Haddon and Sharrock

[2013] FCCA 986

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADDON & SHARROCK [2013] FCCA 986

Catchwords:
FAMILY LAW – Parenting orders – application for change of name of child – mother with sole parental responsibility – child lives with mother – father has had no contact with child for the past two and a half years –father’s surname to be one of the child’s middle names – child will remain sufficiently connected with the father and her (omitted) heritage – application granted.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS HADDON

Respondent: MR SHARROCK

File Number: MLC 2251 of 2011

Judgment of: Judge Hartnett

Hearing date: 29 July 2013

Delivered at: Melbourne

Delivered on: 2 August 2013

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

THE COURT ORDERS THAT

1. The mother be permitted to change the name of the child X born (omitted) 2007 to X and that from 26 July 2013 the child be known by that name.

2. The mother be permitted to make application to the Registrar of Births, Deaths and Marriages for the child’s name to be recorded as X on her birth certificate and IT IS REQUESTED that the Registrar record such alteration notwithstanding that the father does not consent to the change in name.

3. UNTIL FURTHER ORDER, the child, subject to the Order, is restrained from leaving the Commonwealth of Australia.

4. Each party MS HADDON born (omitted) 1979 and MR SHARROCK born (omitted) 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said child X born (omitted) 2007 from the Commonwealth of Australia.

5. IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s on the Watch List until the Court orders its removal.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 2251 of 2011

MS HADDON

Applicant

And

MR SHARROCK

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced upon the mother filing an Initiating Application on 9 August 2012 seeking parenting orders.  Specifically, the mother sought permission to change the name of the parties’ daughter X to a new name of X.  X was born on (omitted) 2007 (‘X’), and on the day of the hearing turned six years of age.  The father filed a Response to Initiating Application on 2 November 2012.  He opposed the order sought by the mother.  In the mother’s Initiating Application filed 9 August 2012, she had sought that X’s name be changed to X.  At trial, the mother indicated that the name which she proposed was X so as to retain her father’s surname within her name.  The father opposed any change to X’s name and wished for her to be known hereafter as X, the name given to her and registered on her birth certificate.

2. In support of her application, the mother relied upon Affidavits sworn by her on 9 August 2012 and 9 April 2013.  The father relied upon an Affidavit sworn by him on 2 November 2012.

History

1. The parties married on (omitted) 2003 in (omitted).  They had previously participated in a cultural/religious ceremony in (omitted) in (omitted) 2002.  The father is (omitted) by birth and the mother is Australian.  Following their marriage, the parties travelled to New Zealand, where they took up residence and resided for a period between approximately 2004 and 2009.  The father became a New Zealand citizen in this time and X was born on (omitted) 2007.  She was born in Australia, the mother having travelled to Australia for her birth.

2. The parties separated on 6 February 2010 and a divorce order was granted on 8 May 2012 on the mother’s application.  Previously, on 28 March 2011, interim orders were made in this Court on an undefended basis, the father failing to participate in the proceedings.  Those orders provided that, until further order, the mother have sole parental responsibility for X and that X live with her.  Further, those orders provided that each of the mother and father were restrained from removing or attempting to remove or causing or permitting the taking or sending of X from the Commonwealth of Australia. X’s name was placed on the airport watch list pursuant to orders made that day.  She remains on the airport watch list until this time and the mother remains concerned that she not be removed from such list.

3. On 29 August 2011, on an undefended basis and being final orders, the Court ordered that the mother have sole parental responsibility for X and that X live with her and spend time with her father as agreed between the parties from time to time, subject to such conditions as may be deemed appropriate by the mother, including supervision or other appropriate conditions.  A copy of those orders was to be served upon the father as soon as practicable and by electronic means to the email address provided by the father.  There was liberty to the father to seek to set aside the orders upon written application made by him.  He did not make any such application.

4. Service upon the father in the above referred to proceedings was effected to the satisfaction of the Court at the relevant time.  Sealed copies of final orders were also served upon the father in accordance with orders of the Court.  At no time prior to the mother serving the application for a change of X’s surname and post Easter 2011, has the father participated in any proceedings.  The mother’s telephone number and email address have remained unchanged since the parties’ separation in early 2010.  The father has always been able to contact the mother by one, or other, or both of those means.  In addition, the father has known the whereabouts of the maternal grandparent’s home, it being a home in which he and the mother resided on their return from New Zealand to Australia, and at which they remained until the time of separation.  The maternal grandparents continue their occupation of that property in (omitted) and the father, at any time, has been at liberty to attend upon that property to seek the whereabouts of the mother and child.  He has not done so.

5. The father ceased all face to face contact with the mother and child just prior to Easter 2011.  Around Easter of 2011, he left Australia and travelled to (omitted) to be with his family. He remained there for some 55 days.  He returned to Australia and telephoned the mother, with a view to seeing X.  The mother advised him that they were then away, but that she would telephone him in a couple of days.  She did so, and they had a discussion about him seeing X.  It was not to his satisfaction. He has failed to see, or communicate with, X since that time. He has resided in Melbourne for the last, in excess of two years.  In that time, he has spent perhaps, two to three months, at differing times, back in (omitted). 

6. When this application first came before the Court on 8 October 2012, the mother and the father both appeared in person.  The father had not, at that time, filed a response nor any affidavits and was required to do so within a period of 28 days from the making of an order to that effect.  That proceeding was the first occasion on which the father had attended at Court. The father obtained advice from the duty lawyer.  One of the orders made that day provided that the child, X born (omitted) 2007, be permitted to be described as “also known as X” until further order.  The father opposed the making of that order.

Evidence

1. The father has both New Zealand and (omitted) citizenship.  He has permanent residency in Australia.  The mother has Australian citizenship. 

2. Since the parties’ separation, X has lived with her mother.  Both parties agree that she has not seen her father for the two and a half years prior to the hearing of this matter on 26 July 2013.  That is, she has not seen her father since she was aged approximately three and a half years.  She has some recollection of him as deposed to by her mother but it is not a clear recollection.  Her relationship with him when she did see him, the mother states, was always good. Those times were, however, post separation, sporadic and irregular and as determined by the father.

3. Over the course of these proceedings and the earlier proceedings, the mother made many attempts to contact the father by way of telephone, text message and email.  She has also messaged his sister on Facebook.  She was unaware whether the father remained in Australia or whether he had returned to either (omitted) or New Zealand until he responded to the current application.  She has been very concerned about the impact of the father absenting himself from X’s life, and has acted to minimise any trauma and/or distress caused to X as a consequence.

4. The father deposing in his Affidavit sworn on 2 November 2012, to have had regular contact with X, was simply not true.  The father determined to oppose the mother’s application on this occasion, because he saw the change of name application as potentially producing an outcome which caused him great concern.  He claimed X’s surname would help her to identify with him as her father and believed, this would continue to be the case, despite his absence from her life. 

5. The mother’s evidence which I accept is that:-

   a)she is keen for X to understand her (omitted) heritage.  The name X was chosen jointly by the father and herself as it is indicative of her (omitted) heritage and ethnicity.  The mother would like X to know and understand her dual ethnicity and heritage.  It is something she has always instilled in her daughter and her daughter is proud of her unusual joint heritage;

   b)the father’s surname is only a fairly recent invention by himself and his family.  When the father was born, his family name was (omitted).  The family changed their surname to coincide with their move from (omitted) to (omitted) near (omitted).  That was approximately 10 or 11 years ago.  The original name of (omitted) hails from the small village (omitted), which is X’s great-grandparents’ ancestral home.  The father’s family decided to modernise their name.  The name Sharrock, therefore, does not have a lengthy history of connection with the father or his family;

   c)she has given considerable thought to the change of X’s name.  She has weighed up, what she described, were the ‘pros’ and ‘cons’.  She felt the change of surname to ‘Haddon’ would be beneficial for X, because it would provide her with the same surname as her mother, and the same surname as the family who had been around her, and given her, her current identity.  It is the mother and her family who have engaged in X’s life.  The current surname of ‘Sharrock’, produces questions from other persons as to why the father is not around, which have been difficult for X;

   d)X will have the benefit of having her father’s surname as a middle name.  The mother would not be happy with a surname inclusive of both parties’ surnames with a hyphen, as it was her belief that would be unduly lengthy and cumbersome for X.  It was not put forward to be in the child’s best interests by the father in any event; and

   e)she is aware that the father opposes X having a middle name.  The mother noted that it was not an unusual thing for an Australian child to have one or even two middle names.  Her belief is that the inclusion of ‘Sharrock’ as a middle name will embody her ethnicity from both her mother and father’s side.

6. I accept the mother’s further evidence that she does not wish to stand in the way of X having a relationship with her father and knowing who he is.  I accept her evidence that she would not change her surname or X’s surname if she were to re-marry.  While she is currently not anticipating re-marriage, her evidence is that during her entire marriage to the father, she retained her birth surname of ‘Haddon’ and intends it will remain her surname into the future.

7. The mother agonised over whether or not to make the application to change X’s name, as she anticipated (correctly) that it would provide a further wedge between the child and her father.  Nevertheless, she felt the advantages outweighed that aspect for X, and that regardless of names, X’s father would always be her father.  I accept the mother’s evidence that she has a heart-felt and genuine desire for the father to re-connect with his daughter. Her evidence was that X missed her father, and felt abandoned by him when he disappeared some two and a half years ago.   

8. The father has refused to discuss X with the mother, as he claims that the mother has been rude and bossy toward him and hurt his feelings.  There is no other evidence of this non-particularised claim made by him in the witness box in the running of the matter. The evidence in its totality and the history of the parties’ communications provide a contrasting and more accurate description of the mother’s treatment of the father. The mother has been conciliatory, thoughtful and kind toward him and acted in the best interests of X.  She has been concerned on X’s behalf, with the father’s absence from her life.  It looks set to continue with the father’s evidence at trial being that he would continue to not speak directly to the mother, and nor to her family members. 

9. The father initiated mediation, in respect of these proceedings, but having attended one session, he refused to attend for further sessions.  He indicated that he would not currently accept an initial period of supervision of his time spent with X, although he may in the future, come to accept that.  The mother proposed that he see X again initially in her presence or in the presence of another family member, so as to make X feel comfortable, on her re-introduction to her father.  This was a proposal that clearly promoted the best interests of X, given her present age and the lack of contact with her father, over the previous years.

10. The father’s evidence is that it is his right, as a father, to see X.  He claimed that “I’m ready to see X now”.  His evidence was that it had taken him some two years to build up his life again and that he was now, in a happy place.  He wished for there to be no change to X’s surname because his evidence was that the mother should not have her identity in the child.  From his perspective, that was a fact everywhere in the world, that the mother did not have a right to place her surname at the end of her child’s name.  The father’s evidence was that if this Court changed X’s surname, as he anticipated it would, because it is Australia and not (omitted), that at 18 years of age, he would tell X to change her surname back, to that of her (omitted) heritage.  His derision of Australian law was both expressed and palpable in the witness box.

11. The father’s evidence was that he was offended by the placing of X’s name on the airport watch list.  Nevertheless, on the history of the matter and considering the father’s attitude toward the child, that would seem to be a necessary order.  The father’s evidence was that he went away from the child “for some peace for my child” and that he has made no provision for her financial support because he does not see her. He is unhappy that he has been unable to take her to (omitted).

12. The mother’s wish is for X to have the surname of her maternal family, who provide her with a strong sense of belonging, love and positive identity.  It is they who have assisted the mother in providing for X’s emotional and financial support, in the last two and a half years. 

13. The mother’s attitude toward the responsibilities of parenthood has far exceeded the father’s.  The mother has been responsible for the totality of X’s financial, physical and emotional support and has been assisted by the extended maternal family, in particular the maternal grandparents, in that task.  X has a loving and close relationship with the maternal grandparents and the extended maternal family.  X has a loving and close relationship with her mother and is heavily dependent upon her.  She sees herself as living within the ‘Haddon’ household and is happy to share the surname of her mother, in particular as she has now commenced school. 

14. The presence of the father’s surname in the child’s name will continue sufficiently to maintain her identity with her (omitted) heritage.  It will also continue her connection with her father should he determine to spend time again with her in the future.  On his evidence it cannot be concluded that he will, but he might. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  2 August 2013