F and S
[2001] FMCAfam 49
•19 April 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & S | [2001] FMCA fam 49 |
| CHILDREN – Name of child. |
| Applicant: | J A S |
| Respondent: | T M F |
| File No: | ZB 2330 of 2001 |
| Delivered on: | 19 April 2001 |
| Delivered at: | Newcastle |
| Hearing Date: | 12 April 2001 |
| Judgment of: | Rimmer FM |
REPRESENTATION
| The Applicant in person |
| The Respondent in person |
ORDERS
That each of the MOTHER and the FATHER:
(a)Hereafter exclusively use the name of S as the surname of the CHILD, C J S-F, born 14 March 1997;
(b)Cause all applications for registration and documents relating to the CHILD at her Child Care Centre, Pre-School, School, Centrelink, Medicare, medical records or bodies with whom the CHILD deals with from time to time and in the future to record her name as S.
That all other applications be dismissed and removed from the pending cases list.
IT IS DIRECTED:
That a copy of the Reasons for Judgment delivered today be prepared and made available to each party in due course.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
ZB 2330 of 2001
| J A S |
Applicant
And
| T M F |
Respondent
REASONS FOR JUDGMENT
Applications
The father, T M F, filed an application on 22 March 2001 which was by way of an amended application seeking a specific issues order relating to his daughter, C J S-F, born 14 March 1997. In particular, he sought a final order that the child's name be changed back to that which was registered on the birth certificate after he birth, that is, her original surname of S-F. The father appeared on his own behalf.
In her response to the amended application, which was filed by leave on the day of the hearing, the mother seeks that the father's application be dismissed. That application was accepted by the Court, even though not in the correct form. The mother also appeared on her own behalf.
The parents have had a number of prior proceedings in the Family Court of Australia and unfortunately, as is often the case in such matters, each of them now find communication in a productive manner as parents, almost impossible.
Background
There are a number of agreed facts. The father is 26 years of age. He was born on 20 March 1975. He is a sports manager and involved in competitive beach volleyball which he plays at a state level. He is, therefore, a committed and talented sports man and he pursues this both through his employment and during other times outside his work. This has quite substantial calls on his commitments of time.
The mother is 32 years of age. She was born on 27 June 1968. She is a primary school teacher. She currently undertakes teaching at primary schools in B on a relief basis and such employment is part-time. At other times she is the full time carer of the child, C, and receives financial assistance both by way of child support and payment of Centrelink benefits.
The parties commenced cohabitation on 1 January 1997. At that time the mother was pregnant with the child, C. The parties became engaged to be married but then separated on 20 March 1998 and before any marriage occurred. The separation occurred after just 12 months of cohabitation and when C was just over 12 months of age.
During the relationship, the parties lived on the Sunshine Coast. Initially after separation the parties and C all continued to reside on the Sunshine Coast. For about 3 years now the mother has relocated and lives with C in B. The father remains living on the Sunshine Coast.
As a result of orders made by Registrar Spelleken in the Family Court of Australia at Brisbane on 16 January 2001, largely made by consent, the father has regular contact with C. This takes place each third weekend from between 2 to 3pm Friday to 5pm Sunday, for one half of all school holidays and on special occasions such as father's day, birthdays and at Christmas.
The competing proposals of the parties are that the father seeks an order that the mother use the surname of S-F only for the child. Although the mother seeks no formal orders, other than that the father's application be dismissed, she intends, unless otherwise ordered, to continue to call the child by the surname of S.
The law
The leading authority in relation to change of children's surname is the Full Court decision of Chapman & Palmer reported in FLC 90510 at 77687. Helpfully, Waddy J, in the decision of Harvey & Chenworth, unreported Family Court of Australia case heard on 22 September 1998, examined at paragraphs 10 to 25 some of the relevant decisions since the decision of Chapman & Palmer. These are Beech & Stimler, D & B, In the marriage of Mahoney & McKenzie and Fooks & McCarthy.
The paramountcy principle, that is, that the best interests of the subject child is the paramount consideration, extends to this decision by virtue of section 65E of the Family Law Act. As Waddy J observed, through his analysis of the cases, the relevant case law points me to some 15 discrete factors for consideration in matters such as this, where appropriate to the facts of a particular matter.
From those 15 factors identified, I regard in this matter that the most relevant factors, in addition to C's best interests, to be the following:
a)The short and any long term effects of any change in her surname;
b)The degree of identification that the child now has with both her father and mother;
c)Any confusion or embarrassment which may arise for the child if her name is changed or not changed;
d)The attitude and relationship of the parties;
e)The likely reaction of the parents to any decision;
f)The actions of the parents in giving the surname in the first place, bearing in mind that there is no issue of estoppel which arises in relation to registration of a name.
The evidence
The father's evidence, summarised, was as follows:
a)That he cannot recall any discussions the parties may have had about what C's surname should be, at or about the time of her birth and the registration of her birth;
b)That he cannot recall any discussions that he and the mother had that C and the mother should have the same surname. He cannot recall that he had discussed or agreed with the mother that upon marriage she would call herself a hyphenated name of S-F. He cannot recall that this was agreed because the mother wanted to retain her connection with her own surname of S in her employment with the Queensland Education Department;
c)That he was very busy with his work at the relevant time and would have just signed any documents the mother put in front of him about the child’s surname. He did recall and understand that C’s surname was to be a hyphenated name of S-F;
d)That he was aware that C was called by the name of S at her child care from in or about 1999/2000;
e)That it was only in December of 2000 that he became aware that C's name had been formally changed on her birth certificate to S and he had never been consulted by the mother, nor agreed with her, in respect of this change;
f)That notwithstanding that he has brought this application, he had not given consideration to any distress or confusion C may experience in having her surname changed back to S-F after three years of using of the surname S;
g)Although he does concede it may and is likely to cause confusion for C in changing her surname after that period, he believes it is C's right to have the name she was given at birth of S-F, as it gives her a connection with both her mother and father;
h)He believes the mother has changed the child's name in an endeavour to sever C’s links with him, her father, and that the mother has not forgiven him for ending their relationship;
i)He believes that the mother has deliberately hidden the name change on C's birth registration from him. The father's evidence about this is a little unclear and somewhat contradictory. He says he was told by the Department of Families, Youth and Community Care over the phone, that either proper procedure had not been taken with respect to the application for change of name, or that the mother had lied in her interview.
In paragraph 5(d), he states that he was told by the Department that under present guidelines, as a part of considering a change in the child's name, the Department generally, do not consider a change of name as appropriate where the father pays child support and has regular contact. He then has said that the Department states however, that those guidelines did not come into effect until June 2000 and if proper guidelines had been followed, then the name change would not have occurred.
When one looks at the independent evidence about this however, which is an annexure of a letter from the Department of Families, Youth and Community Care dated 12 February 2001 and marked as attachment B in his affidavit, the Department states as follows:
“Following our recent conversation I wish to confirm that the change of surname for C from S-F to S was approved on 19 May 2000.”
This, of course, means the name change on C’s birth registration was completed before the Departmental change in the guidelines in June 2000. I again quote:
“The interview and assessment was conducted with C and her mother, Ms J S prior to the Departmental guidelines in June requiring Departmental Officers to seek the views of the birth father.”
It is clear from this that it was not necessary for the mother to lie to the Department about the father and his involvement in C’s life. A Departmental policy requiring officers to seek the views of the birth father, simply did not exist and were not in place when she made her application and the change of name registration was completed.
j)Given C will have contact with him and his family, each 3 weeks for the weekend, half school holidays and on other special occasions, the father believes retaining the surname of S-F will help maintain and strengthen C's relationship with him and his family;
k)That he supports his daughter, both financially and emotionally;
l)That it is confusing for C and not in her best interest to have two surnames, that is, S and S-F. In relation to this matter, I will be making an order today and that will be the surname that both parents will be obliged to use for C. There will be no question of C having two surnames in the future;
m)That S-F is the surname that the parents agreed to give C at birth and she has always been known as that in his community and to now change it is unfair to C;
n)That the hyphenated name, gives her a shared identity to both parents. To change it to S, cuts off his name and his role in C's life.
The mother's evidence was:
a)That she and the father discussed that C should have the same surname as she would have after marriage at the time of C's birth and prior to registration and that was the hyphenated name of S-F;
b)That they did register C's surname in this manner as at that time she was engaged to be married to the father and the parties had agreed that she, herself, would be called by a hyphenated name, S-F after their marriage;
c)That the party’s agreed about the hyphenated name as she, the mother, in all likelihood would be a teacher at the same Primary School C would be attending in her early years at school. She said they agreed that it would be more important than usual, for she and C to have the same surname in those circumstances;
d)That she wished to be known by a hyphenated name which retained her maiden name of S as part of her surname because she had worked hard to obtain a good reputation in the Education Department and wished to continue this to be recognised in her working life;
e)That when the parties separated she changed C's name in day to day usage to her surname of S because the parties had not married and she was still known as S and that thereafter, since C was a year old, C has been known as C S;
f)That since separation the father has continued to create unnecessary difficulties for her. In particular, that he has filed four separate applications in the Court during the past three years. That two of these were applications for contravention of a child order which he did not proceed with and, recently, an application for contact when she had already agreed to all his requests apart from one small issue surrounding whether his mother could be responsible for collection and delivery;
g)The father has known C has been known by the surname S while living with her for the past three years. That despite three separate applications to the Court on other matters, he only raised this matter by way of an amended application after contact issues were raised and resolved, his original application being for contact variations;
h)That the father had asked her a long time ago whether C was known as S at child care. That she had told him quite openly that this was the case. That since then the father has seen C's bags and clothes labelled for child care with the surname S only and has never raised this as an issue with her until late last year;
i)While the mother conceded that she did not tell the father that she had formally changed C's birth registration, he has for some considerable time been aware that in her everyday life, C's surname has been S;
j)That she followed proper legislative requirements of the Department of Justice and Attorney-General, those of the Registrar of Births, Deaths and Marriages in Queensland and those of the Queensland Department of Families, Youth and Community Care whereupon consent was granted for the change of C's birth registration. She said in her evidence that as the father had known C was called C S in her everyday life for at least two years before the application, she did not even consider that he would raise any objection to her changing the birth registration;
k)The father has regular contact with C and that this has been obtained and extended largely by agreement between the parties. That the father refused to discuss reasonably matters pertaining to C's welfare and is demanding and threatening about what he perceives are his legal rights. In this regard, she gave evidence about a threatening e-mail she received from him dated 14 December 2000.
i)This e-mail is attachment K to her affidavit sworn 11 January 2001. I have not set it all out but the relevant part reads as follows:
“Dear J,
Your arrogance and ignorance of the situation is incredible. If you wish to be like this then you can make sure that you are living on the Sunshine Coast as per the Court order. You are only digging a deeper grave for yourself by denying C and I the proper contact required. This will make your position in Court less favourable for yourself and, J, if you end up in gaol for breaking the Court order, then I will be given custody of C.”
ii)The mother says she saw this as a threat by the father with respect to C's continuing to reside with her and that it was distressing.
l)That the father is currently $1105 in arrears of child support payments and is currently seeking to reduce his child support liability by a departure application;
m)That C has been known as C S for the past three years by her friends, her day care, her kindergarten and in the B community. That given that no approach has been made by the father either directly to her or to the Court to change this during that time, that it is not in C's best interests to do so after that length of time;
n)That C is confused and worried about her father's questioning of her about her name. That C is confident in knowing who she is, as C S. That she has a best friend at child care who is also called C and because of this and to distinguish between the two young girls, the child is always referred to by her full name of C S at child care. That it will be distressing and disturbing for C to suddenly have her surname of S, which is the name that she has identified with all her life, changed to S-F;
o)That the father's name is and will always be on C's long form birth certificate as shown in the attachments to her affidavit from the Registrar of Births, Deaths and Marriages in Queensland. C knows very well who her father is and will continue to know him and his family and their important place in her life through regular contact;
p)That should the Court require it, she will comply and change C's surname in everyday usage to S-F but she believes it will not be in C's best interests to do so.
Issues of credit
It is clear that both parents are devoted to the best interests of their child. The mother is and has been the primary carer of C since birth. She has a strong and real attachment to her and C has the same attachment with her mother.
The father has also maintained contact and I accept that he has a good relationship with his child. He is devoted to her well being.
I am, however, satisfied that what the mother says about the parties agreement about the need for C to have the same surname as she at the time of her birth is correct. The father's evidence about this important issue was evasive. His evidence was that he could not recall such important matters and that he was too busy with his work commitments to give the time and attention to the matter, simply preferring to sign documents that the mother put in front of him. I prefer the mother’s recollections about this matter.
I am not saying that by way of criticism of the father. It appears from the party’s evidence that at that particular time, the father was very young, somewhat ambivalent about the pregnancy and less than committed to the concept of being a father and being in a committed relationship with the mother. It seems clear that, he did at that time and for a short period thereafter, leave things with respect to C's birth registration very much to the mother.
In so finding, I am not suggesting that the father has not since that time, developed a strong bond with C. I do not suggest that he does not now, or has not for a very considerable period of time since C's birth, had a strong commitment to her and his continued relationship with her and his role as her father.
I also accept that at the time of deciding C's surname would be the hyphenated name of S-F, the parties were intending to marry. I accept that it was agreed that upon marriage the mother would use the same surname as C, a hyphenated surname of S-F. I accept that this was agreed because it was seen as necessary to provide C with the same name as her mother through C's primary school years as it was anticipated by each of them that the mother would be a teacher in the primary school C would attend.
I am satisfied that the father, if he was not directly told by the mother, has for a considerable period of time known from other means, that C has been commonly known by the surname of S in her daily life. I am satisfied that he was very distressed and brought his application to change C's name just after he discovered that the mother had changed C's name on her birth certificate and that he discovered this in December 2000. I accept this was notwithstanding that he had known for some time that C was commonly known in her everyday life, by the surname of S, within the mother's community, by her friends and at her day care and kindergarten.
Unfortunately, I must say that I was concerned at this evidence; that he felt that it was his right and C's right for C to have the name she was given at birth and for that to include his name of F. I was concerned at his concession that he had not reflected upon the effect that such a change may have on C if, after such a period of time, she was required to be known by a different surname. It was clear to me, while Mr F is a very loving and caring father, he is largely motivated in this current application to right the wrongs that he perceives the mother has perpetrated rather than considering as his first priority C's best interests. Clearly the first priority must be the child’s best interests not any perceived rights of a parent.
I am satisfied that the tenor of his evidence, both in his affidavits and oral evidence, together with the manner in which he communicates with the mother about C's welfare in e-mails supports this clear finding.
I am satisfied that the mother did not consult the father with respect to the change of name and that, clearly, she had an obligation to do so. I am satisfied that it was a unilateral act which she took and that it was clearly a matter that the father had every right to be consulted about, given that the parties have joint responsibility for the long term care, welfare and development of this child.
Other factors that I have identified
The short and long term effect of any change of name upon C
I am satisfied that an order requiring the child to be known by the name which was originally on her birth certificate as the hyphenated name of S-F will be a major change in this little girl's life. I accept that she knows and identifies herself as C S. Given her age at the time her name was changed by the mother, this is the only name she has ever known herself by. I accept that she is known and has been known for most of her life, in her community in B, her day care, by her friends and at her kindergarten, as C S.
I accept that this period forms most of her young life and most of the life that she would understand or within which she could have had any recognition of the importance of name to her identification. I believe that the short- term effects of a name change will, if the current conflict about this issue continues between the parents, extend and have a long term adverse effect for C.
The degree of identification the child has with her mother and father
I find that C identifies strongly with both her mother and father. She clearly knows that she is a child of her mother, J S, and her father, T F and that is the important issue for C. She lives predominantly with her mother. She has contact regularly, every three weeks on weekends, during school holidays and at other times, with her father. This then provides C with contact with her father's extended family. I am satisfied that C knows very clearly where her place is in all of these family complexions, despite any name differences that have existed between she and her father most of this time.
Any confusion or embarrassment which may arise for the child
I am satisfied that given C has always known herself to be C S, that a change to her surname will create confusion for her. It is true, that it is a reality of contemporary families in Australia today, that many children do not share the same surname as their fathers, mothers, step-parents, or step siblings. This is often the case whether the children live in intact families living together, by choice or after parents separate and re-partner. It is simply a fact of modern life. This can be dealt with effectively for the child by parents with some sensitivity.
I accept this can be more easily achieved and in a manner which minimises the confusion and embarrassment to C when she is on contact with her father. I accept that it will be a greater difficulty for C, to suddenly be known by a surname which she has never known herself by before in her life in B. I accept that this will cause confusion and embarrassment for her with respect to how she identifies herself with her carers, friends and in the community where she lives most of her life.
I am satisfied that given the time that has now elapsed since her name has been commonly known as S, that this is a critical factor in this decision.
I am further satisfied that coupled with these facts, C’s mother is likely to be a teacher at her primary school during her early primary years. This is a further important consideration for this particular child.
The attitude and relationship of the parents
Although C has had regular contact with her father, the tenor of both parties' evidence suggests that he has not always been available to put contact with C ahead of work and considerable sporting commitments. It is also clear that the parties unfortunately, at this point, enjoy poor communication and that some events, both at and since their separation, have damaged the level of trust and respect that each parent holds for the other. This, of course, is most unfortunate for C, who is only 4 year of age.
I find, despite the father's evidence to the contrary, the mother is now genuinely struggling to find a different way for she and the father to communicate about C's ongoing welfare. It was clear that she believes that this is essential and that it should be undertaken by the parties before and as a precursor to any Court applications being made by the parents. She is supportive of attending mediation to do this. I found that she was supportive of the regular contact regime now in place and the current orders were largely by consent.
The father's evidence suggested to me that perhaps he is a little over-focussed on his rights and what he can achieve from Court orders. I do accept that he genuinely seeks to maintain and develop his relationship with C and that in the past he has been extremely frustrated in his attempts to do that and that it is his perception, the mother has contributed greatly to this.
It would be beneficial if he could join with the mother in seeking to find a different way to resolve these ongoing parenting issues. These issues will only become of greater significance and importance to C’s wellbeing as she becomes older. I certainly hope that these parties do follow the course of action suggested by the mother, that is, looking to counselling or mediation as a precursor to bringing any further applications in the Court.
Obviously, if those avenues do not assist, the Court is here as a last resort to assist parties and take responsibility from them for the making of decisions concerning their child's welfare, as is the case in this instance.
I am satisfied the father does need to develop some greater insight than he demonstrated in his evidence in relation to the difficulties for a 4 year old girl, as C is. In particular, the impact upon C’s sense of identity and generally for her, in her day to day life that will arise from changing her name. I accept that giving evidence in Court and conducting the matter without representation is difficult for any parent. I accept that it may be that the father does understand and have sensitivity to these matters to a greater level than he was able to demonstrate in the witness box. I can only however determine this matter on the basis of the evidence and presentation of a party in the hearing before me.
The likely reaction of the parents
I believe that the father will be distressed if C's name remains as S as he sees the hyphenated name containing as part of it his name of F as providing as an important connection in his relationship with her. However, I would not expect that this would result in contact between he and C ceasing. I certainly do not accept his evidence or submission that this will mean that he and his family are cut out of C's life.
For C, the name is her sense of identification with herself. For C, her relationship with her father, T F, is something quite different. I do not believe for one moment that the fact C has a different surname from her father will or has in the past in any way impeded, interrupted or interfered with the good relationship she now shares with her father. This situation has been the fact about C’s name for many years. The evidence of both parties supports a finding that, notwithstanding the different surnames, C has a good relationship with the father and loves him. The parties agree that C also has a good relationship with her extended paternal family. These relationships have continued to grow and flourish despite C being known each day by a surname that does not include in it, the paternal surname of F.
I also find that the mother will be distressed if C's name is changed to S-F. However, she gave evidence that she will accept the Court's decision in this regard. I am satisfied that her strong attachment to C and the child focussed parenting attitude she displayed in her evidence would enable her to adjust and deal with this as best she can for C, if the Court were to order a change in C's surname.
The actions of the parties in giving the surname in the first place
As I have already found, I am satisfied the parties intended C to have the same name as her mother. I have found the parties agreed to do this as C was likely to go through her primary years at the same school where her mother was teaching. When the parents did not marry, the mother's name remained S and did not change to S-F. I am satisfied the mother then unilaterally changed C's surname to S as she felt this reflected the agreement the parties had reached at the time of registration.
I am satisfied that the father has known for some time C was called S but did not object until he became aware her birth registration had been changed in a formal sense.
Conclusions
I am required to make an order that is the best interests of this young girl, C, who is 4 years and 1 month of age. She is hopefully unaware of the level of debate between her parents about her name. I am required to make that assessment on the evidence at this time, not upon the evidence at the time when C's name was changed.
Since C was quite young and certainly before she would have had any real appreciation of her surname. She has been commonly known in her everyday life by the surname of her mother, that of S. Her name was registered at birth as a hyphenated name of S-F.
The mother changed the formal registration and that took effect in May of 2000. She did so without the consent and knowledge of the father. The father says, whilst he has known for some time that C has been commonly known by S, he only became aware that a change to her registered birth certificate was made unilaterally by the mother after he telephoned the Registrar of Births, Deaths and Marriages in December 2000. He says it was at that time that he amended his application and sought an order that C’s name be changed back to the hyphenated name registered on her birth certificate of S-F.
I have considered all the evidence and the factors that are relevant in this decision for C. Clearly C's welfare and best interests are the most important determinant. I am satisfied that the reality of C's life is that she is to herself, now after three years and at her current age of four years, C S. She is clearly aware that she has a father T F and has a loving relationship with him. That relationship has not in any way been affected in the past three years by C having a surname that does not contain as part of it, his surname, F
The confusion she is most likely to feel if her surname is now changed, is in my view the most critical consideration for the Court in this particular matter. Had the father taken this action much earlier and at a time when C's sense of identification with her name was less significant to her, then the impact upon C would not have been the important consideration that it is today after three years have passed.
It flows from my findings therefore that I am not satisfied that it is in C's best interests that her name in common usage or otherwise be changed from S to S-F.
This surname which I require the parties to use for C will, subject to C turning 18 and resolving for herself as an adult any preference, become the birth name of the child by common usage. It will be consistent with the name that is now on her birth registration.
I am satisfied it is clear from the evidence that the long form birth certificate of the child will always contain and show that her name was originally S-F. It will show the change of the surname by way of a notification at the base of that certificate, that is, that her surname has been changed to S only.
I am aware that if a short form birth certificate is obtained that that will show her name as S only. I attach no significance in this matter to the manner of the birth registration. The important issue for C is the name that she will be known by and that will be used for her and by her in her day to day life. That is what she, for a considerable period of time, will identify herself through.
I propose therefore to order that C be known by the name of S as it reflects her best interests and accordingly the orders I make are:
(1)That each of the MOTHER and the FATHER:
(a)Hereafter exclusively use the name of S as the surname of the CHILD, C J S-F, born 14 March 1997;
(b)Cause all applications for registration and documents relating to the CHILD at her Child Care Centre, Pre-School, School, Centrelink, Medicare, medical records or bodies with whom the CHILD deals with from time to time and in the future to record her name as S.
(2)That all other applications be dismissed and removed from the pending cases list.
(3)That a copy of the Reasons for Judgment delivered today be prepared and made available to each party in due course.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Rimmer FM
Associate:
Date:
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