Sotto and Hensley
[2019] FCCA 3358
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOTTO & HENSLEY | [2019] FCCA 3358 |
| Catchwords: FAMILY LAW – Ex tempore rulings – court applying s.45A Family Law Act to ensure summary disposition – matters in dispute dealt with by consent, on submissions only. |
| Legislation: Family Law Act 1975 (Cth), ss.45A(7), 45A |
| Cases cited: Hanes & Walsingham [2011] FMCAfam 561 SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 |
| Applicant: | MR SOTTO |
| Respondent: | MS HENSLEY |
| File Number: | MLC 4210 of 2007 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 23 October 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dunlop |
| Solicitors for the Applicant: | Dandenong Family Lawyers |
| The Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Mr Lynch |
| Solicitors for the Applicant: | Peter Lynch Lawyer |
ORDERS
Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, final orders are made in terms of the Independent Children’s Lawyer’s minute as amended in accordance with the attached Minutes of proposed orders placed on the Court file.
The order appointing the Independent Children’s Lawyer dated
7 November 2018 be discharged.
THE COURT DECLARES THAT:
It is in the best interests of the child X Sotto born … 2006 to be known as X Hensley.
THE COURT ORDERS THAT:
The child previously known as X Sotto born … 2006 now be known as X Hensley.
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 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
The Mother is authorised and permitted to apply for and receive an Australian passport for the child X Hensley, formally known as X Sotto born … 2006 without first obtaining the written consent of the other parent.
The child X Hensley, formally known as X Sotto born … 2006 be permitted to depart the Commonwealth of Australia.
The Airport Watch List order be discharged and the Australian Federal Police be requested to remove the name of the child X Hensley, formally known as X Sotto born … 2006 from the Airport Watch List currently in force at all points of international arrival and departure in the Commonwealth of Australia.
THE COURT DIRECTS THAT:
The solicitors for the Independent Children’s Lawyer file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to … within seven (7) days.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
ENGROSSED MINUTES
IT IS ORDERED:
THAT the mother have sole parental responsibility for the child X born … 2006 (“the child”).
THAT the mother will notify the father in writing of any parental responsibility order she makes within a reasonable time.
THAT the child X live with the mother.
THAT in the alternative to Orders 2 and 3, the child spend time and communicate with the father only if she expresses a wish to do so and she instigates the communication and time with the father.
THAT the mother will notify the father of any major illness or hospitalization affecting the child within a reasonable time and that the father be at liberty to contact the treating professional.
THAT the father be at liberty to send cards, gifts and presents at significant occasions to the child at the mother's address and the mother will provide these items to the child.
THAT the mother and father be restrained from:-
(a)Issuing further proceedings without leave of the court.
(b)denigrating the other parent to or in the presence of the child.
THAT Orders 14 and 15 of the Orders of 2010 remain in full force and effect.
THAT any Watch List Order regarding the child be discharged.
(9A)THAT the mother is to apply for a Passport Order without the consent of the father.
THAT all previous Orders be otherwise discharged.
THAT the appointment of the Independent Children's Lawyer be discharged within (7) days of him meeting X and explaining these Orders to her.
THAT the mother and father keep each other advised of their current residential address and email.
THAT the child's surname be changed to HENSLEY.
THAT the mother will keep the father advised of the child's school by progress reports.
THAT the father be restrained from attending the child's school.
THAT pursuant to Section 65DA(2) and S62(B) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sotto & Hensley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 4210 of 2007
| MR SOTTO |
Applicant
And
| MS HENSLEY |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the applicant father seeks an adjournment of the trial listed today and that the matter be the subject of a family report. It is common cause that the last meaningful time spent by this child with him was in January of last year. It is foreshadowed that, should the family report support the proposition that the mother has alienated the child, there might be an application for change of residence which would also involve a change of country, bearing in mind that the father lives in the United States.
As recently as his amended application filed on 3 October 2019, the father was not actually seeking to compel the child to spend time with him. The change of position appears to be, as Mr Lynch suggests, an over-response, perhaps, to the nature of the material filed by the mother. This child has been the subject of litigation since 2007 and there have obviously been a number of reports. Given the position she expressed to Ms A in October of last year, which she has repeated in even stronger terms to Mr Lynch as recently as 11 October 2019, and in a handwritten letter to the Court annexed to the Independent Children’s Lawyer’s Case Outline, it is immediately apparent that it is not in this child’s best interest to adjourn.
Her opinion has been constant for a year. A family report in about July next year, when she is 14 rather than 13, is most unlikely to present any different pattern and, indeed, even if I accept the father’s submissions – which I indicate I might well be prepared to do, as to the way in which the mother would respond – it will only go to reinforce an outcome that one would foresee now as being inevitable. Accordingly, I do not propose to adjourn the matter. Nor do I propose to order a family report.
So far as I am concerned, in my opinion, the circumstances of this case engage the terms of s 45A(7), which permit the Court on its own initiative to take action under s 45A should it be thought appropriate to do so. What I will do, however is stand the matter down until 2.15 pm, at which time I want to be told what issues are still in issue between the parties, and I propose to consider the matter in the light of the terms of s 45A.
RECORDED: NOT TRANSCRIBED
In this matter we are concerned with the best interests of X, born on … 2006, and therefore now 13 years old. It is an unusual matter insofar as the Court has, of its own motion, elected to consider this matter in the context of s 45A of the Family Law Act 1975 (Cth). Relevantly for these purposes, that reads:
“The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.”
What has provoked the Court to take this unusual step are the views of the child. On 31 October 2018 the child was interviewed by a counsellor, Ms A. She was then, of course, only 12. At that stage, of course, she had not seen the father since January 2018 having refused to spend time in July 2018 and, of course, now it is a period of some two years that the child has not seen the father. But what the child had to say to Ms A is in these terms:
·X was an articulate, forthright and mature young person who appeared thoughtful and considered. It is recommended considerable weight be given to her views and wishes.
·X provided two handwritten notes she prepared in January 2018 and more recently, outlining her concerns/fears regarding her father and spend time. X said her father was rude, he kicked her and she kicked him, that he was contradictory and mean to her. She said he would often threaten to take her from her mother’s care and take her overseas. X’s said that her father was not a good father, she did not like him, and she did not want anything to do with him. X said that she had tried to like her father and she had wanted to like him, but it was clear she could not and because of that she just wanted “this [spend time/Court to end”.
·X appeared to understand the significance of her preference to end all spend time and that such decisions should not be made on a whim. X appeared to have felt controlled by her father and disrespected. She suggested that he would say they have a great relationship, that Ms Hensley had influenced her to refuse time. X added that her father would most likely seek time against her wishes as for him, “this is about winning”.
·X explained that her parents’ conflict was independent of her own feelings towards her father. She said if they were best friends, she would still refuse time. X said her father tried to control her, threatening to have her mother reprimanded or use the Court should she (X) not behave according to his wishes. That he held her belonging to “ransom”.
·According to X it felt ‘great’ to stand up to her father in January 2018. She has said she is “Sick and tired… I’ve made up my mind… I’m not going”.
·X wanted to change her surname from Sotto to Hensley.
·X was adamant that she would attend the registry on 7th November 2018 to learn the outcome of the hearing. There was no information to indicate X had been actively influenced by her mother to refuse time or become involved in the proceedings.
The Independent Children’s Lawyer filed an Outline of Case on
21 October 2019. In that document there is the following extract, under the heading ‘CHILD X’s VIEWS’:
“The Independent Children’s Lawyer spoke to the child, X on Friday, 11 October 2019. The Independent Children’s Lawyer explained his role to X, which role X seemed familiar with. Secondly, the Independent Children’s Lawyer asked X for her views on future dealings with her father. X was adamant that she wanted no contact of any kind with her father or any contact by him with her doctors and school. She also wanted a name change from “Sotto” to “Hensley”. I put to X the father’s proposed orders contained in his Amended Application. X said she did not want any of them. During our meeting, X gave me a hand-written document which sets out her views in this matter. Annexed hereto and marked “A” is a copy of this document.”
Annexure A reads as follows:
“My worries, what I want and what I do not want:
· Concerns about school
· Correspondence to stop
· Feeling safe in my own home
· Forced parenting time to stop
· Name change to happen this year
· Privacy about me
· Restraining order on him to stay away
· Visits to never occur again
My biggest worry is that he will not listen to me and not stay away from me and will continue to hang on just to hurt mum, I am worried he will hurt my family he just wants to boss mum and I around.
My dream would be that I can walk up my own street and not worry about him driving up or worry about him sending someone to get me. I just want to have no fears and no worries and to finally be happy.
1.I do not want any more visits ever.
2.I do not want any more emails, letters, post cards, telegrams, any cards, any mail at all, presents, gifts, flowers, or phone calls on mums phone, and no photos of him or anything from him ever again, or his family.
3.I will not send him one more photos of me ever again.
4.I want to feel safe at my own house.
5.I want the communications book to show the things that he denies have actually happened.
6.I want him to stay away from me, mum our house or wherever we are, at school or even the shops.
7.I want him to stay out of Suburb B.
8.I do not want him to know or have any information about where
I go to school or have information about the school given to him by the court even though I have said no.9.I do not want him knowing to things I do.
10.I don’t want him to come to my school or have any conversations with my teachers or have my school reports or have my school photo.
11.I do not want him to have any photos of me.
12.I just want him out of my life.
13.I just want him to go away.
14.I will choose whether or not I will have his phone number and/or email address. Nobody else will choose for me - Mum has his details on the fridge and I put them in the bin but she put them back on the fridge - I put a magnet over them so I don’t see them.
15.I want him to stay well away from me.
16.I do not want to be in court and have to do any of these court things just so he will go away.
17.No more going back to court, I do not want any more lawyers or any more court or any more of the court forcing him on me.
18.I do not want to have to worry about who might be waiting at the front of my house.
19.I do not want him to be near our house – stay away.
20.I do not want him to know my personal business, my private medical things, they are about me and not for other people to read about.
21.I do not want him to threaten mum anymore.
22.Most importantly, I want my name changed, I do not want to wait until I am 18 to legally change it, I want be ‘X Hensley now, and I want my name changed this year, I do not want to be a Sotto. I have never wanted to be a Sotto, I hate what that name means.”
I should say that that document is concerning and distressing. It is unpleasant even to have to read it out. It is quite clear this child is enmeshed with the mother, from that document if from no others. The father has indicated that he sought to cross-examine the mother to establish alienation. I have not permitted this because it is not necessary. At the very least it is clear from the mother’s affidavits that she detests the father and is opposed to time. Whether the alienation that has plainly occurred has been deliberate, or just simply functional, if I can so describe it, really does not matter for these purposes. There is no utility to having her cross-examined to establish that, because it takes us no further forward.
Mr Lynch is right to describe the child’s views as extremely – I forget the exact word he used, but something to the effect it is encaptured by the words dramatic and concerning. But the fact is the child is 13 and she is described by Ms A, who is an experienced counsellor, as mature for her age. If we had moved to the family report the father sought she would be 14 by the time we get in. By the time the Court then determined the matter she would be going on 15. The undesirability of that pathway is immediately apparent. In my view, it is quite clear that there is no real reasonable prospect of the father achieving time in the face of the child’s views as they are expressed. And even assuming there were to be alienation, the child’s views are adamantine, and, as I say, the child is mature for her age. The desire to cross-examine the mother is, perhaps, understandable at one level, but I think it equally shows a certain lack of insight.
That brings us to the Independent Children’s Lawyer’s minute. Order 1 is agreed. Order 2 is agreed, with the addition of the words, which
I think is implicit anyway, of “in writing”, so that order 2 will now read,
The mother will notify the father in writing of any parental responsibility orders that she makes within a reasonable time.
Order three is agreed, and Order 6, while not embraced with any enthusiasm by the father, is the least worst outcome from his perspective, and I accept Mr Lynch’s submissions that it is an appropriate order in the circumstances.
Order 7 is agreed, with the addition of the words “or hospitalisation”, because I understand that to be agreed. And I also understood it, notwithstanding X’s position, that it was agreed between the parents and the Independent Children’s Lawyer that the father be at liberty to contact the treating professions in the event of major illness or hospitalisation. The order will therefore read that,
The mother will notify the father of any major illness or hospitalisation effecting the child within a reasonable time, and the father be at liberty to contact the treating professionals.
Order 8 is agreed. Order 9 is, in part, agreed: 9B, the non-denigration is agreed; 9A is not. The first thing to be noted is whether or not the Court has power to make the order restraining the parties from issuing further proceedings without leave of the Court in circumstances where the Court is not being ask to, nor is, making a vexatious litigant order. I considered this matter in an earlier case, which was published of the pseudonym of Hanes & Walsingham [2011] FMCAfam 561 at [85]-[96]. And it should be noted that my conclusion was that there is power to make such an order.
I referred to the judgment of Jacobson J in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [21]-[29] which came to that conclusion. His Honour Jacobson’s remarks were adopted by Cameron J in SZPGS v Minister for Immigration and Citizenship [2008] FMCA 360 at [18]. Those two cases were migration cases, but I found they were capable of proper application in a parenting case where the best interests of the child made it appropriate. This case is all about the best interests of the child, and it is clear from what she has told Ms A, and in her correspondence to the Court, that she has simply had enough of Court proceedings.
In the circumstances, and, given what the child has said and her age, it is plainly in her best interests to make the proposed Order 9A. Order 10 is not the subject of dispute. Order 11 is the subject of some measure of dispute, albeit, perhaps, faintly pressed. In my view, the notion that the father is going to kidnap the child by main force is ridiculous. The child is already of a size where to do so would represent significant, if not insuperable, physical difficulties. In my view, it is entirely preferable that a child who is of this age should have the capacity to travel overseas if she wants to do so, and I am going to make the Order 11 proposed by the Independent Children’s Lawyer.
And I will also make the usual Passport Orders to enable the mother to apply for a passport without the consent of the father being obtained. [Just bear with me. I will make a notation: Order 11A, usual passport]. Orders 12, 13 and 14 are not the subject of dispute. That brings us to the question of a change of name. The father’s submissions can be paraphrased as follows: he regards a change of name as the last nail in the coffin; it would be a drastic alteration which would eradicate him finally, and his heritage, which is, at least in part, American, from his child’s life.
It was submitted that I should not give weight to the child’s views, and counsel pointed to the concern that arises in circumstances where the net effect of this Order and, indeed, the other Orders being made, would be to deprive the child of any meaningful contact with her father and his heritage. There is force in all of those submissions, and
I accept the force of those submissions. The mother’s position is that the name should, perhaps, be hyphenated, but the child’s views, disturbingly expressed as they are, could not be clearer.
I appreciate the way the father would very naturally see it, and, from his perspective, all the things he says make eminent sense, but we have to confront the child’s age and the significant ways in which her views are expressed. The authorities make it clear that the question of
a change of name is all about the child’s best interests first and last. She has obviously aligned herself with her mother and her mother’s family’s name. For reasons not, to my mind, entirely clear, she has a surprising detestation and disturbing detestation of her current surname, but, in my view, her views should prevail and her name should be changed to Hensley, for all the difficulties that might reasonably be thought to potentially engender.
With the question of the orders about school, once again, the father still seeks to be involved and the child is implacably opposed. In the circumstances, the father’s request to have a once a year face-to-face meeting with the teachers cannot be supported. The child has foreseen it, and is completely opposed, and would almost undoubtedly discover it, in any event. The orders I propose to make are orders A and B, but order A will read,
The mother will keep the father informed of the child’s school by progress reports.
Which is, I appreciate, not entirely satisfactory, but the best we can do, bearing in mind the child’s views. And I am going to order that the father be restrained from attending the school.
I do not propose, in these regrettable circumstances – and, I repeat, they are regrettable – to make orders that would have the effect of identifying the school to the father, and so the proposed orders here will not be made. These reasons will be transcribed, edited from transcript and forwarded to the parties as soon as practicable.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 20 November 2019
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