WILDE & FOSTER

[2020] FamCA 440

FAMILY COURT OF AUSTRALIA

WILDE & FOSTER [2020] FamCA 440

FAMILY LAW – CHILDREN – Parental responsibility and change of name

APPLICANT: Mr Wilde

RESPONDENT: Ms Foster

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2427 of 2018

DATE DELIVERED: 3 June 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Doolan Wagner Family Lawyers

RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. That the father have sole parental responsibility for the children, X born … 2014 and Y (“Z”) born … 2017 (“the children”).

2. That the children live with the father.

3. That the children spend time with the mother as agreed between the parties.

4. That the father be permitted to travel on holidays with the children outside the Commonwealth of Australia to such destinations as he chooses without requiring the consent of the mother.

5. That until the children attain the age of 18 years the father is authorised and permitted to apply for, receive and retain for safe keeping an Australian passport for each of X born … 2014 (a male) and Y born … 2017 (a male) without requiring the consent of the mother.

6. That the father is authorised and permitted to legally change the name of Y born … 2017 to Z without requiring the consent of the mother.

7. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilde & Foster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2427 of 2018

Mr Wilde

Applicant

And

Ms Foster

Respondent

REASONS FOR JUDGMENT

1. Mr Wilde (“the father”) and Ms Foster (“the mother”) are the separated parents of two children, X born in 2014 and Y (known as Z) born in 2017.

2. Both of the children live with the father. The children have not had any contact with their mother since March 2019 in circumstances which will be more fully explained later in these reasons.

3. The father seeks final orders giving him sole parental responsibility for the children; for the children to live with him and for them to spend time with the mother as agreed. Further the father seeks orders permitting him to take the children overseas for holidays and to renew and retain their passports. Lastly, the father seeks an order which enables him to register the change of Y’s name to “Z” without the consent of the mother.

4. The matter comes before the Court in the absence of the mother. The mother has not attended successive court events and has not filed any affidavit.

5. An Independent Children’s Lawyer (“ICL”) has been appointed for the children. The ICL supports the father’s application for final orders.

HISTORY

1. The parties separated in September 2017 although they remained living in the same house for some months. In April 2018 the father commenced proceedings in relation to the parenting of the children and in May 2018 he moved out of the shared house with the children and they have since been in his care.

2. On 21 May 2018, interim orders were made which provided for the mother to have contact with the children, supervised by B Group on three occasions each week.

3. On 6 July 2018, orders were made after contested interim proceedings before McClelland J. In that judgement, his Honour sets out the mother’s history of mental illness commencing in about 2000. It is not necessary to repeat that history here. It is sufficient to say that, in those proceeding, the mother proffered an undertaking to the Court that she would comply with all reasonable medical advice and recommendations and attend regularly upon her treating psychiatrist.

4. The orders provided that the mother’s time with the children continue on three occasions each week supervised by B Group and that she have Skype or Facetime contact on days when she did not have physical contact.

5. The supervised contact continued until 21 October 2018 when the mother stopped attending.

6. On 30 October 2018, the mother removed Z from the father’s care and on 31 October 2018 an ex parte recovery orders was made. Z was returned to the father by police on 1 November 2018.

7. The mother resumed spending time with the children in February 2019 but in March 2019 B Group terminated the supervision.

8. Reports of the supervisors record some difficulties in containing the mother’s behaviour.

9. The last supervision report from B Group, dated 8 March 2019, is in evidence. The supervisors noted that X was upset by the mother’s shouting and aggressive behaviour during the visit.

10. Ultimately, after the police were called and the father was telephoned and asked to collect the children, the supervisor terminated the visit.

11. The father continued to facilitate FaceTime calls to the mother and she sporadically answered until May 2019 when she stopped taking the calls.

12. In September 2019, the father’s solicitors wrote to the mother suggesting an alternate supervision agency but she did not respond.

13. The mother did not contact the children at Christmas 2019.

14. The substantive proceedings were listed for call-over on 6 March 2020. The mother did not attend. Orders were made for the matter to be heard on an undefended basis. The ICL served a copy of those orders on the mother, by personal service, at her then address.

15. On 28 April 2020, the mother telephoned the father and said that she had moved from her rented premises. She declined to give him her new address.

16. The matter was listed for the first day of the trial on 1 May 2020. The mother did not attend. Orders were made for the matter to be listed before me for hearing on 3 June 2020 and directing the mother to file any material upon which she sought to rely by 4pm on 22 May 2020. The ICL sent a copy of the orders to the mother by email.

17. The mother did not file an affidavit.

18. On 25 May 2020, the ICL wrote again to the mother by email, confirming that the matter would be heard on 3 June 2020 and that it was likely that, if she did not attend, orders would be made in the form sought by the father.

19. On 3 June 2020, the mother did not attend.

THE CHILDREN

1. X started school in 2020. The father arranged for him to be assessed by a paediatrician as he was observed by his teacher to have difficulty concentrating.

2. X is enrolled in junior soccer and is attending swimming lessons.

3. Z attends day care for four days each week.

4. The father and the children live in rented accommodation where the children each have their own bedrooms.

5. The father works as a fund manager and is able to work largely from home and with sufficient flexibility to accommodate his care for the children.

6. The father has been the primary carer of the children since at least May 2018 and the mother does not see them or contact them.

7. Neither does she involve herself in any aspect of their care or respond to the father’s efforts to involve her in their lives.

8. It is necessary that the father have the authority to make major decisions relating to the children’s welfare in circumstances where the mother is not available to share that decision making.

9. The orders sought by the father are appropriate and in the best interests of the children.

CHANGE OF NAME

1. Although the name on Z’s birth certificate is “Y”, the father deposed that when he was about six months old, the parents decided that he should be called “Z”. The father deposed that the mother then used that name when referring to him.

2. The father deposed that he responds to the name “Z” or a shortened form of the name and is known to family, friends and his day carers as “Z”.

3. The father has asked the mother to sign the documents necessary to record the change of name but she has not responded to his request.

4. I am satisfied that it is appropriate that the father be authorised to complete the formal change of name.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 June 2020.

Associate: 

Date:  03/06/2020