Brown and Crawford
[2014] FCCA 2732
•28 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROWN & CRAWFORD | [2014] FCCA 2732 |
| Catchwords: FAMILY LAW – Whether an order should be made changing child’s name and permitting father to obtain passport for child without mother’s consent – mother has not availed herself of Court orders providing supervised time with child – mother has not spent time with child for 6 ½ years – mother has not spoken to child for almost 2 years – child’s best interest – orders sought by father granted – mother seeks order for child to live with her – whether mother should have leave to proceed with her application – child’s best interest – mothers application dismissed. |
| Legislation: Family Law Act 1975, ss.69ZX(3), 60CC(2)(a) |
| George v Radford (1976) 1 Fam LR 11, 510 Chapman & Palmer (1978) 4 Fam LR 462 Beach & Stemmler (1979) 5 Fam LR, Note 13; FLC 90-692 Mahony & McKenzie (1993) 16 Fam LR 803 at 806 Flanagan & Handcock [2000] FamCA 150 |
| Applicant: | MR BROWN |
| Respondent: | MS CRAWFORD |
| File Number: | BRC 5081 of 2008 |
| Judgment of: | Judge Jones |
| Hearing date: | 30 October 2014 |
| Date of Last Submission: | 30 October 2014 |
| Delivered at: | Dandenong |
| Delivered on: | 28 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Self Represented |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondent: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
ORDERS
It is declared that it is in the best interests of the child [X] [CRAWFORD] born [omitted] 2000 to be known from this date as [Y] [BROWN].
Upon application the Registrar of Births Deaths and Marriages in and for the State of Victoria is requested to change the Register of Births Deaths and Marriages to show the child’s name as [Y].
The father is authorised to apply for and receive an Australian passport for the child [Y] born [omitted] 2000 without first obtaining the written consent of the other parent.
The application by the mother that the child be returned to live with her is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Crawford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
BRC 5081 of 2008
| MR BROWN |
Applicant
And
| MS CRAWFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Brown (“the father”) is seeking two orders in relation to his child, [X] [CRAWFORD] born [omitted] 2000. These orders are; firstly, that the child’s name be changed to [Y] [Brown] and secondly, that he be permitted to obtain a passport without the consent of the child’s mother, Ms Crawford (“the mother”).
The mother, in response, seeks orders that the father’s application be dismissed, and, additionally, “Return my child (with resident certificate – for his safety).” I clarified with the mother, who (like the father) was self- represented, that what she sought was that the child live with her.
The child lives with his father in Melbourne and is now 14 years of age. The mother resides in Brisbane. It emerged during the evidence of the parties, that the mother has not seen child for 6 and a half years or, as the mother put it during the course of the evidence, she has only seen the child for 62 hours of contact over a period of 8 and a half years.
There is a very long history of parenting proceedings, commencing September 2005, in the Family Court in relation to the child and it is appropriate to refer to those proceedings as background to this matter. In doing so, I am mindful of section 69ZX(3) of the Family Law Act 1975 (Cth) (“the Act”) which provides:
(3) The court may, in child‑related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
I have had particular regard to and have been guided by the findings and decision of his Honour Murphy J made 19 February 2009 in Brown and Crawford [2009] FamCA 96. The case before his Honour was a “relocation case” with the father seeking orders that he be permitted to reside with the child in Melbourne. Pursuant to earlier orders made by Carmody J, in 2007, the child was residing with his father. Under those orders, the time spent by the mother with the child was supervised contact. Murphy J ultimately made orders that the father be permitted to reside in Melbourne with the child and, significantly, ordered that the mother’s time with the child in Melbourne continue to be supervised. The mother has not spent any time with the child pursuant to the orders made by his Honour, Murphy J.
It is appropriate to turn to the decision of Murphy J and the orders made by him.
Murphy J commenced his decision as follows:
1. “In about September 2005, [X] born [omitted], 2000, who is the child the subject of the current parenting proceedings, came into his father’s care as a result of the unilateral actions of the father. The mother refers to this incident as “the abduction”.
2. Subsequent contested proceedings, resulted in orders by (then) Senior Registrar Spelleken and, subsequently, Carmody J. Each were to the effect that [X] live with his father and have supervised time with his mother.
3. The fact that [X] had, until that time, lived with, and been predominantly cared for, by his mother for over two years since the parties separated in 2003, gives reason to suppose that matters were thought significantly relevant to [X]’s best interests by those earlier courts to bring about that change.
4. The mother maintained then, and continues to maintain now, that the decisions just referred to were based on lies told by the father and were wrong. The mother unsuccessfully reviewed the (interim) decision of Senior Registrar Spelleken. She did not appeal the subsequent (final) decision of Carmody J, rendered after a trial, which was made on 3 September, 2007.
5. The mother’s implacable belief of the wrongs of those decisions, and the wrongs in the court process, and the reports by experts who have provided reports within it, inform every aspect of her case in these proceedings and form an important part of the background in which the current decision is called for”.
I note here that the mother still refers to the over holding of the child in September 2005 as an “abduction”. The mother commenced her affidavit filed on 24 October 2014, in support of her response stating:
“3. These requests represent the goal that the applicant had already planned from the outset, when he abducted this child.
4. Early in the court proceedings, I warned the court of motives I believe the applicant had.
5. The main intention – to remove this child completely away from his mother and family, so that this child could be his alone, to forget that he ever had this mother.”
The mother deposes that the granting of the orders now sought by the father would enable “the applicant’s ultimate goal – the complete eradication of any possibility of connection for this child, with and to his biological mother and family” (at [10]). The mother then proceeds to detail the way in which she claims the father abuses his victims (herself and the child), has prevented her from communicating with the child (she alleges the father has found reasons to prevent her from engaging in telephone communication and that gifts from her were not delivered to the child), has not provided her with information about the child such as his school, photos or school reports. She said that she has not spoken to the child for two years but she says this is the father’s fault as he has undermined her previous attempts to talk to her son. The father says that for the last 20 months, the mother has not sent the child any gifts or written communication.
Notwithstanding the mother’s written allegations, the objective facts are that she has not taken any steps to spend time with her child, largely because she says the stress and strains of spending time with him in a supervised context were too much. I note here that Justice Murphy noted that, in the 12 month period prior to his decision, the mother had not exercised supervised time at any contact centre as provided for under Justice Carmody’s orders.
In deciding that the child should be allowed to live with his father in Melbourne and “with some hesitation” that time spent by the mother with the child be supervised, Murphy J stated that at [99]:
“99. The ultimate findings which underpin those decisions are as follows:
·I consider that the mother’s psychological health is significantly impaired and impacts upon her capacity to parent [X].
·In particular, I consider the mother is unable to see any good in the father or in [X] having a meaningful relationship with the father;
·I think it highly likely that the mother, if left alone with [X], would actively undermine the father’s role as a parent and would seek to engender in [X] a highly negative attitude toward his father;
·I think the mother is utterly obsessed (using that word in its lay sense) with what she perceives as the wrongs of earlier court processes, this court process and many aspects of it and would not be able to contain herself in expressing those feelings to [X] thereby exposing him to the parental conflict directly, and indirectly, causing him confusion and emotional turmoil;
·I consider the mother is unable to accept that [X] is closely attached to his father;
·I consider that [X] is in fact closely attached to his father and to his young sibling;
·[X] is, in my view, progressing extremely well in his father’s care and in the care of his stepmother. I consider that the concerns expressed by the stepmother about the challenges of parenting [X] within a “blended family” are – contrary to the mother’s assertions in that respect – a positive sign of a parent seeking to understand and properly deal with understandable challenges. I regard the stepmother’s hesitations about living in Melbourne to be perfectly sensible and understandable concerns which do not at all impact on her capacity to parent either [X] or his sister.
·If the mother was – in her present state of mind – to see [X] in an unsupervised setting, I consider she would seek to undermine his relationship with his father. Her hiding of a note in an Easter egg during a supervised visit (to which further reference will be made below) is, in my view, a stark example of the depth of her negative feelings about the father, her psychological ill-health and, in turn, the lengths she will go to in order to influence [X].
·The incident just described is also, in my judgment, a stark illustration of the responsibilities – more accurately, irresponsibility – of parenthood exhibited by the mother.
·I consider actions similar in character to the incident just mentioned are likely to occur in the future unless the mother seeks expert psychological/psychiatric help. I consider the prospects of her doing so to be poor.
·I think that prolonged and/or unprotected exposure of [X] to his mother - in her current state of mind - is likely to be emotionally detrimental to him;
·Any change to the current parenting arrangements is in my view likely to be emotionally upsetting to [X] and to be harmful to him;
·The current parenting arrangements provide for time with supervision. That has not been availed of by the mother. I do not accept her explanation of the reason for that situation continuing. I consider it more likely that because of a deep seated belief that such a restriction is unnecessary, unfair and emanating from injustice, she has not availed herself of it in the last 12 months.
·I consider the mother has not given sufficient consideration to the harmful effect that [X] not seeing her is likely to have had on him. His feelings have, in my judgment, been sacrificed by the mother at the stake of her feelings of injustice and sense of being wronged;
·I have no doubt, and I specifically find, that [X] deeply loves his mother, misses her and wants to see her;
·I have no doubt, and I specifically find, that the mother deeply loves [X], misses him dreadfully and wants to see him. However I consider she wants to see him only if it is on her terms, which, in turn, means that her claims and feelings about the father, his new wife and “the system” and all within it are legitimised.
·I think [X] is likely to come to emotional harm if left to the unsupervised care of his mother”.
His Honour referred to extracts from the decision of Carmody J in 2007 and stated at [146]:
“It will be plain from what I have earlier said that the matters referred to by his Honour find resonance in the proceedings before this court nearly 18 months later. Indeed, the evidence of Dr M is to the effect that the mother’s psychological health may have deteriorated in the sense that Dr M believes she can now make a diagnosis of a disorder she was previously unable to convince herself met the criteria.”
The diagnosis of Dr M, Psychiatrist was as follows:
“I believe that she does exhibit the criteria necessary for a diagnosis of delusional disorder of mixed grandiose and persecutory type. This is a condition characterised by non-bizarre delusions with relative un-impairment in interpersonal and occupational roles. It is a somewhat difficult diagnosis to make and Ms. Crawford could rightly say that the removal of [X] from her primary care is a reality rather than a delusional belief. However, the totality of her beliefs of having been wronged by the legal system, various report writers and Mr. Brown and her incapacity to entertain any other rationalisation for what has happened leads me to the view that diagnosis is a probability. Litigious behaviour is not infrequently a characteristic of the condition.
The condition tends to be chronic and it tends to be highly improbable that Ms. Crawford would accept the diagnosis or accept treatment”.
(extract from Dr M’s report at [119] of the decision)
Murhpy J also described the mother’s accounts of events as being attended by “hyperbole” (at [149]). I must observe here that the content of the mother’s affidavit and her evidence about matters which she says have caused her and the child incurable wrong are likewise attended by hyperbole. The mother remains, after 5 years since the last Court proceedings, critical of the courts, the “so-called Independent Children’s Lawyer”, the psychiatrist and family consultant and most of all, the father. All of those involved in the Court process, in her view, have been responsible for keeping her child away from his mother and destroying any connection with her and his siblings in the mother’s household. It is manifestly clear that the mother takes no responsibility what so ever for the fact that she has not seen the child for 6 and a half years.
It is appropriate to refer to the consideration by his Honour of supervised time. His stated at [168] to [172]:
“168. The supervision of any time that a child spends with a parent is, in ordinary circumstances, clearly a long way short of ideal. But, the circumstances here are a long way short of ideal.
169. Counsel for the ICL raised a risk for [X] that the mother may not avail herself of ordered time. I, too, have that concern - which remains despite the mother’s denial of that and her expressed desire to spend time with [X] in Melbourne (if the father paid for it) even if the time was ordered to be supervised. I certainly hope she does so.
170. On balance, in my judgment [X] deserves the opportunity of seeing his mother and should be given the opportunity to do so by reference to orders which provide for time together to occur.
171. Unfortunately, as a result of the findings earlier made, and the evidence earlier discussed, I am clearly of the view that such time should, at least into the foreseeable future, take place at a contact centre with all of the attendant problems associated with that, including the practical difficulties associated with that occurring in Melbourne.
172. I remain profoundly concerned about the potential effects on [X] (as I have found them to be) if time between he and his mother is, in the present circumstances, unsupervised.”
Sadly for the child, the mother has not availed herself of the ordered time. She blames the father, whom she says arranged for her to have supervised time at a contact centre in [suburb omitted], without informing her beforehand regarding the logistics involved in her getting to the contact centre. Moreover, she is critical of the father communicating this arrangement with the “so-called Independent Children’s Lawyer”. This claim overlooks the fact that the Court orders required the father to consult with the ICL. The father says he selected the particular contact centre because it had a short waiting list compared to others and access via public transport was reasonable. He says he also offered to find a contact centre near Tullamarine airport, however, the mother did not take him up on this offer. In any event, there is no dispute that the mother did not complete the registration papers for this centre nor did she attempt to look for or suggest an alternative contact centre.
It seems to me, having read the mother’s affidavit and heard her oral evidence, the mother made the decision not to avail herself of the ordered time because of her implacable belief that the Court had got it wrong. The consequence of this is that she has not spent time with her son since 2009. No doubt the mother’s decision caused the child much sadness as it is clear from the family report prepared for the 2009 proceedings that the child loved his mother and did want to maintain contact with her. Murphy J found that the child loved his mother and wanted to see her. The child was 8 years old at the time and, it goes without saying, 6 and a half years is a considerable period of time developmentally, in that child’s life. The mother has missed out on the development of her child into a teenager. There was a poignant moment during proceedings when the father gave evidence that the child is now taller than him. The mother responded with genuine grief, saying that she remembers him as a little boy no higher than her waist. The circumstances are sad, however, I have formed the view that they result from the mother’s decision about the injustice of the orders and her refusal to avail herself of orders for supervised time with her child.
The orders made by Murhy J were in summary, that :
a)The father have sole parental responsibility for the child, subject to the father using his best endeavours to advise the mother in writing of the decision he intends to make, seek her response, make his decision based on the child’s best interests and advise the mother in writing of his decision;
b)The mother have supervised contact with the child on three weekends per year, with the father paying for her airfares;
c)Communication by the mother with the son be by mail or email as the mother wishes, subject to the father retaining all communication until the child is 18 years, the father monitoring the communication and taking steps to deal with communication which is inappropriate having regard to the child’s best interests.
His Honour made two further orders relevant to these proceedings. They are:
The Child’s Name
(19)UPON NOTING THAT the child is referred to by different names by each of his parents when in their respective care, the application by the father for orders in respect of the child’s name is dismissed.
(20)The father is at liberty to publish these Orders, and that part of the Reasons for Judgment given this day relating to the child’s name, to the child’s school, any banking or financial institution, the Australian Passports Office and any similar body in circumstances where such action is required to obviate or reduce any confusion about the child’s name.
Further Proceedings – Steps to be Taken.
(21)Until further order, the mother must not, without leave of the court, institute in the Court any proceedings for any parenting orders in respect of the child.
(22)Any such application for leave to institute proceedings for any such parenting orders will, in the first instance, be first listed for hearing before a Judge in chambers and, if circumstances permit, by Justice Murphy.
(23)Unless otherwise ordered by the court, any such application for leave shall not be served on the father or any other party.
(24)In circumstances where the mother makes application for parenting orders to the Federal Magistrates Court, she shall attach to such application a copy of these orders.
Having regard to orders (21) to (23) I decided that, whilst the mother sought a reversal of the parent with whom the child should live, in response to the father’s Initiating Application, the orders sought by her would require new proceedings in relation to parenting arrangements for the child. Given the circumstances of the child’s life, including the fact that he has lived with his father for more than 8 years, the determination of the orders sought would necessitate new proceedings.
Given Murphy J’s orders, I decided that I should first determine, whether it would be in the interest of the child to permit the mother to proceed with the orders she seeks. I informed the mother of my decision. The mother said that she understood my decision but said she did not realise that I would consider her proposed order in such a formal way. She said that she thought I would go, “yes, You know, obviously because of the facts as put down here, it’s obvious this child need to be returned to her mother. Something has gone wrong here.” This statement clearly reflects the mother’s continuing belief that the Court and professional involved in the 2009 proceedings have got it wrong. During the proceedings, she described the orders made by Murphy J as “insane, and cruel and wrongful.”
The proceedings
Each of the parties is self-represented. Given this, I explained to the parties the procedure the Court would adopt in determining the issues at hand (such as the giving of evidence, cross examination and submissions) as well as the matters that the Court must have regard to in deciding whether, on the one hand to grant the father the orders he seeks and, on the other hand, determine whether the mother should be permitted to institute new proceedings in relation to parenting arrangements for the child.
The mother appeared by telephone conference as she resides in Brisbane. I took the view, in circumstances where one self-represented litigant appeared in court and the other by telephone, presumably from her home, that both parties should be sworn at the commencement of the proceedings as it was clearly impracticable to have the mother give her evidence by way of locating herself in a witness box. I explained to both parties that, the consequence of this would be that everything they said was given on oath.
I am satisfied that both parties understood the procedure the Court adopted and were aware of the matters the Court must have regard to, by way of statutory direction, in deciding the issues before it.
Should the father be permitted to obtain a passport for the child without the mother’s consent?
The father’s evidence was that he wanted the passport to be able to travel with the child overseas. He said that they had had an opportunity last year to go to [country omitted] and [country omitted]. He said the opportunity is still open, that it is mainly a business trip for himself but his son would be accompanying him. The father also said that the child has the opportunity to travel to [country omitted] for school as part of a [omitted] exchange student program in year 10. He would also like to, at some stage, take the child to [country omitted] to visit his cousins who live there. He said he asked the mother last year to sign the passport but she refused.
The father submits there is no risk that, if he travelled overseas with the child, he would not return.
He says that he has a daughter who is 8 years old who lives with her mother and with whom he spends time. He says both the children are involved with out-of-school activities, have a large circle of friends and family here. He says that his mother now lives in a nursing home and his father recently passed away. He has two sisters, brother-in-law’s nieces and nephews and their partners, all of whom, he and the child see regularly. He says they are very close knit supportive extended family who share a lot of family activities. The father says he has worked in his job as a [omitted] with his family’s business in Melbourne since 2009. He rents property and has done so since around 2011 and has just signed another two year lease. He says he is presently saving towards purchasing a house.
The mother opposes the order sought by the father which would enable him to obtain a passport for the child without the mother’s consent. The reason she gives for this is that the father cannot be trusted. I assume this reason is based on her views expressed in her affidavit that the father’s aim has been to remove the child from his mother.
The question I must decide is whether it would be in the best interests of the child to enable a passport to be obtained on his behalf by his father.
There are no doubt immense benefits for the child from travelling to Europe with his father, and later to [country omitted] on a school arranged exchange program. There is the sheer enjoyment of traveling to a foreign country and experiencing different and diverse cultures, particularly at an age when a child is able to fully appreciate the experience The same could be said for him travelling to [country omitted] to see his cousins.
Generally, the Court is required to determine orders such as this one because the other parent holds concerns that the parent who is seeking such an order will abscond with the child overseas and not return. Such an eventuality is clearly not in the best interests of the child as it would mean that any benefit to the child of having a meaningful relationship with the other parent (s.60CC(2)(a))would be undermined.
On the evidence before me, I am satisfied that there is not an unacceptable risk that the father would not return to Australia with the child, if the child were to travel overseas with him. The evidence is overwhelmingly that the father has established a settled life in Melbourne, his other child (the child’s half sibling) lives in Melbourne and the father and child have close connections to the father’s extended family who live in Melbourne.
Consequently, I am satisfied that it is in the child’s best interests that the father be permitted to obtain a passport for him without the mother’s consent.
Should the child’s name be changed to [Y] [Brown]?
The father deposes that his son has asked him, since the time he commenced living with him when he was six years old, if he could have his name changed. As the child has become older he has more frequently asked to have his name changed. During his last year of primary school the child started using the name [Y] [Brown]. Consequently, for a period of around two years he has been known as [Y] [Brown. The father said that the child had joined [activity omitted] and that he is known in the cadets as [Y] [Brown].
In December 2012, the father wrote to the mother, he says, letting her know that their son would like to be known as [Y] from now on. He says he advised her that the child was embarrassed by his birth name and didn’t like it and has asked that his name be changed formally. The mother did not respond to this correspondence. He said he again asked the mother in June 2013 for her consent for the child to officially change his name and she refused.
The father submits that the child is now 14 years old and has been known as [Y] ever since he came to live with him, around 8 years ago. The father says the child is a mature boy. He is no longer a little boy but has turned into a young man who is looking towards his future. He wants to get a part-time job soon which would mean opening a bank account. It is in this context that he wants his name changed and is quite adamant about it.
The mother said that it was probably correct that the child called himself [Y] as deposed to by the father. However, she was opposed to the order to formally change his name.
In her affidavit filed 24 October 2014, the mother deposed (at [66] to [70]) that:
“66. This child has suffered offences against his own identity. He needs retainment of what represents is true identity, which represents when he was loved and believed in himself. When he felt valued, and happy.
67. His name is the only thing (apart from the clothes he was wearing) that he has managed to keep. After being suddenly ripped away without warning, from his mother and all he had on the night of 26 April 2006, he was never allowed home again, not even once.
68. His name is incredibly special (clearly spoken to me from heaven when he was 4 months in utero).
69. His name has wonderful meaning. If you knew that, it would be a comfort to him now, but it is also for the person I would like to be – for others, and their comfort.
70. It is important for a child to know where their roots are, and where they belong.”
The mother deposed that the child had been forced to feel ashamed of his name and that deep in his heart he did not want his name changed, that he has been made so fearful and so dependent that he will do anything not to feel rejected again. She maintains that the father has never called him by his real name and used false names to enrol him in a childcare centre and obtain a Medicare card. She concluded at [81]:
“81. This man has stolen everything that was so precious to this family, and none of us can enjoy any quality of life. This child will feel the same, because the heart for the mother is in the child, and the child yearns for their mother. Despite how long it has been, my child will want to be back with his mother.”
It is to be noted that in the 2009 proceedings, the father sought a name change for the child. It is apparent that, in these proceedings, the reasons the father advanced for changing the name included that the child was confused having two names, one of which the child was more familiar with, and the likely confusion caused to authorities (for example obtaining a passport, bank accounts and the like) later in his life (see [195]). His Honour stated (at [200] to [201]):
200. It seems to me there is little evidence to support the father’s contention that society is confused about his name. Indeed, the opposite seems to be the case.
201. Whilst it is, of course, possible to postulate circumstances in which names used commonly by people differing from their birth certificate name might “cause confusion” in the sorts of official circumstances referred to by the father, there is in my view no evidence of that in this case.
202. Changing a birth certificate has long – standing ramifications, not the least of which is the message it potentially sends to a child yet to attain significant maturity about the role of his mother in his life.”
His Honour declined to make an order to effect a formal change in the child’s name.
The Court’s have considered the often emotive aspect of changing a child’s name in a number of decisions since the pre-reform Act environment. Whilst these decisions assist by way of identifying relevant considerations, the paramount consideration in is, of course, the child’s best interests.
In George v Radford (1976) 1 Fam LR 11,510, Watson J held at 11,514:
I consider that the factors which should guide me in this case are as follows –
(a)the final decision must be governed not by supposed parental rights but must be in the best interests of the children;
(b)short-term embarrassment must be weighed against long-term effects;
(c)where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
(d)children should not be subjected unnecessarily to a confusion of identity;
(e)a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.
In Chapman & Palmer (1978) 4 Fam LR 462 at 471, the Full Court of the Family Court held that:
To summarize, the factors to which the courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a)The welfare of the child is the paramount consideration.
(b)The short and long term effects of any change in the child’s surname.
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d)Any confusion of identity which may arise for the child if his or her name is changed or not changed.
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
In Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692, a decision of the Family Court of Western Australia, Connor J followed the decision in Chapman & Palmer and added the following considerations (at 78,693):
·The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
·The contact that the husband has had and is likely to have in the future with the children.
·The degree of identification that the children now have with their father.
·The degree of identification that the children now have with their mother and their stepfather
His Honour went on to say (at 78,693):
In many cases it might be convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience by itself is a sufficient reason for changing a name.
In Mahony & McKenzie (1993) 16 Fam LR 803 at 806, Warnick J granted an application that a hyphenated surname be used for the child (a boy then aged 4 years and 10 months), the mother having returned to the use of her maiden name. His Honour held that the registration of the child’s birth under the surname of the father was of no real significance and:
“The real questions are as to the degree of identification of the child with the registered surname, and as to any difficulties or embarrassment for the child, if using a surname other than that by which he or she is registered”.
His Honour went on to find that the use of a hyphenated surname was appropriate.
In Flanagan & Handcock [2000] FamCA 150, the Full Court of the Family Court reviewed a range of decisions on the principles to be considered when dealing with a proposed change of a child’s name and held at [35]:
“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”.[1]
[1] [2000] FamCA 150 at [35] per Kay and Holden JJ
In the 2009 proceedings the Court was assisted by the preparation of a family report by Mr F who recorded his interview with the child on the sensitive issue of a name change as follows ([60] of the Family Report dated 28 November 2008):
“60. [X] was quite sensitive to questions about his name and how his views might be taken by his mother and father. After some discussion he appeared comfortable with the report writer indicating to the court that he was quite used to using his present name of [amalgamation of X/Y] and a change again now would be an unusual thing to have to do at this stage. He wanted it made quite clear to both of his parents that he has no difficulty with his formal name remaining unchanged. He has no concern about using a different name on a day to day basis”.
There are two factors which in my view are relevant in ascertaining whether it is in the child’s best interests for an order changing his birth name to [Y]. These are:
a)The time the mother has spent with and communicated with the child since 2009; and
b)The maturity of the child.
In these proceedings, the circumstances now are that the mother has not seen her son for 6 and half years. On her own evidence she has not had any communication with him for some two years, since he was 12 years old. These circumstances she blames on the Court (for making orders for supervised contact and not returning the child to her) and the father, who she maintains has prevented her son spending anytime with his mother.
The mother’s stance in these proceedings has not changed since her position in the 2009 proceedings in the Family Court. It is manifestly clear that the mother takes no responsibility for the fact that she has not spent any time with her son in six and a half years and not communicated with him for around two years.
I am sorry to say that I have formed the view that the mother’s responses and conduct are entirely selfish. She has put her excessive sense of injustice ahead of taking appropriate steps to spend time with her son. She takes the view that there is no point spending time with her son at a contact centre because of the anguish it will cause. She has complained about the steps the father took to arrange a contact centre in Melbourne but has made no effort in six years to find another suitable contact centre. Her opposition to supervised time with her son remains steadfast. She has taken the view that there is no point in sending gifts to her son, writing to him or communicating by email, because of her view that the father has stopped or will stop her son receiving the communications.
Given the mother’s unchanging opposition to supervised time, it is safe to infer that the mother is unlikely to avail herself, in the future, of time with her son in accordance with the 2009 orders. I am also satisfied that, given the general absence of the mother from her sons’ life since 2009, the child is most likely to identify strongly with his father and not his mother. This is not to say that he may very well still wish to see his mother. His greater identification with his father is simply a consequence of the absence of the mother from his life. I do not find that a change of the child’s name from his mother’s surname to that of his father’s would have the effect of estranging the child from the mother. He is already estranged from his mother and, as I have found, this is because the mother has failed to take responsibility for availing herself of time spend and communication with the child under the 2009 orders.
I do not have the benefit of a family report to provide a record of the child’s views. The mother says that the child is being forced to use another name. The father says it is the child who has decided to use an alternative name and who wants to be known by the name [Y].[Brown] I am not able to accept the mother’s assertion that the child is being forced to use a different name from his birth name. There was no evidence of this in the 2009 proceedings. There is nothing before me to suggest that the child is being pressured by his father to use an alternative name. I have formed the view that this assertion of the mother is made because it feeds her belief system of serious wrongs and injustice which have been wrought on her and her son.
The other factor relevant to the child’s best interests is that it has been five and half years since the 2009 orders were made and 6 years since the child’s views were recorded by the family consultant. I accept the father’s evidence that the child is mature, grown tall, joined the [activity omitted] and looking forward to part-time work. He is over 14 years old and has lived with his father solely since 2006. It follows from the evidence that he has used the name [amalgamation of X/Y] and then [Y] since the time he has lived with his father. He does not and has not, for over eight years, spent time in another household where his birth name would be used. His mother, who would refer to him as [X], has not spoken to him for around two years. It is hard to see how this young teenager could identify with any name other than the one he uses on a day to day basis.
In these circumstances I am satisfied that it is in the child’s best interests that an order be made that the child’s name be changed from [X] to [Y].
Should the mother be permitted to commence parenting proceedings?
Having regard to orders (21) to (23) of the orders made by Murphy J on 19 February 2009, and given the fact that the child has lived with his father since 2006, I formed the view that the order sought by the mother that the child now live with her would require new proceedings in relation to parenting arrangements for the child.
In these circumstances I decided that, consistent with Murphy J’s orders I should first determine, whether it would be in the interest of the child to permit the mother to proceed with the orders she seeks.
I referred the mother to extracts from Murphy J’s decision set out above at [12], [13] and [15] and then read to her his Honour’s statement at [182] of his decision that:
“… A relationship between [X] and his mother that is not curtailed by court order – lies in the Mother and acknowledging her psychological and/or psychiatric difficulties and seeking expert assistance.”
I then asked her what steps she had taken since the decision in 2009 in seeking expert assistance and, more generally, what had changed since 2009 which should convince the Court to commence proceedings in relation to her proposed order that the child live with her. The mother’s response was that she had done nothing after 2009, that she had pulled her head in, meaning that she has withdrawn into herself thinking that if she is not allowed to complain because that’s persecutory and she is not allowed to have any conscience of right and wrong, because that’s called grandiose, that she “can’t be myself.” The mother proceeded to provide a long, dense and somewhat obtuse statement, criticising Dr M. The mother stated that “I was being punished wrongfully.” She said that if she had something to be fixed up she was quite willing to do that but asserted that there was never anything. She maintains that she was simply told about the psychiatric diagnosis and that she had to fix it but she didn’t know what she was supposed to do about it.
Her reasons for proceedings being instituted relates to her continuing firm belief that the requirement of supervised contact was unfair. She rhetorically asked “how can anybody justify these years of precious childhood that this little one was supposed to have had with his mum?” She stated that the child was born with particular closeness to her, their relationship was very special, the whole thing had been particularly cruel to the child and, on that basis, proceedings were warranted to look at what actually has happened in this case, face the issues and pick them up immediately for the sake of the child’s life. She deposed (at [81]):
“81. This man has stolen everything that was so precious to this family, and none of us can enjoy any quality of life. This child will feel the same, because the heart of the mother is in the child, and the child yearns for their mother. Despite how long it has been, my child will want to be back with his mother.”
She submitted that the child has been completely robbed of his mum and nothing had changed since 2009 because the Court orders were like a death sentence.
I enquired from the mother whether she had appealed the decision of Justice Murphy. She said she had not because she knew there wasn’t any justice in the Courts.
I cannot see anything in the mother’s written and oral evidence that would justify the Court embarking on new parenting proceedings. The mother does not acknowledge she has psychological or psychiatric difficulties nor has she sought expert assistance. She has not altered the beliefs she firmly held in 2009. She has no insight at all into the factors which are relevant to the child’s best interests. The only factor she sees as relevant is his right to be with her irrespective of her behaviour and conduct. I rely on my comments and findings made in [51] to [53] above.
I am not satisfied that it would be in the child’s best interests nor would it serve the administration of justice to commence new parenting proceedings in relation to the child. Consequently I would dismiss the mother’s orders that the child be returned to live with her.
Conclusion
For the reasons set out in this judgment, I order accordingly.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 28 November 2014
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