Booth and Remington & Anor

[2019] FamCA 533

FAMILY COURT OF AUSTRALIA

BOOTH & REMINGTON AND ANOR [2019] FamCA 533

FAMILY LAW – CHILDREN – best interests – where the mother filed an application to change the child’s surname – where that application was opposed by the father and paternal grandmother – where this application is a final one and should be determined on the basis of the child’s best interest – where the order is made for the child’s surname to be changed – where there is no relationship between the child, father and paternal grandmother and there is a need to protect the child – where the father agreed to final consent orders in 2013 for him to spend no time with the child – where the child has not seen her father for six years – where the change in surname does not change the child’s identity and the father is still listed on the birth certificate as the natural father – where the child identifies herself with the mother’s surname and feels content and secure as the youngest member of that household – where the child is experiencing difficulties by being referred to by her current surname – where a delicate situation exists in the mother’s household – where the father has been charged with sexually assaulting the mother’s eldest daughter and his own daughter from a different relationship – where the father and paternal grandmother have made fresh applications for final orders for time and communication with the child and another of the father’s children and those applications remain outstanding – where time and communication between the child, father and paternal grandmother is to be determined at a later date.

Family Law Act 1975 (Cth)

APPLICANT: Ms Booth

FIRST RESPONDENT: Mr Remington

THIRD RESPONDENT: Ms B Remington

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2009 of 2009

DATE DELIVERED: 23 July 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ryan and Seaton Lawyers

THE FIRST RESPONDENT: Self-Represented

THE SECOND RESPONDENT: Self-Represented

THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The child X Remington born …2011 (“the child”) be known as X Booth and that the mother be at liberty to approach the Registrar of Births, Deaths and Marriages in the state of New South Wales to have the change of name recorded on the child’s birth certificate.

2. This order is sufficient authority for the mother to make the sole application for the name change of the child and any need for the father’s consent is dispensed with.

3. The paternal grandmother has 14 days to file any submissions in response to the mother’s application for costs.

The Court notes that

(A)The Court has heard the father’s submissions on the topic of costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Booth & Remington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2009 of 2009

Ms Booth

Applicant

And

Mr Remington

First Respondent

And

Ms B Remington
Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by the mother, Ms Booth, filed on 8 November 2016.  The application is for a change of surname for the only child of the parties’ relationship, X, aged seven years, nine months.  The change would be from X Remington to X Booth.

2. By his Response filed 25 January 2017, the father, Mr Remington, opposes the application.  Mr Remington appeared by telephone.  He has been subject to bail conditions and an Apprehended Violence Order (“AVO”) made in 2017 for the protection of the mother’s elder daughter.

3. Mr Remington has been charged with sexual assaults in respect of that child and another child, Y.  There is a trial in respect of the criminal charges anticipated to take place in March 2020.

4. The second respondent, appropriately, is not participating in the determination of this issue.  She is Ms C, the mother of an older child of the father, Y.  The two cases have been consolidated in this Court.

5. The Independent Children’s Lawyer was excused on her request from participation in this aspect of the dispute.

6. The third respondent, Ms B Remington, the paternal grandmother, opposes the application of the mother.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant mother

   (a)Initiating Application filed 8/11/2016;

   (b)Affidavit of Ms Booth filed 8/07/2019;

   (c)Case Outline document by the mother filed on 22 July 2019;

   The First Respondent father

   (d)Response filed 25/01/2017;

   (e)Affidavit of Mr Remington filed 12/12/2016; and in conjunction with that, the Court has read the earlier affidavit of the mother filed on 8/11/2016, because the father’s affidavit referred to it;

   The Third Respondent grandmother

   (f)Affidavit of Ms B Remington filed on 8/07/2019;

   Reports

   (g)The Child Inclusive Conference memorandum dated 27/03/2017;

Brief History of Relevant Events

1. The parties began a relationship in 2009 and began living together around January 2010.  The subject child was born almost two years later in 2011.  About one month after the birth of the child, the parties separated.  The mother soon after reconciled with her estranged husband, Mr Booth, with whom she had two children, Z and W.  Those children were aged eight and six when the subject child was born.  They too returned to living with both parents.  The subject child has lived with her mother, stepfather and older siblings, now 16 and 14, for the almost seven years since her mother returned to live with Mr Booth.

2. Between her birth in 2011 until the end of 2012, the subject child spent five hours per week, as asserted by the mother, or 25 hours per week, as asserted by the father, with the father.  For the following six months after that, time reduced to about two hours per fortnight.  On the mother’s version, this was because the father had moved to live in Sydney with a new partner.  On the father’s version, the mother was more restrictive about allowing time, and it was conceded that he had moved to Sydney.

3. On 14 May 2013 the mother reported that there was an incident which she identifies as the cause of time between the subject child and the father finally ceasing:[1] 

   [1] Affidavit of the mother filed 8/07/2019, pars 21 and 22

   [21]This arrangement continued until an incident occurred on the front lawn of my home at the time in2013.  [X] was about 18 months old at the time.  I recall that [X] was getting out of [Mr Remington’s] car after spending time with him.  At or about this time, [Mr Booth] arrived home from work.  [X] greeted [Mr Booth] by calling him “Daddy”, and in response to the greeting, [Mr Remington] took hold of [X] and shook her violently and yelled at her for how she greeted [Mr Booth].

   [22][X] has not spent any further time with [Mr Remington] since that incident.

4. The father denies that any such incident took place. 

5. There is no dispute that, for whatever reason it was, time did cease in mid-2013 between X and the father. 

6. On 3 November 2013, orders were made by consent in the Federal Circuit Court, which had been signed by the father on 22 October 2013.  Those orders provided as follows: the mother to have sole parental responsibility for X; that the said child live with the mother; that the child spend no time with the father; that the mother be entitled to remove the child from Australia for the purposes of holidays without prior consent of the father; that the mother be permitted to obtain a passport for the child notwithstanding the consent of the father not being obtained.

7. X, now aged seven years, eight months, has not seen her father for approximately six years.  The father says in his affidavit he had believed he would hear about her progress through his mother.  I can accept that that may have been the case.  However, his decision to consent to those orders stands alone.  On the same day, consent orders were made in similar terms for the father to spend no time with his older daughter Y.

8. I accept the evidence of the mother that the child does not remember her father.  She has not seen him for the majority of her life. 

9. I also accept that she believes that her stepfather, Mr Booth, is her natural father.  He is evidently her psychological father, which is an important role in the circumstances, he having provided for her financially and otherwise treating her as a child in his household. 

10. The child’s brother and sister, from her perspective, are her siblings, and the evidence supports a finding that she does not know her other three siblings who are children of the father by two former partners and one subsequent partner. 

11. In September 2013, there was a notification to the Department of Family & Community Services about the subject child in this application, X, then aged almost two years.

12. There was also a notification around that time about the older child, Y, born of the relationship with Ms C.

13. On 4 November 2013, in addition to the orders made which saw the subject child spending no time with the father, orders were made by consent which determined the paternal grandmother’s dispute.

14. The extent to which those orders related to the subject child are as follows:  there was permission for the paternal grandmother to communicate by sending letters, cards and presents up to five times per annum; for the mother to provide school photos and reports four times per annum; for the paternal grandmother and the child to spend time together at the discretion of the mother; and that the paternal grandmother be restrained from passing on communications to the father. 

15. The mother concedes that as a result of disputes and contravention applications between the paternal grandmother and herself, those arrangements have fallen away. 

16. On 8 November 2016, the mother filed this application for name change.  The father has always opposed it, as has the paternal grandmother. 

17. The parties were directed in the FCC to attend on a Family Consultant.

18. On 18 July 2017, the mother filed an application to discharge the 2013 orders with a view to ending communication between the paternal grandmother and the subject child.  That matter remains unresolved and will no doubt not be heard before the conclusion of the trial in 2020.

19. On 22 August 2017, an application for name change on an interim basis was heard in the FCC, the decision reserved, and ultimately the application was refused. 

20. On 12 September 2017, the father made a fresh application for final orders for time and communication with the subject child, and soon after the paternal grandmother made her own application for time and communication with the subject child and another of the father’s children.  Those applications, too, remain to be heard when criminal proceedings have concluded. 

21. The Child Inclusive Conference memorandum noted, having seen both parties and the child, that the child was well cared for, clean and tidy, dressed appropriately, a bright and bubbly little girl who was initially a little bit shy, but after a short time engaged in conversation that was, at times, very animated and entertaining. 

22. X refers to herself as X Booth.  She wrote her name on the whiteboard and spelt both “X” and “Booth” correctly.  When discussing her family and who lives at home, she referred to the stepfather as “Dad”, and when asked his name she said his full name, including middle name.  The mother said X believes that her two older siblings in the household are her full brother and sister, and she has no concept of there being any other father or any other siblings.  It was evident that this is certainly the case.

23. On 24 October 2017, the decision was delivered dismissing the interim application for name change, and soon after, at the end of 2017, the matter was transferred to this Court.  It was at the commencement of 2018 placed in the Magellan list, and by that stage the father had been subject to an AVO for the protection of the older child Z in respect of charges of sexual assault.

24. On 3 April 2018, the proceedings between the father, the mother, the mother of Y and the paternal grandmother were consolidated. 

25. In June 2019, this change of name application was set down for hearing over the opposition of the father and the paternal grandmother.

Primary Considerations

1. This application is a final one and should be determined on the basis of the child’s best interests.

2. It has to be said that at this stage there is no relationship between the subject child and the father or the paternal grandmother.  There is a need to protect the child.  There is a delicate situation which exists in her family, that is, her older sister is likely to give evidence, if she has not already done so, in the criminal trial, and the sister whom she does not know, Y, will also be giving evidence.  The repercussions of that trial, whether or not the father is convicted, will need careful management by the mother.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The mother in her affidavit relates to the troubles which the child has had with being referred to as having the surname ‘Remington’, mainly by people in authority, at school, at the doctor, by the optometrist, and in/out of school care.

2. She has clearly identified with the same surname that her mother, father and siblings have, and has reacted with puzzlement and frustration when people use a surname that she does not relate to.  From her perspective, it is clear that she thinks a mistake is repeatedly being made and feels upset by it.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The mother asserts that the father has never paid child support.  The father asserts that he paid $250 per week in cash “until circumstances reduced the amount”.

2. There was nothing in his affidavit about what period of time he asserts he paid $250 a week. 

3. It is apparent that the mother and her husband, in whatever arrangement they have come to, are entirely responsible for the financial, emotional and physical arrangements for the child. 

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The paternal grandmother raises her belief that children do better if they are certain of their identity and connected to all family members.  That may well be the case, but each case must be decided on its own merits.  Of greater significance is that what is at issue here is a change of name.  In fact, it is a confirmation of an existing use, so far as the child is concerned.  The Court is not dealing with the contentious issue of whether there should be time and communication, and at what level, with the father and paternal grandmother. 

2. The father raises the complaint that the mother has not facilitated time for the child with his three other children, V 12, Y 10 and Q, almost six.  Each of those children has a different mother from the others.  Each lives with his or her own mother.  No easy task to maintain communication, especially in the circumstances where the subject child feels content and secure as the youngest member of the Booth family.  The mother takes the view that that is a matter for the young adulthood of the subject child.

3. In fact, all those issues are likewise part of issues to be determined at a later date.

Conclusion

1. I am satisfied that this child considers herself to be the youngest member of the Booth family and is very content with that.  She wishes to be known as X Booth, and is in all circumstances now, other than perhaps on odd occasions when people are unaware of the disparity between her birth certificate and the name she uses.

2. The change of her surname will not change her identity.  Her birth certificate will continue to reflect the fact that she is the natural child of the father.  Rather, it will be authority for third parties to use the name which she herself wishes to use and that the mother wishes to use for the sake of creating unity within the family made up of herself, her husband, their two children, and this child.

3. Orders are made accordingly.

I certify that the preceding forty-five (45) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary J delivered on 23 July 2019.

Associate: 

Date:  23 July 2019