Daley and Sawyer

[2012] FamCA 604

FAMILY COURT OF AUSTRALIA

DALEY & SAWYER [2012] FamCA 604

FAMILY LAW – CHILDREN – Best interests of the child – Change of name – Where the Mother had registered the child with the Mother’s surname –Where the Father has equal shared parental responsibility and contact with the child – Where the child has step-siblings with the Mother’s surname – Where the trial Judge found it was in the child’s best interest to change the name to a hyphenated surname, the Father’s name to be the primary name.

APPLICANT: Mr Daley

RESPONDENT: Ms Sawyer

INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Dooley, Solicitor

FILE NUMBER: BRC 11648 of 2009

DATE DELIVERED: 24 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 24 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Dooley, Solicitor appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The surname of the child, L Sora Sawyer born on 29 April 2009, is now to be Sawyer-Daley.

1. The Independent Children’s Lawyer be discharged.

IT IS DIRECTED THAT:      

1. If the Mother so wishes the name “Sora” can be included in the child’s name, but not to be part of the child’s surname.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11648 of 2009

Mr Daley

Applicant

And

Ms Sawyer

Respondent

REASONS FOR JUDGMENT

1. This, regrettably, is an application which has arisen out of a dispute between Ms Sawyer (“the mother”), and Mr Daley (“the father”) in relation to parenting matters concerning a child born to them who is, at present, known as L Sora Sawyer.  He was born in April 2009 and is just in excess of three years.

2. The parties’ initial relationship was, if I may say, fleeting in the extreme, but, as a result of this relationship, L was born. The father, Mr Daley, who appears here today, at that stage, because of certain views he had, requested that the parenting of the child be determined by way of a DNA test.  It was, and he was found to be the father.  I do not remember what the percentage was, but obviously it would be particularly high.  It would be in excess of 99 per cent.  However, he has accepted the child as his boy, and thereafter the difficulties have arisen.

3. Difficulties arose in relation to the father’s alleged drug addiction and his anger management, but the parties, very sensibly, entered into what I consider to be a very, very good consent order on 28 October 2011, in which, inter alia, the mother was granted, initially, sole parental responsibility, but such parental responsibility was to be shared upon the father complying with, as is set out therein, order 7.10 of that lengthy consent order, which I am sure was drawn by the independent children’s lawyer.

4. 7.10, I am assured from the bar table by the independent children’s lawyer, Mr Dooley, has, in fact, been complied with, and notwithstanding that, the mother concedes that 7.10 has been complied with, she says that it has been complied with only by letter and not in the spirit.  That is a matter for her to take up further if she wishes to make application to vary that by way of a proper application put before this Court.  She has intimated that she intends to do so and will be opposing the joint parental responsibility.

5. As a result of 7.10’s requirements being complied with, the father is now having overnight contact with the boy and has done so for a period of about six weeks, being about three periods from 4.30 pm Saturday to 4.30 pm Sunday.

6. The matter which is of concern is that which was contained in my order.  When the matter came before me, insofar as contact was concerned, it was resolved, as I said, by this particularly good order, but a matter that was not resolved was by what name was the child to be known.  At orders 2 and 3 of the Court’s order, I ordered as follows:

   (2)The mother and the father shall inform the independent children’s lawyer of what decision they have come to in relation to the child’s, [L Sora Sawyer], born 29 April 2009, surname within four months of today’s date, and the independent children’s lawyer shall inform the judge’s associate.

   (3)In the event that the mother and father have not come to an agreement as to the child’s surname within four (4) months of today’s date, then the issue shall be decided upon by the trial judge.

7. It has come before me.  I have read two affidavits put before the Court by the mother and one by the father.  The child’s name came about as a result of the mother registering the child subsequent to birth with the abovementioned name.  She said that she offered to the father the right to have his name put in.  The father denies this, and, upon my calling upon the mother to show evidence as to how she did this, she informed me, notwithstanding she subsequently resiled from this, that she had texted him or written to him, offering him.  He denies this and I accept his denial.  I do not believe she has done so, since she was unable to put before me, notwithstanding that she has extensive material before this Court and virtually every email that took place between the parties – able to show me such an email.

8. Consequently, I have to decide, in accordance with the well-known authorities, which obviously are known by the mother, because she has put before me brief submissions which were handed up on 3 April 2012, in which she refers to various authorities – I have to consider, in particular, what the Full Court said in Chapman & Palmer (1978) FLC 90-510, and they are referred to on page 2 of her submissions, and there are at least six matters which I have to consider.

9. Primarily in this case, I have to consider whether or not it is in the interests of the child – not in the interests of the parents – in the interests of the child to be known by a certain name.  The mother seeks an order primarily that the name Daley, which is the father’s name, not be included.  However, she concedes, for the purposes of compromise, that Daley - whilst she would not be happy, would not fight womanfully to exclude such a name, should I so order it.  If I order it, she is stuck with it.  And she would suggest that the name should be Sora Daley-Sawyer hyphenated.

10. In the contrary, the father says that he can see no reason why Sawyer should be inserted and that he seeks an order that, in fact, his name be the primary name and that the child be hereafter known as L Daley.  He would have preferred L Daley.  He believes that there is a tradition that the firstborn child receives his father’s name.  It may be in his family, but I can assure you, as far as I am concerned, having sat in this Court for 37 years, that it does not appear to me to be any tradition that the firstborn receives the name of his father.  I say as an example I did not.  My father’s name was Jack, and I am not a Jack.

11. The thing that impressed me here is that the parties, unfortunately, obviously cannot get on as a result of reading the material.  I mean in particular, the questionnaire that was sent by the mother, which is exhibited to Mr Dooley’s affidavit is, as is said by Mr Daley, as far as I am concerned, very intrusive.  It is very lengthy.  I do not think that the questions are in the best interests of the child whatsoever.  They are obviously not in the best interests of the mother because she has been upset by them and I think it was, with great respect to her, a very silly thing to do.

12. What it does is just maximise the upset between the parties and of course, the person who is going to be upset more than anything is the boy.  As I have said, my heart bleeds for this boy.  If the parties cannot agree upon a name, how are they going to agree upon his future wellbeing?

13. However, that has happened for 37 years and this Court will consider will happen for 37 years in the future.  When this boy gets older he will probably show more responsibility than his parents will which is a tragedy of this jurisdiction.  It is a tragedy of parents having children.

14. However, I am more than satisfied that the child, the name Daley, should be in his surname somehow or other.  I say that because the father has equal shared responsibility, parental responsibility for the child.  He is having contact with the child and I would have thought as the child gets older he would be somewhat confused as to why his name was Sawyer and not Daley because he looks upon his father and will look upon his father, as his father and his father’s name is Daley.

15. However, on the other hand, Ms Sawyer has been in a relationship with Mr Sawyer for a considerable period, albeit it has been broken for a considerable time, but she has been with him for four years.  She has two children to him, D who is now 18 and has left home, and X who is 15 and still at home.  These are obviously the siblings of L and L will know them and as we unfortunately know, brothers and sisters normally live longer than parents and he will be a half sibling of both D and X and that, of course, makes me persuaded to have both Sawyer, notwithstanding Mr Daley’s objection to it, I will allow, but then the question arises as to whether it should be Sawyer-Daley or Daley-Sawyer.

16. Mr Dooley, for the independent children's lawyer, who I said was probably responsible for the draft order, submitted that I should have it Daley-Sawyer.  He considers that if in fact it was put as Sawyer-Daley it may be that during primary school and subsequent school he could get a nickname of “stinky Daley”.  Well, one of Mr Daley’s forbearers was known as … Dayley, as he tells me from the bar table and on the face of it, … Dayley would suggest that he was a person who did not do very much.  As we all know, he being such a famous person, he did an enormous amount of things and he definitely was not weary.  If you read the book about him, he is quite a fascinating man, which I have.

17. It is a difficult case.  It is absolutely almost impossible.  It has put a tremendous onus upon me and I sometimes worry about parents that they cannot decide these things which to them may seem important but which to their child is much more important.

18. Consequently, doing the best I can on the material before me and notwithstanding Mr Dooley’s submission about Sawyer-Daley, I am of the view that the father’s name should be the primary name and that is the final name and consequently I will order that in future he be known as L Sawyer-Daley.

19. Insofar as “Sora” is concerned, which I understand the father has agreed to being in, it can be put in “if the mother so wishes”: but the name, the surname of the child from now on will be known as Sawyer-Daley.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 24 July 2012.

Associate: 

Date:  24 July 2012