Godinez and Stanislaw

[2011] FamCA 603

FAMILY COURT OF AUSTRALIA

GODINEZ & STANISLAW [2011] FamCA 603

FAMILY LAW – CHILDREN – Best interests – Change of surname

Family Law Act 1975 (Cth)

Raymond & Harold [2009] FamCA 155.
George & Radford [1976] FLC 90-060.
Chapman & Palmer [1978] FLC 90-510.
Beach & Stemmler [1979] FLC 90-692.
Kelley [1981] FLC 91-002.
Skrabl & Leach [1989] FLC 92-016.
Mahony & McKenzie [1993] FLC 92-408.

Flanagan v Handcock [2002] FLC 93-102.

APPLICANT: Ms Godinez

RESPONDENT: Mr Stanislaw

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 2639 of 2007

DATE DELIVERED: 6 April 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 6 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goodchild

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Father in Person

SOLICITOR FOR THE RESPONDENT: Father in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Liverpool

Orders

1. That the document headed Orders Proposed by the Independent Children’s Lawyer is hereby marked Court Exhibit “1”.

2. That by consent Orders are made in accordance with paragraphs 1, 2, 3, 4 in its sub-paragraphs, 5 in its sub-paragraphs, 6, 7, 8, 9 in its sub-paragraphs, 10, 11 in its sub-paragraphs in Exhibit “1”, copy annexed hereto.

3. Noted the matters set out in paragraphs A, B, C, D, E, F, and G under the heading of notations in Exhibit “1” which leaves to be resolved the issue of the surname of the children.

4. That in the event of the mother wishing to travel overseas with the children the mother is to provide the father with notice of not less than twenty-eight days of her intention of travel and setting out the destinations.

5. That the mother be permitted to change the surnames of the children, the subject of these proceedings, B born … 1997, C born … 2000 and D born … 2002 to the surname of Godinez.

6. That the husband pay to the Legal Aid Commission of New South Wales the costs of the Independent Children’s Lawyer in the sum of $4,000.  Such sum is to be paid within 12 months of this day.

7. That all applications and cross applications be and are hereby dismissed.

8. That all issues be removed from the Active Pending Cases List.

9. That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.  

IT IS NOTED that publication of this judgment under the pseudonym Godinez & Stanislaw is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Godinez & Stanislaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2639 of 2007

Ms Godinez

Applicant

And

Mr Stanislaw

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter has now occupied several days of hearing.  To the parties’ great credit, they have been able to reach agreement about the orders for parental responsibility and where the children are to live.  In addition, there is enshrined in the orders that have been agreed a process whereby the father will be reintroduced to the children’s lives.  There has been an issue as to whether or not the children should travel overseas or, in the event the children wish to travel overseas, what is to be done.  Mr Stanislaw indicates to me - I am not sure that I completely accept what he says - that he was not aware that the consent order conferring sole parental responsibility on the mother was sufficient to enable her to do that.  In any event, and by consent, I have added an order that provides in the event of the mother wishing to travel overseas she is to give the husband or the father, as I should call him now, at least 28 days notice of such intention.

2. The issue left for me is the surname to be borne henceforth by the three children of the parties’ marriage, who are B, born in 1997, C, born in 2000, and D, born in 2002. 

3. This matter has a very long history in this Court, there having been difficulties in the conduct of it at some stages because of the father’s inability for a number of reasons to attend in person to conduct these proceedings.  There have been a significant number of lawyers that have come on and off the record for the father.  His last solicitors were not able to represent him at this hearing. His last solicitor, Ms Sharah, appeared yesterday and sought and obtained leave to be excused from the proceedings. 

BRIEF HISTORY

1. A brief history of the matter would seem to be as follows:  the mother was born in 1977 and the father in 1977.  They appeared to commence a relationship in 1994.  The eldest child, B, was born in 1997.  The parties then married in 1999.

2. I am told and accept that when B’s birth was registered, as is required, that he was registered with a hyphenated name.  However, subsequent to the parties’ marriage, that name was changed to Stanislaw.  I am satisfied that when he was christened, and I accept that was in a Catholic church, his name shown on the baptismal documents was, again, Stanislaw. 

3. C was born in 2000, and the parties moved to Queensland in 2001.  In 2002, D was born.  There were then some difficulties within the parties’ marriage and their relationship.  In January 2006 there was a final separation with the mother moving back to Sydney with the children.  Thereafter, there have been, as I say, significant proceedings in this Court.

4. The proceedings were commenced in November 2006 in the Federal Magistrates Court. Orders were made by consent for the children to live with the mother and spend alternate weekends and school holidays with the father. 

5. In November 2007 there was an incident involving the child D and her father.  Subsequently, the father was convicted on two counts of common assault. 

6. The father appeared to believe when this matter commenced that he would be able to re-agitate the issues of those episodes.  As I have explained and I now record, he was convicted in a court exercising competent jurisdiction following a hearing at which satisfaction would have been required to the criminal standard, that is, beyond reasonable doubt.  There are a number of cases in this Court which indicate, in my view, absolutely properly that once a conviction has been recorded in a court of competent jurisdiction, it is not open to go behind that conviction in this Court.

7. The father has also been placed on a number of apprehended violence orders and there is currently, as I understand it, an apprehended violence order that will remain in force until 2012. 

8. The father has been unrepresented in these proceedings.  To my mind, he has done no bad job in putting his case as best he could.  He has acted sensibly entering into consent orders disposing of the majority of issues in dispute.  However I suggest to him that if he has any doubt as to the meaning or effect of any of those Orders he should seek legal assistance, if necessary by attending upon the duty solicitor in this Court, so he is left in no misunderstanding or is under no misapprehension as to what any order may mean. 

THE LAW TO BE APPLIED

1. The orders sought and the order remaining for determination are parenting orders.  I am required, pursuant to the various sections of the Act, to take into account a number of matters.

2. The objects and the principles as set out in subdivision B of division 1 of part VII of the Family Law Act. The objects are to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child, protecting the children from physical or psychological harm and ensuring proper and adequate parenting.

3. Section 60CA says that the child’s best interests are the paramount consideration in making a parenting order. 

4. Section 60CC then tells me how a court determines what is in the child’s best interests.  There are both primary and secondary considerations.  Primary considerations (sub-section 2) are the benefits of the child of having a meaningful relationship with both parents and the need to protect the child.  There are a number of additional considerations under s 60CC(3) which assist in reaching a determination.

5. The first of the matters to which I must have reference are the views expressed by the child or children (s 60CC(3a)).  In this case, the cornerstone of the mother’s position is that the children for themselves want to have their surnames as “Godinez”.  There have been tendered documents from each of the girl’s journals which would, on the face of them, clearly indicate this.  The father puts to me that there is in some way intrigue or some form of invention in those documents. 

6. I am concerned that the mother would use the documents she has in this fashion.  It may have been different if the children had been preparing documents knowing that they might be presented to the Court.  The documents that the mother has produced I understand were for the purpose of the children recording their views and feelings so that they could look back upon them later as they grew into adulthood.  I am concerned that the documents appear to have been created some considerable time ago.  However I am not satisfied that they are inventions.  I am not satisfied that they are forgeries. 

7. There are no diary entries attributed to B.  B, however; in the family report, which has not been challenged, makes a number of comments about the name by which he would wish to be known.  He is, of course, the oldest child of the parties.  He is reported as saying in paragraph 41:

   I am going to high school now and I want to be known as [Godinez].  I love my mum.  I simply want to be [B] [Godinez], not hyphenated.

   Later at paragraphs 45 and 46 of the report, there is mention of having his father out of his life and what it was that he asserts his father did to him. 

8. Neither of the girls in the paragraphs relating to them within that report, that I can see - and I certainly stand to be corrected - make a similar statement to that of their brother as to the wish for their name.  They certainly make comments about their father which are not at all complimentary.

9. I would accept that the views expressed by the children are to be known by the name Godinez.  However, particularly so far as the girls are concerned, whilst they are not young children, they are in my view, at 11 and 9, certainly not in a position where they can be seen to known their own minds so as to determine the issue.

10. This is not a case where I have a great deal of evidence that enables me to examine or explore in the words of the section “any factors such as maturity or level of understanding that are relevant to the weight is should give to the child’s views”.  As I have said, the father has made it clear that he believes the mother has in some way enabled these documents to be created, and that they do not reflect the true views of the children.  Unfortunately, that proposition was never tested, notwithstanding several warnings I gave the father as to what might be required before he could make submissions to such effect.  Accordingly, I must, I believe, give real weight under that subsection to what appear to be the views of the children, and the reasons that they have given for holding those views.

11. The next of the subsections to which I must have regard is the section that deals with the relationship of the child with each parent and other significant adults   s 603(b).  The father has had no relationship with these children, effectively, since November 2007.  The reasons surrounding that are many and varied.  Certainly, the father consented to an order suspending his time with the children at a point in time, as I understand it, when criminal investigations regarding the assault charges (for which he was subsequently convicted) were under investigation. 

12. Since that time the children have been, until recently, wholly dependent upon their mother.  I am satisfied their relationship with her is a close, loving and supporting one.  I am satisfied that the children have formed a relationship with their mother’s present husband, Mr E.  And that leads me to make this observation.

13. The mother was asked in the witness box in the early part of the proceedings what surname would be given to the child with which she is presently pregnant. She said “[Godinez]”.  Further she also gave evidence late in the proceedings that Mr E has agreed to change his surname to Godinez so that there can be a family with the one name.  I find that hard to accept.  I must record I formed the opinion that the mother at the time she gave that evidence was saying things, as they occurred to her.  I do not completely accept that evidence as to what Mr E is or is not prepared to do.  I am left with the situation that if Mr E does not change his name then there could be two names in the mother’s  household, with the mother and children being Godinez and the mother’s partner being E.  If that were to be so, it must cause confusion within that unit.

14. The willingness and ability of parents to facilitate a relationship between the child and the parents (s 60CC3(c)).  The mother made it very clear in her evidence before me that she does not want the children to see their father, but that she would allow telephone contact if that were ordered. The father now seeks to be re-introduced into the children’s lives.  

15. A likely effect of any change in the child’s circumstances (s 60CC3(d)).  The orders that have been entered into by consent will not require an immediate change of any real significance.  They require the father to do certain things which when done may enable the point to be reached where the children wish to see their father, and the mother will facilitate such a wish.

16. However, I must focus on the effect of change for the children depending upon the surname I order them to be known by.  The children have clearly expressed that they do not wish to be known as Stanislaw.  The children, particularly B, have indicated they do not wish to be known by a hyphenated name, even though the creation of such a hyphenated name is clearly a fallback position of all parties with there being contest as to the order in which the parties’ names should be incorporated into any hyphenated surname.

17. The capacity of each of the parents (s 60CC3(f).  The mother has a proven capacity to care for these children and to do so in a situation where she has had no financial support from the father of any significance. I will return to that shortly. 

18. The attitude to the child and the responsibilities of parenthood (s 60CC3(i)) it appears that the argument that the parties have now focused on that is the surname which the children are to bear seems to be more important to each of them than issues such as whether there should be sole or equal shared parental responsibility.  It seems to me in this respect each parent is absolutely determined to have his or her way. 

19. There are family violence orders (s 60CC3(k)) in force and I take the existence of those orders into account. 

20. Subsection (4) of s 60CC deals with the extent to which each parent has fulfilled or failed to fulfil parental responsibilities.  The father has not had the opportunity to be directly involved with the children’s lives since November 2007.  Subsection (c) of that section refers to the fulfilment or failure to fulfil a parent’s obligation to maintain a child. A certificate was produced, issued by the Child Support Agency.  That certificate indicates that as at 3 March 2011 the father was indebted to the extent of some $73,000.  As with much of his evidence the father said to me in respect to this document that he did not have the documents in his possession relating to Child Support at present in Court.  However he asserted that the certificate was not correct.  He said initially that he had lodged his income tax returns.  Later he asserted that he had them ready to lodge. 

21. It may well be that upon lodgement of those returns, if he acts correctly and promptly, he will be able to seek an amendment to or departure from any relevant assessment so as to reduce or eliminate the arrears shown.  That is as may be.  At the moment, I accept that the certificate is prima facie evidence that he owes arrears to the extent of $73,000 in respect of child support. 

22. The father’s final submission, which was made with some force, is that it would be an insult to him and his family, particularly the male members of his family, if his children, and particularly his son, were not to be known by the name of Stanislaw.

23. The mother’s case is that she would be much comforted if the name Stanislaw were not the name borne by her children in future.

24. One solution to this problem would be to hyphenate the surnames of the children, putting the names of the mother and the father in whichever order.  However, I am not satisfied that that is necessarily the appropriate manner in which to deal with this case.  I have been referred to a number of cases.  I find great assistance in the decision of Raymond & Harold[1]. His Honour, having reviewed a body of case law, starting with George & Radford[2], Chapman & Palmer[3], Beach & Stemmler[4], (a case which was very kindly provided to me by the Independent Children’s Lawyer), Kelley[5], Skrabl & Leach[6] and Mahony & McKenzie[7].  I also, in my own researches, found the High Court decision in Flanagan v Handcock[8]. 

    [1] [2009] FamCA 155.

    [2] (1976) FLC 90-060.

    [3] (1978) FLC 90-510.

    [4] (1979) FLC 90-692.

    [5] (1981) FLC 91-002.

    [6] (1989) FLC 92-016.

    [7] (1993) FLC 92-408.

    [8] (2002) FLC 93-102.

25. But I adopt without hesitation the matters that his Honour Murphy J found to be applicable in Raymond (Supra).  These, I believe, can be summarised as follows.  First, the outcome must be governed by the best interests of the child and not by supposed parental rights.  Parental rights seem to be something that the father is very concerned with.  The mother appears to me no less concerned.  It almost seems that as though with every other field of argument removed, the parties are going to argue over this aspect of the matter.  The father seemed to make an assertion that he had certain parental rights.  There are no parental rights.  The parents have obligations and duties, the rights are of those of the children.  Further, there is no suggestion that a father has a greater say or importance in the naming of a child than does the mother.  I am satisfied that, notwithstanding the assurances given by the father that there is material contained within the Bible that says, “The father shall prevail,” that as at today in this society that is no longer the case.

26. However, it cannot be ignored that the mother chose to register the name of the parties’ eldest child in a hyphenated form which she later amended to Stanislaw.  The girls as I understand it were registered as Stanislaw. 

27. Second, the children should not be subjected unnecessarily to any confusion of identity.  I am not satisfied there would be confusion in either case that is to say if the children remain as Stanislaw or if they are to be known as Godinez.  I do not believe that the hyphenating of their names would be such as to cause the children confusion but it would certainly be against what I take to be their strongly held wishes.  If I am to impose any order that allows the children to be known by a name other than Godinez I understand that the children would be unhappy.  However I am not satisfied that they would be confused.

28. The short- and long-term effects of any change must be considered.  The short-term effect would seem to be that the children would be pleased if their expressed wishes - and I accept they are expressed wishes - are met.  However, the long-term effects are uncertain.  It seems to me that one of the long-term effects might well be a loss of contact with their father’s heritage and name, not necessarily with the father himself, but with that aspect of their history. 

1. The advantages, as his Honour identified, with the surname remaining as it is now would be that with no change the children would know exactly where they stood and that there would be no need for further activity. 

2. The long term would be to balance what I accept to be what the children want against their surname remaining as it is. The advantage of that would be that the children would have a sense of connection with their father’s family if not directly with their father. 

3. Finally I must examine the present and ongoing involvement of both parents in the life of children.  Clearly, the father’s involvement since November 2007 has been non-existent.  The mother has dealt with the children and the mother has done, I accept, her best to care for them and protect them in a situation of some uncertainty with their father. 

4. B is presently enrolled at school as Stanislaw.  That is something I accept that he clearly does not wish. 

5. I am satisfied that the mother has, indeed, at all times sought to convey to anyone who would listen that the child wishes to be known as Godinez. 

6. I have already said that an easy way around this question would be to hyphenate the children’s names.  To my mind, that would not serve the best interests of these children. 

7. This is a most unfortunate matter, however it’s history cannot be changed. The children clearly wish to be known as Godinez.  Their father has played a minimal part in their lives to date and for the foreseeable future that situation will remain the same.   I am of the view that the children should have one surname by which or with which they can be known, both for official purposes and socially.  In my view, in the circumstances of this case, that can only be the name Godinez.  I will so order.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 6 April 2011.

Associate:

Date:  2 August 2011