HAYES & YEO - [2012] FMCAfam 1502

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAYES & YEO

[2012] FMCAfam 1502

FAMILY LAW – Parenting orders – change of surname of children of the marriage – age and wishes of the children – application for change granted.

Family Law Act 1975, ss.11F, 60CC(2) & (3)

Applicant:

MS HAYES

Respondent:

MR YEO

File Number:

MLC 1471 of 2008

Judgment of:

Hartnett FM

Hearing date:

17 December 2012

Delivered at:

Melbourne

Delivered on:

18 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms Richards

Solicitors for the Applicant:

Victorian Legal Solutions Pty Ltd

The Respondent:

In person

THE COURT ORDERS THAT:

The Applicant mother be permitted to change the surname of the child [Y] YEO born [in] 1996 to HAYES such that he be known as [Y] HAYES notwithstanding the consent of the father has not been obtained AND IT IS REQUESTED that the Registrar of Births, Deaths and Marriages do all acts and things necessary to give effect to this order.

AND THE COURT NOTES THAT:

The child [X] YEO born [in] 1995 will be 18 years old [shortly] and at liberty at that time to elect to change his surname of his own volition.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 1471 of 2008

MS HAYES

Applicant

And

MR YEO

Respondent

REASONS FOR JUDGMENT

These proceedings commenced upon an Initiating Application being filed by the Applicant mother on 22 June 2012. In support of that Application, the mother filed an Affidavit affirmed 20 June 2012 and she relies on the contents contained therein. In addition, there was filed on behalf of the mother an Affidavit from her husband, Mr Hayes affirmed 23 April 2012 and the contents of that Affidavit are likewise relied upon by the mother. In response, the Respondent father filed a Response on 27 August 2012 in effect seeking dismissal of the mother’s application, and the father filed an Affidavit sworn on 14 August 2012 and he relies on the contents contained therein. In the course of the proceedings, the parties attended with their children upon a family consultant, being Mr E, for the purposes of the preparation of a family report, with that attendance being pursuant to s.11F of the Family Law Act1975 (Cth) (‘the Act’).
The orders sought by the mother are as follows:
“(1) That the surname of [X] Yeo be legally changed to Hayes;
(2)    That the surname of [Y] Yeo be legally changed to Hayes;
(3)    That the Respondent do all such acts and things and sign all such documents required to facilitate Orders (1) and (2) above;
(4)    That in the event that the Respondent fails and or refuses to comply with Order (3) above within a period of seven (7) days of a written request of the Applicant, that the Applicant be permitted to sign any documents necessary to facilitate Orders (1) and (2) above on behalf of the Respondent;
(5)    Alternatively to proposed Order (4), that in the event that the Respondent fails and or refuses to comply with Order (3) above, that a Judicial Officer of this Court sign any documents necessary to facilitate proposed Orders (1) and (2) above on behalf of the Respondent;
(6)    Such other Order or Orders that this Honourable Court deems appropriate.”
As can be seen from the orders sought in the Application of the mother, these proceedings concern the parties’ children, [X] Yeo who was born on [in] 1995 and is now aged 17 years and will [shortly] turn 18 years, and [Y] Yeo born [in] 1996 who is now aged 16 years. Both boys attended with their parents for a child inclusive conference on 10 September 2012 for the purposes of the preparation of a family consultant’s memorandum to the Court pursuant to s.11F of the Act.

History

The parties married [in] 1992 and separated on or about 31 January 2006. They became divorced on 14 April 2008. From the date of their separation in January 2006, [X] and [Y] have resided primarily with their mother and spent time with their father initially by order, then by subsequent agreement, and ultimately not at all. There were final orders made on 19 October 2006 and being orders by consent. Those orders provided that the two boys would live with their father for six nights out of each 14, and with their mother for the remaining eight. The children were to live with their father from immediately after school each Tuesday until immediately prior to the commencement of school each Thursday. In addition, they were to live with their father on each alternate weekend from 5:30pm Friday to 5:30pm Sunday. Pursuant to the orders, the children were also to spend one half of all the school holidays with each of their parents, and provision was made in those orders for the children to spend special occasion days likewise with each of their parents. These orders continued in operation with the children spending significant time with each of their parents until about June 2008.
In June 2008, [X] and [Y] commenced to spend time and communicate with the father in accordance with an informal arrangement agreed to between the mother and father, such that the children commenced to spend time with their father each second weekend and for one-half of the school term holidays and one week of the Christmas holidays. This was a significant reduction in the time spent between the boys and their father. The agreement between the parents was that the reduced time be trialled for a period of some three months, but the reduced time spent with remained in operation until about January 2009. The father then relocated with his fiancée (now wife) to the State of Western Australia, where he took up residence.
The parties have differing versions of the reasons for the reduction in time spent between the father and children and, commencing in or about June 2008, a number of factors were at play. In December 2007, the children and the mother had commenced residing with the mother’s now husband, Mr Hayes. Although Mr Hayes claimed that he was not seeking to replace the father in the boys’ lives and was encouraging of the children spending time with their father, the children in fact commenced to spend less time with their father. The father asserts that the mother and Mr Hayes actively interfered in his time spent with the children and did so because both of them were condemnatory of the father’s actions in ceasing his employment in the 2008 year to take up full-time study. The consequence of this was a reduction in his child support payments.
The father did take up study in the 2008 year and, in 2009, following his relocation to Perth, again became gainfully employed and recommenced making payments of child support which are continuing until this day. The father’s evidence was also that in the 2008 year, he was involved in a serious car accident which influenced his decision to relocate to Western Australia. He gave evidence that his wife was from a Perth family and that he saw the relocation as an opportunity to start again and to spend some quality time and different time with his boys by way of holiday contact.
Since the father’s relocation to Western Australia in January 2009, the children have continued to reside with their mother and stepfather and initially spent time with the father in the school term holidays in Perth and in the Christmas holidays up until December 2010, when [Y] refused to spend further time with his father. In the intervening two years [Y] has not seen his father, save for formal occasions such as the preparation of the s.11F of the Act family report. [X] has also ceased to see his father, he last seeing him on the evening of 23 March 2011 in Melbourne.
In the period between January 2009 and December 2010, both boys visited their father for almost a week in each of the holidays. Those times were enjoyed by the children, and the father and his wife travelled with them to [omitted]. They swam at [omitted], flew kites, went paintballing, rock climbing, and go-karting. The cessation of their time spent with the father came about primarily because their father refused their request to sign application forms to enable the boys to change their surnames, such that instead of being known by the father’s surname they would be known by their stepfather and mother’s surname. The father was upset when the children came to him with a request to change their surnames and the discussion which ensued was heated and, from the boys’ perspective, extremely frustrating.
The only communication had between the father and his sons between March 2011 and now, being a period of 21 months, has been email correspondence emanating from the father to the boys on two occasions and weekly texts emanating from the father to the boys. To all of these overtures by the father, the boys have not responded.

Consideration

The father’s evidence is that there should not be a change of surname for the boys until they are adults and have an opportunity to consider the long-term consequences themselves. The difficulty for the father is that his eldest son [X] turns 18 years of age [shortly], and the evidence is such that both parties expect that [X] will complete the necessary documentation and attend himself to the changing and registering of a change of surname. Both [X] and [Y] have expressed a wish to change their surname for many years now. The father accepts that [X] will take this action [shortly] and that [Y], if there is no surname change of name as a result of these proceedings, will then be living in a household where his mother, stepfather and brother all have the surname of ‘Hayes’ and he has the surname of Yeo, in circumstances where he has not seen his biological father for two years and where he has expressed a consistent wish over a long time to have the surname of ‘Hayes’.
The evidence of Mr Hayes and the mother in these proceedings is that Mr Hayes loves both [X] and [Y] and treats them as his own children. He refers to them as his sons and they refer to him as their father in front of others, although they call him by his Christian name of [omitted]. Mr and Mrs Hayes have also allowed the boys to use the surname of Hayes wherever it has been legal for them to do so and they have been able. The father in these proceedings gave evidence that he only became aware of their use of the surname of Hayes on Facebook and in other arenas in recent times. He, however, has not acted to seek that they be restrained from using that surname by either having a discussion as to it with their mother, or by seeking Court intervention in the making of a restraining order until further order.
The evidence of the mother and Mr Hayes is that since [X] was about 13 years old and [Y] was about 11 years old, both boys have expressed a wish to change their surname to ‘Hayes’. The mother’s evidence is that in or about February of 2008, and being only a few months after the children and she commenced to live with her now husband, the children asked if they could change their surnames to that of her then de facto. The mother’s evidence is that she was considering marriage to Mr Hayes at the time, they subsequently becoming engaged in early 2008 but not marrying for a period of some 14 months thereafter. The mother said the children’s request to change their surname was to align their surnames with her when her name would be formally changed as a result of her marriage to Mr Hayes. Of course, at that time, the mother had the same surname as that of her children and she was electing to change her surname and thus have one which differed from that of her children. The mother’s evidence was further that the children felt that the stepfather and mother were very much their mother and father, and that they wished to have the same surname as their other family members. This said to be strong expression of the children’s wishes at a young age, and only some months after they had commenced to live with Mr Hayes, to change their surname to that of ‘Hayes’ without any influence being exercised upon by them by their mother and Mr Hayes is simply not plausible. They were, at the time, still living with their father for six nights out of 14 and one-half of the holidays. Their mother had not married Mr Hayes and was over a year away from changing her surname, if she was going to adopt that course.
The relationship between the mother and father was strained, as was the relationship between the father and Mr Hayes. The father’s failure to pay appropriate child support in light of his cessation of employment, as seen by the mother and Mr Hayes, was a factor in the poor and stressful communication had between the parties at the time. It is clear that the mother and Mr Hayes encouraged the boys to think about changing their surname in early 2008, and that in the intervening years, they have allowed and encouraged them to use the surname ‘Hayes’ where possible. Many years have passed since that time however, and in those intervening years, [X] and [Y] have matured, strengthened in their wishes to change their surname to that of the family unit in which they live, and they have become disconnected from their father to the point where they no longer wish to see him.
I accept that the mother and Mr Hayes suggested to both boys that they not seek to litigate the change of surname as a matter of legal registration, but that they do so now because [X] and [Y] wish them to do so, and they consider them of sufficient age and maturity. The boys view Mr Hayes as an ever present father figure who provides for them, loves them, cares for them, and supports their mother in the household. It is clear that the mother, Mr Hayes and the boys have a strong and loving relationship. It is also clear on the evidence that neither

Mr Hayes nor the mother nor the father have taken the necessary action to repair the relationship of the boys with the father, which would, of course, be in their best interests.
Mr E, family consultant, described both [X] and [Y] as polite and respectful young men who are able to clearly articulate their views. The family consultant formed a professional opinion that their views are primarily a product of their own emotional and cognitive processing and had not been formed as a result of undue influence from another party and, in particular, from the mother or her husband,

Mr Hayes. I note the evidence discloses that although that may well be the case now, and indeed, is the case on the evidence, that there was influence by Mr Hayes and the mother in early 2008 when the boys, then at a much younger age, first commenced to express a wish to change their surname. Sadly, Mr E concluded that neither boy foresees a positive future for their relationship with their father, even if the latter was to agree to a change in their surname, which I note he does not.
Mr E’s evidence was that both [X] and [Y] spoke very positively about their relationship with their mother and Mr Hayes, and clearly identified Mr Hayes as someone who had provided a constructive and positive male and parental role model for them. He noted the boys’ rationale reflected a clear desire to have their surname reflect the strong emotional and relational ties that they feel they have historically had with the ‘Hayes’ rather than the Yeo family. It was Mr E’s opinion that neither [Y] nor [X] presented as being inappropriately obstinate nor inappropriately self-focused when expressing their views about wanting a change of surname at this stage of their lives. Instead, their insistence appeared to reflect longstanding frustrations and levels of disappointment and annoyance with their father for having caused the situation to reach its current impasse. They would have preferred for their father to have simply understood the clarity and strength of their views, and to have agreed to the change of name well before now.
Mr E noted that Mr Yeo expressed concern that, by agreeing to a change of surname for his sons, he may effectively be cutting any relational links that he might have with them and may even be replaced and forgotten as their father. He appreciated that by not agreeing to the name change, he may not only risk further alienating his sons against him, as the evidence indicates he has done, but that he may also find himself in a position where he will not be able to salvage anything of his relationship with them. Finally, Mr E noted that a decision by the father to agree to the name change would, in some respects, provide the boys with a tangible demonstration that he is prepared to listen to them and respect their views on such an important issue for them. Unfortunately, the father would not consent to the change of surname nor agree to accede to the boys’ strongly held wishes in this regard.
Despite the expression of [X]’s strong wish to change his surname to ‘Hayes’, which he has informally done in any event, the Court does not consider it in his best interests to make an order that his surname be changed. This is because [shortly] he will be 18 years of age and able, of his own volition, to change his surname. It is not appropriate for this Court to exercise its jurisdiction to change the surname of a child in circumstances where that child becomes an adult in a matter of weeks and will be able to attend to that matter himself. The views expressed by [X] and his maturity and age are overwhelming as a consideration in determining the best interests of the child. Likewise, the current nature of the relationship with the father, which is poor, as opposed to that with the mother and stepfather, which is warm, loving and inclusive, is a significant consideration. Likewise, the fact that [X] spends no time with the father and has not done so since March 2011. These matters of themselves would determine that it is in [X]’s best interests to change his surname, but that is a matter which he can attend to in a very short time, and the Court will make a notation to that effect on the order to acknowledge [X]’s strongly held wishes and the belief of the parties themselves that [X] will take such action.
In determining the best interests of [Y], which the Court must regard as the paramount consideration, the same factors apply. It would be clearly beneficial for [Y] to have a meaningful relationship with his father at the present time as required to be considered under s.60CC(2) of the Act. However, he does not have such meaningful relationship and has had not for two years. His father’s acceding to the application may have assisted the reigniting of that relationship, but that opportunity has been lost to the father. The father’s evidence that he considers the surname to be his last link with the children shows a lack of insight into the children’s needs and is in marked contrast to the evidence of the mother who said “they are my boys regardless. I will love them unconditionally forever.” The boys need their father’s ongoing participation in their lives. They need to know that he remains a loving and devoted father as he described himself in the earlier years of their upbringing and that he is there to support them, both financially and emotionally. The mother’s evidence as to the father’s relocation to Perth and how it was perceived by the boys, I accept. Both sons thought their father did not care sufficiently about them such that he would remain in close geographical proximity. His suggestion that they could spend more “quality time” together whilst he resided on the opposite side of the continent was considered by them to be “laughable”.
[Y]’s views as expressed to Mr E, and as expressed in the affidavit material, are strongly held views. He is sufficiently mature to understand the consequences of a change of his surname and, in these circumstances, where his brother will change his surname [shortly], overwhelming weight should be given to the expression of [Y]’s views. When looking to the s.60CC(3) of the Act other additional considerations, the following facts are highlighted. [Y] has a very good relationship with his brother, with his mother, and with his stepfather. He spends all his time, outside that he spends at school and with his friends, with them, and in the last two years has spent no time with his biological father. That situation, given the response of the mother, father and stepfather in these proceedings, is unlikely to change prior to [Y] reaching adulthood. The father blames the influence, which he says exists, of the mother and Mr Hayes over the formation of [Y]’s views, but the father’s own action and inaction have led to the situation that currently exists. The father’s capacity to provide for the emotional and intellectual needs of both his boys is currently diminished. Mr Hayes and the mother have good capacity to so provide. It could not be in [Y]’s best interests to have him live in a household with a surname which is not that of the other members of the household, in circumstances where his strong desire is to have the surname of the other members of his household and not that of his father. He chooses not to see his father.

Accordingly, the Court will make the application as sought by the mother to change the surname of [Y] to that of ‘Hayes’ and effect the necessary registration.

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

Date: 15 March 2013