Hosking & Herlitz
[2008] FMCAfam 258
•28 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSKING & HERLITZ | [2008] FMCAfam 258 |
| FAMILY LAW – Parenting – surname. |
| Family Law Act 1975 s.60CC |
| Beach v Stemmler (1979) 90 FLC 92 Chapman v Palmer (1978) FLC 90-510 |
| Applicant: | MR HERLITZ |
| Respondent: | MS HOSKING (NEE CARMODY) |
| File Number: | WOC 1144 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 7 March 2008 |
| Date of Last Submission: | 7 March 2008 |
| Delivered at: | Wollongong |
| Delivered on: | 28 March 2008 |
REPRESENTATION
| Solicitor advocate for the Applicant: | Mr Horsley |
| Solicitor for the Applicant: | Johnson Horsley |
| Respondent: | Self represented |
ORDERS
That the Child A born in 2004 be known as A.
That the mother is hereby restrained and injuncted from using a surname other than “Herlitz” when referring to the said child.
That the mother do all things and sign all necessary documents to ensure the child is known by the surname with (but not limited to) the following organisations:
(a)The Department of Health;
(b)Medicare;
(c)His enrolment records at Exxx Day Care Centre;
(d)Any medical records with any medical practitioner or hospital who has treated the child.
The matter be adjourned to 27 May 2008 at 9.30am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Herlitz & Hosking is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC1144 of 2007
| MR HERLITZ |
Applicant
And
| MS HOSKING (NEE CARMODY) |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about the surname that A, born in 2004, now aged 4 years, should use. His mother is the applicant and she prefers to use the hyphenated surname Herlitz-Carmody. A’s father is the respondent, and he seeks orders the effect of which are to maintain the surname Herlitz. At the hearing of this matter on 7 March 2008 I was informed that all other parenting matters relating to A had been resolved, though formal Orders have not yet been made reflecting this agreement. I discuss this further below.
Background
The mother is 23 years old, and the father is 26. They were both very young when A was born 4 years ago. They appear to have cohabitated between December 2003 and September 2005, but nothing turns on this. They both remarried in 2007. The proposed orders in relation to A provide for A to spend, in effect, each alternate weekend with his father, as well as special days and half the school holidays. In evidence there was a photocopy of signed consent orders dealing with this but, as indicated above, to the best of my knowledge these orders have not been actually made.
The issues
Even in a dispute about a discrete issue like the use of a surname for a child the question remains: what is in A’s best interests? This is determined by reference to the applicable law, as well as to a measure of common sense.
The applicable law
The relevant law is contained in s.60CC of the Family Law Act 1975 which states:
1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3) Additional considerations are:
c)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
d)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
e)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
f)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
g)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
h)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
i) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
j)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
k)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
l)any family violence involving the child or a member of the child's family;
m)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
n)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
o)any other fact or circumstance that the court thinks is relevant.
In the father’s case outline document, Mr Horsley, who represented the father, set out a succinct summary of the principles contained in the relevant cases including Chapman v Palmer (1978) FLC 90-510, Beach v Stemmler (1979) 90 FLC 92, Fooks & Mcarthy (1994) FLC 92-450. There are many factors a court must take into account in these cases including:
· The short and long term (both positive and negative) effects on the child;
· ay embarrassment to the child;
· any confusion of identity for the child;
· the effect of a change of name on parents;
· the impact of frequent changes of name on a child;
· the extent of the father’s contact with a child;
· the degree to which the child identifies with his parents extended family including step-parents, and siblings and step siblings;
· the views of both parents.
The evidence
These proceedings were conducted pursuant to Division 12A of Part VII of the Act. The mother’s evidence was entirely oral. The father’s evidence was by affidavit. No cross examination took place, nor was it necessary.
The mother’s oral evidence was that she is known by the surname Carmody and not her husband’s surname Hosking. She explained that A has been enrolled at his pre-school since last year as Herlitz- Carmody. He also uses that surname at his school, at the local library, and at his arts and craft group. The mother is shortly expecting the birth of a new child who will be known as Hosking-Carmody. She explained that in her household there is a clear distinction between the two sides of the family and so, e.g the paternal grandmother was known as “Nana Herlitz” and the maternal grandmother “Nana Carmody”. The mother also gave evidence about her own background. She was born Ms Morrice, grew up with surname Morrice-Carmody and then by deed poll in 2006 changed her surname to Carmody.
I was left in no doubt that from the mother’s perspective, A’s best interests were served by adopting the hyphenated surname Herlitz-Carmody, so that A was able to maintain an identity with both his parents.
Despite the mother’s oral evidence I found it curious that in the application she filed on 10 October 2007 she describes herself as Hosking (nee Carmody) and in the Orders she sought she refers to herself as Ms Hosking. In a medical certificate dated 12 February 2008 provided by Dr V and forwarded to the Court by the Mother she is described as “Ms Carmody”. A’s birth certificate refers to the mother as Ms Morrice, not Morrice-Carmody, as the wife asserted in evidence. Moreover in the assessments for child support for the periods 1 November 2004 to 31 August 2006 she is referred to as Ms Morrice but for 1 October 2007 to 31 December 2008 as Ms Carmody. The other significant fact is that the mother’s application does not refer to the surname issue at all- this was only raised orally when the matter first came before me on 31 October 2007.
The father’s evidence is contained in his affidavit sworn 28 February 2008. At paragraph 7 he articulates his concerns about the mother’s proposal. Whilst these are not the words he uses, I believe his evidence can be summarised by saying he has concerns about the mother’s rather chaotic and ‘ambivalent’ approach to the use of various surnames in her lifetime. He asserts, for example, that the mother has used three separate surnames for herself during their relationship, and changed at least twice since separation. From an evidentiary perspective, this does seem to be true. He deposes to the effect that A is known as Herlitz on his birth certificate and Medicare card. A describes himself as Herlitz to his father. I record, however, that I place no weight on the evidence at paragraph 7.13 as regards what the father asserts A said to him. The father did not know that A was enrolled in pre-school as Herlitz-Carmody, and believes he is enrolled as Herlitz at the school where he will start in 2009. In essence the father’s concerns are that A does not, in fact, identify with the surname Carmody, and that a change would cause him confusion and anxiety both now and in the future.
Discussion and Findings
It seems as if A has a meaningful relationship with both his parents (s.60CC(2)(a)) and there are no issues about protecting him from harm (s.60CC(2)(b)). There are no relevant views expressed by A that I am prepared to take into account (s.60CC(3)(a)). A’s relationship with each parent is sound (s.60CC(3)(b)). The only issue about the parent’s willingness and ability to facilitate and encourage a close and continuing relationship between A and the other parent (s.60CC(3)(c)) is the mother’s unilateral action in adopting the hyphenated surname Herlitz-Carmody, for certain purposes, last year. The lack of consultation with the father reflects poorly on the mother, but this does need to be seen in the context of the broader and clearly child-focussed parenting arrangement that both parents appear to have reached. I am not prepared to find that, as a result of this unilateral act, she is seeking to undermine A’s relationship with his father.
One of the main issues in this case is the likely effect on A of a change of surname (s.60CC(3)(d)), particularly having regard to the current situation, albeit unilaterally created by the mother. A is only four years old. I believe that the surname he is to use in the future, especially next year when he starts school, is far more important that the surname he currently uses. At present the contexts outside of the home where he uses his surname are far more limited than they will be when he starts school. Accordingly I am not concerned about the effect of a change from either ‘Herlitz’ or ‘Herlitz-Carmody’ at the present time. One thing that is vitally important, however, is that there are no future unilateral changes to A’s surname, irrespective of the circumstances of his parents.
In this case there are no issues about practical difficulty and expense of spending time with a child (s.60CC(3)(e) or of family violence (s.60CC(3)(j) and (k)), nor is A and Aboriginal or Torres Strait Islander child (s.60CC(3)(h)).
The remaining considerations require me to consider issues of parental maturity, lifestyle and background (s.60CC(3)(g)) and the capacity to provide for the needs of the child (s.60CC(3)(f)) and attitudes to the responsibilities of parenthood (s.60CC(3)(h)). These are all relevant considerations in this case. The mother’s evidence came across to me as quite immature and somewhat ambivalent in relationship to the surname issue, all of which suggested to me she lacked insight into the potential impact of a change of surname on A. She does appear to have had a somewhat disorganised, if not chaotic record about changes in her surname. Her evidence to me in this regard was inconsistent with documentary evidence. Her unilateral action in changing A’s surname last year is consistent with this finding of immaturity, ambivalence and lack of insight. I am not satisfied that either she or A is attached to the surname Herlitz-Carmody. I believe that A needs the solid foundation of one surname – Herlitz – on which he can base his identity irrespective of past, current or future changes in his mother’s surname or personal circumstances. This will minimise any confusion and embarrassment for him, whilst not adversely affecting the relationship he has with his mother or any member of her family.
I record my surprise at having to rule on this matter, and disappointment at having to make the findings I have made. Both parents have done so well in seemingly reaching agreement, in a child–focussed way, about parenting matters. Parents who come to the Family Law Courts need to understand, however, that in coming to this court for rulings in relation to matters on which they have not been able to agree the Court is required to make findings, some of which may not be pleasant to one or both of the parents. The obvious benefit of settlement is that parents are spared this unpleasantness.
Outstanding Issues
At the hearing the Mother indicated to me that she withdrew her consent to the making of the orders which she had originally signed, pending the outcome of these proceedings. In order to continue to case manage this matter I will re-list it before me on 27 May 2008.
Orders
It is appropriate to make the orders sought by the father in this matter.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 28 March 2008
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