SAKALA & BAFTUS
[2019] FCCA 3596
•13 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAKALA & BAFTUS | [2019] FCCA 3596 |
| Catchwords: FAMILY LAW – Undefended hearing – order for no time with mother – change of name. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Cases cited: Chapman & Palmer (1978) FLC 90-150 Jepson & Fleming [2018] FCCA 400 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Mayes & Denning [2017] FCCA 1754 MRR & GR [2010] HCA 4 Salah & Salah [2016] FamCAFC 100 Sander & Hearn [2012] FMCAfam 812 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR SAKALA |
| Respondent: | MS BAFTUS |
| File Number: | PAC 4784 of 2018 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 25 October 2019 |
| Date of Last Submission: | 25 October 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 13 December 2019 |
REPRESENTATION
| Appearing for the Applicant: | Ms Khalil |
| Solicitors for the Applicant: | Fay Rose Legal |
| Appearing for the Respondent: | No appearance |
ORDERS
The child X (male) born … 2011 shall be henceforth known as X.
The father, Mr Sakala is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (male) born … 2011 be now registered as X.
Pursuant s.28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 2 herein.
The child Z (female) born … 2012 shall be henceforth known as Z.
The father, Mr Sakala is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as Z (female) born … 2012 be now registered as Z.
The Court directs that the applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
The father shall have sole parental responsibility for decisions concerning the long term care, welfare and development of the children X born … 2011, Z born … 2012 and Y born … 2013 (“the children”).
The children shall live with the father.
The children shall spend no time with the mother.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Sakala & Baftus is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4784 of 2018
| MR SAKALA |
Applicant
And
| MS BAFTUS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings in respect of the three children of the parties:
a)X born on … 2011;
b)Z born on … 2012; and
c)Y born on … 2013.
The final hearing proceeded on an undefended basis as against the respondent, who has not participated in the proceedings except for a telephone appearance on 31 October 2018 and thereafter appearing in Court on 15 November 2018 and consenting to interim parenting orders. The respondent has not filed any material, despite orders directing her to do so.
The children have been living with the applicant since interim orders were made by this Court on 15 November 2018. They have not spent any time with the respondent since then, notwithstanding orders which provided for such time to occur until they were suspended 20 June 2019.
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a children’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
Findings and Considerations
The parties commenced a relationship in or around 2010, and there have been various periods of separation leading up to final separation in early October 2018. During periods of time the parents lived together, they by and large shared in the parenting of their three children.
When the parties separated on the first occasion, the respondent left the family home. At the time X was two years old and Z was one. The respondent left the children in the applicant’s care, and did not contact them for a period of some three or four months. Before the parties reconciled, there was a period of time during which the applicant facilitated time between the children and the respondent on average every second day at his home.
The parties then moved to Town D, where they lived for about four or five months. There was an occasion when the respondent contacted the police during an argument. The applicant was asked by the police to leave the family home. Consequently, there were mutual apprehended domestic violence orders put in place.
After moving from the family home in Town D, the applicant contacted the respondent to arrange to spend time with the children. The children then came into his care and remained living with him. The respondent formed a new relationship and remained living in Town D while the applicant moved back to Sydney with the children. After about three or four months, the parties resumed their relationship. Their third child, Y, was born shortly thereafter.
The Brighter Futures Program run by the Benevolent Society at Suburb E became involved with the family prior to 2016.
In … 2016, the parties’ fourth child, W, was born. Sadly, that child passed away on … 2016, when he was six months old. On 1 November 2016, the respondent left the family home by telling the child X that she was going away for a while. The applicant was able to notify the respondent that W had passed away, but the respondent did not come to the funeral nor to see the other children.
Family and Community Services became involved with the family thereafter.
For a period of approximately ten months, the respondent remained away from the family home, making no contact with the applicant or the children. When she returned, the applicant facilitated time between her and the children. Ultimately, the parties resumed their relationship.
Notwithstanding the parties’ relationship having resumed, the applicant remained primarily responsible for the care of the children.
On 27 September 2018, the parties started arguing. The applicant states that the respondent punched him to the head with a closed fist four to five times. He then grabbed her by the arms to stop her from hitting him, walked her to the door backwards and told her to leave. The respondent was screaming at this point and the applicant walked away. The parties then continued arguing and eventually they both calmed down and went to bed.
The applicant deposes that this was not the first time the respondent was violent towards him. He says that she hit him during arguments on many occasions. The applicant says he never raised his hand to the respondent, and that any violence during the relationship was perpetrated by the respondent.
On 3 October 2018, the parties were inside their home watching television. The police arrived and took the respondent outside to speak to her. The police then arrested the applicant and charged him with assault occasioning actual bodily harm and common assault. The charges related to the incident which occurred between the parties on 27 September 2018. The respondent alleged that the applicant had thrown a small object at the back of her head and that he grabbed her by the arms and pulled her towards the front door. There was no mention by the respondent of the punches which the applicant deposed to in his evidence before this Court. The respondent made the complaint to the police on 3 October 2018, it appears before they attended the parties’ home that same evening.
A provisional Apprehended Domestic Violence Order (“ADVO”) was issued, which was ultimately made final on 2 November 2018. That order is for a period of two years, and is issued for the protection of the respondent and all three children. The order prohibits the applicant from assaulting or threatening the protected persons, from stalking harassing or intimidating them, and from intentionally or recklessly destroying or damaging any of their property. The final ADVO was made after a defended hearing in respect of the charges made against the applicant. The charges were dismissed.
After the applicant’s arrest on 3 October 2018, the children remained with the respondent until 7 October 2018. On that day the parties met at Suburb C McDonald’s and agreed for the two boys to spend overnight with the applicant. The respondent kept Z with her as “protection”. As he was leaving, the applicant heard the respondent swear at Z. He circled around the block and returned to McDonald’s. There was then an incident between the parties after the applicant heard the respondent swearing further at Z. The respondent lunged at the applicant, and started to strike him to the head, neck and back. He was holding Z as the respondent was doing this. The applicant observed that the respondent had bloodshot eyes and that in his opinion she smelled like marijuana.
The applicant put Z in the car, but the respondent opened the door and dragged the screaming child out. She then proceeded to drag X out of the car by his head and shoulders. The applicant left with Y, and upon returning home reported the matter to the police. The police attended the applicant’s home and arrested him for breach of provisional ADVO. Ultimately, Y was placed by the police in the respondent’s care. While at the police station, the applicant participated in an interview and was released without charge.
As noted earlier in these reasons, on 15 November 2018, the Court made orders by consent between the parties that the children live with the applicant and spend time with the respondent. The spend time with orders were suspended in June 2019, after an interim hearing with ex tempore reasons.
After the children came into the applicant’s care following the making of the interim orders, they have told the applicant about many things which occurred whilst they were in the care of the respondent. They slept on the floor on a sheet and were fed irregular meals. The children had lost weight, appeared to be malnourished and were unkempt. Z’s hair was infested with lice and she had sores all over her body, which appeared to the applicant to be insect bites. The children suffered serious neglect during the period of time they lived with the respondent.
The children told the applicant that they were exposed to violence by the respondent and her associates, including:
a)Physical altercations between the respondent and her partner, including in the words of X that the respondent’s partner “would throw mum around”;
b)The respondent’s partner throwing a bike at the child X;
c)One of the respondent’s companions pulling a knife on her and the partner, and the partner being stabbed; and
d)A neighbour threatening to stab the respondent and her partner in front of the children.
The applicant was also sent a video in January 2019 of the respondent repeatedly punching her partner in the head.
The children told the father that the respondent’s partner drank alcohol before taking them to school and that the respondent shoplifted while the children were with her. X also told the applicant that the mother would order a “stick” of drugs. The applicant has been told by a friend of the respondent’s that the respondent is on “ICE”.
Tendered in the proceedings were documents produced under subpoena by NSW Police. Part of those records in respect of 7 February 2019 read as follows:
At the above time and date police sighted the POI seated on the steps near Suburb F Police Station and Suburb F Court House. The POI was dishevelled in appearance and had two shopping bags with her full of clothing. Police asked the POI what she was doing to which she stated “waiting for my partner he’s inside the station”. Police conducted a check on the POI which reveal extensive criminal activity, including 13 charges, 10 intells (sic), and 137 events. Police asked the POI if she had anything adverse on her possession to which she stated no and consented to a search. POI and her belonging’s (sic) searched. Nil find.
On the same day, the respondent was refused entry into a service station during the night. She became enraged and started to yell profanities. She then kicked and spat on the night window, made her way to an ice freezer picked up a bag of ice and then threw it at the night window. The respondent then walked over to the fuse box, tampering with it, and caused a power outage at the service station. The respondent was arrested and charges of malicious damage were laid against her.
The applicant deposes to the respondent being violent towards him on numerous occasions during their relationship. For example, he says that while the parties were living in Town D the respondent was arrested for causing damage to the property where the applicant and the children lived. He further says that the respondent has a history of charges of assault, including assaulting police. She has also been charged and convicted of larceny.
The applicant has been the children’s primary carer, and indeed he appears to be the only parent with any parenting capacity. Whilst the children are not doing very well at school, the applicant is assisting them by implanting a reward system for completing homework. He is meeting their basic needs.
The applicant has a child of another relationship who lives with him pursuant to orders of the Federal Circuit Court of Australia, at Wollongong, made on 20 May 2019.
The applicant has commenced a new relationship. He has not yet commenced cohabitation with his new partner, although they are considering renting a home large enough to cater for both families. The applicant’s new partner has four children of her own, ranging in age from 10 to 16 years.
The Court is satisfied that the children have been exposed to neglect and family violence while living with the respondent. Having regard to the findings of fact noted above, the Court finds that the children would be placed at an unacceptable risk of harm if they were to spend time with the respondent.
While an order for supervision might alleviate the risk to the children, given that the respondent has previously not complied with orders to spend time with the children and that she has failed to participate in these proceedings, it is not in the children’s best interest to put them in a position where they might be let down by her. On balance, it is more likely than not that the respondent has a drug dependency problem and that in order for the children to be safe, those issues must first satisfactorily be addressed.
The views and wishes of the children are not known, except in so far as they are deposed to in the applicant’s material. In any event, given the options available to the Court in terms of where these children live and who will look after them, there is little that can be done for these children even if they wanted to spend time with the respondent. It is not safe for them to do so at present.
The Court accepts that the applicant will in future facilitate a relationship between the children and the respondent if it is safe for them to do so. The applicant says that he would consider such time occurring if the respondent was able to show that she was drug free, stable and able to meet the needs of the children.
While an order for “no time” is usually an order of last resort, in this instance the Court is satisfied that without such an order, there might be an implicit invitation by the respondent to approach the applicant and seek to spend time with the children without showing that she is drug free, stable and able to meet the needs of the children. The necessary safety guard for the applicant and the children in the circumstances as they exist at present is for there to be an order for no time with the respondent.
Parental Responsibility
The presumption of equal shared parental responsibility has been rebutted given the findings of family violence and neglect. The respondent has not participated in any decisions regarding the children’s welfare for a period close to 12 months.
An order for the applicant to have sole parental responsibility is appropriate and in the children’s best interest.
Children’s Names
The principles regarding a change of name for children are articulated in the Full Court decision of Chapman & Palmer[7]. In a helpful summary, which the Court respectfully adopts here[8], Judge Turner in Sander & Hearn[9] held that consideration must be given to:
a)The welfare of the child being the paramount consideration;
b)Any short or long term effect of any change in the child’s name;
c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
f)The effect of frequent or random changes of name.
[7] (1978) FLC 90-150
[8] And which has previously been adopted; see Mayes & Denning [2017] FCCA 1754; Jepson & Fleming [2018] FCCA 400
[9] [2012] FMCAfam 812
The children, notwithstanding, that they have the same parents, do not have the same surname. X and Z have expressed to the applicant strong wishes to have his surname and the same surname as the other siblings living in the applicant’s household.
X has been embarrassed by the spelling of his first name and the ordinary meaning of the word “…”. This child has the surname A, which is a name unconnected with either of his parents. It is the surname of a man the respondent was in a brief relationship with during a period of separation from the applicant, but whilst she was pregnant with the child X.
The child Z is enrolled at school with the surname Sakala, albeit this is not the name noted on her birth certificate, that surname being Baftus, which is the respondent’s surname.
The children X and Z are clearly distressed at having surnames which are different to each other, their brother Y and their half-sister G, and which are different to the applicant, their primary carer and father. Z is already known by her father’s surname in her school. Despite attempts by the applicant that the child X is also known by the surname Sakala at school, the child remains known by the surname noted on his birth certificate which has no familial connection.
Having regard to the relevant principles, the Court is satisfied that it is in the children’s best interest to have their names changed as sought by the applicant.
Travel
The applicant seeks orders permitting him to travel overseas with the children without having to obtain consent of the respondent for the issue of a passport or consent for travel. There is no evidence in support of such an order and as such, the order will not be made.
For all of these reasons, orders as set out at the forefront of these reasons will be made.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 13 December 2019
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