HOOPER & EVAN
[2011] FMCAfam 365
•28 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOOPER & EVAN | [2011] FMCAfam 365 |
| FAMILY LAW – Children – parenting orders – two children – school holidays – best interests of the children – equal shared parental responsibility – equal time – substantial and significant time. FAMILY LAW – Name of child – children’s surname – application to change children’s surname. |
| Family Law Act 1975, ss.11C, 60CA, 60CC,61B, 61C, 61DA, 61DB, 65D, 65DAA, 65E |
| Beach and Stemmler (1979) FLC 90-692 Chapman v Palmer (1978) FLC 90-510; 4 Fam LR 462 Flanagan & Handcock [2000] FamCA 150; (2001) FLC 93-074 Devlin & Barta [2007] FamCA 512 Healey & McGeary [2007] FamCA 501 Astil & Sampson [2008] FamCAFC 15 Holmen & Farley [2008] FamCA 197 Barker & Ferris [2008] FamCA 1112 Raymond & Harold [2009] FamCA 155 Tommy & Harris [2009] FamCA 278 Maluka & Maluka [2009] FamCA 647 Maraichers & Tesson [2009] FamCA 780 Mahony and McKenzie (1993) FLC 92-408 |
| Applicant: | MR HOOPER |
| Respondent: | MS EVAN |
| File Number: | SYC 5472 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 December 2010 |
| Date of Last Submission: | 20 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Mockler |
| Solicitors for the Applicant: | Stewart Cuddy & Mockler |
| Counsel for the Respondent: | Ms Winfield |
| Solicitors for the Respondent: | Eleanor Murphy & Company |
ORDERS
The parties are to have equal shared parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2004.
The children [X] and [Y] are to live with the Respondent Mother.
The children are to spend time with the Father:
(a)each alternate weekend during the school term from after school on Friday until the commencement of school on Monday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until the commencement of school on the Tuesday;
(b)for half of each of the Autumn, Winter and Spring school holidays in each year being the first half in even-numbered years and the second half in odd-numbered years;
(c)during the Christmas/January school holidays:
(i)
from 9:00am on Christmas Eve 2011 until 5:00pm on
8 January 2012 and each alternate year thereafter; and
(ii)from 9:00am on 9 January 2013 until 5:00pm on Australia Day in 2013 and each alternate year thereafter;
(d)On each of the children’s birthdays if that birthday falls on a school day not being a day when the children would normally be with the Father according to these Orders from immediately after school on the day before the birthday until the commencement of school the following morning;
(e)On the Father’s birthday if that day falls on a day when the children would not normally be with the Father according to these Orders from immediately after school until the commencement of school the following morning;
(f)On Father’s Day if that day should fall on a day when the children would not normally be with the Father according to these orders from 9:00am to 5:00pm; and
(g)At such other times as the parties shall agree.
NOTWITHSTANDING THE PROVISIONS OF ORDER (3) ABOVE, the Father’s time with the children will be suspended:
(a)On Mother’s Day from 9:00am to 5:00pm;
(b)On the Mother’s birthday from the evening before the birthday until 5:00pm on the birthday; and
(c)At such other times as the parties shall agree.
Each party may communicate with the children by telephone at any reasonable time when the children are in the care of the other party at times provided by these Orders.
Each party shall permit the children or either of them to telephone the other at any reasonable time when the children are in the care of the other party at times provided by these Orders.
For the purposes of Order 3 the Father will collect the children from school and return them to school at times as provided by the Orders and at all other times the Mother will deliver the children to the Father’s residence at the commencement of the time the children spend with the Father and the Father will return the children to the Mother’s residence at the conclusion of the time provided by the Orders.
Each party will do all things necessary to deal with any health problems which arise with either child including but not limited to asthma attacks or ill health which may lead to asthma attacks and will consult and obtain treatment for the child from a medical practitioner or other health professional.
The Father is to take each child to a dentist for a check-up each year at his expense.
Each party will provide to the other the name and contact details of any medical practitioner, dentist, counsellor or health professional upon whom one or other of the children attends whilst in the care of that party.
The Father and the Mother must communicate with each other by text message or email in relation to any health or medical issue relating to the children or either of them whilst that child or the children is in that party’s care.
Each party is entitled to receive from the school attended by the children copies of all school reports, newsletters, information about school photographs and other documents normally provided to parents of children attending that school.
Each party may attend any parent teacher interview, school sporting carnival, assembly or other school activity normally attended by parents of children attending that school.
The Father shall make all reasonable endeavours to ensure that the children attend any sporting commitment, school function or social function that takes place on a weekend when the children are spending time with him as provided by Order (3)(a) above.
The parties are restrained by injunction from denigrating or criticising each other in the presence or hearing of the children or from permitting any third party from doing so.
The names of the children shall be [X] EVAN HOOPER and [Y] EVAN HOOPER and the parties shall do all things necessary to advise the Registrar of Births Deaths and Marriages of the children’s new surnames as soon as is reasonably practicable.
IT IS NOTED that publication of this judgment under the pseudonym Hooper & Evan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5472 of 2010
| MR HOOPER |
Applicant
And
| MS EVAN |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders relating to the parties’ two daughters, [X], aged nine and [Y], aged six. The children presently live with their mother, who is the Respondent.
The father, who is the Applicant, seeks orders prescribing the times that the children will spend with him. He also seeks an order that the children’s surname will remain “Hooper”.
The Mother, by her Amended Response filed on 10th November 2010, seeks orders that the children should continue to live with her but they should spend time with their father on a regular basis. She also seeks an order that the children’s surnames should be changed to “Evan Hooper”.
Background
The Father was born [in] 1961. The Mother was born [in] 1970.
The parties commenced to live together in April 2000 and separated finally in March 2009.
There are two children of the relationship. [X] was born [in] 2001. She is therefore nine years old will turn ten in September.
[Y] was born [in] 2004 and is therefore six years old. She will reach the age of seven in August.
The children live with the Mother.
The parties met in approximately 1998 and commenced to live together in early April 2000.
There were instances of serious discord and the parties separated temporarily in early 2007. Cohabitation resumed in January 2008. The parties separated again in early May 2008 but they continued to see each other.
The parties’ relationship came to an end in March 2009.
The Mother applied for an Apprehended Violence Order against the Father in May 2010. The application was dismissed on 24th June 2010.
The Father commenced proceedings by filing an application and an affidavit is support on 30th August 2010. The application came before the Court on 20th September 2010, at which time the parties entered into interim consent orders.
Those interim orders provided that:
a)The parties were to have joint parental responsibility for the two children;
b)The children were to spend time with the Father:
i)Each alternate weekend from after school on Friday until the commencement of school on the Monday morning (or Tuesday, if the weekend were a long weekend;
ii)For one week of the school holidays, except for the Christmas school holidays;
iii)On the children’s birthdays; and
iv)On the Father’s birthday.
c)The parents were to communicate by telephone with the children when they were with the other parent.
d)A mutual non-denigration order; and
e)Orders about changeover between the parents, and communication about health and medical issues between the parties.
The parties attended a Child Dispute Conference with a Family Consultant on 30th September 2010. The conference was reportable under the provisions of s.11C of the Family Law Act 1975. In the Family Consultant’s memorandum to the Court it was noted that the parties had no issue about the allocation of parental responsibility, with whom the children would live and the principle that the children would spend time with the Father.
The Family Consultant noted the only outstanding issues that the parties identified as being in dispute as:
· The inclusion of the mother’s surname in the children’s name
· Father’s Day/Mother’s Day
· Christmas time and January school holidays for 2010/2011 and subsequent years.
The parties reached agreement that the children would spend Father’s Day with their father and Mother’s Day with their mother, on the basis that the children would spend the whole weekend with that parent, from after school on Friday until before school on the Monday.
The parties remained in dispute about two discrete issues:
· How the children spend time with each of their parents over the Christmas period and the December/January school holidays. (The parents are in agreement in principle at least, about the children alternating with which parent they spend Christmas Eve and Christmas Day morning with each year. They also agree that the children should spend at least two weeks each January school holiday period with each of their parents).
· The parents do not agree, at this point in time, to the mother’s surname being included in the children’s name.[1]
[1] Family Consultant Memorandum to Court 30 September 2010
The application was listed for hearing on 10th December 2010 but was not reached on that day. However, the parties consented to interim orders that:
a)The children would spend time with the Father for half of each school holiday period except Christmas holidays being the first half in even years and the second half in odd years; and
b)The children would spend time with the Father from 9:00am to 5:00pm on Father’s Day.
Agreed Matters
The parties agree about the following issues:
a)That they should have equal shared parental responsibility for the children;
b)That the children should continue to live with the Mother;
c)That the children would spend time with the Father:
i)On alternate weekends;
ii)For half of each school holiday period except the Christmas/January school holidays;
iii)On the children’s birthdays;
iv)On the Father’s birthday;
v)On Father’s Day; and
vi)At agreed times on Christmas Eve and Christmas Day each year.
d)That each parent may telephone the children at reasonable times and the children may telephone the parents;
e)That the Mother will deliver the children at the commencement of their time with the Father and the father will return the children to the Mother at the conclusion of the time;
f)That they will do all things necessary to deal with the children’s health problems as they arise;
g)That they will provide to each other the names of any medical practitioner, counsellor or health provider upon whom either child attends whilst in their care;
h)That they will communicate by email or text message in respect of any health or other issues that arise whilst the children are in their care; and
i)They will not denigrate each other in the presence or hearing of the children and will take reasonable steps to prevent any third party from doing so.
Matters Still in Dispute
The parties have agreed on a significant number of issues, but two issues remain outstanding:
a)The amount of time that the children should spend with the Father during the Christmas/January school holidays; and
b)Whether the children’s surnames should be changed from the current name of “Hooper” by adding the Mother’s surname of “Evan”.
The parties remain at arms’ length on those two issues.
Orders Now Sought
The Mother filed an Amended Response in which she sought additional orders that:
a)each party would take the children to the dentist at least once a year; and
b)the Father will take the children to any school or social function, weekend sport or other extra-curricular activities when they are with him.
Submissions and Evidence
The Father’s solicitor and the Mother’s counsel agreed that the matter should proceed by way of submissions and no oral evidence was taken.
The Father relied on the following:
a)His affidavit sworn on 30th August 2010; and
b)His affidavit sworn on 1st December 2010.
The Mother relied on the following:
a)Her affidavit affirmed on 15th September 2010;
b)Her affidavit in support of her Amended Response affirmed on 9th November 2010; and
c)Her affidavit affirmed on 26th November 2010.
The Father deposed that he had been spending time with the children e very second weekend from after school on Friday until school commences on the following Monday morning. He had been living at [omitted] but has purchased a home unit in a beachside suburb of Sydney:
It is a two bedroom unit which will provide accommodation for both myself and my children when they spend time with me.[2]
[2] Affidavit of Mr Hooper 1.12.2010 at paragraph [5]
The Father also deposed that he maintains regular contact between the children and the Mother’s brother and sister and their family. He also arranges for them to spend time with him and his extended family.
In particular he deposed:
10.My brother [name omitted]’s family normally spend the first week of January on the South Coast at [H]. For the past two years I have been unable to accept his invitation to join them for even part of this time because [Ms Evan] did not permit the children and myself to have any access to my family during that week.
11.While I have agreed with the children spending time with [Ms Evan] during that period this year I wish to spend the first week in January 2012 with my brother’s family and in alternate years thereafter.[3]
[3] Affidavit of Mr Hooper 1.12.2010 at [10]-[11]
The Father stated that the children were enrolled at school under the name of Hooper although a photograph of the children’s school bags annexed to his affidavit showed labels with the name “Evan-Hooper”. The Father deposed:
While I have indicated that I will consider a change in name, subject to the children’s wishes at a later time, I am concerned that any change of name at this stage would be premature and prior to my relationship being fully re-established with the children.[4]
[4] Ibid at [15]
The Mother in her affidavit of 9th November 2010 expressed a strong view about the need for precision in the parenting orders:
3.I believe the relationship between the father and myself is such that any arrangement which is less than absolutely straightforward causes the Applicant to believe that it will give rise to conflict.[5]
[5] Affidavit of Ms Evan 9.11.2010 at [3]
The Mother also deposed that, as the Father did not place any religious significance on Christmas, she believed that alternate Christmases would be “more appropriate and peaceful and will give the children the opportunity to go for an extended vacation with either parent rather than a week here and there”.[6]
[6] Affidavit of Ms Evan 9.11.2010 at [8]
As to her proposal to change the children’s surname, the Mother gave her reasons as:
a)The need to avoid confusion with the children at school because her name is not Hooper but Evan;
b)She has been predominantly responsible for the children’s lives and the cost of supporting them; and
c)She is not seeking that the children abandon the father’s surname but that her be included.
The Mother reiterated those views in her later affidavit of 26th November 2010 and referred to two instances where the older child [X] raised the issue of her surname:
…our eldest daughter [X] said to me on a number of occasions words to the effect:
“Mum, why am I not called ‘Evan’?
and I have replied:
“No look you don’t want to remove your Dad’s name but it might be nice to add my name”
On other occasions I have heard her say in response to people calling her “[X] Hooper”
“No – [X] Evan Hooper”.
I have never encouraged her to use that name.[7]
[7]Affidavit of Ms Evan 26.11.2010 at [16]
Mr Mockler, who appeared for the Father, submitted that the Father did not want a “three weeks on – three weeks off” arrangement over the Christmas/January school holidays; he only wanted two weeks over that time. He also submitted that it was not the right time to change the children’s surnames.
Ms Winfield of counsel, who appeared for the Mother, submitted that the Mother would like to divide the holidays in half. She wanted the children to have a hyphenated surname with both of the parents’ names, as the children identified with both parents.
Ms Winfield also provided a comprehensive list of authorities on the question of changing children’s names, including Beach and Stemmler[8], Chapman v Palmer[9], Flanagan & Handcock[10], Devlin & Barta[11], Healey & McGeary[12], Astil & Sampson[13], Holmen & Farley[14], Barker & Ferris[15], Raymond & Harold[16], Tommy & Harris[17], Maluka & Maluka[18] and Maraichers & Tesson[19].
[8] (1979) FLC 90-692
[9] (1978) FLC 90-510; 4 Fam LR 462
[10] [2000] FamCA 150; (2001) FLC 93-074
[11] [2007] FamCA 512
[12] [2007] FamCA 501
[13] [2008] FamCAFC 15
[14] [2008] FamCA 197
[15] [2008] FamCA 1112
[16] [2009] FamCA 155
[17] [2009] FamCA 278
[18] [2009] FamCA 647
[19] [2009] FamCA 780
The Relevant Law
In deciding whether to make a particular parenting order in relation to a child, Section 60CA of the Family Law Act 1975 provides that the Court must regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) (the primary considerations) and 60CC(3) of the Act (additional considerations). The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see s.60CC(4)) and, where the parents have separated, as they have in this case, any events that have happened or circumstances that have existed since the separation occurred (see s.60CC(4A)).
Subsection 61C(1) of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child.
When making a parenting order, the Court is required by s.61DA(1) of the Act to apply a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:
a)abuse of the child; or
b)family violence.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (see s.61DA(4)).
In making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order (see s.61DB).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider whether:
a)the child spending time with each parent would be in the child’s best interests; and
b)it would be reasonably practicable for the child to spend equal time with each parent.
If the Court does not make an order for equal time with each parent, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of his or her parents would be in the child’s best interests; and
b)whether such an arrangement would be reasonably practicable.
Substantial and significant time is defined by s.65DAA(3) to include not only days that fall on weekends and holidays but days that do not fall on weekends or holidays. The time must also allow the parent to be involved in the child’s daily routine and in occasions that are of particular significance to the child or of special significance to the parent.
When deciding whether equal time or substantial and significant time would be reasonably practicable, the Court must have regard to the matters in s.65DAA(5). They are:
a)How far apart the parents live from each other;
b)Their current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each parent;
c)The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing the arrangement;
d)The impact that the arrangement would have on the child; and
e)Any other matter that the Court considers relevant.
I have considered all of those matters
The principles that the Court must consider in dealing with an application to change a child’s name are set out in the decision of the Full Court of the Family Court in Chapman v Palmer[20] where the court said:
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 proprietary interests of the parents.[21]
[20] Supra
[21] (1978) FLC 90-510 at 77,674
Their Honours (Evatt CJ, Asche and Marshall S.JJ) went to say at 77,675:
To summarise, the factors to which the Courts 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 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 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,
(f) the effect of frequent or random changes of name.[22]
[22] (1978) FLC 90-510 at 77,675-6
In the later decision of Beach and Stemmler[23], Connor J in the Family Court of Western Australia took into account the matters set out in Chapman v Palmer together with these matters:
· The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
· The contact that the husband has had and is likely to have in the future with the children.
· The degree of identification that the children now have with their father.
· The degree of identification which the children have now with their mother and their stepfather.
· The desire of the father that the original name be restored.[24]
[23] supra
[24] (1979) FLC 90-692 at 78,693
In Mahony and McKenzie[25] Warnick J considered whether the child the subject of the application before him should be known by a combination of the surnames of his parents. His Honour attached no significance to the manner of registration of the child’s current surname and said:
[25] (1993) FLC 92-408
A number of benefits may be expected to arise from the use of the hyphenated surname for J.
Firstly, Ms McKenzie would be happy with the use of that name…
Secondly, Mr Mahony would be, at least, less dissatisfied than if the surname “McKenzie” were used for J.
Thirdly, if each of the parties correctly perceives J to identify with each of the surnames, the use of the hyphenated surname allows him a chance to retain a connection with the name of each parent.
Fourthly, the use of the hyphenated surname, in a number of ways, accords with the reality of J’s life….
Finally, the use of the hyphenated surname offers J a middle road in times of rapidly changing social attitudes.[26]
[26] (1993) FLC 92-408 at 80,186
In Flanagan and Handcock[27] a decision of the Full Court of the Family Court, Kay and Holden JJ held:
…The obligation to name a child and the power to change a child’s name is clearly an aspect of parental responsibility as defined by s 61B. a dispute between persons appropriately interested, including between the parents of a child, is ultimately to be resolved by the making of a parenting order which, insofar as it is other than a residence, contact or maintenance order, is a “specific issues order”, to be made under the provisions of s 65D which is certainly governed by the provisions of s 65E[28], namely the paramountcy provision.[29]
[27] supra
[28] Now repealed, but see s.60CA
[29] (2001) FLC 93-074 at [26]
Conclusions
This is a case where the parties have always agreed that they should have equal shared parental responsibility for their two children. Whilst the Court must disregard the allocation of parental responsibility made in the interim consent orders, this is clearly a case where the Court would apply the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them, and I propose to make such an order.
It has always been the case that the parents have agreed that the two girls should continue to live with their mother. They have agreed on parenting orders covering weekends and the Autumn, Winter and Spring school holidays. There is substantial agreement between them about other matters going to their responsibility as parents. It is the question of the long school holidays, over the Christmas and January period, that has caused a difference between the parties over orders covering the time the children spend with the Father . There has been a difference between them over Christmas Day itself, but not a major difference. It is not an insoluble problem.
When considering making parenting orders, the Court must regard the children’s best interests as the paramount consideration.
I am satisfied that it is of benefit to the children to have a meaningful relationship with both of their parents. They have lived with their mother since their parents separated and the Father makes no criticism of the quality of the care that the Mother provides. The Father clearly wishes to be involved in the children’s lives, and the Mother does not dispute this wish.
There does not appear to be any risk of physical or psychological harm to the children from either of their parents. The parents have had a volatile history when they were together but there is no evidence that this volatility has continued.
The children are relatively young for their wishes to be given much weight and there is very little in the way of evidence as to what their wishes are. The Mother deposed in her most recent affidavit that the older girl, [X], asked why her surname was not “Evan” like her mother’s, and was reported as asking to be referred to as “Evan Hooper”.
The evidence suggests that the children have a good relationship with each of their parents. It is the Father’s evidence that when they are with him the children spend time with members of their extended family, both paternal and maternal, which indicates a good relationship with those family members.
The evidence leads to the view that each parent has a willingness and an ability to encourage a close and continuing relationship with the other parent, although the father commenced these proceedings because he claimed that he was not being afforded the opportunity to spend time with them, and they said that they missed him. The parties agreed to consent orders about the children spending time with the Father from the first return date of the Father’s application for parenting orders.
A change in the children’s circumstances involving not spending time with either parent would be likely to have an adverse effect on them.
There appears to be little in the way of practical difficulty or significant expense in the children spending time and communicating with each parent. The parents live in adjoining suburbs of Sydney.
The parents appear to have a capacity to provide for the children’s needs, including their intellectual and emotional needs. The Father has made efforts to ensure that the children regularly spend time with their extended family, both paternal and maternal.
The children are two girls aged nine and six respectively. There are no unusual features about their lifestyle or background.
Each parent appears to demonstrate a positive attitude to the children and to the responsibilities of parenthood. The Father deposed that since the children were born he has always been “a very involved father, not just in their day to day care but in their social activities and their home life and school lifer.’[30]
[30] Affidavit of Mr Hooper 30.8.2010 at [45]
The Mother has deposed that she has been predominantly responsible for the children’s lives and the cost of supporting them[31] and she complains that the Father had not paid child support since March 2010 and had never offered to pay for any other expenses of the children.[32] She seeks an order that each party will take the children to the dentist at least once a year.
[31] Affidavit of Ms Evan 9.11.2010 at [11]
[32] Ibid at [9]
There are no family violence allegations and there is no family violence order in force.
The Mother criticises the father for not paying child support or offering to pay any other expenses of the children, which can be seen as a failure to on his part to fulfil the responsibilities of parenthood. She also criticises the Father for not taking the children to school activities and for not attending the children’s school activities, which she says that she attends.
It will be preferable to make final orders about the children spending time with the Father at Christmas and during the Christmas/January school holidays in order to obviate the need for the institution of further proceedings. The question of the children’s surnames is an issue that clearly needs to be resolved at this time.
The Father has criticised the Mother for not making arrangements for him to see the children, but this situation seems to have been resolved as a result of the commencement of these proceedings.
It is noteworthy that each parent has, since separation, purchased a home in one of the Eastern suburbs of Sydney. There is no evidence that either parent has re-partnered.
The Mother has suggested in her affidavits of 9th November and 26th November 2010 that the parties should share the Christmas season on alternate years with the proposal that the parties should spend time with the children for half of each school holiday period, including the time over Christmas. The idea is worthy of consideration. It would clearly suit the Mother and may assist the Father with his desire to spend time with the children, although he only asks for two weeks in the Christmas/January holidays. The only difficulty is that the Father only seeks two weeks during that time.
The Father wants to spend a week with his brother’s family on the New South Wales South Coast in alternate years. He deposes that the brother spends the first week of January at [H] and he would like to take the children down with him during the first week in January 2012. This would seem to be in the children’s interests, as they would have a holiday with their cousins and uncle as well as their father.
The Father has deposed that he wants to be involved with the children’s lives, including their school life. I propose to make an order that each party will be entitled to receive school reports and other documents from the school, including information about school photographs. In my experience, parents and grandparents like to have school photographs of their children and each parent should be able to obtain these photographs without having to trouble the other parent.
Similarly, each party should be able to attend functions at the children’s school, including such things as sporting carnivals. Schools normally hold regular interviews where parents can meet with their children’s teachers and in my view it is important for both parents to have that opportunity. The parties may feel uncomfortable in attending an interview together, but it is a matter of public knowledge that schools will usually separate interviews to assist separated parents if requested.
The Mother asks for an order that the Father will take the children to school functions, social functions, weekend sport or other extra curricular activities when they are in his care. This does not seem unreasonable. The Father wishes to be involved in the children’s lives, and rightly so. If they have a sporting commitment on a weekend when they are with him, it seems appropriate that he should take them and watch them play.
It is a part of parental responsibility that the parents should attend to their children’s health issues. I propose to order that the Father should take each child to a dentist each year for a check-up at his expense. It is in the children’s best interests to ensure that they have good dental health.
I have made an order that the parents should have equal shared parental responsibility for the children. Accordingly, I have considered whether it would be in the children’s best interests to spend equal time with each parent. I am not satisfied that it is in their best interests, as the parents do not appear to have the level of communication or cooperation necessary for such an arrangement to work.
The orders that I propose to make go some way towards meeting the definition of substantial and significant time, as they provide for the children to spend time with the Father on weekends and holidays and on days of particular significance to the children, such as birthdays, and days of special significance to the parents, such as Father’s Day, Mother’s day and birthdays. However, the orders will not provide for the children to spend time with the Father on days that do not fall on weekends or holidays, other than birthdays. Neither party has asked for such an order, and in the absence of a specific proposal I am not persuaded that such an order would be in the children’s best interests.
The children’s surname is an emotive issue for the parties. The Mother is the primary caregiver and would like to add her surname so that the children’s surname would be “Evan Hooper”. Her case is that it will avoid confusion at school, the children, or at least the older child [X] wants to have the same surname as her mother, and that the children will not be relinquishing the Father’s surname of “Hooper”.
Against this, the Father submits that a change of name at this stage is premature and should not take place until his relationship with the children has been fully re-established.[33]
[33] See the father’s affidavit sworn 1.12.2010 at [15]
It is not the case that the Mother seeks to drop the surname of “Hooper”. All she wishes to do is add the name “Evan”. In my view, the addition of the Mother’s name will allow the children to identify with both parents. It is not clear why the Father fears that a premature addition of the name “Evan” would in some way interfere with the re-establishment of his relationship with the children. That may be the case if the Father’s name were to be discarded, but that is not the proposal. The name “Hooper” will remain.
In my view, the way to build up the Father’s relationship with the children is to allow him to spend time with them, including a block of at least two weeks over the Christmas/January school holidays. The Father will be able to spend the Christmas season with the children each alternate year and will be able to take a holiday with them, at least each alternate year.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 April 2011
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