days of the date of these orders, alter any existing records in her surname, “[Drew]” (sic), to the surname of “[Menzies]”.”

2. The orders made on 13 September 2011 are expressed to have been made by consent until further order.  I am unaware of any other orders that discharged or varied orders 5 and 6.  It was not an issue in these proceedings until the Court, of its own initiation, raised it. 

3. Curiously, it seems to me, by reference to the child’s birth certificate on the Court file (which was produced to the parties during yesterday’s hearing, the child’s registered birth surname is, in fact, “Mr H” and not, as the order might suggest, “Drew.”

4. Even though no application for enforcement of order 5 was before me, of the Court’s own initiation and in the best interests of K, I raised the matter.  It is important, in my view, that the error that records “Mr H” as the child’s father be corrected, as ordered and as soon as possible.  The mother claims from the bar table that she produced the forms to the father (through his solicitor) but they were not returned.  Furthermore, she wanted the father to pay the fee, even though the order clearly indicated that the mother was required to pay the fee. 

5. For reasons explained orally, it would be inappropriate, at this stage, in the absence of any application for enforcement, to seek to consider that (on the evidence now) whether order 6 be enforced.  The school enrolment reveals she has been enrolled at Town S State School (see exhibit 2) as “Mr H” but with the preferred family name of “[Drew]”, which she apparently uses at school.  It seems likely the child has been using that name for many years. 

6. The mother and the father agree the Registrar of Births, Deaths and Marriages should correct K’s birth certificate and the orders I make seek to ensure that now occurs.  I see there is no procedural unfairness to either of the parents in making the orders which I now make, absent any formal application for enforcement. 

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 February 2019.

Associate: 

Date:  27 May 2019