PARR & ROLFE

Case •

[2012] FMCAfam 1246

•

5 November 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARR & ROLFE [2012] FMCAfam 1246

FAMILY LAW – Children – parenting – parenting orders – best interests of the children – parental responsibility – sole parental responsibility – where mother claims father uses illicit drugs – where mother claims father abuses alcohol – allegations of family violence by father – where father did not attend Court.

FAMILY LAW – Name of child – children’s surname – application to change children’s surname – best interests of the children the paramount consideration.
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65AA, 65DAA
Federal Magistrates Court Rules 2001 rr.13.03A, 13.03C
Beach & Stemmler (1979) FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Mahony & McKenzie (1993) FLC 92-408
Flanagan & Handcock (2001) FLC 93-074
Applicant: MS PARR
Respondent: MR ROLFE
File Number: SYC 3750 of 2012
Judgment of: Scarlett FM
Hearing date: 5 November 2012
Date of Last Submission: 5 November 2012
Delivered at: Sydney
Delivered on: 5 November 2012

REPRESENTATION

Solicitor for the Applicant: Mr Mokhtar
Solicitors for the Applicant: Marsdens Law Group
Counsel for the Respondent: No Appearance
Solicitors for the Respondent: No solicitor

ORDERS

  1. That the Mother have sole parental responsibility for the children [X] (dob: [omitted] 2008), [Y] (dob: [omitted] 2008) and [Z] (dob: [omitted] 2010).

  2. That the children live with the Mother.

  3. That the children spend no time with the Father, until the Father attends on a chain of custody drug urinalysis test and provides the report from the results of that test to the Mother.

  4. Provided that the result from the drug test shows that the Father has not used any illicit substances then the Father shall spend time with the children as follows:

    4.1For eight (8) weeks, and alternate Sunday from that date the father provides the result from the drug test to the Mother, from 10:00am to 12:00pm at McDonald’s Family Restaurant [address omitted], NSW.

    4.2That upon completion of Order 4.1. above, commencing on the first Sunday after the mother receives the evidence by way of urinalysis test result from the father that he does not have any drugs in his test sample, then the children shall spend time with the father as follows:

    4.2.1Each Sunday from 9:00am to 2:00pm;

    4.2.2In odd numbered years, from 4:00pm until 7:00pm Christmas Day; and

    4.2.3In even numbered years, from 1:00pm until 4:00pm Christmas Day.

    4.2.4The children’s time with the Father is suspended on Mother’s Day; the Father shall instead have the children on the Saturday prior to Mother’s Day.

    4.2.5If the Father is not spending time with the children on Father’s Day, he will spend time with them from 9:00am till 5:00pm each Father’s Day.   

  5. For the purposes of Order (4) above, the Father shall collect the children from McDonald’s Family Restaurant [address omitted] NSW at the commencement of the time the children spend time with the Father and the Mother or her nominee shall collect the children from the Father at McDonald’s Family Restaurant at the conclusion of the time the children spend with the Father.

  6. That the Father shall not be permitted to transport the children by motor vehicle until such time as he has the legally required child car restraints fitted for the children in any motor vehicle he wishes to use to transport the children.

  7. That the Mother be allowed to change the children’s surname to Parr.

  8. That the parties shall sign all documents and do all things necessary to cause the name change of the children to take effect.

  9. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act, to execute such deed, documents or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

  10. That both parties use their best endeavours to ensue that no other person denigrates the other party, or members of the other party’s family to the children or in the presence of the children.

  11. That both parties be restrained from using any violent or foul language in the presence of the children.

  12. The Father is restrained from consuming any alcohol within 21 hours of the children being in his care, or when the children are in his care.

  13. The Father is restrained from consuming illicit drugs.

  14. The Father’s time with the children is to be suspended on any occasion when the Mother believes the Father is under the influence of alcohol or illicit drugs.

IT IS NOTED that publication of this judgment under the pseudonym Parr & Rolfe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3750 of 2012

MS PARR

Applicant

And

MR ROLFE

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application by the Mother of three boys for parenting orders. She also seeks an order changing the children’s surname from that of their father to hers.

  2. The Father has not filed any Response or affidavit, nor has he attended Court on any occasion, despite having been served with sealed copies of the mother’s Application, amended Application and affidavits in support.

  3. The Respondent is in default under Rule 13.03A. He did not attend court and it is appropriate to proceed with the hearing generally under Rule 13.03C Subrule (1)(e).

Background

  1. The parties me and formed a relationship about seven or eight years ago, according to the Applicant. They broke up later that same year and resumed their relationship in either 2007 or early 2008.[1] They separated in late 2011.

    [1] Affidavit of Ms Parr 24.10.2012 at paragraph [3]

  2. There are three children of the relationship. [X] and [Y] are twins who were born [in] 2008. a third son, [Z] was born [in] 2010.

  3. The children all live with the Applicant.

  4. The Applicant commenced proceedings in this Court by filing an Application and affidavit in support on 27th June 2012. The Application was returnable on 6th August 2012. The Respondent did not attend Court on that day.

  5. The Application was adjourned to 8th October 2012. The Respondent did not attend Court. Interim Orders were made providing that:

    a)the Applicant was to have sole parental responsibility for the children;

    b)the children were to live with the Applicant;

    c)the Respondent was to undergo a chain of custody drug urinalysis test and, on producing a result showing that there were no drugs in the test sample would spend time with the children for two hours on alternate Sundays at a Play Centre in [suburb omitted]; and

    d)the Father was not transport the children in a motor vehicle until he had the appropriate child restraints fitted to the vehicle.

  6. The Applicant filed an Amended Application and an affidavit in support on 29th October 2012.

  7. The Application was heard on an undefended basis on 5th November 2012. The Respondent did not attend Court.

Evidence and Submissions

  1. The Mother moved on her Amended Application, which sought parenting orders and an order permitting her to change the children’s surname to her own. She relied on her affidavit sworn on 24th October 2012. She gave oral evidence in which she affirmed the truth of the contents of her affidavit.

  2. It is the Applicant’s case that her concern was that the Father had a drug habit which involved smoking marijuana, despite her pleas to him to desist from doing so. She also claimed that the Father had used violence against the child [X] on an occasion in 2009 by lifting him up by the collar of his pyjamas.

  3. The Applicant deposed that on 8th October 2011 the Respondent assaulted her and, as a result, she called the Police.

  4. The Applicant wishes to change the children’s surname to that of her own. She deposed that in August 2012 that the child [X] had been upset because he was teased at school by children who asked him why his surname was not the same as his mother’s. She stated that when she goes out anywhere with him he introduces himself with the name of Parr, not Rolfe.

The Relevant Law

  1. Section 60CA of the Family Law Act requires the Court, in deciding whether to make a parenting order, to regard the best interests of the children as the paramount consideration (see also s.65AA). The Court decides what is in the children’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.

  2. The primary considerations are set out in s.60CC(2). They are:

    a)the benefit to the children of having a meaningful relationship with each parent; and

    b)the need to protect the children from physical or psychological harm from abuse, neglect or family violence.  

  3. When applying the considerations set out in s.60CC(2), the Court is required by s.60CC(2A) to give greater weight to the considerations in paragraph (2)(b), the need to protect the children from harm.

  4. Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply in cases where there are reasonable grounds to believe that a parent has engaged in abuse or family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the Court that applying the presumption would not be in the children’s best interests (s.61DA(4)).

  5. Section 61DB of the Act provides that if there is an interim parenting order relating to a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order. Parental responsibility is considered afresh when making a final parenting order.

  6. If the presumption of equal shared parental responsibility does apply, the Court is required by s.65DAA(1) to consider whether it is both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent. If the Court decides that it is not, the court must then consider whether it is both in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parent (see s.65DAA(2)).

  7. All of the above matters have been considered.

  8. Where a change in the name of a child is being considered, the Court should be guided by the decisions of the Full Court of the Family Court in Chapman & Palmer[2] and of Connor J in Beach & Stemmler[3] (see also Mahony & McKenzie[4] per Warnick J and Flanagan and Handcock[5] per Kay and Holden JJ).

    [2] (1978) 4 Fam LR 462; FLC 90-510

    [3] (1979) FLC 90-692

    [4] (1993) FLC 92-408

    [5] [2000] FamCA 150; (2001) FLC 93-074

  9. The matters set out for consideration in Chapman & Palmer are:

    a)The welfare of the child is the paramount consideration;

    b)The short and long term effects of any change in the children’s surname;

    c)Any embarrassment likely to be suffered by the children if their name is different from that of the parent with whom they live;

    d)Any confusion of identity which may arise for the children if their names are changed or not changed;

    e)The effect which any change of surname may have on the relationship between the children and the parent whose name the children bore during the period of cohabitation; and

    f)The effect of frequent or random changes of name.

  10. In Beach & Stemmler, Connor J added the following considerations:

    a)The advantages both in the short term and in the long term which will accrue to children if their name remains as it is now;

    b)The contact that the father has had and is likely to have with the children in the future;

    c)The degree of identification that the children now have with their father; and

    d)The desire of the father that the original name be restored.

Conclusions

  1. The Father has not attended on any of the three occasions when the Application has been before the Court. He has not filed a Response or any affidavit. He has not participated in the proceedings in any way.

  2. Although an order has been made on an interim basis that the Mother should have sole parental responsibility for the child, this is not a matter to be taken into consideration when determining the allocation of parental responsibility on a final basis (see s.61DB).

  3. The matters that are determinative of the question of parental responsibility are:

    a)The Mother’s evidence of family violence by the Father towards the child [X] in 2009 and towards herself in late 2011;

    b)The Mother’s evidence of the Father’s drug use and, to some extent, his abuse of alcohol; and

    c)The failure by the Father to participate in the proceedings in any way.

  4. The presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them does not apply. I am also satisfied that it would not be in the children’s best interests for the presumption to apply, for the reasons set out above.

  5. Consequently, an order will be made that the Mother will have sole parental responsibility for the children.

  6. As a result, the need under s.65DAA to consider equal time or substantial and significant time does not arise.

  7. It is necessary, however, to consider the children’s best interests as the paramount consideration when making final parenting orders. The children are too young for their views to be taken into account (see s.60CC(3)(a)), but the Mother, in seeking the orders that she does, is taking the view that it is of benefit to the children to have a meaningful relationship with their father. The evidence does not show that he has made any significant effort to spend time with them and he has not sought any parenting order to be made in his favour.

  8. What is particularly important is the need to protect the children from physical and psychological harm by being exposed or subjected to family violence or abuse. The Father’s drug and alcohol use raises serious concerns. It is clearly of benefit to the children that they should not travel in a motor vehicle without proper restraints being fitted, for instance.

  9. The children are still very young. The older boys are not yet four years of age and their younger brother is only two years and four months old. The evidence would suggest that their relationship with their father is not strong and that he is not playing a major role in their lives. If he were to refrain from the use of illicit drugs and moderate his alcohol consumption the Father would be more able to participate in the children’s lives in a meaningful way.

  10. The fact that the children live with their mother and spend little time with their father supports the Mother’s argument that it is in their best interests that they should have the same surname. The Mother has given unchallenged evidence of the child [X] being distressed that his name is different from that of his mother, the parent with whom he and his brothers live.

  11. I am satisfied that the orders sought by the Mother should be made.

  12. As these orders are being made in the absence of the Father, he does have the right to apply under Rule 16.05 to vary or set aside all or any of these orders if he chooses to do so. He would need to provide a satisfactory explanation for his failure to take any steps towards participating in these proceedings.      

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  26 November 2012


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

2

Flanagan & Handcock [2000] FamCA 150