Devlin and Barta - [2007] FamCA 512

FAMILY COURT OF AUSTRALIA

DEVLIN & BARTA

[2007] FamCA 512

FAMILY LAW - CHILDREN – Less adversarial trial - Final orders made by consent - Orders hyphenating the surname of the two children aged 6 and 4 made by the Court – Matter removed from active pending cases list.

Family Law Amendment (Shared Parental Responsibility) Act 2006

APPLICANT:

Mr Devlin

RESPONDENT:

Ms Barta

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

2692

2003

DATE DELIVERED:

17 April 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Guest J

HEARING DATE:

17 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Agresta

SOLICITOR FOR THE APPLICANT:

Pearsons Schetzer & Associates

COUNSEL FOR THE RESPONDENT:

Mr Mort

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Khan

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Agricola, Wunderlich & Associates

Orders

That all pervious parenting Orders be discharged;
That the Mother and Father have equal shared parental responsibility for making major decisions concerning the children, a son born … March 2001 and a daughter born … August 2002 ("the children");
That the children live with the Mother;
That the Father spend time with the children:
(a)On alternate weekends from Friday at 5:00pm until Sunday at 5:00pm commencing 27 April 2007;
(b)For one half of each school term holiday period provided that the usual cycle pursuant to Paragraph 4(a) continues during such holiday period and as follows:
(i)in the event that the last day of school term is the Father's usual weekend time, the Father shall spend time with children for the first week of such holiday period and return the children to the Mother at 5:00pm on the following Friday;
(ii)in the event that the Father's usual alternate weekend time with the children first falls as the middle weekend of such holiday period, the Father shall spend time with the children from 5:00pm on the second Friday until 5:00pm on the Friday immediately prior to the children returning to school;
(c)For the long summer vacation on a week about basis save as otherwise agreed commencing in accordance with the usual alternate weekend cycle;
(d)For Christmas as follows:
(i)in odd numbered years from 4:00pm on Christmas Eve until 4:00pm on Christmas Day;
(ii)in even numbered years from 4:00pm on Christmas Day until 4:00pm on Boxing Day;
(e)For Father's Day from 5:00pm on the Saturday proceeding such occasion until 5:00pm on Father's Day;
(f)On the children's birthday, if such occasion or occasions fall on a weekend for a period of four consecutive hours as agreed and in default of agreement from 1:00pm until 5:00pm;
(g)As otherwise agreed between the parties;
A. That the Mother facilitate telephone communication between the Father and the children on the children's birthdays between 5:00pm and 5:30pm when such occasions fall on periods when the children are otherwise spending time with the Father.
For the purposes of Paragraph 4 hereof the Father's time spent shall be suspended as follows:
(a)On Mother's Day from 5:00pm on the Saturday prior to Mother's Day until the next scheduled occasion of time spent;
(b)For four consecutive hours on each of the children's birthdays should such time fall on an occasion that the children are with their Father as agreed and in default of agreement from 1:00pm until 5:00pm; and
(c)For Christmas (as applicable):
(i)in odd numbered years from 4:00pm Christmas Day until 4:00pm Boxing Day;
(ii)in even numbered years from 4:00pm on Christmas Eve until 4:00pm on Christmas Day;
(d)For Greek Easter from 5:00pm on Easter Saturday until the next scheduled occasion of time spent;
That all changeovers to occur at the C Contact Centre or if unavailable in the foyer of the B Police Station with the Father to allow the Mother a period of no more than 10 minutes to vacate any changeover point prior to his departure;
That each parent be and is hereby restrained by injunction from denigrating the other parent in their presence or within hearing of the children and from discussing these proceedings with the children;
That each parent be and is hereby restrained by injunction from assaulting, threatening, harassing or intimidating the other parent or from being at or within 200 metres of any place where the other parent resides or works save in accordance with these Orders;
That:
(a)each parent inform the other of any substantial injury or emergency medical or dental treatment concerning the children or either of them whilst in their respective care as soon as practicable with the Father being at liberty to contact Ms D for emergencies on … and the Mother contact the Father on … ;
(b)The Father be authorised to contact the children's treating Medical Practitioner at the O Medical Clinic in relation the children's health issues from time to time.
(c)The Father be authorised to request from the Principal of any school attended by the children copies of all school reports, newsletters, event notices and application forms for school photographs, at his expense and further be at liberty to arrange separate appointments from the Mother with the children's teachers.
(d)The Father forthwith procure a Communication Journal to be exchanged at changeover times, with such journal to address welfare issues concerning the children.
(e)Each parent ensure that the children or either one of them are appropriately restrained in child safety restraints as regulated whilst the children are travelling in a motor vehicle at material times;

IT IS FURTHER ORDERED BY THE COURT:

(f)The names of the children, son JD, born … March 2001, and daughter SD, born ... August 2002, be changed to J D-B and S D-B.
(g)For the purposes of Paragraph 9(f) hereof, the Father and Mother forthwith do all acts and things necessary to sign all necessary documents to effect the name and changes of the children.

IT IS FUTHER ORDERED BY CONSENT:

That pursuant to Section 65L of the Family Law Act the Director of Court Mediation nominate a Family Consultant appointed to supervise compliance with these Parenting Orders for twelve months with Mr S to be nominated as the Family Consultant if practicable and be at liberty to report back to the Court at his discretion;
That the Father and Mother do all things practicable to ensure that no known third party respectively come within 100 metres of the changeover point;
That each parent be and is hereby restrained from removing the children or either one of them from the state of Victoria without the written consent of the other parent or by Court Order, with any such consent not be unreasonably withheld.
That each parent be at liberty to attend school events and functions including sporting events ordinarily attended by parents save that each parent be and is hereby restrained from approaching the other parent or from being at a distance of less than 20 metres from the other parent at such events or functions, or from causing a known third party to do so;
That the appointment of the Independent Children's Lawyer be discharged;
That all extant Applications including the Form 2 Application filed 16 April 2007 be dismissed and removed from the list Cases Awaiting Final Hearing;
That the return date of the Application of 14 May 2007 be vacated;
Certify for Counsel;
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS

A.That the Father shall make all reasonable endeavours to contribute to the cost of the children's education expenses including school uniforms and books if financially able to do so upon the Mother providing receipts of same;
B.That any further proceedings be listed before Justice Guest if practicable if filed within the next 12 months;

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2692 of 2003

Mr Devlin

Applicant

And

Ms Barta

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This matter comes before me as part of the LAT procedures. It is not necessary for me to record the background as it has been adequately set out in a number of my extempore judgments delivered variously on an interlocutory basis earlier in the proceedings. The contested applications concern the children a son who was born … March 2001 and a daughter who was born … August 2002.
My earlier judgments record the history and I therefore advance to the overall resolution achieved between the parties this day. It was last before me on 30 March 2007 following a lengthy day's negotiation and discussion of various issues. Late that afternoon, following further submissions on some contested aspects between the parties, all issues were resolved and adjourned to this day for the taking of consent orders.
At the commencement of court this morning, Mr Mort continued to appear for the mother, Ms Agresta for the father, and Ms Khan for the Independent Children's Lawyer. The matter was stood down and I have now been presented with Minutes of Proposed Consent Orders. I have marked those orders Exhibit “A”. I propose to make those orders by consent, save for paragraphs 9(e) and 9(f) (on the fourth page, under the heading Attachment B). It will be necessary in settling of the orders, to renumber the paragraphs.
However, I make it clear that the orders concerning the change of the children's surname are not made by consent. They are made by the court. I might also say that the application which was recently filed by the mother for change of surname of both children to be hyphenated was is not opposed by the father, nor was it consented to.
However, that was on the basis that, as Ms Agresta submitted, the father had little confidence that the mother would demonstrate good faith and that, if a reasonable period of time passed during which the arrangements pursuant to the consent orders were effected without the usual rancour, he would be quite prepared to sign the relevant change of name forms. I had a discussion with all counsel on this issue and it seemed to me, which has been accepted by Ms Agresta and by the father, that the order should be made at this stage. If there is any breach of the court orders, the matter can return to court in the usual manner for enforcement.
The parties have travelled a long way in this matter and it appears that the Less Adversarial Trial procedures under which this application has been conducted have well suited the particular factual matrix of the dispute. I want to point out that the principles governing this case are clearly defined now in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the Act”).
In deciding whether to make a particular parenting order, it is clear that I must regard the best interests of both children as the paramount consideration. (See s 60CA of the Act). In determining what is in their best interests, I am also to consider those matters set out in s 60CC(1). They are the “primary” considerations and the “additional” considerations. I make it clear to the parties that there are two primary consideration. The first is the benefit to the children of having a “meaningful relationship” with both their mother and their father. The second is the need to protect them from any physical of psychological harm.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and, as a note to s 60CC of the Act points out, are consistent with the first two objects of Part VII as stated in s 60B. For the benefit of the parties, I will recite into this judgment those objects and principles which I have brought to their attention variously from time to time. It will not be lost in good purpose to repeat them in these short extempore remarks.
The principles underlying the objects of the Act are set out with singular clarity in s 60B of the Act. They provide that both children have a right to know and be cared for by both their mother and their father. They have a right to spend time on a regular basis with their mother and their father and communicate on a regular basis with each of them and other people significant to their care, welfare and development. In this particular case, that would include the mother's new partner, about whom I know very little, and the father's wife, who has been present in court on all occasions the matter has been before me. She is clearly most supportive of the father and his quest to share in the lives of his two children.
The objects also provide that both the mother and the father jointly share duties and responsibilities concerning the care, welfare and development of both children. A further object of the Act is that both the parents should agree about the future parenting of the children. It is my ready expectation that both the mother and the father will abide the spirit and intent of these objects and principles. Now, I do not expect perfection, for that is not the real world in which we live. What I do have, however, is an expectation that each of the mother and the father will try very hard indeed to ensure that both children learn to love the other parent and that each of them evidence respect to the children for the other parent. If that is demonstrated, then the children will benefit greatly into the future.
The parties have been greatly advantaged by a report prepared by Mr S and dated 9 March 2007. In the proceedings before me on 30 March 2007, I indicated my views of that report. I thought it was an excellent report replete with good commonsense and a realistic understanding of the parties to the proceedings. I have carefully read that report and in particular the evaluation penned by Mr S. At paragraph 21 he sets out that the parents have been involved in a “turbulent and difficult relationship”, characterised, he said, most likely by episodes of mutual discord between them.
Mr S went on to then make comments about each of the two parents and in paragraph 27 dealt with observations made by him of the children when in the care of each of them. He reported that his observations made of the children suggested that they had a “good relationship” with both their mother and their father. He said that the son, whilst making negative remarks about seeing his father and attempting to portray a negative environment at his home, did not follow through with this behaviour in his presence. Mr S reported that the son's observed positive reactions to his father were quite incongruent with his remarks, and went on to say this:
“One strongly suspects that [the son] is most likely caught in the bind that most children find themselves in when their parents are in an antagonistic and hostile relationship. He wants a relationship with both parents. However, he must run the gauntlet of anger, fear and dissension that exists between the parents. The only way for him to survive this insidious gulf is to behave differently and at times inconsistently in an effort to please both. This would explain the difficulties exhibited by [the son] that [the mother] sometimes reports prior to [the son] being picked up by his father.”
The Family Consultant's view was that both children enjoyed seeing their father and spending time at his home. He reported that, notwithstanding the difficulties noted between the parents, it was likely that both parents were providing a parenting regime for the two children that was “very much within acceptable limits”. It was his opinion that there did not appear to be any valid reasons to curtail or restrict the time they spent with their father.
Later in the course of his report and evaluation he made the very pertinent observation about parental conflict, and said
“Parental conflict is most detrimental to children affecting their ability to feel secure and in turn providing them with a skewed developmental model of human interaction which may in turn affect their own development and behaviours towards others. It also contributes to a feeling of unease and distress as the time approaches for the children to make the journey back to one parent or the other. This may prompt behaviours in the children that may be interpreted by a parent as meaning that the child does not wish to see the other parent or that the other parent has in some way done or said something to prompt such behaviours. Parental conflict in this case is a real and prominent possibility and must be avoided at all costs.”
The high degree of stress and confrontation between the mother and the father must be avoided for it has the capacity to impact in a most detrimental way upon the children. Such a position was forcefully addressed by Dr Jennifer McIntosh in a paper "Enduring Conflict in Parental Separation: Pathways of Impact on Child Development", (Journal of Family Studies, Vol. 9, No. 1, April 2003), focussing upon the known impacts of entrenched parental conflict on the development of children. In the course of her paper, Dr McIntosh had this to say:
“… unresolved, enduring parental (a term which is used in the paper in the traditional heterosexual families but which can apply equally to any family constellation) conflict can violate children's core developmental needs and threaten their psychological growth ... These findings provide a strong impetus to child focused practices in Family Law dispute resolution. They point to a need in the practitioner for an unapologetic mindfulness of the needs of children. The challenge that this research throws down to the practice front is real: to deal with this not as the ‘flavour of the month’, nor the latest itch in the Attorney-General's Department, but as a fundamental, evidence-based push for evolution in practice.” (Pages 63-4)
Later, under the heading "Through a Developmental Lens: Impact of Parental Conflict", Dr McIntosh went on to say:
“Secure family environments and emotionally responsive parenting, in all family constellations, provide the core foundation for the developmental needs of children. Certain developmental goals for children at different stages are more easily threatened by virtue of their age-related ability to understand nuances and implications of parental conflict.” (Page 65)
Later in the course of her paper, under the heading "Impacts of Parental Conflict on the Core Developmental Tasks", Dr McIntosh said:
“Enduring parental conflict disrupts the very organisation of emotional experience in any childhood. This type of disruption may have both escalating and cumulative developmental consequences. It interrupts vital attachment processes in infancy and toddlerhood, with high intensity conflict linked with the development of insecure and disorganised attachment styles … In turn, this interrupts the development of emotional security, with children becoming more prone to negative emotional arousal and distress, less able to regulate their feelings, less optimistic about their ability to cope, and less able to cope.”
Later:
“A child's ability to regulate their emotions and behaviours develops primarily in a family context. It is promoted by parental soothing, collaborative conflict resolution, discussion of emotions and the events that elicit them, and coaching of adaptive responses. When these normative parental functions are eroded by conflict, children's inability to regulate their own emotions and to adapt in a socially competent manner can be sorely compromised.” (p 66-67)

Overall, as I said, I found the report of Mr S to be both extremely helpful and insightful. In the circumstances I propose to make the orders.
The issue that remained was a Form 2 Application that was filed by the mother seeking a change of surname by hyphenation. I have earlier referred to this in my introductory remarks to this judgment. The issue of a change of a child's surname has been before the court on many occasions.
The principles governing such a situation were clearly set out by the Full Court in Chapman v Palmer (1978) FLC 90‑501. There it was held, amongst other things, that in deciding the issue of name change in each case, there was no onus of proof. The trial Judge is vested with a discretion to balance the factors for and against such a change. What is clear is that the guiding principle to a determination of a change of surname is the best interests of the children. That must stand above the wishes or proprietary interests of the mother and the father.
In Chapman v Palmer (supra) the court summarised the factors to which I should have regard and which I do consider in coming to my determination. In a subsequent decision of Beach v Stemmler (1979) FLC 90‑692, Connor J argued that the Full Court in Chapman v Palmer (supra) did not mean to restrict the considerations merely to the matters listed, and to which I have earlier referred, and went on to take into account additional matters. They included advantages both in the short and long term that would accrue to children if their names remained and other matters such as the time that a child spent with a parent and was likely to spend in the future. Other considerations included the degree of identification the children had with a particular parent.
I am satisfied from all that I am aware of in these proceedings that it would be in the best interests in the particular and discrete circumstances of the proceedings before me that the children should bear the hyphenated surname as sought. It seems to me that that would be in their best interests, which is the paramount consideration. There are no short‑term disadvantages associated with such an order.
It seems to me that such an order would provide positive long‑term effects advantaging the children's welfare in the future. It is clear that as matters stand the mother has the essential primary care of the children and is charged with their principal day‑to‑day care, together with long‑term care, welfare and development. The father now has, pursuant to the orders of the court, and consented to by the mother, time to reinforce and maintain a meaningful relationship with the children.
It also seems to me that in circumstances where the mother has the primary care of the children yet carries a different name from theirs it could lead to confusion if that were to continue. There is a clear pathway to confusion in relation to such matters as schooling, registration, reports, medical activities and other activities.
In Mahoney v McKenzie (1993) FLC 92‑408, Warnick J dealt with a situation where the parties had been married for some 18 months, during which time their child, J was born. During the marriage the wife used the husband's surname “Mahoney”, and J's birth was registered under that name. After the parties separated, the wife reverted to her maiden name of “McKenzie”. When the husband learned that J was attending preschool under that name he sought orders designed to ensure the use of his surname for J. In the result, Warnick J found it would be in the best interests of J to have the use of both names and in the course of his judgment he had this to say, at page 80‑186:
“His mother is Ms McKenzie, his father is Mr Mahoney. J is a 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 a hyphenated surname might facilitate the recognition by others of J's life circumstances and the ease with which J accepts his life circumstances.
Finally, the use of the hyphenated surname offers J a middle road in times of rapidly changing social attitudes. I would not purport to assess the degrees by which segments of society hold pertinent attitudes, but I can, I believe, recognise attitudes commonly found in society at this time. Some persons would support the proposition that in theory, if not in the application to a particular child, there should no longer be a preference for a paternal name. Some people would support the right of Ms McKenzie to revert to the use of her own family surname upon the breakdown of her relationship with Mr Mahony. Some people would support the right in Ms McKenzie to apply her surname for J, where she is custodian. Some would support the use of the combined surnames.
As J grows he will become aware of attitudes in the community. He may develop feelings and ideas of his own about his surname and the use of a hyphenated surname would seem to provide him with a non‑contentious platform from which he may choose to move in one direction or another, or to maintain the compromise.”
I see much wisdom in what Warnick J had to say in that case. The father, whilst not opposing the order sought nor consenting to it, I rather suspect that in reality he has no opposition to it, in the sense that he too sees it as a reasonable avenue down which to travel for the children into the future. That is a good thing. There is no preferred or prima facie advantage attaching to the surname of either parent. Each particular case must be considered on the facts presented before the court at a particular time. Ultimately, it is a discretionary exercise on my part, weighing up the previous factors to which I referred and apply to each such weight as I would consider appropriate.
In those circumstances it seems to me appropriate to make the orders set out in paragraphs 9(e) and (f) which will be made by the court. That will bring the contested applications of these parties to an end. I might say it has been an interesting journey for the parties and I have, as I said earlier, a ready expectation that neither party will return to the court. I expect obedience to the court orders. I expect that each of the parties will embrace the orders in good faith, genuinely and with respect. If there is any breach of these orders, the matter will return to me (certainly before 5 May 2008) and I will revisit all the issues again. However, that is not a threat, it is just a fact that reinforces my expectation that both the mother and the father will join together and put behind them the pain of the past and move positively into the future.
I congratulate the father and the mother in having the dignity, the steel and the commonsense in coming to this agreement. It will now end their presence in court, both now and hopefully into the future, and I wish them both the best and that both the children prosper in life.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate:

Date: 4 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DEVLIN & BARTA