Taylor and Cain

[2007] FamCA 1219

FAMILY COURT OF AUSTRALIA

TAYLOR & CAIN [2007] FamCA 1219

FAMILY LAW – CHILDREN – With whom a child lives – Change of given name

Family Law Act 1975 (Cth)

APPLICANT: Ms Taylor

RESPONDENT: Mr Cain

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2845 of 2005

DATE DELIVERED: 11 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 11 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kent-Hughes

SOLICITOR FOR THE APPLICANT: Stephen Canals

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lynch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

ORDERS

1. THAT the mother be granted sole parental responsibility for the child of the relationship R born 19 October 1999.

2. THAT the child live with the mother.

3. THAT questions of any time that the father may spend with the child, or level of communication be otherwise reserved.

4. THAT it is declared that in the best interests of the child that her name be changed from R to L and accordingly it is requested that the Registrar of Births, Deaths and Marriages do all acts and things required and otherwise record the change of name.

5. THAT any consent of the father to such change of name be formally dispensed with.

6. THAT pursuant to 106A of the Family Law Act1975 (Cth) a Registrar of this Court be forthwith appointed to sign all documents, execute any deed or do all acts and things in the name of the father as may be necessary to give validity and operation to this order requiring the change of the given name from R to L.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file.

8. THAT the mother’s solicitors forthwith serve a sealed copy of this Order upon the father at his home address at T, Victoria and thereafter file an appropriate affidavit of service with this Court evidencing such action.

9. THAT otherwise all extant applications and responses be discharged and the proceedings be removed from the list of cases awaiting hearing.

10. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

11. Pursuant to s 62B and s 65DA, 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 parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS NOTED:

A.THAT it is apparent from the report of the Family Consultant that the father had previously given consent to the change of his daughter’s given name.

B.THAT the mother’s solicitors are to make available to the Registrar, Births, Deaths and Marriages a sealed copy of this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2845 of 2005

MS TAYLOR

Applicant

And

MR CAIN  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Taylor & Cain is listed for a one day hearing in the defended cases list. Mr Kent-Hughes of counsel appears for the applicant mother, and Mr Lynch is the appointed Independent Children's Lawyer. There is no appearance by or on behalf of the father.  I had the father called out at court at 10 am. Thereafter the matter was stood down until 11.40 am when again he was called out of court.  He did not appear on either occasion.  An examination of the court file shows that the matter was last listed at a pre-trial conference on 27 August 2007 before Registrar Williams. On that occasion the father appeared as did Mr Lynch.  I am advised that the father was given the pre-trial conference document which indicates in paragraph 6 thereof that the trial date was fixed for 11 October. 

2. Evidently the father indicated that he either could not or would not appear at court on this day.  Mr Lynch has endeavoured to ring the father this morning on an available mobile telephone number but it was not answered.  Otherwise I am advised that to the best of the mother's knowledge and belief the father still lives in T. She confirms that he was told of today's appearance date and she also heard his reply that he would not be able to attend. The reason for that non-attendance is otherwise unknown to the court.

3. In the particular history of this case, and having regard to the father's absence from the child for much of her life since her birth in October 1999, there is, in reality, no relationship between father and child.  I have particular regard to the litigation history itemised by the mother in paragraph 18 of her affidavit filed 13 August 2007.  I am also reliant upon paragraph 16, and in particular the fact which I accept that the father has not spent any time with his daughter since 2001 save for an accidental meeting, on the rare occasion, at a shopping centre.

4. I conclude that it is appropriate and in the child's interest to proceed on an undefended basis.  I am satisfied that this matter needs finality and that the best interests of the parties' daughter would be served by concluding all litigation.  The mother relies upon the circumstances set out in her affidavit filed 13 August 2007. The orders that she seeks are clearly identified in her amended application filed 13 August 2007 and in particular those orders seek sole parental responsibility, with the child to live with the mother and also a name change, though that change is of the given name and not the surname.

5. In that regard I have been referred to paragraph 45 of the report of the family consultant. It is evident that the matter was raised with the parties and the father indicated consent to that name change.  I rely upon that paragraph of the report of Mr N and given the matters in evidence before me and given that the child is known under the name of H and not under her given name of R, it does seem that there is no disadvantage or inconvenience or even embarrassment to be caused to the child by the change of her given name of R to the name L.

6. The intent therefore is that the child will hereafter be formally known for all records and purposes as L, and I propose to order that her name be amended by the Registrar of Birth, Deaths and Marriages and be so recorded. It is appropriate that I dispense with the requirement of consent of the father. I will otherwise take the precaution of pronouncing an order under section 106A of the Family Law Act 1975 (Cth) so that a Registrar of the court may sign any document limited to the purposes of rectification an amendment of the child's given name.

7. I will not set out the matters and facts deposed to by the mother in her affidavit.  I accept that she has been solely responsible for the care, upbringing and development of her daughter with minimum input or assistance from the father.  The current circumstances of the mother, her employment and accommodation are detailed in the affidavit.  The child attends school.  I propose to leave to one side any issue of supervision of time to be spent, or otherwise elicit drug concerns or ongoing drug tests.  I intend to make orders which merely reserve any time to be spent by the father with the daughter, and that will depend upon his positive initiative and a good and clean lifestyle to resurrect time that he has not made available to himself over past years.

8. With that background I am also comfortable with the orders sought by the mother without hearing cross‑examination of the family consultant.  I have read that report and Mr Lynch has indicated that there were some issues, indeed concerns, arising out of that report given the past history of non-involvement of the father with his daughter.  Whilst I record the overview and content of that report they are not matters that I am asked to further develop this day in the absence of the father and with no support being given to some of those preliminary indications in the report.

9. As to matters of law, the interests of the child are of paramount concern, and I have regard to section 60CA of the Act.  How a court determines what is in the child's best interest is detailed in the primary and additional considerations highlighted in section 60CC(2) and (3). I have particular regard to those primary considerations, the substantiation of a meaningful relationship and also the level of protection required for the child. As to the additional considerations, I give due and proper regard to each of those relevant considerations, but in particular to the child's relationship with her mother and non-relationship with her father, and the capacity and attitude of the mother as she has demonstrated to so provide for the child.

10. I specifically intend to conclude all further proceedings, and that is a matter that does influence me to a final outcome this day.  Significantly, section 61A, within Division 2, deals with parental responsibilities and I apply a presumption that it is in the best interests of this child for her mother and father to have equal shared parental responsibility. That presumption however does not apply in the circumstances provided for in subparagraph (2) or otherwise may be rebutted in the circumstances provided for in subparagraph (4) of section 61DA.  I conclude that it is proper for the presumption to be rebutted. 

11. I am satisfied by the evidence that it is not in the best interests of the child for there to be an order for equal shared parental responsibility.  I am satisfied the father has played no part in the life of the child and on the evidence before me does not intend to have any meaningful consistent or ongoing relationship with his daughter. Accordingly I will accept that evidence and so rebut the presumption and make an order for sole parental responsibility in favour of the mother.

12. I turn now to section 65DAA and in the context of all of the specific issues in this case, I will not make an order for substantial and significant time to be granted to the father. I have regard to the practical aspects, and each of the matters identified in subparagraph (5) of this subsection.  What I propose to do, and indeed as is asked by the mother and as the only option available to the court is to reserve any time that the father may wish to spend with his daughter.  That time then will be subject to his proper attitude, his then circumstances and of course the circumstances of his daughter and any time that may hereafter be considered will have to be on an ongoing constructive and continuous basis.

13. I do not prejudge any of those issues.  There simply is no evidence before me this day.  I have already referred to the change of name which I regard as being proper and in the best interests of this child and I will make that order.  For those reasons which I will have transcribed and placed upon the court file, I will make orders as sought by the mother and those orders will be taken out by the court and forwarded to the practitioners for the mother and the child and personally to the father at his last known address which I am advised is T, Victoria.

I certify that the preceding paragraphs area true copy of the reasons for judgment herein of The Honourable Justice Young

Associate

Date: 12 October 2007