BOLINGER & IVY
[2012] FMCAfam 1491
•14 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOLINGER & IVY | [2012] FMCAfam 1491 |
| FAMILY LAW – Change of name – review of case law in respect of change of name. |
| Family Law Act 1975, s.60CC |
| Chapman & Palmer (1978) FLC 90-510 In the marriage of Beach & Stemmler (1979) 5 FamLN N13 (1979) FLC90-692 Mahony & McKenzie (1993) FLC 92-408 Kay & Jasper & Ors [2007] FamCA 1646 Raymond & Harold [2008] FamCA 553 [2009] FamCA 155 Flannigan & Hancock (2000) FLC93-074 Gaynor & Scaife [2012] FMCAfam 698 Ralph & Ralph (1977) FLC 90-292 |
| Applicant: | MS BOLINGER |
| Respondent: | MR IVY |
| File Number: | NCC 1240 of 2007 |
| Judgment of: | Myers FM |
| Hearing date: | 14 December 2012 |
| Date of Last Submission: | 14 December 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Weightman |
| Solicitors for the Applicant: | Peter Hamilton & Associates |
| Counsel for the Respondent: | Mr Murray |
| Solicitors for the Respondent: | Mills Oakley Lawyers Pty Ltd |
ORDERS
The mother’s application for a change of surname be refused.
A settled copy of this decision shall not be provided to [X] until she is 18 years of age.
The solicitor for the respondent makes an application for costs and the issue of costs is reserved.
Counsel for both parties file written submissions with respect to the issues of costs.
By 15 January 2013 Counsel for the respondent prepare and forward to the court written submissions in relation to costs.
By 15 February 2013 Counsel for the applicant prepare and forward submissions in reply.
By 22 February 2013 any further submissions by the respondent in response.
IT IS NOTED that publication of this judgment under the pseudonym Bolinger & Ivy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1240 of 2007
| MS BOLINGER |
Applicant
And
| MR IVY |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
Introduction
This is a matter between the applicant mother, Ms Bolinger, and the respondent father, Mr Ivy. The applicant mother seeks orders as contained within her amended initiating application filed in this court on 30 November 2012. The mother seeks to agitate orders before the court today:
(1)That the applicant mother be authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as [X] Ivy, born [in] 2005, now be registered as [X] Ivy-Bolinger.
(2)Pursuant to section 28(2) of the Births, Deaths and Marriages Registration Act Victoria 1996, the Registrar register the child's name in the form specified in order 1 above.
(3)That a sealed copy of these orders be served forthwith upon the Registrar of Births, Deaths and Marriages New South Wales.
In support of the orders sought by the mother, she has caused to be filed in the court, on 30 November 2012, an affidavit affirmed by her of the same date. The mother deposes that she is the applicant mother in the proceedings, she was born in 1976, is currently 36 years of age. The respondent father is Mr Ivy. The father is currently 36 years of age. They began a relationship in 2000, co-habitated in 2002, married in 2003 and separated in 2006, with a divorce becoming final in July 2007. There is a child of their relationship, namely the child the subject of the orders sought in this matter, [X] Ivy. She is currently 7 years of age. It is apparent that the child currently attends the [N] School.
The mother deposes that orders were made in the Family Court of Australia in the Melbourne Registry on 9 November 2007 after a four day contested hearing. Pursuant to those orders, the mother acknowledges that she and the father have had equal shared parental responsibility for [X]. [X] lives with the mother in Newcastle and spends time with the father. [X]’s time with the father increased over a period of time.
The mother asks the court to note, in her affidavit, that a cost order was made against the father of approximately $24,000 at the final parenting hearing. The mother says, at paragraph 13 of her affidavit, that she is making application to the court seeking to change [X]'s surname from Ivy to Ivy-Bolinger; that the mother returned to using her maiden name of Bolinger at separation, about April of 2006, which is now 6 years ago; and that [X], to her memory, has only ever known her mother with the surname of Bolinger.
The mother deposes that [X] now has a sibling, [Y] Bolinger, born [in] 2011, and that she has had discussions with [X] to the effect as to why her sister does not have the same surname, and that [X] has said to her words to the effect, "I want part of your name in my name, so I feel part of the whole family." The mother deposes that [X] often refers to herself with the surname Ivy-Bolinger.
The mother deposes to a conversation between herself and [X], in early June 2012, after she was returned to the mother's care having spent time with the father. The mother gives evidence in her affidavit, that [X] said to her words to the effect: "I asked daddy why I can't have Bolinger as part of my name, and he says because your mummy doesn't do what I ask her to do." The mother deposes that she was shocked as to what [X] had told her with respect to that discussion with the father.
The mother deposes, at paragraph 19, that [X] has said: "When do I get to have your surname in my real name." The mother deposes at paragraph 20 that:
Hyphenating [X]’s surname will provide her with a greater sense of belonging and commonality in the home she shares with her sister and I, as well a sense of identity with both her paternal and maternal families.
The mother deposes, at paragraph 21, that she has been in a relationship with a person known as Mr P since 2009 and they purchased a home together in December 2010, and that Mr P is [Y]'s father. Paragraph 20 does not go as far as saying that the change of the name will allow any sharing or commonality between the mother, [Y] and [X] in circumstances where the court notes that [Y]'s surname is not hyphenated. [Y]'s name is not a combination of Bolinger [P] or [P] Bolinger, it is simply Bolinger.
The mother deposes that she has no intention of ever changing [Y]'s surname, even if she and Mr P decide to marry at some point in the future, that she also intends to retain her surname even if they marry, as she has an established business and she is known in the industry in which she works as Ms Bolinger.
The mother deposes that Mr P appreciates the importance of having a shared name for children and the sense of identity that it provides to them, and it was for this reason that he agreed for [Y]'s name to be Bolinger. The court finds this statement somewhat wanting in circumstances where, on one hand, it suggested that Mr P appreciates the importance of having a shared name for children, but in circumstances where there has been a decision that the child should be called Bolinger rather than a combination of [P] Bolinger.
The mother deposes that [X] is known by various third parties with the surname Ivy-Bolinger, such as at her [activities omitted]. The mother deposes that currently [X] is in year 1 at the [N] School, and when she attended preschool there in 2010, she was known as Ivy-Bolinger; however, when it came time for her to be formally enrolled for kindergarten, the school required her enrolment form to reflect her legal name as set out on the birth certificate.
The mother deposes that she has experienced difficulties from time to time with the school in that the parents know her as Bolinger and there has been some confusion as to [X]’s name. For example, the mother deposes she ordered a school uniform and it was not immediately processed given the difference in surnames. The mother deposes that she has various family members in the Newcastle area, including her parents at [omitted], her brother, Mr B, at [omitted], and a sister, [name omitted], lives in [omitted] with her two children, and there are other extended family members in the area. It's not clear as to what the mother's sister's surname is, whether in fact it is Bolinger. The court is unable to make any finding about those circumstances.
It is clear, though, during the course of the mother's cross-examination that the mother concedes no matter what surname [X] has, her family will still love her no matter what. The mother deposes that her parents are currently living in [B] and that she has travelled overseas with her family each year, and in the past few years they have travelled to the United States, to [B], and this year they went to Thailand, and that during a trip to the United States in 2010, she was questioned at length by customs about travelling with a child with a different surname, and that the mother was required to show her Medicare card to US customs.
The mother has deposes to having troubles when travelling home from Melbourne to Newcastle. She is unable to print her boarding pass before checking in, and when she does check in, the father usually still has [X] in his care and again the flight staff question her at length about [X], who she is and her relationship to the mother. The mother suggests that these situations are embarrassing and she does not want [X] to experience such a situation again in the future, although it is not clear from the evidence that [X] has in fact experienced any embarrassment in circumstances where she is only a young child and there is no real evidence as to what [X] may have witnessed or have heard, if anything.
The mother deposes to first raising the issue of a change of surname in late 2009, that she had made contact with the Family Relationships Centre at Newcastle; however, the mediation did not take place as the father failed to respond to their request to participate. I have read the father's affidavit, and he proffers an excuse in circumstances where he says that the date on which the proposed mediation was to take place was inconvenient to him. The court is unable to make any finding as to why the father failed to attend the mediation other than the fact that the mediation appeared to have been organised and was not attended.
The mother deposes that she has again raised issues relating to the change of [X]'s surname with the father in an email that she sent him on 1 August 2011 explaining her reasons for the proposed change. I have read a copy of the email forwarded to the father on that day. The mother is clear she understands, from an email sent to her by the father, that he did not consent to the proposed name change as he was not satisfied that the change of name was necessary or in [X]'s best interests. The mother deposes to having attempted to negotiate with the father, again by way of early email in early June 2012.
The mother deposes to having a volatile relationship with the father in that the mother deposes, at various paragraphs of her affidavit, that the father has a volatile temper, he yells abuse at her, including words to the effect, "I’ll just fucking kill you." The mother deposes to having looked into obtaining an apprehended violence order against the father; however, she deposes it has not been possible as the parties live in different jurisdictions.
Having read and considered the mother's affidavit, it is clear the parties have what can be described as an ineffectual, poor relationship peppered by poor communication. It is a real shame that the parties, some years after a hearing in the Family Court in Victoria, have been unable to resolve their differences and focus on the best interests of their child by simply getting along. I have read and considered the mother's affidavits and the annexure thereto.
The father caused to be e-filed in the proceedings a response on 4 August 2012. The father seeks orders on a final basis that the application filed by the mother be dismissed with respect to the change of name and the applicant mother pay the respondent's costs of and incidental to the application filed by her. In support of the orders sought by the father, the father caused to be e-filed, on 24 August 2012, an affidavit sworn by him on 23 August 2012. I have read and considered the affidavit filed by the father.
The father deposes that he is the father of the child in the proceedings. The father deposes as to the current arrangements with respect to [X] living with the mother and spending time with him. At paragraph 12 of the father's affidavit, he deposes that he does not believe the change in [X]'s surname is in the best interests of [X], nor is it what [X] wishes for. The father says he believes the mother's application is motivated by reasons of convenience to her.
The father deposes, at paragraph 16 of his affidavit, that [X] is conscious and proud of her surname Ivy. Recently, during [X]'s last visit, the father deposes that [X] spent time with him in Melbourne in June of 2002, and that when he was putting [X] to bed, she started finger writing on the wall as he tucked her in. The father deposes [X] wrote “[initials omitted] loves [initials omitted].” The father deposes:
“[X] had me guessing until I figured out what she meant. She said to me, "Daddy, it's my initials and yours: [X] Ivy loves Daddy Ivy”.
The father deposes at paragraph 17:
“The following day during some writing and drawing games, [X] was writing her name – that he has often observed her to do that and when she writes her name she wrote [X] Ivy.”
The father deposes that he started to explain to [X] about surnames, such as how surnames come about, and so on, and that [X] was comfortable with what he explained to her and did not raise any concerns about not having a name or a surname Bolinger. The father deposes:
“Nor did [X] ask whether she could have Bolinger as part of her surname”.
On the face of the evidence, it’s clear, at least in part, that a very, very young child is expressing perhaps different views to both parents. The court is used to seeing such behaviour in circumstances where young children seek to perhaps ingratiate themselves with their parents. This perhaps may be one of those circumstances, although there is certainly insufficient evidence before the court for the court to make any findings about perhaps what the views of [X] are. I propose to deal with the views expressed by [X] later on in the decision when I refer to those matters set out at section 60CC(3)(a) and take into account the understanding and level of maturity of the child in the proceedings.
The father deposes, at paragraph 21, to the effect that should [X] have made remarks with respect to the change of her names, those remarks could only have come from the mother. The father says that he prioritises [X]'s best interests and he does not discuss or bring up adult matters with her. At paragraph 25, the father raises issues with respect to the mother being disingenuous in circumstances where [Y] does not share a surname of [P]-Bolinger with [Y]'s father.
The father says at paragraph 29, if [X] is known as Ivy-Bolinger, it's because the mother continues to use that name without his consent, and that the mother has sought to enrol [X] in activities and in school using that name. It is clear from the father's evidence that he has not, at any stage, consented to the mother using a hyphenated surname of Ivy-Bolinger. The father says at paragraph 30, that he is concerned that if the name is changed, that ultimately it will only be a matter of time before the mother drops Ivy from [X]'s surname in day-to-day use.
At paragraph 31, the father deposes again that, without his consent, the mother enrolled [X] into preschool, kindergarten, [and omitted] lessons as Ivy-Bolinger, notwithstanding her formal legal surname. The argument that the mother may ultimately drop the name Ivy carries some weight in the current circumstances, although it is certainly not decisive in the matter. What carries some weight is that perhaps the mother will seek to change the child’s name from that of the legal name, even if the child’s legal name is Ivy-Bolinger, in circumstances where the mother has previously sought to do the same, utilising the name Ivy-Bolinger, although the child’s name was not Ivy-Bolinger.
Again, it’s a factor I consider, it is certainly not decisive in these proceedings, and I give it some weight, but very little. At paragraph 32, the father deposes if there is any confusion as to the child’s surname, this can easily be managed by the mother.
The father, at paragraph 54, acknowledges that he and the mother have had numerous problems and difficulties communicating since their separation. The father says that this largely the result of the mother’s inflexibility and what he describes as draconian stances towards the spend time with arrangements, and in particular her frequently insisting upon strict compliance with notice provisions in the current orders that have often resulted in him missing out on time with [X], or having the duration of his visits significantly curtailed.
The observations in this matter are such that the parties need to do whatever is necessary to rebuild their relationship. The parties have a little child who will start to understand very, very quickly, that the two people that she loves most in the world do not get along. The parties need to consider doing whatever is necessary to rebuild the lines of communication. If they fail to do so, it is the view of the court that there may be an adverse outcome for a little girl who comes to realise that she is very much the subject of her parents’ conflict. The father acknowledges that at times the parties’ communication has been what he describes as toxic.
The father does depose, at paragraph 61, and the court takes some heart, that at least on one occasion, when he was spending time with [X], he took [X] to the airport to hand back to the mother and the mother’s flight had been delayed; that the mother got into the car and proceeded to sit in the passenger seat without hesitation and concern and the parties had some discussions. It is the view of the court, based upon this paragraph that it is not beyond these parties rebuilding the lines of communication and forming a new parenting relationship based on the fact that they clearly love their little girl.
I have read and considered the balance of the father’s affidavit, and also the annexures thereto. I note annexure MI1. Submissions were made by counsel for the mother that the chain of emails is incomplete. Having read the chain of emails, it does appear as though there are some emails that are omitted. The court does take into account, the emails, particularly the email dated 9 February 2012, sent at 3.39pm from Mr K at the [N] School that reads:
“Hello [Mr Ivy],
Thank you for contacting us regarding your concerns about [X]’s name and general well-being. All through 2011 she was extremely happy to write and identify herself as being [X] Ivy. There was never any mention of anything negative or unpleasant about it, so please feel at ease about this. [X] is a delightful young lady, with a very happy disposition at school. She still greets me every day in the playground with a cuddle and warm hello, filling me in on the last piece of news. Please be assured that we will be in touch should we feel it is necessary to contact you about any concerns.”
The court notes the email was dated 9 February. Based upon that email, it is at least clear to the court in part that [X] is having no concerns about her surname at school, and is, on the face of it, using the surname Ivy. The father caused to be e-filed a further affidavit sworn by him on 12 December 2012. I have read and considered that affidavit. The father again gives evidence that he does not believe that [X] is affected by any issues regarding a sense of belonging or of commonality.
The father gives evidence, at paragraph 70 of his affidavit, that on an occasion during [X]’s last visit to Melbourne, [X] piped up and asked him how she was given her name. The father deposes that he said to [X], “Mummy and daddy thought of it and we loved it so we decided it would be your name.” The father deposes that [X] was thrilled to hear that, and that she immediately went on to say:
“[omitted], my middle name, came from my great grandmother on mummy’s side; is that correct?”
And the father said, “that is correct”, and that [X] then said:
“And Ivy is from your side, daddy, so I have names from both my families and you and mummy chose [X]. The father says, “That’s right, darling.”
And the father deposes that [X] was thrilled with that.
This is very much a matter as to how the parties seek to, or choose to, deal with their daughter. In circumstances where the parties do not make it an issue, it is the view of the court it will not be an issue for their little girl. It is very much a matter for the parties to put beyond themselves their own needs or their own disagreements with one another and begin to focus on their child.
I have heard and considered the cross-examination of the mother. The mother presented as a forthright, reliable witness. It was, however, clear that she remains upset to the point of tears about having to comply with orders made as a result of the four day hearing in the Family Court in Melbourne. The mother gave evidence as to the difficulties she experienced conveying a very young child between airports in Newcastle and Melbourne. The mother gave evidence in respect of the name being shared between [X] and [Y]. The mother conceded, that she made a unilateral decision to start using a hyphenated surname for [X].
The mother gave some evidence about why [Y] does not use her father’s surname of [P]. It is hard to reconcile the mother’s position and evidence in respect of identity between [X] and her mother, on the maternal side of the family, in circumstances where [Y] does not share her father’s surname. The court, in part, accepts the mother’s explanation that she referred in her affidavit to issues of identity between [X] and [Y], as opposed to necessarily issues of identification between [X] and her maternal family.
I have heard and considered the submissions made by counsel for both the parties in the proceedings.
The Law
Section 4 of the Family Law Act 1975 expressly provides that the name a child uses is a major long-term issue and, accordingly, one which requires a joint decision to be made by each of the children's parents. Where no agreement can be reached, a party may bring an application for a child to be known by a certain name - generally referred to as an application to "change the name". There is only one principle to be considered in these type of cases, being the welfare of the child being the paramount consideration.
The principles governing change of a child’s surname were set out by the Full Court of the Family Court in Chapman & Palmer (1978) FLC 90-510. In that case, the Full Court of the Family Court upheld the decision of Opus J restraining the mother from using her new surname in relation to the child, and said:
“The general principle appears to that the court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of 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. The same principle applies when the court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case, there is no onus of proof. It is for the court to balance on 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”.
The court further stated that they believe in such cases that they:
“should be approached in an even-handed manner with the objective of making a decision that will promote the welfare of the child.”
Summarising the factors to which the court turned its mind, they are as follows:
(a) The welfare of the child is the paramount consideration.
Welfare is really equivalent to those matters set out at section 60CC being the best interests of the child, and I propose to deal with those issues later on in the decision. I am asked to consider, “The short and long term effects of any change in the child's surname.” On the face of the evidence, there will probably be little short term effect to this child in circumstances where there is evidence given by both parties and evidence from the school in the form of an email, that the child is not experiencing any difficulties.
The child, at least on the face of the email of the school, annexed to the father’s affidavit, is using the surname Ivy, and on the basis of that email, it would appear the child is having no difficulties. The short-term effect is the child may be able to identify herself with the mother and also with the father. The long-term effects are simply not known in this case; the child is a very, very young child. The court is not satisfied that the child is unable to identify herself with the mother. She lives with the mother. She spends time with the father in circumstances where the child lives some thousand kilometres away from where the child currently lives.
It is very clear that the child can identify with the mother in circumstances where she lives with the mother. It is very much a similar argument as to why [Y] can identify with her father in circumstances where she does not share his surname. The court is asked to consider “any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.” The court is not satisfied, having read the email from the school, that the child is embarrassed by having a different name, and indeed, in this day and age there are many children who have a different name to that of perhaps one of the parents in circumstances where parents are separated.
The court is asked to consider “any confusion of identity which may arise for the child if his or her name is changed or is not changed.” Having read the evidence of the parties, the court is not convinced that the child will suffer any confusion of identity in circumstances where she clearly knows her place in her mother’s household: she lives with her; she has a sibling; she has what can be best described as a stepfather, and spends time with her father. Having read the email from the school, it is clear that this little girl is not suffering from a confusion of identity.
The court is asked to consider, “The effect of any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.” This is a case where the child bears the father’s surname solely. This little girl lives, as I’ve said, some thousand kilometres away from her father. The father has given evidence, and on the face of the evidence, [X] has an understanding of her middle name, her surname, where her middle name came from, where her surname came from, and happily that [X] was a name both her parents chose to give her.
If the father’s evidence is to be believed, and the court notes it has not been challenged, then this is a little girl who is quite happy and content with her name. She identifies with it and suffers little confusion. If [X]’s name were to be changed and be hyphenated, there is at least some perception or some concerns raised by the father that the mother may seek to change or drop the child’s name of Ivy in circumstances where section 4 of the Family Law Act1975 expressly provides that the name a child uses is a major long term issue and one in which the parents share equal shared parental responsibility.
The court has some concerns that the mother has undertaken, or made unilateral decisions with respect to the child’s name, in circumstances where there was no agreement between the parties, despite the child’s name legally being Ivy. The court is asked consider “the effect of frequent or random changes of name.” This is not a case where there has been frequent or random changes of this little girl’s surname. In the marriage of Beach & Stemmler (1979) 5 FamLN N13 (1979) FLC90-692, O’Connor J suggested the Full Court in Chapman & Palmer did not mean to restrict the considerations merely to the matters listed above.
In addition to those criteria set out in Chapman & Palmer, his Honour took the view the following matters should be taken into account:
“The advantage, both in the short-term and in the long-term. which will accrue to the children if their name remains as it is now.”
There are some advantage to this little girl having her name remain as it is currently now in circumstances where this little girl has a very, very close relationship with her mother and in circumstances where she predominantly lives with the mother. It is clear on the face of the evidence that this little girl has a good identification with the mother, and in the mother’s household where she predominantly lives with the mother.
The child spends less than frequent time with the father where the father lives in Melbourne, in those circumstances, it is the view of the court, the court should do everything it possibly can to ensure that the father’s relationship, and the child’s relationship between the father is maintained, facilitated and encouraged. It is the view of the court that this will be facilitated and encouraged if the child’s name remains as it is. It may be the one very factor that allows the child to identify with a parent outside of what is really the nuclear family being one of the mother, a new sibling, and the mother’s partner, Mr P.
The court is asked to consider, “The degree of identification that the children now have with their father.” This is a case where the child does have identification with the father. It is not as though the court is asked to make orders about the hyphenation of the surname in circumstances where the father has no involvement in the child’s life.
The court is asked to consider, “The degree of identification which the children may have now with their mother and their stepfather.” This is a matter where the court considers the child has a good, solid, strong identification with the mother. It is clear as to the relationship between the mother and the child as being a strong, healthy, good one. There is little evidence before the court as to [X]’s relationship with her stepfather, but in circumstances, having read the mother’s affidavit, having read the affidavit about the relationship she has with Mr P, the court is satisfied, at least on the face of it, that [X] would have a strong identification with Mr P.
The court is asked to consider, “The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father's surname is restored.” That factor was certainly relevant and particularly framed in the circumstances of the matter of Beach & Stemmler, but it does relate to the identification between [X] and [Y]. Again, it is interesting in the current set of circumstances that [Y] does not share, in any part, her father’s surname, and only has the mother’s surname Bolinger.
The court is not satisfied that [X] is unable to understand or identify that [Y] is her sister. Clearly, the children have lived together for a long time, and in fact since [Y]’s birth. It is very clear, having read the evidence, that [X] will always identify with her sister as being exactly who she is, being her sister. The court is of the view that it is probably irrelevant as to whether [Y] is her full-blooded sister or otherwise in circumstances where I dare expect she certainly loves her and has loved [Y] all of [Y]’s life.
The court must consider, “The desire of the father that the original name be restored.” The court is aware that the father desires that his surname remain, although it is certainly not the determinative factor in the current proceedings. The court has been asked to consider further cases, being the case of Mahony & McKenzie(1993) FLC 92-408, being a decision of Warnick J, delivered by the Family Court of Australia in Brisbane in August of 1993. I have read and considered the decision, particularly those paragraphs or line numbers at page 105, where Warnick J held:
“In the circumstances, the question of which surname is best used in Jake's interests, seems, because of the competing, unresolved assertions, sparse evidence and Jake's tender years, more of general principle.
In this sense of detachment of the question from the particular child’s concerned is increased by Ms McKenzie's proposition that the name by which Jake should be known is one by which he has not so far ever been known, and which represents a compromise, constituted by the hyphenated surname, and of the competing interests of the parties.”
Warnick J goes on to list, at page 108, various benefits that may be expected to arise from the use of hyphenated surname, namely that the mother:
“would be happy with the use of that name. Though she may well abide by an order that she uses only the name "Mahony" with regards to the child, it is likely that she would have some resentment to the use of that name which, notwithstanding her co-operation with an order, might result in tensions perceived by Jake or communicated to Jake.”
The court is not satisfied in this matter that the mother is unable to put her own desires or interests above that of [X]. It is clear that the mother has done everything she possibly can throughout her relationship with the father and also [X]’s relationship with the father since separation to facilitate and encourage that relationship. The mother gave compelling evidence in cross examination as to the great difficulties she experienced at times when [X] was quite young; having to get up in the very, very early hours of the morning to catch what would have been demanding flights with a young child.
Given the mother’s attitude, and given the mother’s compliance with the previous orders, although it goes against the mother’s case, the court is of the view that the mother would be able to put above herself, the needs of [X], and the court finds that it would be unlikely that the mother would harbour resentment, and would express that resentment to the child. It is the view of the court the mother would not do that to [X].
The court in Mahony & McKenzie then considered secondly whether Mr Mahony would be left dissatisfied if the surname of McKenzie were used for Jake. This is a matter in which it is apparent on the face of the documents that there is real ill-feeling between the father and the mother arising out of the what the father perceives as great difficulties in the manner in which the mother communicates with him and the manner in which the parties arrange for contact to take place, particularly with regards to the operation of the orders.
Based upon the evidence, the court could well imagine that if the court changed the child’s name to that of a hyphenated surname, that it may allow there to be further conflict between the father and the mother.
The court in Mahony & McKenzie then considered further:
“If each of the parties correctly perceives Jake to identify with each of the surnames, the use of the hyphenated surname allows him a chance to retain a connection with the name of each parent.”
The court considers, at least in part, that the application of such an idea in this matter is correct, although the court is not satisfied, in any way, that is determinative of the current issues before the court and the court defers to the two decisions and the principles set out in those cases in Chapman & Palmer and in Beach & Stemmler. Warnick J finally held that:
“The use of the hyphenated surname the child a middle road in times of rapidly changing social attitudes and that there should no longer be a preference for the paternal surname.”
As I have said, I have read and considered the decision of Warnick J in the matter of Mahony & McKenzie.
I was then asked to again consider the matter of Chapman & Palmer, with respect of what I will refer to as the obiter dicta in the matter as opposed to the ratio. I turn to page 77-673 in which it was held:
“In regard to the surname of a child being changed or retention of a particular name may affect a child in a number of ways. The most common situation is one in which the desire of the father to maintain a close relationship and identity with the child is in conflict with the desire of the mother on remarriage to establish a new family unit, identifiable as such. The desire of the parents are, however, of secondary importance, when put alongside the welfare and the 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 matters when called upon to do so.”
This is not a matter where the mother is seeking to establish a new family unit identifiable as such in circumstances where at least [Y] has not adopted the surname of her partner, Mr P.
The court further notes the submissions by counsel for the mother to consider the further matters raised in the matter of Chapman & Palmer, particularly in the case of Ralph & Ralph (1977) FLC90-292, in which Murray J stated:
“What an adult regards as short term embarrassment, may seem an eternity of awkwardness for a child going through the formative years of primary school.”
I again refer to the email correspondence from the child’s school that suggests that the child is not suffering any embarrassment. The court finds [X] is well-balanced and doing well, and in fact recognises and uses her surname Ivy.
The court is asked to look at the matter of Beach & Stemmler. I turn to the case of Beach & Stemmler, before O’Connor J. I refer to O’Connor J’s decision in which he states:
“As far as this case is concerned, I propose to take into account the matters set out in Chapman & Palmer, together with the following matters, which I have referred to previously.”
I note the obiter dicta comments of Connor J, at page 78-693 in which he states:
“In many cases, it may be convenient for a custodial parent to have a child’s name changed, but I do to believe mere convenience by itself is a sufficient reason for changing a name.”
The court notes the legitimate complaints of the mother having difficulties when she attempts to board airlines both in Victoria and New South Wales, and travelling internationally whilst overseas. It is the view of this court, though, that whilst it might be convenient for the mother to change the child’s surname, it is certainly not a sufficient reason for changing the child’s name. The court notes in the current circumstances, it is the mother’s application the child’s surname be changed to that of a hyphenated surname, rather than simply adopting the mother's full name of Bolinger.
I have been asked to consider the case of Kay & Jasper and Ors [2007] FamCA 1646, which is a 2007 case of the Family Court of Australia. I have read and considered that decision. Of particular note, the decision at paragraph 266 that states:
“Even so, in the light of the decision of CDJ & VHA, notwithstanding there is no express reference to division 9 in the balance of Part 7 of the Act as the order sought to be made intimately concerning the welfare of the child, the best interest principle needs to be given careful consideration.”
I have been asked to consider the matter of Raymond & Harold [2008] FamCA 553 [2009] FamCA 155. I have read the relevant sections of that decision. Again, the court notes that the principles as set out in Beach & Stemmler are referred to and taken into consideration in the decision in the case. I have been asked to consider the matter of Flannigan & Hancock (2000) FLC 93-074. I have read and considered the relevant parts of that decision with respect to change of name. Again, the court notes that Finn, Kay and Holden JJ refer to the principles identified and set out in Chapman & Palmer and Beach & Stemmler.
I have been asked to consider the decision of Terry FM in Gaynor & Scaife [2012] FMCAfam 698. I have read and considered the relevant sections with respect to change of name in that matter. Terry FM referred to the decision in Flanagan & Hancock, stating:
“The matters which frequently need to be considered in deciding whether or not to permit or prohibit a change of name have been considered in several decisions of this court, both at first instance, and on appeal. The most significant feature that appears from those cases is that they turn on their individual facts.”
I note at paragraph 177 of Terry FM’s decision, that she looked at whether there was any evidence that existed that a change in the child’s surname was needed in order to enhance the child’s relationship with the father or with the paternal family to prevent the children being confused about their identity.
Gaynor & Scaife is a matter where the father sought a change in surname. There is no evidence before this court that there needs to be a change of surname in order to enhance the child’s relationship with the mother.
The court is convinced wholly that this child has an extremely strong, loving, warn relationship with the mother. It is hugely disappointing in this matter that the parties cannot communicate and that the mother complains that the father has been aggressive towards her where wholly on the face of the evidence, the mother is doing an outstanding job providing care to this little girl.
The court further notes the decision in Gaynor & Scaife in which Terry FM states at paragraph 178:
“The flaw in the argument that a child needs to have a parent’s surname as part of theirs in order to prevent a confusion about identity to cement a relationship with a parent is readily exposed when one considers that no-one would dream of suggesting that the millions of Australian children who were given their father’s surname in the 19th and 20th centuries, had, as a result, a less than satisfactory relationship with their mother and their maternal extended family or were confused about their identity.”
Again, the court is not satisfied that this little girl is confused about her identity or that her relationship with her mother or that with her sibling will suffer unless this little girl’s surname is changed.
Section 60CC
I turn to the matters set out section 60CC as far as are relevant to the current proceedings. I firstly turn to those matters at section 60CC(3). I’m asked to consider any views expressed by the child and facts such as the child’s maturity of level of understanding the court thinks are relevant to the weight it should give to the child’s views. This is a very young girl, in the view of the court, who has a limited level of maturity and understanding about what the implications are long-term if she changes her current surname.
It may be in the future that [X] looks back, perhaps when she is an adult and wishes she had her father’s surname. This is a matter in which the court does not know what the long term implications will be. The court is unable to give the child’s views any real weight in circumstances where the court is not satisfied that [X] has any real understanding of what it is that perhaps she is suggesting should take place.
I am required to consider the nature of the relationship of the child with each of the child’s parents, and including any grandparent or other relative of the child. Again, the court considers [X] has a strong, loving relationship with her mother, with her sister, with her step-father, and also with her father. Again, it is such a shame these parties cannot get along. The court does not consider those matters set out at section 60CC(3)(c), (d) or (e) or (f) or (g) or (h) or (i) are relevant. I have considered s.60CC 2(a) and (b).
The court is asked to consider any family violence involving the child or a member of the child's family. The court is not concerned that if the order is not made for the change of name, that the mother will not be able to shield [X] from the mother’s real feelings about [X]’s surname. The court is satisfied that the mother would not place [X] in a position where the mother would vent to the child about her dissatisfaction with this court or her dissatisfaction with the child’s name.
The court is not so convinced, having regard to the evidence before the court, that the father may be able to shield [X] from perhaps the father’s disagreement or upset if [X]’s name were changed. It is a factor I must consider in light of the allegations of family violence levelled against the father by the mother. And, whilst it goes against the mother’s interest that she may behave in a more appropriate manner, it is something I must consider, because the paramount consideration in this court is the best interests of this child, and in doing so, I must put aside the interests of the parents.
The court is not aware there is any family violence order in place. If there were, it would probably be of little weight in making the decision the court must now currently make.
The court is asked to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. Either way I must make an order I doubt there will be the institution of further proceedings, no matter what order I make.
I am asked to consider any other any other fact or circumstance that the court thinks is relevant. I am satisfied in this matter that the matrix of the relationships in the mother’s household are such that [X]’s sister [Y] understands who her father is, despite not sharing his surname. I am satisfied that [Y] is able to relate to her sister whether or not they share a common surname. I am satisfied that [X] is able to identified that her mother is her mother regardless of her surname.
This is not a matter where I find that the matrix of family relationship inside the mother’s household have been weighed and measured and found wanting, in fact I find the opposite, but nonetheless, I am asked to consider the best interests of this child and I do place some weight, as I’ve said previously, as to the greater ability of the mother to shield the child from the orders of this court than perhaps the father’s ability to do the same.
Conclusion
Having regards to all the matters I have referred to, having regards to the cases in the matter, having regards to the matters set out in the Family Law Act 1975, having read and considered the evidence in the proceedings having heard the submissions by counsel for each party, I find that I must make an order that the mother’s application for a change of surname be refused.
Both parties are more than capable parents. Both parties are very, very far from being the sort of parents that appear before this court regularly, where some parents are drug affected, where some parents have mental health issues, where some parents are unable to care for themselves, or care for their children. It is very much apparent that the parental communication is lacking, and that the parent’s conflict has overtaken the fact that both parents love [X] very, very much. This is a matter where both parties need to think about whether they can compromise, whether they can draw a line in the sand and make a decision to fix their parenting relationship and perhaps do it today.
Both parties have something hugely beneficial to offer [X], and both parties have something fundamentally in common. Both parties love [X] very, very much. Largely [X] has been shielded from the conflict given her age, but she won’t be shielded from that conflict for much longer. It appears as though [X] is a very, very bright little girl and she will be perceptive to perhaps inflections in parties’ voices. She will certainly be listening in to hear what both parties might say about one another and all that will happen is she will become emotionally distressed and upset if she understands that the two people that love her very much in her life, don’t get along on any basis.
It is important that for the sake of [X], the parties do whatever they can do to change their relationship. If I can say to both parties, your past does not equal your future. But it will equal your future, if both parties choose to live in the past.
Those are the reasons for my decision and the decision I have made.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Myers FM
Date: 20 February 2013
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