Acres and Cameron

[2007] FamCA 1563

FAMILY COURT OF AUSTRALIA

ACRES & CAMERON [2007] FamCA 1563

FAMILY LAW – CHILDREN – Shared Parenting – Orders made in absence of father who failed to participate in the proceedings – Mother remarried and has a child and is expecting another – Commentary on appropriateness of name change in the event of such an application being made

Family Law Act 1975 (Cth)

Chapman v Palmer (1978) FLC 50-510
Beach v Stemmler (1979) FLC 90-692
Skrabl v Leach (1989) FLC 92-016

APPLICANT: Mr Acres

RESPONDENT: Ms Cameron

FILE NUMBER: MLC 198 of 2007

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Toose

SOLICITOR FOR THE RESPONDENT: Cynthia A Toose & Associates

Orders

1. That the parents have equal shared parental responsibility for the child … born on the … day of April, 2004.

2. That the child live with the mother.

3. That the child spend time with the father at times to be agreed between the parties.

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

IT IS NOTED that publication of this judgment under the pseudonym Acres & Cameron is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 198 of 2007

MR ACRES

Applicant

And

MS CAMERON  

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura.  The proceedings commenced by way of a Form 1 Application brought by the father filed on 11 July 2006 and issued out of the Magistrates Court at Mildura.  By his application, he sought an order that both he and the mother, Ms Cameron, retain the long-term care, welfare and development of their son, the child, who was born in April 2004.  He sought a further order that the child reside with him and that the mother exercise contact as agreed between the parties.  His application was accompanied by a short affidavit. 

2. I felt a sense of unreal expectation in that application, as one built out of the piety of hope, devoid of reality and common sense.

3. The mother caused to be filed a Form 1A Response on 2 October 2006 in which she sought orders that the child live with her and that the child spend time with the father at times to be agreed upon between them.  That Response was accompanied with a short affidavit.  However, significantly, on 5 March 2007 the husband's solicitor caused to be filed a Notice of Ceasing to Act.

4. By way of short background, the father was born in October 1975.  He deposed to the fact that he is a Tradesman by occupation.  The mother was born in February 1984 and is engaged in home duties.  The parties commenced cohabitation in 1999 and following unhappy differences between them separated in September 2004.  The mother lived in North Western Victoria for a few months and then, on the father's deposition, relocated to South Australia without notice to him.  He claims that he exercised contact with the child until about March 2006.  It appears to me on the face of it, as I said earlier in this short extempore judgment, that the father's application laboured under some considerable difficulty. 

5. In her affidavit filed on 17 October, 2007 the mother deposed that she is currently living at … in South Australia.  She married Mr H in February 2007.  Both she and Mr H have a child of their union, S, who was born in February 2006.  They are expecting another child in January 2008.  Both the mother and Mr H have taken the care and responsibility to attend court this day.  That is an indication of the importance they place on these proceedings which is in sharp contrast to that of the father.

6. The mother deposed that although orders were made reserving the question of the father's spending time with the child, he had not sought to do so other than when she organised for his parents to see the child in North Western Victoria.  She deposed that he has not requested any time with the child, and other than for one occasion, has not seen the child since February 2006.  The mother further deposed that following separation, the father and she attended at the Contact Centre at times arranged so that he could spend time with the child.  The Contact Centre continue to have her up‑to‑date telephone details but they have not been contacted by the father seeking to renew his relationship with his son.  The mother deposed that the child and she are supported by her husband, Mr H, who is in full receipt of an income sufficient to support the family.  She also receives some additional child support from the father.

7. The mother said that the child will commence kindergarten in 2008 and it would be her hope to enrol him under the name of “[H]”.  She would prefer to do that because his brother and she share the surname of her husband, Mr H, as will her child to be born in January 2008.  She deposed to the belief that it was important for the child to have a "sense of family" and it was clear, and such is made out in her affidavit and by the factual matrix, that the father is not interested in spending time with or communicating in any meaningful way with the child.

8. The mother deposed that the child has “developmental difficulties” and is currently being treated by a paediatrician who has referred him to the F Medical Centre.  He is also undertaking counselling tests with a counsellor.  She deposed that the husband and she are well able to care for the child on an ongoing and extended basis, and although he is a challenging child, he is loving, happy and well settled in their care.  I have no doubt that such is the case.

9. On the issue of the mother's desire to change the name, I just simply might add these ex gratia remarks.  The principles governing a situation such as that have been set out by this court in Chapman v Palmer (1978) FLC 50-510. The view that was held, amongst a number of things, that in deciding the issue in each case there was no onus of proof. It was for the court to balance in its discretion the factors for and against a change. The guiding principle is that the best interests of the child is the paramount consideration. That must stand above the wishes or proprietary interests of the parties. In the course of its judgment, the Full Court went on to helpfully offer this observation:

   “We believe that each case should be approached in an even-handed manner with the object of making a decision that would promote the welfare of the child.  To summarise the factors to which the court should have regard in determining whether there should be any change in the surname of a child include the following:

   (a) the welfare of the child is of paramount consideration;

   (b) the short and long-term effects of any change in the child's surname;

   (c) any embarrassment likely to be experienced by the child if its name is different than that of the parent with custody or care and control;

   (d) any confusion of identity which may arise for the child if his or her name is changed or is not changed;

   (e) the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;

   (f) the effect of frequent or random changes of name.”

   (Page 77-675) (see also Beach v Stemmler (1979) FLC 90-692 and Skrabl v Leach (1989) FLC 92-016)

10. I make these remarks simply for the reason that the facts set out in the mother's affidavit clearly make out a case for a name change should she proceed with that application.  It seems to me that in the whole constellation of the family environment in which the child lives in a loving and united group with his mother and with Mr H standing in the place of the father who is charged with the onerous obligations of nurturing the child as the paternal figure, in an environment where they have a child of their own and expecting another which is comprised by a stable and happy nuclear family situation, the issue of a change of name on the information I have to hand is quite clear.  If it came before me I have little doubt, subject to argument, that I would make an order along those terms.

11. However, the father should be advised of the proceedings and, in the event that he is, it seems to me appropriate that the mother would proceed with such an application.  In the circumstances I will make the orders sought.  I will mark the Minute of Proposed Orders Exhibit “A”.  I will mark the letter from the mother's solicitor to the father dated 22 October 2007 Exhibit “B”.  I will direct that it remain on the court file.  I also direct that the extempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  15 January 2008