Freedom Law

At home alone – what age must children be?

What age can children stay home alone?

By Budget Direct Home Insurance

What age can children stay home alone? Here in Australia, there is no universal law that outlines at what age children can stay at home alone.

Key takeaways:

  • There is no universal age in Australia at which it is illegal to leave a child unsupervised; however, every state and territory has legal expectations regarding a parent’s responsibility for children’s safety
  • In Queensland, children under the age 12 are not allowed to be left unsupervised ‘for an unreasonable time’; other states and territories don’t mention specific ages but have clear laws about child safety and parental responsibilities
  • Leaving children alone in cars is never recommended; dangers include overheating, abduction or accidental disengagement of the parking brake and gear shifter

The law is clear in every state and territory about the responsibility of parents to look after the safety of their children, however. The law says you must make ‘reasonable’ considerations for your child’s safety, and looks at a variety of circumstantial factors to determine if a parent has been negligent.

Queensland is the only state that mentions a specific age limit:‘a person who, having the lawful care of a child under 12 years, leaves the child for an unreasonable time without making reasonable provision for the supervision and care of the child during that time, commits a misdemeanour.’

A maximum penalty of three years in prison applies.

What age can children stay home alone boy studying

In other states and territories, there is no specific mention of a set age at which children must not be left alone, although there’s still an expectation of ‘reasonableness’ in a parent’s responsibilities regarding child safety.

For example, it might be considered reasonable for a parent to leave a mature 14-year old home for an hour while they duck out to buy groceries, whereas doing the same with an unsupervised four-year old would be considered unreasonable.

If you’re letting your child walk to and from school on their own, for example, the law might look at several different factors to determine reasonableness such as the child’s age, the distance they’re travelling, their familiarity with the route, the time of day they’re completing the walk, etc.

Leaving a younger child at home with an older sibling doesn’t necessarily get parents off the hook, either. If that older child is still under 18, the courts will take their overall capacity to care and maturity level into consideration.

If something goes wrong, the parent could be held liable or cited for negligence for both the supervising youngster and the younger child. Every situation is different.

What age can children stay home alone teenager Ironing Laundry

These laws and policies are put in place to protect children, not to make life more convenient for parents. For example, if the idea of ringing up Uber to have a driver drop off your 11-year old son at karate lessons sounds like a handy idea, think again: Uber won’t transport an unsupervised child under the age of 18.

You’ll also find that Qantas, Virgin and other Australian airlines have very strict protocols regarding the transport of unaccompanied minors on aircraft – which is as it should be.

Leaving children unsupervised in cars can be quite dangerous too. They can quickly develop heat exhaustion in warmer weather. If they get bored and start fiddling with the cars buttons and knobs (especially the parking break and gear shifter), they can put themselves in danger.

Someone might try to steal the vehicle with your child still inside, or try to abduct your unsupervised child from the car.

You can find out about individual state and territory laws regarding child safety here.

 

What parents should consider when leaving your children at home alone?

What age can children stay home alone

Children mature at different rates and some show a level-headed sense of responsibility earlier in life than others. If you leave your children in the care of an older sibling or teenage friend, you need to think about how that supervising child would cope if there was a fire, a break-in, an accident or other unexpected calamity while you’re gone.

When you stop and think about all the things a child left home alone has to be able to do (and has to know), it’s a tremendous responsibility. Is it fair and reasonable to ask a child to shoulder that burden?

Any child left home on their own must have a clear understanding of the ground rules – and a record of adhering to them. They should know where you’re going, how long you’ll be gone and how to get in touch with you at all times.

They should be able to use the phone and know where all relevant emergency numbers can be found.

What age can children stay home alone parent talking

Do they know where the first aid kit is and how to use it? Are they allowed to go outside, play in the pool, invite friends over, go to the shops or visit a neighbour? What are their responsibilities regarding pets?

Do they know what to do if there’s a strange phone call or a knock on the door? What’s their plan if there’s a fire? Do they know to operate deadbolts and window locks around the house?

Are they capable of determining if another child is sick and know what to do about it? These are just a few of the questions you need to ask yourself before thinking about leaving children to fend for themselves.

Homes are meant to be safe places but they contain plenty of dangers for kids too: swimming pools, matches, alcohol, poisonous chemicals, sharp objects and more. Think about the risks around your home and how you might be able to minimise them for unsupervised children.

Sunshine Coast / Brisbane / Gold Coast

1300 365 108

Rejection of parental love and care – the family law solution

Rejection of parental love and care – the family law solution

Rejection of parental love and care by children can have unexpected consequences.

In the recent case of Steyn & Garrety, the Family Court of Australia removed 2 young sisters from the care of their father despite final orders 4 years earlier providing for the children to live with the father and placed them with their mother. Prior to these most recent orders, the mother had to cease time and communication with the with the children due to it being chaotic and destructive. The court suspended the children spending any time or communicating with the father for 10 weeks while they settled into the mother’s care, then progressing to supervised and then holiday time. The conflict between the parties had been entrenched and the children were under extreme emotional pressure and emotionally damaged from this conflict. The court formed the view that the only hope the children had of recovering from any long-term effect of this conflict was to change their residence. The court found that the deterioration of the relationship between the mother and the children was not the fault of one party alone but a combination of fraught changeovers, bitterness and resentment between the father, his new wife, the mother and the children. The court found that the father and his new wife demonstrated a complete inability to facilitate a relationship between the mother and the children. The court also found that the father and his new wife both took active steps to cut the mother out of the children’s lives. The court was concerned that the father’s new wife had taken on the role of mother as if the children did not have a mother. The children would be better protected from further psychological harm by living with the mother and the mother would be better placed to facilitate a relationship between the children and the paternal family.

Read more here

“Unaccountable” – an article by the ABC

Unaccountable

In the family law system psychologists, psychiatrists and social workers can give evidence and impact cases, but a review has found no-one is keeping them in check.

Updated 
Published 

A Victorian psychologist who violated a woman’s privacy by giving her ex-husband her confidential assessment and doing therapy in a wine bar is among the powerful Family Court experts who are shielded from the fallout of misconduct complaints.

In another case, a teenage boy was granted a protection order against his father after a Family Court judge — who relied on a report by the same psychologist — gave the father access.

Meanwhile, a state medical watchdog revealed it has no legal power to investigate a Sydney psychiatrist accused of serial failures in his role with the court, even at a judge’s request.

Both of these experts regularly provide reports in family law proceedings.

The cases highlight what court insiders and legal experts say is the lack of proper scrutiny of private psychoanalysts — described by some parents as “Gods of the court” — because their opinion can affect family legal battles and custody rulings.

A long-awaited report into the Family Court by the Australian Law Reform Commission (ALRC) urged the Federal Government to tackle concerns about the quality of these court-appointed experts by introducing mandatory accreditation and lifting the veil of secrecy around them.

‘The court doesn’t know anything about it’

The Australian Health Practitioner Regulation Agency (AHPRA) last month decided to “caution” the Victorian psychologist after a 10-month investigation found she failed to meet professional standards.

In a letter seen by the ABC, AHPRA said the caution was “with regard to maintaining and protecting client privacy and confidentiality”.

But her former client *Kate, a successful businesswoman who could only file the complaint with AHPRA after her Family Court case ended, said the finding was not made public or shared with the court.

This meant the psychologist would not be held accountable for misconduct in her court-related role, Kate said.

“I think AHPRA isn’t really protecting the people who actually need it,” Kate said.

Kate’s AHPRA complaint was supported by her own treating psychologist.

AHPRA found the psychologist breached the woman’s privacy by running counselling sessions in public places including a bar, and with her children in restaurants and a bowling alley.

“Given the sensitive nature of the interactions between family members, the lack of privacy afforded in these public locations presented a scenario which resulted in your privacy was [sic] compromised,” AHPRA stated in a letter to Kate.

Kate said she was reduced to tears during what the psychologist described as a “debriefing” in a wine bar, prompting a stranger to come forward to comfort her.

“[The psychologist] showed no remorse. She wouldn’t believe the person who came up to me wasn’t someone I knew, and she kept on saying, ‘stop the crocodile tears’,” Kate said.

AHPRA told Kate it “did not accept that in circumstances where you were taken into a public bar in a state of distress this was adequate management of your privacy”.

The psychologist gave what AHPRA said was Kate’s “highly sensitive psychological assessment” to her ex-husband after learning she was under investigation.

That was despite the medical body telling the psychologist it was “not appropriate for you to make contact with” the ex-husband, Kate or their children.

“I was in tears, I was angry, I was upset,” Kate said.

“I felt like my whole privacy had been invaded.”

AHPRA’s censure of the psychologist followed her refusal to provide documents to its investigators.

The psychologist showed “little consideration to the obligations of a registered practitioner to the board’s investigation process and the rights of patients to complain,” it said.

But it found a caution was a “proportionate response [and] a deterrent”.

“While the way [the psychologist] practises the health profession is unsatisfactory, this deficiency does not affect her ability to continue to perform her duties as an approved supervisor,” it said.

An AHPRA spokeswoman said it made reprimands public but not cautions, which were “a warning to a practitioner about their conduct or the way they practise”.

She said it was legally restricted about what it could say publicly about taking this kind of action but had “a discretion to provide information about that action to certain entities”.

Kate said that left parents wanting.

“The court doesn’t know anything about it. I don’t trust the system anymore. I think the system is flawed,” Kate said.

A Family Court spokeswoman said expert witnesses were usually appointed with the consent of both parties.

“As with all evidence, the evidence of experts may or may not be relied upon in the courts’ determinative process,” she said.

“The appropriate means of challenging expert evidence is through the court process, [for example] by cross-examination.”

‘She can say anything in the witness box’

Andrea* said her distressed 13-year-old son would “smash his head on a brick wall” after attending appointments with the same family report writer during a long Family Court battle.

Andrea said her son wanted to stop the appointments because he was being threatened by the psychologist.

But she said the psychologist told her “well you know I’ve pulled kids out of cars … you should be able to get him there”.

“He was complaining to me, ‘she’s threatening me’ and I would say ‘no, you must be misunderstanding her, she means well’,” Andrea said.

“She made it very clear, she’s the one who tells the judge what she thinks should happen with your child.”

“They have absolute immunity. They can say anything and there is no consequence.”

She said she was too frightened to complain about the family report writer.

“She can say anything in the witness box and that becomes evidence,” Andrea said.

“With any complaint process, I do think the practitioner being complained about should not go into cross-examination if there is a live complaint afoot.”

Andrea said the psychologist gave evidence in their trial and the judge ordered her son to spend time alone with his father.

But the teenager then obtained a family violence intervention order against his father in a state magistrates court.

The ALRC recommended the Family Court move to the states and territories — the same jurisdiction as family violence and criminal courts.

The ABC contacted the psychologist for comment.

‘The commission does not have the power’

In the case of the Sydney psychiatrist, up to a dozen parents made complaints to the Health Care Complaints Commission (HCCC), accusing him of “placing the public at risk” with his Family Court reports.

In August last year HCCC commissioner Sue Dawson wrote to one of the parents stating the psychiatrist “did not have judicial immunity” and an investigation would be conducted.

But in a letter to one of the parents in April, the New South Wales medical watchdog changed its position and said it “did not have the power” to investigate.

“Please be assured that the commission took this matter seriously and undertook several lines of enquiries to assist its investigation, including consultation with court representatives and obtaining further legal advice,” HCCC executive director Tony Kofkin said.

“Whilst I am unable to provide you a copy of this advice, it is clear and definitive in its conclusion that the commission does not have the power … to investigate a complaint about the conduct of an expert witness. This includes even if a complaint were to be referred to the commission by a court.”

A HCCC spokesman said this was “because the delivery of advice to the court is not considered to be within the definition of a health service”.

He said the watchdog had raised the issue of its “jurisdictional constraints” with the ALRC.

The Sydney psychiatrist was a report writer in the matter of *James — a case the ABC has previously reported on — in which the Family Court gave custody to a father accused of sexual abuse.

Alison*, one of the HCCC complainants, claimed the psychiatrist’s reports followed a pattern of “minimising” allegations of family violence and abuse.

“In almost every one of these cases he talks about ‘if the spurious allegations continue or are not recanted the child should be removed’.”

“In some cases the children are just removed even without warning,” she said.

She said he repeatedly interviewed children alongside their alleged abusers, and applied “unscientific theory” to dismiss most abuse allegations as false.

“Sometimes he’s even overt enough to document the child’s disclosures that most normal people would think are incest or other forms of abuse, but then he just trivialises it.

“He mocks the disclosures and he seems to create facts by hypothesis.

“The making of the allegations is the problem, not the actual abuse itself.

“In almost every one of these cases he talks about ‘if the spurious allegations continue or are not recanted, the child should be removed’.

“In some cases the children are just removed even without warning. He insists that the child have unsupervised contact with the abuser, which of course leaves the child under the abuser’s control, and then he insists the child cannot get counselling, so there’s no help for the child.”

The ABC contacted the psychiatrist for comment.

What happens now?

The ALRC report in March found that psychiatrists and psychologists in private practice who provide family reports played a “crucial” role in legal cases.

But it found there was no effective way of holding them to account if they failed to meet professional guidelines set by the court.

“These standards are not binding or enforceable, and there is no formal accreditation or monitoring process for compliance in place,” the ALRC said.

The ALRC recommended the federal Attorney-General Department take charge of the accreditation scheme for private family report writers and publish “a publicly available list indicating the particular expertise of each”.

Attorney-General Christian Porter, through a spokesman, declined an interview request.

He did not answer specific questions about the ALRC call for the expert accreditation scheme.

The spokesman said Mr Porter was still considering the ALRC’s 60 recommendations and would make a full response, but would not say when.

Mr Porter has already proposed embedding state and territory child protection and family safety officials in the Family Court, and merging the court with the Federal Court.

*The ABC has changed the names and hidden the identity of the subjects as the Family Law Act 1975 requires us to do. Section 121 of the Act prohibits identification. According to an ALRC recommendation, “privacy provisions that restrict publication of family law proceedings to the public, currently contained in s 121 of the Family Law Act 1975, should be redrafted.”

Credits:

Reporting: Josh Robertson, the Specialist Reporting Team’s Emily Clarkand Heidi Davoren

Digital production: Heidi Davoren

Artwork: Tim Madden

Topics: courts-and-trialschild-abusecommunity-and-societyfamily-and-childrenfamily-lawaustralia

Substance abuse means new care for child

Substance abuse means new care for child

LOCKHARDT & SEARLE

Substance abuse – Consideration

  1. The court received substantial assistance from counsel for the applicant, respondent and ICL respectively.  The orders as sought by the father and as made on 23 May 2019 received the substantial support of the ICL.
  2. Since the matter proceeded as an interim hearing, the matters addressed below do not represent ultimate findings of fact and are conditioned upon their being tested and evaluated at trial.
  3. As presently appears, the respondent is afflicted by substance abuse and mental health issues. Substantial allegations of abuse are recorded in the report of the Department of Health and Human Services (DHHS).  While the allegations of family violence are reciprocal, and as yet untested, the DHHS report includes the following:

    . . . it is alleged there has been family violence on multiple occasions, including the mother punching the father approximately 40 times, threatening to kill the father and sending hundreds of abusive text messages to the father.

  4. Although the court attempted to provide some resources so as to assist the parties in resolving the conflict, the respondent did not comply with the order that she attend with the child a s 11F child inclusive conference. Neither the child mother nor the child attended that conference and the suggested explanation for non-attendance was at best belated. There was tendered in evidence a medical certificate which post-dated the s 11F conference by some five days and contained little which was of any assistance in persuading me that the respondent had proper reason not to attend the s 11F conference or to make provision for the child to attend.
  5. The applicant father did however attend the s 11F conference. The family consultant addressed the question of future directions and observed that the level of risk detailed in the affidavit material was concerning and that it would be in the interests of the child to have the proceeding resolved in a timely manner. The family consultant gave qualified support for the proposition that a requirement for the applicant to spend time with the child and supervised basis appeared to be redundant, including in circumstances where the applicant spends unsupervised time with another son of another relationship.
  6. The respondent has again unilaterally terminated the child’s spend time arrangements with the applicant father, having done so on several occasions.  Contextually, such conduct was the catalyst for the initiation of this proceeding.  Orders for the recovery of the child were conditioned on the applicant father incurring the cost of the mother and child taking flights from Perth to Melbourne.  The parties are of modest means.
  7. Evidence has been filed by the applicant’s partner and his mother which may be supportive of a conclusion that the mother continues to behave in an erratic and drug affected manner.
  8. Objectively, there has been a systemic failure to comply with requests for drug screening and, on several occasions, when screening has occurred the respondent has tested positive for amphetamines and benzodiazepine (substance abuse).
  9. The mother’s affidavit material warranted close consideration.  In several respects it seemed to have been drafted in a manner which lacked a proper, evident or objective basis.  For example, somewhat incredibly, the respondent gave an account of a report by the four year old child which the mother described in terms as involving a seven-year-old child ejaculating onto the four year old child.  The physiological improbability of this sworn evidence is self-evident.
  10. The respondent mother acknowledged that despite the orders for hair follicle testing she had not done so.  She gave belated evidence to having undertaken one test for substance abuse which she ‘hoped to have available for a hearing’.
  11. I find that the manner in which the respondent has conducted herself to this point is confirmatory of an ongoing failure to comply with court orders and, more importantly, to respect the importance of the child’s relationship with his father. Those matters notwithstanding, the respondent’s counsel acknowledged the importance of the child having a relationship, and contact, with his father.  While I have no doubt as to the sincerity of the submission as made by counsel, the respondent’s past conduct left me unconvinced that there would be any immediate change.
  12. There is a swathe of text messages which have been sent by the respondent to the applicant, including of recent date.  The respondent’s text messages are remarkable for their lack of restraint and abuse of the applicant.  Contrastingly, the applicant has not responded in that manner to the respondent’s texts.  The respondent’s conduct in sending such text messages is to be considered in the context that the parties agreed in consent orders that such communications as they had would be confined to parenting issues alone.  The Order has been systematically ignored.
  13. I accept the submission of counsel for the applicant that he has complied with all requests for drug screening and, moreover, that he has taken the initiative and actively invited the respondent’s lawyers to seek random drug screening of him (including before any such orders were operative).  While there is evidence that the father has engaged in the ingestion of illicit substances, his recent conduct is clear of positive drug results.
  14. Whilst the respondent’s counsel submitted that her client was trying to establish herself in a more stable environment, I was not persuaded that this withstood scrutiny in the face of persistent non-compliance with orders and unilateral conduct which ignored the importance of the child having the benefit of a relationship with each of his parents.
  15. As I indicated upon the conclusion of submissions, I am satisfied to the requisite standard that the child faces and objectively lesser risk of harm by being in the care of the father until further order.

“Parent” – a review of meaning in genetic material donation 

“Parent” – a review of meaning in genetic material donation 

Masson and Parsons & Ors

The meaning of “parent” and s 60H of the Family Law Act

  1. The primary judge and the Full Court were correct in holding that s 60H is not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure. Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning[4]. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning. To the contrary, s 4(1) provides that, when used in Pt VII, “parent”, “in relation to a child who has been adopted, means an adoptive parent of the child”. That implies that there is an accepted meaning of “parent” which, but for the express inclusion of an adoptive parent, would or might not extend to an adoptive parent[5]. Section 61B, which defines “parental responsibility” by reference to the legal duties, powers, responsibilities and authority of parents; s 69V, which provides for evidence of parentage; and s 69W, which provides for orders for carrying out parentage testing procedures, are also consistent with a statutory conception of parentage which accords to ordinary acceptation. Section 60B(1) perhaps suggests that a child cannot have more than two parents within the meaning of the Family Law Act. But whether or not that is so, s 60B(1) is not inconsistent with a conception of parent which, in the absence of contrary statutory provision, accords to ordinary acceptation: hence, as it appears, the need for the express provision in s 60H(1)(d) that, where a child is born to a woman as a result of an artificial conception procedure while the woman is married to or a de facto partner of an “other intended parent”, a person other than the woman and intended partner who provides genetic material for the purposes of the procedure is not the parent of the child.
  1. So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or are otherwise defined in the Family Law Act as parents. And it does not mean that the only persons who may seek parenting orders under s 61D are parents according to ordinary acceptation or are otherwise defined as parents. The range of permissible applicants is broader than that. But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds from the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.
  2. It is true, as counsel for the first and second respondents submitted, that s 5(1) of the Child Support (Assessment) Act 1989 (Cth) defines “parent”, when used in relation to a child born because of the carrying out of an artificial conception procedure, as “a person who is a parent of the child under section 60H of the Family Law Act“.  In counsel’s submission, that suggests that the drafter of the Child Support (Assessment) Act took s 60H of the Family Law Act to be exhaustive of the persons who are parents of a child born of an artificial conception procedure. That, however, is unlikely. It is more probable that the Child Support (Assessment) Act adopts an explicit definition of “parent” because it is an Act which imposes an enforceable pecuniary liability[6].  And even if it were otherwise, an Act of Parliament does not alter the law by merely betraying an erroneous opinion of it[7].  It may be that, where the interpretation of a statute is obscure or ambiguous or readily capable of more than one interpretation, the meaning ascribed to it in a subsequent statute may provide some insight[8]. But that is not this case. The meaning of s 60H is not obscure or ambiguous or readily capable of more than one interpretation. As both the primary judge and the Full Court held, its effect is plainly enough to expand rather than restrict the categories of people who may qualify as a parent of a child born as a result of an artificial conception procedure.

Maroochydore / Nambour / Noosa / Caloundra

Birtinya / Kawana / Little Mountain / Peregian Springs

 

Surname change to hyphenation for young child

Surname change to hyphenation for young child

PORRITT & DUNFORD

Surname change – The law

  1. I now turn to the law.
  2. As noted by the Full Court in Lysons & Lysons (2019) FamCAFC 29 at 22 “it is entirely correct to say that orders as to a child’s name are parenting orders within the meaning of section 64B and therefore must be made in the child’s best interest, taking into account the conditions raised by section 60CC (Reynolds & Sherman(2016) FamCAFC 240 at [7] to [15])”.
  3. The Full Court in Chapman & Palmer (1978) FLC 905-10 sets out a number of criteria which the court must look at in determining whether there should be a change of name:
    1. The welfare of the child is a paramount consideration.
    2. The short and long-term effect of any change in the child’s name.
    1. Any confusion of identity which may arise for the child if the name is or is not changed.
    1. Any embarrassment likely to be experienced by the child of the name if the name is different from the parent who has the primary care.
    2. The effect, which any change in surname may have on the relationship between the child and the parent whose name the child bears.
    3. The effect of frequent or random changes of name.
  4. Connor J of the Family Court Western Australia in Beach & Semmler (1979) FCWA 1 referred to additional matters relevant to a change of a child’s name:
    1. The short and long-term advantages to the child of no change of name.
    2. Extent of contact with the father (past and future).
    1. Extent to which the child identifies with the father.
    1. Extent to which the child identifies with the mother.
  5. Foster J in Reagan & Orton (2016) FamCA 330 (a case supported in Lysons) at [34] said “the factors frequently considered in determining whether there should be any change to a child’s name include:
    1. Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control.
    2. Any confusion of identity which may arise for the child if his or her name is changed or not changed.
    1. The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
    1. The effect of frequent or random changes of name.
    2. The contact any non-custodial parent has had and is likely to have in the future with the child.
    3. The degree of identification that the child or children have with their non-custodial parent.
    4. The degree of identification the child or children have with the parent with whom they live
  6. In Fooks (1993) FamCA 117, Warnick J held that the children’s best interest stood above the parents’ wishes.
  7. In Mahony & McKenzie (1993) FamCA 78 a hyphenated name for the child has been approved as a compromise.
  8. In Giessruf & Giessruf (2004) FamCA 848 where during the marriage the children were known by the surname “Giessruf” and after separation, the wife applied to have their names changed to Jones-Giessruf to include her maiden name, Murray J said:-
    1. The wife is not choosing to change the name of the child to something alien either to her or to her husband. She seeks to have her maiden name hyphenated with that of her husband. The wife does not seek to diminish the husband’s importance in the life of the child” ([7]).
    2. I pointed out to the husband that it was very common procedure these days for some children to take the surname of both parents, perhaps as a symbol of equality between the genders, perhaps to give equal paramountcy to the role of each parent. I see no detriment to the children having that take place in these circumstances” ([8]).

Should there be a change to child’s surname?

  1. I find having considered the evidence and the submissions that it is in the child’s best interests for the child’s surname to be changed forthwith from “[X] Porritt” to “[X] Porritt-Dunford”.
  2. I make this finding based on the following:
    1. [X]’s birth was because of a planned pregnancy involving IVF, when the parties were in a committed, loving de facto relationship.
    2. The father’s surname “Porritt” was chosen and registered for [X] as her surname by the parties at a time when the parties remained in that committed relationship.
    1. Upon separation, the mother, when [X] was not yet 3 years of age, made the father aware of her want for the child to share both surnames, a suggestion which was not agreeable to the father.
    1. [X] has a diverse cultural heritage, Country E, on the father’s side; Country D on the stepmother’s side and Country B-Country D on the mother’s side. The inclusion of the mother’s surname as hyphenated in the child’s surname will reflect this extensive cultural diversity.
    2. Although [X]’s primary attachment is to the mother, [X] has a strong, loving relationship with the father and his extended paternal family, with time increasing to a shared care arrangement, whereby the father will shortly be spending six nights a fortnight with the child. A change of name will not in any way affect that relationship, nor will it take away from the relationship.
    3. [X], only having just commenced prep at school, is a very young child, whereby it is unlikely that her last name holds any overwhelming significance, either by way of identity or embarrassment for the child.
    4. With both parents and their different cultural heritage being actively involved in [X]’s life on a day-to-day basis, it would be beneficial for the child at this young age to have reference to both of her parents’ names in her own surname and for that change to occur now.
    5. This will provide [X] with a sense of identity to her father, in continuing to carry the surname of “Porritt” as the first part of the hyphenated name, and a sense of identity in now having the mother’s surname of “Dunford” as the second part of the hyphenated name.
    6. This will avoid any potential confusion of her stepmother, known as Ms F Porritt, being mistaken as her biological mother, especially as the child refers to both mothers as mummy, although steps are being taken to ensure that [X] calls Ms F “Mummy Ms F”.
    7. The father’s surname of “Porritt” as the first part of the hyphenated surname of Porritt-Dunford will make the transition to a hyphenated name easier for the child to grasp and will alleviate the fears held by the father that his surname may be dropped off if the child shortens the surname.
    8. Hyphenated last surnames are not unusual.
    1. With modern technology, the concerns raised by the father as to the use of such a hyphenated surname on the internet or in social media are not founded.
    1. Like any child learning their names, [X] will over time learn her surname, how to say it, how to spell it, where it will become second nature to be known as [X] Porritt-Dunford.
    2. The mother has not repartnered and the absence of any evidence before the court to support that the mother may in the future change her maiden name, this is not an issue that need be considered.
    3. Whilst a change of name will require the issue of a new birth certificate and a change to passports, medical records and schooling records, this is only of minor inconvenience and not a valid reason as to why a change of name should not occur.
    4. As [X] does not have any other siblings in either household, a change of surname will not cause her confusion in that regard.
  3. I therefore find that a change of surname in the short term, whilst posing some inconvenience to the parties, will not have a lasting negative impact on the child.
  4. I therefore find that a change of surname to include the mother’s surname will have a positive long-term impact on the child, as it will provide the child with links to her diversified heritage and identity with both her mother and father, without taking away the importance of the sole surname of “Porritt”, which the child has experienced for the first five years of her life.

SUNSHINE COAST / BRISBANE / GOLD COAST

ALL STATES AUSTRALIA FAMILY LAW

Books for children dealing with separation and divorce

Books for children dealing with separation and divorce

  • ‘It’s Just Different Now’
    Espie, Linda
    Spectrum Publications, Richmond 1999
    – For children aged 3-7 years
  • ‘Mom’s House, Dad’s House: A Complete Guide for Parents who are Separated, Divorced or Remarried’
    Ricci, Isolina
    Fireside Books/Simon & Schuster,
    New York, 1997
  • ‘Two of Everything’
    Cole, Babette
    Jonathan Cape, London, 1997
    – For children aged 5-12 years
  • ‘Dad’s Place : A Guide for Fathers After Divorce’
    Burrett, Jill
    Angus & Robertson, Sydney NSW 1996
  • ‘I have Two Dads’
    Wilson, Lorraine
    Illustrated by Chantal Stewart. CIS Cardigan
    Street, Carlton, Victoria 1995
    For children
  • ‘The Suitcase Kid’
    Wilson, Jacqueline
    Illustrated by Nick Sharatt. Yearling
    Books/Doubleday, London, 1993
    For children
  • ‘To and Fro Children – A Guide to Successful Parenting after Divorce’
    Burrett, Jill
    Allen and Unwin North Sydney 1991
  • ‘At Daddy’s on Saturdays’
    Girard, Linda Walvoorol
    Albert Whitman 1987
  • ‘Break-up’
    Padoan, G. – Milan, Italy
    Happy Books 1987
  • ‘Dinosaurs Divorce’
    Brown, L and Brown M
    Little, Brown 1986
    – For children up to 10 years
  • ‘Jason Goes to Stay with Dad’
    Liddicut, J. – Richmond, Vic
    Ossie Books, 1986
  • ‘When Jason’s Dad Moved Away’
    Liddicut, J. – Richmond, Vic
    Ossie Books, 1986
  • ‘Daddy Doesn’t Live Here Anymore’
    Boesehold, B. – New York
    Western Publishing Co. Inc., 1985
  • ‘Megan’s Book of Divorce’
    Jong, E – London
    Granada, 1985
  • ‘What Kind of Family is This?’
    Sevling, B – New York
    Western Publishing Co. Inc., 1985
  • ‘High Pavement Blues’
    Ashley, B. – Harmondsworth & Middlesex
    Puffin Books, 1984
  • ‘Mom and Dad Don’t Live Together Anymore’
    Stinson, Kathy
    Annick Press, 1984
  • ‘Breaking Up’
    Willkott, F. – London
    William Collins Sons & Co. Ltd, 1983
  • ‘What am I Doing in a Step-Family?’
    Berman, C. – Melbourne, Vic
    Angus & Robertson, 1983
  • ‘Bring to a Boil and Separate’
    Hadley Irwin – New York
    Atheneum, 1981
  • ‘I Have Two Homes’
    Althea – Cambridge
    Dinosaur Publications, Ltd, 1980
  • ‘My Mom and Dad are Getting a Divorce’
    Bienenfeld, F. – St Paul, MN
    E.M.C. Corp., 1980
  • ‘So Mum and Dad have Separated’
    Messenger, D.R. – Melbourne, Vic
    Listen and Learn Productions, 1980
  • ‘Divorce Can Happen to the Nicest People’
    Mayle, P. – Melbourne, Vic
    Sun Books, 1979
  • ‘Divorce is a Grown Up Problem’
    Sinberg, J. – New York
    Avon, 1978
  • ‘It’s not the End of the World’
    Blune, J – London
    (Piccolo) Pan Books, 1972

Look for these and others in your local library or book store

Offsetting occupation and expenses

Offsetting occupation and expenses

The Wife’s occupation of the matrimonial home and maintenance payments to the Husband

  1. The Husband sought that an adjustment by means of an addback be made for the fact that the Wife has had the use of the former matrimonial home since separation (see the unnumbered item following Item 26 in the balance sheet).  The Wife has not paid rent for that facility.  She occupies it with the parties’ adult son.  The Husband says that the Wife has benefited from the use of this property.  The Husband accepted that, although the property is in his name, this was a benefit derived from the property pool acquired during the relationship.
  1. At the same time the Husband accepted that by virtue of Orders made by Justice Watts he was receiving the sum of $495 per week towards his living expenses, which was paid from surplus rent monies received from the parties’ property.  Again, he describes that the source of that money was half his in any event (mirroring the position that he accepted in respect of the Wife’s enjoyment of the former matrimonial home).
  2. The Husband ascribes a value for the Wife’s occupation of the home from a rent valuation provided by T Real Estate.[10]  This report attributed a rental value, unfurnished at $1,100 per week.  The Wife points to the valuation of the rent being for both 1 and 2 D Street.  The T Real Estate report shows that 2 is rented at $495 per week, which it asserted is in line with the market.  The notional rental attributed to the Wife’s occupation of 1 D Street is approximately $600 per week.

    [10] Wife’s affidavit p 95.


  3. The Wife says that her occupation is offset by payment to the Husband from joint resources to support him.  That is, her accommodation, and his allowance for accommodation, both come from the resources of the relationship.
  4. It may be observed that the joint resources of both of the parties were used for the support of each of the parties.  The parties are each entitled, post-separation, to continue with their lives, and to use their resources to reasonably and properly support themselves.
  5. Noting the comments earlier referred to by Murphy and Kent JJ in Grier v Malphas, a sufficient reason, as driven by the pursuit of a just and equitable outcome, is not identified for an add-back or reckoning in respect of these matters.  While there may be a disparity, neither expenditure constitutes a premature distribution, or a waste, such as to mean that such a course is necessary to achieve justice and equity.  The disparity in the value of what each received in this manner, by their use of the matrimonial property, either to live in or to fund living expenses, is not of such significance as to justify a notional add back nor should it result in any other form of adjustment.

 

Add backs – how are these treated?

Add backs – how are these treated?

WHITE & WHITE[2019] FamCA 13

Add backs – The Husband’s removal of funds

  1. The Wife asserts that the Husband, by removing particular sums of money, has taken a premature distribution of the property of the parties that should be notionally added back (add backs) into the pool.  This amount, she said, totalled $372,000, less an amount of $44,000 that the Wife accepts constituted both an established and appropriate disposal of the funds.  The total amount sought by the Wife to be added back in relation to these funds is therefore $328,000 (add backs).
  2. As was set out by Murphy and Kent JJ in Grier & Malphas (2016) 55 Fam LR 107 at [128]-[129]:

    Each of the parties used funds available to them in the approximately four years between separation and trial.  Included in purposes for which the sums were used were the reasonable living expenses of each.  So-called “add backs” are the “exception and not the rule”.  Further, although always of course a matter of discretion it can be said that, in the usual course of events, amounts spent on reasonable living expenses would not often be added back.

    As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. No error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and s 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.

  3. Murphy and Kent JJ noted that “a very significant disparity in the sums expended by the parties” called for the examination of that disparity and of the “purposes for which the money as used.”  Such an examination may then reveal the necessity to add-back or “as has been suggested as often preferable by decisions of the Full Court, by reference to s 75(2)(o)”.
  4. The assessment of the Wife’s claim therefore requires an examination of the use of the funds by the Husband.

 

 

Domestic Violence Orders – Case Review

Domestic Violence Orders – Case Review

KAO v DL [2017] QMC 16 (25 August 2017)

Protection of the Aggrieved

[64] Section 37(1)(c) DVFPA requires that the court be satisfied that “the protection order is necessary of desirable to protect the aggrieved from  domestic violence ”.

[65] That consideration was the subject of discussion in the decision of MDE v MLG & Commissioner of the Queensland Police Service. [14]

[66] In that case His Honour Judge Morzone DCJ stated:[15]

“Protection of Aggrieved

“[50] The third element in s 37(1)(c) is that “the protection order is necessary or desirable to protect the aggrieved from  domestic violence ”.

“[51] The focus of this element is the paramount need for the protection an aggrieved from  domestic violence , and whether imposing a protection order is necessary or desirable to meet that need.

“[52] The use of the phrase “necessary or desirable” invokes a very wide and general power, and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from  domestic violence . The phrase is not unusual in that appears in both state and federal legislation, including analogous anti- domestic violence  legislation.4

“[53] In GKE v EUT [2014] QDC 248 McGill S.C. DCJ considered the requirement and said at [32] to [33]:

“[32] In my opinion the focus must be on the issue of protecting the aggrieved from future  domestic violence , the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of  domestic violence  in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved.

“[33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future  domestic violence  against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced  domestic violence .”

“[54] This is consistent with the explanatory notes of the Domestic and Family Violence Protection Bill 2011:

The Bill replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from  domestic violence . This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet these needs. The court may still consider evidence which suggests that  domestic violence  may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is ‘likely’. Further, a court can look at other factors, including whether an aggrieved is in fear, when it is determining this element.

The new grounds also require a court to consider the guiding principles in deciding whether an order is necessary or desirable for the protection of the aggrieved. The priority of the Bill is the safety and wellbeing of the aggrieved and the grounds for making a protection order are directed toward achieving this aim. These measures are also consistent with the objective of ensuring that orders are only made for the benefit of the person who is in need of protection and are intended to reduce inappropriate cross applications and cross-orders.

“[55] In my view, the third element of whether “the protection order is necessary or desirable to protect the aggrieved from  domestic violence ” requires a three stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the Act):

 

  1. Firstly, the court must assess the risk of future  domestic violence  between the parties in the absence of any order.

There must evidence to make factual findings or draw inferences of the nature of, and prospect that  domestic violence  may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past  domestic violence  and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.

Unlike, its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future  domestic violence  is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of  domestic violence .

 

  1. Secondly, the court must assess the need to protect the aggrieved from that  domestic violence  in the absence of any order.

Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.

 

  1. Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the  domestic violence .

In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1) that: (a) the safety, protection and wellbeing of people who fear or experience  domestic violence , including children, are paramount;

(b) people who fear or experience  domestic violence , including children, should be treated with respect, and disruption to their lives minimised;

(c) perpetrators of  domestic violence  should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;

(d) if people have characteristics that may make them particularly vulnerable to  domestic violence , any response to the  domestic violence  should take account of those characteristics;

(e) in circumstances in which there are conflicting allegations of  domestic violence  or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;

(f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

4. Finally, if the court is satisfied of the other pre-conditions of a relevant relationship and  domestic violence are established, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of a respondent necessary or desirable to protect the aggrieved from the  domestic violence .”

 

[67] That decision is binding upon this court.

[68] Conveniently the decision sets out the appropriate approach to the requirement under s 37(1)(c) commencing at paragraph 55.

[69] In these proceedings, at first blush somewhat oddly, the applicant in cross examination put to the respondent that he had been previously convicted of contraventions of a protection order. Exhibit 1 is a copy of the respondent’s criminal history which shows that he was convicted on 7 January 2004 in this court for breaches of  domestic violence  orders for incidents on 18 September 2003 and 8 October 2003. The admission into evidence of the criminal history was not objected to by the respondent’s legal representative and is in evidence.

[70] The criminal history, which the respondent accepted under cross examination was correct, confirms two things:

1. That a protection order was previously made against the respondent; and,

2. That the respondent breached that order on two occasions on 18 December 2003 and 8 October 2003.

[71] Turning then to the test enunciated in MDE v MLG & Commissioner of the Queensland Police Service[16] – the “three stage process”.

The risk of future  domestic violence .

[72] In assessing the risk of future  domestic violence  between the parties in the absence of an order the following matters are relevant:

1. The nature of the  domestic violence  committed by the respondent towards the aggrieved is serious – he attended uninvited at her residence in the early hours of the morning of 2 December 2016 and was aggressive toward her and assaulted her;

2. He has committed past  domestic violence  (albeit not against this aggrieved) as is evidenced by his criminal history;

3. He has demonstrated no remorse (and certainly no genuine remorse) as he has denied the committing  domestic violence ;

4. There is no evidence of rehabilitation medical treatment or psychological counselling;

5. A temporary protection order has been in place and there have been no alleged breaches of that temporary protection order.

The need to protect the aggrieved from  domestic violence 

[73] In respect of the need to protect the aggrieved from  domestic violence  relevant considerations are:

1. The parties were in an intimate personal relationship of short duration but which on any view of the evidence was problematic;

2. The parties reside in a relatively small community at Cairns and clearly the opportunity for them both socially and in business to interact is reasonably significant;

3. Their residences and places of work are not in direct proximity but not so distant as to make the prospect of future contact remote;

4. They have no need for an ongoing relationship and therefore no need to communicate.

Protection Order is “Necessary and Desirable”

[74] Thirdly, is the protection order “necessary and desirable”. In respect of the exercise of the discretion under the test prescribed in s 37(2)(a) DVFPA, those principals set out in s 4 are relevant in that:

1. The aggrieved is entitled to the safety a protection order will provide having experience  domestic violence from the respondent; and,

2. The respondent as a perpetrator of  domestic violence  should be held accountable for his conduct one of the consequences for which is the making of a protection order in favour of the aggrieved.

[75] Finally, as I am satisfied that the other preconditions of a relevant relationship and  domestic violence are established, the discretion to make the protection order must be exercised.

[76] Having considered the evidence and the findings of fact made and applying the test prescribed in MDE v MLG & Commissioner of Queensland Police Service[17] the discretion ought be exercised in favour of the applicant and I am satisfied that a protection order is necessary or desirable to protect the aggrieved from  domestic violence .