Banvard and Knowles
[2005] FMCAfam 140
•29 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANVARD & KNOWLES | [2005] FMCAfam 140 |
| FAMILY LAW – Change of name – contact. |
| Family Law Act 1975; Pt VII, ss.60B, 60B(2), 65E, 65L, 68F(2) Child Support (Assessment) Act 1989 |
| Flanagan v Hancock (2001) FLC 93-074 Chapman v Palmer (1978) FLC 95-510; 4 Fam LR 462 D v B (1978) 3WRL 573 |
| Applicant: | MR BANVARD |
| Respondent: | MS KNOWLES |
| File Number: | MLM 6907 of 2002 |
| Judgment of: | Bennett FM |
| Hearing date: | 29 March 2005 |
| Date of Last Submission: | 29 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 29 March 2005 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr D.A. Mort |
| Solicitors for the Respondent: | Macgregor Solicitors |
ORDERS
THAT all previous parenting orders in relation to the child [X] BANVARD KNOWLES born in 1999 be and are hereby discharged.
THAT the child live with the mother and she have sole responsibility for the day to day care, welfare and development of the child.
THAT the parties have joint responsibility for the long term care, welfare and development of the child.
THAT the father have contact with the child as follows:-
(a)until the commencement of the 2007 school year, on each alternate weekend from the conclusion of school on Friday until 6pm on Sunday, provided that if the Monday immediately following a contact weekend is a public holiday or a non school day the father’s contact be extended until 6pm on Monday;
(b)from the commencement of school in 2007, the father have contact with the child each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, provided that if the Monday immediately following a contact weekend is a public holiday or a non school day the father’s contact be extended until the commencement of school on Tuesday;
(c)commencing on the second Thursday of the second term in 2005, on each alternate Thursday from 3.30pm until the commencement of school on Friday, when the father shall deliver the child to school prior to the school bell;
(d)in the event that Easter does not fall within the first term school vacation, on the next such Easter and each alternate such Easter thereafter, from 6.00pm on Good Friday until 5.00pm on Easter Sunday;
(e)in the event that Father’s Day falls on a non contact weekend, from 9am until 5pm on Father’s Day in 2005 and 2006 and from 2007 onwards from 9am on Father’s Day until the commencement of school on Monday;
(f)on the child’s birthday, if it falls on a school day, from 3.30pm until 6pm and, in the event the birthday falls on a contact day, then such contact be suspended from 6pm;
(g)on the child’s birthday, should it fall on a non school day then from 2pm until 6pm and in the event the birthday falls on a contact day then such contact shall be suspended from 2pm until 6pm;
That the father have contact to the child during school terms holidays and the long summer school vacation as follows:-
(a)i) from 6pm on 1 July 2005 until 6pm on 8 July 2005;
(b)from 6pm on 24 September 2005 until 6pm on 1 October 2005;
(c)commencing in 2006 and in each alternate year thereafter from the conclusion of school on the last school term day until 6pm on the second Saturday of the school term holidays;
(d)commencing in 2007 and in each alternate year thereafter from 6pm on the 2nd Saturday of the school term until 6pm on the third Saturday of the school term holidays;
(e)for one half of the long summer school vacation in 2005/2006, as follows:-
(i)from the conclusion of school on the last day of the school year until 3.00 p.m. on Christmas Day;
(ii)
for 2 further periods of not longer than 9 days duration each and which, together with the 4 days taken pursuant to paragraph 4(e)(i) hereof, shall be equivalent to one half of the long summer school vacation, such further periods to be as agreed between the parties or, in the absence of agreement, be from 3.00pm on Boxing Day to 6.00pm on
4 January 2006 and from 6.00pm on 10 January to 6.00pm on 16 January 2006;
(f)for one half of the long summer school vacation in 2006/2007 for 2 periods of 9 days at times to be agreed between the parties and, in the absence of agreement from 3.00 p.m. on Christmas Day to 6.00 p.m. on 3 January 2007 and from 6.00 p.m. on 10 January 2007 to 6.00 p.m. on 19 January 2007;
(g)commencing in the 2007/2008 long summer school vacation , for one half of the vacation at times to be agreed and in the absence of agreement for the 1st half in 2007 and each alternate year thereafter and for the second half in 2008 and each alternate year thereafter.
(h)such further and other contact as may be agreed between the parties from time to time.
THAT the alternate weekend contact provided for in paragraph 4 (a) and (b) hereof and the alternate Thursday night contact provided for in paragraph 4(c) hereof be suspended during school terms holidays and the long summer school vacation and the alternate weekend contact recommence on the first weekend of each school term and the alternate Thursday night contact recommence on the second Thursday of each school term.
THAT any contact to which the father is entitled be suspended:-
(a)from 9am to 5pm on Mother’s Day;
(b)where the father has contact pursuant to paragraph 4(g) for the long summer school vacation from 3pm on 25 December to 3pm on 26 December.
THAT all contact changeover occur at [M] Railway Station unless otherwise agreed between the parties and save for those changeovers which are expressed to commence or conclude at school.
THAT each parent keep one another informed of his/her:-
(a)own current mobile telephone number;
(b)place of residence at which [X] is accommodated during his/her periods of residence and contact;
(c)Any changes to his/her mobile telephone numbers or place of address.
THAT each party be and is hereby restrained from entering upon or approaching less than 5 metres from the residence of the other party without the prior written consent of the other party.
THAT each party forthwith notify the other of any medical emergency that may arise in relation to the said child whilst he is in their respective care.
THAT the father shall be in substantial attendance during contact.
THAT the parties shall communicate all issues relating to the child’s care, welfare and development including advice as to any injury or illness suffered by the child whilst he is in the parties’ respective care, by way of a communication book to be established by the mother and exchanged between the parties in the said child’s bag.
THAT each party be and are hereby restrained from denigrating one another in the presence and/or hearing of the said child.
THAT without admitting the necessity for same the father and the mother by their servants and/or agents be and are hereby restrained from smoking indoors in the presence of the said child.
THAT until further order, the father be and is hereby restrained from consuming alcohol to excess or consuming illegal drugs for a period of 24 hours prior to the commencement of contact and during his periods of contact.
THAT in the event that either of the parties intends to travel with the child outside of the State of Victoria during their respective periods of residence/contact then the parent intending such travel will provide to the other a travel itinerary including (addresses, location and contact telephone numbers of any place which the child maybe staying during such travel) no less than 7 days prior to the departure.
THAT pursuant to section 65L of the Family Court of Australia, the Manager of Mediation for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a counsellor to supervise compliance by the parties with these parenting orders (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years and to be reportable (but no report be prepared otherwise than on the volition of the counsellor or a further order of the Court to that effect).
THAT until further order or the prior written consent of the other party, the mother and the father, be and are hereby mutually restrained from removing the child from the Commonwealth of Australia until 19 May 2007 and it is requested that all officers of the Australian Federal Police give effect to this order.
THAT the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until 19 May 2007.
THAT after 19 May 2007, each party be and is hereby restrained from taking the child out of Australia without having first provided to the other party not less than 3 months notice in writing of his/her intention to do so together with a travel itinerary for the child.
THAT each of the mother and father henceforth exclusively use the name “KNOWLES” as the surname of the child [X] BANVARD KNOWLES and not cause or permit any other person to use any name other than KNOWLES as the child’s surname.
AND THE COURT NOTES:
THAT pursuant to section 65DA(2) 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 are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Banvard & Knowles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 6907 of 2002
| MR BANVARD |
Applicant
And
| MS KNOWLES |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
The proceedings
These proceedings concern [X] BANVARD KNOWLES born in 1999. The proceedings comprise the father's application filed on 6 February 2004 in which he seeks various orders, including a shared care arrangement, residence for one-half of special days and holidays; that each party keep the other notified of their current residential address and telephone contact number; an exchange of information about health issues; that a passport issue for the child and that the mother use the surname "Banvard-Knowles" in all documents and records for the child.
The father’s application was brought against a background where earlier proceedings were concluded in this court on 7 March 2003, whereby [X] resided with his mother and had specific overnight contact with the father. The father's application was supported by an affidavit sworn by him on 5 February 2004. It is a brief document.
The matter first came before this court on 10 February 2004 when orders were made for contact to coincide with a visit by the father's family. The matter was then next before the court on 14 May 2004 when it was set down for hearing today. The following orders were made in relation to the filing of documents:
That in anticipation of the final hearing:-
(a) The father file and serve by 10 February 2005 any further material and applications upon which he proposes to rely;
(b) The mother file and serve by 25 February 2005 any response to the father's material and any other applications and affidavits upon which she seeks to rely.
Neither party has complied with the order that they file documents in anticipation of this hearing. In March 2005, my chambers were contacted in relation to a proposed mediation between the parties and a request that they each delay compliance with the orders for filing of material. My Associate indicated that a delay would be appropriate. It happens, however, that the matter was not resolved and that no material was sought to be filed by either party for today's proceedings.
On 24 March 2005, I conducted a hearing by telephone, during which time I was advised by the father's practitioner that he would no longer be representing the father or making any appearance on his behalf in these proceedings and that each party had failed or neglected to prepare material. I ordered that the solicitor for the father could file a notice of ceasing to act and that the matter could proceed by way of viva voce evidence. It has proceeded by way of viva voce evidence.
At one point in today’s hearing, after the father had closed his case, Counsel for the mother sought to file an affidavit which he erroneously thought had been filed in May 2004. The father said that he had not seen the document. I refused to allow the mother to rely on that document because the father had by that stage closed his case.
I indicated that I would not stop Counsel for the mother from adducing oral evidence relevant to issues to be decided.
I note that the father has represented himself in the proceedings today. Furthermore, the matter was stood down this morning for as long as was necessary for the father to seek advise from the duty lawyer at the court.
I have been assisted by the presentation of the mother's case by Mr Mort, including the provision of a detailed minute of orders sought by the mother which runs to some 21 orders and 6 notations. By reference to that document, it was possible to canvas with the father what matters were actually in issue and what matters he agreed to in principle. I am happy to say that many matters are agreed and there remained only a handful of issues that I am required to decide.
Evidence and finding of fact
The father relied on his affidavit sworn on 5 February 2004 and his oral evidence.
The mother relied on her oral evidence.
Finding of fact are made on the balance of probabilities test, having regard to the evidence and my observation of the parties in the witness box on their oath. In what follows, statement of fact are findings of fact.
History & issues to be determined
I am giving this judgment ex tempore, so I will not recite the historical facts of the matter. [X] is five years old, having been born in 1999. The mother is 36 years old. She is employed part-time [in the Physical Education industry] and otherwise reliant on income-tested pension or benefit and a modest amount of child support paid by the father. The father is 34 years old and he is currently employed [in the Scientific industry] and has been for some eight months. Whereas I say that his child support is modest, there is nothing to suggest that it is anything less than the appropriate amount having regard to the applicable formula under the Child Support (Assessment) Act 1989
Each of the parties were born outside of Australia, and they met whilst travelling overseas. They commenced cohabitation in about 1998 in Australia. They separated shortly prior to [X]’s birth which occurred in Sydney in May 1999. The mother then relocated to Melbourne, and after some time, the father followed. There was a break in any contact between the child and the father until approximately April 2002, and there have been incremental increases in the father's contact since that time and in accordance with orders of the court.
A family report was ordered to be prepared for these proceedings, and it was released and received into evidence on 1 February 2005. It is a report by Ms Manya and it recites the fact that she saw the parties and [X] on 20 January 2005 and then had further telephone contact with both parents on 27 January 2005. Ms Manya was not required for cross-examination today.
The most significant agreement between the parties now is that the father no longer pursues his application for shared care of [X]. The father’s concession in relation to residence is consistent with the recommendations of Ms Manya which are set out on the final page of her report, as follows:-
[39] [X] resides in the primary care of his mother.
[40] [X] has fortnightly contact from Friday after School to Sunday 6.30pm to commence immediately. [X] returns to the care of the mother after dinner with his father on the Sunday. The writer believes that [X] needs to return to the care of the mother on Sunday night to get ready for the school week. However father’s contact could be extended to Monday morning if the Monday is a public holiday and starting from School year in 2007, [X]’s contact with the father could be extended from Friday after School to Monday to School.
[41] The father picks up [X] from School at 3.30pm on the alternate Thursday and takes him to School on the Friday morning commencing after Easter Sunday week this year. This would allow some time for the child to settle in his new School routine.
[42] The father has the child for the first half of School holidays for a week during the first three terms and has 2 blocks of 10 days each during summer holidays until the child reaches the age of 8 years, unless otherwise agreed between the parents. It is essential that the father informs the mother in writing if he is unable to spend time with [X] during his School holiday period. After 19.5.2007 the parents can share the summer holidays equally to allow each of them to have extended holiday time with the child.
[43] The father states that he is aware of the mother’s address for more than 3 years now, but the parties have not reported any unpleasant situation between them around the mother’s home. The writer believes that it is in the best interests of the child that the parents inform each other about his/her address in the future. The father should be able to telephone the child once a week on an agreed day and time.
[44] The parents need to share the time with the child on special days or have alternate year contact on the special days. The legal representatives of the parties need to assist the parent s to set out the future contact arrangements clearly and without ambiguity, to avoid further conflict between the parties.
The orders that I am asked to make by consent, being the matters upon which the parties agree are orders in the terms of paragraphs 1, 2, 3, 11, 12, 13, 14, 15, 17 and 19 of the minute prepared by the mother. Additionally, I will make an order for reportable supervisory counselling pursuant to s.65L of the Family Law Act 1975 (“the Act”).
The remaining matters which fall for determination are:-
·the extent of contact during school term time;
·the formulation of holiday contact;
·the changeover point for contact;
·whether each party is entitled to know the residential address of the other;
·whether the father ought to be restrained from consuming alcohol to excess or consuming illegal drugs during contact;
·the father's application that the child's surname be changed to "Banvard‑Knowles".
The law
Parenting orders arise in proceedings that result from Pt.VII of the Act. They are subject to s.65E of the Act that in determining the outcome, the best interests of the child is the paramount consideration. This is the overriding principle and the principle that I apply when making the various determinations in relation to [X] today. Subject to the best interests of [X] being the paramount consideration, s.60B sets out the objects of Pt.VII of the Act and the principles which underlie those objects and the context in which the various s.68F(2) factors are to be weighed. The four principles are as follows:
1)Children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or never lived together.
2)Children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development.
3)Parents share duties and responsibilities covering the care, welfare and development of their children.
4)Parents should agree about the future parenting of their children.
Section 60B(2) is particularly relevant in these proceedings. It refers to the regularity of contact which I interpret as a principle to secure contact that is as frequent and as effective as possible. There are various factors set out in s.68F(2) of the Act which I am mandated to take into account to the extent that they are relevant to [X]’S circumstances. I will do so.
Determining [X]’s best interests: contact
The first matter which I am required to take into account in making parenting orders are the wishes of [X]. [X] is now only five years old. The counsellor who has written a report in the matter does not highlight as significant any particular wish expressed by [X]. She does record that [X] at one point said that he wanted to spend 4 nights at his father's home, that appears at paragraph 28 as follows:-
[28] [X] further stated that he wanted 4 nights at his father’s home. When asked why specifically 4 nights, [X] stated that his father wanted it that way. When asked about his wish, [X] replied “I don’t know”……..
I take into account the nature of [X]’s relationship with each of the parents and other significant persons. The father accepts that [X]’s primary attachment is with the mother, and he describes his relationship with [X] as being a good, strong relationship.
The mother accepts that [X] has a good relationship with his paternal grandparents and testified that she had personally observed [X] to have a good relationship with his paternal uncle. The counsellor records that when it came time for [X] to draw a picture of his family, he did so:
[27] [X] willingly drew the family picture and pictures his mother first with a smiling face. As he did the picture, he shared that he loved his mother a lot and she always had a smile for him. As he drew his father, [X] stated that his father took him for exciting outings and he liked to spend time with him.
I accept that [X] has a very satisfactory relationship with both parents.
I take into account the capacity of each of the parents to meet [X]’s needs. I am satisfied that each parent has the capacity to adequately care for [X] in a physical sense. Having seen both of the parties give evidence today including the opportunity to see the father present his case unfiltered by legal representation, I have significant concerns about the ability of each party to relate civilly with the other in the presence of [X] or to each other at all. The tension and disdain between them was palpable. They spoke over each other and were disrespectful of each other. Neither was better behaved than the other save that the mother did not have as large a speaking part as the father because she was represented. The dynamics of the poor relationship between the parents and the fact that they are unable to conceal their mutual contempt for the other represents a shortcoming in each of them to have regard to [X]’S emotional needs. I note that the counsellor reported that:-
[28] [X] shared that he was unhappy that his parents did not like each other. He wanted them to be friends.
The mother seeks an order that the father be restrained from consuming alcohol to excess or consuming illegal drugs for a period of 24 hours prior to the commencement of contact and during his periods of contact. I note that in the father's affidavit filed in support of this application he says at paragraph 5:
At the time of the making of the orders on 7 March 2003, I agreed to an order with respect to the non-consuming of alcohol or illicit drugs. I have not taken an alcoholic drink for approximately two years and I have not taken any mind or mood altering substance for three years. I remain continuously clean and sober.
The report writer records as follows:
[14] The father strongly denied all allegations made by the mother. He stated that he had stopped drinking a few years ago but he attended AA meetings regularly to assist other participants. He was never into drugs and did not even smoke cigarettes. The father reported that the mother's allegation about his inadequate supervision of the child was unfounded. Mr Banvard assured that he took good care of his son during his contact time with him.
Whilst giving his evidence, the father said that he had remained clean and sober since 6 February 2002. He said that he attends Alcoholics Anonymous meetings one to three times per week. He acknowledged that there was no cure for alcoholism, but also said that the mother was not in need of any safeguard by way of the order that she sought. He gave evidence that he does not drink alcohol at any time. He said that the last time he had taken a mind-altering substance was some four years ago when he did so either with the mother or consistently with the mother's practice at that stage. I find that the father has a good insight into his addiction to alcohol. His opposition to the orders sought by the mother was that the order would be irrelevant to his resolve not to drink alcohol and, given his resolve, there is no need for the order to be made. I am satisfied, however, that the order sought by the mother may assist in the mother's peace of mind and that it represents a formal statement of what the father himself recognises is a necessity, that is that he not drink alcohol to excess (he would say at all) during contact periods. I will make the order sought.
The mother sought an order that the father be in substantial attendance during contact periods. The father does not oppose that order. However, inasmuch as I characterised it to him as meaning that he be present for at least one-half of each contact period, I suspect that what the mother sought was a protection that goes beyond the order that was drafted on her behalf. The father says that he will be taking leave from his employment in order to exercise contact but that he foresaw a situation where he may be able to take two weeks leave and then have his relations care for [X] for the other week.
As I see it, the difficulty in the father's proposal in that regard lies in his description of the health of his family members in the context of him wanting to take [X] to England next year for an extended period. I note in that context that the father describes the paternal grandfather of [X] as having four heart attacks, a quadruple bypass and now suffering from heart problems which are inoperable. The paternal grandfather's angina has returned. The father believes that the paternal grandfather is living “on borrowed time”, and gave evidence that his father could not obtain travel insurance. The father described his own mother as having recently recovered from cancer, he described that she was not particularly forthcoming to him about the consequences of her illness but that he was satisfied that she was weak and not as strong as she used to be. Given that information, it seems to me that it would not be appropriate for the father to be leaving [X] in the care of his paternal grandparents for contact periods during the day.
The father also gave specific evidence about the flexibility of his working hours. He said that his employer was prepared to be flexible with his working hours and was generous with leave. The father understands that he can take up to 8 weeks leave per year. He gave evidence of his understanding that his employer was currently involved in proceedings about contact to his child or children and that the father believed that his employer “is very responsive to my needs in relation to contact …… he is wholly supportive of me.”
I heard evidence from each party to the effect that [X] is an easygoing and healthy child. There was nothing in the counsellor’s assessment nor in the evidence of each of the parties to indicate that [X] is anything other than age appropriate in his development.
I find that there are no factors which I need to take into account in relation to physical or psychological harm caused by abuse or ill‑treatment, and there are no family violence issues in this particular case.
The next matter that I take into account is the attitude of each of the parties to [X] and to the responsibilities of parenthood. I have already commented on the hostilities between the parties. I am cognisant of the fact that they did not cohabit in any significant sense and have never shared a household as parents of their son. The counsellor reports the father saying:-
“… his relationship with the mother was ‘exciting and fun’ when they were travelling together. However when they tried to settle as a couple in Australia they faced several personal and financial problems. He shared that ‘the reality struck then that we did not really get along together.”
My observation is that the parties share no mutual respect or trust for one another upon which to draw when dealing with the other.
I am satisfied that the mother has fostered a positive relationship between [X] and the father's family, that is she introduced [X] to his paternal grandparents whilst travelling abroad with [X] and that she has very recently arranged contact between [X]’s paternal uncle and [X] whilst the former was in Australia. I find that the mother's apparent enthusiasm about the father's family is not extended to the father himself.
The mother alleged that she is fearful of the father, in as much as she has historically found him to be volatile and erratic. The counsellor reported that the mother said that she did not expect the father to follow her back to Australia in the late 1990’s but that he did and that the mother was instrumental in the father’s necessary immigration status to remain here. The mother's demeanour did not impress me as being in the slightest bit fearful, threatened or intimidated by the father. My overall impression is that the mother is annoyed that she has to deal with the father on an ongoing basis and that she would be much more successful in establishing and maintaining an affable relationship with the father if the father was geographically remote from her.
The mother commenced these proceedings before me on the basis that she did not want to disclose her address, which is where [X] currently resides. In the course of proceedings, it became apparent that the father knew the address and that he had learnt it from [X]. In my view, the mother's desire to keep her address secret was not based on apprehensions or fear of the father or what he might do to her. I am satisfied that if the father is effectively prohibited from knowing the mother’s address, that would lead [X] to understand that there is something unacceptable or unsafe about his father. I am satisfied that is not the case and, if I am correct about [X] obtaining that misapprehension, I find that it would be contrary to [X]’s best interests for him to carry that misapprehension. I also think that non-disclosure by the mother of her residential address is inconsistent with the frequency and duration of contact between father and [X].
I find that it is appropriate that the father know where his son lives on a day-to-day basis and it is appropriate that [X] understand that is the case. I do not envisage that the father will ever visit [X] at the mother’s home. When I asked the father what his attitude would be to an order precluding him from entering upon or approaching the mother’s residence he said that he would want to go and see, once, the outside of the house in which [X] lives. That struck me as a genuine and thoughtful and entirely reasonable response. In these proceedings I will require that each party keep the other informed of their respective residential addresses and any changes thereto. I will, however, also restrain each party from entering upon or approaching within five metres of the residence of the other parent without the prior written consent of the other parent.
In the context of the specific contact orders, the father seeks that the alternate weekend contact extend to the commencement of school on Monday. The counsellor in her report recommended as follows:
[40] [X] has fortnightly contact from Friday after school to Sunday at 6.30 pm to commence immediately. [X] returns to the care of the mother after dinner with his father on the Sunday. The right of leave that [X] needs to return to the care of the mother on Sunday night to get ready for the school week. However, the father's contact could be extended to Monday morning if the Monday is a public holiday, and starting from the school year in 2007, [X]’S contact with the father could be extended from Friday after school to Monday to school.
The father picks up [X] from school at 3.30 pm on the alternate Thursday and takes him to school on the Friday morning commencing after Easter Sunday-week this year. This would allow some time for the child to settle in his new school routine.
In making that recommendation, the report-writer has recited the concerns of the mother that she wanted [X] to be back with her in order to ready him for the beginning of the school week and that she had concerns about the father's reliance on public transport if the child is to get to school punctually following contact. Certainly I am convinced that [X] must be at school punctually and that it would be contrary to his best interests to miss the start of any school morning because of tardiness or impractical transport arrangements. That said, the counsellor also records the concern of the father that he wishes to develop a closer relationship with [X] and that he wants to have more input into [X]’s day‑to‑day life. I am satisfied that school is a significant component of [X]’s day-to-day life.
In the context of the father assuring me that he would be able to get [X] to school on time each alternate Friday morning, the father said that he was confident that his girlfriend would transport him. The father’s evidence was that he resides with “[name omitted]” who is a casual [Educational Professional] in a Steiner School. I made it clear to the father that if [X] is late for school on the Friday mornings following his mid-week contact, then I would be disposed to cancel the mid-week contact in favour of [X] arriving at school on time. We will have to wait and see. However, arrival at school punctually is only one aspect of readying [X] for the school week. On balance, I am satisfied that it is more in [X]’s best interests to return to his mother's home on Sunday evening after dinner to ready himself for the school week. Insofar as the mother has already agreed to contact each alternate Thursday evening, which commences after school and concludes with the father taking [X] to school on Friday, I am prepared to make that order, because the father assures me that he will on that one day each fortnight get the child to school on time, and in my view it is less imperative that [X] leave from his primary place of residence each alternate Friday than it is on each alternate Monday when he starts a school week.
The mother originally sought orders in relation to Easter, which has just concluded. The father seeks some time during any Easter period when it falls outside a school holiday period. The mother has proposed that the father have contact from the conclusion on school on Thursday to Saturday at 6pm, and from Saturday at 6pm to 6pm on Easter Monday. In my view, that adequately shares the Easter period between the parties.
The mother sought orders that contact during Father's Day and Mother's Day be suspended or take place so that the father has contact to [X] from 11am to 5pm on non-contact Father's Day and that [X] is returned to her care at 11am on Mother's Day. The father's position was that by 11am the day has largely gone and he sought a commencement time on the same formula from 9am. I propose to accede to the father's request in that regard. I am satisfied that [X] should have the sense of a full day with the parent for whom commercial or other interests within our community have designated a special day.
The mother originally sought orders that would divide Christmas Day and the long summer school vacation equally, or more or less equally. The father's preference was that Christmas contact commence each alternate year from the conclusion of school until 3 pm Christmas Day and then be completed later in the holiday. Ultimately, the wife did not object to that course, and I will make an order in those terms. Therefore, from 2005, the father will have one half of the long summer school vacation from the conclusion of school to 3pm Christmas Day, and then for a remaining period to make up one-half of the long summer vacation, provided that in the 2005-6 and 2006-7 years, the periods be not longer than nine consecutive days. So there will in 2005-2006 in fact be three periods. In 2006, the period can be from 3pm Christmas Day until 3 January, and then for another period of nine days to be agreed between the parties, and in the absence of agreement, it can be from 10 January.
In limiting the father's contact to periods of not longer than nine days during the long summer school vacations for the next two years, I am mindful of the fact that the father has not, as yet, had extended care of [X] for a period longer than four days. In the last long summer school vacation the father did have an opportunity for three periods of extended contact up to four days each, but was precluded from taking two of those periods because of the ill health of his mother. He has recently concluded a period of four days with [X]. However, commencing 2007-2008, I am satisfied that the father's holiday period during the long summer school vacation can be taken in one block and I will order accordingly.
The mother seeks an order that the father's contact during school-term holidays be conditional upon the father providing 21 days notice to the mother in writing in a communication book of his intention to exercise such contact. I do not propose to make such an order. The father has conducted his case in such a way that it is perfectly clear that he will take whatever contact he is entitled to take, subject to only unforeseeable circumstances such as accident or injury.
The mother seeks an order that contact changeover occur at [O] Railway Station unless otherwise agreed between the parties or these orders provide that the contact occur at [X]’s school. The evidence in this respect is that the father does not have private transport. He is reliant on public transport, although he was confident that on some occasions he might be able to arrange for his partner to provide car transport. The mother's evidence was that [O] Railway Station was a relatively short five-minute flat walk from her home and that [X] could make the journey on foot or ride his bike or scooter. The current place for changeover is [M] Railway Station, and the mother's evidence was that that is approximately a five to 10-minute drive from her house. There is a steep hill which has precluded [X] walking, and it is also a 15 or 20-minute walk from her house.
Both parents are employed but both parents are on a modest income. The father pays child support in accordance with an administrative assessment. He pays child support of something like $225 per month. The mother has the use of a car. I accept that [M] Railway Station offers a greater flexibility for the father than does [O] Railway Station. As a first option, the father seeks [R] Railway Station which is close to his residence. I did not receive any evidence about the length of time it would take the mother to get from her home in [C] to [R], but I am satisfied that it would be significantly longer than it takes her to get to [M] Railway Station.
I consider it to be in [X]’s best interests that the changeover point for contact be a place that is relatively convenient for both of his parents, and on that basis will choose [M] Railway Station.
The father seeks an order than in 2006 he be able to take [X] to England for an extended period of contact of approximately 23 days. The mother opposes that contact on the basis that she says it is a period which is too long, having regard to the father's limited care of [X] to date and the fact that if the father has contact in accordance with these orders, he will have had contact for only periods up to nine days duration. The report-writer specifically turned her mind to overseas contact for [X]. At paragraph 33 of her report, she opined as follows:
The father relocated to Melbourne two and a half years ago and has had regular fortnightly contact from March 2003. Currently both parents state their decision to live permanently in Australia and both have permanent residence status. Both parties have extended family members living in England and may wish to travel there with the child from time to time in the future. The writer believes that until [X] is eight years old it is better that he does not travel overseas with one parent and away from the other for extended periods. However, the parents have an option to decide to travel to the UK at the same time or mutually agree to allow the child to travel overseas with some conditions if required.
I accept the counsellor's evidence that [X] should not travel overseas solely in the care of one parent for extended periods for some two or three years to come. I am mindful of the fact that this may preclude [X] seeing his paternal grandparents and I accept the evidence of the father that his own father's health is somewhat precarious, but ultimately I am satisfied that the father's proposal for [X] to travel to England more meets the needs of the father and the paternal grandfather than addresses the needs of [X]. That said, I am concerned that the mother ought not be in a position to travel overseas with [X] and still effectively deprive the father of an opportunity to have his family see [X] for some of the period that [X] is overseas. Accordingly I will order that neither party be able to take [X] from the Commonwealth of Australia until after 19 May 2007 without the prior written consent of the other, and after 19 May 2007, each parent be restrained from taking [X] out of Australia without at least three month's notice in writing to the other parent.
The mother sought that there be a notation reflecting the fact that she should be entitled to have [X] return from contact for social engagements that fell during contact periods. She offered a formula of make up contact. I will not be making orders consistent with that proposed notation. For the avoidance of doubt, my view is that it is not appropriate to interrupt the father's necessarily limited contact time with social engagements arranged by the mother, unless the parents agree to do so.
The parties both seek that the father's alternate weekend contact recommence on 22 April 2005 in this school year. I will make an order that the alternate weekend contact be suspended during school term vacations and the long summer school holiday, but recommence on the first weekend of each school term. That goes further than what is sought by the parties but I have discussed with them the order I propose to make. I am mindful of the fact that recommencement of the father’s weekend contact in the first weekend of the school terms will maximise the number of occasions that the father has weekend contact in any school term, and in my view, that is appropriate in this case. The mother sought that the weekend contact be somehow synchronised to the contact arrangements of [X]’s school friends whose parents live separately. That would be desirable but, in my view it is impractical. It is my intention that the father be able to maximise [X]’S enjoyment of contact by being able to plan ahead with certainty.
Change of name
The father makes an application to change [X]’S surname from the registered name of "Knowles" to "Banvard-Knowles".
The parties agreed that [X]’s first given name was to be a name significant for the father’s family and that his second given name, of [Y], was a family name from the mother's side.
There is a dispute as to how [X]’s surname was registered only as Knowles rather than Banvard-Knowles. The mother's evidence was that the father would not initially sign the application to register [X]’s birth. The father disputes that evidence. For the purpose of these proceedings, I find that that is only remotely relevant. The fact is that [X]’s birth was registered under the surname of Knowles with Banvard as the child’s third given name.
The father contends that he thought that [X]’s surname was “Banvard-Knowles” and that the parents agreed that it would be so. The mother denies any such agreement. I am satisfied that the mother did not agree, and would never have agreed, to have [X] known by the surname “Banvard-Knowles”. By the same token, I do not disbelieve the father. Rather, I suspect that the father was distracted from any issue about the surname of his young son by the lure of being able to choose his son’s first given name. Furthermore, I am satisfied that the importance to the father of [X] bearing the father’s family name as a component of his surname only hit home when he realised that the mother’s hostility to him was likely to endure.
I have sighted a birth certificate which appears to have been issued on 5 August 1999. I am told that it was subsequently amended to include the father's particulars, although not with the effect of altering the child's surname.
The father conceded that he may have received notification from the Registrar of Births, Deaths and Marriages in May 2000, which indicated that his details would be included in [X]’s birth certificate but that the surname would not be changed.
There was a letter tendered by the mother through the father, signed by the father and dated 18 May 2000. That letter was written by or on behalf of the father to the Clerk of the Magistrates Court in the context of the mother having made an application for a passport to issue for [X]. The application itself was unsuccessful, but in that correspondence I observed that the father referred on at least four occasions to [X] with there being no hyphen between the names Banvard and Knowles. When it was put to the father in cross‑examination that that was inconsistent with what he testified was his belief that the child was to be known by the surname Banvard-Knowles, the father's explanation was, "My English grammar is not the best in the world."
The father acknowledged that at the end of 2000 he signed documents for a passport to issue for [X]. He said that he could not recall how [X]’s surname was written.
The father identified correspondence which he had sent to the Child Support Agency in February 2001 where he twice referred to the child without using a hyphenated surname "Banvard‑Knowles".
In proceedings which were initiated by the father in this court in 2002, the mother took issue with the fact that the father referred to the child’s surname as “Banvard-Knowles”. In the mother’s response filed on
11 September 2002, she stated at paragraph 8,
"The child's family name is Knowles. The child's given names are [X] Banvard."
Those proceedings were concluded without there being any amendment or alteration sought to [X]’s name.
Finally, the father conceded that he did not raise the change of name issue with the counsellor, Ms Manya, in the interviews which she conducted in January 2005. I am not satisfied that in failing to raise this with Ms Manya, the father was in any way diminishing the importance to him of his application to change [X]’s surname.
It is clear to me that the totality of Ms Manya's report is directed to residence and contact issues. She does not mention the change of name proposal at all. I have no expert evidence from Ms Manya as to the consequences of changing [X]’s surname at this stage. However, I do not consider that to be an impediment to me making a decision
The father's application to change [X]’s surname is but one other parenting order which the father seeks be made in these proceedings. The relevant authorities in relation to matters which I am required to take into account in deciding whether or not to order a change of name are in my view succinctly and conveniently set out in the joint judgment of their Honours Kay and Holden in Flanagan v Hancock (2001) FLC 93-074 in paragraphs 35 to 38 inclusive. I adopt that summation. Otherwise I agree with the submission by counsel for the mother that the decision of the Full Court in Chapman v Palmer (1978) FLC 95-510; 4 Fam LR 462 correctly states the principles governing a change of a child's surname. They are as follows:-
We believe that each such case should be approached in an even‑handed manner, with the object of making a decision which will promote the welfare of the child. To summarise, the factors to which the courts 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 the 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 from that of the parent of 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.
The feelings of parents on change of name issues were in my view accurately described in the case of D v B (1978) 3WRL 573 at 582 as follows:
I am sure everyone understands that the question of the surname of a child is a matter of great emotional significance, particularly to fathers. If the name is lost, in a sense the child is lost. That strong patrilineal feeling we all to some extent share, but this has to be kept within the bounds of commonsense. In my judgment .... fathers feel very sensitive about it. Mothers feel that it is a plague on a day-to-day basis and they have to explain to schools people and have to make special notes in records and so on about the name.
In assessing what is in [X]’s best interests vis a vis the father’s application to alter his surname, I take into account the matters summarised by the Full Court in Chapman v Palmer. That is I consider [X]’s welfare to be the paramount consideration.
I take into account the short and long-term effects on any change in [X]’s surname at this stage. The father's evidence was that he considered a change of surname at this point to be something that was necessary for [X] in order for [X] to maintain an identity as part of the father’s family. That said, the father's evidence was that [X] is totally aware that the father is his father and he identifies with the father's family as his paternal family members.
The father's case was that to change [X]’s surname at this point would also “strengthen the relationship” between him and the [X]. That said, however, the father's evidence was that there was a very good and satisfactory relationship between him and [X].
The mother's evidence was that to change [X]’s surname at this stage would be confusing for [X] and would cause him “upset”. She gave evidence that [X]’s surname is recorded as Knowles at school and also on official records such as his Medicare card, medical records, official records, investment records and the like. Of all those, I am satisfied it is only [X]’s knowledge of himself as being enrolled with the surname Knowles at school that could be remotely relevant for [X], given his age. The other matters are matters which are relevant as far as the mother is concerned but not as far as the child's perception of himself is concerned.
I am not satisfied that [X] would suffer any confusion over his identity if his surname was to be changed now. Similarly, I do not believe that [X] would experience any significant embarrassment if his surname was now to change from being identical to that of his mother to “Banvard-Knowles”.
I am satisfied that in this day and age, children are frequently given hyphenated names and bear the surname of only one parent, notwithstanding that the child may have frequent and significant contact with the parent whose surname it does not bear. I do not consider that there is anything unusual about the father’s application that, henceforth, [X] be known by a hyphenated name. However, I do take into account that the father has known for most of [X]’s life that [X]’s surname was registered as “Knowles” rather than as “Banvard-Knowles” and that the father did not act until February 2004 to seek a change of name for his son.
I am satisfied that [X] should have some link as far as his name is concerned with the paternal side of his family. However, I am also satisfied that the link exists to a sufficient degree by [X] having Banvard included as his third given name.
Now and in years to come, I am satisfied that [X] will appreciate that Banvard is included in his name by virtue of being his father's family name.
I do not consider that [X]’s relationship with either parent would be enhanced or detracted from if I were to change [X]’s surname in the manner sought by the father. I accept that the mother would find a change of name to be aggravating in the extreme but I am satisfied that she would direct her negative emotions in this regard to the father and not to the child. Specifically, I am not satisfied that the relationship between the father and [X] will be “strengthened” by a change in [X]’s surname. As indicated, I am satisfied that the relationship between father and son is established and strong and that [X] identifies with the father in an appropriate way. Furthermore, I am satisfied this is the case even in light of my findings as to the mother’s negative attitude to the father.
The Full Court included in the considerations which are relevant to my consideration of the father’s application that I consider the effect of frequent or random changes of name. My view is that frequent and/or random changes of name are undesirable. However, as neither parent seems to be on the brink of changing their own surname, it is not a consideration particularly relevant to [X].
Having regard to [X]’s welfare as the paramount consideration and weighing that welfare and his best interests against the factors suggested by the Full Court of the Family Court of Australia as well as the factors set out in s.68F(2), I conclude that it is not in [X]’s best interests to accede to the father’s application to change his surname.
I will make the usual order in relation to the surname of a child. That will have the effect of preserving Banvard as the third given name for [X] but to restrain either parent from causing or permitting the child to be referred to by any surname other than that with which he is currently registered, being Knowles.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: R. Campbell
Date: 1 April 2005
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