Trenton & Rasmussen
[2022] FedCFamC2F 1254
Federal Circuit and Family Court of Australia
(DIVISION 2)
Trenton & Rasmussen [2022] FedCFamC2F 1254
File number(s): SYC 4578 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Change of name – Where the father has failed to engage in proceedings and has not spent time or communicated with the child since 2015 – Father perpetrated family violence and issues of substance abuse – Child’s wish to change name – Orders for the mother to have sole parental responsibility – Orders for change of name and authorisation to obtain a passport for the child. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA Cases cited: Bowers & Bowers [2017] FamCA 627 Division: Division 2 Family Law Number of paragraphs: 82 Date of hearing: 12 September 2022 Place: Sydney Solicitor for the Applicant: Mr Long The Respondent: No appearance ORDERS
SYC 4578 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TRENTON
Applicant
AND: MR RASMUSSEN
Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
12 September 2022
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the child X (formerly known as X RASMUSSEN) born in 2013 (“X”).
2.The mother be hereby authorised to formally change X’s name from X RASMUSSEN to X TRENTON without the requirement to obtain the consent of the Respondent Father.
3.X live with the mother.
4.The mother be hereby authorised to obtain and renew a passport for X without the requirement to notify or obtain the consent of the Respondent Father.
5.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother is authorised to remove X from the Commonwealth of Australia for the purpose of travel at her discretion without the requirement to notify or obtain the consent of the Respondent Father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Trenton & Rasmussen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns parenting arrangements for X (“the child”), as she is currently known, born in 2013. The child is now 9 years of age. The application is brought by the child’s mother, Ms Trenton (“the mother”), in circumstances where the last time the child spent time with her father, Mr Rasmussen (“the father”), was January 2015 and the last time there was communication from the father to the mother in respect to the child was on 27 October 2016. Since that time, the father has had no involvement in the child’s life.
For reasons which I explain, I am satisfied that the orders proposed by the mother are appropriate and in the child’s best interests. In that respect, I have had regard to the relevant documents referred to in Part B of the helpful case outline document filed by the solicitor for the mother on 8 September 2022 at 4.44 pm, being a second version of the document filed with some additions.
Firstly, this matter is proceeding on an undefended basis in circumstances where the father has failed to appear in the proceedings or, for that matter, to respond to any documents which I am satisfied have been brought to his attention. In that respect, I have had regard to the contents of the affidavit of Ms B, a paralegal employed at the mother’s solicitor’s firm, filed on 26 July 2022 and the contents of the mother’s tender bundle, which has been marked Exhibit “A” in these proceedings and outlines the steps that have been taken to inform the father of these proceedings and, indeed, that the matter has been listed for hearing today.
Accordingly, I am satisfied that the father has been afforded every opportunity to appear in these proceedings had he so wished. In that sense, the matter can proceed without there being any deficiency in the requirements of procedural fairness.
The relevant principles for considering parenting matters were summarised in Bowers & Bowers [2017] FamCA 627 (“Bowers”) at [76]–[84]:
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”). Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).
The presumption of equal shared parental responsibility
Section 61DA(1) provides that 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 for the child”. Section 61DA(4) provides that the presumption “may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
In this matter both parties seek an order for equal shared parental responsibility.[1] I will subsequently discuss why despite some reservations that I have, such an order is appropriate.
PARAMOUNT CONSIDERATION IN MAKING PARENTING ORDERS
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in section 65DAA.
Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all section 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in section 60CC(2) against one another. Those 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 balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Additional Considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. At this point it is sufficient to note that, broadly, those considerations deal with the following matters:
•Issues relating to the children - their views, level of maturity, culture and relationships.
•Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility.
•Issues of family violence.
•Effect of change.
•Practical difficulty of implementation of orders.
•Avoiding further proceedings.
•Other relevant matters.
(Footnotes omitted)
In terms of the relevant facts, I have had regard to the affidavits that have been filed by the mother and her current husband, Mr Trenton (“Mr Trenton”), on 1 July 2022, and I have had regard to other documents including a parenting questionnaire completed by the mother on 1 July 2022. The relevant facts, in circumstances where the affidavit evidence has not been challenged, are helpfully summarised in a chronology of events set out in the case outline document filed by the mother’s solicitors as follows:
18 1968
19 The applicant mother's current husband, Mr Trenton, is born and is presently 54 years of age ("Mr Trenton").
Mr Trenton has 3 children from a prior marriage, namely;
20 1. Mr C, who is 22 years of age;
21 2. Ms D, who is 19 years of age; and,
3. E, who is 17 years of age.
1May 1979 22 The Respondent Father, Mr Rasmussen, is born and is presently 43 years of age ("the father").
23 The father has a child from a previous relationship, namely F, who is approximately 16 years of age ("F"). The mother has only met F on one occasion.
1986
24 The applicant mother, Ms Trenton, is born and is presently 36 years of age ("the mother").
2008/2009
The mother and father meet through mutual friends.
2010
The mother and father commence an “on and off” romantic relationship.
2011
The mother and father commence cohabitation.
May 2012
The mother and father relocate from Brisbane to Sydney.
Aug 2012
The mother and father separate.
2012
The mother learnt that she was pregnant with their first child.
Nov 2012
The mother and father recommence cohabitation. The father moved into the mother’s home in Sydney.
2013
X, known as X, is born and is presently 9 years of age (“X”).
The mother and father’s relationship quickly deteriorates after the birth of X. On the occasion the parties argued, the father would leave the home and not return for days.
May 2013
The father begins drinking heavily, often returning home at approximately 4 – 5am.
25 On this occasion, the father returns home without the mother's car. The parties get into an argument and the father tries to leave the home. The mother attempts to stop him, and the father responds by pushing the mother. The mother sustains a bump on her head and attends a doctor in Suburb G for the injury. The mother and X catch a bus into Suburb H to locate her car.
24 June 2013
The mother and father separate. The mother and X relocate back to Brisbane. The father remains in Sydney.
June/Jul 2013
The mother and father have regular contact predominately centred around their relationship.
Aug 2013
26 The mother travels back to Sydney for about a week to take X to specialist medical appointments. The father spends time with X on two occasions during the week for no more than approximately 1 hour. The mother was present for the duration of the father's time with X.
9 9 Aug 2013
10 The mother discovers the father has used and purchased cocaine in lieu of providing financial support for the care of their child.
Dec 2013
11 The communicate (sic) between the mother and father breaks down and the mother requests the parties only communicate once a week about X. The father advises the mother that he would be coming to Brisbane.
19 Dec 2013
The father arrives in Brisbane. The father does not contact the mother.
22 22 Dec 2013
23 The father contacts the mother at 8pm and asks to spend time with X. The mother invites the father to her parents' home in Brisbane to see X for Christmas Eve.
24 24 Dec 2013
25 The father spends time with X at the mother's parents' home with X’s maternal family for approximately 4 hours.
26 Jan 2014
The father spends time with X at Location J, Suburb K in Brisbane for approximately 1 – 2 hours. The mother was present for the duration of the father's time with X.
27 Mar 2014
The father signs an Application for X to be issued with an Australia Passport, which has since lapsed.
28 7 Mar 2014
The father spends time with X at the mother's residence in Brisbane for approximately 2 hours. The mother was present for the duration of the father's time with X.
29 May 2014
The father notifies the mother that he intends on travelling to Town L for work. The mother travels to Town L to facilitate X’s time with the father. The father spends time with X for approximately 2 hours. The mother was present for the duration of the father's time with X.
30 9 Jul 2014
The father requests that the parties only communicate via email moving forward. The parties email each other around once per month about X.
31 Sep 2014
The father spends time with X for approximately 1 hour in Suburb M, Brisbane. The mother was present for the duration of the father's time with X.
32 Jan 2015
The father travels to Brisbane and notifies the mother. The father spends time with X and brings his son, F. The mother and X had not had any interaction with F prior to this day. During the visit, the father tells the mother this is the first time he had spent time with F in a very long time and does not have a relationship with him. The father and F spend time with X for approximately 1.5 hours. The mother is present for the duration of the father's time with X.
The father has not spent any time with X since this date. X was 21 months at the time.33 10 Jul 2015
34 The mother and Mr Trenton commenced a relationship.
35 Aug/Sep 2015
The mother and Mr Trenton commence cohabitation. X and the mother live with Mr Trenton as a family unit from this time onwards. X develops a close and loving
36 bond with Mr Trenton and refers to him as "dad".
37 27 Oct 2016
The father sends an email to the mother which says: "Hi X, hope you are well. Still haven’t heard any word on how you are and haven’t seen any pictures of your cute little face. Hopefully soon I will be able to see you, Much love, Dad". The father did not attempt to arrange visitation other than send the one email to the mother.
The father has not attempted to spend time with X since this date.38 22 Feb 2017
The father ceases child support payments to the mother for the care of X. As at 1 July 2022, the child support arrears payable by the father was $19,109.80.
39 2017
The mother notices X is having more difficulties completing certain tasks comparative to other children. X attends a psychologist, who suggests X undergo an Autism Diagnostic Observation Schedule
("ADOS") test. The first test is returned with a negative result.40 2018
41 The mother and Mr Trenton are married.
42 Jan 2015
43 The father spends time with X.
44 Oct 2016
45 The mother and father exchanged in email correspondence in relation to X. The mother has not had any contact with the father since.
46 Mar 2018
The mother seeks advice from a child psychologist to understand the best way for X to learn about her parentage. The psychologist recommends that it is best to tell X as early as possible, and in accordance with the advice given, the mother explains to X that "another man had helped me make you".
A few days later, X said words to the effect of: "is Dad [referring to Mr Trenton] still my Dad and my siblings still my siblings?" The mother responded to her saying, “yes, nothing is changing”. X has not brought up her parentage since.47 2018
The mother and Mr Trenton's child, N, is born and is presently 4 years of age ("N").
48 Dec 2018
49 The mother tells X that someone other than Mr Trenton helped ‘make’ her.
50 2020
X continues to experience irregular sleep patterns, anxiety, and emotional dysregulation. The mother obtains a second opinion and X undergoes a further ADOS test. X is subsequently diagnosed with
Autism Spectrum Disorder (Level 2) and generalised anxiety.
X begins Kindergarten. She is enrolled as X Trenton and has been known to friends, teachers and medical practitioners as X Trenton. X does not identify with the last name 'Rasmussen'.51 24 Jun 2022
52 The mother’s solicitors write to the father via his last known email address putting the father on notice about the issues subject to this application. The mother’s solicitors receive an email bounce back. The mother does not have alternative contact details for the father.
53 1 Jul 2022
54 The mother files her Initiating Application with the Court seeking urgent interim and final parenting orders.
55 21 Jul 2022
56 The mother’s application is listed before Judicial Registrar O. There is no appearance of and for the father. Orders were made for substituted service upon the father’s Facebook account, being ‘Mr P’.
57 22 Jul 2022
58 The mother’s solicitors service the mother’s application, along with the orders of 21 July 2022, on the father by way of email and via Facebook messenger. No response was received.
59 19 Aug 2022
60 The mother’s application is listed for directions before Deputy Chief Judge McClelland and the matter is set down for final hearing on 12 September 2022.
61 23 Aug 2022
62 The mother’s solicitors serve the father with a copy of the 19 August 2022 orders listing the matter for final hearing via email. There was no bounce back and it is assumed the email was delivered. The letter, along with a copy of the 19 August 2022 orders, were also sent via Facebook messenger to the father’s Facebook account, being ‘Mr P’.
63 12 Sep 2022
64 The mother’s application is listed for final hearing before Deputy Chief Judge McClelland at 10:00am.
65 2022
The mother and X, along with their family, are scheduled to travel to the Country Q (sic) for the wedding of the mother's brother.
66 2022
The mother and X, along with their family, are to return to Australia following their holiday in the Country Q (sic).
(As per the original)
In terms of the principles to which I have referred as set out in Bowers, in making parenting orders I am required to consider the best interests of the child and apply those relevant principles. Before doing so, I will consider the issue of parental responsibility and note that, in that respect, s 61DA of the Family Law Act 1975 (Cth) (“the Act”) specifies that there is a presumption in favour of the Court making an order for equal shared parental responsibility, however that presumption can be rebutted in a number of circumstances. Relevantly for the purpose of these proceedings, the wife was not challenged on her evidence that her relationship was impacted by family violence and issues of substance abuse affecting the father. In those circumstances, I am satisfied that the presumption of equal shared parental responsibility does not apply.
Having determined that the presumption does not apply, I am required to consider whether there should nonetheless be such an order. Clearly, in circumstances where the father has not had any involvement in the child’s life since January 2015 and in circumstances where the mother has had difficulty in contacting the father, it would be, in my view, quite contrary to the child’s best interests to require the mother to attempt to contact the father with a view to consulting with him regarding major long term decisions impacting upon the child. Further, in circumstances where the child will continue to live with the mother and her husband Mr Trenton who, for all intents and purposes, the child has regarded as her father, I am satisfied that the appropriate order to make in these proceedings is an order for the mother to have sole parental responsibility in the terms that she seeks.
In terms of dealing with the considerations set out in s 60CC of the Act, the relevant authorities confirm that, all things being equal, it is presumed to be in the child’s best interests to have a meaningful relationship with both parents. The authorities confirm, however, that this concept needs to be considered in the context of the reality of the situation. In this case, I am satisfied that the mother has gone to extensive lengths to attempt to facilitate the child’s relationship with the father but, unfortunately, those efforts were not reciprocated on the part of the father. In those circumstances, the evidence satisfies me that, unfortunately, it is not realistic to consider the prospect of the child having a meaningful relationship with her father.
In terms of the issue of risk, I have earlier set out, by way of reference to the mother’s evidence, that she was subjected to verbal and physical abuse during the course of the relationship. I am further satisfied that the father drank to excess and consumed illicit substances on occasions including cocaine. In that context, I am satisfied that even if the circumstances were such that it was possible for the child to have a relationship with the father, precautions would be needed to ensure the psychological safety of the child were she to spend time with the father, in circumstances where he may be impacted by alcohol and other substances.
However, in circumstances where I will not, for the reasons which I expand upon, be making orders for the child to spend time with the father, it is unnecessary for me to make orders mitigating against that risk including, for instance, by providing for supervised time.
Essentially, the situation moving forward will be, in the event of the father attempting to make contact with the child, the mother will use her discretion as she has sensibly done in the past to determine whether that contact occurs and the circumstances in which that would occur.
Considering the other relevant matters set out in s 60CC(3) of the Act, I am satisfied that the child has expressed clear views that she considers herself to be a Trenton and that she is living in a household where she is loved and cared for by her mother and Mr Trenton, as well as living with her brother, N, who is 4 years old. I further note that the child is known by the name of X Trenton and that is how she is known to her friends, peers and teachers. In that context, moving on to orders sought by the mother, I note the relevance of the child’s desire to be known by and referred to as X Trenton and for that to be reflected on her school work and certificates, and additionally, as she moves through life and obtains a driver’s licence, marriage certificate and the like.
In terms of s 60CC(3)(b), I have noted that the mother and Mr Trenton are the child’s primary attachment figures and that the child has no relationship with her biological father. I note further that, regrettably, the father has failed to respond to the efforts that the mother has made to facilitate the child spending time with him and, in that respect, the father has spent time with the child only on a handful of occasions, with the mother being present on each occasion. Those occasions are set out at paragraph 3 of the best interests additional considerations of the mother’s case outline document as follows:
3.1 August 2013, on two occasions, for a period of no more than 1 hour;
3.2 December 2013, for a period of 4 hours;
3.3 January 2014, for a period of 1 to 2 hours;
3.4 March 2014, for a period of 2 hours;
3.5 May 2014, for a period of 2 hours;
3.6 September 2014, for a period of 1 hour; and,
3.7 January 2015, for a period of 1 and a half hours.
Significantly, I accept the mother’s evidence that the child does not acknowledge the father as her paternal figure and, as I have indicated, the father does not participate in the child’s life and has not attempted to contact the mother or the child since 27 October 2016. On the other hand, I am satisfied, on the basis of the evidence presented, that the child shares a close and loving relationship with the mother, the mother’s husband, her brother N and step siblings Mr C, Ms D and E. I further note that the child considers the mother’s husband’s parents to be her paternal grandparents. Essentially, those people to which I have referred are the only paternal family that the child has known.
In terms of s 60CC(3)(c), that is, the considerations relating to the actions of the parents, I am satisfied that it is clear from the mother’s evidence that she is the primary attachment figure to the child and that the father’s role effectively ceased in January 2015. In that context, in terms of the parents’ obligation to maintain the child, I note that the father ceased paying child support in February 2017 and currently owes an amount of $19,000 in respect to arrears of child support.
In terms of s 60CC(3)(d)–(f), that is, the effect of change in circumstances and practical difficulties and the needs of the child, the orders proposed by the mother will not change the child’s circumstances – it will be a continuation of living arrangements that have been in place since July 2015 when the mother entered into a new relationship with Mr Trenton. Accordingly, there are no practical difficulties that impact upon the orders that I make.
In terms of the needs of the child, the mother has outlined that the child has been diagnosed with Autism Spectrum Disorder (Level 2). I am satisfied, however, that the child is receiving every assistance to cope with additional challenges she faces in the context of that diagnosis.
In respect of other considerations, I note that the mother and her husband propose to engage in overseas travel shortly in order to attend the wedding of the mother’s brother, the child’s uncle, and it will be necessary for the mother to obtain a passport in respect to the child. The orders appropriately provide for that to occur.
I have earlier referred to the fact that the child wishes to be known by the name of Trenton, which is the name of her brother and step siblings and, in the circumstances that I have outlined, I am satisfied that is appropriate.
The mother further proposes a number of ancillary orders which I have read and, in my view, are appropriate and sensible in the context of ensuring the best interests of the child.
Accordingly, for all of these reasons and having regard to the evidence to which I have referred by way of summary, I make orders in terms of those sought by the mother in her Application for Final Orders filed on 1 July 2022 and sealed 14 July 2022.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Judge McClelland. Associate:
Dated: 14 September 2022
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