Clay & Raleigh (No 2)
[2024] FedCFamC2F 858
•5 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clay & Raleigh (No 2) [2024] FedCFamC2F 858
File number(s): CAC 644 of 2022 Judgment of: JUDGE LIVERIS Date of judgment: 5 July 2024 Catchwords: FAMILY LAW – PARENTING APPLICATION – parenting arrangements for the child – change of name Legislation: Family Law Act 1975 (Cth) ss 60CC Cases cited: Beach & Semmler (1979) FCWA 1
Chapman & Palmer (1978) FLC 905
Giessauf & Giessauf (2004) FamCA 848
Grella & Jamieson [2017] FamCAFC 21
Lysons & Lysons (2019) FamCAFC 29
Mahony & McKenzie (1993) FamCA 78
Division: Division 2 Family Law Number of paragraphs: 72 Date of last submission/s: 10 May 2024 Date of hearing: 10 May 2024 Place: Darwin Counsel for the Applicant: Ms Hew Solicitor for the Applicant: Australian Family Lawyers - Canberra Counsel for the Respondent: Mr Fernandez Solicitor for the Respondent: Grays Legal NT ORDERS
CAC 644 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CLAY
Applicant
AND: MS RALEIGH
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
5 JULY 2024
THE COURT ORDERS:
1.That all previous Orders be discharged.
Change of Name
2.The child currently referred to as X RALEIGH born in 2021 be known as X CLAY-RALEIGH with such change to be reflected on the child’s birth certificate, Medicare card, passport and any other relevant forms of identification for the child.
3.Both parties be authorised to apply to the Registrar of Births, Deaths and Marriages to have the change of name recorded on the child’s birth certificate pursuant to the Births, Deaths and Marriages Registration Act 1996.
4.In the event that either party fails to sign the documents necessary to give effect to these orders, pursuant to section 106A of the Family Law Act1975 (Cth) (“Act”) the Registrar of the Federal Circuit and Family Court of Australia be appointed to execute any such required documents on behalf of the party to give force and effect to this order.
5.That pursuant to section 26 of the Births, Deaths and Marriages Registration Act 1996, the Registrar register the name of the child in accordance with these orders.
Parental Responsibility
6.That the mother shall have sole parental responsibility for the child X born in 2021 with respect to the living arrangements of the child and, more particularly, in which State or Territory the child lives, with this to be exercised as follows:
(a)That the mother must provide to the father six (6) months’ notice of her intention to relocate to a different town or city, with such notice to include her new proposed residential address and the reason for relocation; and
(b)The father will have the opportunity to provide his views; and
(c)If the parties are unable to reach agreement in respect of the mother’s intended relocation, they will attend mediation; and
(d)That the mother will not relocate the child more than once per two (2) years.
7.If the father intends to relocate to the town or city in which the child resides, he is to provide forty-five (45) days’ notice to the mother in writing before any changes to arrangements with the child occur.
8.Subject to Order 6 of these Orders, the parties shall have equal shared parental responsibility and joint decision making for major long-term decisions with respect to the child.
9.That the child spend time with the parties as agreed in writing, and failing agreement, as follows:
(a)If the parties do not live within 35km of each other, in accordance with Orders 10 to 17;
(b)If the parties live within 35km of each other, in accordance with Orders 18 to 24.
Parenting arrangements:
If the parties do not live within 35km of each other
10.That the child live with the mother.
11.That the child spend time with the father as agreed, and failing agreement, once every four (4) weeks for four (4) consecutive days (“the trip”), on days nominated by the father pursuant to these Orders as follows:
(a)From the date of these Orders until 1 December 2024 on a nominated Thursday, Friday, Saturday and Sunday:
(i)From 8:30am until 6:30pm;
(b)From 1 December 2024 until 1 July 2025:
(i)From 9.00am until 7.00pm on the nominated Thursday and Friday; and
(ii)From 9.00am on the nominated Saturday until 6.30pm on the nominated Sunday.
(c)From 1 July 2025 until the child commences primary school:
(i)From 8.30am until 6.30pm on the nominated Thursday; and
(ii)From 9.00am on the nominated Friday until 6.30pm on the nominated Sunday.
If the parties do not live within 35 km of each order and the child has not yet commenced primary school
12.From January 2025 until the child commences primary school:
(a)At least once (1) per calendar year, the mother shall bring the child to the city or town where the father lives in order for the child to spend time with the father in accordance with what would otherwise occur in accordance with Order 11;
(b)The time in Order 12(a) will replace the time the father would ordinarily spend on the “the trip” in that four-week period and arrangements will continue as if the “trip” had occurred.
13.The father be responsible for paying the costs of the child’s flights to enable the child to spend time pursuant to these Orders.
If the parties do not live within 35 km of each order and the child has commenced primary school
14.From when the child commences primary school:
(a)From 9.00am on the nominated Thursday until 6:30pm on the nominated Sunday; and
(b)For seven (7) consecutive overnight days during two nominated school holiday periods with this time to replace “the trip” for that month.
15.When Monday following the father’s time is a public holiday in the city in which the child lives, the Father shall be permitted to spend time with the child as agreed between the parties in writing, or otherwise from 10am to 6:30pm, subject to the following: if the Monday following the father’s time is not a public holiday where the child lives and the child has reached school age, the child will go to school.
16.If the father is able to spend further time where the child resides, or the child is in the city in which the father lives, then the parties will arrange for further reasonable time between the child and the father in addition to that outlined in Orders 6 to 9 above, and the mother shall facilitate reasonable additional time between the child and the father.
17.To facilitate spend time pursuant to these Orders and in relation to interstate travel:
(a)The father shall provide at least 14 days’ notice to the mother of his intention to travel to the place where the child lives to spend time with the child; and
(b)The mother shall provide at least 14 days’ notice to the father of any intention to travel interstate with the child.
If the parties live within 35km of each other
18.The child live with the mother.
19.From the time of these Orders until 1 December 2024 each alternate weekend on Thursday, Friday, Saturday and Sunday as follows:
(a)From 8.30am until 6:30pm.
20.From 1 December 2024 until 1 July 2025 the child spend time with the father in a fortnight arrangement as follows:
(a)In week 1:
(i)From 8.30am until 6:30pm each Friday; and
(ii)From 8:30am Saturday until 6:30pm Sunday.
(b)In week 2, from 3.00pm Wednesday until 6:30pm Thursday.
21.From 1 July 2025 until the child commences primary school the child spend time with the father in a fortnight arrangement as follows:
(a)In week 1:
(i)From 8.30am Friday until 9.00am Monday;
(b)In week 2
(i)From 8:30am Wednesday until 6:30pm Thursday.
22.In the first year of primary school the child spend time with the father on a week about basis from the conclusion of school or 3.00pm each Friday until the commencement of school or 9.00am on the following Friday morning with this arrangement to continue during school holiday periods.
23.In circumstances where the father and the child are able to spend further time other than that outlined in Orders above the parties will arrange further reasonable time between the child and the father and the mother shall facilitate reasonable additional time between the child and the father (e.g. short visits and involvement in the child’ routine activities).
24.In circumstances where the father and the child are able to spend further time other than that outlined in Orders 18 to 23 (pertaining to time if the parties live within 35km of each other) above, the parties will arrange further reasonable time between the child and the father and the mother shall facilitate reasonable additional time between the child and the father (e.g. short visits and involvement in the child’s routine activities).
Changeover
25.That changeover take place at a location as agreed in writing, and failing agreement:
(a)At the child’s school on days the child is attending school; and
(b)On other days (including until the child commences schooling):
(i)If time is occurring in the mother’s hometown or city, with the father to collect the child from the mother’s home at the commencement of time and drop the child off at the mother’s home at the conclusion of time; and
(ii)If the time is occurring in the father’s home town or city, with the father to collect the child from the mother’s accommodation in that town or city, and the mother to collect the child from the father’s home at the conclusion of time.
School holidays (whether or not the parties live within 35km of each other)
26.In the first year that the child commences primary school the child will spend time with the father as follows:
(a)One period of five (5) nights in the holidays at the end of Terms 1, 2 or 3; and
(b)One block of up to ten (10) nights in the Term 4 holidays.
27.From the second year that the child is at primary school, the child will spend time with the father as follows:
(a)One period of seven (7) in the holidays at the end of Terms 1, 2 or 3; and
(b)One block of up to twenty-one nights in the Term 4 holidays.
Christmas – spend time with
28.For Christmas in 2024 and 2025 the child will spend time with the mother on Christmas day.
29.In even numbered years commencing 2026 the child spend time with the father from 3.00pm on Christmas Eve until 10.00am Boxing Day.
30.In odd numbered years thereafter, the child will spend time with the mother from 3pm on Christmas Eve until 10am on Boxing Day.
Notation: the parties agree that if they are in the same place for Christmas Day the party spending time with the child will facilitate reasonable time with the other parent and the child on Christmas Day.
Special occasions
31.Notwithstanding any Orders contained herein, should the child not already be spending time with the mother, the child spend special occasions with the mother as follows:
(a)From 5:00pm the Saturday before Mother’s Day (which falls on a Sunday) to 5:00pm on Mother’s Day with the mother;
(b)From 9:00am to 7:00pm on the mother’s birthday, with the expectation that the child will attend school or day-care if it falls on such day;
32.Notwithstanding any Orders contained herein, should the child not already be spending time with the father and if the father is in the same city or town as the child then the mother will facilitate the child spending time with the father as follows:
(a)For at least 4 hours on the child’s birthday as agreed;
(b)From 9:00am until 7:00pm on the father’s birthday with the expectation that the child will attend school or day-care if it falls on such day;
(c)In 2024, from 9:00am to 5:00pm on Father’s Day;
(d)Commencing 2025, from 5:00pm on the Saturday before Father’s Day (which falls on a Sunday) to 5:00pm on Father’s Day; and
(e)For at least 4 hours on Easter Sunday as agreed.
33.That if the father is not in the city or town the child lives in, the mother will facilitate the child video-calling the father between 10-11am Australian Central Standard Time (ACST), or the time zone the child lives in, or at a reasonable time as requested by the father, for approximately 15 minutes, on the following days:
(a)The child’s birthday;
(b)The father’s birthday;
(c)Father’s Day;
(d)Christmas Day; and
(e)Easter Sunday.
Revisiting final parenting orders
34.Should either party wish to commence proceedings for the reconsideration of the final Parenting Order, the parties must first participate in Family Dispute Resolution processes.
Communications
35.The parties shall use an agreed upon “parenting app” to communicate non-urgent matters regarding the child. The parties shall keep mobile telephone communication open for urgent matters regarding the child, or when the parenting app and/or internet malfunctions.
36.In addition to the communication outlined in Order 20, that the parent caring for the child shall facilitate the child having video-call communication with the other parent as follows and shall do all things to encourage the calls to last at least 15 minutes:
(a)On Sundays between 9.00am at 10.00am Australian Central Standard Time (ACST), or the time zone the child lives, and
(b)On Wednesdays between 6.00pm and 7.00pm ACST; and
(c)At other times as agreed between the parties, with the parent seeking to make the call to provide the other parent with reasonable notice.
37.Each parent shall keep the other informed in relation to their current contact details including email address, home residential address and mobile telephone number and notify the other within forty-eight (48) hours of any change to the above.
38.That in the event the child is to stay overnight at a temporary location for more than two (2) consecutive nights, the parent with care of the child will notify the other party of the temporary address at least twenty-four (24) hours before the child commences staying there, or as soon as reasonably practicable if twenty-four (24) hours is not possible.
39.That each parent agrees to be respectful in all mobile, email and telephone communication with the other party.
40.That each parent agrees to speak to, and about, the other parent respectfully, and be restrained from denigrating or criticising the other in the presence or hearing of the child at all times, and to not allow any other person to speak negatively about, denigrate or criticise, the other parent in the presence of the child at all times, or permit the child to remain in the presence or hearing of a person doing so.
41.That neither parent shall discuss these proceedings or these orders in the presence or hearing of the child.
42.Each parent, when speaking with the child, will refer to the other parent by mum/dad or similar (as preferred by the other parent), and not by the parent’s first name or other identifier.
43.That in the event of an emergency involving the child, the parent with whom the child is with shall notify the other parent as soon as reasonably practicable, using the quickest form of communication.
44.That the parties will provide the child’s educational and recreational facilities, treating medical and allied health practitioners with the name of the other parent and sign any authorities to allow the other party to access all information from those services, and will provide the other parent with copies of those authorities as soon as reasonably practical after they are received.
45.The parties will request that all of the child’s medical or allied health practitioners upload all relevant medical information (as would usually be uploaded) to the child’s My Health Record.
Passport Orders
46.That both parties be permitted to travel overseas with the child as agreed between the parents in writing provided the following conditions are met:
(a)Unless otherwise agreed between the parties, the proposed country is a signatory to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”) and the Hague Convention is in force between Australia and that country.
(b)That the parents do not travel to a country where DFAT has issued a ‘Do not travel’ (Level 4) or ‘Reconsider your need to travel’ (Level 3), or equivalent warning.
(c)The proposed travel is compliant with any relevant government regulation and takes account of any government travel advice (including proposed travel period does not encroach upon the father’s time with the child, or if it does, then make up time shall occur as agreed between the parents in writing.
(e)Unless otherwise agreed between the parties, the travelling parent has provided to the non-travelling parent, at least eight (8) weeks’ notice with the proposed dates of departure, return, the destination/s and at least four (4) weeks prior to departure provide the following:
(i)Copies of return airfares purchased for the child;
(ii)An itinerary containing the addresses and contact details for all accommodation where the child will be staying during the period of travel, and contact phone number and other means of mobile contact on which the child and parent can communication throughout the trip;
(iii)General details of proposed activities in which the child will engage while on the trip;
(iv)Evidence of comprehensive travel insurance for the child covering both medical and associated travel.
47.The mother shall retain the child’s passport and ensure that the child has his passport with him at the time of any international travel with his father.
48.Both parties shall do all necessary acts and sign all documents to facilitate obtaining of any visa that may be required for the child’s travel within twenty-one (21) days of being notified by the other parent.
NOTATIONS
A.The parties have agreed that travel by the father or the mother to Country B will not be objected to on the basis that Country B is not a signatory to the Convention.
B.The parties have agreed that travel by the mother or father to City C, Country D will not be objected to on the basis that Country D is not a signatory to the Convention.
C.The parties have agreed that travel overseas by the father with X will be permitted only once consecutive overnight time has commenced.
D.Orders 6 – 8, 10 – 11, 25, and 31 – 48 were made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Liveris
Mr Clay and Ms Raleigh met in City E in early 2019. They commenced a relationship and in mid-2020, they began living together. They separated on a final basis toward the end of that year or early the next year, shortly after Ms Raleigh became pregnant. Around this time, not entirely sure on what her next move might be, Ms Raleigh put her belongings into storage, moved out of the house and went to stay in Melbourne. She moved to City H in mid-2021. The parties stayed in contact about the pregnancy, but communication between them was often strained.
In 2021, the parties’ son was born. They had discussed names in the lead-up to the baby’s birth, but they had not been able to agree. Ms Raleigh named the baby X. X is named after a close relative, because he was born on what would have been this relative’s birthday. Mr Clay did not have any input into X’s name, but Ms Raleigh considered it had equal links to X’s paternal and maternal relatives, who share a name. Ms Raleigh changed her surname shortly after X’s birth.
Mr Clay continues to live in City E, but he has been involved in X’s life and enjoys a close and loving relationship with him. Although Mr Clay and Ms Raleigh have not always been able to communicate effectively, they have been able to communicate about X, and about the time he spends with Mr Clay. Mr Clay has been pro-active in developing his relationship with X, and both he and Ms Raleigh have devoted much time and attention to enabling this to occur.
No questions of X’s safety are in issue, but Mr Clay and Ms Raleigh have disagreed over aspects of the time X spends with Mr Clay, and whether it is in keeping with X’s needs and development. Ms Raleigh considers this has led to litigation which has not been reasonable or child focussed. She is concerned that overly prescriptive orders risk her being subjected to emotional and psychological pressure.
Despite this element of tension, the parties hope that X will continue to spend time with Mr Clay as agreed between them. They spent the first day of the hearing negotiating consent orders. They have agreed orders providing for parental responsibility. They have also agreed that X will live with Ms Raleigh, however they have not reached agreement on all the parenting arrangements, some of which depend on whether the parties may live closer to one another in the future. They have also been unable to agree on Mr Clay’s application to change X’s name to include Mr Clay’s first name as a middle name or alternatively to X Clay-Raleigh.
The issues for determination are:
(a)If the parties do not live within 35 km of each other, and if X is yet to commence primary school, should X travel to spend time with Mr Clay each year, and if so, who should pay for his travel?
(b)If the parties do not live within 35 km of each other and X has commenced primary school, should the time he spends with Mr Clay include overnight time?
(c)If the parties live within 35 km of each other, how much time should X spend with Mr Clay?
(d)Regardless of how far apart the parties are living, once X starts primary school, how much time should he spend with Mr Clay during the school holidays?
(e)Should the orders specify what time X spends with each party on Christmas Day and if so, what should the orders be?
(f)Should X’s name be changed?
In deciding each of these issues, I must regard X’s best interests as the paramount consideration. I must determine what is in X’s best interests by considering the general considerations set out in s 60CC(2) of the Family Law Act 1975 (Cth). I must also make such orders as I think are proper. Because of the focus on the future, this requires me to make a discretionary judgement involving significant elements of value judgements, assumptions, necessarily uncertain predictions and intuition: Grella & Jamieson [2017] FamCAFC 21.
If the parties do not live within 35 km of each other, and if X is yet to commence primary school, should X travel to spend time with Mr Clay each year, and if so, who should pay the costs of his travel?
If the parties do not live within 35 km of each other, X will spend time with Mr Clay as agreed, but otherwise once every four weeks on four consecutive days, with one night of overnight time to commence from 1 December 2024. Overnight time will increase to two nights from 1 July 2025.
To give effect to the parties’ agreement, Mr Clay seeks orders that Ms Raleigh bring X to the city or town in which he is living at least once each year, so that X can spend time with him in his usual home environment.
Mr Clay also seeks orders that if this requires airline travel, he pays the costs of X’s flights until 1 January 2028 and that thereafter, the parties share this cost equally. By then, X will be 6 years old. Thus, the operative period of this aspect of the order is likely to be quite short.
Ms Raleigh says that the detail contained in the consent orders is adequate and that Mr Clay should travel to where X lives so that X can spend time with him. She otherwise opposes the order, primarily on a means basis. It is her position that an order requiring her to pay the costs of her travel, as well as contribute to X’s travel costs would be against X’s best interests as it would constrain her financial ability to provide for his other needs.
I consider that it is in X’s best interests to spend time with Mr Clay in the town or city that he lives in, as being in his developmental, psychological, emotional and cultural needs. I also consider that in his pre-primary school years, a travel specification in the orders will give certainty and will enhance the benefits to X of being able to have a relationship with both of his parents and other people, such as Mr Clay’s family, who are significant to him.
Although the shared cost orders sought by Mr Clay do not take effect until 2 January 2028, Ms Raleigh will begin to incur additional costs from January 2025. In particular, the orders will require Ms Raleigh to pay the direct and indirect costs of her own travel to facilitate X spending this time with Mr Clay, including accommodation and general living expenses.
Mr Clay’s annual gross salary is $140,872. He pays child support of $1,294.83 per month and $1,067.55 per quarter for hospital cover health insurance for himself and X. He also makes ad hoc financial contributions to Ms Raleigh and X as needed.
Ms Raleigh works part-time. Her total average weekly income is $1,499. Her personal weekly expenses total $1,028. There is a difference of $471, and Ms Raleigh’s financial circumstances are constrained.
In early 2022, Ms Raleigh purchased a home in Suburb F, which she and X live in. She has the support of immediate family and friends close by. Ms Raleigh is committed to her home, having invested all her savings and capital into it, and renovating the bathroom. Maintaining the property was always going to be financially challenging for Ms Raleigh, and she has been put under increasing financial strain because of external factors such as interest rate rises and cost of living increases.
I accept that purchasing her home was a significant financial commitment for Ms Raleigh, and that there have been impacts on her financial circumstances, such that she lives from pay to pay and feels it is a struggle at times. Whilst I take these matters into account, I do not consider that the financial implications of Ms Raleigh travelling to take X to Mr Clay’s home city once a year constrain her ability to provide for him in such a way as to make it against his best interests.
The minimum annual requirement of one trip responsibly limits the financial imposition on the parties. Balancing the completing considerations, in my opinion it is in X’s best interests for the annual time with Mr Clay in his home city or town to occur.
I also consider that Mr Clay should pay the costs of X’s travel. I have had regard to the financial circumstances of the parties, the costs that Ms Raleigh will incur in 2015, 2016 and 2017 to facilitate the annual trip, and that the operative period of the shared cost order will likely be brief.
Whilst Ms Raleigh works part-time, and by 2028 her earning capacity may be greater than what it presently is, I do not consider this possibility make it reasonable for her to be required to pay half of X’s travel costs when these variables are unknown to such an unpredictable extent.
If the parties do not live within 35 km of each other and X has commenced primary school, should the time he spends with Mr Clay include overnight time?
Mr Clay does not say that X is ready to commence overnight time with him yet, but says that once he starts school, X should spend time with him once every four weeks from 9.00a.m. on Thursday to 6.30p.m. on Sunday. He also says that X should spend time with him for seven consecutive overnight days in two nominated school holiday periods, which would replace the monthly time of four days that X would otherwise spend with him.
Ms Raleigh supports X spending overnight time with Mr Clay once he starts school, but says that X is too young for orders to be made that are overly prescriptive, or that make any assumptions about his developmental progression in future years. Ms Raleigh relies on her demonstrated ability to encourage and facilitate time between X and Mr Clay, in a way that is considerate of X’s capacity and needs.
Whilst the parties have shown an ability to communicate about X, there remains a degree of mistrust in the relationship. Ms Raleigh has noted her wishes to communicate with Mr Clay only about X. She now attempts to restrict communication to X’s developmental updates and general wellbeing, and around arrangements for X to spend time with Mr Clay.
Ms Raleigh feels that communication still risks becoming argumentative too easily. In the context of the statutory general considerations, she has expressed some unease about the potential for pressure, emotional and psychological abuse and intimidation to be applied to her to comply with orders that may not be responsive to X’s development at any future point in time.
Despite this concern, the parties have made some progress in improving their ability to communicate in a co-parenting relationship. Currently, the in-person communication between them is civil, and both parties share a desire and optimism that it can be improved.
Ms Raleigh says that X is happy spending time with Mr Clay, is comfortable in his company and rarely cries when she picks him up. Ms Raleigh has observed that Mr Clay is a positive and constant paternal presence in X’s life. He is patient and attentive and provides X with encouragement and unconditional love.
In her report dated 25 September 2023, the Family Consultant Ms G observed that when X saw Mr Clay, he smiled and gave a delighted scream as he ran towards him for a cuddle. Mr Clay appeared bright and friendly and confident in his care of X. During his time with X, Mr Clay provided him with many teaching moments and gave him praise, which X responded positively to.
Ms G’s opinion was that X is a well-adjusted child who is meeting developmental milestones and who shares a positive relationship with both of his parents.
There are some errors in the Family Report, most notably Ms G’s incorrect understanding that Ms Raleigh sought sole parental responsibility. The Report is also now several months old. Ms G did not give oral evidence at the hearing. However, despite these limitations, Ms G’s observations about X are in keeping with each of the party’s evidence about the relationship that X has with Mr Clay, as well as Ms Raleigh.
Ms G recommended additional time for school holidays and special occasions after X turns 7 years old.
The parties hope to be able to agree about the time X spends with Mr Clay after he starts school. However, I must make parenting orders that regulate the responsibilities of the parties on a final basis, if they cannot agree, and make a value judgment about uncertain and predictive future events.
In determining X’s best interests, I must consider what arrangements would promote the safety of Ms Raleigh and X’s developmental, psychological, emotional and cultural needs. I must also consider the capacity of both parties to provide for these needs. I must also balance the benefit to X of having a relationship with both of his parents.
Whilst Ms Raleigh’s position reflects a concerned and cautious approach to X, in my opinion having regard to the positive and developing relationship that X has with Mr Clay, it is appropriate to make the orders that he is seeking. I also consider that any risks that the final orders will be misused against Ms Raleigh are outweighed by the benefits to X in spending the additional time sought by Mr Clay with him.
If the parties are not living close by, then once X begins primary school, it is in his best interests to extend out time in school holidays twice each year, and to otherwise have four nights as sought in the orders. This will enable X to know and have two homes in two different cities and to keep developing a close relationship with each of his parents in each city.
If the parties live within 35 km of each other, how much time should X spend with Mr Clay?
If the parties are living proximately, Mr Clay seeks orders that X live with Ms Raleigh, but spends time with him on an increasing scale, that moves towards a shared time arrangement to commence in the second year X is in primary school.
As I have already observed, Ms Raleigh is established in City H and in her home. X is thriving in his routine, and in his networks in City H. The practical focus of these orders is therefore on a scenario whereby Mr Clay may move to City H.
Mr Clay seeks security that if he moves cities, he will have the certainty of X spending time with him because he would only be moving to be close to X. I appreciate that the detail of the orders is a practical consideration that may influence Mr Clay’s decision to relocate or not, however the orders I make must be in X’s best interests based upon the statutory criteria.
Ms Raleigh seeks orders that will apply if Mr Clay moves. She is concerned that arbitrary dates and ranges is not child-focussed. Ms Raleigh’s position is that if Mr Clay moves, X should start spending daytimes with him 4 days a week in each alternate week for the first 3 months. She says that time should then progress in two further 6-month phases to a fortnightly cycle of 3.00p.m. Friday to 9.00a.m. Monday or the commencement of school in the first week, and 3.00p.m. Thursday to 9.00a.m Friday or the commencement of school in the second week, with further reasonable time as agreed.
Ms Raleigh has been supportive and accommodating of X forming and developing a relationship with Mr Clay, and she recognises the importance of the relationship to both. Ms Raleigh has observed that Mr Clay has prioritised visits to City H despite the challenges of distance and expense, and he has shown a commitment to the responsibility of the father-son relationship.
Ms Raleigh has also acknowledged that Mr Clay has been able to foster a sense of closeness and connection with X, and the regular visits have enabled them to share experiences, create memories and nurture X’s independence. She has welcomed the natural evolution of the relationship between X and Mr Clay, as X grows, becomes more independent from her, and becomes more established in his relationship with Mr Clay.
Some of these observations were made in the Family Report, particularly about geography and distance, where Mr Clay’s commitment to strengthening the relationship was also identified.
In my opinion, these considerations favour arrangements to progress by dates. The structured and steady progression of time X will spend with Mr Clay that is aligned to coincide with key milestones, such as X reaching the age to start school, responsibly builds upon the extremely positive foundation to the relationship between X and Mr Clay that the parties have already established.
I also consider that this approach better co-exists with the orders that the parties have agreed, including to introduce and increase overnight time if Mr Clay does not live close by to Ms Raleigh. For example, it is counter-productive and against X’s best interests for overnight time to commence in December 2024 if the parties do not live close by, but then for that time to be reduced to daytime only time for the first three months after Mr Clay relocates.
The orders sought by Mr Clay are a natural projection from X’s current levels of development, including as observed by Ms G. They are also in keeping with his developmental, psychological, emotional and cultural needs, the capacity of both parties to provide for those needs. The orders are consistent with the benefit to X of having a relationship with both parties.
Regardless of how far apart the parties are living, once X starts primary school, how much time should he spend with Mr Clay during the school holidays?
Mr Clay seeks to increase school holiday time in each year after X starts going to school. He says this is appropriate having regard to X’s age and development in each year. He seeks time in the term 1, 2 or 3 holidays and in the term 4 holidays in X’s first year of school, with time increasing from the second and third years of school.
Ms Raleigh’s proposal does not address this issue specifically. As with other matters, Ms Raleigh is concerned about orders not being static, not being able to cater for X on an as‑needs basis and about the risks of conflict that may arise. She says there is a difficulty in assessing what will be in X’s best interests as he progresses to attain greater stages of age and development. Ms Raleigh’s proposal is for the orders to not provide for specific school holiday time, and for the default orders to operate more generally, depending on where the parties are living.
As with my earlier assessment, there are variable factors, and there is some speculation required to consider the appropriateness of final orders. I recognise Ms Raleigh’s caution, however I do not consider generality in the orders to be in X’s best interests. The orders need to give certainty to concluding the parenting arrangements for X.
In my opinion, whether the parties are living close by from one another or not, for the reasons that have already been detailed it is in X’s best interests for him to be able to spend increasing school holiday time with Mr Clay. I do not consider it to be appropriate for the orders to make no distinction between the time in school term and in school holidays, the latter being an important opportunity for X to be able to spend holiday time with Mr Clay as an aspect of his care and development.
Based upon the parties’ current assessment of the relationship X has and is developing with Mr Clay, and the support to that given by Ms G, I consider it is appropriate for the final orders to include details about what will take place in the holidays once X starts going to school. Again, whilst Ms G recommended that time in school holidays be considered after X turns 7, in my opinion it is appropriate for orders to be made.
Further, orders with graded increases from the first, second and third years that X is in primary school set appropriate parameters for him to spend time with Mr Clay in the school holidays each year.
Should the orders specify what time X spends with each party on Christmas Day and if so, what should the orders be?
Ms Raleigh has sought no orders about Christmas Day and Boxing Day. Her position is that it is problematic for orders to specify who X will spend time with over this holiday, when it is not known where the parties may be at Christmas in any given year. Ms Raleigh’s preference is for no orders to be made about Christmas and Boxing Day and for the parties to discuss and agree these arrangements from year to year.
Mr Clay says that X should spend Christmas with Ms Raleigh in 2024 and 2025, and that thereafter X should spend Christmas Day and Boxing Day with the parties on a year about basis.
In my opinion, and notwithstanding the agreement the parties have been able to reach on many matters and their shared commitment to improved co-parenting, the difficulty with Ms Raleigh’s position is that the parties have been unable to agree on aspects of the parenting arrangements. I consider that leaving this aspect of the orders unresolved is not desirable and not in X’s best interests, including because it creates uncertainty, a potential source of dispute, and a risk of further litigation.
For this reason, it is preferable that there is certainty about the arrangements from year to year, and it is in X’s best interests for the parties to know clearly in advance which parent he will be spending time with at Christmas in each year. The parties can then make their arrangements around this certainty, accordingly.
This sharing of Christmas alternately year about is also in X’s best interests because it ensures that he is able to spend time with both Mr Clay and Ms Raleigh on these occasions with some consistency and regularity. It is also noted that the parties have agreed that if they are in the same city in any given year at Christmas time, they will facilitate X spending reasonable shared time with the other. This is a responsible addition that is also in X’s best interests.
Should X’s name be changed?
This application is put on the basis that it ensures that X has a loving, consistent connection with Mr Clay, and that he may experience confusion or embarrassment in the future if he does not share a name with Mr Clay. The arrangements for where the parties live, and the time X spends with Mr Clay, is dynamic. It is also said that he is a young child, and if his name is not changed the differences may begin to negatively impact on the father-son relationship, and the relationship that X has with his extended paternal family.
Ms Raleigh has accepted if X’s name is to be changed then it is in his best interests that it occur when he is young. However, Ms Raleigh has also pointed to the fact that Mr Clay has been able to develop a loving relationship with X regardless of the differences in their names. She wants X’s surname to remain unchanged for continuity, and she does not consider a hyphenated surname to be suitable for him. She is comfortable with X’s middle name being changed to Clay or Mr Clay’s middle name.
Orders about a child’s name are parenting orders under s 64B and must be made in the child’s best interests, taking into account the general considerations in s 60CC(2): Lysons & Lysons (2019) FamCAFC 29 at [22].
In Chapman & Palmer (1978) FLC 905-10 the Full Court summarised the factors that will ordinarily be regarded as relevant as being:
(a)the welfare of the child is the paramount consideration;
(b)the short and long-term effect of any change in the child’s name;
(c)any confusion of identity which may arise for the child if the name is or is not changed;
(d)any embarrassment likely to be experienced by the child of the name if the name is different from the parent who has the primary care;
(e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bears; and
(f)the effect of frequent or random changes of name.
The question will not be decided on a technical ground of whether the parent had or did not have a right to name the child in a particular way. There is no onus of proof. I must balance, in an exercise of a discretion, the factors for and against change. For this reason, the best interests of the child stand above the wishes or proprietary interests of the parents.
In Beach & Semmler (1979) FCWA 1, Connor J of the Family Court of Western Australia said that additional matters likely to be relevant were the short and long-term advantages to the child of no change of name, the extent of past and future contact with the father, the extent to which the child identifies with the father and the extent to which the child identifies with the mother.
In Giessauf & Giessauf (2004) FamCA 848, after the parties separated the wife applied to change the surnames of the children to Jones-Giessauf, so as to include her maiden name Jones. In that matter, Murray J said:
“The wife is not choosing to change the name of the child to something alien either to her or to her husband. She seeks to have her maiden name hyphenated with that of her husband. The wife does not seek to diminish the husband’s importance in the life of the child” (at [7]); and
“I pointed out to the husband that it was very common procedure these days for some children to take the surname of both parents, perhaps as a symbol of equality between the genders, perhaps to give equal paramountcy to the role of each parent. I see no detriment to the children having that take place in these circumstances” (at [8]).
In Mahony & McKenzie (1993) FamCA 78, the parties separated when the child was 9 months old. Each party sought an order that the child have their own surname, claiming that he, at nearly 5 years of age, identified strongly with that particular name. In that matter, Warnick J observed that because of the competing, unresolved assertions, sparse evidence, and young age of the child, the question was one more of general principle, where the considerations were weighed with an academic discussion of philosophical and social issues.
In ordering a hyphenated surname for the child, one of the considerations balanced by the court was explained by Warnick J in the following terms:
“The use of the hyphenated surname, in a number of ways, accords with the reality of Jake’s life. His mother is Ms McKenzie, his father Mr Mahony. Jake is the product of their union. He would have a united surname. He has an ongoing relationship with both of his parents, though they do not live together. The use of the hyphenated surname might facilitate the recognition by others of Jake's life circumstances and the ease with which Jake accepts his life circumstances.”
X’s parents separated well before he was born. They have lived in different lives, in different cities since. X is the uniting feature in their lives, where they would otherwise have no ongoing relationship. Each party recognises the importance to X of his relationship with the other. In all of these ways, a hyphenated surname describes the circumstances of X’s life.
A hyphenated surname may well contribute to X’s developmental, emotional, psychological and cultural needs as he becomes more aware of his identity. It may also assist X to comfortably accept the circumstances of his life and his parents’ separation, knowing that although they do not have a relationship other than as his parents, they are brought together in their commitment to raising him, and realising the ongoing benefits of his relationship with each of them, as he grows.
In forming the view that changing X’s surname is in his best interests, I make the following further observations:
(a)X is a young child, and it is unlikely that he places any particular meaning in his name other than his first name. This will change over time. There are no practical short-term effects on the change in his name, and in the longer-term I consider it will be of benefit to his sense of identity and his relationship with both of his parents.
(b)I do not consider that X will experience any real confusion of identity if his name is changed, or not changed, at this young stage of his life.
(c)Ms Raleigh went to some lengths to give X a name that in her assessment was symbolic to his date of birth and his maternal and paternal lineage. She also went to lengths to then change her own surname. Whilst a change of name for X will disrupt this, I also consider that a change of surname is capable of maintaining the family history that is embedded in his name and the matriarchal lineage that remains reflected in his surname Raleigh.
(d)I consider that any embarrassment that X may experience will be minimised, because his surname will bear equally to each of his parents. I do not consider that the introduction of a hyphen will have any material detrimental impact on the relationship X has with Ms Raleigh. X has been able to establish a relationship with Mr Clay notwithstanding the differences in their names, but that is less significant given his age. I consider that changing X’s surname is in the interests of his relationship with Mr Clay, particularly as he grows older.
There are, in my assessment, advantages in changing X’s name at this stage of his life. Whilst the Act no longer requires me to weigh the benefit to X of having a meaningful relationship with both of his parents as a primary consideration, and for other factors to be weighted as additional considerations, in my opinion the general considerations in s 60CC(2) support the change of X’s surname.
In making this finding, I am mindful of the observations of the Court in Chapman & Palmer that there can be situations where one parent or another may attach too much significance on the question of a child’s surname, as some kind of proprietary interest. In this case I do not consider that the application to change X’s name, or the response to it, has any element of diminishing or undermining the relationship he has with the other parent.
In all of the circumstances, and balancing the considerations for and against the change of name, in my opinion it is in X’s best interests for his surname to be changed.
I do not weigh the application to change X’s middle name in the same way. Mr Clay has his father’s first name as his middle name, and would like that tradition to continue with X, but in my opinion this aspect of the application is less significant to X’s best interests in s 60CC(2).
In my opinion it is in X’s best interests for his name to be changed to X Clay-Raleigh.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 5 July 2024
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