Faizan & Jameel
[2021] FedCFamC2F 194
Federal Circuit and Family Court of Australia
(DIVISION 2)
Faizan & Jameel [2021] FedCFamC2F 194
File number(s): PAC 4926 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 15 October 2021 Catchwords: FAMILY LAW – Parenting – best interest of child – significant parental conflict – mother to have sole parental responsibility for the child – father to spend time with the child on a graduating regime – name change – airport watchlist – restraint ordered. Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 65DAA, 117
Births, Deaths and Marriages Registration Act 1995 (NSW), s 28Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer [1978] FamCA 86
Jepson & Fleming [2018] FCCA 400
Mazorski & Albright [2007] FamCA 520
Mayes & Denning [2017] FCCA 1754;
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Sander & Hearn [2012] FMCAfam 812
Slater & Light [2011] FamCAFC 1Division: Division 2 Family Law Number of paragraphs: 60 Date of hearing: 19, 25 February 2021, and 21 April 2021 Place: Parramatta Appearing for the Applicant: In Person Solicitor for the Respondent: Shedden & Associates Counsel for the Respondent: Ms Rebehy Solicitor of the Independent Children’s Lawyer: John Spence & Associates Counsel for the Independent Children’s Lawyer: Mr Greenaway ORDERS
PAC 4926 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: MR FAIZAN
Applicant
AND: MS JAMEEL
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
15 October 2021
THE COURT ORDERS THAT:
(1)All previous parenting orders, except the final orders made by consent on 21 April 2021, are discharged.
(2)The child X Faizan (male) born in 2018 shall be henceforth known as X Jameel-Faizan.
(3)The mother Ms Jameel is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X Faizan (male) born in 2018 be now registered as X Jameel-Faizan born in 2018.
(4)Pursuant to s.28 (5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 2 herein.
(5)The Court directs that the mother forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
(6)The mother shall have sole parental responsibility for the child X born in 2018 (“X”) provided however that she promptly informs the father, and keeps him informed in writing of all matters relating to:
(a)The full details of the daycare/pre-school or schools which X may from time to time attend, together with notice in writing of any proposed change; and
(b)The full details of any medical treatment together with the name of the treater.
(7)X shall spend time with the father as follows:
(a)Until X turns 4 years:
(i)In Week 1:
, each alternate weekendfrom Saturday at 9am until Sunday 5pm; and(ii)In Week 2: from after daycare/pre-school (but no later than 5pm) on Tuesday to the commencement of daycare/pre-school on Wednesday.
(b)Until X commences school:
(i)In week 1: from after daycare/pre-school (but no later than 5pm) on Friday to 5pm on Sunday; and
(ii)In week 2: from after daycare/pre-school (but no later than 5pm) on Tuesday to the commencement of daycare/pre-school on Wednesday.
(c)Once X commences school and during the school term:
(i)In week 1: from the conclusion of school on Friday to the commencement of school on Monday (or 9am if not a school day); and
(ii)In week 2: from the conclusion of school on Tuesday to the commencement of school on Wednesday.
(d)On X’s birthdays each year for a period of 2 hours as agreed between the parents and failing agreement from 3pm to 5pm.
(e)On Father’s Day from 9am until 5pm.
(f)On religious occasion such as Eid-ul-Fitr and Eid-ul-Adha each year for a period of 6 hours as agreed between the parents and failing agreement from 9am to 3pm.
(g)Such other times as agreed between the parties in writing.
(8)For the purposes of changeover:
(a)The father shall collect X from daycare/pre-school/school and return him to daycare/pre-school/school except on the days when X is not attending daycare/pre-school/school; and
(b)Otherwise, the father shall collect X from and return him to the mother or her nominee at Hungry Jacks at B Street, Suburb C, unless otherwise agreed between the parents in writing.
(9)The parents shall communicate by SMS messages in respect of parenting decisions concerning X unless the matter is urgent, in which case the parties will communicate by phone.
(10)Should X’s time with the father occur on any of the following days:
(a)21 March – D
(b)11 July – Imamat Day
(c)13 December – Birthday of Spiritual Leader
then the father’s time is suspended from 9am that day and X shall be returned to the mother’s care.
(11)Except in an emergency, the father is restrained from taking X to hospital or medial practitioner other than the child’s usual general medical practitioner as nominated by the mother without first consulting the mother.
(12)Each of Ms Jameel and Mr Faizan and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X Jameel-Faizan (formerly known as X Faizan) born in 2018 from the Commonwealth of Australia.
(13)X Jameel-Faizan (formerly known as X Faizan) born in 2018 be and is hereby restrained from leaving the Commonwealth of Australia.
(14)It is REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.
(15)Upon expiration of the period referred to in Order 14 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.
(16)Within 6 months, the parents are to each pay the Independent Children’s Lawyer’s costs fixed in the amount of $4,866.
These orders have been amended pursuant to Rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Faizan & Jameel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are parenting proceedings in relation to the child X Faizan born in 2018. The parties to the proceedings are the applicant father, Mr Faizan and the respondent mother, Ms Jameel.
At final hearing, a proposed minute of order was handed up by the Independent Children’s Lawyer. Of the 24 proposed orders, 15 orders were agreed between the parties. By consent, those orders were made by the Court.
The particular issues which remained in dispute are as follows:
a.Parental Responsibility;
b.What time the child should spend with the father during non-block periods;
c.Changeover;
d.The child’s name; and
e.The father’s involvement with the child’s medical needs.
RELEVANT LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (see for example Slater & Light [2011] FamCAFC 1 at [45]).
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]). The focus is not on the relationship as such, but on the benefit the relationship might have for the child (McCall at [122].
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms (MRR v GR [2010] HCA 4 at [15]).
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is not only that discussion does not mean consideration (Banks & Banks [2015] FamCAFC 36) but also because the issues to be determined by the Court were significantly narrowed at the conclusion of the evidence and before submissions.
EVIDENCE OF THE PARTIES
There are a few agreed and/or uncontroversial facts between the parties, as far as relevant they are as follows:
a.The father was born in Country E in 1985 and is currently 36 years of age.
b.The mother was also born in Country E in 1987 and is currently 34 years of age.
c.The mother migrated to Australia in or about 2013 on an employer sponsored Visa.
d.In or about 2014, the parties met through a mutual friend, and developed their relationship via social media. At the time, the father was living in Country E and the mother was living in Australia.
e.The mother visited the father in Country E in or around 2014, 2015 and 2016.
f.The parties married in 2016 in City F, Country E.
g.The father visited the mother in Australia in 2017 and relocated to Sydney from Country E in or about August 2017.
h.In or about March 2018, the father moved to City G for employment.
i.Their only child X Faizan was born in 2018.
j.The parties separated on a final basis on 18 April 2018 and divorced on 16 September 2019.
k.The father relocated to Sydney from Perth on 22 November 2019 having originally relocated there after separation.
The mother and Independent Children’s Lawyer propose for the mother to have sole parental responsibility for X provided however that she promptly informs the father, and keeps him informed about all matters relating to X’s education and medical needs. The father, in his most recent minute of order marked exhibit 11, seeks for the parties to have equal shared parental responsibility for matters concerning X’s health and education.
The parties all propose for X to spend time with the father in accordance with a graduated regime during non-block periods, although how that exactly would look is not agreed.
Mother’s Evidence
The mother was represented throughout the hearing. She was cross-examined by the father and Counsel for the Independent Children’s Lawyer.
The mother’s case in summary is that:
a.The father was a perpetrator of family violence during the relationship and continues to seek to control and undermine her post separation. The mother says that during her pregnancy with X the father would verbally abuse and denigrate her saying things like “you are an international whore” and “your mother is a whore, you both sleep with so many men”. She further alleges that the father on several occasions has threatened to kill her and take X to Country E.
b.During an incident that occurred between the parties in or about October 2017, the father tore the mother’s nightdress. The father conceded under cross-examination that this had occurred. He said that the mother was not actually wearing the nightdress and that he tore the nightdress (after grabbing it from the cupboard) in response to the mother breaking all his cigarettes. Furthermore, the father’s affidavit filed 26 November 2018 reads:
…I know the difference between western clothes and non-decent clothes. Nighty is not a decent dress to wear in front of every one. I sometimes smoke and she did not like when I smoke. I tore her nighty because one day before she destroyed all my cigarettes. I told the same thing to police as well.
c.In 2017, an Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother, which expired in December 2018. The mother reported to the family consultant that:
67.…during an argument between herself and Mr Faizan about the religion for X, Mr Faizan stated, “(he) would murder me to take the child away.” Ms Jameel reported that Mr Faizan then left the home and telephoned the police and told that police that she had been “nagging him” and was “violent” towards him. She reported the police arrived at the home and she told them everything that had happened. She reported that police wanted her to make a statement against Mr Faizan so that they could arrest him. She reported that she was too scared to make a statement, due to the possible repercussions for Mr Faizan, however, the police still applied for the ADVO.
d.The father continues to criticise the mother and her capacity to meet X’s needs. The father throughout these proceedings made a number of criticisms about the mother’s perceived shortcomings (which he continues to maintain), including that he is not completely satisfied with the general health and hygiene care that the mother provides to X.
The mother says that the parties have been, and continue to be, unable to communicate effectively about the care of X. The mother’s trial affidavit goes to a number of examples where the father has been difficult to deal with. She says that on one occasion the father had requested to spend time with X on his own birthday, in circumstances where he was due to spend 6 hours with X the next day. The mother proposed to swap the days so that X spent time with the father on his birthday as opposed to both days. The father declined to swap the days and time occurred in accordance with the orders. However, it is also the mother’s evidence that in December 2020, she was able to facilitate, by agreement, extra time with X and the father.
The mother makes the further following complaints about the father:
a.That after she told the father that she was toilet training X he failed to cooperate and continued to put X in nappies, which confused X and delayed his training.
b.That the father changes X into clothes that he has bought, and on 29 December 2020, X returned to her wearing clothes too small for him which caused X to have bad rashes on his thighs.
c.That there have been numerous of occasions where the father has advised the mother close to the conclusion of his time with X that X was sleeping and would be returned when he was awake, sometimes hours later.
The mother says that she is very supportive of the relationship between X and the father. She says that she has photographs of the father with X, herself with the father and X in her home, which has not been easy for her.
The mother submits that the father has an adverse impact on her and how she parents X, such that she feels undermined, belittled and unsupported by the father. The mother says that this constant denigration and undermining has created anxieties for her, anxieties which she now seeks professional assistance for. Further, the mother submits that the high level of conflict and distrust between the parties would otherwise rebut the presumption of equal shared parental responsibility and support an order for sole parental responsibility in her favour.
The Court finds that the mother was a credible witness and accepts her evidence.
Father’s Evidence
The father was self-represented throughout the proceedings. The father was cross-examined by Counsel for the mother and Counsel for the Independent Children’s Lawyer.
The father’s case in summary is that:
a. During the parties’ relationship, the father supported the mother both financially and emotionally. The father says that he routinely gave the mother money via bank transfer, bought her expensive gifts, and contributed to daily expenses.
b. The mother has perpetrated some family violence, including beating the father with her hands and his laptop. The father says that the mother has previously threatened to contact the police to lodge a false complaint against him. As proof, the father provides the following lone text message from the mother in his affidavit filed 26 November 2018 (which formed part of exhibit 1):
Text message sent by Ms Jameel on 26-02-2018 at 11:23:19 PM
I am calling the police and tell him you have threatened me to murder and take the child… and will file for separation this week… you may pack your bags and go back to people who have stabbed you … the people who claim to love you the most… this is what you deserve !!!
c. The father accepts that an ADVO was made against him in 2017 which expired in December 2018, however he makes clear that this was a “one off incident and did not involve any physical violence”. He further submits that this “one off incident” was an incident of heated argument and that this had occurred prior to X’s birth.
d. The father moved from Perth back to Sydney to maintain a meaningful relationship with X, and that he has availed himself of every opportunity to spend time with X since relocating. As well and prior to his move, the father says that he also travelled from Perth to Sydney every month to spend time with X.
e. The father has raised a number of complaints regarding the mother’s ability to meet X’s needs. He has throughout these proceedings, corresponded with the mother’s solicitors about such concerns he says they have never been taken seriously by the mother. The father, amongst others, raised the following complaints:
i.He noticed an extra piece of skin on X’s penis, which appeared to have blistered overtime (the father provided photos to the mother’s solicitors for reference). This issue was a reoccurring concern for the father.
ii.He noticed a red mark on X’s ear and cheeks, and that the skin on X’s fingers were peeling (the father provided photos to the mother’s solicitors for reference). Those issues all relating to dry skin.
iii.He observed some serious rashes on X’s inner thighs to which he applied some rash cream (the father provided photos to the mother’s solicitors for reference). Further, the father, in email communication with the mother’s solicitors (marked exhibit 3) says that:
It appears that the rashes developed over a few days and adequate attention and due care was not taken. It is, therefore, requested that your client must take proper care of such rashes until they soothe completely, especially considering his eczema.
Further, there is a tiny red mark below X’s chest. It was communicated by X that there might have been an incident where hot tea spilled on his chest while he was sitting on his mother’s lap. Fortunately, there was nothing serious. But drinking hot beverages close to children is extremely dangerous. Your client and all the people living in her house have to be tremendously cautious and careful and should NOT drink hot drinks and beverages while taking X on a lap or while he is close by.
(emphasis in original)
iv.On 19 October 2019, he noticed that X recently had a haircut and was not given a proper shower and that “he was not thoroughly clean” as he had hair all over his body, nose and ears (the father provided photos to the mother’s solicitors for reference).
v.On 2 and 3 November 2019, he observed X to have a wound on his knee which began to scab (the father provided photos to the mother’s solicitors for reference). The father demanded an explanation on “how this happened to my son?” and why the mother failed to use ointment or bandages to care for the wound.
vi.He noticed X’s finger and toe nails were not adequately trimmed (the father provides photos to the mother’s solicitors for reference). The father emailed the mother and asked her to “kindly make sure that X’s nails are properly trimmed”.
f. The father says that he is a responsible father who is able to meet X’s emotional and physical needs. It is also the father’s evidence that he currently pays monthly child support payments directly to the mother in the amount of $1,517.
It was submitted by the father that the email exchanges between himself and the mother’s solicitors about X arose in circumstances where he was residing in Perth and was spending limited time with X. Now having completed parenting courses including Circle Security, he appreciated that he should have taken care of those concerns himself, which he says he is now doing after moving to Sydney.
In respect of parental responsibility, the father maintains that whilst he consents to the mother having sole parental responsibility for X, he seeks an order for equal shared parental responsibility for X in respect of health and education. The reason for this is that he believes that he should have a say regarding these matters and that it should not be “one way communication from mother to father, just telling that this is what has been happened”.
Where the two are in conflict, the Court accepts the evidence of the mother over that of the father. The Court finds that the father gave evidence which at times was self-serving and that he lacked the capacity to self-reflect.
The Family Report of Ms H
In evidence before the Court is a report prepared by Ms H, who was cross-examined at the final hearing.
A number of recommendations were made by Ms H dependant on the Court making certain findings. The recommendations remained after cross-examination.
COURT’S DETERMINATION
Parental Responsibility
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA).
The parties’ relationship was of very short duration, and peppered with periods of physical separation. Whilst the parties were still in a relationship shortly prior to X’s birth, the father was working away from home in City G. The parties did not have a lengthy period of time together, and even while they were together their relationship was not a happy and stable one. At the time these proceedings commenced, the father had moved to Western Australia, and approximately one year later returned to reside in Sydney. At final hearing, the father lived in Suburb J and the mother in Suburb K, both suburbs in Sydney but some distance apart.
At all relevant times, there has been significant dispute and conflict between the parties.
The father has engaged in behaviours which are denigrating of the mother and has remained critical of the mother in relation to what are perceived petty shortcomings as to her ability to provide for the child’s basic needs. He presented as petty-minded, self-absorbed and incapable of considering the mother’s feelings or X’s needs.
This was amply demonstrated by his questioning of the mother through emails about issues such as the length of X’s hair or the length of his nails. His answers in cross-examinations were to the following effect:
There were some concerns I have raised in my email. It’s not about blaming. I just highlighted the matter, to take precautions. That is what I have always done.
(T:19.02.21 p16 at line 30).
The father’s modus operandi was that when the child came into his care, he would undress him and check to make sure that he did not have anything of concern, and he would then usually take photos if he found something concerning. As noted earlier, such photographs included the child’s genital area, nose and ears and were sent to the mother’s solicitors with a query about the mother’s care of the child in respect to the father’s “concerns”.
It was further amply demonstrated by the case that he ran, for example by moving the Court for orders that the child spend every weekend with him and only Monday to Friday with the mother, in circumstances where both of the parents are in full-time employment. The father did not move away from this stance until it became apparent to him towards the end of the hearing that the Court was unlikely to make such an order, not the least of which arose as a result of questions put to him in cross-examination by the Independent Children’s Lawyer. Even the move away from such a stance was done in a way which was not child focused, but rather self-focused:
MR FAIZAN … So the next thing is spending time… I am more than happy to make arrangements on alternate weekends that mother can also spend time, quality time with X (sic), because she’s also working. But at the same time, I would like to have an overnight stay during a weekend on that off weekend…
(T:21.04.21 p35 lines 33-35)
HER HONOUR: So you can tell me about – I understand that you still want X (sic) to spend every weekend with you, that that’s the order you’re… asking the court to make…
MR FAIZAN: Yes, you’re right, but there is some addition that I would like to mention here.
(T:21.04.21 p 36 lines 5-12)
…
HER HONOUR: Have you now changed your mind?
MR FAIZAN: Yes, based on the hearings, whatever we have discussed so far.
(T: 21.04.21 p 36 lines 33-35)
…
MR FAIZAN: Okay. So, in general, I do agree with the – first of all, I will start the amended application that I made that… that I submitted before the first actual trial that was in February. So after that, whatever trial hearing happened, and whatever ICL has put in for his orders or his suggested orders, based on that, I would like to go with the ICLs orders, but with few amendments. And what are these amendments I can tell you.
(T:21.04.21 p40 lines 1-6)
…
MR FAIZAN: So I would like to have weekly visitations. I would like to have one – as I mentioned, that I am happy the mother can spend one weekend and I can spend the other one. And in having said that, in that case, I would like to have one weekday in the second or off weekend, which the ICL has mentioned in his orders.
(T:21.04.21. p42 lines 40-43)
While the Court appreciates that the father has no legal training, and that English is not his first language, the expressions which he employs and the manner of his speech were such that it was his “happiness” which was the focus rather than X’s best interest. It was as if he was gratuitously permitting the mother to have time with his child on a weekend, rather than showing insight that it was important for X to have quality time with the mother on days that she was not working and on days that he would not be at day-care and school.
It is an attitude that permeated the father’s evidence.
The parents remain unable to communicate effectively. The main reason for this is the father’s continuing attitude of superiority over the mother.
The child will remain living with the mother and she will remain his primary care-giver. It is important that she have the capacity to make important decisions about the child’s long term needs without her being overborne and/or without being badgered. This will not occur if the parties are to have equal shared parental responsibility.
As such, and in all of the circumstances, it is in X’s best interest that there be an order for the mother to have sole parental responsibility for the child.
Time between X and the father and changeover
X is a child who has a close and loving bond with both of his parents.
The mother facilitates and encourages the child’s relationship with the father, not only by ensuring that time has been facilitated but also by ensuring that the child’s home is reflective of the warm relationship the child and the father have, for example by having the father’s photographs displayed in the mother’s home. The mother recognises the importance of the father to X, and proposes that he spend meaningful time with the father.
While the distance between the parents’ homes is a small barrier (considering the time it will take the parties to travel not only between their homes, but also for the father to travel from his place of employment to the child’s day-care and later school), the father has indicated that he is considering moving his residence closer to where the mother and the child live. His work also appears to be flexible such that it is practical for the child to spend time with the father from after school or day/care in the afternoon and for the father to collect him of an afternoon for that to occur and to deliver him back to day/care or school of a morning.
Due to interim orders which have been in force for some time, X is accustomed to spending weekly time with the father. While overnight time is not only supported by the parents, but it is also supported by the evidence of the family report writer, if X was to spend alternate weekends only with the father given his age and developmental stage, the period of time in-between without seeing his father would be too long. As such, it is appropriate that X continue to spend time with the father each week. As he starts school, this will also allow the father to be involved in his usual daily activities as well as any extra-curricular activities he may be engaged in.
In terms of time with each of his parents on the weekend, it is important that X has the benefit of spending such time with each of his parents. This will allow both parents to be involved in some down time, to be able to engage in weekend activities and for X to enjoy spending time with his parents other than when they have just completed a full day’s work.
As X is only 3 years old, the time he spends with his father will increase incrementally to take his developmental needs into consideration. The time will also increase to before and after school once he commences formal schooling, not only to allow him the benefit of having the father involved in school drop offs and school pick-ups, but also to ensure that there is the least possibility of conflict between the parents.
Specific Issues
One of the matters raised in the father’s case was that he wanted to be able to take X to the doctor or hospital if medical attention was warranted in his view. The history of the matter suggests that the father has taken the child to see a doctor for minor issues and not always because there was genuine concern, but rather because of some perceived shortcoming in the mother’s capacity to meet the child’s needs.
As such, while it is important for the father to be able to take the child to see a doctor or other allied professional, it is important that this be done in a manner which is consistent with the medical or allied care X has been provided with to date. Consequently, the father will be restricted to obtaining medical treatment for X (other than for emergencies) from the child’s usual general medical practitioner as nominated by the mother, or otherwise with the mother’s consent.
Child’s Name
X presently only has his father’s surname. The mother asks the Court for an order that his surname be hyphenated to include her surname, or alternatively that a middle name be added to include her surname.
The principles regarding a change of name for children were explained by the Full Court in Chapman & Palmer [1978] FamCA 86.
In a helpful summary, which the Court respectfully adopts here, Judge Turner in Sander & Hearn [2012] FMCAfam 812 (and which has previously been adopted; see Mayes & Denning [2017] FCCA 1754; Jepson & Fleming [2018] FCCA 400) held that consideration must be given to:
(a)The welfare of the child being the paramount consideration;
(b)Any short or long term effect of any change in the child’s name;
(c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
(d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
(e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
(f)The effect of frequent or random changes of name.
As noted, X is only 3 years old, and while he no doubt is aware of what his first name and surnames are, he would also no doubt be aware that his surname is different to his mother’s. It is important for the child to have connections with both parents, and cultural naming norms may not always be reflective of the importance of the children’s relationships with their mothers. There is no good reason as to why the child’s surname should only be the father’s surname, particularly in circumstances where the parents are separated and have been separated for the entirety of the child’s life (save a few weeks).
X has not yet started formal schooling, and given his young age, he is unlikely to be embarrassed by any change to his surname or to have such a change cause him any distress.
In all of the circumstances, it is in X’s best interest that an order be made changing his surname to a hyphenated name which includes both parents’ surnames.
Costs of Independent Children’s Lawyer
The Independent Children’s Lawyer moves the Court for an order that each of the parties pay her costs in the amount of $4,866.
The mother consents to the making of that order, but that she be permitted to a period of 6 months to meet such order.
The father opposes the making of the order.
There are circumstances justifying an order for the parties to each contribute equally to the costs of the Independent Children’s Lawyer. Having regard to the relevant factors set out in s.117(2) of the Act, an order that each of the parties pay an amount of $4,866 will be made. The parties will have a period of 6 months to meet such an order.
CONCLUSION
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 15 October 2021
7
0