Karas and Tomaris
[2016] FCCA 2655
•24 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARAS & TOMARIS | [2016] FCCA 2655 |
| Catchwords: FAMILY LAW – Parental responsibility – major long-term issue – what given name and surname should child have – best interests – assessment of section 60CC factors – nature of relationship with each parent – effects of change – matters to be considered. |
| Legislation: Family Law Act 1975, ss.4,60B, 60CA, 60CC, 64B, 68LA |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 |
| Applicant: | MS KARAS |
| Respondent: | MR TOMARIS |
| File Number: | PAC 4178 of 2013 |
| Judgment of: | Judge Brown |
| Hearing date: | 22 September 2016 |
| Date of Last Submission: | 22 September 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 24 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Vassili |
| Solicitors for the Respondent: | Michael Vassili |
| Counsel for the independent children’s lawyer: | Ms DeVere |
| Solicitors for the Respondent: | Legal Aid NSW Penrith |
ORDERS
The subject child born (omitted) 2013 continue to be known as X and bear that name for all official and familial purposes.
In the event the mother elects to change the child’s surname she is directed to give the father 60 (sixty) days’ notice in writing of such intention.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Karas & Tomaris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
PAC 4178 of 2013
| MS KARAS |
Applicant
And
| MR TOMARIS |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Karas “the mother” and Mr Tomaris “the father” were married according to the rights of the Greek Orthodox Archdiocese of Australia on (omitted) 2012 at (omitted), in the State of Queensland.
Their first and only child[1] was born on (omitted), 2013 at (omitted), also in Queensland. There is no dispute between the parties that they finally separated, in difficult circumstances, on 5 April 2013. At this time, the birth of their child, a girl, had not been formally registered with the relevant authorities in Queensland. She was only about a week old.
[1] Given the nature of the dispute between the parties I will refer to the subject child as “the child” notwithstanding the apparent insensitivity of such nomenclature.
At the time of their separation, the parties were living at a property owned by the father located at (omitted). Ms Karas left a six page typed letter, on the breakfast bar at the home, for Mr Tomaris, explaining why she felt compelled to leave the marriage.[2] Ms Karas and the child left Queensland and went to live in suburban Sydney.
[2] See exhibit A1 to the father’s affidavit filed 26 August 2016
On 8 July 2013, the mother alone supplied information about the child’s birth to the Registrar-General in Brisbane, who has statutory responsibility for recording births in Queensland. The child’s name was registered as X.[3] The parties were recorded correctly as her parents.
[3] See exhibit A
The parties are unable to agree what the child’s name should be. The proceedings are directed to resolving this issue, which is one of significant controversy between the parties and, as a consequence, has elicited a passionate response from each of them. As their respective names indicate, the parties are each of Greek extraction and passionately identify as such.
It is the father’s position that the Greek tradition, to which both he and the mother adhere, dictates that their child’s name should recognise her paternal side and as a consequence, it is the practice that a girl’s name should make some form of reference or be directly attributable to a significant female paternal relative or relatives, most commonly a grandmother.
The child’s paternal grandmother’s given name is Ms H (or Ms H as it has been anglicised). It is a common and ancient Greek name. The child’s paternal great grandmother’s given name was Ms A, again a well-known girl’s name, which is common in Greece.
It is the father’s evidence that he and the mother agreed that their first child’s name would contain references to both her grandmother and great grandmother. Accordingly, the name they agreed upon was X, with the initial ‘X’ referencing Ms H and the fourth letter ‘X’ referencing Ms A.
It is also Mr Tomaris’ position that, as the child was conceived and born in wedlock, it is appropriate that she bears his surname rather than that of the mother, which he assert is also a Greek tradition. It is his evidence that it will be embarrassing for him and confusing for the child, particularly when she spends time with the paternal side of her family, if she bears a different surname from her father.
Children born into the Greek Orthodox tradition are also provided with a Baptismal name referrable to an Orthodox Saint. The mother arranged the child’s baptism, at the (omitted) Church, in (omitted) New South Wales on 12 October 2013. The father was not present. The child was named X.[4] This of course, is also the child’s middle name, as currently registered on her birth certificate.
[4] See exhibit A
It is the mother’s position that the child should retain the name on her birth certificate. It is under this name that she has been enrolled at her pre-school and with relevant medical authorities. In addition, this is the name by which the child is known by all manner of individuals, including childcare workers; her friends and the parents of her friends; and the mother’s relatives and friends.
In addition, it is the mother’s evidence that she has been given or purchased items of jewellery, particularly in connection with the child’s christening, as well as embroidered items, which contain the name X. From the mother’s perspective these are permanent mementos of the child’s name, which are likely to be of significance for her for the remainder of her life.
She refutes the suggestion that she and Mr Tomaris had agreed on X as being the child’s given name. Rather, it is her position that it was only the father, who wished for this name and he was intent on having it, regardless of her objections to it. Ms Karas alleges that this attitude is consistent with Mr Tomaris’ personality, which she characterises as being a bullying one.
The issue of the child’s name was one of several canvassed by the mother, in the note left by her for the father, when the parties separated. It is a powerful and personal document, which was not intended for the eyes of anyone other than the father. I regret that I have to refer to it. Clearly, it was written at a time when emotions between both parties were extremely high.
In the letter, the mother wrote as follows:
“In regards to our daughter’s name – I never EVER intended on naming my child after your mother and I never agreed to it and I NEVER will yet suddenly I’m put into the predicament where my opinion does not matter … I also want you to know that, since you decided to go behind my back on a decision that I SHOULD have been involved in, I decided I would give you a taste of your own medicine and register her name is X, a neutral non-X name. Over my dead body, will I name my child after that bitch that tormented me the way that she did!”
The letter ends with the following statement, which has been hand-written:
“P.S. I do NOT have post-natal depression; I have post-Tomaris exposure depression; AND I do NOT need supervision; I am more than capable of caring for our child!”
It is the father’s perspective that the mother has named the child X out of spite for him and his mother. As such, he has deposed that it causes him emotional pain, when he has considered the letter from the mother and reached the conclusion that the child has been registered with her current name out of a desire to spite him and his mother. In these circumstances, it is his contention that the court cannot allow the name, as it currently is, to stand in all good conscience.
The father seeks the following orders from the court;
1. The name of the child be changed to X.
2. The wife be restrained from changing the name of the child.
3. The father shall pay the reasonable costs of any re-engraving of any award or jewellery which has been inscribed with the name X.
The mother’s position is that she should have sole parental responsibility for determining the child’s name. Her current preference is for the child’s name to remain, as it is registered. However, she is engaged to be married. As she is in her mid-twenties, it is highly probable that she will have other children, with her new husband. In these circumstances, she wishes to reserve the authority to change the child’s surname so that it is the same as her husband’s to be and her, as yet unborn, children.
Background
The mother commenced these proceedings, in the Parramatta registry of the court, on 30 September 2013. It was her case that she had had no alternative other than to flee to Sydney to escape an abusive and violent relationship with the father. In these circumstances, she sought orders that would see the child living with her and spending no time with her father. Ms Karas also sought an order for sole parental responsibility.
There were difficulties with the application being served on the father. Ms Karas subsequently amended her application, to seek property orders in addition to parenting orders, on 12 February 2014.
Mr Tomaris responded to the application for property settlement and orders in respect of the child on 11 April 2014. He remained living in Queensland. He sought to spend regular periods of time with the child and for her name to be changed to X.
At the time, the case presented great difficulties. The parties had no shared history of parenting their child together. They lived in different states. They had separated when the child was only a few days old and in the year or so since, she had not engaged with her father whatsoever. There were significant allegations of family violence, which were denied. In these circumstances, Judge Dunkley elected to have the child represented independently of her parents.
The independent children’s lawyer is Ms Hayward of Legal Aid New South Wales. Ms Hayward has briefed a barrister, Ms DeVere to appear on her behalf, at the final hearing. Pursuant to the provisions of the Family Law Act 1975, both Ms Hayward and Ms DeVere are required to consider all the evidence available to them and advocate the position to the court, which they consider will serve the child’s overall interest.[5]
[5] See Family Law Act 1975 at section 68LA
Ms DeVere supports the mother’s position on the basis of considerations of continuity. Ms DeVere points to the fact that the child has been known as X since she was born and it will be unsettling for her to adopt a new name, particularly as this is the name she is known by at school and by her compadres there. Ms DeVere is concerned that Mr Tomaris is more motivated by his own feelings than considerations relating to the child.
On 5 November 2014, the parties agreed that Mr Tomaris could begin spending time with the child, on the condition that it was professionally supervised, at the (omitted) Children's Contact Centre. Regrettably, there was a long waiting list for time at the centre. In frustration, Mr Tomaris explored other options, for professionally supervised time, in the Sydney area.
On 5 July 2015, he commenced spending time with the child, at (omitted), in Parramatta. He has been able to spend eight sessions, each of two hours in duration, with the child, between May 2015 and July of 2016. I accept that it is an expensive exercise for him to travel from South East Queensland to Parramatta.
Ultimately, the parties’ competing applications, in respect of both property and arrangements for their child, were fixed for final hearing, in Parramatta, on 21 September 2016. A family report was ordered to be prepared in conjunction with the final hearing. The report was compiled by Ms J, a family consultant.
In her family report, dated 11 November 2015, Ms J recommended that the surname of the child and the spelling of her first name be subject to judicial determination. I will turn, in due course, to specific aspects of her report, which deal with the name issue.
In other of her recommendations, Ms J suggested that the child continue to live with her mother and that professionally supervised contact centre visits continue, preferably fortnightly, for another fifteen visits. Thereafter she envisaged time outside the contact centre but short of overnight time. Given the tension between the parties, she recommended that handovers occur at the contact centre and the introduction of the paternal grandparents be carefully managed.
To the parties’ great mutual credit, they have been able to resolve all the outstanding issues between them, in respect of both property and children’s issues, apart from the issue of the child’s name. In respect of the issues pertaining to their child, the parties spent many hours in deliberation with one another, which included considerable input from Ms DeVere.
The parties were desirous of having an agreed plan, which would lead to the chid spending regular periods of time, with her father, for extended periods of time, in school holidays, from 2020 onwards, when she will be aged around seven years. The orders are comprehensive.
In respect of parental responsibility, the orders provide as follows:
·The parties are to have equal shared parental responsibility in relation to the education of the child and decisions in relation to a termination of life support for her;
·Otherwise, the mother is to have sole parental responsibility for the child, who will continue to live with the mother.
The legal principles applicable
Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children. The chief means by which the court overseas arrangements is through the making of parenting orders [Family Law Act section 64B].
Amongst other things, a parenting order may deal with aspects of a child’s care welfare or development or any aspect, which relates to the exercise of parental responsibility for that child [section 64B(2)(i)].
In particular, through the making of a parenting order, the court has authority to allocate parental responsibility for a child [section 64B(2)(c)].
In this context, the provisions of section 64B(3) are relevant. The section reads as follows:
“(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.”
The expression major long-term issues is defined in section 4. It means issues, in relation to the care, welfare and development of a child, which are of a long-term nature. These include the name of the child concerned.
Accordingly, the issue of what name the child concerned in this case should bear is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
The best interests of the child concerned are the paramount or most important consideration in making any parenting order [see section 60CA]. Fundamentally, the court must decide whether it is in the child’s best interests to be known as X or X. Necessarily, given the structure of the Act, this is a multi-faceted inquiry.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply, to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, 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.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a) children have 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; and
(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); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(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).”
In considering the best interests of the child concerned, I must look to a list of matters contained in section 60CC of the Family Law Act. There are two categories of matter, which must be considered by the court – primary considerations and additional considerations.
There are two primary considerations – firstly the benefits accruing to the child concerned of having a meaningful relationship with both his or her parents; – secondly the need to ensure that the child is protected from physical and psychological harm, as a result of being subjected to abuse or neglect or family violence.
Prior to a recent legislative amendment, the primary considerations were not formally ranked in regards to one another. However, as a result of the insertion of section 60CC(2)(a) into the Act, the court is now directed “in applying the primary considerations … to give greater weight to section 60CC(2)(b)” which is the consideration dealing with abuse, neglect and family violence. These considerations are now to be given priority.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[6]
[6] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[7] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[8] This inquiry is to be conducted in the light of the objectives and principles, of the Act, which I have outlined above.
[7] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[8] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Recent authority of the Full Court indicates clearly that the issue of what name a child should bear should be determined by reference to the applicable section 60CC factors.[9] Accordingly, cases setting out checklists or matters generally relevant to the naming of children, which pre-date the Family Amendment (Shared Parental Responsibility) Act amendments to the Act, are no longer strictly applicable.
[9] See Reynolds & Sherman [2015] FLC 93-659 at 80,8370 [54]
However, given the broad nature of section 60CC(3)(m), it is in my view useful for the court to have reference to relevant cases predating the 2006 amendments and the issues raised by them.
In Fooks v McCarthy[10] Warnick J said as follows:
“There is only one principle, that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.”
[10] Fooks v McCarthy (1994) FLC 92-450
The factors to which earlier courts most frequently have had regard in determining whether there should be any change in a child’s surname or for the surname to revert back to that which it was previously, include the following:
a)the short and long term effects of any change in the child’s surname;
b)any embarrassment likely to be experienced by the child if his or her name is different from the parent with custody or care and control;
c)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
d)the effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
e)the effect of frequent or random changes of name;
f)the contact that the non custodial parent has had and is likely to have in the future with the child concerned;
g)the degree of identification that the child concerned has with his or her non custodial parent;
h)the degree of identification, which the child concerned has with the parent with whom he or she lives;
i)he desire of the father that the original name be restored.”[11]
[11] See Chapman & Palmer (1978) FLC 90-510 and Beach & Stemmler (1979) FLC 90-692
The Evidence
The parties each gave oral evidence in support of their preferred position, so far as the naming of the child was concerned. Thereafter, each was cross-examined by the other and Ms DeVere. Accordingly, I had the opportunity to see each of the parties close up in the witness box and make my own assessment of their respective personalities.
Both the mother and the father appeared to be pleasant and thoughtful individuals. Both seem to want the best for their child. To his credit, Mr Tomaris has accepted that he must move cautiously in developing his relationship with her. To her credit, Ms Karas acknowledges the importance to the child of knowing her father and spending regular time with him.
Ms Karas represented herself through these proceedings. She presented as confident in court and was not over-whelmed by the formality of the court in any way. She is an articulate person, who knows her own mind. Mr Tomaris was represented by his solicitor, Mr Vassili. Neither party was inclined to be restrained or subdued in how they each advocated for their preferred outcome. From time to time, notwithstanding the presence of lawyers, exchanges between them became quite heated, but not aggressively so.
This confirmed my view that the parties share the attribute of having a passionate personality. In addition, each appeared to be a little bit stubborn and convinced that the other was more than a little bit unreasonable. As such, it is hardly surprising that they have not been able to reach a compromise in respect of the naming issue, which seems to me to have emblematic significance in relation to the difficult circumstances surrounding the end of their marriage.
In this regard each party appeared to me to be still engaged in the process of adjusting to the end of their marriage. The mother is further along in this process than is the father. This is as a consequence of the fact that she has embarked upon a new relationship and made the decision to leave the marriage.
It is neither appropriate nor necessary for me to attribute fault for what brought the parties’ marriage to an end. However, as is clear from the mother’s note, there was an extreme level of tension between her and her former mother-in-law, which remains to this day. For his part, the father feels hard done by as a consequence of how the mother chose to leave the marriage and what happened afterwards.
I am at pains to point out to the parties that my function is not to conduct a post mortem into the reasons why their marriage failed and attribute fault for it. In this context, the name selection is not to be influenced by my view of who of the parties is the more deserving or least blameworthy in this regard, with the choice of name to be awarded as a prize to that parent. Rather I must remain focussed on what I think will be best for the little girl concerned.
Both parties identify passionately with their Greek background and heritage. In this regard, both sought to enlist Greek tradition as to why their respective position was to be preferred by the court. Mr Tomaris, in particular, closely questioning Ms Karas in respect of the tradition of children being named after paternal relatives. Ms Karas being unwilling to make any such concession.
In the context of these proceedings, I am unable to determine precisely what is the Greek tradition regarding the naming of children, and who of the parties is better informed about it. I have not been provided with any independent expert evidence in respect of these issues. Certainly I have not been provided with expert evidence that there is any recognised practice of combining the names of relatives in a child’s name in a portmanteau manner.
The mother’s evidence is that the sex of the parties’ child was determined, at an early stage of her pregnancy, through a scan. Thereafter it seems likely that there was at least some discussion of what her given name would be. The mother deposes that her former mother-in-law was in the habit of referring to the unborn child as X, which she (Ms Karas) resented and resisted.
In this context, the mother asserts that she suggested to the father that the child be called X which she deposes means “(omitted)”. It is Ms Karas’ evidence that Mr Tomaris was sanguine about this name, although his mother was unlikely to have been.
Ms Karas concedes that Mr Tomaris was insistent that the name be spelt as X, which would be reflective of the names of his mother and grandmother. In phonetic terms, both parties agree that the name, regardless of spelling, is pronounced in the same way. Accordingly, this name would have represented a face saving compromise for both the mother and the significant relatives on the paternal side.
It is Mr Tomaris’ evidence that this compromise was agreed upon prior to the child’s birth and so prior to their separation. It is Ms Karas’ evidence that nothing had been definitely agreed. It also seems likely to me that the issue had not been resolved so far as the paternal grandmother was concerned, who is likely to have kept on pushing for her preferred choice.
In his affidavit, Mr Tomaris has deposed as follows, regarding why he believes the child’s name should be changed:
“I am concerned that the basis of X’s present name is an (sic) acrimony between her mother and myself and my mother. I am fearful that when asked by X when she grows up ‘why am I named X’ the truthful answer is that Ms Karas has not followed our Greek tradition in naming the child after her paternal grandmother. That is her name is an act of disrespect to me and her paternal extended family.
I am asking this Honourable Court to change X’s name to reflect the strength of her Greek heritage and not as a protest out of spite by Ms Karas.
I also want my daughter to adopt my surname as I say my daughter was a planned baby and was born whilst Ms Karas and I were married. She is my blood and I want her to carry my surname.”
I do not doubt the sincerity of these feelings on the father’s part. He is a proud person, who values what he perceives to be the Greek tradition. However, I do not approach the case on the basis that it is the court’s role to rectify perceived matters of honour or respect between the two families. In any event, in my view, this is not a factor which is likely to impinge upon how or what the child herself currently perceives her identity to be.
In addition, I have no way of knowing if the issue will hold any special significance for the child herself, when she has reached her majority. As such, I do not consider that it is a factor relevant to the child’s best interests. In my assessment the issue is likely to be of far more significance to the father and his immediate family than to the child, certainly at this stage and probably for the remainder of her childhood.
The letter written by the mother, when she left the former marital home was obviously written in a charged emotional atmosphere. I do not believe that I am in a position to find, on the balance of probabilities that the mother elected to utilise the name X directly out of spite for the father and his family or to consciously and permanently disrespect them.
It seems to me that the name X had not been definitively ruled out and the name of the child remained uncertain, particularly so far as to how it was to be actually spelt. In these circumstances, I reject the father’s contention that the form of name which the child currently bears represents some form of slow burning psychological injury to her.
Ms Karas presented as highly protective of the child and as being child focussed. It is her evidence, which I accept, that the child is known as X at her day care centre and this is the name which is written on her locker and on the art work which she does there and which she bring home from time to time. As a consequence of these matters, this is the name which the child associates with herself and as being her. It is the name used by her friends at child care, when she is invited to parties or given a birthday card.
I also accept Ms Karas’ evidence that it is the name which has been engraved on the child’s christening jewellery and related embroidered items. I have not been provided with any evidence as to the practicality of the metal items being re-engraved. I can understand why the mother’s preference would be to keep the items as they are.
Ms Karas is to be re-married later in the year. She plans to have children with her future husband and to assume his surname, when married. In these circumstances, she wishes to be able to change the child’s surname to reflect the surnames of future siblings and of her mother.
Such a proposal is anathema to Mr Tomaris. It is his evidence that this will lead to confusion in the child’s mind as to her relationship with her father and paternal family. Again it is unclear how these issues are likely to play out in future, from the child’s perspective. It is difficult for me to assess whether she will be confused, at some indeterminate point in the future, if she has a different surname to the one her mother and as yet unborn sibling bear or one which is different to her father.
In respect of the latter situation, the issue appears to me, at first blush, likely to be more important to the father and his family, than to the child herself, particularly whilst she is of tender years.
As previously indicated, Ms DeVere favours there being no change in the child’s name at this juncture from what appears on her birth certificate. She contends that this court does not have specific authority to direct the Registrar-General for Queensland to amend the child’s birth certificate in any event.
Ms DeVere approaches the issue of the name from what she characterises as the practicalities of the child’s day to day existence. In Ms DeVere’s submission it is clear that the child knows herself as X and it is therefore likely to have a significant impact upon her if there is a change in her name, particularly as she is going to remain living with her mother.
Ms DeVere does not advocate the mother being either directly restrained from changing the child’s surname in future or that she is given the court’s direct imprimatur to do so. In this context, Ms DeVere points to the fact that the parties, save for two exceptions, have agreed that Ms Karas is to have sole parental responsibility for making major long-term decisions in respect of the child. As previously indicated this authority includes making decisions regarding the child’s name.
Ms J, in her family report, made the following reference to the name issue:
“Ms Karas, despite having repartnered, feels emotionally scarred by her relationship with Mr Tomaris, particularly in its later stages. It appears she made a unilateral decision about the names that were to appear on X’s birth certificate, in the context of a very recent separation. It is difficult for her to see Mr Tomaris in a positive light.
A judicial decision will be needed about the name on X’s birth certificate. The paternal family, in particular, is highly invested in their Greek identity, and will be unable to let go of the notion that X should be named after her paternal grandmother and great-grandmother. Changing X’s name to ‘X’ would not affect X in any way, as phonically the two names are identical. There seems to be merit in X’s surname being the paternal surname, as she was a planned child who was born in the context of a marriage. There is an argument for X having her father’s surname for identity reasons.”[12]
[12] See Family Report dated 11 November 2015 at [66] – [67]
Ms Karas reported to Ms J that the child was sociable and enjoyed the company of other children. She was observed to be comfortable in the presence of her mother. Significantly, Ms Karas reported relief at her perception that the supervised time between the father and child had gone well.
Ms J reported that the child engaged easily and excitedly with her father in play. She was comfortable with her father carrying and kissing her goodbye. As a consequence of these matters, Ms J was of the opinion that an attachment had begun to form between father and child.
Ms J noted the significant level of mistrust between the paternal and maternal aspects of the family concerned. She considered that it was essential that Mr Tomaris be reliable in respect of his commitment to spend time with the child and Ms Karas needed to be up-beat, to the child, about her future engagement with her father.
I agree with Ms J’s assessment that the mother’s decision to adopt the particular names, which she did for the child, and the unilateral manner in which she did so, is an issue which will continue to rankle with the father and his family for the indefinite future. The same is true of the mother’s perceptions regarding her asserted ill-treatment by the father’s mother.
Like Ms J, I attempted to engage with each of the parties about the phonetic identicalness of the two controversial given names. This proved fruitless. From the mother’s perspective the issue of the engraved name is very important. From the father’s perspective, the appearance of both an ‘X’ and an ‘X’ in the name is crucial. Accordingly, there is no scope for compromise between them. I also agree with Ms J’s assessment of the emotional content of the issue from both parties’ perspectives.
Conclusions
It is Ms Karas’ evidence that she was subject to coercive and controlling family violence during the course of the parties’ marriage. Mr Tomaris vehemently denies that this was the case and refutes that there was any necessity for the mother and child to relocate unilaterally from Queensland. I accept that, particularly in its latter stages, the marriage between the parties was a deeply unhappy one. However, in the context of these proceedings, it is not necessary for me to resolve this issue.
To the parties’ great credit they have been able to agree on a regime, which will lead in due course, to the child benefitting from having a meaningful level of relationship with her father. In this context, I accept that they are genuinely committed to the orders which have recently been made with their mutual consent.
I do not accept that there is any reasonable prospect of the relationship between the child being either enhanced or detrimentally affected, depending on what given or surname, which she bears. How meaningful or otherwise the relationship between the child and her father becomes depends on the success of the orders to which the parties have committed themselves. Its prospects of success will not be enhanced by changing the child’s name at this juncture.
The naming issue is of significance only to the parties themselves, particularly the father and his immediate family. I am concerned that the emotional implications of the issue have clouded the father’s capacity to focus on the child’s best interest, rather than his own feelings.
The child’s views have not been canvassed [see section 60CC(3)(a)]. In any event, at 3½ years of age, she is not in a position to express a mature and informed view of the issue. In any event, I accept that the evidence indicates that she knows herself as X. In my view, names give children a sense of identity. This child’s identity is as X. I accept that this is the name used by her friends and by herself, at preschool.
At present, the child’s most significant relationship is with her mother, who has been her primary provider of care for the whole of her life to date [see section 60CC(3)(b)]. In these circumstances, in my view, it is likely to be more beneficial for the child, if she has a sense of her connection to her primary carer. I am concerned that an abrupt change in the child’s name will have adverse psychological implications for her.
Both parties identify proudly as Greek Australians. I accept that cultural identity has the potential to be very important for the child concerned in this case because of her background [see section 60CC(3)(g)].
However, regardless of what name the child bears, she will have a sense of connection to her Greek heritage. In this context, I accept Ms DeVere’s submission that there is no conclusive expert evidence available to the court, regarding any custom or practice requiring girls of Greek background to have some form of name based on the paternal aspect of their family.
Accordingly, in my estimation, it appears more likely than not, that any embarrassment or confusion that may result for the child will arise if her name is changed from what she knows it currently to be. For reasons relating to the difficult circumstances surrounding the parties’ separation, when the child was only a baby, she has spent only extremely limited time with her father.
As such, it is difficult to reach any conclusion other than she does not currently have a strong sense of identification with her father and other members of her paternal family, whom she does not as yet know. In addition, although I accept that Mr Tomaris fervently wishes the child’s surname to be the same as his, this is not a case of this name being restored, after some arbitrary or capricious change. Rather the child’s current name is the only one which she has ever had, which was conferred upon following the parties’ separation.
In this context, it seems to me to be largely immaterial whether the parties did or did not have a concluded agreement that the child was to be known as X, an agreement from which the mother has manipulatively resiled. These are adult issues. I am required to approach the matter from the perspective of the child’s best interests, not the personal preferences of the parties themselves, no matter how passionately those preferences are held.
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation. For that reason, the applicable legislation enjoins the court to consider the outcome which is least likely to lead to the institution of further proceedings in relation to the child concerned [section 60CC(3)(l)].
In Fooks v McCarthy Warnick J warned against the dangers of random or frequent changes of name for children. Ms Karas wishes to have licence to change the child’s surname, at some point in the future, to confirm with that of her future husband and children. This prospect fills Mr Tomaris with consternation.
As Ms DeVere rightly points out, given the manner in which the parties have agreed regarding the conferral of parental responsibility for the child, the mother has responsibility for making major long-term decision for her, which includes naming responsibilities. As such, Ms Karas nominally has such authority.
I have no desire to deal with prospective issues, which may not ultimately materialise. I wish Ms Karas every possible happiness in her future marriage, but it is not certain to me that it will be necessary, from the perspective of the child’s best interests, for her surname to be changed, as the mother envisages, at some indeterminate point in the future.
After all, given the rates of family breakdown in this country, it is frequently the case that children occupying a great many households, in Australia, share different surnames to their various siblings and half siblings. It is the reality of family life in Australia, where so-called blended families are common. As such, I do not think there is any general principle in favour of the imposed heterogeneity of surnames, for children, in such households.
In these circumstances, I do not propose to issue an injunction restraining the mother from being able to change the child’s surname. However, given the passion the issue is likely to provoke from Mr Tomaris, I will direct that she give him notice, in writing, if she intends to do so. Otherwise, it is my view that the child’s best interests will be served if she continues to bear the name as memorialised on her birth certificate, namely X.
I hope this issue of prospective changes to the child’s surname does not lead to further litigation between the parties. This is not likely to be helpful to X. However, I acknowledge that it remains a probability.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 24 October 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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