Groda & Balay
[2024] FedCFamC2F 747
•14 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Groda & Balay [2024] FedCFamC2F 747
File number(s): PAC 3033 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 14 June 2024 Catchwords: FAMILY LAW – PARENTING – Change of name – where mother seeks her surname be hyphenated and included in the child’s surname – international travel to non-Hague Convention countries – international travel to Hague Convention countries – orders made. Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 11 June 2024 Place: Parramatta Counsel for the Applicant: Ms Smith Solicitor for the Applicant: Heras Family Lawyers Counsel for the Respondent: Ms Ingenito Solicitor for the Respondent: Doolan Wagner Family Lawyers ORDERS
PAC 3033 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GRODA
Applicant
AND: MS BALAY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
14 JUNE 2024
THE COURT ORDERS THAT:
Change of name
1.The child’s name, X, born in 2020, be changed to X Balay-Groda.
2.That for the purposes of Order 1, the parties are to sign all documents necessary to facilitate the change of name within seven (7) days of any form being presented by one party to the other party AND IT IS NOTED THAT the Mother is to bear the cost associated with changing the child’s name.
International travel
3.That both parents be permitted to temporarily remove the child from the Commonwealth of Australia for the purposes of overseas travel and holidays provided that, unless otherwise agreed between the parties in writing:
(a)Any travel comply with the conditions set out for the release of the child’s passport below;
(b)The parents may travel to a non-Hague convention country, subject to the deposit requirements with the registry below;
(c)The parents may travel to a Hague Convention country, subject to the deposit requirements of an authenticated written consent with the registry below;
(d)The travel takes place during such times that the child is in the care of the travelling parent pursuant to these Orders;
(e)The travel takes place, unless otherwise agreed between the parents in writing, during school holiday periods that the child is in the care of the travelling parent pursuant to these Orders;
(f)The travelling parent gives the other parent, at least six (6) weeks in advance of the proposed travel, written details of the names of places outside of the Commonwealth of Australia where the child will be travelling (being countries, cities and towns);
(g)The travelling parent gives to the other parent, at least twenty-eight (28) days in advance of the proposed travel, written details of the departure and arrival dates to and from each country to which it is intended travel will occur, written copies of all itineraries, contact telephone numbers and addresses of all places where the child will be staying overnight when outside the Commonwealth of Australia;
(h)The travelling parent must ensure the child travelling outside of the Commonwealth of Australia is covered by a valid travel insurance policy for the duration of travel outside of Australia and a copy of such policy shall be provided to the other parent at least 14 days in advance of the proposed travel;
(i)The travelling parent gives the other parent, not less than 14 days in advance of the proposed travel, a copy of the child’s visa (if applicable), all return airline and/or shipping tickets for the child evidencing the child’s return to the Commonwealth of Australia; and
(j)The travelling parent shall deposit the following sum into the Court’s trust account, no later than 7 days before the proposed travel, upon which the
Court shall release the child’s passport to the travelling parent, subject to the
following:
(i)For either parties’ travel to Country C, or any other non-Hague convention country, each party deposit the sum of $150,000; and
(ii)For either parties’ travel to a Hague convention country, each party send to the registry, a document executed and witnessed by an authorised witness, confirming their written consent to the other party receiving the child’s passport, for the purposes of that Hague convention country travel, and the deposit of no less than $25,000.
4.That the parties shall cooperate in facilitating the child to travel with each parent for the purposes of overseas travel and holidays.
5.That neither parent without reasonable excuse shall object to or attempt to restrict the child’s overseas travel, subject to the above conditions being met, and these Orders shall become such consent to travel, provided all conditions are met.
Travel to Country C
6.That notwithstanding any Order herein to the contrary the Mother shall be permitted to travel to Country C with the child, upon the provision of at least six (6) weeks’ notice in December 2024/January 2025, for a period of four (4) weeks.
Overseas travel
7.Subject to the above Orders, the parties shall both be at liberty to travel outside of the Commonwealth of Australia with the child in accordance with the conditions set out in the above Orders for a period of four (4) weeks, as follows:
(a)In each odd year commencing 2027, and each alternate year thereafter, the Father shall be permitted to travel with the child during the Christmas period (December/January); and
(b)In each even year, commencing 2024, and each alternate year thereafter, the Mother shall be permitted to travel during the Christmas period (December/January).
8.For the purposes of these Orders, the parties shall be at liberty to remain outside of the Commonwealth of Australia at the end of the child’s time with that party and must do all acts and things to facilitate the changeover of the child in the Commonwealth of Australia to the other parent via a trusted personal or close relative, or in the alternative the parent shall do all acts and things to facilitate the child to return as an unaccompanied minor at the permitted age, with such service to be arranged and paid for by the parent choosing to remain outside of the Commonwealth of Australia beyond the period of four (4) weeks AND IT IS NOTED THAT for the purposes of these Orders, changeover of the child may occur outside of the Commonwealth of Australia if agreed to between the parties in writing.
Child’s passport
9.That the Father must do all acts and things to sign all documents and applications sent to him by the Mother within seven (7) days of him receiving those documents in order to allow the Mother to apply and obtain an Australian Passport for the child AND IT IS NOTED THAT the parties are to each equally meet the costs associated with obtaining the child’s passport.
10.That the Court shall retain the child’s passport, and shall only release the passport, subject to the above bond/written consent, and any bond paid by a parent to facilitate such overseas travel shall be repaid upon the passport being re-deposited into the Registry.
11.That the parties be at liberty to renew the child’s Australian passport and the parties be required to do all acts and things and sign all necessary documents to renew the child’s passport within fourteen (14) days of being requested by the other parent to do so AND IT IS NOTED THAT the parties are to each equally meet the costs associated with renewing the child’s passport.
Travel within Australia
12.That both parents be permitted to travel with the child within the Commonwealth of Australia provided that, unless otherwise agreed between the parties in writing:
(a)The travel takes place during such times that the child is in the care of the travelling parent pursuant to these Orders; and
(b)For any travel of three (3) nights or more in duration, the travelling parent provides the other parent, at least two (2) weeks in advance of the proposed travel, written details of the departure and arrival dates, written copies of all itineraries, any flight of shipping details which the child will be travelling on and contact telephone numbers and addresses of all places where the child will be staying overnight.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of the final hearing relating to X, a male, born in 2020, currently aged 3 years old (“the child”) but only in respect of proposed international travel and name change orders.
At the outset of the final hearing on 11 June 2024, the Court had made final property and parenting orders (Exhibit A) which did not include proposed international travel and name change orders.
PROPOSALS
The mother seeks orders that the child’s name, presently X Groda, be changed to X Groda-Balay. The mother’s surname is Balay. In the alternate, she seeks an order that the child’s name be changed to X Groda (Balay then being effectively a middle name). These proposed name changes are opposed by the father.
The mother seeks orders that would permit her to take the child with her to Country C to effectively visit the maternal extended family there. This is opposed by the father, who contends, inter alia, that there is likely a significant risk that if such an order is made the mother may travel to Country C (or possibly other non-Hague Convention countries) with the child and not return to Australia in a timely fashion.
MATERIAL RELIED UPON
The father relied upon:
(a)Amended Initiating Application filed 28 August 2023;
(b)His affidavit filed 12 January 2024;
(c)His Financial Statement filed 30 November 2022;
(d)Family Report of Ms D dated 21 July 2023;
(e)Joint balance sheet filed 10 June 2024; and
(f)Minute of consent orders dated 10 June 2024.
The mother relied upon:
(a)Amended Response filed 23 August 2023;
(b)Her affidavit filed 24 December 2023;
(c)Her Financial Statement filed 21 March 2024;
(d)Family Report of Ms D dated 21 July 2023; and
(e)Minute of consent orders dated 10 June 2024.
The Court has had regard to all the documents and material referred to above and relied upon by the parties, and their oral submissions.
EVIDENCE
Change of name
The Court has had regard to relevant legal principle relating to the child’s prospective change of surname including the case law referred to in each parties’ case outlines.
The Family Report writer had stated at paragraph 192 of her Family Report that whilst it may be true that a double-barrelled name is more unusual in families of Country C background, it is also true that some Country C families have chosen to take this step, despite the cultural mores. Whilst the Court takes this evidence of the Family Report writer into account, the Court now refers to the father’s evidence in this context.
The father had told the Family Report writer at paragraph 68 of the Family Report that the prospective surname of a child being changed to include the mother’s surname is culturally inappropriate and that children of a Country C background do not take the surnames of both their parents; the Court accepts this evidence of the father.
The mother told the Family Report writer at paragraph 109 of the Family Report, inter alia, that she considers it unfair that the child has the first name and surname that were decided by the father and that she did not play a role in this decision. As to this allegation of the father’s unilateral behaviour in selecting the child’s surname, the Court is not persuaded, on the balance probabilities, that this in fact occurred. Whilst the mother asserts that that unilateral decision was made shortly after the child’s birth, on the other hand the father asserts that the parties had discussed the child’s name to be X Groda.
In any event, even if the mother’s allegation of unilateral behaviour by the father in this regard is correct, the Court finds that the mother’s views as to unfairness by the father in unilaterally selecting the child’s surname are likely more linked to her own feelings about fairness and her wish to exercise some assertiveness, rather than being due to a perceived benefit to the child, as opined by the Family Report writer (and see paragraphs 178 and 180 of the mother’s affidavit).
The child is now about 3 years old. The Court accepts the evidence of the father that when the child is asked what his name is by people, he tells them “X Groda”. The Court accepts the father’s evidence that he has seen the child practising writing his name as “X Groda”.
It is now about one year since the Family Report writer’s report; the Family Report writer had stated that it was important for any change in surname of the child to occur as soon as possible or such a change may be difficult for the child to understand. Her recommendation in the Family Report had been (recommendation 11) that if the name of “Balay” is to be added to the child’s surname, that this occur as soon as possible to reduce the confusion that the child may have about a change of surname. In light of one year having elapsed since the Family Report, the Court is concerned that any change of surname for the child may result in some confusion for the child.
This is not a case where the child will ultimately spend little time with the father. The Court’s final parenting orders made by consent provide, ultimately, for the child to spend time with the father, inter alia, some 5 nights per fortnight. This arrangement is an arrangement approaching an equal time arrangement. In other words, in these circumstances, the Court does not envisage any significant embarrassment being experienced by the child because his surname is the father’s surname and the mother is the primary carer.
If the child’s surname was changed as proposed by the mother, the Court does not envisage any significant effect upon the child’s relationship with the father.
The child will remain living in Australia. The child is only 3 years old. The Court takes into account, but not to a significant extent, the impracticality to the child of having to recite to third parties hyphenated Country C surnames.
The Court is of the view that if the mother’s surname Balay is ordered to be the child’s middle name (akin to a middle Christian name) then this may well, on occasion, assist the child in confirming his identity with the mother and the maternal extended family. In all the circumstances, such an order will be in the best interests of the child.
International travel
The Court has had regard to relevant legal principle in this context including the case law referred to by the parties in their respective case outlines.
The child presently does not have any passport.
The father refers to the mother’s affidavit evidence, including at paragraph 64, where the mother asserts that in about early 2016 (the Court interpolates that the parties moved to Australia in early 2016) she found out that the father was having an affair and as a result she decided against moving to Australia. She asserts that she was then forced or pressured by the father’s parents to give him another chance. The mother refers to then going to couples counselling with the father who accepted that he was cheating and lying to the mother. She stated that given the father’s promises to herself and her family that he would not behave in this way in Sydney, and the fact that the mother had already left her job in preparation for the move to Australia, she decided to agree to reconcile and moved to Australia with the father. Whilst the Court takes this evidence of the mother into account, it also observes that some 8 years has passed since early 2016 and, during the period from at least 2016 to 2019, despite likely significant conflict between the parties during their relationship, the mother on numerous occasions had travelled to Country C on her own and then returned to Australia.
The Court takes into account that since early 2016 the mother has obtained employment in Australia and is presently in full-time employment here as a professional earning significant income. The Court takes into account that the mother has lived in Australia for some 8 years. It accepts her evidence that she has no intention of returning to Country C to live. She is an Australian citizen as is the child. The mother has a brother who lives in Australia with his wife and indeed the mother lives with those persons in their residence and has done so for some not insignificant time. The child attends daycare in Sydney and has formed friendships with the children at his daycare. The mother has a number of good friends in Sydney and a good support basis in Sydney. The mother asserts that she would only ever travel to Country C in accordance with any orders the Court makes and would always return home to Sydney. The mother is prepared to lodge a bond of $150,000 as a condition of her travelling to, for example, Country C, being a non-Hague Convention country. She is prepared to lodge a bond of $25,000 as a condition of her travelling to a Hague Convention country.
The Court takes into account that the father, together with the mother, has agreed to final parenting orders that, inter alia, provides for the child living with the mother.
It is not readily apparent, if the mother was permitted to travel to Country C with the child to visit her maternal extended family, what might motivate the mother to remain living in Country C with the child. The evidence before the Court does not clearly point, if at all, to any motivation of the mother to remain living in Country C with the child. Counsel for the father was asked to address the Court on this particular point and no clear motivation on the part of the mother to do this was able to be submitted to the Court.
The Court takes into account that developmentally it may well assist the child to meet further members of the maternal extended family in Country C. The evidence indicates the child has at least met the maternal grandparents in Sydney.
It is possible that the mother could possibly herself afford to pay for her parents to travel to Australia to visit the child. However, this would not fully substitute for the child meeting additional members of the maternal extended family in Country C nor indeed meet the developmental benefits for the child in meeting members of the maternal extended family in their home country in Country C. And, moreover, the Court observes that the mother spent a significant part of her life in Country C.
The father asserts that he does not see the need for the child to travel to Country C just yet. He asserts that should the parties wish to take the child overseas than they can discuss this issue when the child is older; it is not readily apparent as to why the father maintains this position. He submits that he is happy for the child to travel to Hague Convention countries from the time the child turns eight years.
In all the circumstances and taking into account the above discussed matters in particular, the Court would evaluate the risk of the mother travelling to Country C with the child and not returning to Australia in a timely fashion as low.
The Court is of the view that it will be in the best interests of the child to make the mother’s proposed international travel orders.
The Court makes orders accordingly.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 14 June 2024
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