BAM & RAP
[2006] FMCAfam 168
•31 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAM & RAP | [2006] FMCAfam 168 |
| FAMILY LAW – Children – contact – variation of orders – where mother has moved from Queensland to Canberra – name of child – best interests of child – use of hyphenated surname proposed – child of school age. |
| Family Law Act 1975 (Cth), ss.60B, 65E, 68F |
| Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510 Beach & Stemmler (1979) FLC 90-692 Mahony & McKenzie (1993) FLC 92-408 Flanagan & Handcock (2001) FLC 93-074 |
| Applicant: | A M B |
| Respondent: | A P R |
| File Number: | BRM 3877 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 March 2006 |
| Date of Last Submission: | 23 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr George |
| Solicitors for the Applicant: | Stockley Furlong |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Hopgood Ganim |
ORDERS
Orders 4 and 5 made by consent on 5 November 2001 are discharged.
The respondent father is to have contact with the child A G B born
8 February 2000 at all reasonable times as agreed between the father and the mother and in particular:
(a)for the whole of the end of first term school holidays in each year commencing on the first Saturday of each holiday period and concluding on the Friday prior to the commencement of the new school term;
(b)for a period of one (1) week during the end of second term school holidays each alternate year commencing in 2007 on the first Saturday of each holiday period and concluding on the following Friday;
(c)for the whole of the end of third term school holidays in each year commencing on the first Saturday of each holiday period and concluding on the Friday prior to the commencement of the new school term; and
(d)for a period of approximately three (3) weeks during the January school holidays commencing on the first Saturday after New Year’s Day and concluding on the Friday before the commencement of the first school term;
(e)by telephone to the child’s mobile phone:
(i)between 6.00 p.m. and 7.00 p.m. on each Sunday and Wednesday during the school term;
(ii)between the hours of 8.00 a.m. and 10.00 a.m. on Christmas Day in each year; and
(iii)between the hours of 6.00 p.m. and 7.00 p.m. on the child’s birthday, on the father’s birthday and on Father’s Day in each year.
In addition to the contact provided by Order 2 above, the father is to have contact with the child A:
(a)for a period of three (3) days during Easter 2006, such contact to be at the home of the child’s paternal grandparents; and
(b)for a period of up to four (4) days over the period of the father’s wedding, to commence in sufficient time for the child to be fitted for a suitable dress to be worn at the wedding.
For the purpose of telephone contact as set out in Order 2(e), the mother must:
(a)provide the child with a mobile telephone;
(b)keep the father advised of the mobile telephone number; and
(c)ensure that the child is available to receive calls at the times provided.
For the purpose of contact as set out in Orders 2 and 3:
(a)the parents must ensure that the child is accompanied by a responsible adult until she attains the age of 10 years or such older age as is required by the particular airline upon which she may be travelling;
(b)the child’s parents, stepfather and grandparents are responsible adults for the purposes of Order 5(a);
(c)if either parent proposes that another adult accompany the child for the purposes of order 5(a) then that parent must notify the other parent of the identity of that other adult 21 days prior to the date of travel;
(d)the mother is to bear the cost of travel for contact for the contact in Easter 2006 as provided by Order 3(a) and the father must bear the cost of travel for contact for the purpose of the father’s wedding as provided by Order 3(b);
(e)subject to Order 5(d) the parties are to share the costs of all other holiday contact equally;
(f)if the father is unable to exercise any contact provided by these orders he must give the mother not less than 21 days’ notice in writing.
If the father is visiting in the vicinity of the mother’s residence and provided that he gives the mother reasonable notice he may make arrangements with the mother for mutually agreed contact with the child.
The mother and father must advise each other in writing of any proposal to take the child interstate for any period greater than 72 hours or overseas for any period and provide details of all telephone contact numbers, accommodation and a travel itinerary including copies of return tickets.
The mother must advise the father within 48 hours of any change to the child’s mobile telephone number.
Each parent must inform the other and keep the other informed of a telephone number either mobile or landline for the purposes of communication of any urgent matters concerning the child.
On those occasions that the father is exercising holiday contact with the child the mother will be permitted to telephone the child on her mobile phone twice each week between 6.00 p.m. and 7.00 p.m. on such days as may be mutually agreed between the mother and the father and the father must ensure that the child is available at those times with access to her mobile phone.
For the purpose of contact travel the father must make arrangements to collect the child from the mother at C A and return the child to the residence of her maternal grandparents at the conclusion of each contact period.
The mother is to inform the father of each school that the child attends and must authorize the principal of each school attended by the child to provide the father on a regular basis with copies of all school reports, bulletins, newsletters, information about school photographs and other documents normally sent to parents of children attending that school.
Each parent must notify the other of any illness requiring medical or hospital treatment or any medical emergency concerning the child as soon as is reasonably possible.
All other applications are dismissed and the application is removed from the list of cases awaiting finalisation
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Brisbane |
BRM 3877 of 2005
| A M B |
Applicant
And
| A P R |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a child named A, who is six years of age, to vary contact orders made by consent on 5th November 2001. The reason for the change to the orders is that the mother has moved to C to live whilst the father has remained living in Q.
The father seeks orders that would give him rather more contact with his daughter than the mother proposes. The parties have not agreed about the travel arrangements so that contact can take place.
In addition, the father seeks that the surname of the child, presently the mother’s married surname of B, should be changed to B-R. He also wishes there to be orders in place so that he may obtain information about medical and schooling issues concerning the child and so that the parties disclose their landline telephone numbers and residential addresses.
The parties have agreed about some matters concerning school holiday contact, but not all. The mother does not agree that the child should have a hyphenated surname, and she is reluctant to provide her residential address and landline telephone number.
Background
The father and mother were never married, nor did they live together. Their relationship commenced in 1998 and came to an end in approximately July 1999, when the mother was in the early stages of pregnancy. The child was born on 8th February 2000 and has lived with the mother all her life.
Contact did not commence until August 2001, after the parties had attended mediation in June. The initial contact was for four hours on one day a week at the home of the child’s maternal grandmother.
The parties entered into consent orders on 5th November 2001 at the Magistrate’s Court at C, after which contact increased to six hours a week.
In February 2002, the father commenced alternate weekend contact, from Saturday morning until Sunday afternoon.
The mother entered into a relationship with B B, a Sergeant in the Army, in April 2003. They were married on 5th September 2003. Since then, the mother has had two more children, both girls, from her marriage.
The mother advised the father in September 2004 that she proposed to move from Q with her husband, who was to be posted to either S or C. From that time until May 2005 the parties attempted to resolve the contact issues by negotiation. These proceedings commenced in May 2005.
The mother and her family relocated to C in June 2005. The father last exercised face-to-face contact in September 2005, due to the parties’ inability to agree.
Evidence
The mother and her husband gave oral evidence, as did the father.
The mother expressed concern that A was expressing negative views about seeing her father. She pointed out that the father had only exercised contact for a maximum of 56 days in any one year. She conceded in her evidence in chief that the child had a good relationship with her paternal grandparents, as well as with her maternal grandparents. The travel arrangements that she proposes would involve the father returning the child to the maternal grandparents, which she saw as a way of maintaining that relationship.
The mother said that the child had wanted to change her surname to B, so that she had the same name as her mother. The mother was “not sure” that she wanted to have the father’s name recorded on the child’s birth certificate, saying that the father had never signed the paperwork for recording his name on the birth certificate when the child was born. I formed the impression that the mother appeared to harbour some bitter feelings towards the father about events that took place when the child was born and early in the child’s life.
The mother was also adamant that she did not wish to disclose her landline telephone number to the father, because she had received abusive telephone calls in the past. Even though she did not recognize the father’s voice as the one making the calls, and she acknowledged that he had denied making the calls, she was still of the view that he had somehow been involved. The mother pointed out that the father had on one occasion threatened to take the child away from her, and she said that she still feared that he would.
The mother also said that the child wished to spend each Christmas with her and did not want to spend Christmas with the father. She acknowledged that the father was now engaged to be married, and she did not object to the child being involved in the father’s wedding ceremony.
The mother’s husband was cross-examined briefly. He was reluctant to make the family’s home telephone number available for reasons of his employment. He denied that he had suggested to A that she should change her name.
The father raised the issue of the child attending a boarding school near him if the mother’s husband had to relocate to another state because of his work in the Army. As the mother had previously given evidence that she “would not consider” the child going to boarding school, I do not see that the father’s boarding school proposal is likely to be adopted.
The father agreed that initially he did not accept the A was his child, but he later accepted that she is. This took place after a meeting between himself and the mother, and there was no need for DNA testing.
The father was aggrieved that he had not seen the child for six months and said that he had threatened to commence contravention proceedings when he did not have contact with the child over the Christmas holidays. He conceded that “it’s obvious A wants to use B and A’s surname” but took the view that, once he marries his fiancée, the child would want to share his surname as well.
The father said that he would agree with the child having Christmas with her mother each year “at this stage”, but said that eventually he would like to see her at Christmas in the future.
Interestingly, the father conceded that he did not need to know the child’s home address in the ACT, as she has her own mobile phone. So, too, does the mother.
Principles to be applied in contact proceedings
A court exercising jurisdiction under the Family Law Act 1975 must bear certain matters in mind when dealing with residence and contact applications. Section 60B of the Act states that the object of Part VII of the Act is “to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 65E of the Act makes it clear that the Court must regard the best interests of the child as the paramount consideration when deciding whether to make a particular parenting order. A consideration of the factors in s.68F (2) will help the Court to arrive at this decision.
Section 68F (2) provides for a number of matters that the Court should consider in order to ascertain what is in children’s best interests. Not all of them will be relevant in every case, but the Court must give consideration to them, as I have done in this case.
The relevant law about changing a child’s surname
The general principle is that the Court will not intervene to prevent a parent form changing the name of a child who resides with that parent unless the court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child (see Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510).
The Court should have regard to these factors:
a)the welfare of the child is the paramount consideration;
b)the short and long-term effects of any change in the child’s surname;
c)any embarrassment likely to be suffered by the child if her name is different from the parent with whom she lives;
d)any confusion of identity which may arise for the child if her name is changed or not changed; and
e)the effect of frequent or random changes of name (Chapman and Palmer (FLC 90-510 at 77,675-6).
Other factors that may be relevant are:
a)the advantages both in the short term and in the long term which accrue to the child if her name remains as it is now;
b)the contact that the father has had and is likely to have in the future; and
c)the degree of identification that the child now has with her father (Beach and Stemmler (1979) FLC 90-692 at 78,693).
There may be benefits from the use of a hyphenated surname made up of the surnames of both parents, as the father has submitted here. One such advantage can be that the use of the name accords with the reality of life, as the child has an ongoing relationship with both parents, even though they do not live together (see Mahony and McKenzie (1993) FLC 92-408).
Conclusions about the child’s surname
In this case, I have taken into account that the mother unilaterally changed the child’s surname from her maiden name of “K” to her married name of “B”. Even so, I believe that it is in the child’s best interest for her name to remain as “B” without the addition of the father’s surname.
My reasons for this decision are:
a)The child has never had the father’s surname. She has always used the mother’s surname, either K or B.
b)The child’s mother and father never lived together during the child’s lifetime. She has either lived with her mother or in a family unit that included her mother’s husband and, more recently, her two half-sisters.
c)The child now has the same surname as her two half-sisters and everyone in the family unit in which she lives.
d)The child has had one change of surname. It would not be beneficial if her name were to be changed again. It would be likely to cause her some embarrassment and may be seen as marking her out as different from the other two children in the family.
In my view, it is in the child’s best interests for her name to remain as it is now is, and the welfare of the child is the paramount consideration (Chapman and Palmer (supra); Flanagan and Handcock (2001) FLC 93-074). I propose to order accordingly.
Contact arrangements
In comparing the parties’ proposals for contact arrangements, I have considered the factors in s.68F(2) so far as they are relevant in order to ascertain what the best interests of this child are.
The child is six years of age and I have no evidence about her wishes to which I can give any weight. I am mindful of the mother’s evidence about the child’s expressed aversion to having extended contact with the father, but I have no independent evidence about this issue.
The child has lived with her mother all her life. She has had contact with the father on alternate weekends before moving to C. There is no challenge to the fact that the child has a good relationship with her mother and step-father. The mother asserts that the child has expressed aversion to contact with the father. There is no dispute that the child enjoys a positive relationship with bother sets of grandparents.
The child’s circumstances have changed, in that she now lives in C and her father still lives in Q. This means that contact will take place during the school holidays and there is a potential for disagreement between the parents about travel arrangements. There is a need for more school holiday contact to allow the relationship between father and child to build up. Telephone contact will be important, but the parties have resolved that issue by providing the child with her own mobile telephone. The child’s grandparents on both sides live in Q and she needs to maintain contact with them.
The practical difficulty and expense of contact arises from the mother’s move out of Q. This will involve air travel, and the mother will have to bear her fair share of that. Whilst the father wishes the child to be part of his wedding party, it seems only fair that he should pay her airfares for that event. The father’s concerns about the mother’s husband being re-posted away from C must be taken into account. In his employment in the Army, it is not known where he will go and whether he will be posted to some place where his family may not be able to join him. I am satisfied that the father should be able to be informed about medical and educational matters concerning his child, and I propose to make orders accordingly.
Each parent has the capacity to provide for the child’s needs.
Whilst the father has raised concerns about the mother’s approach to the responsibility of encouraging his relationship with the child, I note that he conceded in the witness box that he did not need to know her home address as long as the child has a mobile phone. The father has also expressed concern about the reluctance of the mother to assist with contact travel in the past, she has proposed arrangements that, to my mind, are appropriate for a child aged six to travel interstate. If the mother does not follow the contact orders to be made the father may be obliged to take contravention proceedings.
There are no family violence orders or proceedings.
To my mind, the mother’s proposals for contact are well thought through and take appropriate precautions to ensure that this child is accompanied by a responsible adult while travelling. I am also satisfied that the orders which I propose to make to ensure that the father has access to school and medical information will provide him with adequate information and avoid misunderstanding. By taking account of these matters, the orders to be made will be least likely to lead to further proceedings.
In my view, an important factor to be considered is that this child has not seen her father since September 2005. Initially, I believe that a short period of contact over Easter, with the child located at her paternal grandparents’ home, will assist in the re-institution of contact. The mother has given evidence that the child is comfortable with her paternal grandparents, and such an arrangement is one which should reduce the mother’s anxiety about contact.
I make the orders set out in the attached schedule.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 18 April 2006
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