Westcott & Hanley
[2021] FamCA 569
•5 August 2021
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 … 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Westcott & Hanley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
These proceedings concern the future parenting arrangements for the three young children (“the children”) of the parties (“the mother” and “the father”).
Since the parties’ separation in 2016, the children have lived with the mother and spent time with the father on a somewhat irregular basis.
The father commenced these proceedings in the Federal Circuit Court in early 2017 seeking parenting orders that the parties equally share parental responsibility for the children and that the children live with the mother and spend time with him two days each week. He also sought orders relating to a property settlement between he and the mother and that application initially resolved by way of final orders made with their consent in November 2017.
Throughout the balance of the proceedings, each parent has made serious allegations of family violence against the other, and the mother also alleged that the father was sexually and physically abusive towards the children. At one stage the father also raised concerns that the maternal grandmother sexually abused one of the younger children. As a result of these allegations, the proceedings were ultimately transferred to this Court and dealt with in accordance with the Magellan protocol[1].
[1] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
After the proceedings were transferred to this Court, there were a number of court events and various interim applications filed by both parties (including an application made by the father re-agitating property matters). In August 2020, when the father was no longer spending any time with the children, he formally discontinued his entire application and withdrew from the proceedings.
The mother presses her proposal that orders be made for the children to remain living with her and spend no time and have no communication with the father as she contends that the children are at an unacceptable risk of harm in his care. She now also seeks orders that she be at liberty to apply for a passport for each of the children without the consent of the father and that she also be allowed to change each child’s name.
The Independent Children’s Lawyer (“the ICL”) supports the mother’s proposal relating to the parenting arrangements for the children as being in the children’s best interests but did not wish to be heard in relation to the mother’s application for a change in the children’s names.
On 15 February 2021 the proceedings were heard on an undefended basis as against the father. At the conclusion of that court event, orders were made that the mother hold sole parental responsibility for the children, that the children live with her and that pending the delivery of judgment the children spend no time and have no communication with the father. The balance of the orders relating to the children’s passports and a change of their names were reserved for final judgment.
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.
On 10 June 2016 the father through his solicitor wrote to the mother’s solicitor raising concerns about the children’s safety in the mother’s care. He alleged that the mother physically abused him earlier that month causing him to suffer serious injuries, that the mother behaved irrationally and experienced mental health difficulties such as anxiety and depression, and that she also refused to facilitate the children spending any time with him. He proposed in that letter that the mother refrain from removing the children from outside of the state without his consent and that, with the help of the maternal grandmother during changeovers, he be able to spend time with the children in the family home without the mother present.
In a letter dated 15 June 2016 the mother through her solicitor responded to the father’s letter, denying the father’s allegations and denying any intention to relocate interstate with the children. She also expressed concerns about the father’s parental capacity and made a request that the father refrain from attending the family home uninvited to avoid any further conflict or contact with police.
In the same month the maternal grandmother came to live in the family home as the mother’s fears for the family’s safety grew.
For the next few weeks the father made attempts to reconcile with the mother and although the mother was opposed to the parties resuming their relationship, she agreed to continue counselling and made some attempts to facilitate the children’s time with him.
In late July 2016, the children spent time with the father in the family home. Following this visit, the father unilaterally decided to remain in the family home. The mother deposes that she did not feel comfortable about contacting police in fear that the father would make false allegations against her. As a result, the father remained living with the mother, the children and the maternal grandmother in the family home for some weeks.
On 6 August 2016 the mother deposes to an incident in the family home in which the father physically assaulted her (“the August 2016 incident”). She recounts that the father initially verbally abused the maternal grandmother then proceeded to grab and push herself into the kitchen. The father then picked the mother up and forcibly threw her onto the floor in another part of the home. The mother then deposes that the father fell on top of her and that she soon noticed blood on her clothes. The mother immediately attended the local police station and provided a statement.
At some stage after the August 2016 incident, police also interviewed the father who apparently made allegations that the mother abused him. No charges were ultimately proffered against the father in relation to the August 2016 incident but as he left the home indefinitely following this incident, the mother says she did not press the police to take any action.
For some months following the August 2016 incident it appears the children had little to no contact with their father.
The proceedings
In March 2017 the father commenced proceedings in the Federal Circuit Court seeking orders that the parties equally share parental responsibility and that the children live with the mother five days per week and with him for two. He also sought that the children spend time with him during school holidays and special occasions, and sought financial orders for an equal division of the parties’ property.
In a Notice of Risk filed in support of his application the father made allegations of family violence perpetrated by the mother, including that there had been an interim Apprehended Domestic Violence Order previously made against her for his protection.
In May 2017 the mother filed her Response to the father’s application and sought orders that she hold sole parental responsibility for the children and that they live with her and spend time with the father each alternate Saturday for a few hours. She also sought financial orders including that the father transfer his title and interest in the family home to her.
The mother repeated in a Notice of Risk filed in support of her application that during the parties’ relationship the father was abusive towards her to which the children were exposed. She also raised concerns about the father’s mental health and maintained that on some occasions the father was verbally abusive towards the children and had also failed to put the children’s needs above his own.
At a court event in June 2017 orders were made for financial disclosure and that an ICL be appointed to the proceedings. The parties and the children were also ordered to attend family counselling and the parties were directed to complete an online parenting program. There appears to be no evidence to suggest that the family engaged in such counselling or that the parents successfully completed the parenting program as ordered.
Between June and July 2017 the Department of Family and Community Services (as they were formerly known) (“the Department”) received two risk of harm reports in relation to the children. In one report it was alleged that the father left “loaded syringes containing anti-psychotic medication” around the family home, and in the other it was reported that the children were exposed to domestic violence perpetrated by the father towards the mother. Both reports did not proceed to secondary assessment and were subsequently closed.
On 11 July 2017 the father amended his application seeking orders that the children spend increased defined time with him. He also sought an order that the children have electronic communication with each parent and proposed in relation to property matters that the family home be sold and the proceeds of sale be divided equally between the parties.
A few days later, the parties agreed on interim orders (“the 2017 orders”) which provided for the children to live with the mother and spend increasing time with the father graduating to overnight time in his household. Orders were also made with the parties’ consent restraining them both from making any critical or derogatory remarks about each other in the presence or hearing of the children, and that each of them submit to urinalysis drug testing at the request of the ICL.
In the following months the children spent time with the father in accordance with the 2017 orders but sometimes their time with him did not occur at all as the father failed to attend the scheduled changeover. On other occasions the mother deposes that the children spent time with the father but returned to her care unkempt or feeling severely unwell.
In mid-September 2017 the children began spending overnight time in the father’s home and again on some occasions their time with him did not proceed at all.
At a court event in October 2017 orders were made including that the parties and the ICL attempt Family Dispute Resolution and that a report relating to the welfare of the children be prepared by a family consultant.
In late October 2017 the son expressed some reluctance about spending time with the father and on at least one occasion, when in the care of the father, contacted the mother in distress requesting that he return home. The mother makes a litany of complaints about the father’s capacity to care for the children at this time including his use of excessive physical punishment towards them and neglect of their basic needs, which are matters to which I will return.
On 13 November 2017 the mother was convicted of criminal charges in the Local Court and a final ADVO was made against her for the protection of the father. These convictions, along with the final ADVO, however, were later overturned on appeal.
In late November 2017 the property proceedings resolved by way of final orders made with the parties’ consent providing in summary that the father transfer his interest in the family home to the mother and that the mother refinance the mortgage registered on the property into her sole name. At the time, the father failed to execute documents to effect the transfer of property and later wrote to the mother’s solicitors claiming that he was bankrupt. The mother subsequently filed an application in the Federal Court seeking to annul the father’s bankruptcy.
The children spent time with the father on two further occasions in late November 2017, and on one of those occasions the mother claims the son returned to her very unwell and required medical attention. On the other occasion she says the son refused to spend time with the father at all and only the two daughters attended.
Shortly thereafter the mother failed to facilitate any of the children spending time with the father as she alleged that during a check-up with the family’s local doctor, the son disclosed inappropriate sexual behaviour by the father towards the older daughter.
The initial allegation of sexual abuse
The disclosure said to have been made by the son in around late November 2017 which forms part of the mother’s case that the father poses an unacceptable risk of sexual harm to the children is a matter to which I will return. It suffices to say at this stage that as a result of the son’s alleged disclosure, both the older and younger daughter were interviewed by police and not long after each of the children commenced attending counselling on a regular basis.
Various risk of harm reports concerning sexual abuse were also made to the Department throughout December 2017. Two of these reports were screened out with no further investigation and only one was referred to the Joint Investigation Response Team (as they were then known) (“JIRT”)[2] for assessment.
[2] The Joint Investigation and Response Team was made up of officers from the Department and police and investigated complaints of sexual abuse and serious physical abuse of children.
As the mother did not make the children available to spend time with him pursuant to court orders, in February 2018 the father filed a Contravention Application against her.
In March 2018 the proceedings were to be transferred to this Court for allocation into the Magellan program in light of allegations of sexual abuse made against the father. However, as I was not satisfied that the matter fell within the criteria of the Magellan protocol at the time, and there were otherwise no other reasons for transfer to this Court including matters of complexity, the proceedings remained in the docket of the Federal Circuit Court Judge.
On 30 April 2018 the parties agreed on interim orders (“the 2018 orders”) providing in summary that the children live with the mother and that commencing late May 2018 they spend time with the father each alternate weekend from after school Friday to before school the following Monday.
When the children were to recommence spending time with their father in May 2018 the mother deposes that she was advised by their local doctor that they were too ill to attend. The mother’s solicitor subsequently informed the father of this and later that day the father attended the family home and was verbally aggressive towards the mother. Although the mother says she reported this incident to police, the matter was not investigated further.
In June 2018 the father again filed a Contravention Application relating to the mother’s failure to make the children available to spend time with him pursuant to court orders.
On 13 August 2018 the father’s Contravention Application came before the Court and orders were made that the mother enter into a bond to comply with the 2018 orders and to be of good behaviour for a period of 12 months. Orders were also made to facilitate the children to spend time with their father to make up for missed time.
The second allegation of sexual abuse
The following day, 14 August 2018, the mother deposes that each of the children were averse to spending time with the father and that the younger daughter disclosed sexual abuse by him which I discuss later in these Reasons. Following this alleged disclosure, the mother presented the children to a female family doctor (“the female family doctor”) during which appointment the two daughters made further disclosures of abusive behaviour by the father. During this appointment the mother also made reports of sexualised behaviour by the younger daughter which she says she had observed in the past. A report relating to all these matters was made to the Department which was investigated by JIRT but later found to be unsubstantiated.
The mother maintains that from about the time the younger daughter first disclosed sexual abuse by the father, each of the children became “whingy and clingy”. She further deposes that although she still facilitated the children’s time with the father in accordance with court orders, she held various concerns about both the children’s safety in his care and the father’s parental capacity.
On 27 August 2018 the mother presented the younger daughter to the female family doctor for a second time and during that appointment the child again made complaints about the father’s abusive behaviour.
Once again, the mother did not make the children available to spend time with the father and the father filed an Application in a Case alleging continued contravention of parenting orders by the mother and breach of her good behaviour bond.
The allegation of sexual abuse by the maternal grandmother
On 28 August 2018 the Department received a risk of harm report relating to the son, then aged five, who was said to be exhibiting sexualised behaviour. It was reported that the child had made a disclosure of sexual touching by the maternal grandmother who was then still living in the family home. This allegation grounded the father’s contention at that time that the children were at an unacceptable risk in the mother’s care and for these reasons are matters to which I will briefly return. It is important to note, however, that in September 2018 both the son and the maternal grandmother were interviewed separately by JIRT investigators, and during the child’s interview the child made no disclosures of sexual harm but expressed great aversion towards seeing the father.
In late September 2018 the mother filed an Application in a Case seeking that the proceedings be transferred to this Court and that interim orders be made suspending the children’s time with the father. The father at the time pressed his application that the mother contravened court orders relating to the children’s time with him and that she also failed to comply with her good behaviour bond. He also filed another application seeking to set aside property orders made with the parties’ consent in 2017.
In October 2018 the proceedings were transferred to this Court and placed into the Magellan Program and a Magellan Report[3] was ordered. At the time of transfer, various applications made by both parties were outstanding including the father’s application relating to the mother’s contravention of court orders, another re-agitating matters relating to the parties’ property settlement, and the mother’s application that the children’s time with the father be suspended.
[3] A Magellan report sets out the involvement of The Department with the family.
When the matter came before a Registrar in November 2018 a trustee in bankruptcy appeared on the father’s behalf and advised the Court that proceedings relating to financial matters between the parties were ongoing in the Federal Court. This matter was then adjourned for a number of months pending the outcome of the hearing in that court.
In December 2018 the Magellan Report was released to the parties.
In early February 2019 the father attended the children’s school and after making requests with school authorities briefly spent time with the children during school hours.
A few days later the family were assessed by a family consultant for the purposes of the Child Responsive Program. The family consultant’s Memorandum to Court (“the 2019 Report”) was released to the parties shortly thereafter and in that report the family consultant identified the salient issues in the proceedings as family violence between the parties and the sexual abuse allegations made against the father and the maternal grandmother. The family consultant also observed that the parties had no capacity for a co-parenting relationship and ultimately recommended that they each engage with a parenting support service and that a single expert child and family psychiatrist be appointed to assist the Court.
On 20 February 2019 the mother’s application to suspend the children’s time with the father was heard by a Senior Registrar. At the conclusion of that court event, interim orders were made (“the 2019 orders”) providing that all previous parenting orders be discharged and that the children live with the mother and spend limited supervised time with the father at a contact centre. The parties were also ordered to engage in family therapy and certain restraints were made upon them including that they be restrained from physically disciplining the children. Orders were also made for the preparation of a Family Report.
In June 2019 another Judge of this Court heard the father’s various contravention applications made against the mother. Upon considering objections to evidence by counsel for the mother, all alleged contraventions were struck out as unsupported by evidence or otherwise dismissed. The father was then ordered to pay the mother’s costs in relation to those applications.
In September 2019 the father formally discontinued his application to set aside the 2017 property orders.
In October 2019 the family met with the family consultant for a second time for the preparation of a Family Report.
The proceedings in the Federal Court regarding the father’s bankruptcy were heard on a final basis in early December 2019, though little is known about the outcome of that hearing.
Following the release of the Family Report in early 2020, the parties agreed to attend Family Dispute Resolution in an attempt to resolve the proceedings.
The children did not spend supervised time with the father in accordance with the 2019 orders until January 2020. The mother deposes that subsequent visits were cut short as a result of the children feeling unsafe.
On 28 February 2020 the children last spent time with the father.
In March 2020 the contact centre advised that its services were suspended due to the restrictions associated with the COVID-19 pandemic. Although the contact centre resumed business in June 2020, according to an email sent from the centre to the mother, the children’s supervised time with the father was cancelled by the father as he indicated to the contact centre that he no longer required its services.
Although it is unclear whether the parties engaged in Family Dispute Resolution as intended, by August 2020 the father formally discontinued his entire application. At a court event before a Registrar in October 2020 the father confirmed that he no longer sought to be involved in the proceedings and indicated that he considers his decision to discontinue his application to be in the best interests of the children.
The mother pressed her application for final parenting orders and in December 2020 amended her Response seeking the following orders:
·That she hold sole parental responsibility for the children;
·That the children live with her;
·That the children spend no time and have no communication with the father;
·That she be at liberty to make an application to the Registry of Births, Deaths and Marriages to change each child’s name by removing their middle name associated with their father; and
·That she be at liberty to apply for a passport for each of the children and that the children be permitted to travel overseas with her without the father’s consent.
Given the father had withdrawn his application and subsequently disengaged in the proceedings, I was easily satisfied that it was in the children’s best interests for the matter to be finalised and dealt with in his absence. The proceedings were then listed for undefended hearing before me on 15 February 2021.
The final hearing
There was no appearance by or on behalf of father at final hearing and the mother was represented by counsel.
In the course of the hearing, both counsel for the mother and the ICL sought a finding that the father poses an unacceptable risk of harm to the children.
At the conclusion of the hearing, both the mother and ICL agreed on a proposal that the mother hold sole parental responsibility for the children and that the children live with her. Final orders were made in these terms on the basis of the father’s disengagement and the fact that he had not been involved in the children’s lives since August 2020. While both parties also agreed on an order that the children have no contact with the father, I indicated that I only proposed making that order pending final judgment.
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.
In both her initial assessment and Family Report, the family consultant also made note of the sexual abuse allegations made by mother against the father and the father against the maternal grandmother, and the Department’s involvement in response to these matters. Although she acknowledged that determining the veracity of these allegations is a matter for the Court, in the second assessment in particular the family consultant opined that if neither account is found to be true:
…[this] would raise concern about the parent’s motivation in making false allegations and engendering false representations of the parent with the Court and possibly with the children. This may be an indication that that parent is not able to prioritise the needs of the children over their feelings in relation to the other parent.
The family consultant identified in both assessments that the parties each expressed negative feelings about the other parent’s parenting capacity. When reporting their concerns about mental health difficulties experienced by the other, each parent asserted that the other parent had a “personality disorder” that affected their parenting of the children. It was clear to the family consultant that the parties do not have the capacity for a cooperative, co-parenting relationship and in the 2020 Family Report she opined “[the mother’s] focus on [the father] being an unfit parent may prevent her from focusing on the needs of the children if they were to spend increased time with [the father]”.
Some concern was also raised about the children being influenced by the mother’s views and feelings towards the father. It was the family consultant’s general opinion in both reports that the children appeared strongly aligned with the mother and rejecting of a relationship with the father. During their interviews, each of the children spoke negatively about the father and expressed some reluctance about spending time with him. Only the younger daughter was briefly observed with the father in the second assessment, as the other siblings refused to interact with him.
While the family consultant stated that she is unable to determine whether the children’s attitude in this regard is a result of lived experience or the mother’s influence (be it, deliberate, inadvertent or indirect), she concluded that the children’s primary relationship is likely to be with the mother, acknowledging the children’s limited experience of the father over the years. The family consultant also raised some concern about the mother refusing to facilitate the children’s time with their father commenting:
Although [the father]’s recent parenting capacity with the children is untested, being able to spend time with a loving, attentive father who is present and active in all facets of their life leads to a bond between them that promotes the children to do better academically, socially and psychologically. Children who spend time with both parents are likely to do better in school, make friends more easily, they are less likely to involve themselves in risky behaviours, such as smoking and drug taking, and they are less likely to suffer from anxiety, depression and stress related illnesses. These benefits can persist even when one parent does not agree to the other parent spending time with the children and there is conflict between the parents.
The family consultant went on to say that when assessing the mother the second time it was her observation that the mother appeared “desirous to exclude the children from [the father]’s life”. The family consultant opined that if the mother’s allegations against the father are found to have substance then this behaviour could be seen as “suitably protective of the children”. If not, there are risks of exposure to false representations that can damage the children’s already limited relationship with the father and cause an emotional rejection of him. The family consultant indicated that such interference is a form of psychological abuse to the children and may also call into question the mother’s ability to prioritise the children’s needs above her own.
In the 2020 Family Report the family consultant considered each parent’s proposal for the children’s parenting arrangements more closely against the various risk factors identified. The family consultant discussed that if the children are not considered to be at an unacceptable risk of harm in the father’s care and the mother remains unwilling to facilitate the children’s time with him, consideration could then be given to the children living with the father and spending time with the mother. The family consultant added however that this would see a “major disruption” to the children’s lives.
The family consultant advised against the father’s proposal in 2020 for an equal parenting arrangement, opining that the parents do not have any “functional post-separation parenting relationship, involving communication and shared decision-making regarding the children”. The family consultant then expressed doubt that the parents would be able to develop the level of cooperation that is likely to be required for an equal time arrangement to succeed.
Finally, the family consultant considered that if the Court determines that it is appropriate for the children to remain living with the mother and they are not at risk if they were to spend time with their father, an arrangement where they spend increasing time in the father’s household with “reduced reliance on supervision” may be beneficial. In this instance, the family consultant recommended that the parents share parental responsibility for the children and that they also engage in family therapy to assist them in developing a more functional co-parenting relationship.
At the conclusion of her 2020 report the family consultant ultimately recommended that an arrangement that would see the children live with one parent and spend significant and substantial time with the other parent would be in the children’s best interests.
THE MOTHER’S ALLEGATIONS ABOUT RISKS POSED BY THE FATHER
It is the mother’s case, which the ICL supports, that the father poses an unacceptable risk of harm to the children. It is on this basis that the mother seeks orders that the children spend no time and have no contact with the father.
At final hearing, counsel for the mother in particular submitted that the father poses a risk of sexual, physical and psychological harm to the children and sought findings to this effect. It was also submitted on the mother’s behalf that if the father were not found to pose an unacceptable risk of harm to the children, it is nevertheless in the children’s best interests to spend no time with him due to the level of hostility between the parents and the father’s inability to protect the children from the parental dispute.
Risk of sexual abuse
In support of her contention that the father poses a risk of sexual harm to the children, the mother replies upon various disclosures of sexual abuse and untoward conduct by the father said to have been made by the children.
In her trial affidavit she deposes to the following incidents:
·In December 2017 the son disclosed to a family doctor that the father “gives [the older daughter] grown up kisses on the lips”;
·The older daughter confirmed at a subsequent counselling session that the father gives her “adult kisses” which she wants to stop;
·In mid-August 2018 the younger daughter reported to her that the father “put his finger up my bum”;
·The younger daughter repeated to the female family doctor during two separate appointments in August 2018 that she had been inappropriately touched by the father;
·In around late 2018 the children complained that during overnight time with the father they all slept in one bed with the father who was naked, and the father otherwise walked around the house naked and on at least one occasion showered with the son and required that the two daughters watch.
In addition to complaints she says the children have made to her, the mother deposes that they have each exhibited concerning behaviour when returning home from the father’s care. For example, she deposes that when the children commenced spending weekend time with their father in around October 2017 she noticed the children becoming “more withdrawn and having nightmares” and that the two daughters in particular began to wet the bed. She also claims that each child became extremely reluctant to spend any time in the father’s household.
The mother also maintains that following disclosures made by the younger daughter, the children displayed behaviour that suggested to her that they were unsettled. She deposes that the children “began acting up”, were “whingy and clingy” and that the older daughter in particular reverted to biting her fingernails. She also describes that since disclosing sexual abuse by the father, the younger daughter increasingly engaged in sexualised behaviour such as gyrating and placing a stuffed toy or pillow between her legs, and had also experienced a number of “temper tantrums”.
Although most of these sexual abuse allegations grounded notifications made to the Department, of those referred to and investigated by JIRT, none were ultimately substantiated.
In the course of the proceedings, concerns were raised by the father and JIRT investigators that the mother encouraged or coached the children to make allegations against the father, which has at all times been denied by her. In response to JIRT’s non-substantiation of the sexual abuse allegations made against the father, the mother deposes to certain misgivings about the whole investigation and further contends that the children’s disclosures were otherwise “minimised” and “incorrectly handled”.
Risk of physical and verbal abuse
In her trial affidavit the mother also deposes to physical and verbal abuse by the father towards the children which she submits also ground a finding that he poses an unacceptable risk of harm to them.
Although the mother does not provide specific incidents of physical and verbal abuse by the father, she contends that throughout their relationship the father had “zero tolerance” and “very little patience” when it came to the children. She deposes that he yelled at them or used physical punishment such as “excessive smacking and flicking” and also locked the children in their rooms or would “whack them with a shoe”. She further deposes that the father punished the children for the most trivial of things including smacking them “for wriggling at the dinner table”. Further in her affidavit the mother says that she always tried to divert the father’s anger away from the children and to herself, and otherwise intervened when the father punished them.
It is also the mother’s case that the children have made complaints about physical and verbal abuse in the father’s care. She says on several occasions the older daughter in particular reported that the father “flicked” the children and also “yell[ed] a lot” at the younger children. She also deposes that the children’s experience of wetting the bed after returning from the father’s care, and certain self-harming behaviours particularly exhibited by the son, are also a function of the impact of the father’s physical abuse upon them.
In both assessments with the family consultant in 2019 and 2020, the mother repeated her concerns for the children’s physical safety and according to both reports made by the family consultant (Exhibits 2 and 3), each of the children also recounted physically aggressive behaviour by the father when interviewed.
Although the mother gives evidence of such abuse occurring before and after separation, only one report regarding physical discipline was made to the Department in August 2018 which was investigated by JIRT but also found to be unsubstantiated.
Family violence
It appears from the tenor of oral submissions made on the mother’s behalf that while the mother does not seek a positive finding that the father perpetrated in family violence towards her, she seeks that the Court find that the children are at risk of psychological harm in his care based on their exposure to family violence before and after separation.
Throughout the proceedings both the mother and father have made serious allegations of family violence against each other. It was common ground between them that the violence was persistent when their relationship was intact and that the children therefore witnessed this behaviour.
In particular, the mother deposes to various instances prior to separation when the father was physically aggressive towards her which resulted in police intervention on at least two occasions. She also deposes to a long history of controlling and coercive behaviour by the father and constant denigration from him including in the presence of the children which continued following separation.
Although the mother insists that on various occasions between May 2016 and May 2018 she made reports to police about “ongoing assaults, intimidation and text message threats” by the father, it appears no orders were made for her protection despite some attempts to apply for such orders.
According to medical records annexed to the mother’s affidavit, as well as observations made by the family consultant in both her reports, the children have reported witnessing the father’s violent behaviour towards the mother over the years. In both her interviews with the family consultant the mother reiterated that her relationship with the father was characterised by ongoing conflict and that despite having minimal contact with the father after separation she remains concerned about her physical and emotional safety.
Only one report alleging that the children were exposed to domestic violence by the father was made to the Department in 2017, which according to the Magellan Report (Exhibit 1) did not proceed to secondary assessment and was subsequently closed due to competing priorities.
Neglect of the children
Another domain of harm the mother contends places the children at risk in the father’s care relates to his limited parental capacity.
The mother makes a litany of complaints about the father failing to meet the children’s needs during periods of time they spent with him pursuant to court orders. She deposes that on various occasions they have returned to her care unkempt and severely unwell. She further deposes that at times the children have complained of having limited access to food in the father’s care, and that basic hygiene needs such as a change in underwear were ignored. The mother also alleges that the children have reported the father making them share the same toothbrush.
The father’s mental health
The mother also raises concern about the father’s mental health and certain “self-destructive behaviours” in which she says he engaged in the past. It is her case that in the years prior to separation the father expressed suicidal ideation (including in the presence of the children) that led her on one occasion to seek the help of the paternal grandfather. She also alleges that the father confirmed that he had a “personality disorder”.
The mother also deposes that despite engaging in some therapy the father’s mental health difficulties persisted and manifested as abusive behaviour towards the family including at times the maternal grandparents. She further deposes, with reference to copies of letters sent from the father’s employer, that the father was requested to terminate his employment on two occasions as a result of misconduct in the workplace. She insists that the father’s behaviour on these occasions were linked to his “anger and psychological issues”.
In June 2017 a risk of harm report was made the Department alleging that the father had left loaded syringes containing anti-psychotic medication around the house, but this report was screened out with no further investigation.
When assessed by the family consultant in 2019 and 2020 the mother maintained her concerns that the father’s mental health difficulties affected his parenting capacity.
Discussion – does the father pose an unacceptable risk of harm to the children?
Notwithstanding the plethora of allegations made by the mother against the father and her unshaken fear for the safety of herself and the children, it is in my view unnecessary to make factual findings in circumstances where the father has abandoned his entire application.
I consider that there is sufficient evidence for me to be satisfied that the proper orders to be made in relation to the future care of the children is that they have no contact with the father having regard to their best interests as the paramount consideration given he is not seeking any involvement in the children’s lives in the future.
At his last appearance before the Court in October 2020, the father advised the Court that he considered his withdrawal from the proceedings to be “in the best interests of the children” (Exhibit 4). Apart from filing a Notice of Discontinuance, the father failed to appear at the final hearing and can therefore be taken to have forfeited any interest in maintaining a role in the children’s lives.
Against this background, it is not necessary for me to make the findings sought by the mother that the children would be exposed to an unacceptable risk of harm in the care of the father in order to make orders that are proper in these circumstances.
THE LAW & DISCUSSION
The objects of Part VII of the Family Law Act 1975 (Cth) ("the Act") and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects 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 children; 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.
The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of a child as the paramount consideration.
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.
I am satisfied, therefore, that the children do not currently have a meaningful relationship with the father and accordingly there is no positive benefit to them in attempting to craft orders to foster their relationship with him in circumstances where he has discontinued his application for any such orders.
As discussed earlier, I also consider it unnecessary to explore the risks of harm the mother alleges the father poses given that I consider that it is not in the children’s best interests to have any contact with him on the basis of his discontinuance from the entire proceedings.
Although the need to protect the children from any such harm would otherwise be of great significance in these proceedings having regard to the nature of allegations made by the mother about the father’s conduct, I consider the mother’s proposal supported by the ICL that the children spend no time and have no communication with the father, and the father’s subsequent non-involvement in the children’s lives, sufficient to limit the children’s exposure to any such risk.
While there had also been some concern raised about the children’s wellbeing in the mother’s household arising from an allegation made against the maternal grandmother involving inappropriate touching of the son, these matters were investigated by JIRT throughout late 2018 and found to be unsubstantiated. In any event, by virtue of the father’s withdrawal from the proceedings and in the absence of any evidence other than his past assertions this is no longer a live issue.
Additional considerations: s 60CC(3)
The two primary considerations are effectively determinative in this case and for this reason the additional considerations set out in s 60CC(3) need be given only limited consideration. In these circumstances, it suffices to observe the following.
In both assessments with the family consultant, each child spoke negatively of the father and expressed an unwillingness to spend time in his household. The family consultant held the view that the children’s views appeared in part to be influenced by the mother’s expressed feelings about the father, which were concerns also held by the Department during their investigation in late 2018. In these circumstances, and given the children’s young ages and limited experience of the father throughout their childhood, I accept the family consultant’s recommendation that limited weight should be attached to the children’s views when considering what parenting arrangements are in their best interests.
As discussed, the mother has been the children’s primary care giver throughout their lives, while the children have had little to no contact with the father following separation. As observed by the family consultant, the children’s primary attachment is to the mother with whom they have also been observed to have warm and positive interactions. This is to be contrasted to the children’s relationship with their father which on the mother’s evidence has been limited due to her serious concerns about their safety in his care, as well as the father’s failure to attend scheduled changeovers and his lack of engagement with the contact centre.
Against this background, it appears unlikely that maintaining the children’s relationship with their father would be of benefit to them especially given that he has abandoned his application for parenting orders and can be taken to no longer seek to have any involvement in the children’s lives in the future.
Moreover, I have little confidence that the mother would be willing to facilitate the children’s time with the father if such an order were determined to be in the children’s best interests. As is apparent in the 2019 and 2020 reports prepared by the family consultant, the mother appears to struggle in promoting a positive relationship between the children and the father, and would have difficulty in accepting that it is to their benefit to spend time in his care. While the family consultant raised some concerns about the impact on the mother’s parenting capacity as a result of this type of behaviour, in my view, any negative impact on the children arising from the mother’s mistrust of the father may be reduced in circumstances where the children are having no contact with him whatsoever.
While the family consultant also opined that there are benefits to having both parents present in the children’s lives, I do not consider it likely that the children will experience a real loss under the care arrangement proposed by the mother and supported by the ICL having regard to the limited nature of their relationships with their father for many years since separation.
Given the children have also consistently lived in the mother’s care and have spent limited with the father over the years, I consider there to be no real change in the children’s circumstances other than providing them more stability in making orders relating to their parenting arrangements on a final basis.
The mother gives uncontroversial evidence that since birth she has been primarily responsible for meeting the children’s needs while the father was in full-time employment. Although she acknowledges that on some occasions she has received child support from the father, she maintains that she has generally met all the financial needs of the children and that currently the father’s child support arrears are in excess of $2,500.
The mother has also demonstrated a capacity to meet the children’s emotional and health needs by seeking appropriate medical attention and also engaging the children in therapy during the time she says she observed them exhibit concerning behaviours.
Following separation, the mother has also been solely responsible for all decisions concerning the children. There is little evidence to suggest that the father was actively involved in the care of the children during this period and his disengagement from the proceedings reflects poorly on his attitude towards the children and his parental obligations.
There is some evidence that the maternal family also assist the mother in the daily care of the children and have done so particularly since the father left the family home in late 2016. Although the children were not observed with any of the members of the maternal family in either assessment with the family consultant, during their interviews they spoke positively about the maternal grandparents and told the family consultant that “family” consists of both the mother and the maternal grandparents.
The younger daughter has been diagnosed with Autism Spectrum Disorder for which the mother has ensured the child receive appropriate therapy. The mother says the child has made significant progress in her development and also annexes to her affidavit copies of the children’s recent school reports which indicate they are each excelling in school. Coupled with positive accounts of the children’s involvement in extra-curricular activities and sports, I have little doubt that the children are thriving under their mother’s care.
Both the mother and father have made serious allegations of family violence against each other in the course of the proceedings and at one stage orders were made restraining them from denigrating each other in the presence and hearing of the children. There appears to be no dispute that as the level of parental conflict is high the parties do not have capacity to maintain a co-parenting relationship. While the mother deposes to the children’s exposure to the hostility between the parties over the years, I accept the family consultant’s opinion in her 2020 report that an arrangement of no communication between the parents “may prevent further incidents of family violence and protect the children from being exposed to conflict between them”.
At final hearing the ICL also relevantly highlighted that not only have the children been embroiled in protracted litigation between the parents, but as a result of the various allegations made in the proceedings they have been engaged in various interventions involving staff from the Department, police and a number of medical and therapeutic professionals. It is therefore in the children’s best interests for the parental dispute to be finalised and having regard to the father’s disengagement from the proceedings, the orders that would in my view be least likely to lead to the institution of further proceedings, are those sought by the mother.
PARENTAL RESPONSIBILITY
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines "parental responsibility" as "all the duties, powers, responsibilities and authority which, by law parents have in relation to the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child's best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In the present case, there are reasonable grounds to believe that the father has engaged in family violence and for this reason the presumption does not apply. There is also evidence in the proceedings to suggest that the level of paternal conflict is such that the parents are not capable of communication or negotiation between them that would be necessary in the exercise of shared parental responsibility.
The expression "sole parental responsibility" is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother and supported by the ICL must mean that the mother would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children, and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
In light of the conflict-laden relationship between the parents, and as the father has disengaged from proceedings, does not seek any orders and can therefore be taken to have no interest in meaningfully participating in long-term decision-making regarding the children, I am easily satisfied that it would be in the children's best interests for the mother to have sole parental responsibility for them.
OTHER ORDERS SOUGHT BY THE MOTHER
Passport application and international travel
The mother seeks a further order that she be permitted to travel overseas with the children and apply for their passports without the consent of the father. The ICL supports this order.
Section 11(1) of the Australian Passports Act 2005 (Cth) relevantly provides that a Minister must not issue an Australia travel document to a child unless:
(a)each person who has parental responsibility for the child consents to the child having an Australian travel document; or
(b)an order of a court of the Commonwealth, a State or a Territory permits:
(i)the child to have an Australian travel document; or
(ii)the child to travel internationally…
In determining an application for obtaining a passport for a child without the consent of a parent and permission for that child to travel overseas, the Court must have regard to the best interests of the child.
Having regard to the particular circumstances of this family, I am satisfied that it is in the children’s best interests to allow the mother to apply for their passports and travel internationally with them without the father’s consent. Those circumstances include the nature of the co-parenting relationship between the parties (that may invite further conflict between the parents should they be required to deliberate about these matters), and the reality that the father no longer seeks to take part in long-term decision-making affecting the children by virtue of his disengagement from the proceedings.
I consider that the mother’s liberty to obtain the children’s passport and travel with them is a natural extension of an order that she exercise sole parental responsibility for the children, which, for the reasons given, is proper in the circumstances.
I also accept the submission made on the mother’s behalf that the children should not be denied the opportunity for overseas travel nor be exposed to further litigation in the event the father were to withhold his consent and require the mother to reapply to the Court.
Changing the children’s names
The mother also seeks an order that she be allowed to change the children’s names by removing their middle names.
It is the mother’s case that when the children were born the father had registered this name without her consent. She further deposes that under her particular European culture, it unusual for children to be given a middle name.
At final hearing, it was maintained on the mother’s behalf that middle names in the mother’s culture are not popular. Counsel for the mother further submitted that as the children have virtually been in the mother’s primary care throughout their life it is in their best interests to have a name that is more representative of the mother’s culture and her wishes at the time of their birth.
The ICL did not wish to be heard on this issue. The ICL explained that she was unable to ascertain the children’s wishes in relation to this matter as she did not interview them given they have already been involved with a number of third parties as a result of the proceedings.
Sections 28(3) and (5) of the Births Deaths and Marriages Registration Act 1995 (NSW) relevantly provides:
(3)An application for registration of a change of a child’s name may be made by one parent if:
(a)the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law (including a corresponding law), or
(b)there is no other surviving parent of the child, or
(c)a court approves the proposed change of name.
...
(5)If any court (including any court of another State or the Commonwealth) approves a proposed name for a child, the court may order the Registrar to register the child’s name in a form specified in the order.
The Court must only make an order changing a child’s name if it is determined to be in the child’s best interests. As Warnick J held in Fooks v McCarthy (1994) FLC 92-450:
There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.
There are a number of cases that have dealt with an application to amend a child’s surname rather than a change in their middle name. In relation to a change in surname, the Full Court in Chapman and Palmer[4] has summarised that the factors to which the courts should have regard when making such an order include:
(a) The welfare of the child is the paramount consideration.
(b) The short and long-term effects of any change in the child’s surname.
(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
[4] (1978) FLC ¶90-510; see also Beach and Stemmler (1979) FLC ¶90-692.
I am of the view that an application to change a child’s middle name is not as significant as an application to change a surname, so these principles apply with less weight to the application under consideration. In applying the paramountcy principle in the present case, I am satisfied that such a change in the children’s name is in their best interests.
First, there are in my view no likely short-term or long-term effects in relation to the children’s identity if the middle name given to them at birth is changed (by being in effect, deleted) having regard to the likely lack of significance of a middle name to their identity. Further, they will continue to retain their identity with the paternal family by retention of their surnames.
The concern the mother holds about the children’s middle name being incongruent to her culture is given some weight and such concern is easily ameliorated by granting her application for such a change.
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.
I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 5 August 2021