K and M - [2003] FMCAfam 70

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & M

[2003] FMCAfam 70

FAMILY LAW – Application to change name of child.

PRACTICE AND PROCEDURE – Application refused on previous occasions – no change in circumstances – application dismissed – abuse of process – vexatious – repeated breach of order – conduct of school permitting breach of order.

Applicant Mother:

Respondent Father:

File No:

DGM 1805 of 2002

Delivered on:

26 February 2003

Delivered at:

Dandenong

Hearing Date:

26 February 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant Mother:

Ms RK appeared on her own behalf

Respondent Father:

Mr GM appeared on his own behalf

ORDERS

The Application filed by the Applicant Mother on 15 October 2001 is dismissed.
The Applicant Mother shall not commence any other proceeding of a similar or like nature to this Application without the leave of the Court.
That a sealed copy of this order be forwarded by the Court to the principal of the school currently attended by the child.
The Applicant shall pay the Respondent’s costs fixed in the sum of $259.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGM 1805 of 2002

Applicant Mother

And

Respondent Father

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application by R(R)K (the Applicant Mother) filed on

15 October 2001. The application seeks orders that AM (the child) born on 6 November 1996 be permitted to take a second given name of “A(P)” and that he be permitted to be referred to by either of these given names.
Further orders are sought that the additional name be shown on the child's birth certificate and that the child be permitted to use the additional names on all legal documents and transactions.
In the proceedings before this court the application has been the subject of a response filed by GM (the Respondent Father) on 24 February 2003 seeking orders that the application be dismissed, that the matter not be brought before the court again, that the Applicant Mother in the proceedings be deemed frivolous and vexatious and that a costs order in relation to the matter be made against the Applicant Mother. Costs are said to include the loss of a day's net wages of the Respondent Father who is unrepresented, together with the filing fee, the total being an amount of $259.00.
The parties in this matter are now divorced. They were married in 1995, separated on 8 December 1996 and divorced on 1 March 1998. The child of the relationship, to whom I have referred, was born on

6 November 1996.
In support of the application the Applicant Mother has relied upon a number of affidavits. Those affidavits include an affidavit sworn by the Applicant Mother on 13 October 2001 being the original affidavit to be relied upon in these proceedings and reliance is placed on more recently filed affidavits of the Applicant Mother. It is these further affidavits upon which reliance is placed this day namely an affidavit sworn 13 December 2002. That affidavit, subject to some alterations or at least reference to further material, has been otherwise adopted by another affidavit sworn by the Applicant Mother on 9 January 2003.
In further support of the application the Applicant Mother – and this is not material which has been required for the purposes of cross-examination – has relied upon an affidavit of GH sworn 10 January 2003, an affidavit of MK sworn 11 January 2003, an affidavit of JT sworn 13 January 2003 and an affidavit of Dr RK sworn 13 January 2003.
The Respondent Father for his part seeks to rely upon the response, together with affidavits sworn by him on 26 November 2001 and

24 February 2003.
When the matter was heard this day both parties were unrepresented and I permitted, with the consent of the Respondent Father, the Applicant Mother to rely further upon an affidavit sworn this day by Father V. That affidavit simply confirms the contents of a document marked as annexure RK2 to the affidavit of the Applicant Mother which has been sworn on 13 December 2002. The exhibit marked RK2 is an exhibit which confirms that on Sunday, 6 July 1997 the child was baptised in the name ‘A(P)M.’
It is important in this case to understand that certain orders were made on previous occasions between the parties which inter alia related to the issue of the name of the child. The first of those orders were made by Kay J on 18 June 1997. On that occasion the court made orders in relation to issues which concerned the matter of the name of the child, and in particular, the court made an order as follows:
“That until further order, the wife be and is hereby restrained from referring to the child, the subject matter of these proceedings, by any names other than AM, save that she may use any appropriate diminutive of the name A as she chooses.”
Those orders were made by Kay J, as I have indicated, on 18 June 1997. At the time of making those orders His Honour delivered a judgment, a copy of which is attached to the Respondent Father's most recent affidavit. It is appropriate to refer to paragraphs in that judgment which, in my view provide some insight into the issues that are currently before this court. His Honour says in that judgment:
“An issue relating to the name by which a child is to be known is a specific parenting issue and it is to be determined in accordance with the general dictates of the welfare of the child as the paramount consideration. The name of the child is crucial to the identity of the child. These parents each have responsibility for the long-term decision-making of the child and, in my view, neither is in the position of being able to unilaterally determine issues relating to the long-term welfare of the child without appropriate consultation of the other and, absent agreement, without an order of the court.
A decision which so affects the child as to change the entire nature of the identity of the child, in my view, has serious and long-term ramifications. Until such time as the court is able to properly investigate those ramifications and to properly determine whether there is any basis for such a dramatic course of events to take place, in my view, it is appropriate for the welfare of this child to avoid any confusion relating to the child's identity and to avoid any further steps which are likely to alienate the child from his father.
In my view, the changing of the child's name to that of his maternal grandfather, both as to given name and surname, can only assist in confusing the child as the child grows up and in alienating the child in terms of not allowing the child to have appropriate identification with his father in circumstances where there are a number of other barriers already been placed in that path. In these circumstances I propose to grant the injunction. There is nothing intended by the injunction that would restrain the wife from using some diminutive form of the given name of the child to appropriately identify him.
She says that the given name of A is too much of a mouthful. I am not intending in any way to stop her from using some diminutive form of that name, such as A, or any other appropriate diminutive to refer to the child should she not wish to refer to the child by the long and complicated name.”
After that part of the judgment His Honour then made the order to which I referred restraining the Applicant Mother from using any other name other than AM, save that the Applicant Mother may, as indicated, use an appropriate diminutive.
In these proceedings I am told that the child responds to, and uses the name ‘A’ as a diminutive of A and there is no dispute between the parties that this is an appropriate diminutive of the name.
After that order was made by the court on 18 June 1997 it appears from the chronology of orders which have been attached to the affidavit of the Respondent Father that on 5 August 1997 Wilczek J in the Family Court of Australia at Dandenong made a number of orders in relation to the child to whom I have referred.
In the sealed copy of the orders before this court there are a number of orders which were made on that occasion by the court by consent. Order 14 of the orders provides the following:
“14.That until further order, the wife be and is hereby restrained from using or permitting to be used any other name in respect of the said child, other than AM, save that she may use any appropriate diminutive of the name A.”
It will be obvious from my reference to that order that Wilczek J on

5 August 1997 replicated the injunctive order, this time by consent, of the orders made by Kay J on 18 June 1997.
The matter was again before the Family Court before Guest J on 5 June 1998. Again a sealed copy of the orders made by the court on that day appears as an exhibit to the recent affidavit of the Respondent Father. A number of consent orders were made on that day. On that day both parties were represented by counsel. A consent order was made, namely order 8, in the following terms:
“8(a)That the wife be, and is hereby restrained, from referring to the child by any other name than AM, save that she may use any appropriate diminutive of the name A.
(b) That the wife shall do all things reasonably necessary to instruct, direct and request all members of her family and all friends to refer to the said child solely by the name AM or any appropriate diminutive of the name A.”
It was further ordered as follows:
“9.That the wife forthwith sign all documents and do all things necessary to request and petition the Archbishop of the Greek Orthodox Church and, if necessary, the Ecumenical Patriarch of the Greek Orthodox Church, to do all things necessary to annul the Christening/Baptism conducted at the Greek Orthodox Church at P on 6 July 1997, and the wife shall further direct the priest and any other relevant church official to refrain from doing anything further to complete the registration of the said Christening/Baptism.”
It was further ordered by Guest J:
“10. That the wife shall as soon as practicable serve upon:
(a)the Bishop of the Greek Orthodox Church of Victoria;
(b) the Archbishop of the Greek Orthodox Church of Australia
a sealed copy of these orders and the orders dated 18 June 1997 which restrains the use of any other name for the child other than AM.”
It will be clear from those orders that I have just recited that on no fewer than three occasions Justices of the Family Court of Australia had made orders of a consistent nature in relation to the name of the child.
The affidavit material relied upon by the Applicant Mother in this application makes it perfectly clear that the Applicant Mother seeks to use both names for the child; that is, to use the name A or a diminutive thereof and the name P, which it is common ground, is the Anglicised name of the child's maternal grandfather.
The affidavit material which has been relied upon by the Applicant Mother includes, as I have indicated, an affidavit of 13 December 2002. That affidavit refers to a history of the use of the name ‘P’ by the child which it is said is a history since the child was four weeks old. It raises other matters in relation to the use of the name.
The further affidavit material relied upon by the Applicant Mother includes, as I have indicated, the affidavit of Mr GH. Mr H is apparently a real estate agent. The affidavit in that sense seems to refer to matters which refer to the residence of the Applicant Mother rather than any matter that might be relevant in relation to the use of the name.
The affidavit of MK refers to the fact that she lives next to the Applicant Mother, that her children play with the Applicant Mother's child. She refers in the affidavit to the Applicant Mother's child ‘P’ on a regular basis and states that she and her children always refer to the child as P as he always refers to himself by that name.
The affidavit of JT, who is purportedly a consulting psychologist, states that she attended upon the Applicant Mother on 1 May 2002 because the Applicant Mother was distressed as her son P was not able to use the name P on his school work at the B Primary School. The affidavit of the deponent further states that:
“The Applicant told me that she and her family have always called her son ‘P’.”
Ms T deposes further that on 7 May 2002 she attended a meeting at the B Primary School with the Applicant Mother. The principal SA and, the class teacher AR were at the meeting. The principal explained, according to the affidavit, that P's father had threatened to take the school to court if ‘P’ was not referred to as ‘A’. It was agreed between those present at the meeting that ‘P’ would be allowed to write both ‘P’ and ‘A’ on his school work. Ms T deposes:
“6.On 9 October 2002 the Applicant and her son came to see me at my rooms. ‘P’ explained that he would like to be able to call himself and be called ‘P’ at school.
7.My opinion as a consulting psychologist is that it would be in P's best interests to call himself or be called either P or A at school, especially since he has answered to both names for the whole of his life.”
The further affidavit relied upon is the affidavit which I have referred to of Dr RK. In that affidavit the deponent, who purports to be a doctor, states the following:
“2.That the child wishes to be called ‘P’ by his peers at school.
3.That he understands that he has two names (P and A), however, he associates himself mostly with the name P.
4.That the name P is easier for his school peers.
5.That the mother RK (the Applicant) understands the father's rights, however, she would like to use both names, P and A.
6.I believe the mother's request is reasonable and best for the child.”
In the affidavit in response of the Respondent Father, that is, the affidavit sworn 24 February 2003, the deponent refers to the chronology of court proceedings which I have now recited. The deponent further refers to the affidavit of the Applicant Mother and states that that affidavit is evidence that the Applicant Mother has not complied with the existing orders in relation to the issue before the court and that the Applicant Mother has broken the said orders of Kay, Wilczek and Guest JJ.
The deponent further states that the Respondent Father does not wish that orders in relation to contempt of court be issued against the Applicant Mother as these orders will affect the child in a detrimental manner. I should add, for the sake of completeness, that the Respondent Father has repeated in open court that it is not his desire to bring contempt proceedings or contravention proceedings against the mother because he believes that would have a detrimental impact upon the child.
It is against that backdrop of the chronology and indeed proceedings that this court has to consider the issue of whether the application should be allowed. The issues that were raised in this matter are issues that have been before the court and at least before three justices of the Family Court to which I have referred.
I adopt what is said by His Honour Kay J in the reasons for judgment which His Honour delivered on 18 June 1997 in relation to the significance of a change of a child's name. It is clear to me, and I find, that from the date of the orders made, at least as recently as those orders made by consent with both parties represented on 5 June 1998, that there has effectively been non-compliance by the Applicant Mother with that restraining order.
It is further clear to me that following the orders made by the court, that is, by Kay J on 18 June 1997, that the Applicant Mother thereafter, namely on 6 July 1997, proceeded in clear breach of the orders of the court to in fact arrange for the baptism of the child in the name which is obviously and clearly in breach of the court orders.
The affidavit material of the Applicant Mother provides a proper basis upon which it could be said that there has been a wilful disobedience in relation to the restraining orders which initially arose out of orders made by Kay J and on two other occasions thereafter were the subject of consent orders.
In those circumstances it is clear to me that there has been little or no attempt made by the Applicant Mother to abide by those orders or to properly bring the matter before the court, save until the application was filed on 15 October 2001. It is clear to me on the evidence that there has been a contravention of those orders up until that date and it also appears clear that in the absence of any application for contravention, that the Applicant Mother seems determined to continue to not comply with those orders. That is a matter of some significant concern to the court in circumstances where there is no application made for contravention. However I refrain from taking further action based on the request not to do so by the Respondent Father in the interests of the child.
In any event, applying the principles to which I have referred set out in the judgment of His Honour Kay J on 18 June 1997, the material before me does not disclose any proper basis upon which this court should accept the application now being made by the Applicant Mother simply because there has been as a consequence of what I have found to be a deliberate and wilful breach of restraining orders of the court a usage of a name which was specifically the subject of a restraining order, that is, that the name ‘P’ should not be used by the child. The usage should not be something which would benefit or be used in favour of the Applicant Mother.
To do so would be contrary to all proper principles of law and, in any event, having regard to the significance of a change of name from the name which appears on the birth certificate which I received and which was referred to in the earlier decisions, would be a change of name which in all the circumstances cannot be justified.
The question then remains as to what proper disposition the court should order in relation to the application. I am satisfied it is appropriate to dismiss the application, but I do so on a number of grounds. In my view, it is appropriate to summarily dismiss this application on the grounds that there is no reasonable cause of action disclosed. I am satisfied the application is frivolous and vexatious.

I am further satisfied that this proceeding is an abuse of the process of the court. I am further satisfied that in the circumstances, having regard to the orders which have been made previously, that the Applicant Mother and I so find is a person who has instituted a vexatious proceeding and I am satisfied that in the circumstances of the chronology to which I have referred this Applicant Mother habitually, persistently and without reasonable grounds has instituted another vexatious proceeding, namely, this application.
In addition to making those orders I should indicate the court has been concerned by the fact that a school which has the responsibility of caring for the child in this instance appears to have conducted a meeting with a psychologist, the mother and others in the absence of the father in circumstances where the school either knew or ought reasonably to have known that there was a restraining order in place and operative in relation to the name of the child.
Whilst it is true that the restraining order was not directed at the school, it is, in my view, completely unacceptable that a school in those circumstances would seek to convene a meeting in the absence of the father, who of course was a participant to those proceedings to which I have referred, without having regard to the order of a court and to then make a decision that clearly was in breach of the restraining order of a court whereby the child would be permitted to use and be permitted to use ‘P’ in relation to his school work.
The outcome of that meeting is a matter of considerable regret to the court. It is for those reasons that a sealed copy of this order shall be served upon the principal of the school.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 26 February 2003