Myra Moody

Doonan & Bradshaw [2014] FCCA 2666 (28 November 2014)

Can your Facebook posts be used against you as evidence in the Family Court?

YES IT CAN!

ANYTHING you say or post on social media whether intentional, implied, and mistaken, including emails to the OP family may be used as evidence in Court.

In this challenging parenting case concerning the best interests of two young children, which comprises of competing applications for the children to live primarily with each parent, Facebook posts were referred to throughout by both parties who were regarded as ‘flawed personalities.’ The mother had posted such things on Facebook as “I don’t regret having my kids, but I regret having them with such a selfish b@#*&%d! “Who the f@#*k favourites kids?”

Additionally, the mothers new partner posted such things as “Listen here hero don’t be threatening me with guns!!! I have my licence too f@#*#t..!!! N good on u for 13yrs of kickboxing coz ur gonna need it I was brought up on the streets!!! Anytime any place anywhere.” It was subsequently established the mother’s partner’s behaviour was wholly consistent with the Facebook posts. The Judge affirmed that the mother’s partner is no stranger to violence.

The Judge remarked at [189] ‘the mother is plainly still a person lacking in self-control, the offensive nature of her stupid Facebook posts makes this clear.’ The mothers offensive Facebook posts highlighted to the Judge that her behaviour is childish for her age.

The Judge was concerned with the nature of Facebook posts from all involved, whilst the posts were not the determinative factor in this case, they significantly assisted the Judge in forming a view of the parties involved.

 FACTS SUMMARY:

• Separated children aged 5 and 3.
• Both parents seek for the children to live with them and spend time with the other parent.
• Substantial cross allegations of drug and alcohol abuse.
• Mother has re-partnered; the new partner is aggressive and prone to violence.
• The Family report writer recommends the children to live with father.
• Both parents are deemed flawed.

ISSUE:

• What parenting arrangement will be in the children’s best interests?
• Are the children at risk with the mother’s partner?

HELD:

It was determined it was in the children’s best interest to live with father and spend time with mother as per recommendation by the report writer.

This matter was determined pursuant to s.60CC of the Family Law Act.

The children have lived mainly with the father as their primary carer all their lives, except for the instances when the mother has over held the younger child. Both parents have ‘flawed personalities’ however they both love their children.

The Judge agreed that the father’s concerns about the mother’s partner are reasonable.The Judge did not order the fathers proposal to prevent the children from being brought into contact with or left alone with the mother’s partner, for this would not work. The Judge has confidence that the mother’s partner statement that he never hits the children is truth, however, the Judge expresses doubt that may be the case with women.

#parenting 

McClelland & Rhodes [2019] FCCA 357 (27 February 2019)

The Judge agonised with making the decision in this case...

This dispute comprises of whether the applicant should remain having a role in the child’s (aged 5) life.The applicant and the biological mother were in a same sex de facto relationship for 16 years.

The relationship ended before the child’s conception however, they remained residing under the one roof after they broke up additionally, they were still both trying together to succeed in a pregnancy for the biological mother through artificial insemination. They both decided the applicant would have a parental role in child’s life following his birth and they continued to reside together and for both of them to be involved in parenting of the child until he was about 14 months old.

Moving forward, the biological mother eventually wanted to default on this agreement and developed a highly resistant attitude for the applicant spending time with the child.The biological mother became obsessed with the fact she is the child’s biological mother and that the applicant has no biological connection with the child. The biological mother lacks comprehension of the complexity of the case and cant understand why the applicant may even have a possible right to seek parenting orders for the child.

There’s also a little twist...the mother didn’t actually fall pregnant by artificial insemination, she had a sexual relationship with a local man who is married and has other children (confirmed by DNA test) this did not become known to the applicant until proceedings commenced.

Both women were deemed highly capable of meeting the child’s needs, he is developmentally delayed. The child is well loved and has a warm relationship with both women.

FACTS SUMMARY

• Both women were in a same sex relationship, which ended before the child’s conception.
• They both continued residing under the one roof after they broke up and were both trying together to achieve the biological mother a conception mother by artificial insemination.
• They both agreed that they would both parent the child conceived by the mother.
• After eighteen months, the biological mother wanted to default on this agreement and became resistant to the applicant spending time with the child.
• The child is now 5 years, and is developmentally delayed but has a fond, loving relationship with the applicant.
• After proceedings began, the biological mother disclosed that the child had not been conceived by artificial insemination but had been conceived as a result of a sexual relationship with a local man.
• The local man has been confirmed by DNA testing to be the father of the child but has never wished to be a party to the proceedings and spends limited time with the child.
• The ICL supports the applicant for time spent with the child, the Family Report Writer also sympathises with the applicant, however cannot agree with the applicant orders sought.

ISSUE:

• Does the applicant have standing to apply for parenting orders?
• If the applicant does have standing for parenting orders, will it be in the child’s best interest to facilitate time spent with the applicant?

HELD:

Application dismissed. It was ordered that it’s not in the child best interest to continue visitations with the applicant. The Judge provided the applicant an extra two visits with the child before ceasing, so they could both say goodbye to each other.

It was determined the applicant did have standing to bring forth the parenting application pursuant to s 65C(c) of the Family Law Act 1975. The judge asserts that this application cannot be rejected just because the applicant has no biological connection to the child. It was established that due to the involvement of the applicant in the child’s life since his birth, proves the respondent is a person concerned with the care welfare or development of the child.

Furthermore, the Judge determined this matter by applying the child’s best interests as the paramount consideration pursuant to s. 60CC(2)and (3) of the Family Law Act 1975.

The judge rationalises that some of the facts in this case can be comparable to the case ofAldridge & Keaton [2009] FamCAFC 229, where it was determined the applicant could spend regular time with the child. In saying that though the judge asserts that every case has it’s own individual facts to consider, and determined that it would not be in the child’s best interests for the child to spend time with the applicant in this particular situation, due to the biological mother’s hostility towards the applicant that will not change, the high possibility of conflict at changeovers, the mother’s mental health and the distance the parties live apart. It was acknowledged that the child will feel a great loss however, the Report Writer asserts that the child can overcome this and that it wont be detrimental to him in the long term. The Judge and the Family Report Writer expressed significant sympathy for the applicant’s outcome.

#parenting

Herbert & Herbert (No. 2) [2019] FamCA 79 (22 February 2019)

We posted a case summary in February that involved a 15-year-old boy who was ordered to live with his father. The boy does not want to reside with the father, gets on his pushbike, rides home to his mother repeatedly, and refuses to leave. 

The mother tries to take the child back to the fathers house multiple times, only to have the 15 year old jump on his bike and return back to her. It was established the mother contravened orders and visitations between her and the children were ceased

Here is the link to refresh your memory

FLAST CASE SUMMARY: Herbert & Herbert [2019] FamCA 5 (10 January 2019)

This is now the follow up case to that where the mother who is self representing now seeks a number of orders on an interim basis. This includes but is not limited to, variation of interim parenting orders for the children to return to her care on the lead up to trial, for the ICL to be discharged and the Psychologist the father and children are attending to be restrained due to ‘conflict of interest.”

FACTS SUMMARY

• The mother is presently restrained from seeing or contacting her two sons.
• The mother seeks interim parenting orders varying the current routine to return the boys to her care in the lead up to the trial.
• The mother seeks that the ICL be discharged.
• The father and the two boys are attending a psychologist for family therapy.
• The mother seeks to terminate the psychologist from providing family therapy to them, she claims there is a “conflict of interest,” - the father and psychologist work in the same building and share the lunchroom- claims the psychologist is lying to the court about it.

ISSUE

• Has there been a significant change to warrant the boys living arrangements to be varied in the interim to the Mothers care?
• Has the ICL not been discharging her duties independently and professionallyto warrant dismissal?
• Is there a conflict of interest to permit the dismissal of the Family Psychologist?

HELD

It was determined during the previous orders the 15 year old boy had missed a significant amount of school whilst in the mothers care, the court is presently satisfied the boys have been attending school whilst they are in the fathers care, the ICL asserts that there should be no change to the existing orders for the present time.The mother did not provide acceptable evidence to change the boys living arrangements to return to her care. The application was dismissed.

Furthermore, in relation to the matter of terminating the current ICL in favour of a new one, the mother did not sufficiently demonstrate that the ICL is not discharging her responsibilities independently and professionally. It was stated that it’s not an adequate reason to discharge a ICL just because they are not acting in a way that agrees with the parents’ expectations.The application was dismissed.

Moreover, the evidence specified by the mother does not warrant restraining the psychologist from seeing the father and the children. However, the Judge informed the mother that she has an opportunity to challenge the psychologist in cross-examination at the trial if she wanted to try to discredit her. The application was dismissed.

In conclusion, the judge informed the mother that this matter may be resolved without the need to go to trial if she had a family lawyer advising and representing her; she was directed to the QLD Law society to seek assistance in locating a possible family lawyer who may represent for her trial on a deferred payment basis.

#Parenting #Interim

Padbury & Wendon [2019] FamCAFC 41 (6 March 2019)

Mr Padbury appeals from orders for the settlement of property, dismissing his application for a stay plus costs.

The parties had begun living together in 2005 they then separated in 2016. Mr Padbury was a public servant; he began making contributions to his super fund in 1987. He became injured on duty, therefore he ended employment in 2014. He was successful in applying for the hurt on duty pension application.

The primary Judge observed the “value” of the fund was an independent issue to how the fund “might be treated,” or “contributions towards it assessed.” The approach to the valuation of the superannuation interest was in accordance with the Family Law (Superannuation) Regulations 2001 (Cth); this produced a calculation of $1,341,059. The parties’ net non-superannuation property was valued at $2,148,700, this means that of a total net property pool of some $3.5 million, a significant percentage included Mr Padbury’s hurt on duty pension.

The heart of the appeal claims that the primary judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.” Furthermore, Mr Padbury contributed to the fund for 18 years before living with Ms Wendon, however, the trial reasons also incorrectly state for a period of “some six to seven years.”

Ms Wendon the respondent conceded the error, the matters the primary judge said required consideration did not receive it.

FACTS SUMMARY:

APPEAL – PROPERTY 

• Appeal against property settlement orders including orders splitting Mr Padbury’s hurt on duty pension.
• Heart of appeal the judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.
• Errors of fact.

ISSUE:

Did the primary judge fail to consider the special features of the pension or the parties’ contributions to it?

HELD:

Appealable error established and appeal conceded. Orders made by consent in lieu of those under appeal. 

There were factual errors of the primary judge concerning the period during which the Mr Padbury contributed to his super fund before the start of the relationship. It was established Mr Padbury contributed to the fund for 18 years prior to living with Mrs Wendon, however, the trial reasons incorrectly state for a period of “some six to seven years” however, Mr Padbury raised this only on appeal and failed to raise this issue at trial.

Furthermore, the court states the arguments in relation to the superannuation ‘were at best cursory and misguided.’ The conduct in which the trial was commenced added to the faults apparent in the trial reasons. The primary judge still of course has a responsibility to tackle pertinent considerations, however, in light of the above the assistance offered to the judge was not sufficient with that task.

It was established the primary judge failed to attend to important relevant considerations; the court was satisfied with the basis for appeal.

Both parties then agreed on orders to be made in lieu of those made by the court below. The parties then applied for costs certificates for the appeal in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).

FACTS SUMMARY:

APPEAL – COSTS  

• No orders for costs made.
• Both parties applied for costs certificates.

ISSUE:

Should costs certificates be awarded to both parties due to the primary judge failure to focus on important relevant considerations?

HELD:

The manner of the trial contributed to errors. Applications for costs certificates rejected.

It was determined the manner in which the trial was commenced added to the faults apparent in the trial reasons. This went against the issuance of costs certificates significantly; furthermore, the parties are far from being financially disadvantaged.

 Relevant Legislation

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)

#Appeals #Property #Costs

Skivington & Skivington [2019] FamCAFC 36 (11 March 2019)

The husband pursued parenting and property orders and the wife filed a response to that application.

The judge made an order directing the parties to attend mediation and the matter was adjourned for further directions. There were several adjournments that took place some of which the court motioned other times the parties requested for more time to mediate.

The orders by consent instructed the parties they must attend mediation before the next mention date and for there to be no further adjournments, if the husband and wife failed to prosecute their claim, the matter would be dismissed on the next occasion.

During the interim stages, the parties resolved the parenting issues and had agreed to a method of valuing the property. The judge was informed the parties expect on completion of mediation for the matter to be resolved.

The matter was adjourned again in chambers at the parties’ request because the expected mediation had not occurred. The matter returned before the judge where the parties again requested more time to complete the mediation process.

The Judge dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter.

The wife appealed those orders, and claims the orders were complied with and that both parties were attending the mediation process, however the mediation process was incomplete, due to the mediator’s other commitments. The husband also conceded the judges orders were erroneous.

FACTS SUMMARY:

• The husband pursued parenting and property orders and the wife filed a response to that application.
• Orders by consent instructed the parties that they must attend mediation before the next mention date and for there to be no further adjournments.
• The judge was informed the parties expect on completion of mediation the matter to be resolved.
• The parties again requested more time to complete the mediation process.
• The mediation process was incomplete, due to the mediator’s other commitments
• The Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter.
• The wife is appealing; the husband concedes the orders were erroneous.

ISSUE:

Did the judge fail to comply with the requirements of Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth)?

HELD:

The appeal against the orders were allowed.The initiating application and response are remitted to the FCC for a rehearing with a different Judge. The court grants both parties a costs certificate.

In determining this matter Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth) provides:

13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed. 

(2) The Court must not make an order under subrule (1) if: 

(a) there is a future listing for the proceeding or a part of the proceeding; or 

(b) an application in a case relating to the proceeding has not been determined; or 

(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or 

(d) the Court has not given the parties to the proceeding notice under subrule (3). 

(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order. 

(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address: 

(a) to each party's address for service; and 

(b) if a party has no address for service--to the party's last-known address. 

It was established the matter was not “dormant” for the parties had attended mediation in accordance with the order, although the mediation was incomplete, due to the mediator’s other commitments. Whilst the process may have been slow going it was still in motion, the parties had therefore “taken steps to advance the proceedings.”

Furthermore, the judge stated at [10] “no evidence was tendered or relied upon on the adjournment application to explain why orders had not been complied with” contrary to this, a transcript extract from the submissions made on the adjournment application at [1] was included in the judges reasons.

It was determined the judge had erred in failing to consider the actions of the parties that demonstrated they were in fact prosecuting the proceedings. The judge did not clarify why the partial settlement and the incomplete mediation process were inadequate to avoid the proceedings being rejected. 

 #mediation #property #parenting #procedural #appeals

Conlan & Tomlinson [2019] FamCA 93 (27 February 2019)

The child is 8 years old and is subject to final parenting orders that provided for both parents to have equal shared responsibility. The child resides with the mother and spends time with the father. The child has a good relationship with both parents.

However, the father subsequently applied to restrain the mother, and Interlocutory orders were made, the father alleged the mother had threatened to relocate the child to the United Kingdom for a period of time and enrol the child there for school; provisions were made regarding international travel.

It’s important to note at this point, the mother had previously removed the child from school, enrolled and removed her from another school and then commenced home schooling without the fathers consent. The orders also state for a psychologist to support the child’s anxiety and the return of the child back to mainstream school.

The mother- pending final orders, notified the father of her proposal to relocate with the child to the ACT, the father considered it but did not consent. The mother then relocated with the child, notifying the father of the location and the mainstream school the child was enrolled in.

The father has now filed an application in a case seeking the return of the child to live within a 40 km radius of him with the mother, or for a recovery order for the child to live with him if the mother does not return. He sought orders related to schooling arrangements for the child and for costs. The relocation by the mother is in conflict with the orders made in relation to equal shared parental responsibility.

The mother now seeks orders allowing the child to remain in the ACT and to ultimately relocate to the UK with the child.

FACTS SUMMARY:

• Interim Parenting Orders.
• The mother made a unilateral change in the face of final parenting orders.
• The mother and child relocated to the ACT without the fathers consent.
• The mother further proposes relocation to the UK with the child.
• The father has applied for orders seeking the child be returned to the area with the mother, if the mother does not return, for the child to reside with him.
• The mother seeks to remain with the child in the act with intentions to ultimately relocate to the UK.

ISSUE:

Is it in the child’s best interest to remain in the ACT with the mother?

HELD:

It was ordered for the child to be promptly returned to the town to the fathers care, the exception is if the mother returns as well, then the child will live with her and have access to the father. The mother may also select the school for the child, however she is prohibited to change the school without the consent from the Father.

If the Mother does not return with the child, she will remain with the father and time spent with the mother will have to be considered. Furthermore, it was established the mother’s conduct was in contravention of the final orders, however, punishment for breach was not a concern in these proceedings.

The court considered the child to remain in the ACT with the mother, nonetheless there was significant concern regarding the accumulative instability in the child’s life over a period of time from the choices and conduct by the Mother

It was stated at [35] the child had changed schools once and then been removed from school completely to be home-schooled. She has then changed home, changed city, and enrolled in a new school and now there is a proposal that she may relocate to a new country.

It was therefore determined in the best interest of the child that there is a significant need for her to be provided stability, at the very least during the circumstances of the current proceedings, even if it means abrupt interruption for the child and possible amendment of primary carer.

Legislation and Principle Cases

#parenting #Interim #Relocation #Recovery

Kader & Winchester [2019] FCCA 244 (5 February 2019)

The father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time. There has been no contact between father and child for 2 years and 8 months.

The mother and father have made serious allegations against each other. The mother applied for a domestic violence order, the father subsequently was charged with a breach of those orders, for he attended the mother’s residence to collect his belongings.

The mother opposes any interim order, which considered the father having any contact with his daughter, and submits any contact between the father and child whether supervised or not would put the child at risk.

The mother claims the father had verbally and physically abused her and the child. The father denies the allegations, however does concede that he failed to buckle the child in the car seat once, resulting in the child falling out of her seat, he also admitted to having punched holes in the walls of the home on two occasions and acknowledged this was unacceptable behaviour.

The father has attended all required sessions with a family therapist, as well as having attended all other court ordered programs, despite having no assurance he will see the child again and knowing the mother is adamant he will never spend time with their daughter.

FACTS SUMMARY:

• Interim parenting orders.
• Father has had no contact with child over a period of two years and eight months.
• Father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time.
• The mother opposes any interim order for contact supervised or not.
• The father has admitted to an instance of family violence.
• The father has complied with all previous court ordered programs, therapists and courses.

ISSUE:

Does a self-confessed instance of family violence in the past from the father deprive his daughter from having contact with him?

HELD:

Pending a final determination of the orders, the mother has sole parental responsibility for the child; the child is to reside with the mother.

It was ordered for the Mother to attend a Psychologist to deal with concerns developing from the child spending time with the Father, additionally, both parents are ordered to complete the Post-Separation Parenting Orders Program. Furthermore, the father was granted supervised visitations initially at a contact centre, after no less than 10 visits at the centre with the child, both parents must attend the family report writer for the arrangement of an updated Family Report.

 The courts position in this instance pending the final orders, were that contact should be returned between the father and the child in the best interests of the child. The judge concluded that a previous history of a parent behaving unreasonably does not always mean the child will be devoid of a meaningful relationship with the parent later on, this of course relies on the parent to behave reasonably in such a way to demonstrate the best interest of the child will be satisfied.

There has been some time between contact with the father and the child (2 years and eight months) therefore, supervised visitations at the contact centre will provide the opportunity to determine if the father is capable of behaving reasonably with the child, it was established the probability of the father causing harm to the child at the contact centre is minute.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CG, 60CC, 60CA

#parenting #Interim #FamilyViolence

Department of Child Safety, Youth and Women & Brightman [2019] FamCA 80 (22 February 2019)

The Department of Child Safety and the father applies for interim and final orders regarding the child who is nearly nine months old, she was born in New Zealand and has only ever resided in that country.

The mother is Australian, towards the end of the relationship she expressed to the father that she wanted to relocate back to Australia to be with her family, the father who was born in New Zealand expressed he did not want to relocate to Australia.

After separation the mother blocked the father on Facebook, and he was unable to contact her any other way. The mother relocated with the child (5 months old at the time) without his consent and now resides in QLD.

Furthermore, the child was born with a disability from a birth injury, both parents and the child attended the first of a series of appointments in New Zealand, to begin the process for surgery in early 2019 to reattach nerves in her arm. The child has no movement in one arm from the shoulder to the fingers since birth.

The father is concerned that, as a national of New Zealand, the child may not have the same access to treatment here as she will have in New Zealand.

FACTS SUMMARY:

• The mother relocated the child to Australia without the father’s consent.
• Application under the Hague Convention for the return of the child to New Zealand
• Child has a disability from birth that requires surgery.
• Concern the child will not have access to treatment in Australia.

ISSUE:

Does the father have rights of custody for the child?

Was there a wrongful removal of the child from New Zealand?

HELD:

Interim order made. 

It was determined the father has rights of custody under New Zealand law, Care of Children Act 2004 (NZ). It was further established there is at first glance a case for a return order to be made from the supporting evidence.

Interim orders were then made for the mother to surrender her and the child’s passport to the Department of Child Safety to prevent the mother from absconding Australia with the child ( the mother was also restrained from moving from her current residence) pending the determination of the Application for an order for the child’s return to New Zealand is heard. 

The mother and child were also placed on the Family Law Watch list for two years.

Due to the circumstances of the application, priority in the allocation of a final hearing was afforded.

Family Law Act 1975 (Cth)

Family Law Child Abduction Convention Regulations 1986 (Cth)

#parenting #Interim #HagueConvention

Gorman & Gorman and Anor [2017] FamCA 257 (7 April 2017)

Can your Facebook posts be used against you as evidence in the Family Court?

YES IT CAN!

ANYTHING you say or post on social media whether intentional, implied, and mistaken, including emails can and will be used as evidence in Court.

In this particular case, the child currently lives with his great aunt, the applicant, who is the aunt of the father. The child has resided with her for a year, the parents struggle with substance abuse, mental health and family violence. The child has a half-sister, who is also not residing with the parents. Both of the child’s parents have been in and out of jail while the proceedings were on foot. Both parents did not appear at the  trial. The great aunt is seeking sole custody of the child; several Facebook posts were used as evidence to support the great aunts application. The Facebook posts revealed the mother had relapsed with her drug issues and needs to go back to rehabilitation, she also exhibits what appears to be on and off relationships in the Facebook posts with both fathers of the children who pose an unacceptable risk to the child. The ICL and Family Consultant both supported the great aunts application.

FACTS SUMMARY:

• Application by a non-parent
• Young child.
• Where the parents do not participate in the final hearing.
• Where the parents present an unacceptable risk to the child.
• The ICL and Family Consultant support the application.

ISSUE:

Do the parents pose an unacceptable risk to the child?

Is it in the child’s best interest for the Great Aunt to have sole custody?

HELD:

It was ordered for the great aunt to have sole parental responsibility for the child and to live with the great aunt.

It was determined in accordance with s 60CC that both parents are not in the position to exercise parental responsibility or have capacity to care for the child. Both parents currently present an unacceptable risk of harm to the child. At present the child cannot benefit from a relationship with either parent.

The great aunt demonstrated that she could provide the child safety and nurture. She has taken on the responsibility for the child and he is developing very well in her care, it is in the child’s best interest to remain with the great aunt.

#parenting 

Teke & Cefai [2019] FamCA 114 (26 February 2019)

The mother is seeking to discharge 2012 consent orders, the father has not complied with at all; he has effectively not been in the child’s life for eight years and has provided no financial support. The mother now seeks orders for the child to live with her, to have sole parental responsibility for all major decisions and the daily responsibility for the child’s care. The crux of the orders is to change the child’s surname.

The child is almost 9 years of age and expresses to be known by the surname of her mother. The fathers surname allegedly causes her distress when called at school, she does not understand why she has to have that surname, for she does not know where her father is or, who he is.

The father did not turn up to any of the proceedings and the mother was granted sole parental responsibility, however the question of the matter arose with the Family Courts jurisdiction to approve a change of child’s surname application, for Section 4 of Births, Deaths and Marriages Registration Act (Vic) 1996 requires the County Court Victoria to approve the applications.

FACTS SUMMARY:

• The mother is seeking to discharge 2012 consent orders.
• The mother now seeks orders for sole parental responsibility and for the child to reside with her.
• Changing the child’ surname centre of the case.
• Father of child absent virtually all child’s life.
• Father has not appeared for any of the proceedings.

ISSUE:

• Is it in the best interest of the child to grant sole parental responsibility to the mother and change the child’s surname?
• If the court grants the change of surname, how can the Registrar of Births, Deaths, and Marriages use that approval, having regard to the wording of s 26 of the relevant State Act?

HELD:

The mother was granted a discharge of the 2012 consent orders and was awarded sole parental responsibility for the child. It was ordered for the Registrar of Births, Deaths of Marriages to the change the name of the child under s 26(3), of the relevant State legislation on the basis that the Court approves the change of name, as an occurrence of the parental responsibility.

The court considers a parenting order under Section 60CA which states the best interests of the child are the paramount consideration.       The father has shown no interest and has not attended the proceedings; furthermore, s 60CC  one of the primary considerations for the best interest of the child is the benefit to the child of having a meaningful relationship with both parents. There was no evidence of anything preventing the father being in the child’s life. The father has willingly not participated in the child’s life, provided gifts or recognition of the child’s birthday or other special occasions, there was no communication, in other words, he lacked complete interest in the child. The court awarded the mother sole parental responsibility for the best interests of the child, for she cannot benefit from a relationship that is non-existent.

Furthermore, under s 4 of the Act as a consequence of making an order for sole parental responsibility, the definition of major long-term decisions, would include the child’s name. The court determined that with the circumstances and the child’s expressed views of the name change to be like her mothers it was appropriate and in her best interest the name change to occur by the mother’s request.

Moreover, the judge resolved the question surrounding Section 4 of the Births, Deaths and Marriages Registration Act (Vic) 1996, which explains the meaning of ‘Court’ to be the ‘County Court of Victoria’ where ‘a parent can lodge an application to change a child’s surname on a birth certificate if the Court accepts the suggested name’ s 26. It was determined The Family Court has jurisdiction, under Part VII of the Family Law Act, to use the powers in the State law simply by virtue of it being an extension of its jurisdiction.

#parenting

Henley & Henley [2019] FamCA 101 (28 February 2019)

The father sought to re-litigate final parenting orders in 2018. It was determined there was no sufficient change of circumstance to justify re-litigation on any issue other than that remitted for rehearing by the Full Court.

Fast forward to 2019, the father is seeking an equal time regime with child A, to support his argument in preparation for the hearing of the remitted matter, the father sought leave to issue a subpoena directed to the Principal of W High School for the attendance records for the mothers other child F (from a previous relationship).

The father alleges child A had significant absences from school (28 days in 2018) whilst in the mother’s care, which he says occur because the child is taken from Adelaide to Town P so the mother can spend time with her boyfriend. The father asserts child F attendance records will align with child’s A attendance records to support his claim, he then plans to argue that an equal time routine will reduce the number of absent days for child A (the child will be with the mother less).

The mother asserts the child’s absences from school are of no concern to the school staff as “all absences have been explained.” In support of that argument, she attached a copy of a letter from the child’s school.

However, the Registrar refused the father’s request to issue the subpoena “on the ground of lack of sufficient legitimate forensic purpose.”

The father now seeks a review of the Registrar’s decision.

FACTS SUMMARY:

• Review of Registrar’s decision to refuse the father’s request to issue a subpoena for school attendance records.
• The refusal is on the ground of lack of sufficient legitimate forensic purpose.
• The solicitor for the mother conceded that at trial the Court would need to determine the genuineness of the mother’s explanation for absences.
• The extent of absences from school of both children on the same day could possibly throw light on the issues in the main case.

ISSUE:

Was there a lack of legitimate forensic purpose to refuse the request of the subpoena?

HELD:

The decision of the Registrar is set aside, and permit the father to issue the subpoena as sought.

In determining this matter Rule 18.10(1) of the Family Law Rules sets out that a review of a Registrar’s determination is an original hearing, in the sense that error does not need to be established.

Furthermore, a subpoena will have a sufficient legitimate forensic purpose if it appears to be “on the cards” that the document sought would materially assist a party in their case,^[6] or it could possibly throw light on the issues in the substantive proceedings.^[7] These principles have been acknowledged as applying in this jurisdiction by the Full Court: White & Tulloch(1995) FLC 92-640.

The mother’s solicitor made a surprising concession that at trial the judge will need to establish as a matter of fact the authenticity of the mother’s reasons for the child’s absences from school. The Judge then determined the absences from school of both children on the same day “could possibly throw light on the issues in the main case” and it is “on the cards” that F’s documented absences, may materially aid the father and assist the issue of what degree the child should spend time with him. The legitimacy of that forensic purpose is not to be dismissed at this point.

Moreover, it was contended that if the documents don’t support shared absence of both children, then it’s still possibly an applicable matter in this case, although not necessarily of support to the father.

^[6] Alister v R [1984] HCA 85;  (1984) 154 CLR 404 at  [414] per Gibbs CJ.

^[7] Trade Practices Commission v Arnotts Ltd (No 2) (supra).

#Parenting #Subpoena 

Frangoulis & Xennon [2019] FamCA 103 (28 February 2019)

The father was required by previous orders to engage with a specific psychologist ‘Mr B’ who has experience with anger management and family violence or if unavailable such other therapist nominated by the ICL.  The father did not attend ‘Mr B’ instead the father saw ‘Mr F’ who is a psychologist however, the mother disputes whether ‘Mr F’ has professional expertise with anger management and family violence as were ordered by the court.

The mother contends the father has not complied with the orders and until the father has obtained “a report from a nominated therapist that the father has successfully engaged with therapy” the children’s time with the father should not resume.

The father alleges ‘Mr B’ was on leave and seeks to have time with the children reinstated and for the child to engage in re-unification therapy.

FACTS SUMMARY:

• Children X born in 2009, Y born in 2011 and Z born in 2013.
• Final parenting and property orders have been listed for trial to commence on 2 September 2019.
• 4 August 2017, orders specifying that until further order the father spends time with the children supervised by Mr and Ms C.
• 8 April 2018, the mother withheld the children from the father based upon one occasion the father spent time with the children without the supervision by Mr and Ms C.
• 3 May 2018, the mother issued a Contravention Application, it was determined the father had contravened it and was then required he enter into a Bond for a period of one year.
• The mother later withholds the children, she believes that the father has not complied with the orders and his time with the children should be suspended.
• 15 January 2019, the father files an application in a case seeking to have time with the children reinstated with supervised time, including make-up time and reunification therapy with the child
• The father was required by the earlier order to engage with a therapist Mr B who has experience with anger management and family violence.
• The father saw therapist Mr F instead.
• The mother states the father has not complied with the orders of 27 July 2018 and until the father has obtained “a report from a nominated therapist that the father has successfully engaged with therapy” the children’s time with the father should not resume.
• The mother disputes the professional expertise of Mr F with respect to anger management and family violence.
• The father contends that Mr B was on leave and that Mr F was approved by the ICL, he was unable to complete all of the required appointments in the 10 week period- Mr F was not available.
• The ICL supports a recommencement of time with the father providing it is either supervised or that the supervisors are generally present when the children are with him.
• The mother seeks that the father’s application be dismissed.

ISSUE:

• Should an order for reunification be made?
• Was the psychologist approved by the ICL?
• Does the psychologist have expertise, experience or skillset in respect of family violence and anger management as per the orders?

HELD:

It was ordered for the father to attend Mr F for a further two sessions and to provide Mr F with the report from Mr B and the family consultant, including the previous judgements. Furthermore, Mr F is to prepare a report stating his expertise, experience or skillset in respect of family violence and anger management and a report directed to the father’s engagement with therapy and focussing on anger management and family violence. The fathers time with the children will be reinstated upon successfully engaging with counselling and therapy directed to family violence and anger management and upon the receiving the report from Mr F.

In determining this matter it was required to set out the relevant provisions of the orders made 27 July 2018:-

(2) That the father shall attend upon [Mr B] (psychologist) or if unavailable such other therapist nominated by the Independent Children’s Lawyer (“ICL”) with expertise in the area of anger management and family violence and to comply with all instructions and further counselling and/or therapy as may be recommended by him or her.

(3) At the completion of five (5) visits with the nominated therapist which are to occur within ten (10) weeks of the date of this order, the father is to obtain a report from the therapist as to his engagement with therapy and that he has successfully completed the five (5) visits.

(4) If the father has not completed the five (5) visits as nominated THEN until further order, paragraph 1 of orders made 4 August 2017 shall be suspended.

It was confirmed that Mr B was indeed on leave and not available to do the sessions with the father. The ICL therefore contends the consideration for the nomination of Mr F was “entirely within the discretion of the Independent Children’s Lawyer in accordance with paragraphs 2 and 3 of the orders. The ICL states that ‘I have exercised that discretion, and the issue is concluded’. This was accepted.

However, it was established that whilst Mr F does hold an Honours Degree in psychology and has widespread experience across health, welfare, education and management sectors focusing on trauma psychology it is unknown if he has expertise in the area or experience with family violence or anger management.

Moreover, it was confirmed the father has indeed not completed the required five therapeutic visits with either Mr B or any nominated therapist, it was also determined the father’s application was lacking for the orders he sought. There was no evidence provided to support his application for re-unification therapy. It was identified there needs to be a completed assessment from a nominated practitioner that reports the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise for reunification. Reunification therapy is subject of the evidence provided, it’s not a matter of theoretical consideration.

Key Legislation In This Case.

BEST INTERESTS OF THE CHILDREN

Section 60CC(2) of the Family Law Act 1975 (Cth) (‘the Act”)

The primary considerations are:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.

It is an appropriate enquiry by the Court to ensure any risk to the children (if same exists) is minimised such that the application of s 60CC(2A) does not outweigh the benefit of the children having a meaningful relationship with the father.

Interim Parenting Key Principles In This Case

In Deiter & Deiter  [2011] FamCAFC 82 the Court considered the situation where contested facts related to an assessment of risk and said at [61]:-...the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.

In SS & AH [2010] FamCAFC 13 the Full Court considered the care that should be exercised in making findings in interim proceedings:... In our view, findings made at an interim hearing should be couched with great circumspection

In Marvel v Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence as follows:-...As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

#parenting #Interim