SPENCER & GREENTREE
[2018] FamCA 290
•4 May 2018
FAMILY COURT OF AUSTRALIA
| SPENCER & GREENTREE | [2018] FamCA 290 |
| FAMILY LAW – CHILDREN – Best Interests – Where the father has disengaged from the proceedings – Where the mother seeks orders that the children spend no time with the father – Where there are allegations the father perpetrated family violence against the mother in the presence of the children – Where there are concerns as to the father’s mental health – Where the father has not had a relationship with the children for over four years – Where the older children are exhibiting signs of trauma – Where the father has perpetrated family violence against the mother to which the children were exposed – Where the mother has re-partnered – Where the mother seeks that she be allowed to change the children’s surname to her partner’s surname – Where it is not appropriate that the mother be allowed to change the children’s surname to that of her partner – Orders otherwise made as sought by the mother. FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the father has disengaged from the proceedings – Where it is appropriate for the matter to proceed on an undefended basis. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Farmer & Rogers [2010] FamCAFC 253 Goode and Goode (2006) FLC 93-286 In the Marriage of George and Radford (1976) FLC 90-060 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Reynolds and Sherman [2016] FamCAFC 240 |
| APPLICANT: | Mr Spencer |
| RESPONDENT: | Ms Greentree |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Walkden |
| FILE NUMBER: | WOC | 261 | of | 2016 |
| DATE DELIVERED: | 4 May 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 21 February 2018 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Mr McGrath of Marsdens Law Group |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Walkden of Legal Aid NSW Suburb F Family Law |
Orders
The Respondent Mother shall have sole parental responsibility for the children, B born … 2002, C born … 2005 and D born … 2008 (“the children”), for all intents and purposes including under the Family Law Act 1975 (Cth) and the Australian Passports Act 2005 (Cth).
The children live with the Respondent Mother.
The children spend no time with the Applicant Father.
The Applicant Father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the children.
The Applicant father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the Respondent mother directly or via a third party including but not limited to her husband Mr Greentree or members of her family.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Greentree has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: WOC 261 of 2016
| Mr Spencer |
Applicant
And
| Ms Greentree |
Respondent
REASONS FOR JUDGMENT
introduction
These are parenting proceedings commenced by the applicant father by Initiating Application filed 17 March 2016 in the Federal Circuit Court of Australia.
The application concerns 15 year old B, 12 year old C and nine year old D (“the children”), the children of Ms Greentree, the mother, and Mr Spencer, the father.
Context
The parties commenced a relationship in 2000 and married in 2009. They separated in March 2011 following the father physically assaulting the mother in the presence of the parties’ oldest child.
The parties divorced in November 2014.
Following the assault in March 2011 an Apprehended Domestic Violence Order (“ADVO”) was put in place for the protection of the mother and children against the father.
Over the next two years the father saw the children sporadically and only for limited periods of time. The father last spent time with the children in November 2013.
The parties engaged in unsuccessful mediation as to the parenting issues in late 2014.
In mid-2015 the father invited the mother to participate in a further mediation as to parenting issues, however, it was deemed unsuitable for the parties to attend and a certificate under s 60I of the Family Law Act 1975 (Cth) was issued.
The mother married her current husband, Mr Greentree, in 2016.
The proceedings
On 17 March 2016 the father commenced these proceedings in the Federal Circuit Court at Wollongong.
On 22 June 2016 the matter was transferred to this Court due to the allegations of family violence and abuse made against the father.
On 9 August 2016 orders were made appointing an Independent Children’s Lawyer (“ICL”) and that the parties attend on a Family Consultant for the purposes of participating in the Child Responsive Program.
On 14 December 2016 the father failed to appear at an interim parenting hearing before the Senior Registrar. Interim orders were made on that date for the mother to have sole parental responsibility for the children, and for the children to live with the mother and spend no time with the father. The father was directed to file and serve an affidavit setting out the reasons for his non-attendance.
The father did not file the affidavit as ordered and did not appear on the next occasion when the matter was before the Court on 10 February 2017. The father was directed to attend in person on the next court date.
On 7 March 2017 the father attended in person and orders were made for a Family Report to be prepared.
On 22 March 2017 there was no appearance by or on behalf of the father at an interim hearing before the Senior Registrar and the matter was adjourned.
On 20 November 2017 there was again no appearance by the father. The Family Report dated 29 September 2017 was released to the mother’s solicitor and the ICL. Directions were made for the matter to proceed on an undefended basis on the next occasion the matter was before the Court in the event of the father’s non-attendance.
On 5 December 2017 there was again no appearance by or on behalf of the father.
Procedural fairness
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3)…
In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the mother and father’s involvement and leave uncertain the circumstances of the children.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
Such is the case presently for consideration.
In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197.In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; e.g. it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
…
The Full Court then said:
201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.
202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
On 5 December 2017, upon noting that the ICL had notified the father of the listing, the Court was satisfied that all appropriate attempts had been made to notify the father and that he had been given ample opportunity to engage in the proceedings. In the circumstances, it was appropriate for the matter to proceed on an undefended basis. Accordingly, the father’s Initiating Application was struck out and dismissed and directions were made for the matter to proceed to undefended final hearing.
On 21 February 2018 there was no appearance by or on behalf of the father. The matter proceeded to undefended hearing. Judgment in the matter was reserved and the parties were excused from attendance on delivery of judgment.
The mother’s documents
The mother relied upon the following documents:
a)her Response to Initiating Application filed 8 June 2016;
b)her Notice of Risk filed 8 June 2016; and
c)her affidavit filed 9 February 2018.
The mother seeks orders, in summary, as follows:
a)that she have sole parental responsibility for the children;
b)that the children live with her;
c)that the children spend no time with the father;
d)that the mother be allowed to travel with the children outside Australia and the father be restrained from placing the children on the Airport Watch List; and
e)that the mother be allowed to change the children’s surnames from “Spencer” to “Greentree”.
The evidence
The mother, who is aged 34, and the father, who is aged 38, commenced a relationship in May 2000 when the mother was 16 and the father was 21.
The father was violent towards her throughout the entire relationship. The mother deposes to the first of such incidents occurring in 2001 when she was 17 and the father came to her home and dragged her out of bed by her hair. The police were called and the father was charged with assault and malicious damage. An Apprehended Violence Order (“AVO”) was put in place for the protection of the mother.
Following pressure from the father the mother continued a relationship with him. The parties began living together in 2002 at E Town in New South Wales. The property was isolated and the father kept the mother reliant on him for money and transport. The father’s violence towards the mother continued during this time and his cannabis usage increased.
The parties’ first child, B, was born in 2002 and their second child, C, was born in 2005.
On a particular occasion in August 2007 the father returned to the family home at E Town under the influence of drugs and threatened to kill the mother. The mother called the police and an AVO was issued against the father for the protection of the mother and children. The mother and children went to live with the maternal grandfather.
A week later the mother attended on the home at E Town to collect the children’s belongings but was informed by the father and a woman who was staying with him that the children’s clothes and toys had been burnt.
Regrettably two months later the mother reconciled with the father and she and the children returned to the home at E Town. The father continued to be violent and verbally abusive towards the mother.
The parties’ third child, D, was born in 2008.
The parties married in 2009. The father, who was unemployed, continued to be violent towards the mother, would smoke cannabis around the children and did not assist in the children’s care.
In March 2011, in the course of an argument, the father pushed the mother into a wall, grabbed her by the throat and shouted at her. The incident was witnessed by the parties’ oldest daughter. The mother called the police after the incident and the father was arrested.
Following court proceedings in March 2011 a two year final ADVO was granted for the protection of the mother and children. The father was placed on a good behaviour bond for two years and was subject to supervision by Probation and Parole for that period. The father, at his sentencing hearing, tendering a letter from his psychologist which stated that the father had been diagnosed with bi-polar disorder. The father had been admitted to a mental health facility on three occasions during the course of the parties’ relationship.
Less than one month later in April 2011 the father was arrested for breach of the ADVO. The father engaged in stalking behaviour post separation including attending on the mother’s home on multiple occasions both when the mother was and was not present at the home.
The father has seen the children on six occasions since separation, the last of which was in November 2013. In November 2014 the father approached the parties’ oldest daughter as she was walking home from the bus stop. The mother deposes to this causing the child significant distress. In December 2014 the mother was contacted by the parties’ youngest child’s school following an attempt by the father to take the child into his care.
During 2015 the father contacted the children on a number of occasions by sending them inappropriate letters and calling family members and asking them to put the children on the phone to speak with him. In one of the letters addressed to the oldest child for her birthday, exhibited to the mother’s affidavit, the father asks the child to contact him and references both his separation from the mother and the court proceedings to explain that the reason he does not spend time with the children is because the mother “hates [him]” and “doesn’t want [him] to see [the children] at all anymore”.
The father commenced these proceedings in March 2016 following the mother’s re-marriage in 2016.
In early 2016, the parties’ oldest child started attending counselling to address her anxieties and past trauma. The parties’ second child commenced meditation and art therapy around this time.
The mother currently works full time and lives with her partner and the children in a four bedroom house. The mother’s partner has a strong relationship with the children. All three children currently attend school and are progressing well.
The Family Report
On 11 September 2017 the parties, the children, the mother’s partner and the paternal grandparents attended on Senior Family Consultant for the purposes of the preparation of a Family Report.
In her Report dated 29 September 2017 the Family Consultant made the following comments about the children:
[B] and [C], in particular, presented with concerning behaviour on interview. Their presentation appeared to be that of a child who has experienced significant trauma. For children who have experienced trauma, it is not unusual that they are unable to talk extensively about their experiences verbally, and for both children, this appeared to be the case. They reported witnessing some violence and behaviour from [the father] that may have been frightening and/or emotionally intense.
It is noted that, according to subpoenaed information provided by FACS, [B] was reported to have been exposed to [the father] attempting self-harm. FACS information also referred to the children having witnessed significant family violence and threatening behaviour. They may have also witnessed [the father’s] behaviour while he was mentally unwell and/or under the influence of substances. If the children have been exposed to violence, mental health issues and/or threats as alleged, this is likely to have been traumatic for them and may explain their current presentations.
Both [C] and [B’s] presentation suggested that they are likely to have ongoing issues with their mental health. It is noted that their presentations were also concerning at the time of their involvement with a Family Consultant for the preparation of the Children and Parents Issues Assessment. Both [B] and [C] may benefit from attending counselling as required …
…
Given [B’s] age, significant weight could be placed on her views, and given [C’s] age, some weight could be placed on her views, that they not spend time with, or have contact with, [the father]. If the Court finds that [the father] has perpetrated violence or behaviour that traumatised the children, it is likely to be highly distressing and damaging for the children to have any contact with him. [The father’s] proposal that he commence spending time with the children via phone calls and letters is not likely to be in their best interests, considering the nature of his previous attempts at communication with them. The example provided in the copy of the letter [the father] wrote to [B] (attached to [the mother’s] Affidavit dated 6 June 2016) is considered inappropriate in its content, not child focused and suggestive that [the father] prioritises his needs above the children’s. If [the father] sent similar communications to the children in the future, this is likely to be distressing and confusing for them.
[D] did not present as distressed and traumatised as her sisters. She did appear to have an awareness of [the mother’s] emotional state in relation to [the father] and she was teary when discussing this. [D] may not have a clear memory of [the father] given her age at the time of separation. For [D] to have a relationship with [the father], the Court will need to be satisfied that he does not present an unacceptable risk of harm to any of the children or their extended family, and also take into consideration that if [D] has a relationship with [the father], this may have a significant negative impact on [B] and [C’s] mental health. Because [D] did not report the same lived negative experiences of [the father] like her sisters appear to have had, this does not necessarily mean that she would not still be at unacceptable risk of harm in spending time with [the father], unless the Court determines otherwise.
As to the father the Family Consultant opined:
[The father] reported on interview that his difficulties with his mental health started at the end of his relationship with [the mother], however, according to information provided under subpoena from [Suburb F] Hospital and the other mental health services, this does not appear to be the case. It appears that [the father] has been involved with services or admitted to hospital for his mental health in 2007, 2010, 2011, 2012, 2013 and 2016. It also appears that he has had several suicide attempts or threats of suicide, and previously been diagnosed with Bipolar Disorder, Adjustment Disorder, Depression and Borderline Personality Disorder. Given this extensive history regarding mental health difficulties, [the father] may need to engage with mental health support services in an ongoing manner. It is not known if he has been provided medical advice or advice from a mental health professional regarding ongoing treatment and whether any disengagement from treatment was with the relevant professional’s approval. Unmanaged mental health issues of this nature may put [the mother] and the children at increased risk of physical and emotional harm from [the father]. They may also affect his parenting capacity, his reflective functioning, and ability to prioritise the children’s needs above his own.
[The father’s] presentation on the day of family report interviews was also concerning. He was noted to be able to move between expressing intense distress to appearing agitated and angry very quickly. He also stated that he would not accept Court Orders that were unfavourable, but his exact intended actions were unclear. It is noted that, according to material produced under subpoena, [the father] has made previous threats that he would take the children, would kill himself, or would kill [the mother]. It is unknown if [the father] presents a direct threat to the children if he does not receive a favourable outcome, however, there are concerns held that the children’s and [the mother’s] well-being may be at risk if this were the case.
Concerns are also held about [the father’s] mental health if he does not receive a favourable outcome, as it appears that he has threatened or attempted suicide previously at significant events in his life that he was not in agreement with, such as the end of his relationship with [the mother], and more recently, at the end of his relationship with [the father’s former partner]. The Court may be assisted by an assessment from a psychiatrist to determine if [the father] should have ongoing treatment and support with his mental health and/or whether he presents a risk to himself or others if he does not receive his desired outcome in these proceedings. [The father] may be assisted by engaging with the Community Mental Health Service (46295400) for support and/or treatment during and after these Court proceedings. He could also obtain a referral for counselling through his GP.
Significant allegations of family violence have been made against [the father]. It would also appear that he has an extensive criminal history relating to violence. It is a matter for the Court as to the veracity of the allegations, however, if the Court found that [the mother’s] account is accurate, then this would be indicative of a coercive and controlling typology of family violence. This may be interrelated with [the father’s] mental health and any previous drug use, as it is noted that in information received under subpoena from Suburb F hospital, there was reference to him using marijuana. However, this is not to say that any perpetration of violence occurred only because of drug use and/or poorly managed mental health conditions.
The Family Consultant recommended that if the Court found that the father had engaged in behaviour that traumatised the children or poses an unacceptable risk of harm to the children, the mother hold sole parental responsibility for the children and the father spend no time with them.
Parenting
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
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 child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)…
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
It is readily apparent that the children’s ongoing relationship with the mother as their primary carer is important, significant and valuable.
The father has had no relationship with the children for over four years. It is clear from the Family Report that the older two children are opposed to re-establishing any meaningful relationship with the father and that their mental health could be detrimentally affected by contact with the father. The youngest child has limited memories of the father given her young age when the parties separated.
Section 60CC (2)(b) – need to protect
This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above, there are unacceptable risk factors in the children’s possible engagement and time with the father on the basis of his aggressive, violent and controlling behaviour and his mental health. The father has disengaged from these proceedings in any event.
This consideration, which is to be given primacy, is in itself supportive of and determinative of the orders sought by the mother as supported by the ICL.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)The nature of the relationship of the child with:
i)Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)Any other fact or circumstance that the court thinks is relevant.
Many of the considerations above are relevant in the context of the background matters discussed.
The two older children have expressed strong views to the Family Consultant that they do not wish to spend time with or be contacted by their father. The Family Consultant was of the opinion that these views should be given some weight due to the children’s ages and lived experience of the father. The youngest child did not express the same negative views of the father as her siblings, however, the Family Consultant noted that her age at the time of separation indicates she would have limited memories of her father in any event.
As previously stated above the children have no relationship with their father and the older two children’s past relationships with him have been characterised by violence, trauma and fear. The children’s relationship with their mother is a strong and positive one. It is to be noted that the mother has maintained the children’s relationship with their extended paternal family.
The father’s behaviour as outlined earlier, particularly his violent and controlling behaviour and the inappropriate letters and messages he has sent to the children since separation, demonstrate a poor attitude to the responsibilities of parenthood. In disengaging from these proceedings the father can be taken to be forfeiting any opportunities for him to participate in decision making or spend time with the children.
The father does not currently provide any support in maintaining the children, the mother alone has at all times provided for the children since separation.
The orders sought by the mother will not, with one exception discussed below, see the children’s circumstances change in any way and there is no practical difficulty or expense associated with those orders.
The father’s behaviour, particularly his perpetrating family violence against the mother to which the children were exposed, raises serious concerns about his capacity to care for the children should he spend time with them. As previously stated, the risks posed by the father to the children are substantially determinative of this application. In the context of such risk it is appropriate that the father by injunction be restrained from contacting or communicating with the children in terms as sought by the mother and supported by the ICL.
All of the aforementioned relevant considerations are indicative of orders being made in the best interests of the child as sought by the mother.
Change of name
The only other issue to consider is the order sought by the mother that she be allowed to change the children’s surnames from “Spencer” to “Greentree”.
In Reynolds and Sherman [2016] FamCAFC 240 the Full Court confirmed that the paramount consideration in making an order as to a child’s name is the best interests of the child.
The Full Court in In the Marriage of George and Radford (1976) FLC 90-060 set out the factors relevant to a change of surname application as follows:
·the final decision must be governed not by supposed parental rights but must be in the best interests of the children;
·short-term embarrassment must be weighed against long-term effects;
·where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
·children should not be subjected unnecessarily to a confusion of identity;
·a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.
While it is unlikely the children will have a meaningful relationship with their father going forward given his behaviour and disengagement from these proceedings, the mother is seeking that the children’s surname be changed to her current surname which is the surname of her new husband and not her maiden name or a name only associated with the maternal family.
The children are old enough to have their identities linked to the names they have been known by for a significant number of years and they still have a relationship with members of their extended paternal family.
In circumstances where the mother’s current surname of “Greentree” has been utilised by her for only two years and is more closely associated with her husband than it is with her or the children, it is not in the children’s best interests for their surnames to be changed. Accordingly, there will be no order facilitating the mother changing the children’s surnames.
Orders will accordingly be made as set out at the forefront of these reasons for judgment.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 May 2018.
Legal Associate:
Date: 4 May 2018
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