DL and W
[2004] FMCAfam 526
•6 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DL & W | [2004] FMCAfam 526 |
| FAMILY LAW – Children – contact – variation of contact – father’s contact arrangements with his daughter who since the hearing was diagnosed with leukaemia – parental conflict. NAME OF CHILD – Spelling of child’s first name – change of child’s name – where the mother has unilaterally attempted to change the child’s name to its anglicised version – best interests of the child – cultural importance – whether the Italian version of the child’s first name causes any confusion and embarrassment to the child – allegation the mother has refused to allow the father to exercise contact – best interests of child the paramount consideration. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F
B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
Chapman v Palmer (1978) 4 Fam LR 462; FLC 90-510
Beach v Stemmler (1979) FLC 90-692
Mahony v McKenzie (1993) FLC 92-204
Flanagan v Handcock (2001) FLC 93-074
Putrino & Jackson (1978) 4 Fam LR 71; FLC 90-441
| Applicant: | T D L |
| Respondent: | A M W |
| File No: | MLM 2286 of 2003 |
| Delivered on: | 6 October 2004 |
| Delivered at: | Parramatta (via telephone link to M) |
| Hearing Dates: | 25 & 26 September and 17 October 2003 and written submissions |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Stoikovska |
| Solicitors for the Applicant: | Middletons |
| Counsel for the Respondent: | Mr Hebblewhite |
| Solicitors for the Respondent: | T J Mulvaney & Co. |
| Counsel for the Child Representative: | Ms Forster |
| Solicitors for the Child Representative: | Forster Lawyers & Associates |
ORDERS
That all previous parenting orders in respect of the child G E W D L born 8 January 1999 are discharged.
That the Applicant father and the Respondent mother are to retain joint parental responsibility for the long term care, welfare and development of the child G.
That the child G is to live with the mother.
That the parents are to have the responsibility for the day to day care, welfare and development of the child whenever she is in the care of that parent.
The parents are restrained from using any other name or names for the child G other than G E W D L.
The father is to have contact with the child G:
(a)Each alternate weekend during the school term from the conclusion of school on Friday, collection to be from school, or at 5.00 p.m. on Friday when the child does not attend school that day, until the commencement of school on the Monday;
(b)Each Wednesday from the conclusion of school, or at 5.00 p.m. Wednesdays when the child does not attend school that day, until the commencement of school on the Thursday next morning, with the child to be delivered to school, or at 9.00 a.m. on Thursdays when the child does not attend school that day;
(c)For half of the April, June/July and September/October school holiday periods in each year, being the second half of each of the said school holiday periods in all even-numbered years commencing in 2004 and the first half of each of the said school holiday periods in all odd-numbered years commencing in 2005;
(d)From 2.00 p.m. on 8 January to 5.00 p.m. on Australia Day in each year;
(e)On the weekend that includes Father’s Day in each year from 5.00 p.m. on the preceding day until 5.00 p.m. on Father’s Day;
(f)On the father’s birthday from the conclusion of school until 7.00 p.m. that day when the birthday falls on a school day or from 5.00 p.m. on the day preceding the birthday until 5.00 p.m. on the birthday when the birthday falls on a non-contact weekend;
(g)From 5.00 p.m. on 23 December 2004 until 5.00 p.m. on Christmas Eve in 2004 and each alternate year thereafter and from 5.00 p.m. on Christmas Eve until 5.00 p.m. on Christmas Day in 2005 and each alternate year thereafter; and
(h)At such other times, if any, as the parties shall agree.
That during school summer holiday periods Wednesday overnight contact is to be suspended.
That weekend contact is to resume on the first weekend following the summer holidays on the same basis as if it had continued throughout the summer holidays.
That the child is to have contact with the Mother on Mother’s Day in each year from 5.00 p.m. on the preceding day until 5.00 p.m. on Mother’s Day.
That when the mother’s birthday falls on a Wednesday then contact on that day shall be suspended.
That when the mother’s birthday falls on a contact Friday the child is to have contact with the mother from the conclusion of school until 7.00 p.m. on that day.
That the parents at all times keep each other informed of their residential address and telephone number and the names of any other person residing at their residences.
That each parent must inform the other parent at least 24 hours in advance of the date when they intend to take the child G out of M but still within the State of Victoria for periods longer than one (1) day and must provide the other parent with an emergency contact telephone number and the address and telephone number of the place at which the child will be staying.
That each parent must inform the other at least seven (7) clear days in advance of the dates when they intend to take the child G out of the State of Victoria and must provide the other parent with an emergency contact telephone number and the address or addresses and telephone number or numbers of the places at which the child will be staying and also with details of any travel by air or sea proposed to be undertaken by the child.
That the mother must arrange for the child G to be administered all inoculations included on the Immunisation Schedule unless the child’s medical practitioner recommends against the administering of all such immunisations and that no inoculations not included on the Immunisation Schedule will be caused to be administered by either parent without the other parent’s written consent.
That the mother and father are hereby restrained from denigrating the other or any member of the other’s family in the sight or hearing or presence of the child and from discussing these proceedings in the child’s sight or hearing or presence.
That the mother establish a general communication book for the purposes of relaying information between the parents about G’s care and both parents be responsible for ensuring the book is packed with G’s belongings for contact changeovers.
In the event that G requires medical treatment, both parents are to be at liberty to attend upon their personal general medical practitioners for general health care and to administer any treatment required in respect of the child’s chemotherapy and other treatment as directed by the health care professionals at the Royal Children’s Hospital.
That each parent must notify the other of any medical appointment for the child within 24 hours of making that appointment.
That the father is to establish a medical communication book between the parents in respect of the child’s appointments at the Royal Children’s Hospital, including medication required and a record of the administering medication.
The mother is to establish a medication pack for the child to be passed from one parent to the other at the time of contact changeover to include all prescriptions and medications to be administered to the child together with the documentation required to record the administration of that medication.
In the event that the child G is to be admitted as an inpatient at the Royal Children’s Hospital, the responsibility for her admission is to remain with the parent who has the child in his or her care at the time. The admitting parent must notify the other parent within half an hour of the child’s admission.
Unless otherwise agreed between the parties, the periods of contact between G and the father whilst the child is an inpatient will occur to the exclusion of the mother and according to the following schedule:
(a)from 6.00 p.m. to 8.00 p.m. on Monday;
(b)from 5.00 p.m. on Tuesday to 9.00 a.m. the following morning;
(c)from 6.00 p.m. to 8.00 p.m. on Wednesday;
(d)from 5.00 p.m. to 9.00 p.m. on Thursday;
(e)from 3.00 p.m. on Friday to 10.00 a.m. the following Saturday morning; and
(f)from 6.00 p.m. Saturday to 12 noon on Sunday.
The mother is to have exclusive contact with G at all other times, subject to Order 23.
In the event that it is necessary for G to undergo emergency treatment or non-routine surgery the contact provided by Orders 6 to 11 inclusive will be suspended to allow the presence of both parents subject to any direction that may be given by the health care professionals at the hospital.
The discharge of the child from hospital will be the responsibility of the parent who would otherwise have the child in his or her care at that time and contact will resume in accordance with these Orders upon the child’s discharge from hospital.
Contact changeover in all circumstances where contact is not to commence or conclude at school is to take place inside the McDonald’s Family Restaurant at H or at such other place as the parties may agree.
School holiday contact. For the purposes of Order 6:
(a)School holidays are deemed to commence on the Saturday immediately after school term concludes.
(b)School holidays are deemed to conclude on the day immediately before the first day the child is required to attend school at the commencement of each school term.
(c)A day designated by the child’s school as a “pupil free day” however described is not a day when the child is required to attend school.
(d)Contact for the first half of the April, June/July and September/October school holiday periods will commence at 9.00 a.m. on the Saturday immediately school term concludes and will conclude at 5.00 p.m. on the middle Saturday of the school holiday period.
(e)Contact for the second half of the April, June/July and September/October school holiday periods will commence at 5.00 p.m. on the middle Saturday of the school holiday period and will conclude at 5.00 p.m. on the day immediately before the child is required to attend school at the commencement of the next school term.
Application removed from the list of cases awaiting finalisation.
FEDERAL MAGISTRATES |
MLM 2286 of 2003
| T D L |
Applicant
And
| A M W |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application about contact and the spelling of a child’s name.
It is an application by the father of a little girl called G E W D L, born 8th January 1999, for orders that the child should continue to live with her mother and that the father have defined contact with her.
He also sought specific issues orders about the collection and delivery of the child, making the child available for telephone contact, the appointment of a psychologist to assist with difficulties or disputes or behavioural problems arising in relation to the child in other matters, an injunction restraining the mother from changing the spelling of the child's first name, and an order restraining the mother from denigrating the father in the presence of the child.
In her amended response filed 22nd September 2003, the mother seeks orders that the child should live with her and that the father should have contact with the child defined in some 27 different orders, taking into account subparagraphs and specific issue orders, relating to the child's first name, an injunction against the father from passing on information about the mother or her children to any person or organisation administrative details about the child's travel inside and outside the state of Victoria, and arrangements for the child's immunisation against various diseases.
The proceedings were commenced in the Family Court of Australia at M by means of an application filed by the father on 24th June 2002. The Family Court made orders by consent on 5th August 2002, providing for interim contact on a graduated basis building up to alternate weekends and overnight contact on the Wednesday, contact changeover to be at McDonalds restaurant, and a mutual non-denigration order without admissions by either party.
On 26th August 2002 the Family Court made an order restraining the mother from spelling the name of the child other than the way it is on her birth certificate. The parties consented to an order giving the father telephone contact with the child on Monday and Thursday evenings.
On 4th April 2003 a Deputy Registrar of the Family Court apparently transferred the proceedings to the Federal Magistrates Court. There is, however, no written note to that effect on the Court file; there is no formal order. In any event, the proceedings have continued in this Court.
On 27th May 2003 interim orders were made by McInnis FM, fixing the matter for final hearing on 1st August 2003, and the parties consented to further orders, continuing contact and continuing the changeover arrangement at McDonalds at H.
The matter was administratively re-listed to a hearing date on 16th January 2004 due to the possibility of a conflict of interest, but that matter was brought back to Court on 15th September 2003. On that day further contact orders were made by consent and the matter was adjourned to 25th September 2003 for final hearing. It was listed to take one day.
Background
The father and the mother are aged 43 and 42 respectively. The father is a barrister by profession and specialises in general commercial law. The mother is an economist who works on a part time basis. They commenced their relationship in 1996 and commenced cohabitation on either 16th or 17th December 1998.
There is one child of the relationship, the child G, who is the subject of these proceedings. She was born on 8th January 1999 and resides with the mother. The parties separated on 19th or 20th March 2002 when the father left the home. The child continued to live with the mother.
The mother was previously married and she has two children by that marriage. Those children are a girl, M, who was born on 19th April 1991, and is now aged 13 years, and a boy, S, who was born on 10th December 1993, and is now aged 10 years. The two children reside with the mother and have regular contact with their father.
The father has no other children. He now resides in the M suburb of A.
Issues
The issues between the parties are:
a)what should be the arrangements for the father's contact with his daughter;
b)whether her first name should be spelled in the Italian way, that is, G, or in its anglicised version, J; and
c)how contact changeover should take place.
There is no issue as to the fact that the child should normally reside with the mother. The father no longer seeks an order for contact changeover at a police station, or for the nomination of a psychologist for any purpose. The mother no longer seeks orders to restrain the father from passing on information about her.
As there were a number of areas of agreement between the parties, I asked counsel to prepare a minute of consent orders to cover those areas of agreement.
No Family Report
No family report was ordered in these proceedings.
Evidence
The father relies on the following documents, to which I have regard:
(a)His application filed in the Family Court of Australia on 24th June 2002.
(b)His amended application filed on 15th May 2003;
(c)His affidavit filed on 15th May 2003; and
(d)His affidavit filed on 24th September 2003.
The mother relies on the following documents, which I have also considered:
(a)Her response filed on 16th August 2002;
(b)Her affidavit filed on 16th August 2002;
(c)Her interim application filed on 26th August 2003;
(d)Her affidavit filed on 26th August 2003;
(e)Her response filed on 22nd September 2003;
(f)Her affidavit filed on 22nd September 2003; and
(g)The affidavit of Derek Roy Parker filed on 22nd September 2003.
The child’s first name
G was named after the father's elder sister who now resides in Italy. It is the father's evidence that the parties agreed that the child would be named G prior to her birth.
The father says that he discussed with the mother his reason for choosing the Italian version of G. He says that it is a tradition in his family that the children are named after significant family members. He gives an example that his brother's given name, A, is the name of his father's father. His brother's son, D, has a significant name in his family. His brother's daughter, L, is named after his grandmother.
He says that the mother liked the sound of the name G, and that it was a joint decision. He further says that the parties agreed to spell the name in the Italian way to reflect both the significance of the family name and G's Italian heritage. He states that they agreed that it was important to preserve G's cultural ties and heritage. The child has an Italian heritage on her father’s side and an Italian heritage on her mother’s side.
The father says that the child's middle name, E, although not of Italian origin, was chosen by the mother, and he agreed after much discussion. He said that the parents agreed that the mother’s surname, W, in the German spelling, should be incorporated into G’s name. He further said that, to his recollection, it was the mother who completed and submitted the application for the child’s Birth Certificate.
There was a great deal of evidence led in relation to the change of the child's name. The father deposes in his affidavit filed on 24th September 2003 that upon G’s birth the parties placed a notice in The Age. He said that they both completed the details for the notice.
The name, however, was spelled as J, the Anglicised version, at the specific request of the mother. The father says that, to the best of his recollection, this was for the primary reason that the mother had not had an opportunity to explain to her family the reason for the Italian spelling of the name. The father said that he found this an unusual reason because none of the mother's family lived in Victoria, and there was no real likelihood of their seeing the advertisement. However, the father agreed to spell the name as “J” for the purposes of the notice and in order to avoid unnecessary conflict, particularly in light of the fact that the mother had recently given birth and was clearly under some stress.
The father says he is aware that the mother has never spelled G in its Italian version because there has apparently been some resistance in the mother's family to doing so. The father says that following G's birth, several of his friends gave the parties cards and some gifts and spelled G in the Italian version.
The father says that the child's name has been spelled as “J” on her health record. He did not consent to this spelling, and he assumed that it was a misspelling by the nursing staff. He says there were several ongoing arguments about the correct spelling of G's name for a short period following her birth, but, notwithstanding those arguments, he and the mother finally agreed to spell the child's name as “G”.
The father says that for the last three years G's name was always spelled in its Italian form, and she was learning to spell her name that way. Her name was spelled like this on her bedroom door.
In 2001 the relationship between the parties began to deteriorate. They underwent a separation of several months, during which the husband had ample contact with the child. The arrangement was that he would attend the home in the evening, bath G and sometimes put her to bed, and that this was a flexible contact arrangement.
In either October or November of 2001 the mother and the father had resumed cohabitation but the relationship continued to deteriorate. The father says that at this time the mother again raised the issue of the spelling of G's name. She said to the father that the carers at the creche at M University had problems in spelling her name, but this was in no way saying that it was causing a problem for the child.
The father says that the issue was raised once again in January 2002 when the parties and the child went to Queensland for a holiday. The father says that the holiday was fraught with tension and arguments and consequently he left Queensland on 8th January 2002 (the child’s birthday) and the mother returned on 10th January 2002. According to the father, prior to separation, one evening the mother told him that she was instructing the carers at creche to spell G's name in its English version.
The father says that he does not recall his exact response to the mother’s statement, but he opposed it. The father says that to his recollection the first time that the mother spelled the child's name in its Anglicised version was after separation.
Further arguments took place around this time in relation to the issue and the father says that he recalls the respondent saying:
My agreement to the spelling of G's name was a mistake. I will change it by usage.
The father's evidence is that during 2002 he learned that the mother had, for all purposes, attempted to change the spelling of the child's name, and that this included the manner in which her name was spelled at the creche G attended. The father says that this was a unilateral decision, and without his consent.
The issue of the child's name was later raised by way of a letter dated 19th April 2002 from the mother's lawyers at that time, Goddard Elliott. The father deposed that he felt that this unilateral decision of the mother was intended in some way to alienate the child from him and distance her from her Italian heritage.
In an affidavit filed in the Family Court of Australia on 16th August 2002, the mother deposes that the parties had agreed to change the spelling on G's third birthday. The father denies this assertion. He said that the first time he learned of any agreement was in the affidavit.
The letter dated 19th April 2002 from the mother's solicitors says:
We also draw your attention to the fact that our client refers to J as J, and not G as in your correspondence. Our client has adopted the English spelling of the name because J has been experiencing difficulties in creche with the other spelling of the name[1].
[1] I note that the child was aged three years and a little over three months at that time.
The father says on the same day his lawyers received the letter from Goddard Elliott, he received a letter from the mother where she spelled G as “J”. He says that this was the first time that he had seen the mother spell their daughter's name that way.
The father advised his solicitors to respond to the letter from Goddard Elliott, stating that there was no agreement as to change the name. The mother wrote to the father’s lawyers on 2nd May 2002, saying:
Your client claims that J's name must be spelled according to the Italian spelling to reflect her Italian heritage. May I point out that J's surname clearly reflects J's Italian heritage, as I also point out that I am not Italian and her heritage consequently is not fully Italian. I discussed the anglicisation of J's name with your client following her third birthday. The decision was not influenced in any way by the state of our relationship. I have had constant problems with other people misspelling the Italian version of J's name.
I note that your letter of 15 April 2002 consistently spells J's name as “G”. It is unreasonable to expect a three-year-old child to explain the Italian spelling of the name to adults, who are sure the name must be spelled in the incorrect way in which you spelled it in your letter of 15 April. In any case, I cannot see that the spelling of my child's name is a legal matter. I hope that your client will not again see fit to raise this matter in legal correspondence.
The father says that he had some discussions with the carers at the creche that G attended, and that he became aware that the mother had unilaterally changed the spelling. According to the father, when the mother informed the carers of the creche they were not informed that the father opposed the decision to change the name.
It is the father's case that the name was only changed following the dramatic deterioration of the parties' relationship as when it became tense and hostile. The father said that letters sent to him by the mother continued to spell G's name in the Italian form in February 2002, nearly a month after G's third birthday.
The mother filed an affidavit on 22nd September 2003. She denies that there was ever any agreement before G was born as to how the child's name would be spelled. The wife says that there were some discussions as to the sex of the child, because the father had insisted that she have an Amniocentesis, but the father did not want to know the sex of the child.
It is the mother's case that the father wanted the child to be named G in its phonetic pronunciation without specifying the spelling of the name. The name was recorded on the father's instructions as G in the child health record completed by a midwife at the M Birth Centre at M in the morning following the birth of G, and presented to the mother by the midwife in the father's presence.
It is the mother's case that she was not informed at any time at the time of birth or at any stage prior to giving birth to G that the father proposed that the child be named after the father's aunt. She says that the father was aware of her dislike of naming the children after his relatives.
The mother says that the father did inform her the afternoon following the birth that his aunt was named G in its phonetic pronunciation, but again, she says he did not specify the spelling of the name.
It is the mother's case that the father explained to her that he would need his own father's consent to name the child G because the father's father may object to naming the child after his own sister. She says that the father had previously informed her that there was a strained relationship between his parents and his father's siblings relating back to a dispute over ownership of some property in Italy, and that the father subsequently told her that his extended family were not aware of the existence of G until she was aged approximately two years old, due to the fact that she was illegitimate and they did not inquire further about her.
It is the mother's case that the father unilaterally changed the child's name from its Anglicised spelling to the Italian spelling. The mother said she objected to this change of spelling, and that she felt that the child would encounter some difficulties in relation to the unusual spelling of her given name, and as a result, the registration of the birth was not effective for almost a fortnight following G's birth and in that time there were constant arguments between the parties as to the spelling of the name.
She says that the father specifically told her during the course of an argument that he would not permit his surname to be used in G's name and would not sign the birth registration form unless she agreed to the Italian spelling.
The mother says there continued to be heated exchanges between the father and herself prior to registration, and she said as a compromise she specifically acquiesced in the registration of the name “G” on the basis that the phonetic and anglicised spelling would be used as a custom, and that in due course the parties would raise their daughter knowing that she would have her name known and spelled commonly as “J” and be registered as “G”. She says that they essentially reached an agreement that the child's name would be registered as “G”, and as far as practicable spelled “G” on official documents.
However, the mother says that when the child reached kindergarten the anglicised version would be used in common usage until she was old enough to make her own decision about the spelling of her name.
G attends creche at M University and has done so since 9th July 1999. There was a gradual increase until December 2002.
The mother says that until G's third birthday she had consistently used the spelling G in its Italian version in accordance with the agreement that the parties had reached at the time of registration. She says that, shortly after G's third birthday in 2002, when she returned with the children from a visit for her family in Queensland she discussed with the father the reversion to the English spelling of “J”. It is her evidence that he stated that he did not object to “J” being adopted as the common usage spelling, but asked for her agreement that he and his extended family continue to use the Italian spelling.
The mother says that she accepted this proposal. The mother says that at recommencement of creche in late January or early February 2002 she spoke with the creche director and preschool room teacher of the change in the spelling of G's name. “J” was adopted in common usage at the creche shortly after that date.
The mother says G has experienced no difficulties from the change of the spelling of the name and that G was clearly ready to learn to identify the letter "J" and also associate the letter "J " with her name, and that the child told the mother that her name will be started with "J", like her creche friends, Jeremy and Joshua, and in this way she also started to learn that her surname began with the letter "D".
The mother's evidence is that following separation in March of 2002 the father did not immediately oppose the anglicised version of G's name. However the father later applied for an interlocutory injunction to prevent the mother from the using the name in an anglicised form. The injunction was granted in the Family Court on 26th August 2002, following a contested hearing before Registrar Wilson.
The mother's evidence that the change in G's name back to the Italian spelling has caused G confusion and distress. She says that on Tuesday 6th August 2002, whilst playing at home G tore her name "G" in magnetic figures from the easel which she has at home and threw them on the ground. The mother says that she asked G why she was so upset and why she had thrown the letters to the ground, and she said to the mother that her father had said that she must spell her name with a "G".
In August 2002, following the injunction made in the Family Court the mother says the child located a metal hook in the playground and associated that with her name. She says that the child became upset when she explained to her that she could no longer spell her name with a "J" and had to spell it with a "G".
The mother says that the child has become distressed when she realised that her name no longer starts with the same letter as two of her creche friends, and she required explanations over an extended period and in fact still requests explanations for why her name no longer begins with the letter "J" and why she has an Italian name. This continues to cause confusion for her.
The mother recalls occasions that during G's learning of the alphabet and when she talks about its phonetic pronunciation and identifies the words that start with "j", like juice, jet, jam jar, she often says with some excitement that her name starts with "J". However she becomes upset when the mother reminds her that her name starts with "G".
The mother says that the child's name is frequently misspelt when attempts are made to spell it in its Italian version. The mother says that after the birth of G she applied to add her to her Medicare card and provided a copy of her birth certificate to Medicare staff, both as proof of her birth and to assure that the correct spelling was recorded.
G's name was added to the Medicare card incorrectly and spelt as
"Guilia", and that the name was frequently misspelt on paintings, drawings and other work done at creche and continued to be misspelt in work done at playgroup and kindergarten.
The mother says that a recent invitation was received for G to attend a birthday party of a Kindergarten friend and recalls G's name as "G" on both the invitation and the envelope.
It is the mother's case that many people experience difficulty with the pronunciation of the Italian name. In her affidavit filed on 22nd September 2003 she gives two examples:
(a) On 5 March 2003 I took G to the dentist for her first appointment and check-up. On entering the dentist's surgery the dentist bent towards G and said, "Hello, what's your name?" She did not answer. He asked again. She put her head down with her chin on her chest and mumbled her name. He could not understand her and looked towards me. I said, "G" in the phonetic pronunciation. He replied that he had not known how to pronounce the name;
(b) On 30 April 2003 G began swimming lessons at the local swimming pool. At the first lesson I introduced her to her swimming teacher. On 14 May 2003 the teacher pointed to G as we entered the change rooms and said to me, "It is G pronounced in the phonetic way, isn't it?" She said that on noticing the spelling of G's name on her student list. She thought that she was mistaken about the pronunciation of the name and was concerned that she had been calling her by the wrong name for the first two weeks of lessons. I explained that the name was spelt in the Italian spelling.
The mother goes on in her affidavit that she is conscious of the fact that she cannot always be with G to explain to people in circumstances where they are confused by the correct pronunciation and origin of G's name.
The mother essentially seeks from this Court that the name be spelt "J" to relieve excessive burden on the child and that this is in the best interests of G.
The mother says that she has always used to register it in the Italian spelling on all official documents, for example, the Kindergarten and primary school enrolment forms.
From the evidence it would seem that the mother would be keen to use "J" save for the interlocutory injunction sought by the father in August 2002 which prevents her from inserting "J" as the preferred name for G on her Kindergarten enrolment form, as proposed. She seeks from this Court that this restraint be removed.
The mother also says that in light of the child's behaviour which arises out of the spelling and pronunciation of her name that it be changed.
The father says that the child's name on the birth certificate is "G" and he did not and does not consent to any change. The father is involved with the child as her father and wishes to maintain his involvement wither. The father is of the Italian origin and would like the child to have a part of his heritage.
The gravamen of the mother's case is that it is causing behavioural problems and problems for G at creche and at school and that it is hard for people to pronounce. She says that it causes embarrassment and it is often misspelt.
Relevant Law
In Chapman v Palmer (1978) 4 Fam LR 462; FLC 90-510, the Full Court of the Family Court of Australia said that:
The general principle appears to be that the Court will not intervene to prevent a parent from changing the name of the child in the custody (however described) of that parent unless the Court was satisfied that the changes made without the consent of the other parent and that it does not promote the welfare of the child.
The Court set out the factors to which the Court should have regard in determining whether there should be a change in the child's surname to include:
(a)the welfare of the child is the paramount consideration;
(b)the short and long term effects of any child in the child's surname;
(c)any embarrassment likely to be suffered by the child if its name is different from that of the parent with custody or parent 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 v Stemmler (1979) FLC 90-692, Connor J took into account the matters set out in Chapman v Palmer. He mentioned certain additional matters that may be relevant including:
(1)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;
(2)the contact that the husband has had and is likely to have in the future with the children;
(3)the degree of identification that the children now have with their father;
(4)the desire of the father that the original name be restored .
The decision of Warnick J in Mahony v McKenzie (1993) FLC 92-204, refers to a case where a child had been registered in the father's surname at birth and the mother reverted to the use of her family name after the parties separated. The father found out that the child was attending preschool under the mother's surname and sought orders to ensure that the child was known by his surname.
In that case Warnick J attached no significance to the fact that the child's surname had been registered as the father's surname at birth. He held that a number of benefits could be expected to arise from the use of a hyphenated surname made up with the surnames of each parent. One such advantage was that the use of the name accorded with the reality of life. The child had an ongoing relationship with both his parents though they did not live together. Clearly, the use of a hyphenated name is of no value in the present case.
In Flanagan v Handcock (2001) FLC 93-04, the Full Court held that:
The power to change a child's name is clearly an aspect of parental responsibility as defined by s 61D of the Family Law Act 1975. The resolution of a dispute between the parents of a child about that child's name is ultimately to be resolved by the making of a specific issues order under the provisions of s 65D which is governed by the provisions of s65E, which requires the Court to consider that the welfare of the child is the paramount consideration.
Counsel for the father referred me to the decision of Putrino & Jackson (1978) 4 Fam LR 71; FLC 90-441, where Lusink J found that the child’s Italian family had a great deal to offer him. Her Honour held that the child should continue to bear that surname and be able to enjoy the benefits of his association with that family.
The law applicable to parenting orders
The applications of both parties concern contact, the manner in which contact changeover will take place and the amount of contact the father should have with G.
Applications for parenting orders arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the child receives adequate and proper parenting to help her achieve her full potential and to ensure that her parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their daughter.
The principles underlying this object are set out in s.60B(2) of the Act. These principles include, except where it would be contrary to a child's best interests, the following:
(a)Children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development;
(c)parents share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of s 65E which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning their care.
In deciding the parenting arrangements that would promote G’s best interests the Court must consider the various matters set out in subsection 68F(2) of the Act, to the extent that each is relevant to the particular case.
Paragraph (k) permits the Court to take into account any other fact or circumstances that the Court thinks is relevant. This ensures that infinite variety of individual children's circumstances can be addressed in any orders made by the Court, and in this regard I refer to B v BFamily Law Reform Act 1995, (1997) 21 Fam LR 676; FLC 92-755.
In this case it is the Court's duty to make relevant findings of fact considering the cases of each of the parties and then apply each of the relevant subsections contained in s.68F(2) to those findings in a common sense and practical way in order to ensure that the final orders that are made result in a situation that will serve G's best interests.
The matters that are listed in s.68F(2) are as follows:
(a)any wishes expressed by the child or children concerned and any factors such as the child or children's maturity of level of understanding that is relevant in the circumstances;
(b) the nature of the relationship of the children concerned with the children's parents and with other persons;
(c)the likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from either of her parents or from any other person with whom she has been living;
(d)the practical difficulty and expense of the child having contact with people who are interested in the children concerned;
(e)the capacity of parents or any persons to provide for the needs of the children including their emotional and intellectual needs;
(f)the children's maturity, sex and background;
(g)the need to protect the children from any physical or psychological harm as a result of being exposed to abuse, ill treatment, violence or other behaviour;
(g)the attitude to the child and the responsibilities of parenthood as displayed by the relevant parties;
(i)any issue relating to family violence;
(j)those orders that are least likely to lead to the institution of further proceedings;
(k)any other fact or circumstance.
Contact
In this case the father seeks defined contact with G. The current arrangement is that the father has contact weekend with G in the absence of the mother from 6.30 pm Friday until 10 am Saturday. Then the mother is with G in the absence of the father from 10 am until 2 pm Saturday. The mother has liberty to phone G prior to dinner. The father is then with G in the absence of the mother from 2 pm Saturday until 10 am Sunday. Then the mother is with G in the absence of the father from 10 am Sunday until 2 pm Sunday. The father is then with G in the absence of the mother from 2 pm Sunday until 5 pm Sunday.
The Mother's contact weekend
The father is with G in the absence of the mother from 10 am Saturday until 2 pm Saturday. The father phones in for pre dinner telephone contact with G. The mother is with G in the absence of him from 2 pm Saturday until 10 am Sunday. The father is then with G in the absence of the mother from 10 am Sunday until 2 pm Sunday. The mother is then with G from 2 pm Sunday thereafter.
Unfortunately, in February 2004 G was diagnosed with leukemia. Although the hearing finished in September of 2003, the news of G's illness has not improved the parties’ relationship to an extent that they are able work together in light of G's illness and support her.
The parties had some negotiations and worked out an interim regime for the father's contact with G whilst she is an in-patient at the hospital and in the immediate direct care of the hospital on a strictly trial basis. This agreement was reached on 12th March 2004 with the assistance of J M, the oncology social worker.
G is currently in remission. The treatment of leukemia is conducted in different phases. The child has been receiving chemotherapy.
In addition to the above chemotherapy, G receives Trimoxazole, an anti-fungal, by oral mixture or tablets and blood tests are taken weekly by the district nurse as some treatment has been administered by the hospital at home service.
G's condition has made some progress. She still feels fatigue and is often nauseous after some of the chemotherapy. She is generally weak and is losing her hair as a result of chemotherapy. Her muscles are wasted to the degree that she has difficulty walking any distance and she tires very easily and very quickly. During playtime she needs assistance to stand or crawl to the nearest furniture to assist her to stand.
The hospital and treating medical staff have recommended to the parents that G's routine be as normal as possible. It is the mother's proposal to the father that he not exercise his overnight contact as scheduled and her solicitors advised the father, through his solicitors, that it was in her view not appropriate that contact should occur subject to G's immediate wellbeing as it is extremely difficult to make arrangements in advance. This was made in light of G having to be admitted to hospital in an emergency due to an infection or otherwise.
The father has not been supportive of this course of action. There is a lot of detail that goes into the parties' affidavits in relation to contact and previous contact that has taken place between the parties and G, much of which appears to be petty. What is important in this case is that both parents work together and co-operate for the sake of G. G is a sick child who needs both sides of her family to support her in getting well. The parties need to work out an arrangement that is going to be in the best interests of G that will ensure that both of them have regular contact and exercise a relationship with G during this time of need.
I accept that it is important that G have a normal routine according to the medical staff and that her treatment continue.
A further problem in this case is that every issue put by the father is disputed by the mother. Every issue put by the mother is disputed by the father. It makes the Court's task a lot harder and complicated when this Court must consider what is in the best interests of a child. But not only that; the child is now sick and the contact arrangements have to be more defined to accommodate the child's illness.
The mother recently, in light of learning of the child's illness, requested counsel to send up minutes of proposed consent orders to my associate.
The weekday contact arrangement that has been recently implemented between the parties is that the father, while G is an in-patient, has one and a half hours per day to spend with G during her hospital stay. The father says that this one and a half hour per day is not sufficient time to spend with G and especially as other members of his family are restricted to seeing G during that period. He says that his parents are elderly and his mother in unwell and they have difficulty in coming to the hospital during the week from 6.30 pm until 8.00 pm on every weeknight, save for when he remains overnight with G, at times provided for in the interim arrangement.
Evidence
The father gave evidence by affidavit. He gave some oral evidence in chief, by leave of the court, in reply to some matters contained in the mother’s most recent affidavit. He said that the parties had commenced to communicate by means of a communications book in 2002, but he had discontinued its use on 26th March 2003. His explanation for this step was that he found “that the communications book became a means by which we would communicate with each other about matters extraneous to G’s welfare”.[2] The father went on to say that he found that course to be inflammatory. Eventually, when the mother started to refer to the name change issue, which was already before the court, he took the course of warning her that he would discontinue the use of the book if that practice continued. He said that the mother persisted, so he stopped using the book.
[2] Transcript of the father’s evidence, 25th September 2003, page 19, beginning at line 12.
The father was cross-examined by Mr Hebblewhite, counsel for the mother. He said that he sought that contact changeover should take place within the McDonald's restaurant building and preferably not in the playground area. He was opposed to contact changeover occurring in the car park area and he cited examples of abusive and embarrassing behaviour that he said the mother had directed at him.
The father conceded that the child loved her half brother and sister and conceded that it was desirable that she spend some school holiday time with them. He expressed some misgivings about either of the siblings telephoning the child during contact, saying that if the call did not take place during the scheduled telephone contact period, such a call would be an intrusion. He said that he wanted to know why the children wanted to talk to her.
The father expressed a fear that the mother would seek to exclude him from the child's school activities. The child was due to commence school in 2004. He said that he had spoken to the principal of the school about the issue and said that the principal had expressed a desire for a Court order to set out the father's ability to participate. He acknowledged that he had read the mother's affidavit to the effect that she had already sent a letter to the school authorising his participation but said that he had not seen a copy of the letter.
The father was cross-examined about telephone contact and said that it was a contentious issue. He acknowledged that the mother's approach had been very cooperative in terms of direct contact but that her attitude to telephone contact had been mixed. He believed that the mother did not facilitate any telephone contact other than the contact provided by the existing orders.
The question of the spelling of the child's name is clearly a matter of great significance to the father. He admitted that his own first name, T is an Italian name and said that when he attended school he was known as ‘T’ or ‘T’. He did not see a parallel between that situation and that relating to his daughter. The father expressed the opinion that the question of his daughter's name had only become an issue once he and the mother separated. He said that there had been discussions between the parties about the name when the child was born, including the fact that the father's surname was to be used. As it is, the child now has both parents' surnames. The father said that the agreement between the parties was that the child's first name would be spelt with a G and that the name E, which was the mother's choice, would be included. The father admitted in cross-examination that the birth notice in the Age used the spelling with a J but said that the mother, at the time, was stressed and he did not wish to rock the boat. He has also said that he had never contemplated that anyone else would spell her name with a J apart from the respondent.
The mother gave evidence by affidavit and was cross-examined by the father's counsel, Ms Stoikovska. The mother also relied on a brief affidavit by her former husband, D P, which set out the fact that he and the mother enjoyed flexible and cooperative arrangements concerning his contact with their two children. He deposed that he and his former wife had come to their agreement through counselling and mediation without the need for litigation. Mr P was not required for cross-examination.
It is the mother's case that during the parties' relationship the father had very little involvement with the child due to his work as a barrister. The mother says that following separation, the parties agreed on contact arrangements but in the early stages the father varied the contact days, which in turn caused inconvenience to the mother. At the end of March 2003 the parties agreed that routine contact between the father and the child would occur each Wednesday afternoon and each Saturday from approximately 9 am to 3 pm, extended in April to 4.30 pm.
It is the mother's evidence that she contemplated age-appropriate contact, culminating in overnight contact taking place on alternative weekends commencing Fridays, collection from crèche, kindergarten and return Sundays at 4.30 pm and every Wednesday afternoon overnight until the commencement of crèche, kindergarten.
In her affidavit filed on 22nd September 2003, the mother proposed that, subject to suitable allowance for school adjustment, alternate weekend contact should extend to Monday morning school drop-off. These proposals were suitable to the mother as long as they correlated with contact arrangements she already had in place with respect to her other two children and their father.
The parties entered into consent orders in the Family Court on
5th August 2002. Effectively, those orders provided for overnight contact every Wednesday and alternate weekends from Friday until Sunday afternoon.
The parties entered into further interim orders by consent on 27th May 2003. Those orders provided for further weekly contact and July school holiday contact. These orders were amended to reflect the child's change of attendance at crèche to A Memorial Kindergarten. The mother says that fortnightly contact arrangements have been successful and the age-appropriate arrangements introduced have been working rather well. The mother opposes any extension of contact as she has structured her work commitments in a way that avoided the children from spending too much time in childcare.
The mother's evidence is that the child's best interests is to be served by fostering a close relationship with M and S, G's half siblings. She asserts that the child is comfortable with the current regime and understands that a similar routine applies to M and S. She also says that the child is too young to cope with an extension of contact.
In relation to holiday contact, the mother's proposal was for term school holiday contact following from the regular weekend contact and that the weekend contact continue without interruption over each holiday period, save for changeover times and suspension of Wednesday contact during school holidays to enable both parents to spend appropriate time with G.
Both parties concede that communication between them is rather poor. It is the mother's case that within a month of the parties separating, communication on the part of the father was very minimal. The mother deposes in her affidavit, filed 23 September 2003, that at changeover the father:
Either ignores me completely or frowns or scowls or glares at me. He does not address me. The father claims that my failure to greet him amounts to denigration.
Following separation, the parties agreed that changeover would take place at the former family home or at the father's brother's home where the father resided at the time. It was the mother's evidence that the child had witnessed incidents of threats, aggression and hostility on the part of the father towards the mother. For instance, at paragraph 22 of her affidavit filed on 23rd September 2003, the mother provides an account of the changeover incident where she says:
On 30 March 2002, in G's presence the father threatened to change the locks on the former home and used the words, "throw you out". Contact initially took place at the former family home and on several occasions the father pushed past me in order to enter the house. He also closed a door in my face at changeover at his brother's house on 13 April 2002. G saw this and was distressed by this behaviour. As a result I suggested a public venue for changeover. The father does not address me at changeover and his demeanour remains hostile and aggressive as deposed to above.
The mother gave oral evidence on the second day of the hearing. She gave evidence in chief, by leave of the Court, in answer to matters raised by the father. She said that, when she filled in the application to register the child’s birth, the father told her that if the child’s name were not to be spelled “G” he would not sign the document or permit the use of his surname. She said that they reached an agreement that they would use the name “J” in common usage until the child was older. She said that she was worried about the confusion that would arise if people did not know how to spell the name. She suggested “J” for common usage and “G” for official documents.
The mother said that she had always complied with the agreement that for all official purposes the child’s name would be spelled with a “G”. She said that she had asked the creche not to change the spelling of the child’s name on any official documents. She will continue to use the name “G” on official documents.
She did not propose that the father and his family should depart from the Italian way of spelling. She did not consider that the two forms of spelling would be confusing for the child. She explained it this way:
No, I’ve already had to explain to her that the reason why people keep making mistakes with her name is they don’t speak Italian, she has an Italian name and they get a bit confused because there is an Australian way of spelling it. So I think it would be a simple matter to explain to her that her father and his family can all speak Italian and so they have no trouble with the name but I don’t speak Italian, my friends, most of her friends and my family don’t speak Italian and so we use the Australian version.[3]
[3] Transcript, mother’s evidence, 26th September 2003, page 76, lines 31 to 39.
The mother is an economist by profession. She holds a Doctorate of Philosophy. She works part-time for the public service. Her part-time hours are designed to allow her to be available to supervise G. Her two other children are of school age. The mother works limited hours to fit in with school hours.
The mother said that G has a close relationship with her half brother and sister, S and M. When asked about the father’s attitude to S or M telephoning the child when she is on contact with her father, the mother said:
Unfortunately Mr D L doesn’t seem to think that the relationship between the children is all that important. He has always said that they’re only her half-brother and half-sister. G still comes back from contact quite confused and asking me what does half-brother and half-sister mean. She says ‘Why aren’t M and S my real brother and sister?’ and I’ve had to explain that.[4]
[4] Transcript, mother’s evidence, 26th September 2003, page 81, lines 31 to 36.
The father’s counsel, Ms Stoikovska, cross-examined the mother. She said that she only wanted an order for contact on Christmas Day every second Christmas day. She said that a friend called H looked after G when the child was not at kindergarten, on Tuesday mornings and Thursday afternoons.
Interestingly, the mother conceded that G loves her father and the father loves her. She said contact had worked well and G always seemed pleased to see him.
The mother’s evidence was adjourned part heard at the end of the second day. On 17th October 2003, counsel for the applicant sought leave to call another witness. This witness, one H J Sz, had been involved in the care of the child, and had been referred to by the mother in her evidence on the previous hearing day. Ms Stoikovska said that Ms S was to be called in relation to one of the proposals from her client that if he needed the odd hour of after school assistance in caring for the child, he hoped that he could rely on either his brother and sister in law or the continuation of the assistance of Ms S.
After hearing from counsel, I granted leave to call the witness, notwithstanding the fact that she was not on affidavit. In effect, this meant re-opening the father’s case. My reasons for doing so were to allow evidence of a discrete issue that I was told had arisen in cross-examination. I also took the view that here evidence should be interposed to allow the mother an opportunity to give evidence in reply to what Ms S might have to say.
Ms Stoikovska asked Ms S to comment on a statement made by the mother that she (Ms S) was happy to continue looking after G for the rest of the year 2003, but would not want to do it again. The reason given by the mother was that G was very close to Ms S’s own three-year-old daughter, and that the children sometimes played well together but on other occasions fought with each other. The mother said that Ms S had told her she found the fighting stressful.
Ms S said that if the mother needed her to care for G, even though she would be going to school, for “the occasional odd hour”, would she be prepared to care for G in those circumstances. Ms S’s answer she would:
If it fitted in with my family circumstances and what was happening.[5]
[5] Transcript 17th October 2003, page 135, line 10.
When asked if she would be prepared to assist the father in those same circumstances, Ms S was less enthusiastic, saying that she “would have to consider it very carefully”. When asked why, she commented rather acidly:
Because a chance meeting[6] in a supermarket and discussing care for next year, I find myself in court.
[6] With the father
Ms S was critical of the fact that she had been subpoenaed to attend court at very little notice, and she made it quite clear that she was not happy with the father because of this fact.
In cross-examination, Ms S pointed out that she would still have one child below school age in 2004, and she also had commitments in picking up her own children from their school, which is not the one that G would be attending. She was dubious about the convenience of an arrangement for her to collect G from school, if the need were to arise.
All in all, I formed the distinct impression that not only was Ms S quite annoyed at the father for bringing her to court at short notice, she most reluctant to make herself available to assist the father in any child-minding arrangement. In short, calling Ms S to give evidence in that way, without a clear idea of what this witness would say, was what would be described in soccer as “scoring an own goal”.
The mother’s evidence continued. She described how the child was always tired and seemed stressed. The mother put it down to picking up on the tension between her parents, but with hindsight it may well have been a symptom of the leukemia with which the child was later diagnosed.
In cross-examination about the child’s name, the mother said that people had difficulty in pronouncing it. She agreed that children would learn that the letters “ph” in the word “elephant” were pronounced as “f” but said that children were not taught that the letter “g” could be pronounced as “j”.
The mother went on to say that her own surname had been anglicised from “W” to “W”. Ms Stoikovska pointed out to the mother that her own name was pronounced as if spelled “W”, but the mother said that “W” was not an anglicised version of her name, it was a different name.
Conclusions
The best interests of the child must be the paramount consideration. This principle does not appear to have weighed heavily on the minds of either of this child’s parents, or their legal advisers, during this case. It was a dispute about contact and a child’s name that was listed for hearing over one day, and it took three days. On two of those days, the Court sat until after 5.00 p.m. in order to finish the evidence.
There was a plethora of affidavits by the parties, many of them incorrectly headed (eg, “Family Court” or “Federal Magistrates Service” or “Federal Magistrates’ Court”) setting out in excruciating detail every cross word and disagreement over almost every episode of contact, either had or missed, in a year or so.
The one witness whose evidence was not on affidavit was Helen S, whom the father’s lawyers subpoenaed to attend court at short notice. Ms S made her displeasure quite clear, and her evidence did nothing to assist his case; rather, the reverse was true. In my view, that Ms S’s evidence was a fiasco as far as the father’s case was concerned was apparent in her examination in chief, not that that persuaded the mother’s counsel to refrain from cross-examining her.
Turning first of all to the question of the child’s first name, it is difficult to understand how people in Australia’s second largest city people could be confused by spelling a child’s name in an Italian way, unless M is considerably less cosmopolitan and sophisticated than Sydney. The courts that exercise jurisdiction under the Family Law Act or state legislation concerning children are well aware that children born in the last couple of decades often posses first names of most idiosyncratic spelling or pronunciation.
Australia is a multicultural society and the community as a whole has become well used to people from different backgrounds with different names. People of Italian descent are very common in Australia, not just in the larger cities, but in country areas. I can take judicial notice that Italian food, wine, aperitifs, clothing, shoes, operas and films are well known in Australia. Italian cars have been sold in Australia for decades, including the Alfa Romeo models called “G” and “G”.
I find it difficult to accept the mother’s contention that the staff at the creche attended by the child would have difficulty with the child’s name. I note from the school documents annexed to the mother’s affidavit of 22nd September 2003 that whilst G’s cousins might have anglicised names, some of their classmates have distinctly non-Anglo names such as C, E, R and J.
The mother gave evidence that children are not taught that the letter “g” is pronounced “j” as well as “g”. In other words, I understood her to say that children learn a hard “g’ but not a soft “g”. As I immediately thought of the words “giant”, “giraffe” and “ginger”, and made a note of them, when the mother gave that evidence, I have since taken the trouble to consult the Macquarie Dictionary, Revised Third Edition. I found 18 words of non-Italian or non-French origin where the letter “G” was soft when followed by the letter “I”.
I note that the mother’s surname has itself been anglicised from the German name “W”. It is now spelled “W” and the mother says that her name has already been anglicised. Nevertheless, it is pronounced as if it were spelled “W”, which the mother says, quite correctly, is a different name. Ms Stoikovska, for the father, was making the point that the mother herself has a surname that sounds like an English name but has an idiosyncratic spelling. What, then, is the difference between that situation and a name that is pronounced as if spelled “J” but is spelled “G”?
In my view, the child has been named “G” to go with her Italian surname of “Di L” and it should not be difficult to understand in a multicultural society such as Australia. If the mother prefers to call the child “J” in their own private interactions, she is at liberty to do so, but to the world at large the child should remain “G”.
Turning to the question of contact, I take into account the matters in subsection 68F(2), so far as they are relevant. G is too young for her wishes to be taken into account. She has a good relationship with each parent. There is unlikely to be any change in her circumstances so far as parenting orders are concerned. The parties do not propose a change of residence, and neither parent is proposing to locate out of the M area.
There is no geographical difficulty in the child having contact with either parent, as they both live in suburbs of M. The difficulty arises from the parents’ animosity towards each other, which seems to have been exacerbated by the child’s subsequent diagnosis of leukemia. It was the circumstances of that illness that necessitated the appointment of a child representative after the evidence had been concluded, which is a most unusual step.
I am satisfied that the parents each have the ability to provide for this child’s physical and emotional needs. They are well-educated people, a barrister and an economist. The mother has a Ph.D and is employed by the public service. In my view, however, their mutual animosity has obscured their ability to focus on their child’s emotional needs. I found the father’s evidence about his reluctance to allow the child’s siblings to telephone her when she is on contact with him quite astonishing. I should make it quite clear that M and S may be G’s half siblings, but they are her blood relatives. She will have no full siblings unless her parents are reconciled, which seems to be highly unlikely. She has known and lived with M and S all her life. They are her sister and brother as far as she is concerned, and any attempt by the father to come between them will only cause distress to all of the children. The father said that if the siblings wanted to ring and speak to G outside a normal telephone contact time he would want to know why they wanted to talk to her. In cross examination by Mr Hebblewhite, this exchange occurred:
Q.Why can’t they have their own business without you knowing why?
A.Because G is my daughter and I’m entitled, aren’t I, to ensure that any telephone contact or other contact is appropriate?
Q. From a brother and sister who are 9 and 12?
A. Aren’t I entitled to do that?[7]
[7] Transcript, father’s cross examination, 25th September 2003, page 35, lines 29 to 35.
I drew an inference from this evidence that the father did not place a very high priority on the relationship between G and her siblings, compared to his relationship with her.
G is a child now five years old whose father is of Italian background and his mother is of a German background. Her heritage on each side is important, and neither is more important than the other. The father obviously sets great store by his Italian heritage, as he is entitled to do. I understand from the mother’s evidence that the father and his family speak Italian as well as English, which appears to me to be a very positive characteristic.
There are no relevant issues of family violence.
The parents need to consider that the responsibilities of parenthood include considering their child’s emotional needs, particularly now that she has been diagnosed with leukemia. Parents should respect each other’s position as parents. The child obviously loves them both, and needs them both. Parental conflict over the spelling of the child’s name, not even its pronunciation, and over contact issues, only serve to undermine the child’s psychological well-being. It is regrettable that the parents are unable or unwilling to recognise the needs of the child through the fog of their own conflict.
The best interests of this child indicate a consistent pattern of time spent with each parent. Alternate weekend contact should involve a pick up from school where possible and a return to school on the Monday morning, to avoid difficulties between the parents at contact changeover. I have defined school holiday contact very tightly, so that both parents can work out exactly when it is supposed to start and finish. That way, they can arrange their work commitments accordingly. As G’s birthday falls on 8th January, I have prescribed that January school holiday contact starts on the afternoon of that day, so she can see both of her parents on her birthday. She will spend Mother’s Day with her mother and Father’s Day with her father.
These are the reasons for the orders that I make. Nevertheless, Court orders cannot cover every possibility. The parents must use their undoubted intelligence to ensure that their child’s best interests come first, before the continuation of their own conflict. G has two parents. She needs the love and understanding of both of them.
Application to amend under the “slip rule”
Immediately prior to the release of these reasons for decision, the mother’s solicitors wrote to my Associate seeking that I should apply the “slip rule” to amend what they described as several errors in the Orders. I have indicated my reluctance to do this until I had released these reasons. I note that the father’s solicitors have opposed any submissions being taken on this matter until the reasons have been made available.
I have made one amendment, however, which relates to the child’s date of birth. The correct date of birth, as recorded in her Birth Certificate, is 8th January 1999, not 9th January 1999. This was a typographical error which somehow escaped my notice, and for which I apologise.
I have corrected this error, and I release a fresh set of orders showing the correct date of birth. The significance of Order 6(d) would otherwise not be apparent.
I have also amended Order 23(b), to correct an obvious typing error. For 9.00 “p.m.” the order should read 9.00 a.m.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman.
Date: 13 December 2004
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