Gorecki and Madigan

[2017] FCCA 3135

FEDERAL CIRCUIT COURT OF AUSTRALIA

GORECKI & MADIGAN [2017] FCCA 3135

Catchwords:
FAMILY LAW – Final ruling on matters advanced by consent by oral submissions only.

Chapman & Palmer (1978) FLC 90-510

Applicant: MR GORECKI

Respondent: MS MADIGAN

File Number: DGC 1038 of 2016

Judgment of: Judge Burchardt

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Dandenong

Delivered on: 8 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Gorecki, In Person

Counsel for the Respondent: Ms Bonney

Solicitors for the Respondent: Howe Legal

Counsel for the Independent Children’s Lawyer: Mr Kiernan

Solicitors for the Independent Children’s Lawyer: Robert Halliday & Associates

ORDERS

1. The order appointing the Independent Children’s Lawyer dated 20 June 2016 be discharged.

2. The father pay the mother’s costs reserved at the hearing on 12 July 2016 fixed in the sum of $1,489.

3. Final parenting orders are made in accordance with the attached Minutes of orders placed on the Court file.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1038 of 2016

MR GORECKI

Applicant

And

MS MADIGAN

Respondent

REASONS FOR JUDGMENT

1. There were, yesterday, three issues that I was required to determine.  There are now four and I will deal with them.  The three issues itemised yesterday were the application by the mother to hyphenate the children’s surname, a question as to where changeovers should occur and the question as to whether or not there should be substantial attendance for the first year of the spend-time regime on the part of one or other of the father’s parents.  I know one of them is s a stepparent but we will take that as read for the moment.

2. So far as the issue of the change of name is concerned, we are concerned with three children:  [X] born on (omitted) 2012, therefore now five; [Y], born on (omitted) 2013 and now four; and [Z], born on (omitted) 2015, therefore now two.  The children will live predominantly with their mother but spend time each alternate weekend with their father.  I should point out that all of this is by consent.  I am being asked to determine on submissions only the three issues with which we are concerned.

3. The mother wants a hyphenated name and the father opposes it.  The reasons for his opposition are set out at paragraph 45 of his affidavit, sworn on 1 December 2017, as follows:

   I do not agree for the children to be known as Madigan-Gorecki as follows:

   (a)    I say that the children have been known as Gorecki since birth.

   (b)    I believe it is not in their best interests and a detriment to the children in using the hyphenated name as the children will become confused and confused of their identity. 

   (c)     I believe all the children’s medical, school and kinder records all have the surname as Gorecki.

   (d)    The mother has not communicated to me her desire to change the children’s name.

4. These points were repeated in the oral submissions made by the father yesterday.  I should say that in both what he said and in his demeanour and, indeed, in his materials more generally, it is possible to discern a strong sense of ownership of the father’s part in relation to the children.

5. The mother’s position is put at paragraphs 50 and following of her most recent affidavit.  Essentially, it is deposed that the children asked why they have a different name from her and want the same name.

6. I note that the relationship endured from 2011 until March 2016.  So when separation took place, [Z] was under one year old.  How much a child of that age would understand is open to considerable question and, indeed, that might even be the case with – certainly the next eldest child.  The question of change of name has been considered a number of times, but the most definitive assertion from the Full Court of the Family Court as to this matter took place in the matter of Chapman & Palmer (1978) FLC 90-510 and I read from the headnote:

   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 name 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 propriety interests of the parents. 

   The factors which should be taken into account by the Court in determining applications about the surname of a child. The Court summarised these thus:

   (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 is 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.

   (f )    The effect of frequent or random changes of name.

7. If you take these matters – as I do – as being guidelines of some potency, the first matter is, of course, that the children will live predominantly with their mother.  She will have their day-to-day care.  She has deposed and she has not been challenged that the children say they wish to have her name and that they ask why their name is different.  Given their ages – and particularly that of the older two – this is an understandable query.  In my view, that is a significant matter.  The eldest is just about to go to school and questions of name start to take on a greater degree of significance in a child’s life. There are rosters and the like for the first time.  So that is an important consideration. 

8. The short and long term effects of change in a child’s surname are, in my view, unlikely to be calibratable at this stage.  The children have not spent many years where they would have known what their surname was if they knew it at all.  Any change is likely to happen relatively seamlessly.  Given what the children have told the mother, there is a likelihood of embarrassment at having a different name to their mother and that is also a relevant consideration.  I see no reason to suggest the children will suffer any confusion of identity if the name is changed because I say their surname has not operated upon their minds for any great period of time. 

9. There is no reason to suppose – looked at rationally, notwithstanding any fears either of the parties may have – that the change of name will, in some fashion, cause any change in the relationship between the children and the parent. 

10. Taking all these matters together, it is clearly in the children’s best interest that the children be changed and I am going to change it to Madigan-Gorecki.  In my view, there is no prominence given to one name or the other in a double-barrelled name.

11. The next issue is the question of changeover.  The father presently lives and will continue to live in Town A and the mother in Town B.  It is immediately apparent that changeover close to halfway is desirable.  The (omitted) service station is a nonthreatening environment unlike a police station and has CCTV and is constantly staffed.  It is clearly the appropriate outcome and I note that the family report at page 17 recommended the changeover take place about halfway. 

12. The third issue is substantial attendance.  The father’s proposed residence, as he has described it, is hardly entirely appropriate. It has only two bedrooms and there are three children and were substantial attendance ordered, there would be a question as to where the relevant grandparent would be.  The mother adopts the family report and points to paragraph 82 of that report which recommended there be 12 months of substantial attendance by the parent or grandparents.  The father opposes this and says it is both necessary and puts an excessive burden upon his parents.  I note, however, that the family report said this at paragraph 41:

    Having said that, it appears that at least for the forthcoming year while [X] is undertaking the huge developmental step of a first year in primary school, the children should spend time with their father with their paternal grandmother and/or step-grandfather in substantial attendance. 

13. The father’s most unfortunate difficulties with his mental health are well documented and the recommendations are clear and are going to require that for the first year of the new spend-time regime, the paternal – grandmother or step-grandfather be in substantial attendance.  This is not a requirement for supervision.  It is a requirement they be substantially in attendance when time is spent. 

14. The final issue raised was raised this morning, namely whether or not the mother should be compelled to provide her address to the father.  The fact is there are no changeovers at the mother’s home.  It is not necessary for these orders to work that he know where she live.  The father is clearly very concerned and this has manifested itself on a number of occasions, both yesterday and today that the mother has asserted that he has been violent.  He steadfastly and very strongly denied this.  However, as the family report – indeed, the quote the father made himself – makes clear that the mother is scared of him and that operates as a decisive factor in the circumstances.

15. There is no reason to expose the primary carer of these children to unnecessary mental stress in that way.  I should emphasise in the strongest terms that in making this finding I am not accepting that the father has been violent, but I am accepting – because it is unchallenged – that the mother is scared of him and that is the critical matter.  I would request counsel to draw up a set of minutes to give effect to these conclusions. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  22 January 2018