Newton & Anor & Vyasa
[2013] FamCA 938
•3 December 2013
FAMILY COURT OF AUSTRALIA
| NEWTON AND ANOR & VYASA | [2013] FamCA 938 |
| FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child should spend time – best interests – orders made for the child to live with the mother and the step-father and spend time with the father as agreed or in default of agreement on specified occasion. FAMILY LAW – CHILDREN – Final Orders – child’s name change – leave to proceed with adoption - best interests – no orders made concerning a change of the child’s name – no leave given for the step- father to proceed with adoption. |
| Family Law Act 1975 (Cth) s 60B; 60C; 60CA; 60G; 61DA; 61E; 62G; 65D; 68L |
| 1st APPLICANT: | Ms Newton |
| 2nd APPLICANT: | Mr Newton |
| RESPONDENT: | Mr Vyasa |
| INDEPENDENT CHILDREN’S LAWYER: | Barbayannis Lawyers |
| FILE NUMBER: | MLC | 7167 | of | 2012 |
| DATE DELIVERED: | 3 December 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 25 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Not applicable |
| SOLICITOR FOR THE APPLICANTS: | Applicants in Person |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Respondent in Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Conlan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbayannis Laywers |
Orders
That the mother shall have sole parental responsibility for all major issues concerning the long-term care, welfare and development in respect of B (“the child”) born … 2001.
That the mother and Mr Newton (“the stepfather”) have shared parental responsibility for the day to day issues in respect of the said child.
That the said child live with the applicants.
That the said child spend time with the father as may be agreed between the parties.
That in default of agreement, the said child shall spend time with Mr Vyasa (“ the father”) as follows:-
(a)For three consecutive periods, from 10am to 4pm on Saturday to coincide with the time that the father spends with his children C born … 2007, D born … 2008 and E born … 2009 commencing on 24 January 2014, and for the same time on the next two occasions that the father spends time with his children.
(b)Thereafter and subject to the wishes of the said child:-
(i)as may be requested by the child and agreed between the parties, or if the parties are unable to agree:-
(ii)each third Saturday on four (4) consecutive occasions from 10am to 8pm ;
(iii)thereafter, each alternate weekend for six (6) further occasions from 10am Saturday to 6pm Sunday;
(iv)thereafter, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
(v)on Father’s Day each year from 9am to 6pm, providing that the father’s time with the child shall be suspended on Mother’s Day;
(vi)from 4pm on Christmas Eve until 11am on Christmas Day in odd numbered years;
(vii)from 4pm on Christmas Day until 4pm on Boxing Day in even numbered years;
(viii)for such time during the said child’s school holidays as may be agreed and subject to the wishes of the child.
That the father’s time subject to paragraph 5 (b) (i) – (iv) herein is suspended for one half of the Christmas school holidays, with the applicants to elect which half, and during the period 24 December – 26 December in each year.
That prior to the commencement of any time between the child and the father, the child shall attend upon the Independent Children’s Lawyer and/or the Family Consultant Mr F for the purpose of explaining to the child the effect of these orders.
That at the earliest opportunity after the making of these orders, the parties do attend at a Parenting Orders Program “Our Kids At Catholic Care” in Suburb G, phone … in order to assist the parties to establish a means of communication with each other and the child.
That within seven days of the date of this order the parties do exchange their respective contact details to include mobile phone, landline, email address and residential address, with the applicants to provide contact information in respect of the said child, but the contact details of the child shall only be provided to the father following the attendance by the child on the Independent Children’s Lawyer and/or Mr F.
That the applicants will do all things necessary to facilitate the said child to have telephone or other electronic communication with the father at all such reasonable times as the child requests.
That the applicants shall keep the father informed of all details relating to the child’s doctors and health professionals and must notify the father forthwith of any medical emergency affecting the child.
That this order shall serve as an authority to the child’s doctors and health practitioners to release to the father information concerning the child as may be requested from time to time.
That this order shall serve as an authority to the child’s school and extra- curricular activity providers to provide the father with school reports and such other information as the father may reasonably request.
That the father be at liberty to attend parent teacher interviews in respect of the said child but unless agreed, at times separate to the attendance by the applicants for that said purpose.
That the father be permitted to attend such school functions and sporting events involving the child to which parents are normally entitled, provided unless agreed the father will not approach the child and/or the applicants (unless the said occasion or event coincides with the time that the child spend with the father).
That paragraph 3 and 4 of the initiating application filed 8 August 2012 (the change of name and leave to commence adoption proceedings) be dismissed.
Subject to paragraph 7 herein the appointment of the Independent Children’s Lawyer be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newton & Vyasa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7167 of 2012
| Ms Newton and Mr Newton |
Applicant
And
| Mr Vyasa |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed on 8 August 2012, Ms Newton (the mother) and Mr Newton (the step-father) (“the applicants”) applied for the following orders:-
(0)That the applicants have equal shared parental responsibility for all long term and day to day issues concerning the care, welfare and development of the child, B (“the child”) born in 2001.
(1)That the child live with the applicants.
(2)That for the purposes of Section 26 of the Births, Deaths and Marriages Registration Act 1996 (Victoria) that the Court approves the proposed change of name for the child now known as B to the child H Newton.
(3)That pursuant to Section 60G(1) of the Family Law Act 1975 (“FLA”) the applicants shall be granted leave for proceedings to be commenced for the adoption by the second named applicant of the child.
By Response to the Initiating Application, Mr Vyasa (the respondent father) seeks orders that he and the mother have equal shared parental responsibility for the child, an order that the child live with the mother and that the child spend time and communicate with him on a gradually increasing basis starting with some hours on each Saturday and Sunday and progressing to each alternate weekend, half school holidays and special occasions.
Notably, the applicants do not propose any orders that would see the child spend any time with the father. Notwithstanding the orders of Cronin J made 20 June 2013 no further Amended Application or Response was filed.
The matter first came before me on 7 August 2013. On that occasion the applicants appeared and were represented by counsel. There was no appearance by the respondent father or any legal representative on his behalf. It was considered possible that the father did not wish to further involve himself in the proceedings. Notwithstanding his non-attendance, I did not consider it appropriate to finalise the matter without giving the father an appropriate opportunity to participate in the proceedings, but also considered that the orders sought by the applicants, and in particular the application for leave to adopt pursuant to Section 60G(1) of the FLA required a consideration of any view or attitude that might be expressed by the child in respect of such a step. Accordingly, an order was made for the appointment of an Independent Children’s Lawyer (“ICL”) pursuant to Section 68L(2) of the FLA to represent the interests of the child and to assist the Court in the consideration of the following:-
a)The orders sought generally in the Application filed 8 August 2012;
b)The orders sought as to Section 60G(1);
c)The time the child is to spend with her father.
The matter was listed for final hearing before me on 25 November 2013 with a mention on 23 August 2013. On that occasion the applicants were represented by counsel and helpfully counsel appeared on instructions for the ICL. The respondent father did not appear. After discussion with counsel I ordered that a report be prepared pursuant to Section 62G(2) of the FLA directed to the wishes and perceptions of the child in respect of the following matters:-
a)The child live with the applicants;
b)There be a change of the name of the child;
c)Leave be granted for adoption proceedings to be commenced by the step-father pursuant to Section 60G(1) of the FLA.
It was further ordered that the Family Consultant shall have regard to the Court file generally but in particular a report dated 8 March 2013 from I Community Services to J Legal reporting on the observed and supervised interaction between the father and the child.
I further ordered that a copy of the orders together with the report from I Community Services be forwarded to the father at his address situate at K Street, Suburb L, Victoria.
As the trial approached, it became apparent that there had been no compliance by the applicants and respondent to the orders of Cronin J dated 20 June 2013 and perhaps of more relevance for the proceedings, the last affidavit filed by either party was on 12 November 2012. Accordingly, contact was made with the parties and the ICL to ascertain the intentions of the parties and the ICL in respect of the proceedings listed for hearing. On 22 November 2013 communication with my chambers was to the effect that the applicants were now no longer represented but would be appearing in person, the father did wish to remain involved in the proceedings and he would be appearing in person and again with considerable assistance to the Court, the ICL appeared by telephone.
Notwithstanding the lack of compliance with procedural orders previously made and limited affidavit material, the Court record reflects the filing of the Family Report dated 15 November 2013. The report shows that the parties and the child attended for interviews in October 2013. The Family Consultant had the advantage of Affidavit material that had been filed and was able to observe and assess the relationship between the child and the parties.
At the commencement of the trial the applicants and the respondent were unrepresented and the ICL was represented by counsel. The parties were given an opportunity to make an application to adjourn the proceedings if they considered that further Affidavit evidence should be put before the Court. Each of the parties were resolute in asking that I hear and determine the matter to finality. Counsel for the ICL was satisfied that whilst the earlier Affidavits might provide only limited assistance the real issues between the parties were well traversed by the report. I determined that given the straightened financial circumstances of the parties, the difficulty in each of them obtaining leave from their respective employment, the age of the child and the comprehensive nature of the Family Consultant Report, providing an opportunity was given to the parties to add to the evidence it would be in the interests of the child for the matter to be finally determined.
ISSUES
There was no dispute that the child would live with the applicants. Whilst not agreeing to the specific orders sought by the father as to the time that the child should spend with him, the applicants were not completely opposed to the concept but rather considered that the father’s lack of involvement with the child (as they saw it) and the impact that this has had on the child namely that she allegedly demonstrates reluctance to see and spend time with her father was the relevant issue. Put simply, if the child wanted to spend time with the father (but not necessarily as to the arrangements that he seeks) then subject to the father making a commitment. they would not stand in the way of the child seeing her father.
The father was disarmingly honest in his acceptance that the child may be reluctant to spend time with him now because of her perception that his lack of involvement and contact with her over a number of years was suggestive of lack of interest on his part. He accepted that he would need to rebuild the relationship with his daughter and that she would have to be persuaded that he was now interested and would make the necessary effort to demonstrate his interest.
There was no suggestion by the father that the child was other than well looked after in the home of the applicants. The father accepted that the step-father had behaved appropriately and he readily conceded that he had taken on a loving and caring role with the child and that there was a demonstrably strong and beneficial relationship between them. The father however was opposed to the mother seeking that the child’s name be changed to reflect a middle name connected with the child’s maternal aunt and to adopt a surname of Newton.
The application for leave for the step-father to adopt the child pursuant to Section 60G (1) of the FLA is an application born out of the genuine desire of the applicants to take a step that they consider adequately and appropriately demonstrates both the current circumstances in which the child is cared for, but the significant relationship that has developed between the step-father and the child. They argue that the child would wish to be the subject of “an adoption” and in doing so would give the step-father appropriate recognition for the beneficial parenting role that he has undertaken. To an overwhelming extent, the matters to be considered arise from the almost total lack of involvement with the child by the father over a period of many years.
Taking into account the age of the child and her perceived wishes and perceptions of the relationship that she has with the applicants and the respondent, whether in all the circumstances it is now too late for there to be a meaningful relationship between the father and the child. If it is, it is argued by the applicants that the orders they seek are in the child’s best interests.
BACKGROUND
The short history is as follows:-
1975 – year of birth of step-father
1978 – year of birth of father
1979 – year of birth of mother
2000 – parties meet and commence a relation
2001 – year of birth of child
2004 – mother and father separate
2004 – mother and step-father commence relationship
2007 – year of birth of M
The mother and father met in 2000. There is no agreement as to the extent of cohabitation between them. It is agreed however that at all times the mother remained living at the home of her family and to the extent that the mother and the father cohabited together it was at the mother’s parents’ home.
The mother sets out a history of alleged violence by the father towards her. She asserts that the father “was both verbally and physically violent towards me. The violence would occur in front of the child.” The mother considers that the father’s violent and aggressive behaviour was the basis for the separation in 2004. The father agrees that the relationship with the mother was volatile but denies that he was physically violent towards the mother. He opines that the stress on the parties of living in cramped and uncomfortable circumstances with the mother’s parents and seven of her siblings was the cause of much stress. The father acknowledges the damaging relationship at paragraph 12 of his Affidavit filed 3 September 2012:-
Being young parents and our living arrangements caused much stress for both myself and [Ms Newton]. It had a negative impact on us as individuals, as well as on our relationship. This led to many heated arguments where we would verbally abuse one another. I regrettably did use derogative language at times during these arguments and at times may have slammed doors. We also handled the stress at times with drinking and I think that this did not help the situation. Although we had heated arguments I was never physically violent towards [Ms Newton] or the child. [Ms Newton’s] parents witnessed many of the arguments that took place between [Ms Newton] and I but would rarely get involved. However, [Ms Newton’s] parents would never have tolerated any type of physical violence or abuse against either [Ms Newton] or the child.
The mother, at paragraph 16 to 24 of her Affidavit filed 8 August 2012 records a very different picture of the dysfunctional relationship between the parties.
The manner in which the case was presented by the parties did not focus on the allegations of violent and aggressive behaviour by the father towards the mother. Whilst it was common ground that the relationship was poor between them, the principal focus of the proceedings was on the breakdown of the relationship between the child and her father by the long period of him having little or no involvement with her.
That is not to say that the mother’s perception of the father is not coloured by what she says was his behaviour. I suspect that her mistrust of him has as its foundation the poor relationship of the parties when they were together and the subsequent lack of involvement by the father in the child’s life following separation.
Soon after separation it appears that the parties tried to keep in contact but that communication was unsatisfactory and ultimately each of the parties formed new relationships. The mother’s relationship with the step-father has endured. The father formed a relationship in late 2006 which lasted until 2011. For the purposes of these proceedings, it is important that the father’s subsequent post-separation relationship produced three children namely C born in 2007, D born in 2008 and E born in 2009.
The mother alleges that since separation the father has seen the child on perhaps five occasions. According to the mother, the father’s interest in the child was enlivened only after his post-separation relationship broke down.
For his part the father alleges that at all times he wanted to maintain a relationship with the child but that the mother did not promote his interest and took steps, according to him, to make it difficult for him to see the child.
It is significant that the mother acknowledges the child has a good relationship with her step-paternal grandfather. The mother has been prepared to allow the child to spend time with the step-paternal grandfather and of relatively recent date has contacted the child by telephone with the mother’s observation that both he and the child are delighted to see and spend time with each other.
This aspect of the evidence is significant. As will be the subject of later comment, the desire of the child to maintain a relationship with the father’s family was an important consideration for the Family Consultant. It also presents the mother as not being totally opposed to the concept of the child having a relationship with the father and his family but rather reinforces the view she put to the Court that it would be devastating for the child if orders were made which allowed the child to spend time with the father and he failed to take advantage of that opportunity. In summary, the mother does not wish to see the child hurt by the father should he not pursue the relationship.
In the circumstances, I formed a view favourable to the mother that her past conduct has not been motivated by any malicious intent towards the father or as part of a deliberate plan to sever his relationship with the child.
The evidence given by the father (to his credit) is one of recognition that if he has any hope of re-establishing a relationship with his daughter then he must be significantly more motivated than he has been in the past.
There is no doubt that the child’s relationship with the step-father has been beneficial for the child. The mother records her observations of the relationship in that the child and the step-father have “a normal loving father-daughter relationship.” There is little or no aspect of the child’s life that the step-father does not involve himself in and it is to the credit of the father in these proceedings that he recognises the principled behaviour of the step-father.
It is however not surprising in the circumstances that the step-father would wish to formalise (as he sees it) the loving relationship that has developed between he and the child in terms of an order of the Court. The mother is very much supportive of that desire expressed by the step-father and it crystalized in the orders that the applicants seek namely, that the mother and the step-father have equal shared parental responsibility for the child (excluding the father) and that there be leave given pursuant to Section 60G (1) of the FLA for the step-father to adopt the said child.
From about 2011 the mother made requests of the father that he consent to the name change and a more formal recognition of the relationship between the step-father and the child. The father did not consider the mother’s request favourably and considered that if he agreed to the mother’s request it would cause the child to be further embittered towards him and would have the effect of severing not just the father-daughter relationship (to the extent that it still existed) but also, importantly to the father, the child’s Country N cultural ties.
The inability of the parties to reach agreement appears to have been the catalyst for heightened conflict and ultimately the issue of proceedings.
CURRENT CIRCUMSTANCES
The child is currently 12 years of age. She has just started High School and appears to be happy and progressing well. There are no health issues and she has good peer group relationships. The domestic environment as engendered by the mother and the step-father is comfortable and positive. There is a significant level of predictability for the child and she is well grounded.
The mother is currently studying a course of Applied Psychology. The step-father is a butcher. The father is employed full time as a Storeman. He has held this employment since August 2010. He has re-partnered and resides with his partner and her 10 year old son since May 2012. Whatever troubled the mother and the father during their relationship and soon thereafter, I find that the parties have matured and each of them, whilst necessarily cautious of the other, have developed an appropriate level of insight into their circumstances, their failings but also the needs of the child.
The mother recognises the importance of the child having a relationship with the father and his extended family but is concerned that her feelings will be hurt if the father loses interest. For his part, the father recognises that whatever the circumstances were, his lack of involvement with the child has been devastating for her and that he needs to show a much enhanced level of maturity if he is to salvage his relationship with the child.
EVIDENCE OF THE PARTIES
Rather than adjourn the proceedings to enable the parties to file update Affidavits, I considered that the issues were narrow and that any hiatus in the evidence could be cured by giving the parties an opportunity to give oral evidence. Each of the parties were called and were the subject of modest cross-examination save as to the beneficial involvement of counsel for the ICL who cross-examined the applicants and the respondent at some length and to helpful effect.
I formed a favourable impression of each of the parties. Their evidence was frank and non-evasive. In particular, the father was open and disarmingly honest about his poor behaviour and the need for him to act far more responsibly if orders of the Court gave him an opportunity to continue to see the child.
I did not form the view that the parties were being disingenuous but understandably the mother retained a level of mistrust for the father, whereas the step-father was demonstrably protective of the mother and the child.
I do not consider that any issues of credit arise and I accept that when the father says he wants in effect a second chance at a relationship with his daughter, that response is genuine. That does not mean that he will necessarily be successful in the endeavour but I accept his presentation before the Court was properly motivated.
CHANGE OF NAME
The applicants wish to change the child’s name to reflect the surname of the step-father “Newton” and to change her middle name to “H” to associate with the child’s favourite aunt.
It is a matter of concern that the mother acknowledges that the child has apparently adopted the proposed name at school. The mother asserts that the child does not wish to keep the father’s surname of “Vyasa” notwithstanding that the applicants were prepared to consider the child retaining a hyphenated name namely “Vyasa-Newton”. Such an outcome does not find favour with the Family Consultant and I would not be prepared to make such an order even if the parties were in agreement. They are not.
The father opposes the application on the basis that to change the name would have the very real potential of disrupting and/or erasing the cultural tie between the child and her Country N based paternal family.
The mother for her part, considers that a name change is warranted because it would satisfy the wish of the child to bear the same surname as her mother and step-father. The motivation for the mother in seeking the order to change the child’s name (or at least to enable the process to be undertaken) is understandable. As will be seen, it is not however supported by the Family Consultant.
APPLICATION PURSUANT TO SECTION 60G(1) OF THE FLA
As stated, the motivation for the application is to reflect the demonstrably strong and close relationship between the step-father and the child. Again, when seen against the history of little or no contact between the father and the child, whilst I consider that the application is genuinely motivated, I do not consider that the application has been well thought through in terms of the process, nor the outcome on the child if an Application to Adopt is successful in circumstances where it is unlikely to proceed with the consent of the father. Such an outcome is not supported by the Family Consultant and in any event I am not certain that such a dramatic step is necessary to enable the step-father to fulfil his need (and to some extent that of the child) that he have recognition of his parental involvement and support.
PARENTAL RESPONSIBILITY
The applicants seek equal shared parental responsibility. Implicit in their application is that the father retain no parental responsibility. When pressed there was some uncertainty on the part of the mother and the step-father as to the extent of that parental responsibility, but ultimately albeit with significant confusion, it appears that the applicants would wish the step-father to exercise parental responsibility not just in respect of day to day matters that affect the child but also major and long term issues.
Whilst I consider it reasonable that the applicants have shared parental responsibility for the day to day issues that affect the child as being an appropriate recognition of the current arrangements in circumstances where the father is demonstrably absent, it is a significant further step to contemplate an outcome that would see the step-father being able to make a decision as to long term issues in respect of the child. During the course of the proceedings I made it clear that without there being a concluded position, the extent of the orders sought as to parental responsibility did not sit comfortably with my assessment of the parties or the circumstances in which the child finds herself.
STATUTORY FRAMEWORK
Each of the orders sought by the parties are parenting orders and must be considered pursuant to the Statutory Framework as provided for in Part VII of the FLA.
Section 60B of the FLA provides the objects of the Act and focus on the Court’s obligation to ensure that the best interests of the child are met.
Section 60B(1) provides:-
(0)The objects of this part are to ensure that the best interests of the children are met by:-
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of the children.
I am required pursuant to Section 60CA when considering what order to make to have regard to the best interests of the child as the paramount consideration. In order to better determine what is in a child’s best interests Section 60CC of the Act must be applied and considered. I am to have regard to the “primary considerations (Section 60CC (2))” and “additional considerations (Section 60CC (3))”.
Section 65D provides the Court’s powers to make a parenting order:-
(1)In proceedings for a parenting order, the Court may, subject to Section 61DA (presumption of equal shared parental responsibility when making parenting orders) and Section 65DAB (parenting plans and this division, makes such parenting order as it thinks fit).
Section 61DA(1) requires that I apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption can be rebutted in circumstances of abuse or family violence or for reasons that establish and satisfy the Court that it is not in the best interests of the child for that to occur (an application of Section 60CC).
It seems therefore that whatever order is to be made the overriding consideration (including the change of the child’s name and leave to adopt pursuant to Section 60G (1)) require the best interests of the child to be the paramount consideration. A consideration of the matters in Section 60CC of the Act both as to the primary considerations and the additional considerations are therefore required insofar as the provisions are applicable.
FAMILY REPORT
The significant evidence presented to the Court was the examination and cross examination of the Family Consultant who authored the Family Report dated 15 November 2013. She set out the following recommendations at paragraph 51 to 53 inclusive of her report:-
·The parties are to attend at a parenting orders program “Our Kids at Catholic Care” to establish a means of communication between the mother and the father.
·The applicants have sole parental responsibility for the child.
·If the child is to spend time with the father at a Contact Centre, it is recommended that there be a routine established that the child is collected and/or dropped off by the mother or a supervisor.
·The parties explore opportunities for the child to spend time with her half- brothers and father in a family community setting.
The Family Consultant was not supportive of the Application for Leave to Adopt and to change the child’s family surname from “Vyasa” to “Newton”. At paragraph 46 the Family Consultant records:-
Adoption and a subsequent name-change is unlikely to value add to the child’s current situation where she lives in a family where she is valued and loved. However if the proposed adoption did proceed the child will immediately lose all connection with her father and the paternal family with long-term negative consequences for her identity in the future.
The Family Consultant had regard to the report from I Community Services. In a general sense whilst the observations of the supervisor demonstrated a reluctance on the part of the child with the father, the father behaved appropriately and with some understanding and compassion. There were observations made that the child wanted to have a relationship with her father and his family but that is not to suggest that the supervised visits were all positive.
When asked about the child’s presentation both in respect of the current circumstances but also arising out of the observed and supervised interaction the Family Consultant reports:-
29.In discussion with [Mr Vyasa] about the current situation he said “to be honest I don’t know what to think about why the child does not want to spend time with me”. He went on and said “my mistake was to abandon her and to leave, but I could not handle living with her mother any more, our lives were not going anywhere.”
Mr Vyasa spends time with his three other children every third weekend.
At paragraph 32 the child’s views are recorded:-
32.[B] expressed the view that she did not want to spend time with [Mr Vyasa] and said “no I don’t want to see him, I just want to continue on with my life. It makes me cry to think he hasn’t seen me for many years, and now he can come and ruin everything, they (mother and [Mr Newton]) are struggling to pay the Court fees, it sort of worries me.”
Importantly at paragraph 33 the child says:
33.If ([Mr Vyasa]) talked it would make it easy… I have not seen my brothers for a long time, I miss them. the child smiled widely and said “I just love my [paternal step-grandfather]. He is the most regal man I know”. …the paternal step-grandfather reportedly takes the child out and she said “he came and wished me a happy birthday”.
Throughout the report it is recorded that the child would wish to continue and enhance her relationship with her Country N side of the family.
The Family Consultant considers that regular contact with the father would provide ongoing opportunities for the child to have contact not just with him but also with her half siblings and extended family but importantly, to retain a cultural connection with the Country N side of the family.
At paragraph 40 it is recorded:-
40.[B]’s rejection of her father although not rigid or unwavering has intensified in the past year which may be the result of a combination of factors, which include her increased awareness of the dispute between her parents, her moral development and shame and outrage at his actions, her father’s refusal to agree to the proposed adoption and name change and her developmental stage.
The considered opinion of the Family Consultant is that the child’s views in relation to adoption and name change are ambivalent and made in circumstances where she “cannot comprehend the consequences of the proposed adoption and the finality of what is at stake”. The child’s clear lack of standing can perhaps be illustrated by her initially steadfast position that she did not want any contact with her father ever, to considering that if her parents were able to relate then it would be alright to spend time with Mr Vyasa in a family social setting with Mr and Mrs Newton. The child is just beginning to develop abstract thinking and developmentally she is not able to predict and weigh up the consequences of her actions now and their impact in the future.
The fear as expressed by the Family Consultant is that if the proposed adoption did proceed the child will lose her connection with her father, paternal family and put herself at risk of negative consequences for her future identity. In short, whilst the father must be given an opportunity to promote a relationship with the child, notwithstanding the wishes and expressed position of the child, she is not sufficiently developed in her thought process to understand the full ramifications of a name change, adoption and a severing of the relationship with her father. The orders sought by the applicants in that regard are not supported by the Family Consultant.
LEAVE TO ADOPT
Section 60G provides:-
(1)Subject to sub-section (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of the State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent;
(2)If proceedings for leave under sub-section (1), the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F (4) (a), or paragraph 60HA (3) (a), and of Sections 61E and 65J.
Accordingly, that a consideration by the Court as to whether leave should be granted must be determined by the best interests of the child and as such Section 60CC of the Act applies.
Section 61E provides:-
(1)This Section applies if:-
(a)a child is adopted; and
(b)immediately before the adoption, a person had parental responsibility for the child, whether in full or limited extent and whether because of Section 61C or because of a parenting order.
(2)The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under Section 60G for the adoption proceedings to be commenced.
Accordingly, leave to adopt under Section 60G(1) of the Act and then the subsequent adoption process has the very real effect of extinguishing parental responsibility.
I must therefore decide whether in all the circumstances it is in the child’s best interests to grant the order as sought. I consider it important that notwithstanding the long absence of relationship between the father and the child, the father attends these proceedings in circumstances where I am prepared to accept that he has a genuine desire to play a role in the child’s life. I am also comforted in that view by what I consider to be a favourable impression created by the father in his dealings with the Family Consultant and in the observations of the Family Consultant of the relationship between he and the child.
The wishes and perceptions of the child is an important consideration. I am of the view that I should not place substantial weight on the perceived rejection of the father by the child but rather consider the underlying desire of the child to have a relationship with her father, his family and to retain her Country N cultural heritage as contraindicative of the child’s stated view.
When considering the provisions of Section 60CC but in particular the following:-
· the weight to be attached to the child’s views;
· the relationship that the father says he has and importantly, wants to engender if given an opportunity to do so; and
· the concern of the Family Consultant that to grant leave to adopt may well start a process which will end in a severing of the cultural ties between the child and the paternal family;
· satisfy me that it is not in the interests of the child to grant the order as sought by the applicants.
NAME CHANGE
The child wishes to identify with the surname of her mother and step-father. It is understandable but at this stage I do not consider that the circumstances of the child’s home life or school life provide any significant reason to grant the order. The mother has a child of a previous relationship in her home who bears a surname different to her current name. The Family Consultant records that there are no adverse circumstances at school and whilst if seen in isolation it is arguable that the child would want to identify with her primary caregivers, when considered against the background of the child’s age, inability to appreciate the long term consequences of such a change and the unforseen change that might come about in terms of the breakdown of her cultural connection with her Country N heritage, a change of name is not at this stage warranted.
PARENTAL RESPONSIBILITY
I consider that the applicants should have parental responsibility in respect of the day to day issues that affect the child. I am not prepared to make an order that the step-father have parental responsibility for long term issues. I consider it appropriate taking into account the almost total lack of involvement of the father with the child to date and the potential (although hopefully otherwise) that the fragile relationship going forward may founder, that the mother should have sole parental responsibility for all long term and major issues. On that basis the only order that can be made is for shared parental responsibility.
To the extent that I accept the mother will do all that is necessary to keep the father informed of developments that affect the child, I am satisfied that such an outcome is appropriate in all the circumstances and satisfies the child’s best interests.
CONCLUSION
There are competing issues that are raised by the proceedings. It is clear (and supported by the Family Consultant) that orders need to be made to confirm as far as the child is concerned that which is self-evident namely those that provide her primary care should be given appropriate recognition. That is to be achieved by an order of shared parental responsibility as to day to day issues between the applicants, but with the mother retaining sole parental responsibility for all major long term issues and decisions.
The child’s name should remain the same and there appears to be no advantage to the child and indeed significant disadvantage in terms of the potential negative impact on her cultural heritage and her desire to maintain a connection with her father’s family if an order is made in terms of Section 60G(1) of the FLA.
The child is reluctant to spend time with her father. He on the other hand appears genuine in his presentation of wanting to maintain and foster a relationship with the child and has good insight into the devastating effect that his almost total lack of involvement with the child has had on her.
I need to bring to account the age of the child, her wishes but also the very clear recommendations of the Family Consultant that if a relationship could be fostered it would be significantly in the child’s interests.
I am impressed with the presentation of the applicants that if the father shows an appropriate commitment to the relationship, they will either support it or at least adopt a neutral position. They will not actively oppose of attempt to disrupt the relationship.
Accordingly, I propose to make orders which would see a resumption of time between the child and her father in circumstances where there is no supervision. Whilst this issue was potentially controversial, the Family Consultant harboured no concerns as to safety issues and I am confident having seen the father’s presentation in Court and whilst he gave his evidence, that there are no safety issues that need to impact upon orders that I make.
There is however no point in forcing the child to see her father in circumstances where after an appropriate opportunity has been afforded to him, the child remains strongly opposed.
In that regard the orders provide for the child to spend time with her father initially in circumstances where it will coincide with time that he spends with the child’s half siblings and thereafter, the time spent will be subject to the child’s wishes, hopefully tempered by his renewed effort to impress the child that he is interested and wants to maintain a relationship and be involved in her life.
Accordingly, orders are made as set out at the commencement of these reasons.
I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 December 2013.
Associate: Mrs P M Malone
Date: 3 December 2013
Key Legal Topics
Areas of Law
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Family Law
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