Thompson and Feldman

[2011] FamCA 1019

FAMILY COURT OF AUSTRALIA

THOMPSON & FELDMAN [2011] FamCA 1019

FAMILY LAW – CHILDREN – Final parenting orders – Change of name of father on birth certificate

Family Law Act 1975 (Cth)

Chapman & Palmer (1978) FLC 90-510

APPLICANT: Mr Thompson

RESPONDENT: Ms Feldman

FILE NUMBER: BRC 9624 of 2010

DATE DELIVERED: 14 December 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McNeil

SOLICITOR FOR THE APPLICANT: Hughes Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Orders, declarations and notations be made in terms of the document titled “Minutes” sealed and attached hereto.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. All outstanding Applications are dismissed and the proceedings are removed from the list of cases awaiting finalisation.

4. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   “MINUTES”

IT IS ORDERED THAT:

1. Within fourteen (14) days of the making of this Order that the Mother be directed to execute all documents and do all things as may be necessary to authorise the Registrar of Births, Deaths & Marriages, New South Wales to amend the register of Births, Deaths & Marriages to reflect that Mr Thompson is the true Father of the child, B born … 2005, and to issue a new Birth Certificate certifying the said child’s surname as Thompson and her Father as Mr Thompson. 

2. In the event that the Mother does not comply with Order 1 above within the stipulated time frame, that the father be authorised to execute all documents and do all things as may be necessary to authorise the Registrar of Births, Deaths & Marriages, New South Wales to amend the register of Births, Deaths & Marriages to reflect that Mr Thompson is the true Father of the child, B born … 2005, and to issue a new Birth Certificate certifying the said child’s surname as Thompson and her Father as Mr Thompson.

3. The child live with the Father.

4. The Father have sole parental responsibility of the child.

5. The Mother enjoy telephone contact with the child between the hours of 9.30am to 10am every Sunday, with the Mother to initiate the call.

6. The Mother enjoy supervised time with the child on the C Region for two (2) hours each alternate weekend. This arrangement shall continue for a period of six (6) months with Mother to undergo monthly medical examinations to confirm that she is continuing with her medication.

7. After the six month period referred to in Order 5, the Mother shall spend time overnight with the child on the C Region each alternate weekend. This arrangement shall continue for a further six (6) month period with the Mother to undergo monthly medical examinations to confirm that she is continuing with her medication.

8. After the further six (6) month period referred to in Order 6, the Father and Mother shall review the arrangements in respect of the child.

9. The Father notify the Mother immediately of any major matter relating to the heal welfare of the child.

10. The parties will keep each other advised of the current residential address and a contact telephone number at all times and advise of any changes thereto within forty-eight (48) hours of such change.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9624 of 2010

Mr Thompson

Applicant

And

Ms Feldman

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is a very sad case in which orders are sought by the father of a child whose birth certificate records her having the name B.  The mother does not participate in these proceedings for reasons that will become obvious shortly. 

2. During the course of these proceedings a number of orders were made and the mother was afforded the opportunity to participate within them.  Included among the orders that were made was an order for the preparation of a family report which such report has been undertaken by a family consultant attached to this court, Ms D. 

3. Ms D conducted interviews on 5 May 2011.  The mother did not participate personally in those interviews but the father provided to Ms D her telephone number and Ms D subsequently spoke to her on the phone. 

4. Further context to these proceedings is given by the fact that the mother is currently the subject of an involuntary treatment order in respect of a mental illness suffered by her.  Such evidence as is before the court in respect of the mother’s illness indicates that she is being treated in the community and, it seems, is relatively compliant with that treatment.

5. When Ms D spoke to the mother on the telephone the mother confirmed that she had recently spoken to the child and to the father.  The mother told Ms D “it’s the right thing for [the child] for now” in relation to her staying in the care of the father.  The child came into the care of the father in about September of last year and has been in the continuous care of he and his partner since that time. 

6. The circumstances in which that occurred do not need to be outlined in any great detail. Suffice to say that it occurred in circumstances where the New South Wales Department of Community Services intervened and were sufficiently concerned about the child so as to remove her from the care of the mother. It seems plain on the evidence before me that the mother was, at that time, particularly unwell. 

7. There is evidence from the father that suggests that at the time the child came into his care she was “pale, anaemic and a very fussy eater”.  It seems perfectly clear, including in particular, from the independent evidence of Ms D, that there has been significant improvement in the child’s appearance and overall wellbeing.  In that respect Ms D reports that “[B] presented as a bright, happy, personable little girl.  She reports that she attends the T state school and is in grade 1.  The child reported that she likes school and that her best friend is N and that her favourite activity at school is drawing.” 

8. Ms D goes on to say in her report:

   [The child] for the most part avoided talking about her mother.  When asked if she would like to call her mother she declined.  [The child] informed me that she has two dogs and two cats at her father’s house and that she has a happy face at her father’s house.

   [The child] reflected that it would feel good if her mother came to visit some time.  She then stated that it would feel scary to visit her mother and said ‘I don’t really know why but it would; but it would be okay for her come and see me’. 

9. I respectfully agree with the opinion of Ms D that the mother is “to be congratulated for recognising that it is in [the child’s] best interests for her to live with her father”.  As Ms D, again with respect, correctly in my view points out, such a course of action will allow the mother to dedicate her time to improving her mental health status and “establishing a more rigorous mental health management regime which will hopefully ensure that she will be able to commit to spending regular supervised time with the child in the near future”. 

10. It seems clear on the evidence before me that the mother has, tragically, been diagnosed with serious forms of mental illness and that historically, her mental health has fluctuated at various times.  It also seems clear on the evidence before me that at times when the mother has unfortunately been very unwell, the child’s care whilst in the care of the mother has, to a significant extent, been compromised. 

11. The evidence before me indicates that since coming into the care of the father and his partner, the child has been well cared for, and is happy, stable and content.  Each of the father and his partner have children of earlier relationships.  The father has a 17 year old child who regularly visits and therefore has a regular relationship with B and the mother a 21 year old child who visits the household less frequently but similarly has established a relationship with the child.

12. I have little hesitation in finding on the evidence before me that it is in the child’s best interest that she continue to live with her father.  I am confident, based primarily on the affidavit evidence of the father, which of course is unchallenged, but also on the evidence contained in the family report from Ms D that the father will use his best endeavours to ensure that the child speaks with her mother on a regular basis and will ensure that any time spent between the child and her mother will be facilitated but in a manner consistent with the child’s best interests and the mental health status of the mother from time to time.

13. I should make it clear in these short reasons that the material read before the court indicates that the mother has been served with all the material filed by the father as such material has been filed. 

14. This matter had progressed through what might be described as the usual case management processes of this court to a point where it was listed on the call-over before me which took place on 26 October this year.  At that time I ordered that the matter be set down for final hearing today and noted that there had been attempts to negotiate a consent order between the parties – a topic that Ms Hughes, the father’s solicitor, deposes to in an affidavit filed by her. 

15. It seems clear that those settlement discussions were compromised by the mother’s mental health status.  In any event I noted at the time of that call-over that the mother had at no stage filed any material and had at no stage otherwise participated in the process. 

16. I make those comments not by way of criticism of the mother in light of the facts and circumstances attending her condition to which I have earlier referred but to emphasise the point that the father has sought to obtain orders from the court which would bring certainty for the child for some time and that his application in that respect has progressed through the court system despite the fact that the mother has not otherwise participated in it.

17. I indicated at that call-over that, if earlier directions for the mother to file material had not been complied with and if otherwise the mother did not indicate her willingness or desire to participate in these proceedings that the proceedings before me today be heard and determined on an undefended basis. 

18. As it transpires the mother has not complied with earlier directions nor has she otherwise indicated her participation in the process, save to participate in the telephone conversation with Ms D to which I have earlier referred at which she indicated, if I may say so, somewhat bravely and sensibly that, given the circumstances relating to her current mental health status, it is appropriate for the child to remain with the father and his partner.

19. At the callover, I directed the solicitor for the father, out of an abundance of caution, to reserve all of the material that had earlier been served together with any updated material including, as it turns out, a case information document filed on behalf of the father on 14 October 2011. An affidavit from the father’s solicitor relied on in these proceedings indicates that service of all of those documents has been effected on the mother, a matter confirmed by counsel appearing for the father today. 

20. For those reasons I propose to make parenting orders in accordance with those sought by the father contained in the case information document to which I have just referred. 

21. A further sad aspect of this case is that the child’s birth certificate records her surname as E and her father as “Mr E”.  Mr E is, apparently, a well-known recording artist and as part of the mother’s then florid psychotic illness the mother apparently believed that Mr E was the father of the child.  Acting on that psychotic belief the mother recorded on the child’s birth certificate the name Mr E as the child’s father. 

22. The father has subsequently organised DNA testing and the certification resulting from that testing establishes with a tolerable degree of certainty that the father is indeed the child’s father. 

23. Understandably, it might be thought, the father applies for orders which would effect a change of the child’s birth certificate so as to accurately record him as the child’s father.

24. In helpful written submission prepared by counsel for the father the decision of the Full Court in Chapman & Palmer(1978) FLC 90-510 is referred to. That decision refers to six circumstances which might be seen to be directly relevant to a decision as to whether orders ought be made changing a child’s birth certificate. I do not propose to repeat those considerations here.

25. Unsurprisingly, uppermost among them is “the welfare of the child is the paramount consideration”, a matter reflected in the current legislation, much amended in the 30 years or more since Chapman & Palmer was decided.

26. It is, I think, unsurprising, that I would find in the particular circumstances of this case that it is plainly in the child’s best interest that her father be recorded as such on her birth certificate. 

27. One of the considerations relevant to the decision referred to in Chapman & Palmer is any embarrassment likely to be suffered by the child.  That, it seems to me is a factor which looms large in this case given the sad and unfortunate circumstances in which E was recorded as the child’s surname and her father recorded as Mr E. 

28. I have no hesitation then in making the orders sought on behalf of the father, the effect of which is to effect an alternation of the child’s birth certificate. 

29. For those reasons, I order in accordance with the orders outlined in the minute of orders contained at part A of the case information document filed 14 October 2011 on behalf of the father.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 14 December 2011.

Associate:

Date:  16 January 2012