Ivers and Dawkins (No.2)

[2018] FCCA 548

FEDERAL CIRCUIT COURT OF AUSTRALIA

IVERS & DAWKINS (No.2) [2018] FCCA 548

Catchwords:
FAMILY LAW – Change of child’s name – no relationship with Father – child has negative memory of Father – child’s name similar to Father’s which causes her distress – child unilaterally changed her name at school – in the best interest of child to change her name.

Legislation:

Family Law Act 1975, pt.VII

Cases cited:

Beach & Stemmler (1979) FLC 90-692

Chapman & Palmer (1978) FLC 90-510
Re F. Litigants in Person Guidelines (2001) 161 FLR 189

Applicant: MS IVERS

Respondent: MR DAWKINS

File Number: MLC 11336 of 2013

Judgment of: Judge Curtain

Hearing date: 6 & 7 February 2018

Date of Last Submission: 7 February 2018

Delivered at: Melbourne

Delivered on: 9 March 2018

REPRESENTATION

The Applicant appearing on her own behalf

The Respondent appearing on his own behalf

Counsel for the Independent

Children’s Lawyer

Ms Conlan of Counsel

Independent Children’s Lawyer: Coulter Roache Lawyers

THE COURT ORDERS THAT:

1. The child previously known as [X], born on (omitted) 2008, now be known as [A].

2. The Applicant apply to the Victorian Registry of Births Deaths and Marriages to register the change of the child’s name, in accordance with Order 1, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

3. The order appointing the Independent Children’s Lawyer be discharged.

4. All extant applications be otherwise dismissed.

5. Pursuant to rule 21.15 of the Federal Circuit Court Rules2001, it is certified that it was reasonable for the Independent Children’s Lawyer to employ an advocate.

6. Liberty be reserved to the Mother to apply to the Court should this Order require clarification or variation.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Ivers & Dawkins (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11336 of 2013

MS IVERS

Applicant

And

MR DAWKINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a contested parenting application where the Applicant Mother seeks an Order to change the name of the child [X] to [A].

2. The Father appeared in person and his presentation in this trial was most unusual. Sometimes he was rude, conformational and insulting. Other times he was respectful restrained, and behaved appropriately. At page 3 of the Independent Children’s Lawyer’s Outline of Case the solicitor says that the Father had previously been admitted to the (omitted medical facility).

3. These proceedings were commenced in the Geelong Circuit and I transferred them to the Melbourne Registry given the allegations of violence and the parents are both in person, so that I could access two Courts. One court contained the Applicant Mother, who could be heard and seen on a video monitor and in the other Court were the Father, Counsel for the Independent Children’s Lawyer and myself. In this way I could protect the Mother from any potentially distressing cross-examination, should the need arise.

4. Ultimately as it turned out, the father was generally well controlled during his cross-examination of the Mother and I noted that after the luncheon adjournment, she voluntarily returned to sit in my Court and subsequently did not require the services of the video monitor and other Court.

Background

1. The Applicant Mother Ms Ivers was born on (omitted) 1969 and is aged 48 years. The Respondent Father Mr Dawkins was born on (omitted) 1972 and is aged 46 years. They commenced cohabitation in 2007 and their child [X] was born on (omitted), 2008 and is now aged 9 years. (I note the similarities between the Father’s and [X]’s names). The parents separated on a final basis on 10 March, 2013.

2. On 19 June 2015, the Mother obtained an Intervention Order in the Magistrates’ Court in her favour and on 16 March 2016 final parenting orders were made, which in essence, provided the following:

   (a)That the Mother have sole parental responsibility for [X];

   (b)That [X] live with the Mother; and

   (c)That [X] spend no time with the Father.

3. Those orders were made by The Honourable Judge Stewart after a lengthy contested trial. I note she made a further order, as follows:

   “7.    Liberty is granted to the Father to send cards and gifts to [X] and the Mother be at liberty to review all cards and gifts and assess them for suitability before providing such gifts and/or cards to [X].”

4. In my opinion, it is a very significant issue in this trial that this order was made some 22 or so months ago at the time of hearing and yet the Father has failed to send cards or gifts to [X]. There is no ongoing relationship between the child and her Father.

5. A Family Report dated 4 September 2017 was written by Dr M and provided very useful evidence in this trial.

6. As the parents appeared in person, I provided them with a copy of the chapter contained in CCH Australian Family Law Practice, Volume One loose-leaf service, titled “Change of a Child’s Name”. It was 6 pages which detailed the practice and law in seeking a change of a child’s name. I invited them to read this document to better inform them about the issues in this trial and to assist them in acting for themselves.

7. I also assisted them as best I could pursuant to the guidelines in Re F: Litigants in Person Guidelines (2001) 161 FLR 189.

Documents Relied On

1. The Applicant Mother relied on her Application for Final Orders filed in the (court omitted) on 30 May 2017, and an Affidavit that was either sworn or affirmed by her on 14 December, 2016 and filed in the (court omitted) on 14 December, 2016.

2. The Respondent Father relied on two Affidavits both affirmed on 3 March 2017. One which contained 16 pages and the other which ran to 21 pages.

3. The Independent Children’s Lawyer relied on the following documents:

   (a)Outline of Case filed 2 February 2018; and

   (b)Family Report prepared by Dr M dated 4 September, 2017.

The Applicant’s Evidence

1. The Mother adopted her Affidavit which contained little information in itself but annexed a copy of an earlier Family Report prepared by Family Consultant Mr N which was dated 9 July, 2014. I note that Dr M read this earlier report when preparing her own report.

2. Paragraph 11 of the report, Mr N says the following:

   “11.  The stability of Mr Dawkins mental health is an issue whereby both parents maintain polarised positions. Mr Dawkins asserts that historically he was diagnosed with schizophrenia, but has not required any formal mental health treatment in several years. Ms Ivers contends that Mr Dawkins mental health has been extraordinarily unstable for several years and she provided a plethora of information supporting her position.”

3. The Father’s presentation before me on a number of occasions satisfied me that this is a gentleman that appears to still have psychiatric or psychological issues in his life.

4. Around the middle of the report Mr N detailed his interview in 2014 with [X] at paragraphs 65 and 66 as follows:

   “65.  Regarding her relationship with both parents, [X] was asked to identify what she liked and disliked regarding her parents. As to her mother, [X] said she enjoyed her mother taking her to the park and, “there are lots of things I like about my mum”. Regarding her father, [X] said there was nothing she liked about him. When asked if there was anything she disliked or wished to be different regarding her parents, [X] said she was unsure regarding her mother, but regarding her father, she conveyed a litany of complaints and this was of particular significance clinically for a child of only six years of age.

   66.   [X] stated that the day prior to attending upon this Family Consultant that she spent time with her father. She said he asked her questions about her mother whilst they were in the disabled toilets at his caravan park. [X] stated that her father slapped her to the face because he believed she was not telling him the truth about the questions he was asking about her mother. [X] acknowledged she was, “making things up because I didn’t know what to say”.”

5. Subsequently in the report Mr N undertakes an observation session between father and [X] which is detailed from paragraphs 82, as follows:

   “82.  Mr Dawkins asked [X] why she did not want to give him a hug and she replied that she simply did not want to. Mr Dawkins said to [X] again that this (their interactions) was not how it previously was at (omitted) and it was clear to him that her mother was influencing her. Mr Dawkins leaned back in his chair and continued starring at [X] intently and maintained quite an angry look upon his face. Whilst Mr Dawkins remained learning back in his chair, [X] commented to her father twice, “just play”, but he remained silent, leaning back in his chair angrily staring at [X].

   83.   This Family Consultant assessed that the observation session was not progressing well. Mr Dawkins was continuing to insist that [X] give him a hug and his overt expression of anger towards [X] appeared to intensify. Hence, this Family Consultant terminated the observation session and Mr Dawkins was asked to leave the interview room and accompany this Family Consultant out the front of the building. Ms Ivers was asked to sit in the interview room with [X].

   84.    Mr Dawkins told this Family Consultant he last spent time with [X] on the previous Sunday during their scheduled time together. He said when they spent time together at (omitted) both he and [X] got along with one another well. He indicated that [X]’s interactions with him was verification that she was being inappropriately influenced by her mother and he once again attempted to dominate discussions as he again alleged Ms Ivers is working as a prostitute.

   Professional Services

   85.    Following the observation session between Mr Dawkins and [X], this Family Consultant assessed that child protection concerns may possibly exist given the information disclosed by [X] and Mr Dawkins overt display of anger towards [X]. Hence, this Family Consultant’s (sic) made a formal notification to DHS. The content of that particular notification has been documented and placed upon the Court file for future reference by this Honourable Court.

   86.    Shortly following the notification to DHS, this Family Consultant was advised that the matter had been assessed as requiring an urgent investigation given [X] was due to spend scheduled time with her father the following Sunday.

   87.    on 2 July 2014 Mr S from DHS (omitted) telephoned this Family Consultant to advise the outcome of DHS’ investigation. He indicated that [X] made disclosures of having been physically assaulted/chastised by Mr Dawkins. DHS recommended to Ms Ivers that she not allow Mr Dawkins to have any unsupervised time with [X], she agreed to do so and that DHS would be writing to this Honourable Court to convey such advice formally.”

6. I found this material very troubling and whilst the contents were not challenged by the father in Court or his affidavits, I am mindful that Mr N was not cross-examined and therefore in the light of the evidence not being tested, I will give it less weight than usual in these cases. In my view the current report by Dr M, where she was cross-examined, was more relevant and more useful for the purpose of this trial.

The Respondent’s Evidence

1. The Father relied on two Affidavits affirmed by him in March 2017 and I made an order on 13 September 2017, for him to file further material within 56 days in response to the Mother’s material. I wanted to give him an opportunity to comment on and put into context (if necessary) the report of Mr N. At this trial I noted that father had not filed any further material and I raised this issue with him, but he did not give me an adequate explanation as to why he did not file any further material.

2. To my surprise when I invited the Father to consider entering the witness box he chose not to. He chose not to give further evidence nor be cross-examined. He did not formally adopt his earlier Affidavits but I had already read them and noted they contained little information that assisted me in this case as they generally were focused on financial matters.

3. His cross-examination of the Mother was interesting in that he asked a number of relevant questions, although many of those answers did not support his case.

4. I noted further that the Father did not help himself or his case by not being interviewed for the purposes of the current Family Report which says the following at paragraphs 12, 13 and 14:

   “12.  Mr Dawkins (Applicant) was interviewed briefly over the phone. He indicated that he was on his way to the interview and that he was unable to find the location of the building. He would not take advise (sic) on directions. He questioned the writer’s credentials to prepare the Family Report. He asked whether [X] would be present at the interview and when told no he asked what would be the point of his attendance.

   13     The father was advised that the purpose of the interview was to seek his views about the application and [X]’s name being changed. He stated that his views had not been sought over the last two years in relation to parenting matters. He stated that her other children (referring to the mother) had changed their name and implied that it was instigated by the mother. The father also blamed the mother for his financial demise.

   14.    The writer attempted to contact the father on three separate occasions after he failed to attend for the interview but to no avail.”

5. Overall where the evidence of the Mother and Father was in conflict, I preferred the evidence of the Mother.

The Family Report

1. [X] lives with her Mother, her Stepfather, and her bothers [C] and [D]. They are significant people in her life and she is happy in this family constellation. This was clear from the Family Report and the evidence of the Mother. This factor and other relevant matters were detailed in the Family Report and the author’s cross-examination, which I will consider in detail when addressing the relevant sections of Part VII of the Family Law Act (1975) below.

Relevant Legal Principles

Section 60B(1) Principles

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children is met by:

   (a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; 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 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 the care, welfare and development of their children.

Section 60B(2) Principles

1. Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):

   (a)Children having the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

   (b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   (c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   (d)Parents should agree about the future parenting of their children; and

   (e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60CA directs that… “a Court must regard the best interests of the child as the paramount consideration.”

3. Section 60CC then details how I must determine what is in a child’s best interests and says in subsection (1) that subject to subsection (5), (consent orders), the Court… “must consider the matters set out in subsections (2) and (3)…”

Section 60CC(2)(a) - the benefit of the child of having a meaningful relationship with both of the child’s parents:

1. It is clear that the child has a close and loving relationship with the Mother. On any view she has a meaningful relationship with the Mother. However, sadly it is not the same with the Father. She has no relationship with the Father following the Order of Judge Stewart and notwithstanding Order 7, in relation to being able to communicate with the child through cards and gifts, the Father has not taken up that opportunity.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence:

1. There are very serious allegations about family violence in this history of the family. It appears it was not only directed at the Mother, but from time to time, [X] was a victim by either observing or hearing the Mother being assaulted or verbally abused, and [X] herself reported being slapped by the Father. I note in the report of Dr M when [X] was being interviewed, the author said the following:

   “24.  [X] discussed her memories of her biological father and witnessing him chocking her mother. She recalled how scared she and her mother felt at the time. She also remembered him call her mother “horrible words. I felt really scared and did not like it.”

   She went on to say in paragraph 28 the following:

   “28.  [X] also referred to the horrible things her father did to other family members. She recalled him hitting her mother in the face. “I saw it. She had to put on make up”. She also recalled her fear during supervised visits and how she just wanted to run away”.

Additional Considerations

Section 60CC(3)(a) of the Act - 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:

1. When interviewed by the Report Writer, [X] (who is now 9 years), presented as confident and articulate. I note in paragraph 3 she said she had started a new school and that she did not have to “worry as much about her father attending there”.

2. Paragraphs 30, 31, 32 and 33 are very relevant to this subparagraph and I will quote them in full. They read as follows:

   “30.  [X] said that she did not want to (sic) referred to by her current name. She said that people called her (omitted) for short which aroused fear of her father. She said that she still had nightmares of him punching her mother. She also shared how she feared him turning up at her old school and removing her. She was fearful that she would never see her mother and step father again.

   31.    [X] said that changing her name would “refresh her mind”. She said that she did not want to be like her father. She said that it would mean a lot to her not to have the same name as him. She wanted to enjoy being with her new dad and family.

   32.    [X] also said that she wanted to change her surname. She said that her current name was so similar to her father’s name that she hated it because it made her think of him. “I get dizzy and get butterflies”. She was the only one in the family with that surname which made her feel really sad. She expected that her father would feel really mad. She said that she did not care as he meant nothing to her anymore.

   33.    [X] said that he mother would support her with what ever (sic) decision she made. She said that she felt sad that she did not have the same surname as her mother. [X] said that changing her name would “be like a dream come true”.”

1. At paragraph 39 of the report the author says that [X] presented as a mature child and significant weight should be given to her views in relation to this decision. [X] has very clear views on this topic and I will give them significant weight in coming to this decision.

Section 60CC(3)(b) - the nature of the child’s relationship with (i) each of the child’s parents:

1. On any view the child has no relationship with the Father and it is not likely to be cured in the short-term. [X] said the following at paragraph 27 of the report:

   “27.  [X] kept referring to her distress related to past experiences with her father. She shared how he would go to the toilet with her and “he’d piss in the sink”. She said he always went in to (sic) the disabled toilet and he would come in with her. She recalled feeling scared and embarrassed.”

2. As to her relationship with the Mother all of the evidence clearly points to a close, warm and loving relationship which is of great benefit to [X].

(ii) - Other persons including any Grandparent or any other relative of the child:

1. This is addressed at paragraph 25 of the report where the author says:

   “25.  [X] discussed how happy she felt with her new family. She drew her mother, her step father who she referred to as dad, her siblings and Ms Ivers children.”

Section 60CC(3)(c) - the extent to which each of the child’s parent has taken of failed to take the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child.

1. As to the Mother it is clear that she has undertaken all these issues with [X] and it has promoted this child’s welfare. As to the Father, given the Order of Judge Stewart, there is no opportunity for the Father to spend time with [X] or to participate in decisions about long-term issues. There is a limited opportunity for him to communicate with the child through cards and gifts but the Father has not taken up that opportunity at all.

Section 60CC(3)(ca) -  the extent to which each of the child’s parents have fulfilled or failed to fulfill the parent’s obligation to maintain the child:

1. It is appears that the Mother and the Stepfather wholly support and maintain the child. The Father did not provide any evidence of financial support for this child and in any event, has limited resources to provide any financial support.

Section 60CC(3)(d) - The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from:

1. Either of his or her parents:

1. In relation to her Father, she is clearly separated from him and has been for some time. It is unlikely in my view for this to change in the short-term and perhaps as a young adult she may seek him out. As to the Mother, any change in her role in this child’s life would be devastating for [X]. She is the significant carer in this child’s life and any separation, other than brief periods, would be a significant problem for this child should it occur. It is clearly in her best interests that her Mother maintains a role as caregiver and nurturer.

1. Any other child or person:

1. If this little girl was separated for any significant time from her Stepfather and/or siblings it would not be in her best interests. It would have a very negative effect on her happiness.

Section 60CC(3)(e) - 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:

1. Not relevant.

Section 60CC(3)(f) – The capacity of:

(i)each of the child’s parents; and

(ii)any other person

to provide for the needs of the child including the emotional and intellectual needs

1. As indicated above, the Mother provides for the child’s needs including emotional, intellectual, psychological and physical. The Father has no role in this given the judgment of Judge Stewart and for the last three years or thereabouts has not seen the child or undertaken any of the parental roles that normally one would expect a parent to do.

Section 60CC(3)(g) – maturity, sex, lifestyle and background of the child or either of the child’s parents and any other characteristics of the child that the court thinks are relevant

1. This subparagraph has little relevance to this dispute which is rather narrow in relation to the child’s name. Clearly the child is determined to change her name from the evidence I have heard from the Mother and the report writer, and this is a significant issue in this dispute.

Section 60CC(3)(h) – 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;

1. Not relevant.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Again, the Mother has a very caring and responsible attitude to her role as caregiver. The Father did not demonstrate any positive parental qualities during the trial.

Section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

1. I have referred to this when addressing section 60CC(2)(b) above.

Section 60CC(3)(k) – If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;

(ii)the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

(v)any other relevant matter;

1. Not currently relevant to the various issues in this trial.

Section 60CC(3)(l) – 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;

1. Given the narrow ambit of this dispute, I will be making an Order that effectively disposes of the issue entirely. I cannot guarantee that there will not be further litigation about this child or this topic, however, I am hoping that both parties no longer see litigation in this place as a sensible course and move on with their lives.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. The Applicant Mother was cross-examined by counsel for the Independent Children’s Lawyer and she advised the Court that two of her other children, [D] and [C] who are aged 17 and 18, who are half siblings to [X], have changed their surname to Ivers, the same surname of the Mother’s current husband. She said they have done that due to their love and respect for their Stepfather and it appears that everyone in [X]’s household now has that same surname save for [X]. The Mother was also asked:

   “Why did you bring this application; what prompted you to do it?---Because of the stress that my daughter is under. I’ve seen what she goes through with – with her name. She fears to be identified or to be recognised with the name. The first name she couldn’t stand. She wanted – she went through a whole book of names that – wanted to change her name. I tried to convince her that – that it’s a beautiful name; that it was after her grandma, but she kept saying that a lot of the kids see it and call her “(omitted)” (her biological father’s name). She doesn’t want to be reminded. She – she – she gets in a shock look mode. I don’t – she is pretty much terrified. She doesn’t want to be reminded. She told me very clearly, “Mum, I don’t want the name.” She actually spoke with her older sister and it was mentioned and her older sister, you know, has said to her “Your name is beautiful. What about if we change the way you spell it, because this way when the kids see it, they won’t be looking at it as (omitted). They will be looking at it in a different way and trying to sound out and then, you know, the name to [X] in a different way, not automatically calling her or giving her that nickname “(omitted)”.” Which I then thought that was a wonderful idea. I, you know ..... you know, we discussed it with her and she said, “Well, okay. It doesn’t really look like his name,” she said. And but she definitely does not want the surname. She fears – for example, she had an art show at – at the school and one of her arts piece was – displayed her whole name. She went absolutely ballistic. She said, “Mum, there’s all these people here. I’m scared they’re going to recognise the name.” I then had to, you know, have a meeting with the school. They try to always be careful, but it always slipped out, you know, through legal documents, her certificates, rewards the computer generated. And, you know, it’s a constant issue, constantly reminding the school. And [X] has just gone back to school now. It has just started and the same thing that she has got books with her name on it. She’s scribbling and crossing it all out. The teacher didn’t realise and said, “Sorry, we .....changing all this.” It’s just – it’s an ongoing issue we had for the swimming certificate not long ago. The same thing with that. I have to ring up and say – you know, and it gets a bit sort of embarrassing to have to explain as well, “Hey, you know,” for them to change her surname. It is and it’s embarrassing and, you know, at the same time you feel like you’re an open book. I’m constantly – you know, if we’re at the doctor’s, having to remind them, you know, just call out, you know, her first name, but don’t mention the second name.”

The Law

1. A leading case in this area is Chapman & Palmer (1978) FLC 90-510, where the Full Court detailed a number of factors to be taken into account in considering whether a name change should be allowed, as follows:

   “(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 to 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 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; and

   (f)The effect of frequent or random changes of name.”

2. In another case, Beach & Stemmler (1979) FLC 90-692, His Honour Justice O’Connor considered Chapman & Palmer, and added further considerations to the list saying that the Full Court did not mean to restrict the considerations merely to that list and he decided the following matters were also relevant:

   “(a)The advantages both in the short and long term which will accrue to the children if their name remains as it is now;

   (b)The contact that the Husband has had and is likely to have in the future with the children;

   (c)The degree of identification that the children now have with the Father;

   (d)The degree of identification which the children have now with their Mother and step father;

   (e)The degree of identification which the children will have with the child that is about to be born to the Mother and any likely confusion in the future if their Father’s surname is restored and

   (f)The desire of the Father that the original name be restored.”

3. In my view the Full Court and single Judge cited above did not mean that only this criteria was the sole basis upon which to consider a child’s change of name. All of this criteria and probably other matters are relevant to cases from time to time and have to be considered on the basis of Part VII of the Family Law Act 1975 (Cth), and in particular, what is in the best interests of the child or children.

Conclusion

1. The Father’s case was that this child was troubled and he blamed the Mother and her family of this. He alleged that the Mother was a liar and she and the members of her family had totally convinced this child to change her name. He inferred that her wishes, her views, were not her own but had been influenced by the members of her household.

2. The author of the family report, Dr M, was cross-examined by counsel for the Independent Children’s Lawyer and at one stage was asked what are the short-term effects of allowing [X] to change her name and the answer was as follows:

   “There are a number of considerations. The first is the impact that it would have on her emotional wellbeing. [X] experienced significant trauma in the care -- in her relationship with her Father and still identifies with that trauma by having his name, so that’s one aspect.”

   She was then interrupted by the Father with an objection which I did not allow and the author went on to say the following:

   “HIS HONOUR: That’s all right. Thank you. Take a seat. Sorry about that, Doctor. Continue?---The second issue for her is in relation to her attachment now to her stepfather and, assuming his name is something that’s very important to her in her attachment to him, her bond to him, her older siblings have assumed his name. She’s the only one that doesn’t have his name and for her, a significant part 5 of identifying and connecting with her family constellation and that name binds them all together. The third consideration is for [X] in being empowered through this process to have her say is part of her healing and I do talk about that in my report that in order to assist her in her recovery with her having some say over something as significant as this, in relation to this, will assist her in her healing process.

   MR DAWKINS: Let’s not exacerbate the wounding, then.

   HIS HONOUR: Can you just wait for your turn please, sir.

   MS CONLAN: So, Dr M, some of those are short term and some are long term and they are general positive effects on [X]. Would you have any concerns about negative effects either short or long term for [X] if the court were to allow the application for her to change her name?---I can’t – no. I think contrary, I think that if she isn’t allowed to change her name, that’s going to have long-term emotional impact on [X].

   HIS HONOUR: Thank you?---Yes.

   MS CONLAN: Now, in terms of any embarrassment to [X], first of all, do you have any concerns about [X] being at risk of any embarrassment?---If she keeps the name she has right now, she has, herself, identified that as being not just embarrassing but also quite traumatic. The embarrassment is caused by her being associated with her father’s name and him because of some of the previous behaviours that she was exposed to and the other issues for her is that the name was very similar to her father’s name so people would abbreviate it to (omitted) at times and that actually caused her not just embarrassment, but quite a lot of distress because - -

   MR DAWKINS: What embarrassment is she talking about - - -

   THE WITNESS: - - - it rekindled memories for her and the issues she was exposed to in the relationship.

   MS CONLAN: All right, then. When you talk about embarrassment and distress to

   [X], is this something you observed yourself in your conversation and assessment of [X]?---Yes. She was very explicit in – for a nine year old, she described it in age-appropriate terms – in describing the impact it has on her – on her body and the reaction she has to remembering her name. She described feelings and body reactions such as “I get dizzy” and “I get butterflies” when she thinks of him. She also recalled in a positive sense that if she could change her name, it would refresh her mind which was quite a poignant comment for such a young child to make because for her, it’s about changing her identity. Changing her identity is an important part of her recovery.

   And in terms of when you were talking with and assessing [X], did you have any concerns about [X] being influenced in her decisions by any other parties?---I believe these were [X]’s views. I think – and I did explore whether she had been influenced by others and I think the way she described her own experiences, the emotions that were connected to those experiences were ones of a child who has lived this experience, from my – from my opinion. And so from that point of view it’s not – I don’t think that she has repeated other people’s views. These are her own views so those were the – those were the support that made me consider that these were her own views.

   So if one of the issues the father raised when he was cross-examining the mother was the possibility that [X] is in a household full of older and more mature and articulate people – and I’m obviously paraphrasing here – and she may well have been caught up in the wishes and views of her older brothers and her mother. Did you have any concerns that that might be what was influencing [X] in making her request to have her name changed, that she was just caught up in the wishes of those around her?---That’s not something she referred to. The overwhelming reason that she presented to me was because of the trauma that she had experienced in the relationship, not due to her exposure to other’s views within the household. I think that is certainly something with regards to her own identity. That was very much something that was important to her that she fit in and identify with the family but they were her own views about inclusion, wanting to be included and have the same name as everybody else but I don’t think those views were formed by being exposed to those other people in the home.

   And just in terms of [X]’s identity, do you have any concerns if his Honour was to entertain the mother’s application to change the name, would you have any concerns about [X]’s identity and any confusion to her surrounding her identity?---No. I – I wouldn’t have any concern. What I was impressed about was that the mother was still trying to maintain some sense of connection to the paternal grandmother by not changing her first name completely and having a similar sounding name so she would still have some connection to her paternal identity. So, from that perspective, I think that the mother was very sensitive to ensuring that [X] had had that connection to the paternal grandmother with whom there was a positive relationship.

   In terms of [X]’s identity then, from a positive perspective, what would be the advantages to [X] in terms of her identity, particularly as she enters into adolescence if his Honour was to allow the mother’s application for [X]’s change of name?---Well, currently she herself has already changed her name at

   school so there would be less confusion for her because people will all be very clear about that name change and that’s not going to cause her any further embarrassment at school and in any other organisations where’s identified by her name. As she gets on, it’s certainly just going to consolidate her identity and, as she moves into adolescence and independence, that’s an important part of a young person’s need to be confident in who they are ..... and so giving her this name change now will enable her to have a much more confident sense of herself which can only assist as she enters adolescence.

   And if his Honour was to accept the mother’s evidence that this issue about [X] being able to change her name or, at least, not being allowed to change her name has been a source of distress to her, if the court were to grant the mother’s application, what would your views be on the impact on any distress [X] might be feeling about this matter?---I think it’s going to be a huge relief to her. 10 She has said that changing her name – a quote from what she said would be like a dream come true. It has obviously been playing on her mind and she needs to let go of this. It is obviously something that has been preoccupying her and in order for her to progress, she needs to let go of this. It’s part – and, again, it’s part of also being heard by the court, ultimately, and that I too think is going to be very empowering for her and enabling her to heal.

   Now, it’s the father’s wish that she retain her current name but the evidence as it stands to date would indicate that the father and [X] have had no contact at all since the middle of 2015 which was when contact was brought to a halt by - - -

   MR DAWKINS: Actually, it was earlier than that. If you had done your homework, you would know it was earlier than that.

   MS CONLAN: Well, it was in the wake of the first family report.

   MR DAWKINS: 2014. You said ’15, didn’t you.

   MS CONLAN: Well, there was – yes. There was supervised time. I apologise. You’re right. So Mr N’s report came out in 2014 - - -

   HIS HONOUR: I think it’s three and a half years since they’ve had - - -

   MS CONLAN: Yes. So three and a half years there has been no contact - - -

   MR DAWKINS: About mid-2014, I believe.

   MS CONLAN: Okay. All right. Yes. Since mid-2014, they’ve had no contact at all and, in fact, despite there being some avenue of contact for the father in terms of  providing gifts and letters to the child through orders of March 2016, the evidence as it stands suggests that he hasn’t availed himself of that opportunity. In those circumstances, are the father’s wishes going to have any impact on [X] and, if so, do you have any concerns about that?---[X] was very clear about wanting to sever times and she has – with her father – so her – if the father’s wishes were taken into consideration and – and the name change didn’t occur, that, I think, is just going to perpetuate the ongoing memories of connection to her father and it’s not going to allow this child to completely heal from that trauma. This is part of her – the severing of ties to [X] is really quite a significant part of her way of seeking to overcome the trauma of the past and it’s just how she is coping with that. And that needs to be respected and heard.

   Right. And in your assessment of [X], did you have any 5 concerns that she would be troubled by going against her father’s wishes on this matter?---Not at all. No.

   And would you have any concerns about that having a long-term impact on her, going against her father’s wishes on this matter?---[X]’s attachment now is to her stepfather. He is a significant father figure in her life and it is to him that she has that bond of a father figure. There is, from what I could observe, no attachment to the father so I do not see there being any long-term consequences for [X].”

1. When I apply the facts of this case to Part VII of the Act, (and in particular section 60CC), and the authorities, I find that there are a number of relevant facts that support a change of name which include but are not limited to the following:

   (a)[X] lives with her Mother, Stepfather and 2 half-brothers, both of whom changed their surnames to Ivers. She appears to be well settled and happy in this family unit. She refers to her Stepfather as ‘dad’ and appears to closely identify with her current family;

   (b)There is no ongoing relationship between the Respondent Father and his daughter and thereafter any change will not negatively affect that relationship;

   (c)She has negative memories of her Father which appear to be refreshed because of the similarities of their names, for example her peers continually shorten her name to (omitted), which she dislikes;

   (d)She has unilaterally changed her name at school, a very public forum, which appears to be a strong statement about her wishes; and

   (e)There is strong evidence to believe a change of name would generally make her happier.

2. I also accept the assessment and comments in paragraph 39 of Dr M’s Family Report which says:

   “39. [X] presented as a mature child and significant weight should be given to her views in relation to this decision. [X] appeared very distressed by her name as it evoked memories of her father, someone who had caused her significant harm. [X] appeared to be highly traumatised by her relationship with her father. Her emotional affect was extremely heightened in relation to multiple episodes of exposure to her father’s violent behaviour toward her mother, his abusive behaviour toward her and his stalking behaviour after orders were made for no further contact. This process of a name change may promote a healing process for [X]. It is likely that the process will be empowering if her views are acknowledged and she is able to establish these important personal boundaries. [X]’s new name will also assist her in promoting her emotional attachment to her new family constellation.

3. In my view the Mother has made out a strong case to change this child’s name and I note the Independent Children’s Lawyer supports her case. I find that it is in the best interests of [X] to change her name to [A] and I so order.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 9 March 2018