Flanagan & Handcock
[2000] FamCA 150
•2 March 2000
[2000] FamCA 150
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No ALE 9 of 1999
AT SYDNEY File No SY 3427 of 1997
BETWEEN:
JOHN EDWARD FLANAGAN
Applicant/Appellant Father
- and -
NARELLE IRENE HANDCOCK
Respondent Mother
REASONS FOR JUDGMENT OF THE FULL COURT
EDITED FOR PUBLICATION
CORAM: FINN, KAY AND HOLDEN JJ
DATE OF HEARING: 17 November 1999
DATE OF JUDGMENT: 2 March 2000
APPEARANCES: The Appellant Father in person.
The Respondent Mother in person.
FLANAGAN and HANDCOCK
ALE 9 of 1999
Coram: Finn, Kay and Holden JJ
Date of appeal: 17 November 1999
Date of judgment: 2 March 2000
CATCHWORDS:
CHILD SUPPORT- Departure - natural justice - whether adequate notice given to allow claims for current years to be dealt with whilst formally dealing with claims for past years
INJUNCTION -child's surname - whether paramountcy principle applicable
The parties are the parents of twin daughters A and C born April 1996. The parties lived together in a de facto relationship from mid-1992 until June 1996. In the latter half of 1996 F had irregular contact with the children. From July 1997 until June 1998 there was no contact between F and the children. Otherwise there has been regular contact.
Since early 1997 there has been continuous litigation in the Family Court concerning F’s liability for child support. In January 1999 Johnston JR made departure orders that F pay child support for the 1997 year at $11,856, for the 1998 year at $10,296. In the course of proceedings he asked the mother if she wanted him to deal with the 1999 and 2000 years. He then made departure orders for the 1999 year at the rate of $10,296, and for the 2000 year at the rate of $10,296.
In May 1999 Rose J heard the father's review application against the orders of Johnston JR and an application for an injunction under s 68B Family Law Act that the mother be restrained from using a surname other than Flanagan in respect of A and C.
His Honour made some adjustments to the figures arrived at by the JR for the 1997 and 1998 years to allow for some double counting of child minding expenses and also made marginal adjustments to the 1999 and 2000 assessments. In dismissing the name change application his Honour held that the paramountcy principle applied to the exercise of s 68B(1) discretion.
On appeal, F sought leave to appeal all of the child support orders of the trial Judge, asserting (inter alia) that he had insufficient notice of a claim being made for a child support departure order for 1999 and 2000 by the mother. He also appealed the order dismissing his application for an injunction in relation to the children's surname.
Held: * Application for leave to appeal dismissed
*Appeal in relation to the refusal to grant an injunction in relation to the children's surname dismissed
Per Finn J
Child support
Agreed with Kay and Holden JJ in finding that grounds regarding alleged errors of fact or figures had no substance, or if they did have some substance, would not warrant the grant of leave to appeal (having regard either to the traditional principles governing the grant of such leave or to the more liberal approach that may be applicable in the child support jurisdiction re: In the Marriage of Gilmour (1995) FLC 92-591.)
As it was not clear whether any oral application had ever been made by the mother to deal with the 1999 and 2000 child support years, having regard to the judgment of the Full Court in Johnson and Johnson (1999) FLC 98-004, the orders relating to the 1999 and 2000 child support years should be set aside.
Injunction-change of name
Under s.68B(1) the Court may grant such injunction "as it considers appropriate for the welfare of the child". Therefore the welfare of the child is the paramount consideration or essential test for an exercise of the jurisdiction under section 68B(1). Accordingly, the trial Judge was not wrong in his reference to the welfare of the child as the paramount consideration.
Given the provisions of the legislation and the uncertain state of authority, the trial Judge was not wrong in his ultimate resort to the best interests test nor in his resort to assistance from some Full Court authority which predated the 1995 amendments.
per Kay and Holden JJ
Child support
The underlying principle expressed in Johnson and Johnson (1999) FLC 98-004 is that it is contrary to the rules of natural justice to make orders against a party without that party being on notice of the risk of such an order being made, and then being given an opportunity to present a case against such orders being made.
There was no breach of rules of natural justice. The father was well aware, or ought to have been well aware, that the court was examining each of the child support years and would make orders in accordance with provisions of the Act for each of those years.
Injunction-change of name
Other than the sparsity of reasons, and perhaps his Honour's reliance on the paramountcy principle (which reliance was not the subject of a separate ground of appeal) the trial Judge did not err. If the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration, which it was. Whilst the Court either individually or collectively may not have reached the same decision, there is no appellable error in the approach taken by his Honour in weighing up the various factors.
Appeal dismissed
Appellant pay $350 towards respondent's costs
Reportable on name change issue only
[This case involved both child support and change of names matters. This report deals only with the change of name issue.]
KAY AND HOLDEN JJ.:
This is the hearing of an appeal against an order dismissing an application that the respondent mother be restrained from using a surname other than Flanagan in respect of the twin children of the parties, [A] and [C].
The Trial Judgment
Injunction - Change of Name
The father was aggrieved by the mother using the surname "Handcock" for the children. He sought an order restraining the mother from so doing. He brought that application on a Form 8. As categorised by the trial Judge it was an application brought under s 68B, which provides:
"Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii)a person who has a residence order or a contact order in relation to the child; or
(iii)a person who has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate."
The trial Judge said that:
"In my view the general principle that applies to the exercise of discretion pursuant to Section 68B(1) is the same as that which applied for many years under its predecessors by which a similar injunctive power was given in the Family Law Act 1975. That general principle is:
'that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietory interests of the parents.'"
(It is convenient to refer to this passage as "the paramountcy principle".)
Although not the subject of a ground of appeal, this case raises the question as to whether grants of injunctions under Division 9 are governed by the application of the paramountcy principle.
The legislative scheme
Matters relating to children are dealt with by Part VII of the Family Law Act. The paramountcy principle is mentioned in several of the Divisions of that Part. However, it is not mentioned in respect of Division 9 applications.
Section 60C of the Family Law Act contains an outline of the various parts of Part VII. It says:
"An outline of this Part is set out below:
| OUTLINE OF PART | |
| Item | Divisions and coverage |
| 1 | Division 1--Introductory · Object of Part and principles underlying it, and outline of Part · Interpretation and application of this Part how this Act applies to certain children Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12. |
| 2 | Division 2--Parental responsibility · The concept of parental responsibility |
| 3 | Division 3--Counselling etc. · Counselling of people in relation to matters affecting children · Preparation of reports for use in proceedings relating to children under 18 · Provision of documents about counselling and welfare |
| 4 | Division 4--Parenting plans · what parenting plans are and their registration in courts |
| 5 | Division 5--Parenting orders--what they are · what parenting orders are |
| 6 | Division 6--Parenting orders other than child maintenance orders · general obligations created by residence orders, contact orders and specific issues orders · dealing with people who have been arrested · obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia |
| 7 | Division 7--Child maintenance orders · objects and principles relevant to the making of child maintenance orders · the relationship between Division 7 and the Child Support (Assessment) Act 1989 · applying for and making child maintenance orders · other aspects of courts' powers in relation to child maintenance orders · when child maintenance orders stop being in force |
| 8 | Division 8--Other matters relating to children · liability of a father to contribute towards child bearing expenses if he is not married to the child's mother · orders for the location and recovery of children · reporting of allegations of child abuse · other orders about children |
| 9 | Division 9--Injunctions · proceedings for injunctions in relation to children |
| 10 | Division 10--The best interests of children and the representation of children · determining what is in a child's best interests (including in situations of family violence) · separate representation of children |
| 11 | Division 11--Family violence · the relationship between certain contact orders etc. and family violence orders |
| 12 | Division 12--Proceedings and jurisdiction · institution of proceedings and procedure · jurisdiction of courts · presumptions of parentage · parentage evidence · places and people to which this Part extends and applies |
| 13 | Division 13--State, Territory and overseas orders · registration of State and Territory orders dealing with children · registration of overseas orders dealing with children · transmission of Australian orders to overseas jurisdictions |
| 14 | Division 14--Miscellaneous · miscellaneous matters relating to children” |
The following are extracts from the sections in Part VII that mention "best interests", with emphasis added to the manner in which best interests are to be considered:
“S 60B Object of Part and principles underlying it
…
(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests…”
“S 60G Family Court may grant leave for adoption proceedings by prescribed adopting parent
…
(2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests…”
“S 63B Parents encouraged to reach agreement
The parents of a child are encouraged:
(a) to agree … and
(b)in reaching their agreement, to regard the best interests of the child as the paramount consideration.”
“S 63E Registration in a court
…
(3) The court may register the [parenting] plan if it considers it appropriate to do so having regard to the best interests of the child to which the plan relates…”
“S 63F Child welfare provisions of registered parenting plans
…
(2) The court may, by order, vary the child welfare provisions in the plan if it considers the variation is required in the best interests of a child…”
“S 63H Court's powers to set aside, discharge, vary, suspend or revive registered parenting plans
(1) The court in which a parenting plan is registered under section 63E may set aside the plan, and its registration, if the court is satisfied:
…
(c)that it is in the best interests of a child to set aside the plan.
(2) In proceedings under subsection (1), to the extent that they are proceedings on the ground mentioned in paragraph (1)(c), the best interests of the child concerned are the paramount consideration.
…”
“S 65E Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
“S 65L Counsellors may be required to supervise or assist compliance with parenting orders
(1) [a court may make an order for a counsellor to supervise or assist with compliance with parenting orders]
(2) In deciding whether to make a particular order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
“S 67L Child's best interests paramount consideration in making a location order
In deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
“S 67V Child's best interests paramount consideration in making a recovery order
In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
“S 67ZC Orders relating to welfare of children
(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
"Division 10--The best interests of children and the representation of children
...
S 68D What this Division does
This Division deals with:
(a) determining what is in a child’s best interests …”
Subdivision B--Determining the best interests of a child
S 68E Proceedings to which Subdivision applies
(1) This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.
…”
“S 68F How a court determines what is in a child's best interests
(1) Subject to subsection (3), in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2).
…”
“S 68K Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
…”
“S 68L Court orders for separate representation
(1) This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant consideration.
…”
“S 68Q Purposes of Division
The purposes of this Division are:
…
(c)to respect the right of a child to have contact, on a regular basis, with both the child’s parents where:
…
(ii)it is in the best interests of the child to have contact with both parents on a regular basis.”
"S 68T Variation etc of Division 11 contact order by court making etc family violence order
…
(2) The court’s power to make, revive, vary, suspend or discharge a Division 11 contact order in the family violence proceedings is subject to the following provisions:
…
(b)the court must exercise that power having regard to the purposes of this Division (as stated in section 68Q) and to the best interests of any relevant child
…
(3) [Qualifications to general principles when varying contact orders because of family violence]:
(a) the following provisions do not apply:
…
(ii)any provisions (for example, section 65E) that would otherwise make the best interests of a child the paramount consideration
…
Note in Act: “Because of subparagraph (3)(a)(ii), the best interests of a child are not the paramount consideration. They must, however, still be taken into account as required by paragraphs (2)(b) and (c).
…”
It is especially important to note the provisions of Division 10 s 68E. The Division is concerned with determining what is in a child's best interests. The section provides:
"(1) This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.
...
(3) This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68T applies."
There is no express or implied mention of Division 9 or s68B (the injunctive power).
The injunctive power
The power to grant an injunction under s 68B can fall under two heads. If it is brought under s 68B(1), as "an injunction in relation to a child", the power is to be exercised in such circumstances as the court "considers appropriate for the welfare of the child". If it is brought under s 68B(2), namely "in any other proceedings under the Act", the injunction may be granted in any case in which it appears to the court to be "just or convenient" to do so.
In Monticelli and McTiernan (1995) FLC 92-617; 19 Fam LR 108 Nicholson CJ and Fogarty J expressed the view that in proceedings relating to the welfare of children there was little utility in making a fine distinction between which power was being exercised. Whilst Nicholson CJ and Fogarty J in Monticelli and McTiernan held that the paramountcy principle applied to injunctions, that decision was made when the paramountcy principle appeared in the then s 64(1) of the Family Law Act in the following terms:
"In proceedings in relation to the custody, guardianship or welfare of, or access to, a child -
(a)the court must regard the welfare of the child as the paramount consideration."
Their Honours said in Monticelli and McTiernan (supra) at FLC 82,175; Fam LR 110-11:
"It appears to us that the statutory imperative in s. 64(1) applies to the exercise of the powers in s. 70C(1) and that, if necessary, that is reinforced by the reference in that sub-section to the requirement that the court grant the injunction on the basis of the 'welfare of the child’. This conclusion is consistent with the approach adopted by the High Court in ZP v PS; Re PS; Ex parte ZP (1994) FLC 92-480; [17 Fam LR 600] and with a long line of cases in this Court.
If, as has been suggested, s 70C is to be seen as an internal exception to s.64(1) within Part VII, sub-section (1) still requires the determinant to be 'the welfare of the child'. Sub-section (2) is phrased more generally but the welfare of the child would be a most important component of that.”
Chisholm J concluded that the paramountcy principle applied to proceedings under what was then s 70C(2) [now s 68B(2)], when those applications could be characterised as "proceedings in relation to the custody, guardianship or welfare of, or access to, a child." His Honour stated further that he was inclined to think, but did not need to decide, that the same interpretation applied to sub-s (1).
Since the decision in Monticelli and McTiernan (supra) the Family Law Act has been substantially amended. Section 64(1)(a) no longer exists in that form, and the references to "best interests of the child" and the "paramountcy principle" are now to be found, as already indicated, in several areas throughout the Act. They are not, however, to be found in Division 9 of Part VII, and, as already indicated, whilst specific reference is made to several other Parts of the Act to which the paramountcy principle is to have some relevance, there is no reference at all to it in respect of Division 9.
In those circumstances it would appear to us that Monticelli and McTiernan (supra) no longer represents the law in respect to this question.
In CDJ v VAJ (1998) FLC 92-828; 23 Fam LR 755 the High Court examined the application of the paramountcy principle to the question of admission of further evidence on an appeal arising out of a parental responsibility order. In a joint judgment McHugh, Gummow and Callinan JJ said that an order admitting or rejecting further evidence was not a parenting order and did not directly invoke the application of the paramountcy principle, but said at FLC 85,444; Fam LR 773 that nevertheless the Full Court of the Family Court had been plainly right when it said:
"...the constant shadow of the paramountcy principle in child welfare cases is such that at the very least, the best interest considerations are powerful matters to be weighed up against a competing principle such as finality."
Their Honours then said at FLC 85,444; Fam LR 773:
"[88] It is not to the point that the Full Court in this case was not asked to make a parenting order as such. An order admitting or rejecting further evidence is part of the appeal process in which the best interests of the child are the paramount consideration. In determining whether or not to admit that evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard."
Kirby J (in dissent on the outcome) said at FLC 85,469; Fam LR 809 that he could find no error in the approach of the Full Court when it said:
"...the constant shadow of the paramountcy principle in child welfare cases is such that at the very least, the best interest considerations are powerful matters to be weighed up against a competing principle such as finality."
His Honour said at FLC 85,469-70; Fam LR 809 (footnotes omitted):
"[192]...Although the statutory expression of the paramountcy principle is particularly emphatic in respect of the cases to which it applies, the general obligation to approach any judicial decision which might impinge on the welfare of a child with at least a broad appreciation of the implications of the decision for that child’s welfare is consistent with the longstanding parens patriae jurisdiction of the courts which have successively been involved in such cases. The mention of this consideration in relation to particular provisions of the Act does not exclude it totally from relevance to other decisions under the Act. The principle is founded upon a universal rule common to most legal systems and now expressed in international law. In deciding whether to admit further evidence, a Full Court would necessarily have had to consider whether such evidence, if taken into account, would have been relevant to the ultimate question in issue at the trial. In the case of an appeal against a parenting order that would require consideration of the paramountcy principle stated in the Act. In this way, testing the available hypotheses, it would be inevitable that a Full Court would consider the proffered evidence as it was, or might well be, relevant to the matters that would arise on a retrial. It would be completely artificial to dissect the issues and to require that the welfare of the child or children should be completely ignored. The metaphor of the ‘shadow’ was an apt one. While not governing the decision on the admission of further evidence or on the appeal as it was conducted, the welfare of the children, as the ultimate issue, was properly kept in mind."
We are inclined to the view that to the extent his Honour might have been considering the issue of name change pursuant to s 68B, his Honour was incorrect in indicating that the paramountcy principle applied. Even so, in light of the decision of CDJ v VAJ (supra), notwithstanding that there is no express reference to Division 9 in the balance of Part VII of the Act, as the orders sought to be made intimately concerned the welfare of the children, the best interests principle needed to be given careful consideration. However, given that this was not the subject of a ground of appeal and given that it was not a matter that was properly argued before us, we do not express a concluded view.
Was s 68B the correct law to be applied?
Even though the application was expressed to be and was dealt with as an application for an injunction, the true nature of the application may well have been governed not by s 68B but by s 65D. It is necessary to examine several provisions of Part VII to determine this question.
"S 61B Meaning of parental responsibility
In this Part, 'parental responsibility', in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."
"S 61C Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section)."
"S 61D Parenting orders and parental responsibility
(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order."
Division 5 explains what are parenting orders. It provides in s 64B(2) that:
"A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons;
(c) maintenance of a child;
(d) any other aspect of parental responsibility for a child."
Section 64B(6) provides:
"(6) To the extent (if at all) that a parenting order deals with any other aspect of parental responsibility for a child, the order is a specific issues order. A specific issues order may, for example, confer on a person (whether alone or jointly with another person) responsibility for the long-term care, welfare and development of the child or for the day-to-day care, welfare and development of the child."
Section 65E lays down the paramountcy principle, namely:
"In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."
The absence of any references in s 68E to the sections contained in Division 9, being ss 68 to 68C, arguably indicates a clear intention by the Parliament that the paramountcy principle has no direct application to injunctions sought under Division 9.
As already indicated, s 61C gives each of the parents parental responsibility for their children, which includes all of the duties, powers, responsibilities and authority which by law parents have in relation to children. It is clear that one such area of authority is the capacity to give the child a name. Indeed, parents are under an obligation to name their children both by operation of local statute and international law (see eg Registration of Birth, Deaths and Marriages Act (Vic); Article 8 United Nations Convention on the Rights of the Child).
Thus the obligation to name a child and the power to change a child's name is clearly an aspect of parental responsibility as defined by s 61B. A dispute between persons appropriately interested, including between the parents of a child, is ultimately to be resolved by the making of a parenting order which, insofar as it is other than a residence, contact or maintenance order, is a "specific issues order", to be made under the provisions of s 65D which is certainly governed by the provisions of s 65E, namely the paramountcy provision.
Rose J referred to the decisions of Chapman and Palmer (1978) FLC 90-510; 4 Fam LR 462, and Monticelli and McTiernan (supra) when he stated:
"The Full Court has provided a list of factors to which regard should be had for the purpose of applying the abovementioned general principle without suggesting that there may not be other relevant factors. (Chapman and Palmer (1978) FLC 90-510; Monticelli v McTiernan (1995) FLC 92-617 per Nicholson CJ and Fogarty J) "
His Honour then identified several factors which his Honour perceived as relevant to the issue of whether or not he should grant the injunctions sought, and having identified each one of those factors said he was intending to attach particular weight to the following factual findings:
"(a)The children are very young having recently attained the age of 3 years.
(b)The children have lived continuously with the mother. There is no suggestion that they have anything other than a loving close and dependent relationship with her.
(c)The surname “Handcock” has been used by the mother for a considerable period of time so far as the children are concerned with various medical practitioners and otherwise in terms of their identity in the local community. I accept the mother’s evidence in that regard which was not challenged.
(d)I infer from the evidence that the children will continue to live with and be dependent upon the mother for the foreseeable future particularly in an emotional and physical sense subject to periodic contact with the father taking place.
(e)Since the unfortunate litigation between the parties commenced approximately two years ago the father has attempted to gain a nil assessment for child support and in the process has not made voluntary payments of child support. In that regard I accept the evidence of the mother. In the absence of any precise or specific contrary evidence having been given by the father.
(f)The father considers that the children “have a strong relationship with myself as their father” (Affidavit of father sworn 15 March 1999, sub-paragraph (c), p.13).
(g)I infer from the lastmentioned evidence of the father that his perception of the children’s good relationship with him has not been impeded by the mother’s use of the surname “Handcock” for them. Accordingly, on that basis their foundation for the relationship between the children and the father has now been laid for a continuing positive relationship between them which should not be lessened when they reach an age that they are able to appreciate that he has a different surname to them."
His Honour then concluded immediately by saying:
"Accordingly, having regard to the findings of fact to which I have attached particular weight I consider that it is in the children’s best interests that the Application for Injunction be dismissed."
Whilst we all expressed some concern, in the course of oral submissions, about the adequacy of that conclusion and its consistency with the obligation of a trial Judge to give adequate reasons as to why he or she reaches a conclusion, the father seemed to have no difficulty with the adequacy of the reasons. He said that he understood why Rose J did what he did. He said that his Honour had refused the injunction on grounds of convenience and as far as he was concerned he was not troubled by lack of reasons.
It is convenient to deal with the grounds relied upon by the father in respect of the dismissal of the application for the injunction seriatum:
"a) His Honour made mistakes of Fact.
(i) His Honour erred in stating that the Applicant was only seeking a nil assessment."
This is a reference to the factual finding (e) above. The ground is misconceived in that the finding by his Honour was not that the father was only seeking a nil assessment but merely that the father had "attempted to gain a nil assessment" since the litigation commenced. It was common ground that the father had sought and achieved a nil assessment in at least two of the child support years the subject matter of the applications before his Honour. He had done so by providing the Child Support Registrar with an estimate of his income which resulted in nil assessments issuing.
The second error of fact asserted was that " His Honour had erred in determining that the Applicant had had little contact with the children. There was no such finding by his Honour. The findings by his Honour, which were conceded by the father to be historically correct, were that in the latter half of 1996 the father had had irregular contact with the children and that between July 1997 and June 1998 there was no contact with the children.
The next ground sought to be relied upon was that his Honour was mistaken as to law in that:
he failed to adequately consider the six factors listed by the Full Court in Chapman and Palmer,
failed to apply the additional six considerations listed by Connor J in Beach and Stemmler (1979) FLC 90-692,
failed to correctly consider the difficulty of identification that the children may have with him if their surname is not Flanagan as detailed in the decision of Watson J in George and Radford (1976) FLC 90-060,
attached significance to the young ages of the children but did not take into account the decision of Rowlands J in Skrabl and Leach (1989) FLC 92-016,
attached too much significance to the use of surnames in the local community and failed to refer to the decision of Demak SJ in Arthur and Coombes (1977) FLC 90-245, and
failed to consider the decision of Warnick J in Fooks and McCarthy (1994) FLC 92-450.
The matters which frequently need to be considered in deciding whether or not to permit or prohibit a change of name have been considered in several decisions of this Court, both at first instance and on appeal. The most significant feature that appears from those cases is that they turn on their individual facts.
The following is a summary of some of those decisions:
George v Radford (1976) FLC 90-060 at 75,296; 1 Fam LR 11,510 at 11,514 per Watson J:
“I consider that the factors which should guide me in this case are as follows:
(a)the final decision must be governed not by supposed parental rights but must be in the best interests of the children;
(b)short-term embarrassment must be weighed against long-term effects;
(c)where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
(d)children should not be subjected unnecessarily to a confusion of identity;
(e)a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.”
Chapman v Palmer (1978) FLC 90-510; 4 Fam LR 462, Full Court (Evatt CJ, Asche and Marshall S JJ).
The mother had attempted to change the surname of children of her first marriage to the surname of the husband of her second marriage. At first instance Opas J restrained the use of the new name. The Full Court upheld that decision. Their Honours said at FLC 77,674; Fam LR 469:
“The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.”
Their Honours identified six factors to which regard should be had, at FLC 77,675-6; Fam LR 471:
“(a) the welfare of the child is the paramount consideration;
(b) the short and long term effects of any change in the child's surname;
(c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
(f) The effect of frequent or random changes of name.”
Beach v Stemmler (1979) FLC 90-692 (Fam LR 5 note 13), per Connor J.
As in Chapman v Palmer (supra), the mother had attempted to change the surname of children of her first marriage to the surname of the husband of her second marriage. The father's application for an injunction was refused and the name-change allowed. His Honour held that Chapman did not restrict the relevant considerations. His Honour identified a further six factors to be taken into account in addition to the Chapman factors, at 78,693:
"• The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
· The contact that the husband has had and is likely to have in the future with the children.
· The degree of identification that the children now have with their father.
· The degree of identification which the children have now with their mother and their stepfather.
· The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored.
· The desire of the father that the original name be restored.”
Connor J also said, at 78,693:
“In many cases it might be convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience by itself is a sufficient reason for changing a name.”
Kelley and Kelley (1981) FLC 91-002 per Ross-Jones J.
At 76,075 his Honour thought it appropriate:
"...that there should be an amendment to the Family Law Act 1975 to clarify the powers and rights of the custodial parent in such circumstances, though still leaving the final decision a matter of discretion to the Court.
In the meantime the Regulations should be amended to require a notation being added to the decree nisi and to all custody orders to the effect that the surname of a child in the custody or care and control of a parent should not be changed without the prior consent of the other parent or the leave of the Court.”
Skrabl v Leach (1989) FLC 92-016; 13 Fam LR 83 per Rowlands J.
A mother was restrained from calling the parties' six year old daughter by any surname other than the father's surname. His Honour stated at FLC 77,337; Fam LR 84:
“My primary concern is the welfare of the child. In my view R’s welfare is advanced by a normal recognition of who she is rather than an artificial adjustment to pretend something which is not so.”
Mahoney v McKenzie (1993) FLC 92-408 per Warnick J:
The parents of a boy who was almost five years of age had separated when he was nine months of age. The mother proposed to use as the child's surname a hyphenated combination of the father's surname and the mother's surname (her maiden name which she intended to retain in future). The father proposed that only his surname be used. At 80,186 Warnick J distinguished the facts in Skrabl v Leach which had involved a decision “between the reality of who the child was and the artificiality of the surname with which she had no blood connection”. He found there was no attachment to either surname and expressed reservations at the general social utility of hyphenated names, but held that it would be in this child’s best interests to have a hyphenated surname which would reflect his ongoing relationship with both parents.
At the hearing of the appeal, in his oral submissions the father was particularly keen to emphasise a passage from George and Radford (supra) which case involved two children of a marriage who were born in 1967 and 1969. In 1972 the wife formed a relationship with another man and purported to change the name of the children to his name. In 1976 the husband sought to rectify the position and have the wife restrained from using another surname for the children. At FLC 75,296; Fam LR 11,514, Watson SJ stated guiding factors including that:
"(c) where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
(d) children should not be subjected unnecessarily to a confusion of identity."
In expanding on the latter of those two considerations his Honour said at FLC 75,296-7; Fam LR 11,515:
"The factor in (c) above could be crucial. Do the children have a continuing relationship with their father, and if so does the relationship have meaning and reality for them? Every child has a right to know both his parents and to share a relationship with both — where his emotional security is threatened by parental separation and division, it is important that whatever relationship survives not be weakened by unilateral decisions based on expediency or some personal motive in the custodial parent.
As to (d) it appears that eminent psychologists accept the theory that the formation of identity and self-concept is important to children and young people. A sense of personal identity is important. The imposition on a child of a name not his own can contribute to a feeling of confusion in that child. It could be seen as a punitive action against the child’s father by the mother. It could lead to difficulty in the child’s natural identification with his father. In my opinion this is too high a price for a child to be called upon to pay in circumstances such as exist in the present case.
...
Generally no parent should attempt to change a child’s surname unless there is clear consent by the other parent or guardian, or there is an order of the appropriate court.”
In the matter before us the father was anxious to stress those sentiments and invited us to conclude, as he said the trial Judge should have concluded, that perpetuating the surname could only be seen as contributing to a feeling of confusion in the children, and that it ought to have been seen as a punitive action against the children's father by the mother.
Ultimately this argument, and the argument as to whether or not his Honour properly considered each of the factors identified in the various cases as being relevant to the exercise of a power relating to the change of name, boils down to an argument as to whether or not the trial Judge had given too much weight to some factors and inadequate weight to others.
The true nature of the appeal argued before us is exemplified by the balance of the grounds (other than natural justice and procedural grounds) which in summary read as follows:
His Honour erred in attaching weight to a hospital administration document;
erred in assuming that the positive relationship between the applicant and the children should not be lessened as they grew older;
failed to give sufficient weight to the amount of contact the applicant had with the children;
failed to take into account the amount of bitterness that the mother had for the applicant and the effect that that would have on the relationship between the applicant and the children;
gave too much weight to matters contained in the mother's affidavit; and
failed to take into account that the children had also been known by the surname "Flanagan" for a considerable period of time.
Conclusion
This was a decision made in the exercise of a judicial discretion. Appellate courts can only interfere with an exercise of judicial discretion within certain well defined and confined limits. It is necessary to demonstrate an error of principle, an error of fact, or the arrival at a result which was plainly wrong. Other than the sparsity of reasons which we have already dealt with, and perhaps his Honour's reliance on the paramountcy principle (which reliance was not the subject of a separate ground of appeal) we discern no such error. If the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration, which it was. The trial Judge recognised that the children had been registered under the surname of the father, he recognised that they had been in the sole care of their mother for some three years and during that time she had used her own surname in preference to the father's surname when referring to the children. His Honour accepted that notwithstanding the name change, the children had a clear sense of identification with their father, and concluded in the circumstances that it was not appropriate to enjoin the mother from using the names she had chosen for the children. Whilst we either individually or collectively may not have reached the same decision, we detect no appellable error in the approach taken by his Honour in weighing up the various factors.
FINN J.:
The injunction concerning the children's name
On 15 March 1999, the father filed applications seeking both final and interim injunctions in the following terms:
"That Narelle Irene Handcock be restrained and that an injunction be hereby granted, restraining her from using, or being party to or complicit (sic) in, the use of any surname for the children of the relationship, [A] and [C], other than the name "Flanagan" and in particular, from using or being party to or complicit (sic) in, the use of the name "Handcock", for the said children."
It appears that both these applications also came before Rose J. on 12 May 1999 - the mother having filed responses seeking in effect the dismissal of the father's applications.
In his judgment subsequently delivered on 30 June 1999, his Honour dismissed the father's application for a final injunction. In his judgment, he said as follows:
"Pursuant to the provisions of Section 68B(1) the Court is given a wide power for the granting of an injunction as it considers appropriate for the welfare of a child.
In my view the general principle that applies to the exercise of discretion pursuant to Section 68B(1) is the same as that which applied for many years under its predecessors by which a similar injunctive power was given in the Family Law Act 1975. That general principle is:
"that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietory (sic) interests of the parents."
The Full Court has provided a list of factors to which regard should be had for the purpose of applying the abovementioned general principle without suggesting that there may not be other relevant factors [Chapman and Palmer (1978) FLC 90-510; Monticelli v McTiernan (1995) FLC 92-617 per Nicholson CJ and Fogarty J].
…
For the purpose of determining this Application for Injunction I particularly attach weight to the following factual findings:
(a)The children are very young having recently attained the age of 3 years.
(b)The children have lived continuously with the mother. There is no suggestion that they have anything other than a loving close and dependent relationship with her.
(c)The surname "Handcock" has been used by the mother for a considerable period of time so far as the children are concerned with various medical practitioners and otherwise in terms of their identity in the local community. I accept the mother's evidence in that regard which was not challenged.
(d)I infer from the evidence that the children will continue to live with and be dependent upon the mother for the foreseeable future particularly in an emotional and physical sense subject to periodic contact with the father taking place.
(e)Since the unfortunate litigation between the parties commenced approximately two years ago the father has attempted to gain a nil assessment for child support and in the process has not made voluntary payments of child support. In that regard I accept the evidence of the mother. In the absence of any precise or specific contrary evidence having been given by the father.
(f)The father considers that the children "have a strong relationship with myself as their father" (Affidavit of father sworn 15 March 1999, sub-paragraph (c), p.13).
(g)I infer from the lastmentioned evidence of the father that his perception of the children's good relationship with him has not been impeded by the mother's use of the surname "Handcock" for them. Accordingly, on that basis their foundation for the relationship between the children and the father has now been laid for a continuing positive relationship between them which should not be lessened when they reach an age that they are able to appreciate that he has a different surname to them.
Accordingly, having regard to the findings of fact to which I have attached particular weight I consider that it is in the children's best interests that the Application for Injunction be dismissed." (at Appeal Book pp.29, 31-32)
Although the father has apparently not filed a Notice of Appeal against his Honour's order dismissing his application for the injunction in relation to the children's surname, he has included relevant grounds in his draft Notice of Appeal attached to his application for leave to appeal the orders with respect to child support. I agree with Kay and Holden JJ. that the father was entitled to appeal the order in question as of right, and that there will be no prejudice to either party if the matter proceeds on the basis that there was a valid appeal before us (subject to the father paying any prescribed fee).
This appeal can be disposed of simply by reference to the issue of his Honour's refusal to grant the injunction sought by the father, as, in my view, it was open to the father to apply for the injunction which he did, and for his Honour to have determined the matter pursuant to s.68B(1) of the Family Law Act 1975 ("the Act").
I am not persuaded that in his determination of this matter, his Honour was mistaken as to the law, or otherwise erred in law. A reading of the current Part VII of the Act reveals that the requirement that the Court must regard the best interests of the child as the paramount consideration (which is imposed on the exercise of many of the Court's powers under that Part) has not been expressly imposed on the exercise of the Court's power to issue injunctions under s.68B(1). Rather, under that sub-section, the Court is empowered to "make such order or grant such injunction as it considers appropriate for the welfare of the child".
Thus, in my view, it could well be said that the welfare of the child is the paramount consideration or essential test for an exercise of the jurisdiction under s.68B(1), and accordingly, that his Honour was not wrong in his reference to the welfare of the child as the paramount consideration in the second paragraph of the passage from his judgment quoted in paragraph 133 above.
Because the legislation had not expressly applied the concept of the best interests of the child as the paramount consideration in the exercise of the jurisdiction under s.68B(1), a question may perhaps arise with regard to his Honour's reference to the "best interests" concept or test in his ultimate conclusion that the injunction should be refused. Again, however, I am not persuaded that he was wrong in this regard, bearing in mind that in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, the Full Court left open (in paragraph 10.62) the issue of whether the best interests of the child (or children) is the paramount consideration in applications for injunctions under s.68B.
In view of the fact that the Full Court in B and B raised but did not answer this question, it seems to me that decisions (be they of the Full Court or of single judges) which preceded that decision or which preceded the substantial re-writing of Part VII of the Act which occurred in 1995 (Family Law Reform Act 1995), 1987 (Family Law Amendment Act 1987) and also in 1983 (Family Law Amendment Act 1983), must carry little authority - although they may be of some assistance to trial Judges in drawing attention to practical matters which may be relevant in determining an application for an injunction in relation to the use of a particular name for a child.
The exercise of the power under s.68B(1) to grant injunctions in relation to the welfare of a child is a matter on which an authoritative decision is needed in view of the 1995 changes to the Act. But with respect to the parties (particularly the father), this is obviously not the case, given that neither the trial Judge nor this Court has had the benefit of full legal argument.
In my opinion, it cannot, given the provisions of the legislation and the uncertain state of authority, be said that the trial Judge was wrong in his ultimate resort to the best interests test nor in his resort to assistance from some earlier Full Court authority. That having been said, however, it also has to be said that he cannot be said to have erred (as the father asserts in a number of his grounds of appeal) by not having referred to certain other single judge decisions.
To the extent that the father asserts that errors of fact were made by his Honour in his determination of the injunction application, I am not satisfied that this is so. Similarly, I am not persuaded that the weight which his Honour placed on any particular matter was such that his discretion could be said to have miscarried. Nor has it been established to my satisfaction that there was any denial of natural justice nor procedural fairness to the father in the determination of his application for the injunction in question. Overall his Honour's decision to refuse the injunction in relation to the children's surname was, in my opinion, within a proper exercise of discretion, and the father's appeal against that decision should not succeed.
Orders
The orders of the court are as follows:
1. …
2. That the draft Notice of Appeal amended 27 July 1999 insofar as it dealt with the dismissal of the father's application for an injunction be deemed to be a Notice of Appeal duly filed and that such appeal be dismissed.
3. That the appellant father pay the sum of $350 towards the respondent mother's costs.
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