Elkin and Cheney
[2008] FMCAfam 1361
•15 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ELKIN & CHENEY | [2008] FMCAfam 1361 |
| FAMILY LAW – Child aged seven – mother has Tanzanian background – father has Cypriot background – parties never lived together – parties have poor relationship – child born in France – father’s identity not registered on birth certificate – parties in dispute regarding child’s given name – child registered as “[E]” as first given name – mother seeks this name – father asserts child identifies as “[G]” and is known by him and his family as such – matters considered – best interests. |
| Family Law Act 1975, ss.68LA |
| Taylor v Taylor (1979) 143 CLR 1 Beach & Stemmler (1979) FLC 90-692 |
| Applicant: | MR ELKIN (formerly known as Mr Loder) |
| Respondent: | MS CHENEY (also known as Ms Maltby) |
| File Number: | ADC 5093 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 8 December 2008 |
| Date of Last Submission: | 8 December 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 15 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | No appearance |
| Counsel for the Independent Children’s Lawyer | Mr T Stephen |
| Solicitors for the Independent Children’s Lawyer | Legal Services Commission |
ORDERS
That for all purposes relating to his education and medical treatment and other issues arising to him from the application of the Australian Passports Act 2005, the Social Security Act 1991, the Health Insurance Act 1973 and all matters relating to taxation and other social security entitlements the child herein be known as [E.G.N.Elkin-Maltby].
All other applications herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Elkin & Cheney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 5093 of 2007
| MR ELKIN (formerly known as Mr Loder) |
Applicant
And
| MS CHENEY (also known as Ms Maltby) |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Elkin “the father” was born in 1960 in South Australia. His parents were both born in Cyprus. In the past, the father has changed his surname to “Loder”.
The father has also, from time to time, adopted the given name of [T]. In part, no doubt, these changes came about for ease of reference. However, since October of last year, he has resumed the name set out above, which appears on his original birth certificate.
Ms Cheney “the mother” was born in Tanzania in 1970. Cheney is a surname the mother has assumed through marriage. Her original surname is Maltby.
The parties met in Adelaide, in late 2000, and had a brief relationship. The mother has a child, [X], who lives with her father, in France. The mother has spent regular periods of time, living in France, in the past.
The mother fell pregnant to the father in December 2000. The parties have never lived together and terminated their relationship in January of 2001. The mother returned to France in July 2001.
The mother was delivered of a child in Paris in September 2001. The birth was registered at the Paris Town Hall on 10 September 2001. The child concerned was registered as [E.G.N.Maltby].
The child’s mother was registered as Ms Maltby. No registration was made as to the identity of the child’s father. This remains a major bone of contention, so far as the father is concerned.
The mother returned to Adelaide in early 2002. The father expressed doubts that he was the child’s father. These doubts resulted in the parties and the child concerned undergoing a parentage test, which concluded, beyond any shadow of scientific doubt, that Mr Elkin was the father of the child concerned.
Since 2004, there have been complex and vitriolic proceedings between the parties, in both France and Australia, concerning appropriate care arrangements for this child. The current proceedings are primarily concerned with the given name, which the child should bear henceforth.
It is the father’s position that the mother introduced the child to him and to members of his family as [G], when she returned to Australia in 2002. From the father’s perspective, this is the name he has known his son by in the period since, although he himself would not have chosen the name [G], which does not reflect his Cypriot background. It is also his case that this is the name by which the child knows himself.
On the other hand, it is the mother’s position that the child should be known as [E], the name which appears first on his French birth certificate and by which name he is currently known at his primary school, [J] School,.
Other subsidiary issues arise regarding the child’s surname. From the father’s perspective, it is appropriate that the child have a combination of his parents’ surnames either Elkin-Maltby or Maltby-Elkin. However, from the father’s point of view, the more pressing issue is concerned with whoever the child should be known as [G] or [E].
It is the father’s case that the child regards his name to be [G] and it is causing him some great level of angst to be referred to as [E].
Mr Elkin contends that the mother has determined to call the child [E] as a result of her perverse and stubborn personality, but most particularly so that she can be at odds with him.
These proceedings are directed to resolving this dispute between the parties. As in all things to do with a child, in determining whether he should be called [G] or [E], the best interests of the child concerned remain the paramount or most important consideration.
Background
The father commenced these proceedings, in the Family Court at Adelaide, on 28 May 2004. He sought orders that would see the child concerned living predominantly living with him. The child is referred to, in the various documents filed by the father, as [G.Maltby].
The mother responded to this application on 23 June 2004. A solicitor prepared her response. The child is referred to as [G], in the various documents filed by the mother, at this time.
On 28 June 2004, Judicial Registrar Forbes made an order that the mother be restrained from removing the child from either the Commonwealth of Australia or the State of South Australia without a specific order of the court.
The child was referred to as [G.Maltby] in the order concerned. The child’s name was placed on the watch list maintained by Australian Federal Police at all points of departure from Australia.
The mother’s solicitor appeared at court on 28 June 2004 but the mother herself did not. It seems that, a few days earlier, she and the child had left Australia and returned to France.
The mother’s then solicitor filed a notice of ceasing to act on or about 16 July 2004. On 19 July 2004, Judicial Registrar Forbes made orders, in the mother’s absence, that the child described as [G.Maltby] should live with the father. A recovery order, pursuant to section 67U of the Family Law Act was issued in respect of the child on 30 August 2004.
The father sought the assistance of the Attorney General’s Department to have the child returned to Australia, from France, pursuant to the Hague Convention on the Civil Aspects of Child Abduction. Both Australia and France are signatories to this convention.
On 1 March 2006, the mother was summonsed to appear before the High Court of France at Reims to show cause why the child concerned should not be returned to Australia, pursuant to the provisions of the Hague Convention.
At that stage, the French court had determined that the mother was aware of the father’s proceedings against her in Australia and had nevertheless determined to leave the country with the child concerned.
However, before the High Court in France could finish determining this application, the mother voluntarily returned to Australia with the child and has remained in this country with him in the period since.
On 9 August 2006, the father made an application that the mother deliver up the child to him. The mother responded to this application on 22 August 2006. She sought orders that the child, whom she referred to as [E.G.N.Maltby], live with her.
On 8 August 2006, the mother enrolled the child at [C] School in Adelaide. He was enrolled at this school as [E.G.Maltby].
On 21 August 2006, orders were made by Judicial Registrar Forbes that the child, referred to as [G.Maltby] should live with his father on alternate weekends and overnight on alternate Mondays. It was also ordered that he be independently represented in these proceedings.
In an affidavit filed by him on 13 November 2006, after referring to the fact that the child had been away from him, in France, for almost two years, the father deposed as follows:
“I am also extremely concerned about the mother’s use of [G]’s name. I believe that [G] should be referred to as “[G. Elkin-Maltby]”. The use of the name respects and acknowledges his dual cultural heritage and also his mother and I. The use of this name enables him to relate to his sister whose name is [B. Elkin-Nerli] (Nerli being her mother’s surname).
Prior to the mother taking [G] to France we referred to our son as “[G]”. Since the mother’s return however, she has begun to refer to him as “[E]”. This is confusing for the child who refers to himself as [G]. I suspect that the mother refers to him as “[E]” in her home as my daughter’s mother (who is a friend of the mother’s) referred to him as “[E]” whenever she saw him at my home.”[1]
[1] See father’s affidavit filed 13 November 2006
The mother responded to this affidavit on 12 December 2006, she deposed as follows:
“In relation to the child’s name, I say that the father refers to him as [G] and I refer to him as [E]. This is not confusing for the child. He responds to both names. I am opposed to the child’s surname being changed as to do so would be confusing for him, and accordingly not in his best interests.”[2]
[2] See mother’s affidavit filed 12 December 2006
Since around about December of 2006, the father has acted on his own behalf in these proceedings. He sought that the presumption of equal shared parental responsibility should be applied to the parties’ child and he should live with each of his parents on an equal time basis.
Thereafter, the proceedings between the parties have become increasingly strained and difficult. It is my apprehension that the issue of the child’s given name has become emblematic of the struggle between the parties. Certainly neither has shown any willingness to compromise on the matter.
There have been several interlocutory proceedings, between the parties, in the period since September 2006. In these proceedings the father has referred to the child as [G] and the mother has referred to him as [E]. Amongst other issues, the parties have been in dispute about which school the child should attend.
Dr Bollard, a psychologist, prepared a family assessment report, at the instigation of the independent children’s lawyer, in August of 2007. In his report, Dr Bollard said as follows:
“There is a dispute between the parents in relation to the child’s first name with the father insisting that it is [G] whereas the mother insists that it is [E]. Thus, hereafter in the present report I have referred to the child as [G] when referring to information provided to me by the father and used the name [E] when referring to information provided to me by the mother.”[3]
[3] See Family report dated 15 August 2007 at page 4
Dr Bollard described the father as having a “theatrical personality”. He did not however doubt the devotion the father had for the child and the strength of the bond between the two. Dr Bollard also noted that the issue of the child’s name was one which evinced “a great deal of passion” on the father’s part.
The child was interviewed and observed with each of his parents on 21 May 2007 and 22 May 2007. When with his father, in response to a question from Dr Bollard regarding his name, the child replied “[G]”. A name he reiterated, when Dr Bollard asked if he was sure it was not “[E]”.
To Dr Bollard, the mother indicated that the names [E] and [N] were the names of prophets in Swahili. It was her position that the child responded to either name and was not confused by this dichotomy. However, in this interview, the child apparently indicated to Dr Bollard that he preferred to be called [G].
Overall, it was Dr Bollard’s impression that the child had a close emotional bond with his mother. In the interview between the child, Ms Cheney's and Dr Bollard, the child again reiterated his preference to be called [G].
In his report, Dr Bollard provided the following opinion:
“… I formed the view that the child had a close attachment and healthy emotional bond with each of his parents and I believe it would be in his best interests in respect of future development and psychological wellbeing to preserve this bond. In order to achieve this objective I believe the child needs to spend more time with his father than is currently available under the present order.
There is also a need to improve communication and trust between the parents for any future living arrangements to be workable. Associated with this are the issues of the child’s school placement and name.”[4]
[4] See Family report dated 15 August 2007 at page 17
As a result of this assessment, Dr Bollard recommended that the child be cared for in a joint parenting arrangement, living with his mother and father on a week about basis. Dr Bollard conceded that such an outcome was not without its difficulties, particularly given the “entrenched communication problems” between the parties.
In respect of the issue of the child’s name, Dr Bollard reported as follows:
“I appreciate that this matter has a high level of significance for each parent, partly due to cultural and religious factors. From my point of view, I am most influenced by the fact that the child’s name on his birth certificate, certificate of baptism and Centrelink documents is [E.G.N.Maltby]. The father has argued for a different name, the best sense of which I can make is [G. Elkin-Maltby]. The reasons offered by the father for his name are that [G.Maltby] appears on the child’s passport and Medicare card. In addition he postulated that it provided a permanent connection between himself and the child’s half-sister, [B]. However, on the information available to me the father no longer uses his original name and in any event, I obtained the impression that the child was not particularly bothered one way or another whether he was referred to as [E] or [G].”[5]
[5] See Family report dated 15 August 2007 at page 18
This recommendation, by Dr Bollard, led the parties to agree to an interim parenting regime for the child, on 11 September 2007, whereby he lived with each of his parents on a week about basis. It is interesting to note that, in the orders, which were made by Judicial Registrar Forbes, the child is referred to as “the subject child”.
The proceedings were not finalised in the Family Court. On 17 October 2007, they were transferred to this court on the basis that only “one discrete” issue remained between the parties. No doubt this was the issue of the child’s name.
Regrettably, that has not proved to be the case. Between the time the matter has been transferred to this court and now, complex issues have arisen between the parties. The level of animosity and antipathy between them remains unabated. In such circumstances, it is impossible for them to resolve such an elementary matter as the name which they will utilise to identify their child on a day to day basis.
It seems clear to me that the father will continue to call the child [G] and most likely the mother will refer to him as [E]. Against this background, there are some worrying indications that the child is not travelling particularly well emotionally.
In early May of 2008, the mother raised allegations that the child concerned had been subjected to sexual abuse, whilst in the father’s care. This led to the suspension of the shared care arrangement. It also necessarily delayed the trial, which had been scheduled to occur in respect of the issue of the child’s name.
As a result of the allegations of sexual abuse, the child was examined by a clinical psychologist, Dr E. Dr E examined the child in June of 2008. She reported as follows:
“Although [E] was unable to clearly describe plausible accounts of sexual abuse, his sexualised behaviour suggests that he may have been exposed to inappropriate material, either as a witness to adult sexual behaviour or through other media. Alternatively, sexualised behaviour may be a response to experiencing extremely distressing or stressful events. Taken together with [E]’s disorganised and aggressive play, and the concerns of his school about aggression, it may be that [E] is displaying these behaviours due to the confusion and conflict that he experiences as a result of his parents continued acrimony. It is noted that Ms Cheney's appeared to be convinced that [E] has been sexually abused, and thus may have inadvertently influenced him to confabulate as a consequence of her questioning, in order to please her. This information should be interpreted with extreme caution, because, as stated, it is impossible to clarify with any certainty whether [E] has in fact suffered sexual abuse.
Ms Cheney's reported that [E] no longer exhibits sexualised behaviour.
Both Mr Loder and Ms Cheney's spoke of [E] with affection, although at times Ms Cheney's referred to him as “the child” in a somewhat detached manner. There were numerous discrepancies in the information provided to CPS by the parents. These included inconsistencies regarding whether Ms Cheney's voluntarily returned [E] to Australia, or whether there were orders for his return, inconsistencies regarding Ms Cheney's’s leaving [E] with Mr Loder while overseas, and the extent of [E]’s sexualised behaviour. What is apparent from interviews with
Mr Loder, Ms Cheney's and [E], is that [E] suffers emotionally as a result of animosity between his parents. It is problematic that Mr Loder and Ms Cheney's seem unable to agree on something as fundamental as [E]’s name.
Given Ms Cheney’s concerns and her fearfulness regarding [E] having contact with his father it would be useful for Ms Cheney's to receive some support in this area. Ms Cheney's could benefit from contact with a therapist or counsellor who could assist her to come to terms with her own anxiety and worry regarding the possibility of abuse and to assist her in managing her emotions regarding whether [E] has contact with his father.
[E] demonstrated confused and disorganised behaviour and affect during his three interviews. He clearly articulated that he wants his family to stop fighting, and expressed a poignant regret that his parents “don’t be nice to each other and say sorry and they don’t shake hands and stuff”. [E] also demonstrated some expressive and receptive language difficulty, which is apparent in the quotations cited in this report. This may be due to English being his second language, and may contribute to difficulties behaviourally at school.”[6]
[6] See Report of Dr E dated 1 August 2008 at pages 14 & 15
The independent children’s lawyer was supportive of the child being parented, in an equal time regime, with the parties having equal shared parental responsibility for him. As such he consented, with the parties, to the making of the orders on 11 September 2007. However, with the raising of the issues relating to sexual abuse, neither party was willing to consent to this arrangement on a final basis.
The father wished orders to be made that would see the child living predominantly with him, whilst on the other hand, the mother wished orders that would see him living predominantly with her. Accordingly, the parties competing applications were fixed for a four day hearing commencing on 8 December 2008.
Subsequently, following the release of Dr E’s report, Families SA determined that there was no cogent evidence to indicate that the child had been subjected to any sexual abuse.
Against this background, again with the acquiescence of the independent children’s lawyer, the parties agreed to reinaugurate the shared care regime on a final basis. Orders to this effect were made on 8 August 2008.
On this occasion, it was also ordered that the child continue to attend [J] School and his enrolment at that school not be changed without the written consent of both parties.
The issue of the child’s name remained unresolved. For that reason, the following orders were made:
“The issue of what the appropriate given name of the subject child be fixed for final hearing for one half day on 8 December 2008 at 10:00am.
The applicant pay the hearing fee or obtain a Remission Certificate in respect thereof by close of registry filing on 3 November 2008.
The applicant file one affidavit only in support of his position in support of the child’s given name which affidavit shall not exceed four double spaced typed pages by close of registry filing on 10 November 2008.
The respondent to file one affidavit in answer in support of her position in support of the child’s given name which affidavit shall not exceed four double spaced typed pages by close of registry filing by close of registry filing on 24 November 2008.”
The mother and her then legal representative were present, in court, when this order was made. The father was also present and filed his affidavit of evidence, in respect of the name issue, on 11 November 2008.
The mother’s former solicitor filed a notice of ceasing to act on 2 December 2008. This notice indicated that the parties’ matter was next listed before the court on 8 December 2008.
The mother did not comply with the earlier order and has not filed any further affidavit material on her behalf. In addition, she did not attend at court on 8 December and nor did she provide any explanation.
The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.[7] In this case, I am satisfied that the mother has been given an adequate opportunity to be heard and to file material on her own behalf.
[7] See Taylor v Taylor (1979) 143 CLR 1
Mr Stephen, the independent children’s lawyer was of the view that the court should finalise the proceedings on 8 December 2008, notwithstanding the non-attendance of the mother. The father urged the court to the same conclusion.
It is the father’s position that the child’s best interests will be served if the court makes an order that he be known as [G. Elkin-Maltby]. He is however, open to [E] being the child’s second given name.
The law requires Mr Stephen to formulate a position, based on the evidence available to him, which he thinks will be in the child’s best interests.[8] It is Mr Stephen’s position that he is marginally in favour of the child being known as [E].
[8] See Family Law Act at section 68LA
Mr Stephen is uncomfortable at the prospect of the child’s surname being resolved in the context of the present proceedings, given the terms of my earlier order, which confined the hearing to issues regarding the child’s given name.
However, if the mother had been present at court, he would have suggested that it would have been appropriate for his surname to be a hyphenated combination of his parents’ surnames.
Given the extreme passions the issue of the child’s given name has raised between the parties, Mr Stephen informed me that he would not be adverse to the court picking some anodyne name for the child so that neither party would feel that either she or he had gained an advantage over the other or been slighted, in some way by the court, in the resolution of this issue.
In all the circumstances of this case, although it might be appealing to take some such middle course between the parties’ positions, I think such an outcome would be an abrogation of my responsibilities. Rather, I must analyse the parties’ competing positions and determine which of them I think is more likely than not to serve the child’s best interests.
The legal principles applicable
The issue of which name the child should bear is also governed by the principles contained in Part VII of the Family Law Act. Like all issues to do with [G] in this court, the guiding principle for the determination of the name issue is which outcome is likely to be in the child’s best interest. In Fooks v McCarthy[9] Warnick J said as follows:
“There is only one principle, that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.”
[9] Fooks v McCarthy (1994) FLC 92-450
The factors to which earlier courts most frequently have had regard in determining whether there should be any change in a child’s surname or for the surname to revert back to that which it was previously, include the following:
a)the short and long term effects of any change in the child’s surname;
b)any embarrassment likely to be experienced by the child if his or her name is different from the parent with custody or care and control;
c)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
d)the effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
e)the effect of frequent or random changes of name;
f)the contact that the non custodial parent has had and is likely to have in the future with the child concerned;
g)the degree of identification that the child concerned has with his or her non custodial parent;
h)the degree of identification, which the child concerned has with the parent with whom he or she lives;
i)the desire of the father that the original name be restored.[10]
[10] See Chapman & Palmer (1978) FLC 90-510 and Beach & Stemmler (1979) FLC 90-692
The Evidence
The mother has not provided any recent evidence in respect of the issue. However, her case can be summarised as follows. The child’s given name was registered in Paris as [E]. This was her intention at the time and is the name which the child has had in the period since.
In support of this position, she points to the fact that the child was baptised as [E.G.N.Maltby], at [church omitted], on 13 October 2002.
Mr Stephen produced the baptismal register to this effect.[11][11] See exhibit 1
In addition, it is the mother’s case that the child is referred to as [E] in the Hague Convention proceedings in France. No doubt this is a reflection of the child’s birth certificate and the fact that, due to his place of birth, there was some possibility that he had a claim on French citizenship.
The mother also points to the fact that the child was enrolled at
[S] School and the [C] School at Adelaide as [E].
It is also the case that the child has been known as [E], at [J] School, since the early part of this year. The circumstances of the school’s adoption of this name are controversial.
In support of his case, the father points to the fact that the child travelled on a passport which indicated that his first given name was [G]. I have not seen this passport but Mr Stephen does not dispute this assertion and believes it to be true.
In addition, Mr Elkin points to the fact that the child’s medicare card also indicates that the child’s first name is [G]. Mr Stephen rightly points out that the father was almost certainly the author of this particular document.
Most importantly, it is the father’s case that the child was introduced to him, by the mother, as [G]. In deference to her views, he went along with this name, as did his extensive family.
As previously indicated, as a person with a Cypriot background, [G] would not have been his first preference for his son’s given name. According to Cypriot custom, the child would have had the given name of his paternal grandfather.
It is also the father’s case that the child himself identifies his name to be [G]. In support of his position, he points to the fact that the child was apparently filmed for television being introduced to the then Leader of the Opposition, Mr Rudd and when asked what his name was, he “proudly and loudly replied [G]!”.[12]
[12] See father’s affidavit of evidence filed 25 June 2007
The father points to this fact and to what the child said to Dr Bollard during the family assessment process. It is his case that the child has always regarded his name to be [G] and is discomforted and stressed by the use of any other name.
It is my impression that the father continues to have an extremely poor view of the mother, particularly as a result of what he believes was her criminal abduction of the child to France, which resulted in him not being able to see the child for almost two years. He regards
Ms Cheney's as being an unmitigated liar and asserts that she has decided to call the [E], essentially out of spite for him.
The father remains bitter that no formal steps have been taken by the mother to rectify the child’s birth certificate by the insertion of his name onto it. In this regard, he points to the fact that an order has been made by the court to this effect. Again, on his case, this is more evidence of the mother’s recalcitrance in respect of court orders.
As far as the father is concerned, the child’s name is [G]. This is the name which is used by all the paternal members of the child’s family, which out number maternal family members, certainly so far as Australia is concerned.
I have no reason to think anything other than that the father will continue to refer to the child as [G], regardless of whatever order the court may make. Similarly, my impression of the mother is that she is capable of an equal level of stubbornness and may continue to refer to the child as [E], if she believes it suits her.
The polarised and acrimonious circumstances of the parties, so far as something as elemental as the name of the child was concerned, placed the school authorities in a difficult position. It was clearly absurd that the child be called [E] in the week he was in his mother’s care and [G] in the week when he was in his father’s care.
In these circumstances, Mr S, the principal of the [J] School sought advice from the Catholic Education Department. Ultimately, this advice seems to have been that the school should adopt the name reflected on the child’s birth certificate. This it did, notwithstanding the father’s strenuous objections.
The child’s behaviour, at school, has been difficult and challenging from time to time. As a result the school has developed an action plan, in writing, to deal with this behaviour. He is described as [E.Maltby] in this action plan.
Accordingly, I have no reason to think anything other than that the child’s teachers refer to him as [E], whilst he is at school. No evidence has been provided to me as to whether the other children at the school and his particular friends refer to him as [E], [G] or indeed something else.
Mr Stephen’s position is highly influenced by what has happened at the child’s school. He is marginally in favour of the child being known as [E]. More importantly, Mr Stephen thinks that the child’s best interests will be served best if the litigation between his parents is concluded one way or the other.
Conclusions
The most problematic aspect of the child’s life, at present, is the ongoing and endemic conflict between his parents. The dispute about his name is emblematic of this conflict.
Both the father and the mother are strong minded personalities, who have little if any respect or regard for the other or his or her point of view. As such, in my estimation, there exists a very real possibility that neither the father nor the mother will take any notice of the order of this court, regarding the child’s name, if he or she does not think it suits his or her cause or personal preference.
Names, particularly nick-names grow organically. It is a common phenomenon that individuals bear names which are not recorded on their birth certificate or otherwise legally recorded. Through a process of usage or the individual appeal of a name, it sticks to the person concerned and becomes his or her own.
It is a common phenomenon, within Australia, that a person will use his second given name in preference to his or her first name. The reasons for this are manifold: perhaps to avoid confusion with another relative who bears the same name or out of individual preference.
Again, individuals have different names, which they use in different circumstances. Within the intimacy of a family, he or she may have a particular family name. That individual may use another name again at school and another again for formal purposes.
The use of a particular name will not affect the essential quality of the person concerned or his or her relationship with any particular person. A name is just a name. The child in this case will remain the son of
Ms Maltby and Mr Elkin, whether he is called [G] or [E]. A name does not change a person.
As Juliet famously said:
“Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What's Montague? It is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What's in a name? that which we call a rose
By any other name would smell as sweet;”[13]
[13] see Romeo and Juliet Act II Scene 2
The child in this case will know who he is, whether he is called [G] or [E]. It may well be the case the he regards himself as having both these names and answers to them both. Certainly, both appear on his birth certificate and, at least on one level, the importance of these names for the parties depends on the order in which they appear on his birth certificate.
To Dr Bollard, the child identified as [G]. However, it was Dr Bollard’s impression that he answered to both names and was not greatly troubled by their interchange. Certainly, I do not think that he will be confused if he is called [E] by his mother and [G] by his father and paternal family. He will know who he is.
Accordingly, I do not think that the child is likely to be embarrassed or confused if he is called [E] by his mother and [G] by his father. At some stage in the future, when his sense of identity is more firmly developed and he is more assertive of personality, he may assert to those who love and cherish him that he wishes to be known by one of these names, in particular, or perhaps even another one. That is a matter for him and the future.
I do not propose to make any specific order requiring either of his parents to refer to him personally by any particular name. In my view, this is a matter for their personal judgment, particularly what name they believe has adhered to the child and what his own particular preference is. Indeed, his preference may change depending upon circumstances.
In my view, my authority, so far as the child’s name is concerned, is limited to the formal or official context, where it would seem appropriate there be consistency. Otherwise, how the parties refer to the child, in the intimacy of their respective domestic circumstances, is a matter for their individual discretion.
The child’s school has determined that he will be known as [E], in its records. His teachers refer to him by this name. It is this name which appears on his school reports and on the school roll, unless I deem some other name more appropriate.
At this stage, I do not think it is likely to assist the child if there is a chopping and changing of his name for the purpose of scholastic and other formal records. In my view, it was clearly inappropriate that he have one given name, when he was in the care of the mother and another given name, when he was in the care of the father.
Considerations of ordinary common sense must dictate that he have one predominate given name for the purposes of his education and other official purposes, when necessary.
It is not beyond the bounds of possibility that, as time unfolds, another name will attach to him, as a result of common usage. But again, in my view, that is a matter for the future not for me.
[J] School have, for logical and pragmatic reasons, determined that the child should be known as [E], the name which appears on his birth record and baptismal certificate. I see no pressing reason to change this name, with which the child is obviously familiar.
It also seems to me that this is the most logical and obvious resolution of the issue in this case, particularly given the level of difficulty which is likely to arise in amending the child’s formal birth record to something different.
Accordingly, for official purposes, such as education, the issue of a passport in future, social security and tax purposes and health insurance, I propose that the child’s first given name be [E] and his second given name be [G]. The name [N] is important to the mother.
It can be his third given name.
In terms of his surname, in order to emphasise his connection to both the Cypriot and Tanzanian aspects of his background, I propose that his surname be Elkin-Maltby.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 15 December 2008
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