SEWARD & MOORES

[2020] FCCA 2089

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEWARD & MOORES [2020] FCCA 2089

Catchwords:
FAMILY LAW – Parenting – Application by father to spend time and communicate with 8 year old son – mother taking Rice v Asplund objection – child not having seen father for 5 years – child reacting with extreme and disturbing behaviours at any prospect of contact with the father – child also having extreme reaction to being called by the father’s surname – clearly in best interests of the child based on medical and school reports to summarily dismiss father’s application and to change his surname to that of the mother.

Legislation:

Family Law Act 1975 (Cth), s 45A.

Cases cited:

Rice & Asplund (1979) FLC 90-725.

SPS & PLS (2008) 39 Fam LR 295.

Applicant: MR SEWARD

Respondent: MS MOORES

File Number: ADC 830 of 2020

Judgment of: Judge Burchardt

Hearing date: 13 July 2020

Date of Last Submission: 13 July 2020

Delivered at: Dandenong

Delivered on: 11 August 2020

REPRESENTATION

Advocate for the Applicant: Mr Craney

Solicitors for the Applicant: Doyle Kingston & Swift

Advocate for the Respondent: Ms Baraz

Solicitors for the Respondent: Pentana Stanton Lawyers

THE COURT DECLARES THAT:

1. It is in the best interests of the child X SEWARD born … 2012 to be known as X MOORES.

THE COURT ORDERS THAT:

1. The child previously known as X SEWARD born … 2012 now be known as X MOORES.

2. The Respondent apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with Order 1, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

3. The initiating application of the father filed 26 February 2020 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

ADC 830 of 2020

MR SEWARD

Applicant

And

MS MOORES

Respondent

REASONS FOR JUDGMENT

1. The applicant father seeks orders to commence a process of reintroducing himself to his son, X, born on … 2012.  The mother seeks the dismissal of his application pursuant to the rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) and also seeks that X’s surname be changed to her name, Moores, rather than Seward.

2. The background to this matter can be summarised shortly.  The father was born on … 1986, and the mother was born on … 1987.  They met and entered into a relationship in 2010 and separated shortly after X was born in 2012.  By 30 August 2012, the father had taken out an Intervention Order against the mother.

3. Following DNA testing which established that the father was indeed the father of X, orders were made for supervised time on 14 June 2014 after the father’s application filed in this Court on 8 April 2014.

4. There is some slight dispute as to exactly how that went, but on any view of the matter, the father had given up because of the long travel involved and possibly depression on his part also by 2015.  X has not seen his father since 2015. 

5. As a result of the father’s failure to participate, his application was dismissed by the Court on 15 February 2016 with time to be as agreed.  No such time has taken place, and, in my view, it does not now matter whether this occurred because of the actions of one or both parents.  It is a fact on the ground in any event.

6. The mother has made an application to SACAT (South Australian Civil and Administrative Tribunal) to change the child’s name, but that application was dismissed on … 2020.

7. The mother’s response has sought that the father’s application be dismissed pursuant to the rule in Rice & Asplund, and the application for a change of name is, in fact, appended only to her most recent affidavit, filed on 8 July 2020.  No objection, however, was made to that matter being canvassed in this proceeding.

8. It is apparent from the materials filed by the mother from time to time that X is aware of his father.  At paragraph 21 of her affidavit sworn 7 July 2020, the mother deposed:

   Following the Father Initiating the recent Court Proceedings, X has overheard me having a conversation with a family member in relation to the Father seeking contact with the child, and since that date X’s health has significantly deteriorated, he became more aggressive with self and others around him, his sleep at night became very disruptive.  He is generally in distress.

9. The mother appends as “XX-1” a psychological report from a clinical psychologist.  All the correspondence annexed to the affidavit was redacted, but I have seen the originals, and there is no question that this person is indeed a clinical psychologist and has been working with X since 18 March 2020.  Relevantly for these purposes, the report reads:

   At the start of treatment, his mother reported that X overheard an adult conversation regarding his biological father attempting to gain access to X via the courts.  My understanding is that X has not had contact with his biological father since he was 2 years of age.  X refers to his biological father as ‘the man’ and refuses to identify with him being his father at all.  As other professionals treating X have reported, he tends to react with anger when he is called by his surname Seward. 

   Believing he was going to be forced to see someone he did not want to see, has caused significant distress for X.  His behaviours became more disorganised, chaotic and aggressive.  He began sleepwalking and having night terrors.  Initially, X avoided talking about ‘the man’ in therapy because it caused him severe distress.  However, as therapy progressed, X became extremely fearful during brief discussions of his biological father.  He stated that ‘the man’ would be able to take him or could see everything he was doing.  His affect was depressed, and he would often engage in self harm (scratching/biting/punching himself) and spoke of ‘killing himself’ if he was forced to see ‘the man’.  He feared being separated from his mother and half-sister.  All these behaviours are consistent with a child who has experienced a traumatic event, although the nature of that event is difficult to ascertain.  They do, however, even his night terrors, seem to be only in relation to his biological father.  It is for this reason that I believe that forcing X to have contact with his biological father will be detrimental to his mental health, interpersonal relationships and education.

10. On 30 June 2020, a general paediatric registrar at the Hospital A noted issues including ADHD and oppositional defiance disorder, and I note that X is on LA 20 mg plus Ritalin, SA 5 mg mane (8 am) and midday, which suggests a definite need for pharmacologically-based assistance.

11. The letter is designed to outline concerns relating to X, who had been a patient since 2016.  The difficulties referred to in the letter were diagnosed in late 2018.  The letter, relevantly, continues:

    Over the last several weeks, X’s behaviour has significantly deteriorated.  Communication between myself and X’s primary school (see letter attached) have been ongoing since December 2018 and continue on a fortnightly basis.  Our main concern is X indicating self harm/threats to kill himself over possible visits with “the man” (biological father).  X overheard a conversation in relation to this matter.  Since this conversation, X’s behaviour has significantly deteriorated.  Prior to this situation, X was coming along well at school. With the main issue being X’s aggression to him being called X Seward when he requests to be called X Moores.  I believe there is still a matter pending before SACAT in relation to the name change.

    X’s thoughts of seeing his biological father is having a significant detrimental effect on X. Threats to kill himself, self harming, harming others.  X is in fortnightly communication with a Psychologist (name redacted) whom has also witnessed this concerning behaviour when directly questioned about his biological father.

12. The report writer goes on to say:

    …It is my opinion that visitations or communication with X’s biological father WOULD NOT be in the best interests of X.  I believe it would have a significant detrimental effect on X’s mental health and education.  I also believe that X, if pushed into a situation he is not comfortable with, would follow through with self harm. 

13. The letter goes on to oppose any kind of visitation with the father.

14. An undated letter To Whom It May Concern from the senior school psychologist and counsellor where X attends is also appended.  That person has been treating X since 2017.  The report notes the possibility of time with the father and goes on to say:

    X’s behaviour and responses are quite disturbing when questioned about his biological father and his current surname, Seward.  X gets extremely angry and starts to self harm himself, screaming, swearing, biting himself, head butting/banging his head and trying to flip the table over.  X has also stated on numerous occasions throughout the appointment today that he would kill himself if he has to see “the man”.

15. The letter goes on to oppose any spend time with the father and recommends a change of name. 

16. Also appended to the affidavit is a letter from a general paediatric registrar, dated 10 February 2020.  I note, relevantly, that the matters recorded are, of course, all from the mother’s version of events, but the letter does state:

    Ms Moores has reported to us on a number of occasions that X has displayed challenging behaviour in association with his name.  She first noticed that in mid 2018, if a teacher referred to X with the surname Seward, he would pull clothes over his face, become quiet and withdrawn.  If he saw his name written on book labels, for example, he would scratch that with scissors.  Over time, the reaction has escalated.  Most recently, at the end of the 2019 school year, multiple children in his class called him by his full name, and in reaction X shouted, threw tables, became physically aggressive towards others and engaged in self-harm, including head banging, punching and biting himself.

17. The letter went on to recommend a change in name.  A further letter from the general paediatric registrar, dated 22 April 2020, at Hospital A repeats concerns about X’s behaviour, most particularly since the possible issue of time with his father had come up. 

18. Finally, there is a letter from the assistant principal of X’s school, dated 26 June 2020, including a major incident on 23 June 2020, in which X seriously misbehaved at school.

19. In submissions before the Court, counsel for the father referred to the history of the matter.  There had been orders made at the Court at Dandenong on an undefended basis when the father was worn out.  The mother had moved to Victoria to an unknown address, and the husband was working in Town B.  It was a 9-10-hour drive to Victoria for 11 months, often fruitlessly.  It all petered out by the end of 2015, and the father gave up by no later than November 2015.

20. Earlier this year, the mother had applied to SACAT to change the name.  There were asserted to be problems in the name, and the father was not able to challenge the mother’s case.  Counsel referred to the Rice & Asplund doctrine.  He said that the reason for the first decision was the fact that the father was unable to litigate.  The child was now evidently suffering extreme behavioural problems.  The father still lives in Town B and works as a fly-in, fly-out worker.  He wants to be involved in the child’s life.

21. Counsel for the mother referred to the final orders made in 2016.  She seeks the summary dismissal pursuant to Rice & Asplund of the application.  It is submitted that there has been no substantial change in the circumstances.  There has been no time for five years.  There would likely be lengthy proceedings.  The child’s diagnosis was in November 2018.  There was no evidence about the father’s mental health, and there had been no time for five years.

22. In my view, this case falls, more accurately, to be considered under section 45A of the Family Law Act1975 (Cth) than the Rice & Asplund doctrine.  In one sense, there has been a material change of circumstances.  In 2016, the husband failed to prosecute his case because he was worn out and unable for various reasons to continue.  He is apparently now able to do so.  Plainly, he is in a position to participate in the proceeding in such a fashion that the Court can indeed, on this occasion, work out where the truth of any disputed facts lie.

23. Nonetheless, whether considered under Rice & Asplund or under section 45A, the answer must, in my view, regrettably, be the same.

24. Rice & Asplund is, as the decision of Warnick J in SPS & PLS (2008) 39 Fam LR 295 makes clear, first and last, a best interests question. In the particular context of this case, the possible summary dismissal of the application is also a best interests question.

25. In this case, the child has not seen the father for the better part of five years, and time ceased when he was only three years old.  It appears that he had some memory of his father but for whatever reason is not a happy one. 

26. The medical evidence and the evidence from X’s school is, in my view, overwhelming.  X is self-harming at any thought of seeing his father.  Whatever the reason for this may be, and I note that it is surmised that there has been some undiagnosed trauma in the past, the reality is that the present situation could not be clearer.  The evidence from the treating medical practitioners shows that X is a child with significant behavioural and other difficulties.  He can only be managed with a significant drug regime.  In circumstances where his abreaction to having anything to do with his father and his father’s name is so extreme, it cannot on any conceivable view of the matter be in his interests to allow this matter to proceed any further.  Indeed, the sooner this application is dismissed, the better.

27. This conclusion is, of course, one I have expressed in relatively brief reasons, but the materials filed by the mother do not admit of challenge and simply lead inexorably to the conclusion I have reached.

28. In a sense and for the same reasons, my conclusion about the change-of-name application is similarly briefly put.  X, for whatever reason, loathes his father’s name.  Other little children are, most regrettably, teasing him about it.  His reaction to this teasing is consistent with his generally uncontrolled and extreme behaviour.  It indeed leads to harm both to himself and others.  It is immediately apparent that it is in his best interests that the name be changed. 

29. Accordingly and for these reasons, the father’s application will be dismissed, and the mother’s application for a change of name will be granted.

30. It should be noted that I have been provided by the solicitors for the applicant father with a copy of the SACAT (South Australian Civil and Administrative Tribunal) decision made on … 2020. In that decision the then extant application for a change of name by the mother was dismissed. There are a number of points to be made. First, one of the arguments put by the father in that case namely that “the child needs to have ongoing contact involvement with both parents, and the Father intends to enforce FCC proceedings to enforce his contact rights” will no longer apply by virtue of the decision I am making.

31. The material in that case all pre-dated 2020, and does not include the matters to which I have referred in this judgment.

32. Contrary to the observation of the Senior Member in that case, there is direct evidence before me of how the child reacts to the use of his surname.

33. Thus it is clear that in a number of significant and material respects the evidence before me is not in any way identical with the evidence before the Senior Member.

34. Before me, the evidence as to X’s response to his surname is compelling and deeply disturbing. It requires action immediately

35. For these reasons, while obviously I have proper regard to the decision in SACAT, I have considered the matter as believe I am obliged to on the materials before me and I have come to the conclusion I have expressed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 11 August 2020