BRIFFA & DESANTIS

[2018] FamCA 856

FAMILY COURT OF AUSTRALIA

BRIFFA & DESANTIS [2018] FamCA 856

FAMILY LAW – CHILDREN – Where the mother seeks to change the child’s surname and middle name – Where the father seeks orders that he be notified of proposed travel by the child outside Australia – Where the mother has sole parental responsibility of the child – Where the child has not seen the father for over seven years – Where the child has expressed a wish to change her name – Where the father has failed to show it is in the child’s best interests for him to be notified of proposed travel outside Australia – Orders made permitting the mother to change the child’s name – No order made requiring the mother to notify the father of proposed travel.

FAMILY LAW – COSTS – Application by the ICL for the mother to contribute to the costs of the trial – Where the mother opposes that application on the basis of financial hardship – Application dismissed.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Briffa

RESPONDENT: Mr DeSantis

INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

FILE NUMBER: SYC 6631 of 2013

DATE DELIVERED: 16 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 8 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingstone

SOLICITOR FOR THE APPLICANT: Tsolakis Solicitors

SOLICITOR FOR THE RESPONDENT: Ms Belovic

SOLICITOR FOR THE RESPONDENT: Shephard & Shephard

INDEPENDENT CHILDREN’S LAWYER: Ms Weate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Jennifer Weate & Associates

Orders

1. The mother is authorised to do all things necessary to cause the child X A DESANTIS, born on … 2011, to be known for all purposes as X B BRIFFA.

2. Otherwise, all outstanding Applications and Responses herein are dismissed.

3. The application of the Independent Children's Lawyer that the mother contribute the sum of $2,712.50 to her costs, is dismissed.

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 Briffa & DeSantis 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 SYDNEY

FILE NUMBER: SYC 6631  of 2013

Ms Briffa

Applicant

And

Mr DeSantis

Respondent

And

Independent Children's Lawyer

Jennifer Weate & Associates

REASONS FOR JUDGMENT

The proceedings

1. Ms Briffa and Mr DeSantis are the parents of X A DeSantis, who was born in 2011 ("the child") and is currently seven years of age.  These proceedings concern parenting orders in relation to the child.

2. On 13 September 2018 the parties consented to the following final orders:

   IT IS BY CONSENT ORDERED THAT:

   1.Orders and notations are made in accordance with paragraphs 1 to 8 inclusive of a document dated 13 September 2018, filed herein and set out hereunder:

   1.The child [X A DeSantis] ("the child") born … 2011 live with her mother and her mother shall have sole parental responsibility for her.

   2.The mother be permitted to:

   (i)(omitted)

   (ii)travel overseas with the child and

   (iii)obtain an Australian passport for the child without being required to obtain the father's signature or consent.

   3.That there be no orders for the child to spend time with [Mr DeSantis].

   4.That in the event the child expresses a wish to make contact with [Mr DeSantis] then the mother will assist her to do so.

   5.The court notes that [Ms Briffa] intends to continue to obtain therapeutic support for herself.

   6.That the father be permitted to provide information, photographs of himself and the paternal family, to the maternal grandparents at [C Street, Suburb D] from time to time and the maternal grandparents will provide these to the mother who will make them available to the child or the child's therapist.

   7.That the father shall be sent by the mother by registered mail up to date photographs of the child on important events and days including Easter, Christmas, overseas holidays, religious days and events by registered mail at least four times per year, such photos not to be published on line or to third parties other than family members.

   8.The father to be restrained from attending any port of departure or return if the mother gives a notice of any overseas travel within 21 days in advance via registered mail to the father's PO Box.

   2.Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

1. After the making of these Orders, the following three issues remained for determination:

   1.Whether the mother should be permitted to change the child's name to X B Briffa.

   2.Whether the mother should be required to provide to the father 21 days' notice and an itinerary for proposed overseas travel with the child.

   3.Whether the mother should make a contribution of $2,712.50 toward the costs of the Independent Children's Lawyer ("ICL").

Background

1. The father was born overseas in 1979 and is currently 39 years of age.  The mother was born in 1984 in Australia and is presently aged 34 years.  The maternal family are of Country E heritage and participate in their culture.

2. The parties met in March 2009 and commenced cohabitation in November 2009.  They married overseas in 2011 and separated on 26 May 2011.  The marriage was dissolved by a divorce order made on 19 December 2013.

3. On the day of separation police officers raided the home of the parties and charged both with drug-related offences.  The mother and the father both were refused bail and the maternal grandparents, Ms F Briffa and Mr G Briffa, assumed the care of the child.  The mother was released on bail on 21 December 2011 and all charges against her were dismissed on 23 May 2013.

4. While the mother was in prison on remand the maternal grandparents and the mother's sister, Ms H Briffa, took the child to visit her on approximately five occasions.  Ms H Briffa deposed that the mother was incarcerated at Suburb J and that difficulties with transport prevented more frequent visits.

5. During the period of the mother's incarceration, the child was cared for by the paternal grandparents and Ms H Briffa.  The mother re-assumed the care of the child upon her release from custody on 21 December 2011.  She and the child lived with the maternal grandparents until October 2017, when they moved into their own accommodation.

6. The child last saw the father on 26 May 2011, when she was a five-week old baby.  She has had no contact or communication of any kind with the father for a period of in excess of seven years.

7. On 26 July 2013 the father pleaded guilty to various drug-related offences and was sentenced to imprisonment for six years, with a four-year non-parole period.  He was released from custody in May 2017.

Approach to these proceedings

1. Final Orders were made by consent on 13 September 2018 which provided, inter alia that the mother have sole parental responsibility for the child. Accordingly, I am not required to consider whether it is in the child's best interests, and reasonably practicable, that she spend equal or substantial and significant time with each parent. I will thus determine the issues of the child's name and notification to the father of the proposed overseas travel by reference to the child's best interests. I will have regard to those considerations set out in section 60CC of the Family Law Act1975 (Cth) which are relevant to these proceedings.

The evidence and witnesses

1. The applicant mother relied upon the following affidavits:

   1.        Ms Briffa (the mother) sworn on 27 July 2018

   2.        Ms F Briffa sworn on 27 July 2018

   3.        Ms H Briffa (maternal aunt) sworn on 27 July 2018

   4.        Ms Briffa (the mother) sworn on 8 October 2018.

   Only the mother was required for cross-examination by the legal representative of the father.

2. The respondent father relied upon his affidavits sworn on 27 February 2015 and 16 September 2018.  The father's solicitor swore an affidavit on 18 September 2018, which set out the reasons for the late filing of the father's evidence-in-chief.  The father gave short oral evidence by way of

   
   

   cross-examination.

3. I had the benefit of a Family Report dated 30 August 2018 prepared by Senior Family Consultant Mr K.  The Family Consultant was not required for cross-examination.

Issue 1:  the child's name

1. The registered name of the child is X A DeSantis.  The mother sought an order that she be permitted to change her name to X B Briffa, a proposal which was resisted by the father.

2. The father's name originally was Mr Lukin.  He became an Australian citizen using that name and changed his surname to "DeSantis" when he was approximately 25 years of age.  In his oral evidence he explained that he did so "because I wanted to get into the entertainment industry and I liked the name".  Accordingly, "DeSantis" is not a patrilineal surname.

3. The mother deposed that the child is known at school as "X B Briffa", other than for purposes of "official documentation".  The mother deposed that the child has made the following comments to her in relation to her name:

   189.I recall an occasion when the child came home from school very upset.  I said to the child words to the effect:

   "[the child], what's wrong?"

   [the child] responded words to the effect:

   "I didn't have a good day.  Another student called me by another name."

   I said to[ the child] words to the effect:

   "What?"

   [the child] said to me words to the effect:

   "We got our school photos today and the kids were teasing me because I had no surname on my photo.  I told them my name is [X Briffa] but they said that is not my real name.  My name is [X B Briffa].  I want them to call me [X B Briffa].

4. The mother deposed further to the following conversation with the child:

   192.    I recall an occasion when the child said to me words to the effect:

   When are you going to get them to change my name to [X B Briffa]?  That's my name" and "The kids are teasing me because I have two names.  They keep calling me by that other name.  That's not my name.  My name is [Briffa].

5. There was a dispute as to whether the parties agreed on the child's middle name of "A".  The mother contended that the father selected this name, whereas he maintained that he agreed to her suggestion of "A".  The mother indicated that she wishes the child to use the middle name "H" because her sister played a significant role in her care while the mother was in custody.

6. The mother described in her affidavit her adverse emotional response to the father and the name "DeSantis".  She deposed as follows:

   140.I never want to see or communicate with [Mr DeSantis] again and the thought of seeing his face or hearing his voice terrifies me.  I do not trust [Mr DeSantis] and do know (sic) who [Mr DeSantis] really is.  I feel deeply betrayed by his conduct, his involvement with drugs and his infidelities.

   ...

   184.I feel sick and anxious each time I have to record the child's surname as [DeSantis].

   185.Every time I look at my Medicare card, it causes me extreme grief and brings back the memories of being in the correctional centre and away from the child.

   ...

   353.I am still unable to say [Mr DeSantis'] name and become distressed when I see the name written.  I am receiving psychological treatment in an effort to desensitise me to the name but this is an ongoing process.

7. The Family Consultant reported as follows in relation to the mother's emotional reaction to the father:

   29.With regard to her current mental health, [Ms Briffa] said that she has "moved on a lot" and is "good now".  However, [Ms Briffa] said that she still cannot say [Mr DeSantis'] name, she continues to feel "deceived" by him and that there is "still a lot of pain there from what he did".  She said that she experiences sleeplessness and anxiety and cannot eat in the lead up to any Court event.  [Ms Briffa] said that, if she receives an email about Court proceedings, she is impacted emotionally and psychologically and cannot think, saying "it really affects me".  She said that, whilst it remains difficult for her to even say [Mr DeSantis'] surname, she hides her "pain" from the child and puts on a "happy face", saying "I have to be strong for her."  [Ms Briffa] said that an ongoing consequence of her imprisonment and associated trauma is that, now, she finds it difficult to trust people and developing new friendships is not as easy as it once was, saying "I'm very, very cautious".

8. The Family Consultant discussed the surname issue with the father and reported as follows:

   42.With regard to the child's surname being changed to [Briffa], [Mr DeSantis] said that, if it is the "truth" that the child wants her name changed and she is being teased about her name at school, then "I'm happy with that" (the child's surname being changed).  However, shortly after making this statement, [Mr DeSantis] referred to the child having her surname "stripped off her".  [Mr DeSantis] also insinuated that [Ms Briffa] is to blame if the child is being teased at school about her surname because, despite the child having [DeSantis] on her birth certificate, [Ms Briffa] enrolled the child in school with her ([Ms Briffa's]) surname.  [Mr DeSantis] then went on to say that he believes that "it's out of spite they have done this; this child has been put through the Court system, it's so unfair for [the child].

9. The Family Consultant raised the issue of her surname with the child.  He reported as follows:

   55.[The child] thought that she was at Court to discuss her parents' divorce and the possibility of her being able to travel overseas with her mother.  She indicated that she is aware of a dispute between her mother and the "other person" (Mr DeSantis) that her mother "divorced".  [The child] said that she knows the name of this "other person" but said that saying the name makes her upset because she is "teased" and called by "the name" at school.  [The child] said that she would write the name for the Family Consultant on a piece of paper, which she did, and she also quietly said the name [DeSantis] aloud.  [The child] said that, each year, "that name" is used on her class photograph and that this makes her feel upset because "it's not my real name".  She said that her mother wants her to have the surname [Briffa] because she (her mother) is divorced.

10. The Family Consultant expressed the following opinions in relation to the child's stated attitude to use of the surname "DeSantis":

    80.It was evident in her interview that the topic of [Mr DeSantis] is one that causes [the child] some discomfort and distress.  [The child] initially said that she did not want to say her father's surname aloud but, with some encouragement from the Family Consultant, she did.  It seems that [the child], like [Ms Briffa], has attached a negative connotation to her father's surname, the basis of which likely emanates from [Ms Briffa's] traumatic experience of incarceration and which has led to [Ms Briffa] developing somewhat of an aversion to saying [Mr DeSantis'] surname.  Whilst it does not appear that [Ms Briffa] has provided [the child] with detailed and specific information to explain her ([Ms Briffa's]) difficulty saying [Mr DeSantis'] surname, it seems only logical that [the child] has also adopted a position of wanting to change her surname, which is congruent with [Ms Briffa's].  [Mr DeSantis] was somewhat critical of [Ms Briffa] using her surname to enrol [the child] at school, and suggested that any discomfort [the child] is having with her surname is, therefore, [Ms Briffa's] responsibility.  [Mr DeSantis] perceives that by using her surname for [the child] at school, [Ms Briffa] has attempted to eliminate him from [the child's life] altogether.  This position, however, fails to appreciate the reality that [Mr DeSantis] has not played any part in [the child's life] and the possibility that he will do so into the future is tenuous at best.  [The child's] desire to have her surname changed to [Briffa], to be in alignment with her maternal family, is also understandable given that she has obtained her sense of identity, thus far, purely from her maternal family.  Whilst ordinarily the Court could not place significant, if any, weight on [the child's] views, due to her young age and developmental stage, and also when taking into consideration [Ms Briffa's] likely influence on [the child's views], whether consciously or unconsciously, the reality for [the child] is that her surname engenders immense discomfort for her mother (and her), and this could result in the child, to some degree, feeling a sense of shame which is not in her best interests.  Therefore, this assessment supports [Ms Briffa's] proposal, and [the child's] views, to have her surname changed.

11. The ICL supported the proposal of the mother to change the child's surname to "Briffa".  The ICL did not adopt a position in relation to a change in the child's middle name from "A" to "Ms H".

12. I am persuaded by the expert assessment of the Family Consultant that an order for the child to become known by the surname "Briffa" will meet her best interests.  For practical purposes, she is known already by this name at school and in her everyday life.

13. There is a less compelling argument in favour of a change in the child's middle name from "A" to "Ms H".  The evidence of the Family Consultant, however, makes clear that the child wishes to adopt the name "Ms H".  It appears that she has formed a strong view that she wishes to be known as "X B Briffa".  In my view, this proposed change would be likely to eliminate one source of stress upon the child.  Accordingly, I will make the order sought by the mother in relation to the child's name.

Issue 2:  notification to the father of proposed overseas travel

1. The father set out the basis of his application for this order in his affidavit as follows:

   39.In respect of my request to be notified in advance of any plans for the child to be taken outside of Australia, I still have natural inclination to be aware of my child's whereabouts at any given times as I wish to be assured that she is in a safe environment at all times.

2. In his oral evidence the father explained his reasons for seeking this order in words to the following effect:

   I need to know where my child is going and that she is safe.  She is still my bloodline.  I don't know who the mother might bring the child into contact with.  I still need to know where my child is.

3. The father placed reliance on the mother's consent to Order 7 of 13 September 2018, which provides that the mother send to him photographs of the child on four occasions per year.  His legal representative submitted that the mother likewise would be able to cope with a requirement for notification to him of travel information.

4. In her oral evidence the mother explained the basis of her opposition to this proposed order as follows:

   I can't have any communication with the father, that is why I resist the order to notify him of overseas travel.  I agreed to the order to send him photos, my parents will do it.

5. I do not accept that there is any basis for the father's alleged concern the mother would place the child in unsafe situations.  There was no evidence whatsoever that she has placed the child in a situation of risk.  That being so, the only valid basis advanced by the father for such an order is his wish to be kept informed of the child's whereabouts.

1. In terms of the best interests of the child, it is difficult to identify any advantage to her of this proposed order.  It seems to me that this proposed order is intended to meet the needs of the father rather than the best interests of the child.  I will not make such an order.

Issue 3:  the mother's contribution to the costs of the ICL

1. The ICL sought an order that the mother make a contribution of half of her costs of the proceedings, being a sum of $2,712.50.  The mother expressed her appreciation for the assistance of the ICL in the proceedings but opposed this order, on the basis of alleged financial hardship.  The father was in receipt of a grant of legal aid, which was terminated following the making of Orders on 13 September 2018.  Accordingly, he has been exempted from any contribution toward the costs of the ICL.

2. The mother is employed as a manager and earns a salary of $1,565 gross per week.  She also receives a Centrelink benefit of about $65 per week.  The mother deposed that she spends a minimum of $1,000 per week on expenses including rent, electricity, groceries, clothing, medical expenses, private health insurance and "other ancillaries such as holidays and entertainment".

3. In a statement (Exhibit 4) the mother set out that she has savings of $85,000 but also a debt to her parents of $111,459.  In her affidavit the mother deposed that she was required to discharge a number of liabilities which existed at the date of separation without any assistance whatsoever from the father.  She deposed that she alone assumed responsibility for liabilities in a total amount of approximately $115,000.  She indicated that she borrowed the funds necessary to discharge these debts and meet her legal fees incidental to the criminal charges and these proceedings from her parents.

4. Similarly to the mother, the court appreciates the assistance given by the ICL in these proceedings.  Nonetheless, I will not make the order sought by the ICL.  In reaching this conclusion, I take into account the financial circumstances of the mother and the inequity of an outcome whereby the father makes no contribution to the costs of the ICL and she is required to pay a sum of $2,712.50.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 October 2018.

Associate: 

Date:  16 October 2018