FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Roberts & Short [2024] FedCFamC2F 1557
File number(s): DGC 3250 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Final orders – father has a long criminal history of violent offences and breaches of court orders – multiple community corrections orders with treatment component and programs for anger management – multiple breaches of intervention orders – breaches of suspended sentences – father incarcerated for much of children lives – alcohol abuse – drug abuse – father found in 2018 judgment to be unacceptable risk to other children – father not spent time with the two children in this matter for three years – father diagnosed with attention deficit hyperactivity disorder – no substantial evidence of change – no insight into his violence or offending – ongoing risk – risk not ameliorated by supervised time – no time with father – change of surname. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D, 65DAAA, 95
Cases cited: Carlson & Fluvium [2012] FamCA 32
Deiter v Deiter [2011] FamCAFC 82
Fitzwater v Fitzwater [2019] FamCAFC 251
Grella & Jamieson [2017] FamCAFC 21
Isles & Nelissen [2022] FedCFamC1A 97
Oberlin & Infeld [2021] FamCAFC 66
Rice v Asplund (1979) FLC 90 725
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Waltz & Busto [2024] FedCFamC1A 147
Wellington & Frost [2018] FamCA 216
Division: Division 2 Family Law Number of paragraphs: 99 Date of last submission/s: 6 September 2024 Date of hearing: 28 – 30 August & 6 September 2024 Place: Dandenong Counsel for the Applicant: Mr Rattray Solicitor for the Applicant: Kaj Sharma Legal Counsel for the Respondent: Ms Swart Solicitor for the Respondent: Hartleys Lawyers Solicitor for the Independent Children's Lawyer: Mr Lynch of Peter Lynch Lawyer ORDERS
DGC 3250 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ROBERTS
Applicant
AND: MR SHORT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The mother have sole parental responsibility for decision making for all major long-term issues in relation to the children X born in 2017 and Y born in 2018 referred to herein as (“the children”).
2.The mother keep the father advised by email of any serious illness or injury sustained by the children.
3.The mother be permitted to change the children’s last names from SHORT to ROBERTS and dispense with the father’s signature in applying to change the children’s names.
4.The children previously known as X SHORT and Y SHORT now be known as X ROBERTS and Y ROBERTS forthwith.
5.The mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the children’s name in accordance with Orders 3 and 4…
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- Case
- [2024] FedCFamC2F 1557
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CaseChat Overview and Summary
The central legal issue before the court was whether it was in the best interests of the children to have any contact with their father, considering his history of violent behaviour, substance abuse, and lack of insight into his actions. The court considered whether there was a significant risk to the children's safety and well-being if they were to have any contact with their father. Additionally, the court had to decide on the appropriate arrangements for the children's names and the mother's right to change them without the father's consent.
In delivering the judgment, Judge Jenkins found that Mr Short's past conduct and current circumstances presented a significant risk to the children. Despite some treatment and programs, there was no substantial evidence of change in Mr Short's behaviour or insight into his violent tendencies. The court concluded that any contact with the father posed an unacceptable risk to the children's safety and well-being. Given the father's lengthy incarcerations and the lack of any meaningful relationship with the children, the court determined that it was in the children's best interests to have no contact with their father. The court also found that it was appropriate for the mother to change the children's surnames to Roberts and to proceed with the name change without the father's consent.
In summary, the court granted sole parental responsibility to Ms Roberts, ordered that the father have no contact with the children, and allowed the children's surnames to be changed to Roberts. The court's decision was based on the significant risk posed by the father's past behaviour and the lack of any substantial change in his circumstances.
Orders
Orders of the court
DGC 3250 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ROBERTS
Applicant
AND:
MR SHORT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS ON A FINAL BASIS THAT:
1. The mother have sole parental responsibility for decision making for all major long-term issues in relation to the children X born in 2017 and Y born in 2018 referred to herein as (“the children”).
2. The mother keep the father advised by email of any serious illness or injury sustained by the children.
3. The mother be permitted to change the children’s last names from SHORT to ROBERTS and dispense with the father’s signature in applying to change the children’s names.
4. The children previously known as X SHORT and Y SHORT now be known as X ROBERTS and Y ROBERTS forthwith.
5. The mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the children’s name in accordance with Orders 3 and 4 and do all such acts and things and sign all such documents as may be required to give effect to that registration.
6. The mother serve a sealed copy of this order upon the Registrar of Births, Deaths and Marriages in and for the State of Victoria who is requested to give effect to any such application.
7. The children live with the mother.
8. The father spend no time and have no communication with the children.
9. All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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