Henry & Anor and Lyman

[2017] FamCA 383

FAMILY COURT OF AUSTRALIA

HENRY AND ANOR & LYMAN [2017] FamCA 383

FAMILY LAW – CHILDREN – Parental responsibility – Where mother and stepfather seek sole parental responsibility for the children – Best interests of the children – Where orders sought are not opposed – Application granted.

FAMILY LAW – CHILDREN – Application to change children’s surname – Bests interests of the children – Where each child seeks a different surname – No order for a change in the children’s surname.

FAMILY LAW – PRACTICE AND PROCEUDRE – Father’s parental responsibility – where children’s father is the respondent – where father resides in Country D – where father had notice of these proceedings by personal service – where father did not seek to participate in the proceedings – Where an order made for the mother and stepfather to have equal shared parental responsibility for the children – Where father to have no residual right of parental responsibility.

Family Law Act 1975 (Cth) ss 60B, 60CC, 60G,

Chapman & Palmer (1978) FLC 90-510

FIRST APPLICANT:

SECOND APPLICANT:

Ms Henry

Mr Debretts

RESPONDENT:

Mr Lyman

FILE NUMBER: ADC 3864 of 2016

DATE DELIVERED: 10 May 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 10 May 2017

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT:	Mr Anderson
SOLICITOR FOR THE 1ST APPLICANT:	Nicholls Gervasi Lawyers
COUNSEL FOR THE 2ND APPLICANT:	Mr Anderson

SOLICITOR FOR THE 2^ND APPLICANT: Nicholls Gervasi Lawyers

COUNSEL FOR THE RESPONDENT: No appearance by Litigant or counsel

Orders

1. That MS HENRY (“the first applicant”) and MR DEBRETTS (“the second applicant”) have equal shared parental responsibility for the children B born … 1999 and C born … 2001 (“the children”) but that MR LYMAN shall have no residual right of parental responsibility in respect to the children.

2. Leave be granted pursuant to section 60G of the Family Law Act 1975 (Cth) to the second applicant to apply to the Youth Court to adopt the children B born .. 1999 and C born … 2001.

3. That the children shall live with the first and second applicants.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henry and Anor & Lyman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3864 of 2016

Ms Henry

First Applicant

And

Mr Debretts

Second Applicant

And

Mr Lyman

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

1. By Initiating Application filed 13 October 2016, Ms Henry as the first applicant and Mr Debretts as the second applicant sought the following orders:

   i)That leave be granted pursuant to section 60G of the Family Law Act 1975 to the applicant’s step-father [Mr Debretts] to apply to the Youth Court to adopt the children [B] born … 1999 and [C] born … 2001, collectively called “the children.”

   ii)That leave be granted to the applicants to change the name of the children to [B] and [C] in accordance with their wishes.

2. The respondent to the proceedings is Mr Lyman, who is the biological father of the children.

3. The proceedings came before Registrar Paxton on 1 November 2016.  The order made by the Registrar notes that the respondent was served on 24 October 2016 in Country D and that there was no appearance by him at the hearing.  The registrar ordered that the proceedings be adjourned for a hearing before me on 8 February 2017.  A further order required the respondent file and serve answering documents within 28 days.  There was a hearing before me on 8 February 2017 and following discussion with counsel for the applicants, and noting that there was no appearance by the respondent or any legal representative representing him, further consideration of the Initiating Application or any amended document was adjourned to 7 April 2017. 

4. As was foreshadowed, an Amended Initiating Application was filed on 3 March 2017 in anticipation of today’s hearing.  The only amendments to the Initiating Application is that now the applicants seek parenting orders in that they have the sole parental responsibility for the children and that the children live with the applicants.  The amended application is supported by the affidavits of the first and second applicants filed on 13 October 2016.

5. There are two further affidavits filed by the applicants’ solicitor, Erica Nicholls, on 7 February 2017 and 21 March 2017 which go to the question of service.  Whilst on the earlier occasion service of the Initiating Application filed on 13 October 2013 was satisfied, in relation to any amended Initiating Application, particularly where the amendment proposed related to parenting considerations, I considered that just because the respondent had not attended did not necessarily mean that he was not interested in orders that sought to change the parenting arrangements as opposed to an application for leave to adopt and a change of name. 

6. I was not prepared to deal with the matter on the last occasion and, given that there were foreshadowed amendments, I considered it important that those amendments be made and that the respondent have a further opportunity to consider his position.  It is to those latter matters that the affidavit of Ms Nicholls filed 21 March 2017 is directed.  I have had the advantage of considering the affidavit and I am satisfied that on 9 March 2017 the respondent was personally served with the following documents:            

   i)a copy of the sealed order of 8 February 2017;

   ii)a copy of the amended Initiating Application filed 3 March 2017;

   iii)a copy of the email correspondence between the legal representative of the applicants and my chambers in respect to the change to the adjourned hearing date.

7. I am also satisfied from the matters reported in the affidavit that the respondent has indicated a clear intention not to participate in the proceedings, but more relevantly, not to oppose the amended orders sought.  I find that in all the circumstances, procedural fairness and adequate opportunity has been provided to the respondent to engage in these proceedings and to be heard.  I am able to import his lack of engagement in respect of matters arising out of the Initiating Application as at least a foundation to find that he does not intend to involve himself in the current proceedings, nor does he wish to be heard. 

8. I propose to deal with the application and the orders sought.  I am assisted in the background by reference to those matters as set out in the affidavit of the first applicant. 

BACKGROUND

1. The children were each born in Country D in 1999 and 2001 respectively.  The first applicant and the respondent separated in 2003 and there is a document on the Court file which reflects a Divorce Order made on 26 November 2004.  It is an important consideration in respect of these proceedings that at the time of separation B was five years of age and C was almost three years of age. 

2. There had been arrangements made for the children to spend time with their father, and indeed there is an order of the High Court of Country D made on 26 November 2004 which provides for the first applicant to have the primary care of the children, namely, that they live with her but that the father have what was described in the order as “rights of reasonable access.”  An important stage was reached when the parties agreed that the first applicant and the children could leave Country D and immigrate and live in the Commonwealth of Australia.  That occurred on 26 March 2010.

3. The father remains in Country D.  The first applicant and the children now live in Australia and since their move, the respondent has been aware of the whereabouts of the children. The first applicant has not in any way sought to alienate the children from the respondent.  Information was provided to the father which has enabled him to make contact with the children and to communicate with them. 

4. The relationship between the applicants has considerable history.  They commenced a relationship prior to the first applicant and the children moving to Australia.  At the time that the first and second applicants commenced their cohabitation in 2006, B was seven and C was five.

5. The applicants were married in South Australia in 2015, and they live together in E Town in circumstances where I consider, whilst the evidence is scant, is sufficient for me to find that the environment created for the children is entirely appropriate.

RELEVANT CONSIDERATIONS

1. The first applicant’s affidavit sets out the current circumstances of the children, but to some extent their age is a substantial determining factor. In relation to an application pursuant to s 60G(1) of the Family Law Act 1975 (Cth) (“the Act”)there is some contention as to whether a determination in respect of s 60G of the Act should be considered as a parenting order. In that respect whether the factors in respect of s 60CC must be applied in order to determine the best interests of the children or whether, whilst not a parenting order, the considerations in respect of whether an order should be made are nonetheless best informed by reference to the best interests test without it necessarily being determinative. This is a distinction that has less relevance when dealing with children of this age.

2. As discussed, B will be 18 years of age in June 2017. An issue is raised as to whether there is any efficacy in the Court making an order either in respect of s 60G of the Act for leave to adopt or in respect of parenting considerations that include a change in surname; but equally, whilst it may at first instance seem to be an unnecessary consideration in respect of B and less so in respect of C, nonetheless the same sort of considerations apply.

3. The other consideration that should not be ignored is that if I am obliged, or indeed I consider I am best informed, in terms of whether an order should be made by reference to s 60CC considerations in the Act. The overarching consideration in respect of the orders sought by the applicants, either separately or together, must be guided by the views as expressed by the children.

4. An order would not be made in respect of s 60G of the Act or an order in respect of the change of the children’s surname or indeed even parenting considerations of the sorts of order that are being sought in this application if there was any evidence at all to suggest that such an order did not accord with the wishes, perceptions and views of the children, providing they are available to the Court. In this case, I consider that they are, and it is precisely because of the strength of the wishes as expressed by the children that I consider the orders should be made even if it might seem to be of short duration or unnecessary in the circumstances of this case.

5. There are obviously many issues that impact upon children, and the manner in which they consider a stable and firm foundation needs to be provided.  I do not consider that the children have entered into the current arrangements lightly, and I am entitled to assume the children actively seek the reassurance and certainty of the foundation of their relationship, not just with their mother, but with the stepfather. 

6. There is nothing which would suggest the children do not have a clear understanding as to their own circumstances.  I am satisfied that all reasonable aspects of their lives which would ordinarily be a clear indicator of any dysfunction, disruption, upset or adverse consideration affecting the children are entirely absent from their presentation.

7. I bring to account s 60CC considerations in respect of the s 60G consideration, but also the change in surname, as a guide and as significant assistance to me in determining the necessary issues. I accept that the motivation for the application pursuant to s 60G(1) of the Act is to reflect a demonstrably strong and close relationship between the second applicant stepfather and the children. The applicants seek an order that they have sole parental responsibility for the children, but I think what they seek is an order that as between them, they each have equal shared parental responsibility, but that there is no parental responsibility to be exercised by the respondent to the proceedings.

8. Again, to some extent, the issue of parental responsibility is an exercise that will soon come to an end in respect of the children simply as a result of their age. Nonetheless I propose to make the order, not in the terms as sought by each of the applicants, because it is my view that that is not what they actually seek. Each of the orders sought by the applicants are parenting orders, other than the considerations that I have given to s 60G(1) of the Act, and must be considered pursuant to the statutory framework as provided for in Part 7 of the Act.

9. Section 60B of the Act provides the objects of the Act and focuses on the Court’s obligation to ensure that the best interests of the children are met. Section 60B(1) provides:-

   … the objects of this part are to ensure that the best interests of the child are met by:

   (a) ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children; and

   (b) protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence; and

   (c) ensuring that the children receive adequate and proper parenting to help them achieve their full potential;  and

   (d) ensuring that parents fulfil their duties and meet their responsibilities concerning care, welfare and development of the children.

10. As discussed, I am required when considering what order to make to have regard to the best interests of a child or children as a paramount consideration. I have given clear and targeted regard to the primary considerations, being s 60CC(2), and the additional considerations, being s 60CC(3) of the Act. It seems, therefore, that whatever order is to be made, the overriding consideration, including the change of a child’s surname and leave to adopt pursuant to s 60G(1), requires the best interests of the children to be the paramount consideration or, in any event, to be strongly guided by the best interests test.

11. A consideration of the matters in s 60CC of the Act both as to primary and additional considerations are therefore to be applied. The Court does not have the advantage of the family report, but does have the advantage of the affidavit material which has helpfully been drafted to assist the Court in respect of the factors that each of the applicants consider are matters relevant to s 60CC(3)(b) of the Act. As anticipated, the significant focus is upon the functioning of the children in order to assess the weight that should be attached to their views as to adoption and parenting considerations. To some extent, that really transcends all other considerations, but for completeness, I consider that section 60CC(3)(b), namely the children’s relationship with family, is a factor that shows a strong bond having developed not just between the children and their mother but also the stepfather.

12. I do not consider that the other sections need to be dealt with seriatim, but that does not mean I have not given them adequate and appropriate consideration.  In the circumstances of this case, all other aspects are what might be described as unremarkable, but those that are matters of significant weight relate to the meaningful relationship that the children have with the applicants.

13. There is no impediment to these children having a relationship at whatever level they would wish to have with their father.  Whilst it may be considered regrettable that children have a level of alienation or dislocation from him, nonetheless there is a level of inevitability as to what can be done, particularly when children hold that view and are of the age of these children.

14. An application for leave to adopt under s 60G(1) of the Act and then the subsequent adoption process has the very real effect of extinguishing parental responsibility. I must therefore decide whether, in all the circumstances, it is in these children’s best interests to grant the order. In the circumstances of this case, I have little hesitation in doing so. I have already indicated the weight that I consider should be placed upon the wishes and perceptions of the children and accordingly the matters that are of particular impact are indeed the weight that I give to the children’s views, the relationship that the children have both with the applicants but also with the respondent – however, I cannot ignore that the respondent is not present, has not sought to be heard, and that, I think, lends significant weight to the matters raised by the applicants and the children.

15. The second order sought by the applicants is that leave be given for the applicants to change the name of the children, in respect of B to “B Debretts”, and in respect of C to “C Henry”.   It is suggested that the basis of the change is to reflect the wishes of the children as opposed to their being any other significant basis.  The principles governing a change of a child’s surname are well understood from the very inception of this Court, and in particular, as was stated by the Full Court at page 77,674 in Chapman & Palmer (1978) FLC 90-510.

16. 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 the name to be restored when a 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 when 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 the change of surname.

17. The guiding principle is that the welfare of the child is the paramount consideration, and it must stand above the proprietary interests of the parents.  The Full Court in Chapman (supra) later went on to say at 471:

    The factors to which the Court should have regard in determining whether there should be any change in the surname of a child include the following:

    (a)      the welfare of the child as 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 the 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 his 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 or the relationship;  and

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

18. In the circumstances of this case, it seems to me a difficult consideration that the Court should give leave to the applicant to change the names of these children in circumstances where what is being proposed is that they will each have a different surname from the other.  There is little in the affidavit material which enables me to decide matters in respect of the change of the children’s surname.  The further consideration is that there is uncertainty as to what will happen once B reaches the age of 18 years.  She, of course, at that stage is free to change her name to reflect that of the mother, that of her stepfather, to remain using the surname of the biological father, or indeed to change her name to anything that she might wish. 

1. It seems to me an important consideration that, at least at this stage, those matters should be given some reflection in terms of whether there is any possibility of each of the children retaining a common name.  That is not what is proposed by the application, and I have struggled with finding evidence that would assist me in respect of the change of name. 

CONCLUSION

1. In the absence of evidence, and in circumstances where there are no issues that would suggest these children are not functioning entirely well and appropriately, I do not consider that it is open to me to order that the children’s surname be changed.

2. There are parenting orders sought, and as I have indicated, the applicants seek an order that they have equal shared parental responsibility, but that there be no residual parental responsibility in respect of the respondent father. There is clearly no challenge by the respondent to the parenting orders as sought. I have already indicated the common factors as relevant in respect of s 60CC of the Act, and I am clearly of the view that the orders being sought by the applicants both in respect of parental responsibility but also a confirmation that the children will remain and continue in the primary care of each of the applicants are orders that are clearly in the children’s best interests.

3. For those reasons, I make the following orders.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 May 2017.

Associate: 

Date:  2 June 2017