Kay & Jasper and Ors

Case [2007] FamCA 1646

FAMILY COURT OF AUSTRALIA

KAY & JASPER AND ORS [2007] FamCA 1646

FAMILY LAW – CHILDREN – Grandparents – Parents - The factor of parenthood- Best interests – Mixed sibling group – Mother unwell and not able to care for the children – Whether children should live with their respective fathers or as a sibling group with the maternal grandparents – Whether unacceptable risk of harm to one of the children – Whether risk of abduction of one of the children – Children to live with the maternal grandparents and spend time with their respective parents

FAMILY LAW – CHILDREN – Children’s surnames – Factors relevant to use of a surname other than the children’s birth surnames
Family Law Act 1975 (Cth) s 60CA, s 60CC, s 65DAA, s 68B
B & B (Family Law Reform Act) (1997) FLC 92-755
B v B(Re jurisdiction) (2003) FLC 93-136
Bennett v Bennett (2001) FLC 93-088
CDJ v VAJ (1998) 197 CLR 172
CJ v VJ (1997) FLC 92-772
Chapman & Palmer (1978) FLC 95-510
D & F  [2001] FamCA 382
Dennett & Norman [2007] FamCA 57
Flanagan and Handcock (2001) FLC 93-074
Flanagan v Handcock (2001) 181 ALR 184
Goode & Goode (2006) FLC 93-286
Hodak v Newman (1993) FLC 92-421
Johnson & Page [2007] FamCA 1235
KN & SD & Secretary, Department of Immigration and Multicultural and IndigenousAffairs (2003) FLC 93-148
M v M (1998) 166 CLR 69
Monticelli v McTiernan (1995) FLC 92-617
N and S (1996) FLC 92-655
Re Evelyn (1998) FLC 92-807
Rice and Asplund (1979) FLC 90-725
Rice v Miller (1993) FLC 92-415
APPLICANT: Ms Kay
FIRST RESPONDENT:

Ms Jasper
SECOND RESPONDENT: Mr Green
THIRD RESPONDENT: Mr Jasper
INDEPENDENT CHILDREN’S LAWYER: Toni BELL
FILE NUMBER: BRF 3337 of 2006
DATE DELIVERED: 14 December 2007
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 20, 21, 22 and 23 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Read of Counsel
SOLICITOR FOR THE APPLICANT: Cartledge Law
COUNSEL FOR THE FIRST RESPONDENT: Mr Middleton of Counsel

SOLICITOR FOR THE FIRST

 RESPONDENT:

 Lynch & Associates
THE SECOND RESPONDENT: Mr George of Counsel

COUNSEL FOR THE SECOND

 RESPONDENT:

 Fairlie Legal Services
THE THIRD RESPONDENT: In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Jordan of Counsel
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders`

IT IS ORDERED

Parental responsibility – H, N and Y

  1. The maternal grandmother (Ms Kay), the mother (Ms Jasper) and the father (Mr Green) have equal shared parental responsibility for the children H born in October 1994, N born in January 1997 and Y born in March 1998.

  2. In relation to paragraph 1:

    (a)Ms Kay, Ms Jasper and Mr Green may consult each other about the major long-term issues about H, N or Y in person, or by letter, email or text;

    (b)If after consultation and a genuine effort to come to a joint decision about any major long-term issue a joint decision cannot…

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AGLC
Kay & Jasper and Ors [2007] FamCA 1646
Case
[2007] FamCA 1646
Decision Date

CaseChat Overview and Summary

This case concerned applications relating to the welfare of children, specifically concerning their living arrangements and the use of their surnames. The parties involved were the children, their mother (Ms Kay), their father (Mr Green), and Ms Jasper, who appears to be a party with an interest in the children's welfare. The court was required to determine whether the children should live with their respective fathers or as a sibling group with their maternal grandparents, and also to consider the use of surnames other than the children's birth surnames.

The legal issues before the court included whether there was an unacceptable risk of harm or abduction to one of the children, and what factors were relevant to the use of a surname other than a child's birth surname. The court was guided by the principle that the welfare of the child is the paramount consideration, which must stand above the wishes or proprietary interests of the parents. This principle was applied in balancing various factors, including the children's relationships with their parents, potential confusion of identity, and the impact of further changes on children who had already experienced significant emotional turmoil.

In relation to the living arrangements, the court determined that the children should live with their maternal grandparents and spend time with their respective parents. Regarding the surname issue, the court considered the father's strong desire for the children to be known by their birth surname, "Green," for reasons of identity and to avoid marginalising his relationship with them. However, the court also took into account the children's preferences, potential embarrassment, and the significant emotional upheaval they had already endured. Ultimately, the court concluded that it was not appropriate for the children's welfare to have yet another change in their lives by mandating the use of their birth surname for all purposes. The court found that "leaving well enough alone" was the most appropriate course for the children's welfare, accepting submissions that the children had "had enough" of changes.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whether or not a child’s best interests may be a relevant factor, or even the paramount consideration, nonetheless it is both convenient and useful discretely to draw on the s 60CC factors when considering a child’s welfare. The children have a meaningful relationship with Mr Green. Although he did not see them for more than 3 years between January 2003 and April 2006, the relationship then was resumed, and seemed to thrive until the difficulties which arose when the father commenced his relationship with Ms W in early 2007, being the difficulties referred to sufficiently already in relation to the parenting orders decision. Despite these difficulties, I have determined already that there is benefit to the children in having a meaningful relationship with the father. Further, there would be benefit to the children in their not having different called surnames from Mr Green while they are spending time with him, given that he is their biological father, especially as children usually bear the same surname as their biological father, as a matter of custom, identity and practicality. However, having taken into account what I consider to be all of the relevant factors in this case, the evidence relating to those factors, and the submissions, in my view the order sought by Mr Green, namely that H, N and A be known for all purposes by their birth surname, Green (styled thus as a form of mandatory injunction, but perhaps intended also as a restraint injunction against Ms Kay) is not an injunction or order which is appropriate for the children’s welfare. I have comfortably arrived at this decision, weighing all relevant factors, because it appears to me that the most significant factor is, as put by Mr Middleton of Counsel, for Ms Jasper, their welfare would best be served in relation to the name issue by “leaving well enough alone”, in that it would not be appropriate for the children’s welfare now to have “yet another change” in their lives, having regard to the emotional turmoil the children already have suffered and are suffering relating to their parents’ separation and divorce, their mother’s remarriage and its breakdown, their mother’s ill health and existing conflict in relation to their living and parenting arrangements between and amongst the adults in their lives, and, as put by Mr Read of Counsel, for Ms Kay “the children have had enough”, which submissions I accept. I am satisfied as to this matter by three discrete approaches to the evidence and the relevant factors, first, having regard to the children’s welfare without consideration of their best interests; secondly having regard to their welfare but taking into account their best interests as a relevant but not paramount consideration; and thirdly, having regard to their welfare but having regard also to their best interests as the paramount consideration; so that, in this particular case, the matter as yet unresolved by the Full Court or the High Court has no bearing upon my ultimate determination.

Ratio Decidendi

Legal Principle Established

I am conscious that, in Chapman v Palmer (above) the Full Court (Evatt CJ, Asche and Marshall SJJ) said at 77,674, that:The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents. (emphasis added) However, such a statement of “general principle” expressly was put by the Full Court, in that decision, in the context of necessity for the Court to “balance in its discretion the factors for and against change”. Thus, it is not the case that where a person wrongly may have changed the surname by which children are known or called, of necessity this must be changed back to the children’s birth surname. Rather, although a very significant factor, any such wrongful change is only one of the matters to be taken into account, the “guiding principle” being the welfare of the child; which, as such, must “stand above” the wishes or “proprietary interests” of parents. Mr Green has the very strong desire for the children to be called and known by their “proper” surname, that is their birth surname, not just for “propriety” but also for the purpose of paternal identity and more importantly that the children’s relationship with him not be marginalised or “more marginalised” in the children’s lives. There does not appear to be any confusion of identity for the children, who are aware Mr Green is their father, but there is or may be practical confusion, if there is not consistency between the children’s birth surname and their called surname. There is also however H’s and N’s preference, to be considered in light of their respective ages; and the evidence as to embarrassment for H by the surname Green, in previously having been teased as “[…]” (apparently, several years ago, but H recalling it sufficiently strongly for that still to be relevant to him); and the effect on the children of a further change of called surname now, particularly as that would be against H’s and N’s stated preference. Further, it has been said in the authorities that “short term embarrassment must be weighed against long term effects”, and it may well be appropriate for the children that short term embarrassment should yield in favour of the long term effect of the benefit of their birth surnames and called surnames being the same.