Westcott & Hanley

Case [2021] FamCA 569

FAMILY COURT OF AUSTRALIA

Westcott & Hanley [2021] FamCA 569

File number(s): PAC 1259 of 2017
Judgment of: HANNAM J
Date of judgment: 5 August 2021
Catchwords: FAMILY LAW – CHILDREN – Undefended parenting – Where the father formally discontinued from the proceedings and failed to attend the final hearing – Where the mother makes serious allegations against the father including in relation to sexual and physical abuse of the children and family violence – Where the mother also holds concerns about father’s mental health and his parental capacity – Where the mother seeks orders that she hold sole parental responsibility for the children and that the children live with her and spend no time with the father which is supported by the ICL – Where the mother also seeks orders in relation to obtaining passports for the children without the father’s consent and a change of their names – Where the Court attaches particular weight to the father’s disengagement from the proceedings in determining that it is in the children’s best interests to make orders in the terms sought by the mother.  
Legislation:

Australian Passports Act 2005 (Cth) s 11

Births Deaths and Marriages Registration Act 1995 (NSW) s 28

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA

Cases cited:

Beach and Stemmler (1979) FLC 90-692

Chapman and Palmer (1978) FLC 90-510

G & C [2006] FamCA 994

Fooks v McCarthy (1994) FLC 92-450

Mazorski & Albright (2007) Fam LR518

McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

Number of paragraphs: 179
Date of hearing: 15 February 2021
Place: Parramatta
Solicitor for the Applicant: No appearance
Counsel for the Respondent: Ms Gillies
Solicitor for the Independent Children's Lawyer: JLM Family Lawyers Pty Ltd

ORDERS

PAC 1259 of 2017
BETWEEN:

MR WESTCOTT

Applicant
AND:

MS HANLEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS THAT:

1.The mother has sole parental responsibility for the children Y born … 2013, Z born … 2013 and X born … 2011 (“the children”).

2.The children are to live with the mother.

3.The children are to spend no time and have no communication with the father.

4.Each of the children is permitted to:

(a)travel internationally with the mother; and

(b)have an Australian travel document issued to him or her, without the need for the consent of the father pursuant to Section 11(1)(b) of the Australian Passports Act 2005. 

5.The mother is authorised to the apply to the Registrar of the Births, Deaths and Marriages for the State of New South Wales to:

(a)change the name of the child X Hanley-Westcott born … 2011 to X Westcott, and it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the mother, give effect to this Order by doing all acts and things necessary to register the change of name of X born Hanley-Westcott ……

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AGLC
Westcott & Hanley [2021] FamCA 569
Case
[2021] FamCA 569
Decision Date

CaseChat Overview and Summary

This case concerned an application by the mother, Ms Hanley, for final parenting orders in relation to her three children, Y, Z, and X, against the father, Mr Westcott. The mother sought sole parental responsibility for the children, that they live with her and spend no time with the father, and orders permitting her to obtain passports for the children without the father's consent and to change their names. The Independent Children's Lawyer supported the mother's application for sole parental responsibility and for the children to live with her and spend no time with the father. The father had formally discontinued his participation in the proceedings and failed to attend the final hearing.

The court was required to determine whether the orders sought by the mother, including sole parental responsibility, the children living with her and spending no time with the father, and the ability to obtain passports and change the children's names without the father's consent, were in the children's best interests. This involved considering the primary considerations under section 60CC of the *Family Law Act 1975* (Cth), specifically the benefit to the children of a meaningful relationship with both parents and the need to protect them from harm, abuse, neglect, or family violence, with a greater weight to be given to the latter.

Hannam J reasoned that the father's significant disengagement from the proceedings, including his failure to attend the final hearing, weighed heavily in favour of making orders that aligned with the mother's proposals. The court noted the mother's serious allegations of sexual and physical abuse, family violence, and concerns about the father's mental health and parental capacity. While the court found insufficient evidence to support the mother's contention that the children's names were registered without her consent, it was satisfied that changing the children's names was in their best interests given the father's lack of ongoing involvement in their lives. The court attached particular weight to the father's disengagement and concluded that the mother's proposed orders, supported by the Independent Children's Lawyer, were in the children's best interests.

The court ordered that the mother have sole parental responsibility for the children, that the children live with her, and that they spend no time and have no communication with the father. The court also permitted the mother to travel internationally with the children and to obtain Australian travel documents for them without the father's consent. Furthermore, the mother was authorised to apply to the Registrar of Births, Deaths and Marriages in New South Wales to change the children's names, removing the father's surname, notwithstanding the absence of the father's consent.

Orders

Orders of the court

PAC 1259 of 2017

BETWEEN:

MR WESTCOTT

Applicant

AND:

MS HANLEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS THAT:

1. The mother has sole parental responsibility for the children Y born … 2013, Z born … 2013 and X born … 2011 (“the children”).

2. The children are to live with the mother.

3. The children are to spend no time and have no communication with the father.

4. Each of the children is permitted to:

(a) travel internationally with the mother; and

(b) have an Australian travel document issued to him or her, without the need for the consent of the father pursuant to Section 11(1)(b) of the Australian Passports Act 2005.

5. The mother is authorised to the apply to the Registrar of the Births, Deaths and Marriages for the State of New South Wales to:

(a) change the name of the child X Hanley-Westcott born … 2011 to X Westcott, and it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the mother, give effect to this Order by doing all acts and things necessary to register the change of name of X born Hanley-Westcott … 2011 to X Westcott pursuant to Section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) notwithstanding that the consent of the father has not been obtained;

(b) change the name of the child Z Hanley-Westcott born … 2013 to Z Westcott, and it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the mother, give effect to this Order by doing all acts and things necessary to register the change of name of Z Hanley-Westcott born … 2013 to Z Westcott pursuant to Section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) notwithstanding that the consent of the father has not been obtained; and

(c) change the name of the child Y Hanley-Westcott born … 2013 to Y Westcott, and it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the mother, give effect to this Order by doing all acts and things necessary to register the change of name of Y Hanley-Westcott born … 2013 to Y Westcott pursuant to Section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) notwithstanding that the consent of the father has not been obtained.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

In this judgment I give reasons for making final orders that the mother hold sole parental responsibility for the children and that the children live with her. I also deal with the outstanding issues, that is, whether the children are to spend any time with the father in the future, and whether it is in their best interests to make orders permitting the mother to apply for their passports without the father’s consent and change their names as she proposes. BACKGROUND The father who is 49 has three adult children from a previous relationship who all live outside Australia. The mother who is 40, is of European descent. The parties met in 2009 and shortly thereafter commenced a relationship. In early 2010 the parties began living together and in the same year were married. The mother deposes that from early on, her relationship with the father was fraught with conflict and that he was controlling and coercive towards her. In 2011 the parties’ first child, a daughter now aged 10 (“the older daughter”) was born. Two years later in 2013, the parties’ twin children, a daughter (“the younger daughter”) and son (“the son”) now aged eight, were born. Throughout the parties’ marriage the mother says she was primarily responsible for the care of the children while the father worked full-time. In the years leading to separation, the mother deposes that the father became increasingly emotionally abusive towards her, the children and at times her parents (“the maternal grandparents”). She also describes that the father used excessive physical punishment towards the children including punishing them for “the most trivial of things”. During this time, the mother deposes that she and the maternal grandparents held concerns about the father’s mental health and that at one point the father informed her that he had been diagnosed with a “personality disorder” and “sociopathic traits”. In around early 2016 the mother discovered that the father was involved in extramarital relationships and when confronted about these matters, the father insisted that the parties work on their marriage and that he seek help for his “psychological problems”. From this time, the father attended therapy on a weekly basis and the parties also attempted marriage counselling. It is the mother’s case that despite attending therapy with a psychologist the father remained verbally and physically aggressive towards her. She also claims that on several occasions the father expressed suicidal ideation which at some point led her to contact the parental grandfather in order to seek his help in this regard. The mother maintains that during this time she felt she had “no choice” but to remain in the marriage in order to protect the children and ensure they were safe. On at least two occasions in June 2016, police attended the family home as a result of allegations concerning the father’s abusive behaviour and a domestic altercation that transpired between the parties. On one such occasion the mother was advised by police to contact a domestic violence officer for further assistance. As I understand it, following these incidents the parties separated and the father left the family home, though he made some unsuccessful attempts to return in the following few days.

Evidence

Evidence Before The Court

The mother also pressed her application relating to the children’s passports, which the ICL supported notwithstanding some issues with the form of the order. The mother also pressed for an order that the children’s names be changed, which the ICL did not wish to be heard in relation to. Both these matters were reserved for final judgment, and at the completion of final oral submissions the mother made a further application that the father pay her costs which I indicated would be dealt with following the delivery of final judgment.FAMILY CONSULTANT’S EVIDENCE As outlined above, the family met with the family consultant on two occasions. The first assessment took place in February 2019 for the purposes of the Child Responsive Program, and the second in January 2020 for the preparation of a Family Report. At the time of the initial assessment the children were eight and five years old respectively. They were then living with the mother in a home shared with the maternal grandparents and contrary to court orders in place at the time, the mother was not facilitating their time with the father due to her concerns for their safety in his care. When assessed the second time, the older daughter was almost nine and the younger children almost seven, and at that stage they still were having very limited contact with their father. When first assessed, the mother proposed that the children live with her and spend supervised time with the father. In her second interview, the mother sought orders that she hold sole parental responsibility for the children and that the children spend no time with the father. In contrast, it was the father’s proposal at both assessments that he and the mother share parental responsibility for the children and that the children live equally between them. The key issues identified by the family consultant across both assessments remained fairly consistent. The family consultant explored the risk factors posed by each parent which she identified as being family violence, concerns with each party’s mental health, the co-parenting relationship and level of parental conflict, and sexual abuse allegations. Each parent maintained in both their interviews that the other parent was physically and verbally abusive as well as controlling, and recounted specific instances from before and after separation including incidents of family violence to which the children were exposed. They also each alleged that there were ongoing threats made by the other parent, and the mother in particular indicated she still held some concerns for her safety. The family consultant observed in her first assessment that each of the party’s account of family violence “could be indicative of coercive controlling family violence but could also be explained by separation instigated violence or situational family violence”. In her second assessment, she opined that the parties’ relationship appears to have been characterised by “difficulty in managing disagreements, aggressive outbursts, [and] insults with escalation into physical violence” and noted that each parent retains a negative view of the other parent. She then concluded: Ongoing exposure to parental conflict, particularly if it is about children or if children are drawn into the parents’ conflict, is known to have adverse implications for children’s overall emotional development and can affect children’s relationships with one or both parents. Conflict can negatively affect children’s own ability to resolve conflict in their current and future relationships.

Decision

Reasons for decision

Although in my view there is insufficient evidence to support her contention that the children’s names were registered by the father without her consent, in circumstances were the father no longer seeks to play a role in the children’s lives it is not necessary for me to make such a finding in order to be satisfied that such a change is in the children’s best interests.CONCLUSION Having regard to all of the foregoing matters and attaching particular weight to the father’s disengagement in the proceedings, I am satisfied that mother’s proposal supported by the ICL that the she hold sole parental responsibility for the children and that the children live with her and have no contact with the father, are in the children’s best interests. I am also satisfied that the additional orders sought by the mother that she be permitted to apply for the children’s passports and travel overseas with them without the father’s consent and that their names be changed by deleting their middles names are in the children’s best interests. The orders I make are set out at the front of this Judgment.

Ratio Decidendi

Legal Principle Established

Section 60CC sets out the primary considerations and additional considerations to be considered by a court in determining what is in a child's best interests.Primary consideration: s 60CC(2) The primary considerations (under s 60CC(2)) 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. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents. The meaning of the phrase "meaningful relationship" is not defined in the Act. The Full Court in McCall & Clark (2009) FLC 93-405; 41 Fam LR 483 has approved the interpretation of the phrase by Brown J in Mazorski & Albright (2007) Fam LR 518 and has also agreed with the reasoning of Bennett J in G & C [2006] FamCA 994. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of "meaningful" and "meaning": 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". The Full Court said in McCall & Clark (supra) at [117]:Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a "prospective" one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic). The phrase has not been interpreted as creating a presumption that children receive a benefit from having a meaningful or significant relationship with both parents. The Full Court in McCall & Clark (supra) continued at [122]:No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests. Since birth the mother has been the children’s primary carer and following separation the children have continued to live with her. From the time the parties’ separated the children’s time with their father has been very limited. Despite court orders also providing that the children spend time with their father, such time has occurred sporadically in part due to the father’s failure to attend scheduled changeovers as well as restrictions associated with the COVID-19 pandemic and the father’s subsequent disengagement with the contact centre. While in her most recent report (Exhibit 3) the family consultant noted that the father’s account in his interview would indicate that the children are “much loved”, I attach weight to her opinion that given the children’s limited experience of the father over the years, they are unlikely to have established relationships with him.