Bei & Foong
[2022] FedCFamC2F 655
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bei & Foong [2022] FedCFamC2F 655
File number(s): CAC 2213 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 19 April 2022 Catchwords: FAMILY LAW – Parenting Application – Name change sought by the Mother – considerations in light of Father’s absence from child’s life – Name change Ordered. Legislation: Family Law Act 1975 (Cth) ss 4, 64B, 65D Cases cited: Beach & Stemmler (1979) FLC 90-692
Chapman v Palmer (1978) 34 FLR 405; 4 Fam LR 462
Darley v Darley (2016) FamCAFC 10
Fooks v McCarthy (1994) FLC 92-450
Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 19 April 2022 Place: Canberra Counsel for the Applicant Ms C Spain Solicitor for the Applicant Brightstone Legal Pty Ltd Solicitor for the Respondent Self-represented with Mrs K Mistry from the ACT Legal Aid Office on a duty basis Solicitor for Independent Children’s Lawyer Chamberlains Law Firm ORDERS
CAC 2213 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BEI
ApplicantAND: MS FOONG
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
19 APRIL 2022
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
1.The Mother has sole parental responsibility for X born in 2016 (‘the child’).
2.The child live with the Mother.
3.The child spend time with the Father in person, as agreed between the parties in writing, and failing agreement as follows:
(a)Commencing from the date of these Orders until 29 September 2022, every alternate Saturday for a period of 2 hours as supervised by C Supervision Service at times as nominated by C Supervision Service;
(b)For the 6 months following Order 3a, every Saturday from 10:00am to 6:00pm each alternate weekend within the Australian Capital Territory;
(c)For the 6 months following Order 3b, commencing on the second and fourth Saturday in every month from 10:00am Saturday to 6:00pm the following Sunday within the Australian Capital Territory;
(d)Following Order 3c, from 10:00am each alternate Saturday until 6:00pm Sunday (commencing at 10:00am Friday in the event the Friday is a Public Holiday within the ACT and concluding at 6:00pm in the event the Monday is a Public Holiday with ACT), with each alternate weekend period occurring within the Australian Capital Territory;
4.Upon the child attaining the age of 10 years, the child spend the following times with the Father in person and in addition to the time in Order 3d:
(a)During the term 1, 2 and 3 gazetted school holiday periods for the State / Territory in which the child resides:
(i)In years ending in even numbers or zero, the second half commencing at 10:00am on the middle Saturday of the school holiday period and concluding at 6:00pm on the day prior to the commencement of the following school term; and
(ii)In years ending in odd numbers, the first half commencing at 10:00am on the first Saturday of the school holiday period and concluding at 6:00pm on the middle Saturday of the school holiday period.
(b)On a week about basis during the term 4 gazetted school holiday period for the State / Territory in which the child resides:
(i)commencing at 10:00am on the second Saturday of the school holiday period and concluding at 6:00pm on the following Saturday and each alternate seven-day period thereafter during years ending in an even number or zero;
(ii)commencing at 10:00am on the first Saturday of the school holiday period and concluding at 6:00pm on the following Saturday and each alternate seven-day period thereafter during years ending in an odd number.
Communication
5.The Mother must facilitate telecommunication via Videocall, and if not available Telephone call, between the Father and the child every Thursday for a period of up to 1 hour commencing at 6:00pm with the Father to initiate the call on a mobile phone purchased by the Father.
6.During periods that the child is spending time with the Father pursuant to Order 4, he must facilitate telecommunication via Videocall, and if not available Telephone call, between the Mother and the child every alternate day for a period of up to 1 hour commencing at 6:00pm.
Changeover
7.To give effect to Order 3 and 4 (with the exception of Order 3a), the Father will collect the child from a location as agreed in writing and failing agreement in front of the Woolworths Supermarket in D Supermarket, ACT.
8.Seven days prior to each period of supervised time in Order 3a, the Father will pay to the Mother the sum of $100 into an account as nominated by her for the costs of subsidising transport costs of the child to and from C Supervised Contact Service.
9.The Mother is restrained from causing the child to reside outside of the Australian Capital Territory or the Greater Metropolitan Sydney Area without obtaining the consent of the Father.
10.Each party is to keep the other informed of their current residential address, mobile and landline telephone number and advise the other party in writing of any change thereto within 24 hours of such change.
11.The Father is, without admissions, restrained from attending at the Mother’s residence without her written consent.
Health/Medical
12.Each party shall follow the direction and advice of the child’s treating medical practitioner in relation to the child’s health, treatment and any medication and shall ensure that any treatment and or medication is provided to the child while the child is in that party’s care.
13.Each party to inform the other of any illness or significant injury sustained by the child in their care as soon as possible and provide the other with details of the treating practitioner, any prescribed medication, and the name and location of any hospital where the child might be hospitalised at.
Schooling
14.The Mother is to provide the Father with the details of any school that the child attends.
15.That following the commencement of time in Order 3c, each party be at liberty to attend all events in which the child is involved whilst they are in the care of the other party, including but not limited to:
(a)Sporting functions, activities, and competitions.
(b)Extracurricular activities that allow for parental attendance; and
(c)Any other function involving the child’s schooling, social or significant event.
16.The Mother will list the Father as a parent with any school the child attends and the Father is authorised to request and be provided with all information provided to parents.
Travel/Passport
17.The parties will do all acts and sign all documents necessary to obtain a passport for the child.
18.The child is to remain on the Family Law Airport Watchlist for a period of 5 years.
Other Orders
19.Both parties be restrained from denigrating the other party or any member of the other party’s family in the presence or hearing of the child, and are to use their best endeavours to ensure that no other person denigrates the other party in the presence or hearing of the child.
20.Both parties are restrained from discussing these court proceedings in front of the child or within the hearing of the child.
21.The Father will undertake random hair follicle testing until the child attains the age of 18 years with the following to apply:
(a)The Mother may request, in writing, a test once in every 3-month period;
(b)The Father will undertake the test within 14 days of the request and provide the results within 7 days of receipt;
(c)The Father will pay for the costs of testing for the first 3 year period following the making of these Orders.
(d)The Mother will pay for the costs of testing thereafter.
22.The Independent Children’s Lawyer is hereby discharged after 12 months.
AND THE COURT FURTHER ORDERS THAT:
23.The Mother do all acts and sign all documents necessary to change the name of X born in 2016 (‘the child’) to X.
24.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
25.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
26.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bei & Foong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
During the Hearing on 19th April 2022, following initial appearances, the designated duty lawyer from the ACT Legal Aid office, Ms Mistry, appeared for the Respondent Mother. The Father was legally represented by lawyers, including a highly experienced Counsel, Ms Spain. With her assistance, except for one single issue, the parties reached agreement on all other parenting issues regarding almost 6 year old X. This was no mean feat. Indeed, it bordered on the miraculous, given that (a) the Father has had virtually no contact with the child since she was born, and (b) how openly, almost viscerally, hostile the Mother is to the Father to the point that, for years, the Mother has wanted nothing to do with the Father.
What follows are the revised oral reasons in relation to the only outstanding issue, namely the child’s surname.
One matter, however, which is both procedural and substantive, should be noted at the outset. It was not the subject of any submissions during the trial because it was part of the Consent Orders but, because of its import, I note it here for completeness, for context, and hopefully to assist the parties. Further, the basic factual outline noted here is also largely not in dispute.
It was, and remains, uncontroversial that X has lived solely with her Mother for the entirety of her young life. It was, and remains, uncontroversial that, with limited exceptions, and notwithstanding the Father’s [formally untested] evidence that he has offered to provide some financial assistance to her, the Mother has supported X financially and in every other way. The Mother consistently contended that the Father had used her in their short relationship, effectively forcing her to mortgage her residence to provide him with funds of $500,000. In short, she contends that she was “scammed” by the Father, who she met online and married 3 months later. She says that he has repaid none of these funds and that she has to work three jobs to meet the mortgage payments. Surprisingly, the Mother has not sought any property Orders arising from the very short relationship with the Father. She contends further, which is largely not denied, that the Father left the relationship when X was two months old.
As the Consent Orders (which were supported by the Independent Children’s Lawyer) make plain, the parties agreed to the Mother having sole parental responsibility for the child. Section 4 of the Family Law Act 1975 (Cth) provides that “major long-term issues” include a child’s name. Sections 64B and 65D provide for the making of parenting Orders and the Court’s power to do so.
Strictly speaking, having made the Consent Orders that conferred on the Mother sole parental responsibility, she thereby had (and has) relevant authority, among other things, to change X’s surname, regardless of the Father’s views, one way or the other. This is a strict reading of the Act in the sections noted. This said, certain case law, noted later in these reasons, suggests that there remains some residual and appropriate consideration of the matters set out in s.60CC of the Act to ensure that the “best interests” of the child remain firmly in focus in relation to any “change of name” Order.
It follows from the Consent Orders and the conferral of sole parental responsibility on the Mother that any other Orders that dealt with major long-term issues, such as X’s name, were completely superfluous, as well as inapt. Indeed, strictly speaking, any subsequent Orders, such as in relation to X’s name, legally speaking, should properly be considered futile precisely because they were and are superfluous.
It follows further from the sole parental responsibility Order in the Mother’s favour that any appeal regarding an Order in relation to a change of name is more likely than not to be considered to be equally unnecessary, superfluous and futile. Of course, such consideration at an appeal level is now beyond the purview and jurisdiction of this Court. However, if the legal outcome from the sole parental responsibility Order in the Mother’s favour as outlined here is correct, it may have cost and other implications for the Father if pursued.
Because of the detail in the Consent Orders, and in the light of the sole parental responsibility Order included in them, and notwithstanding the comments already made regarding the consequences that flow from that Order, what follows is confined to (a) a brief outline of principle regarding change of name Applications, and (b) a summary of the Court’s consideration of that issue in the light of submissions made at the hearing but without any reference to the sole parental responsibility Order. Curiously (other words are apt), no one referred to that Order in submissions regarding the change of surname of X. This was in circumstances where the Mother had raised this issue as long ago as her Affidavit, filed 17th February 2020 (par.10), where she deposed:
In the next few years X will commence school in Australia. She is currently known as X on her birth certificate. I do not wish her to be confused or embarrassed by having a different surname from me and seek an Order that her surname be changed on her birth certificate to mine. I do not need a passport for X currently as I can’t afford overseas travel. At some time in the future I hope to be able to afford overseas travel for her and do not wish to be required to obtain Mr Bei’s permission for a passport to issue for her.
Outline of Principle
For current purposes, it is sufficient to note the following from the long-standing decision in Chapman v Palmer regarding change of name Applications.[1] The Full Court outlined the following matters to consider in such applications:
In deciding the issue in each case there is no onus of proof. It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
[1] Chapman & Palmer (1978) 34 FLR 405; 4 Fam LR 462 especially at 468, 469 and 471 respectively.
A little earlier in the same place the Court said (emphasis added):
A parent who is granted the sole custody of a child is vested with power to make decisions over a great many matters, affecting the child’s health, welfare and education, his or her physical, emotional, intellectual and social development…
… The desires of the parents are, however, of secondary importance when put alongside the welfare and wishes of the child in question. Because a change in a child’s surname may cause him or her confusion and because the issue usually arises between the parents the Court will exercise a supervisory role in the matter when called upon to do so.
The Court listed the following further considerations:[2]
(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 to that of the parent with custody, care or 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; and[3]
(f)The effect of frequent or random changes of name.
[2] 4 Fam LR at 471.
[3] See generally, Beach & Stemmler (1979) FLC 90-692; Fooks v McCarthy (1994) FLC 92-450; Darley & Darley [2016] FamCAFC 10.
Other cases have referred to additional considerations such as the following:
(a) The advantages both in the short- and long-term which will accrue to the child if their name remains as it is now;
(b)The contact that the Father has had and is likely to have in the future with the child;
(c)The degree of identification the child now has with the Father;
(d)The degree of identification the child has now with the Mother (or any step parent); and
(e)The desire of the Father that the original name be restored.
Earlier cases have commented that it is likely to be more convenient for the parent with primary care of the child to have the child’s name changed to that parent, accepting that “mere convenience” is not a sufficient reason of itself for a change of name.[4] As the Mother made plain in her 2020 Affidavit noted earlier in these reasons, matters of “convenience” are not among her reasons for seeking the change.
[4] Chapman v Palmer (1978) 4 Fam LR at 466.
Consideration and Disposition
In addition to the sole parental responsibility Order, in the light of the principles outlined above, and on the admittedly limited but largely uncontested factual matters recorded earlier in these reasons, the main matters for the Court to consider here are:
(a)the Mother’s sole care of X since birth;
(b)the almost complete absence of the Father from X’s life until quite recently;
(c)the abjectly abysmal if not essentially non-existent co-parenting relationship between the parties;
(d)the Father’s desire or “wish” for X to retain his name is, according to authority, a secondary matter compared to the primacy of X’s best interests and her identification and relationship with her primary and sole carer, her Mother; and
(e)the very recent, very limited and very gradual introduction of the Father into X’s life.
Accepting that this is a discretionary judgment, all of these matters point, in my view, to striking a balance between ensuring that the Father’s name remains a part of X’s life, and even more relevantly, ensuring that the Mother’s name is properly accorded the place that the Mother has had and continues to have in her daughter’s life. Doing the best that the Court can do in the contested circumstances here, recording again that the parties have done very well to reach agreement on most other things, in my view it is in X’s best interests for her name to be changed to X. The Father has been absent for most of X’s life. It is unknown how his very recent introduction to X will unfold.
Accepting the general supervisory role of the Court to ensure that parenting Orders that are made are in the best interests of the child, to be terribly repetitious if not tedious, in my view, the above is almost unnecessary because the Mother can/could change X’s name as she sought, in any event and on a strict reading of the Act, pursuant to the sole parental responsibility Order that was made by consent. However and in any event, for the reasons given, in my view, it is also in X’s best interests for her surname to be changed. The Father’s name is not removed from X’s; it is simply slightly relocated.
A final observation: given how precarious and fragile (a) the co-parenting relationship is, riven with years of distrust, and the complete absence of the Father from the lives of the Mother and child for many years, (b) how equally fragile the barely commenced relationship between X and the Father is, and (c) acknowledging the Father’s comments, through his Counsel at the trial, that he is very conscious of the need to build trust with the Mother and to take things very slowly, gradually and carefully in his relationship with X, one hopes that the Father is true to his word and respects the many frailties and delicacies that are in play, and that he does not seek to apply any undue pressure on either the Mother or on X. The old adage of “slow and steady wins the race” is especially apt here.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 24 May 2022
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