Howells & Parry

[2021] FamCA 414

FAMILY COURT OF AUSTRALIA

Howells & Parry [2021] FamCA 414

File number(s):

BRC 6193 of 2015

Judgment of:

BAUMANN J

Date of judgment:

27 May 2021

Catchwords:

FAMILY LAW – CHILDREN – Where, on the second day of trial, the parties have reached final parenting consent orders – Final parenting consent orders made – Where the father seeks a change of surname for one of the children who is not his biological child – Application for a change of surname dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Beach v Stemler (1979) Fam LR 5
Chapman & Palmer (1978) FLC 90-510

Mahony & McKenzie (1993) FLC 92-408

Number of paragraphs:

27

Date of hearing:

26 and 27 May 2021

Place:

Brisbane

Counsel for the Applicant:

Mr C van der Weegen

Solicitor for the Applicant:

Freedom Law

Counsel for the Respondent:

Ms S Bain

Solicitor for the Respondent:

Lander Solicitors Qld

Counsel for the Independent Children’s Lawyer:

Mr A Arnold

Independent Children's Lawyer:

Ms A Walsh, Legal Aid Queensland

ORDERS

BRC 6193 of 2015

BETWEEN:

MR HOWELLS

Applicant

AND:

MS PARRY
Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS BY CONSENT:

1.That all previous parenting Orders be discharged.

Parental responsibility

2.That the father have sole parental responsibility (as defined by s 61B of the Family Law Act 1975 (Cth) (“the Act”)) for the children, X born … 2012 and Y born … 2013 and will solely make decisions for X and Y regarding major long term issues (as defined by s 4 of the Act), with the exception of any change to the their names.

3.That the mother will have sole parental responsibility (as defined by s 61B of the Act) for the children, Z born … 2014 and W born … 2018 and will solely make decisions for Z and W regarding major long term issues (as defined by s 4 of the Act), with the exception of any change to their names.

4.That the parents are restrained from registering the children, X born … 2012, Y born … 2013, Z born … 2014 and W born … 2018 (collectively “the children”) as or referring to the children as any name other than those listed in these Orders.

5.That the parents are not required to consult each other about decisions made when the children are in their care that are not about major long term issues in accordance with s 65DAE of the Act.

Living arrangements

6.That Z and W live with the mother and all the children spend time with the father:

(a)commencing 30 May 2021, 9.00am to 5.00pm each alternate Sunday, for a period of one (1) month, thereafter;

(b)each alternate weekend, from 8.00am to 4.00pm Saturdays and 8.00am to 4.00pm Sunday, for a period of one (1) month, thereafter;

(c)each alternate weekend, from 8.00am Saturday to 4.00pm Sunday, for a period of one (1) month, thereafter; and

(d)each alternate weekend, from after school (or 3.00pm if a non-school day) Friday to before school Monday (or 9.00am if a non-school day).

7.That X and Y live with the father and all the children spend time with the mother:

(a)commencing 6 June 2021, 9.00am to 5.00pm each alternate Sunday, for a period of one (1) month, thereafter;

(b)each alternate weekend, from 8.00am to 4.00pm Saturdays and 8.00am to 4.00pm Sunday, for a period of one (1) month, thereafter;

(c)each alternate weekend, from 8.00am Saturday to 4.00pm Sunday, for a period of one (1) month, thereafter; and

(d)each alternate weekend, from after school (or 3.00pm if a non-school day) Friday to before school Monday (or 9.00am if a non-school day).

Travel

8.That despite the parents’ sole parental responsibility, the parents be restrained from removing the children from the Commonwealth of Australia without the consent of the other parent.

9.That the parents be allowed to travel for up to two (2) weeks per year after ensuring:

(a)an itinerary is provided to the other parent within four (4) weeks of travel;

(b)return tickets are purchased;

(c)travel insurance is purchased if the children are traveling on an aircraft; and

(d)the parent with care of the children will facilitate a telephone call or Facetime call each Tuesday and Thursday, commencing between 5.00pm and 5.30pm AEST.

Special days

10.That notwithstanding any other Orders herein, the children will spend:

(a)Mother’s Day with the mother from 9.00am to 5.00pm;

(b)Father’s Day with the father from 9.00am to 5.00pm;

(c)the father’s birthday with father from 3.00pm to 7.00pm if a school day, otherwise from 9.00am to 5.00pm;

(d)the mother’s birthday with mother from 3.00pm to 7.00pm if a school day, otherwise from 9.00am to 5.00pm;

(e)their birthdays with the parent who is not otherwise caring for children on the children’s birthday from 3.00pm to 7.00pm if a school day, otherwise from 1.00pm to 7.00pm;

(f)8.30am Good Friday to 8.30am Easter Sunday with the father in odd numbered years and with the mother in even numbered years;

(g)8.30am Easter Sunday to 8.30am Tuesday after Easter Monday with the father in even numbered years and with the mother in odd numbered years;

(h)12.00pm Christmas Eve to 2.00pm Christmas Day with the father in odd numbered years and with the mother in even numbered years; and

(i)2.00pm Christmas Day to 12.00pm Boxing Day with the father in even numbered years and with the mother in odd numbered years.

Telephone communication

11.That the mother will facilitate electronic or telephone communication between W and Z, and Y, X and the father each Tuesday commencing between 5.00pm and 5.30pm.

12.That the father will facilitate electronic or telephone communication between Y and X, and W and Z and the mother Thursday commencing between 5.00pm and 5.30pm.

13.That the parents may communicate via text message regarding the children.

14.That the parents return any missed phone call within twenty four (24) hours.

Changeovers

15.That the children will be collected by the parent (or their nominee provided such nominee is known to the children) commencing care of the children from their school if a school day, and if a non-school day the Suburb B service station if changeover is to occur at or before 5.00pm, otherwise Hungry Jacks C Town.

Specific issues

16.That parents will:

(a)keep each other informed of the particulars of any change of residence address, email address or mobile phone number within twenty four (24) hours of any change;

(b)keep each other informed of any adverse health event suffered or sustained by the children requiring the parent caring for the child to consult a health practitioner or for the child to be absent in whole or part from a school day, the same day as the onset of such event;

(c)keep each other informed of any health practitioner consulted for the children within twenty four (24) hours of the consultation (including name and address of health practitioner and condition(s) which were the subject of the consultation);

(d)not question the children about the personal life of the other parent;

(e)speak to and of the other parent respectfully and without intimidation or harassment, nor in manner defined by s 4AB of the Act as domestic violence;

(f)not denigrate the other parent (or the other parent’s spouse, partner, step-children, other family, friends or associates) in the hearing, sight or presence of the children and will take all necessary steps to prevent the children from being exposed to such denigration of the other parent (or the other parent’s spouse, partner, step-children, other family, friends or associates) by any other person;

(g)not to consume illicit drugs, or expose the children to any person who has consumed illicit drugs, when the children are in their care;

(h)not to expose children to domestic violence, physical discipline, drug taking or criminal behaviour; and

(i)facilitate the children attending their respective extra-curricular and social activities.

17.That the parents are at liberty to provide a copy of these Orders to any health or educational services provider for the children.

18.That each parent is at liberty to obtain whatever information they require about the children from any health, educational or extra-curricular services provider for the children and those providers are hereby authorised to release this information to each parent.

19.That leave is given to each parent to provide a copy of these Orders to any health, educational, or extra-curricular services provider for the children.

20.That the parents do all things necessary to register the birth of Z and obtain a birth certificate with the parents equally contributing to any associated cost.

21.That the parents be restrained from taking photographs of the children’s genitals.

22.That where the mother is of the view that the children have complained to her of sexual misconduct by the father, she is restrained from photographing, filming or recording the children in relation to those allegations or allowing members of her family to do the same.

23.That should the mother have concerns of sexual abuse of the children by the father that requires medical examination, she attend a hospital to have the children assessed.

24.That the mother attend counselling for at least six (6) months from the date of these Orders and complete at least six (6) counselling sessions.

25.That the parents must provide a copy of the family reports prepared by Ms D dated 12 May 2021, 18 June 2020 and 14 February 2020 to their respective counsellors, if any.

26.That the father enrol in the E Service behaviour change program within three (3) months of the date of these Orders and provide a copy of the certificate of completion to the mother within one (1) month of completion of the program.

27.That the Independent Children’s Lawyer have leave to provide a copy of the family reports prepared by Ms D dated 12 May 2021, 18 June 2020 and 14 February 2020 to the Department of Children, Youth Justice and Multicultural Affairs.

28.That within fourteen (14) days of the date of these Orders, the mother inform the Independent Children’s Lawyer of the name and organisation of her chosen counsellor.

29.That within fourteen (14) days of notification of the counsellor pursuant to Order 28, the Independent Children’s Lawyer provide a copy of these Orders and any Reasons for Judgment, and the family reports prepared by Ms D dated 12 May 2021, 18 June 2020 and 14 February 2020 to the counsellor.

30.That upon the Independent Children’s Lawyer providing the documents pursuant to Order 29, the Independent Children’s Lawyer be discharged.

THE COURT ORDERS ON A FINAL BASIS:

31.That the Application for the change of name of Z be dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. The parties in this case are the Applicant father, Mr Howells, who is approaching his fiftieth birthday in 2021, and the mother, Ms Parry, who is now 32 years of age.  In my view, the age difference identifies one of the issues in the case about their parenting and their approach to parenting.  It is known, of course, that the father, Mr Howells – I shall call him the father even though it is conceded and acknowledged that he is not the biological father of Z, is already the parent of a teenager, V, who he deposes to in his affidavit as having a good relationship with and seeing regularly.

2. The mother, as I say, is some 17 or 18 years younger than the father.  Her first parenting experience was the birth of the first child, X, in 2012.  She is now nine years of age, followed by Y in 2013 who is now eight years of age.  It is fair to say that the history of these parties has been one shaped by some toing and froing in their relationship.  Whilst they commenced cohabitation in 2010, the evidence – not all tested because of the consent the parties have reached – reveals that they first separated some one to two years after cohabitation commenced.

3. There was separation for the period of over two years from early 2015 to mid-2017.  In between these periods of togetherness they conceived two children.  What Mr Howells may not have been aware of is that the mother conceived Z with another male who has been identified as possibly a resident of New Zealand, who has never undertaken any role in the life of the child.  The mother says she is not even certain of his true surname.

4. The on and off relationship returned to a form of reconciliation by late 2017.  It is a bit hard to understand all the ins and outs of this relationship, but what features as part of the history of some importance is that earlier proceedings resulted in final consent orders made by a Judge of the Federal Circuit Court of Australia on 19 July 2017, which provided for the children then existing, namely, X, Y and Z, to live in a week about arrangement.  Importantly and significant to the issue that I have to decide today, as opposed to those which are the subject of consent orders, is order 16 made by consent on 19 July 2017.  Order 16 provided, “That the parents do all acts and things necessary to cause the children’s surnames to be recorded as “HOWELLS” with the parents equally contributing to any associated cost.”

5. On the evidence I have heard today, I am satisfied that at the time that Order was made and the week about arrangement was put in place, the mother reasonably had a strong, if not certain, belief that Mr Howells was not the biological father of Z.  However, the Orders made no distinction and, on balance it seems to me, that either she promoted Mr Howells as the father of Z, or he did not actually know he was not the biological father.  Be that as it may, when the relationship broke down yet again – and as I say, this has been a very ambivalent relationship between two parties of quite different ages and parenting styles, Orders were made after proceedings were commenced by the father in February 2019, which resulted in paternity testing being conducted and the Applicant, Mr Howells, being excluded by scientific testing of samples provided to an independent sampling organisation, as the biological father of the child.

6. Whilst Mr Howells is understandably upset by the result, there is no evidence to show any application by him to challenge the result or any argument about a flawed process that could have led to that analysis.  Frankly, it is hard to imagine what it could have been because the obligation of the test was not to establish whether Mr Howells was the biological father, but whether he was excluded as being the biological father, and he was, by testing.

7. That revelation was in the midst of highly contested parenting proceedings where allegations of domestic violence strongly raised by the mother against Mr Howells were pursued; where the mother was pursing allegations that the father presented as an unacceptable risk to the children, and, in fact, most recently Z, where the father was raising serious allegations against the mother’s parenting style including her mental health, and whether she had physically abused the children.  In fact, in this case, just about every parental deficit could be found asserted in the affidavits of the parties that they filed for me to read before the commencement of the trial was due to start yesterday.

8. Having read all the material, including the initial family report by family report writer, Ms D, an amendment to that report, and a more recent report, I was somewhat surprised to be told yesterday at about 11.00am that the parties were in negotiations.  The parties’ competing proposals before the matter opened before me were effectively to seek quite different orders as to where the children lived and what time, including supervised time, the other parent would have with the children.

9. In the circumstances, therefore, the final parenting orders which set the context of the issue I have to decide, exhibits a significant compromise by both parties.  The effect of their “compromise” which they both say, and the Independent Children’s Lawyer accepts and submits is in the best interest of the children, provides for the four siblings to be separated.  The consent orders provide for the children, X and Y to live with the father and for him to have effectively sole parental responsibility, and for the children, Z and W, to live with the mother and for her to have sole parental responsibility, and for orders that have been agreed, graduating to time which includes each alternate weekend unsupervised.  The children will effectively spend each weekend together, one weekend in the care of the father, and one weekend in the care of the mother.  Provisions for holidays are made of a limited nature.

10. Of course, courts are always concerned when siblings are separated, however, these children have been separated now for well over 12 months.  The Court’s concern about how parents who spend so much time and energy telling the Court how bad the other parent is – all the deficits – some of the allegations as being serious, some less serious, but all troubling if that is their view of the other parent, could reach a compromise of the nature which is being tendered to the Court.  I make this observation, because as least at one level, I do hold concerns that this will not be the end of this litigation forever, and that is, of course, a factor which I am required to take in consideration considering the best interests of all four children.

11. It was in fact, as the record would reveal, one of my concerns when I was asked to look at an earlier draft of a minute of consent order about things that had been, through no doubt hard work yesterday, achieved by all the legal practitioners and the parties, again another form of compromise.  The third version of the consent orders, which I mark with my initial and place with the papers, represent the best of the three versions I have been offered and do take account of earlier matters I have raised, which Counsel have taken on board, it seems to me and the parties have, having heard some preliminary thoughts, compromised on again.

12. But for anyone who may read these Reasons at some future date for another purpose, I cannot say that in making the Orders I do today, that I have every confidence that these parties will be able to make these Orders work well into the future.  Such is the depth of their toxic relationship and their apparent mistrust and lack of respect for the other parent which was reflected in the limited evidence I saw today.

13. However in making these Orders by consent, I take into account these parties are probably exhausted by the litigation.  They want to get on with parenting.  Both have strengths as a parent, and in my view on the evidence, although not tested, weaknesses.  Nonetheless they love these children.  Whether they understand how important it is for these four children, that they work together with these Orders to support the other person and to not add to a child’s discontent by criticising the other parent, only time will tell.  As I say, I have some concerns whether they have reached that stage of acceptance.

1. The mother agrees to undertake counselling.  The father could as well in my view, although no order is made, benefit from counselling to understand his contribution to the conflict which has engulfed this family over many years.  Nonetheless, I give some weight to parents’ consent orders for the simple reality that it is the parents who need to make the orders work once they are made.  So with the benefit of their experienced Counsel and solicitors, and no doubt the guidance and assistance of Mr Arnold, Counsel for the Independent Children’s Lawyer, Ms Walsh, the compromise which the orders demonstrate, I am prepared to make by consent, because I find on balance they are in the best interests of the children.

2. An issue that remains to be determined, and the parties have been unable to resolve, is the surname of Z.  In that regard, there is no dispute now that the children, X, Y and W shall during their infancy, use the surname of Howells.  The mother accepts that to be the case.  That is the way their births are now registered, albeit many years later than they ought to be have registered under Queensland law.  Neither party is asking me to change that, in fact the parties agree that they will maintain that surname for those three children.

3. The issue about Z’s surname is difficult and creates a lot of emotion in this case, which I accept, is deeply felt and long standing.  I deal with the principles that are to be applied and arising from decisions such as Chapman & Palmer (1978) FLC 90-510, Beach v Stemler (1979) Fam LR 5, and many since then, the factors and principles to which a Court should have regard to determining whether to change a child’s surname includes:

   (a)the welfare of the child being the paramount consideration;

   (b)the long term effects of any change of name and any advantage which might accrue to the child if the name is changed or not;

   (c)any embarrassment likely to be experienced by the child if the child’s name is different from that the parent with whom the children primarily resides;

   (d)any confusion of identity which may arise through child if his or her name is changed or not changed;

   (e)the effect which any change of surname may have on the relationship between the child and the parent whose name the child bares;

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

   (g)the contact that the other parent has and/or is likely to have in the future;

   (h)the degree of identification that the child now has with the father; and

   (i)the desire of the father that the original name be restored if applicable.

4. It is fair to say that nearly all the authorities of which I am aware, although I am not saying that they may not be an authority, deal with the situation where the mother and father involved in the contest of the surname are the biological parents of the child.  This is a slightly different scenario, and I invited Counsel to provide me with any case that involves something similar to this situation.  No doubt Counsel have looked, as is their duty.  I am not surprised they have not found one.

5. When courts have been asked to consider hyphenated names, often the Court has to take into account, as was identified in Mahony & McKenzie (1993) FLC 92-408, that a hyphenated name, “Accords with the reality of life as the child has an ongoing relationship with both parents even though they do not live together.” Again, slightly differently, this is a situation where the biological father of the child is unknown and plays no active role. So to the extent that Mr Howells is not the biological father, and whilst I believe that is a factor, it is not a determinant factor in my view.

6. I took brief evidence from the parties today.  I have, as I say, no doubt at all that Mr Howells is both frustrated and angry, not only because he has had to deal with allegations of sexual abuse of the children which are no longer pressed by the mother today, reflected in both the conduct of her case and the order she agreed to, although I am not entirely certain whether her beliefs have changed in anyway.  Such allegations having caused the father significant involvement with the Department of Children, Youth Justice and Multicultural Affairs (“the Department”), the Police and which were, as I say, the subject of continuing recent complaints to the Department according the Magellan report I have received.

7. I have no doubt that, to the extent that the paternity testing undertaken by Court Order made it clear that Z was not the biological child of Mr Howells, that was a very – and particularly confronting – situation for Mr Howells.  It not only involved the certainty that the mother of Z had, perhaps without his knowledge, engaged in a sexual activity with another person, but also that he and the mother had effectively created a false situation for Z as she grew up from infancy until about the age of four and a half years.

8. However, the test as I have indicated is not about anything more than what is in the best interests of the child.  The history of this child’s name seems to be uncontroversial, although the father objects to it.  Finally, the mother did, as she was entitled to do under Queensland law, register the child’s name.  She registered the surname as Parry.  It is the mother’s birth name.  It is a name she carries.  She enrolled the child at a school, which I note is a different school to her siblings, as Parry.  She has Z registered with Medicare, sporting activities, extra-curricular activities, and as I say, at school, by the name of Parry.

9. The mother says, and I accept her evidence, that the child identifies with the surname Parry.  Accordingly, it is a factor in terms of these principles I have to consider, whether changing her name as opposed to not changing her name, will affect any of the intact relationships she has now.  I am not satisfied the evidence of her sense of identity, carrying the name of Parry as is her mother's name, confuses her identity at all.

10. It is clear she is aware she does not have the same surname as her siblings.  The father’s own evidence is that she has inquired of him why she has a different name, and he felt unable, and I understand why that might be, to provide an adequate answer to a child of this age.  To some degree, it seems to me, that his inability to do so, although he should have shown more courage perhaps, is because of the hurt he feels about the fact that he is not the biological father of the child.

11. Nonetheless, all the evidence and Mr Van Der Weegen properly conceded this, reveals that the name she has carried and identifies of Parry has not in any way affected the development of her relationship with Mr Howells.  What has affected the relationships of these children with the other parent has been the period of time whilst this family has been progressing through the Court as a result of the untested allegations, whereby significant reduction in time between the children and the other parent occurred.  To some degree that has been remedied by the Orders the parents agree to now.

12. Z, in my view, identifies with the name Parry.  She will, under the Orders I have made, continue to live with her mother who uses the name Parry.  She will under these Orders, live with her brother W and spend every weekend with her siblings.  There is nothing on the evidence that suggests to me the relationship with her siblings, who are at different schools, and who are older and have used another surname, will be adversely affected.

13. There is nothing in the evidence to suggest to me that the father will treat Z differently than he treats the other children.  In fact, the Orders suggest she will be treated exactly the same.  There is nothing to suggest on the evidence that the father will, as I say, differentiate the way he treats her as a daughter than the way treats X as a daughter.  Z, who is used to the name of Parry will have an ongoing relationship with a man who she regards as her father, but has a different name.  She will continue to live primarily with the mother whose name she shares.  There is no basis that is in her best interest in my view to change her surname.

14. To be complete, a change to a hyphenated name (which was an alternate proposal) is a compromise I am not prepared to undertake and which will inevitably maintain ongoing conflict between these parties.  As I say, Z has carried this name now through her early schooling and extra-curricular activities.  She does not have to explain a change of name because none will occur.  She will continue, as I say, to be treated as a member of a sibship of four, who just have a separate and different distinct surname.  For those reasons, to the extent that there is an application before me to change Z’s name, the application is dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann on 27 May 2021.

Associate:  

Dated:       28 June 2021