KOLDSJOR & ADDINGTON

[2009] FamCA 944

FAMILY COURT OF AUSTRALIA

KOLDSJOR & ADDINGTON [2009] FamCA 944

FAMILY LAW – CHILDREN – Travel – Change of name – Best interests

APPLICANT: Ms Koldsjor

RESPONDENT: Mr Addington

FILE NUMBER: SYF 4035 of 2006

DATE DELIVERED: 2 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 25 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Musgrave Lister Family Lawyer

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

The orders of the Court are:

1. That … (“the child”) born … October 2003 is hereby permitted to be removed from and be kept outside Australia from 30 December 2009 to and including 20 January 2010 for the purpose of holidaying overseas.

2. That the mother shall not less than 21 days from the date of these orders deliver to the father the said child’s Australian passport.

3. That the father shall hereafter be entitled to retain the said passport until the parties consent in writing to the mother taking the said child from Australia or until further order of the Court.

4. That in the event that there are changes to flight times or significant travel destinations during the aforesaid holiday from those already notified to the applicant mother the father shall notify the mother of the changes in writing as soon as is reasonably practicable after he first has notice of those changes.

5. That the father shall not later than 16 December 2009 notify the mother in writing of the number of the mobile telephone by which he and the said child can be contacted during the period referred to in Order (1).

6. That the application of the mother to change the said child’s name is hereby dismissed.

7. That the mother is hereby restrained from using or causing the said child to have, use or be known by any name other than … Addington.

8. That costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Koldsjor & Addington is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4035  of 2006

MS KOLDSJOR

Applicant

And

MR ADDINGTON

Respondent

REASONS FOR JUDGMENT

1. In these proceedings for final orders there are two distinct matters to be decided. One is the mother’s application to change the parties’ child’s surname and for related orders. The other is the father’s application to be permitted to take the child overseas from 30 December 2009 to 20 January 2010. He too asks for associated orders.

2. The parties have not married. They have been locked into conflict in this Court since late 2006. O’Ryan J heard parenting issues and delivered judgment on 7 March 2008. He dealt with the name change issue but his decision on it was overturned by the Full Court. This is a rehearing of that issue. The new issue is raised by the father’s wish to take the child overseas for a holiday to meet his family ….

3. The mother was born in Europe and is aged about 45 years. She was a nurse but has not been in paid employment for many years. Her maiden name was J. She married Mr Koldsjor in 1988 and took his surname. She has been known as Mrs Koldsjor ever since. Mr Koldsjor died in mid 2001. There is one child of that marriage, S Koldsjor. She is now 12 years old, lives with the mother and attends D School where she is in year seven.

4. The father was born overseas and has lived in Australia for a little more than 10 years. He is aged about 44 years and is qualified in a profession. He does not practice his profession. He earns his living in the property development industry. He has never been married and has no children other than the child who is the subject of these proceedings.

5. She is currently known as … Addington. At her birth in October 2003, which occurred in Sydney, she was registered under that name. She is now a little more than 51/2 years old. She attends D School and is in the kindergarten class.

6. The parties commenced living together in late 2002 and separated in February 2006. The evidence suggests that their relationship was characterised by conflict and they separated because of it. Both impress me as very insular and assertive people who expect to get their own way and do not easily tolerate their wishes being frustrated. That they also did not have enough in common and or were not sufficiently committed to one another to make the concessions necessary to make their relationship work and to marry, despite having a child, indicates to me that there is great potential for conflict between them to continue to flare from time to time over the remaining aspect of their lives which requires collaboration; the raising of the child.

7. On separation, the child continued to live mainly with the mother. O’Ryan J made orders giving the parents joint parental responsibility which must mean, in the absence of a more specific order, that the responsibility is equal for long term care. He placed the responsibility for day-to-day care with the parent with whom she is staying at the relevant time. He ordered a fortnightly school term regime of five days with the father and nine with the mother for 2008 and from 2009 onwards six days with the father and eight with the mother. He also ordered equal sharing of school holidays and special days. Although the orders relating to the child’s name change have been negated by the Full Court, orders of his Honour relating to travel overseas remain in force. The orders are:

   10.Both parties do all acts and things and execute all documents necessary to remove the name of the child from the Airport Watch List.

   11.The child be permitted to travel to Europe with the Mother each year during the July school holiday period, which holiday period shall be in accordance with the calendar for the [D School].

   12.Both parties be at liberty to otherwise travel overseas with the chid provided they have the written consent of the other party, which consent shall not be withheld unreasonably.

   15.In the event that either the Father or the Mother wish to travel for more than three hours outside the Sydney metropolitan area with the child each of them shall provide to the other one weeks notice in writing of the itinerary including flight numbers and dates of departure and return, accommodation details and contact details for the entire absence of the child from the Sydney metropolitan area.

8. The father’s case is that as part of his affidavit evidence he has provided his flight itinerary and ticket details and complied with most other requirements of these orders and that he has also caused a letter dated 20 January 2009 to be sent to the mother via her solicitor in which he sought the mother’s consent to the proposed trip he now asks to be permitted to take with the child. He promised to provide the other required details later but the mother did not consent and when, on 17 March 2009, he provided the mother with nearly all the information which the above orders require she continued to oppose the trip, as she did after a dispute resolution conference which occurred on 27 April for which he provided all the prior information and a little more, leaving un-notified only one insignificant telephone number and the address of one stay in … where the place they would stay had not yet been decided. The mother continued to withhold her consent. He further says the mother had, at the dispute resolution conference, agreed to give her consent but imposed conditions which were irrelevant to any issue arising from the proposed trip, unduly restrictive and controlling and therefore unreasonable. He says it will be in the child’s best interest to meet his family and have the benefit which overseas travel is likely to bring to her. He claims that as he has grown up, lived and worked in the places he wishes to take the child and is very familiar with them and would not take her anywhere which might reasonably be regarded as likely to place her in danger, she should be permitted to undertake the travel he has planned. The actual final travel orders the father seeks are contained in his response filed 14 May 2009. They are:    

   2.The child be permitted to travel overseas with the father during school holiday periods, the father to give the mother one months’ written notice including:

   a.The destinations;

   b.The means of transport, including flight numbers and times and dates of departure and return;

   c.Contact telephone numbers and addresses for the child for the duration of the holiday.

   3.The mother will provide the child’s passport to the father no less than 14 days prior to the departure.

9. He seeks what his lawyers have characterised as interim orders. These are really in the nature of final orders. As each overseas trip is to be the subject of consent which is not to be unreasonably withheld, each trip is a matter to be determined on its individual merits. It would not be proper of me to make the general final orders like that which the father seeks in this application while O’Ryan J’s orders are still in force. There is no application to vary them before me. I shall, accordingly, deal only with the application to travel overseas in 2009/2010.

10. The mother relies only on her affidavit of 12 June 2009 and an affidavit of her solicitor which sets out correspondence between the parties through their solicitors, Department of Foreign Affairs and Trade information and travel advice in addition to her evidence during cross-examination. In her affidavit there is no specific evidence which is said to be related to the proposed overseas trip or her refusal to consent to it. There is nothing in the mother’s affidavit other than her claim for payment of some school fees, which is one of the conditions she imposed after the mediation, which provides any reason or rationale for the mother’s stance on travel, including nothing to say what her stance is. One is left with inferences from the travel advices which suggest the wife regards the proposed destination as dangerous for the child, her letters setting her conditions for consent, her reply filed 27 May 2009 to the father’s application and her brief evidence in cross-examination. Of these, the final orders the mother sought in the reply she filed on 27 May are the most enlightening. These, to a significant degree, depart from the conditions she says she set and the father agreed to at the mediation. The final orders the mother seeks in her reply are:

    1.That the child […] born […] October 2003 be permitted to travel overseas with the Respondent Father during the Christmas school holiday period for [D School] in the years 2009 to 2010 as from 30 December 2009 to 20 January 2010 inclusive, subject to the Respondent Father’s compliance with all of the following within twenty-one (21) days from the date of these Orders:

    i.Provision to the Applicant Mother of a full itinerary for the proposed holiday period;

    ii.Confirmation as to the date of departure and date of return of [the child] to Sydney including times and flight details;

    iii.Provision to the Applicant Mother as to a detailed itinerary of all flights throughout the holiday period;

    iv.Confirmation of bookings for all accommodation during the proposed holiday period where [the child] shall be residing and, in addition, provision of full contact details including an address and landline contact number for all such accommodation throughout the entire holiday period proposed;

    v.Provision by the Respondent Father to the Applicant Mother as to how he proposed to travel with [the child] when not flying from one destination to the other throughout the holiday period proposed;

    vi.That the Respondent Father provide forthwith a sworn Undertaking to the Court in writing in identical form to that enclosed herein and entitled Schedule A which forms part of the Orders herein;

    vii.That the Respondent Father shall cause [the child] to attend upon her general practitioner, Dr [B] at [N] Practice prior to [the child’s] departure overseas, such attendance upon Dr [B] to be at such time as Dr [B] may recommend for the purposes of [the child] being administered any medication(s) and or vaccination(s) as [the child] may require prior to her departure from Sydney on 30 December 2009, and the Respondent Father shall provide Dr [B] with a copy of his proposed itinerary of travel with [the child] prior to such attendance.

    2.That no less than twenty-one days prior to the proposed departure date the Respondent Father facilitate the Applicant Mother’s:

    i.Sighting of the airline tickets; and

    ii.Sighting of travel insurance arrangements which he has prepaid for [the child] for the duration of the proposed holiday period.

    3.That the Respondent Father be and is hereby restrained from travelling with [the child] to any destinations save for those as set out in the itinerary he provides unless with the Applicant Mother’s prior written consent or otherwise by Court Order.

    4.That the Respondent Father shall personally supervise [the child] for the entire duration of the proposed holiday period.

    5.That the Applicant Mother be at liberty to enjoy flexible telephone communication with [the child] during the proposed holiday period 30 December 2009 to 20 January 2010.

    6.That in addition to Order 5 herein, the Respondent Father shall facilitate telephone communications as between [the child] and the Applicant Mother on no less than two (2) occasions per week during such proposed holiday period and that leaving a message for the Applicant Mother shall not suffice for the purposes of compliance with this Order.

    7.That upon the Respondent Father’s compliance with all of the requirements of Orders 1 and 2 above, the Applicant Mother will provide [the child’s] passport to the Respondent Father no less than fourteen (14) days prior to his departure date for such proposed holiday period.

    8.That the Respondent Father shall provide [the child’s] passport to the Applicant Mother within fourteen (14) days of [the child’s] return to Sydney and by no later than 4 February 2010.

    Annexure A

    I, Mr [Addington], c/- Broun Abrahams Burreket, […], undertake to the Court as follows:

    i.I shall ensure that during the proposed travel period, being from 30 December 2009 to 20 January 2010 inclusive, that [the child] shall have on her person at all times all medication required to treat her asthma including Ventolin and her prescribed medication known as Singulair 4mg.

    ii.I shall ensure that [the child] takes her tablet each evening with her evening meal in order to manage her asthma.

    iii.I will not travel with [the child] to places other than those as set out in the itinerary which I shall provide to the Applicant Mother prior to my departure overseas with [the child].

    iv.I will not drive between destinations with [the child] when it is possible to travel between such destinations by plane as opposed to driving and I will await the next available flights as between such destinations whenever it be possible to travel by plane.

    v.I will ensure the timely payment of my one half of school fees direct to [the child’s] school, [D School], as and when same fall due so as to ensure [the child’s] enrolment at such school is not jeopardised and failing my compliance in this regard I understand that the Applicant Mother shall be at liberty to withdraw her consent to my proposed travel with [the child] (a) for the Christmas school holiday period 2009 to 2010; and (b) for such period of overseas travel with [the child] as I may propose in the future in the event my half of such school fees is not paid as and when same fall due.

    vi.I understand and I am on notice from [D School] that in the event I do not make timely payment of my one half of [the child’s] school fees as and when same fall due, that [the child’s] enrolment at [D School] may be forfeited.

    vii.I will personally supervise [the child] during my proposed travel overseas with her for the period 30 December 2009 to 20 January 2010.

    viii.I will comply with such other Orders as the Court may make in terms of the conditions applying to my overseas travel with [the child] and information and/or documents which I may be obligated to provide to the Applicant Mother in advance of such travel.

11. In a letter to the mediator sent on 24 April 2009 the mother said:   

    I do however wish to note that your letter does not accurately record the matters agreed to at the Conference in that:

    ·In relation to point 1 it was agreed that [the father] should pay the outstanding bill totalling $1,766.50 inclusive of the late fee incurred immediately.

    ·Points 1 and 2 appear to misrepresent the situation regarding [the child’s] school fees. The agreement subject to affordability is that [the father] and I each pay half of [D School] fees directly to the school as and when due to allow [the child] to continue at [D School].

    ·Regarding [the child’s] asthma it was my understanding that the undertaking regarding [the child’s] asthma plan was general and not only related to the proposed travel.

    ·I have not yet agreed in principle or otherwise to [the child] travelling overseas … as things stand at the moment. First I need to be reassured that [the father] is committed to making arrangements that address my concerns about [the child’s] safety and wellbeing [overseas] and the matters set out above and below.

    o   I have not as yet received any undertaking from [the father] regarding [the child’s] school fees.

    o   I have not received any undertaking from [the father] regarding [the child’s] asthma.

    o   [The father] has paid the bulk of his outstanding portion of [D School’s] fees on 3 April. He has however not paid the $40 late payment fee and this will be added to next term’s fees which have now been issued. Whilst the $40 fee is not a large amount in itself it is entirely due to [the father’s] refusal to pay the fees on time. I should not be expected to pay any part of this amount and adding it to next term’s account (in the anticipation that I will pay half of that account) is merely an attempt to oblige me to do so.

    o   [The father’s] reluctance to pay half for books, excursions and any other costs incurred in the course of [the child’s] education at [D School]. As indicated to you, it is a condition of [the child’s] enrolment at [D School] that these things are paid for. I cannot pay for these on my own. A continuing dispute with [the father] therefore as to the payment of these amounts puts [the child’s] continued enrolment at [D School] in jeopardy. This in turn affects [the child’s] holiday entitlement in the event that she is not allowed to continue at [D School] due to non-payment by [the father] of any part of the fees.

    o   [The father’s] repeated misunderstanding about the importance of adhering accordingly to medical advice to [the child’s] asthma management plan.

    o   I have not as yet received any further material from [the father] that can assist my informed decision.

    I am happy to consider the matter further and if need be have another conference, but I need to be reassured that [the father] is committed to making arrangements that address my concerns about [the child’s] safety and wellbeing.

12. The father replied to this letter on 24 April in these terms:

    I further respond to your letter below.

    1.I do consider the agreement noted by HTW [sic] [ATW is a reference to the mediator, a solicitor in the firm Abrams Turner Whelan] as an accurate account of what was confirmed by us and minuted during our final, joint mediation session when we were all in the conference room together.

    2.I accordingly paid [D School] term 1 fees and previously responded to you that the school has confirmed that the $40 amount is only payable with the next invoice, which we now have. I am happy to pay that amount by the date for which it is due.

    3.I confirm that the agreement was that I would pay half of the standard [D School] school fees, as and when due, subject to affordability and that I will provide written confirmation of this. For several reasons, I have not yet got around to doing this but will do ASAP. As included in emails from last year and earlier this year, I don’t see any issue with this.

    4.In my opinion the asthma management undertaking was only discussed in relation to the overseas travel in question and my undertaking in this regard will be forthcoming. In any event, I have and continue to generally manage [the child’s] asthma in accordance with the plan provided by [N] Medical Practice. I point out in this regard that it was I who initially identified her mild asthma and sought initial medical advice. My previous, general correspondence on this matter provides confirmation.

    5.It was my understanding that you did consent in principle to the proposed overseas travel subject to the further matters outlined in ATW’s letter of 6 April 2009. Significant detail had been provided and the matters, including your concerns, were discussed at length both individually between you and ATW and between ATW and I and then jointly between you, ATW and I and agreement summarised and minuted in our final joint conference. Accordingly, I have made several reservations, with have [sic] a few to complete before I can forward those to you along with the Consent Orders that have been drafted. Unfortunately this is taking a little longer than anticipated due to the holidays and certain reservations only becoming available more recently.

1. Thus it is clear that, in principle, the mother has no real objection to the child travelling overseas with the father. In cross-examination she conceded that the father would not do anything which might reasonably be seen to put the child in danger. The father has already  met most of the provision of information condition imposed by O’Ryan J and has said that he will take the child to a medical practitioner to ensure she receives all necessary medication to protect her from danger from diseases which might occur where she travels overseas.

2. The requirement of an itinerary by the orders of O’Ryan J is a reasonable one to put the mother in a position where she can know whether to consent or not. Most of the other requirements of those orders are to meet the mother’s needs, not the child’s needs. Nevertheless, I regard the existing orders as leaving it open for a parent to impose reasonable conditions for granting consent although the ambit of those conditions is not specified in the orders. Otherwise consent might reasonably be withheld although the concern which has caused the withholding can be alleviated.

3. The mother has argued that the conditions for consent which she has imposed are reasonable because they were necessary to protect the child and to meet her need to be assured that the child would be safe. In relation to the condition of payment of school fees which I find is still imposed, the mother argued that it is in the child’s best interests that these fees be paid and therefore it is reasonable to impose it as a condition for consenting to the trip. I do not agree. It is entirely irrelevant to the trip which I find, if it can be taken without unreasonably exposing the child to danger, would in itself benefit the child because it would allow her to meet and appreciate her father’s family and friends and the circumstances of his life before he migrated to Australia and will generally increase her understanding of him and of the world and broaden her outlook and appreciate Australia by being able to compare it to other places rather than judge it in isolation, as far too many people who laud or criticise it do. To broaden her mind one would hope that she has many trips to other lands. These would surely serve as a marvellous practical education for the child.

4. The restriction the mother seeks as to dates coincides with the period the father seeks and coincides with the Christmas holiday time the child is entitled to spend with the father. I shall deal with each condition apart from school fees contained in the mother’s reply filed 27 May 2009 individually:

   (i)It is reasonable that a full itinerary be supplied. As I must determine the matter based on that which has already been provided it would be unreasonable to permit the father to depart in a substantial way from it. This means that minor changes would be acceptable but no change of substance such as a significant addition of travel destination should be permitted.

   (ii) & (iii) There has been such confirmation. Within the permitted departure and arrival times changes are not a matter of moment and should be permitted. The mother can alleviate her anxiety by checking to see that the child is safe by telephoning after she is due to arrive. The father should, in the event of any changes to flight schedules, advise the mother of the changed destinations and arrival times.

   (iv)The mother impressed me as being very controlling. I cannot see how there is a need for all this information except to meet the mother’s inappropriate wish to retain control over the child while the child is in the father’s care. She is admittedly not at risk, and changes in circumstances and conditions might warrant a change of plans.

   (v)O’Ryan J made an order allowing telephone contact. He simply ordered that there be an entitlement to reasonable telephone contact each day without specifying a regime. If the father has a mobile telephone, that will be sufficient to provide it. If, occasionally, the child is not with the father when the mother telephones her, the mother will be able to try to contact the child later. The father will be able to tell her when he will return to the child. If, occasionally, the child is out of mobile telephone service range, the mother will have to wait until the child comes back into range. This is what commonly occurs. I cannot see why the child should be put in a situation which is exceptional. It is about time to treat her like any normal child, which she is, rather than some one who is exceptionally fragile, which she is not. She is, like all children, vulnerable to the abuse inherent in self-indulgent and self-centred behaviour by her parents, in this instance, the mother. The demands inherent in this order as well as in (iii), (v), (vi), 2., and 4., are symptomatic of and evidence of this.

   (vi)I cannot understand how such a condition would advance the child’s welfare or safety if one accepts, as the mother does, that the father will not subject the child to unacceptable risk.

   (vii)Undertaking (i) and (ii). As the father is entitled to and was found to be suitable to take responsibility for the child’s care by O’Ryan J and can be expected to act as any responsible parent would this restriction is unnecessary.   

   Undertaking (iii). Minor changes should be permitted.

   Undertaking (iv). This requirement is ridiculous. The father knows the destination much better than a tourist and is well qualified to determine the best and safest way to travel while there. As I have already said, he is acknowledged to have the child’s safety at heart.

   Undertaking (v) and (vi). I have already commented on this attempt to impose on the father indirectly what I do not have jurisdiction to impose directly. School fees amount to child support and there has been, so far as I know, no application for any administrative departure in respect of them. There is no application before me which would allow me to hear a departure application.

   Undertaking (vii). Ordinarily, children are often left with family and friends and other baby sitters. Equally often, children have holidays with them in the absence of parents. I cannot accept that the subject child should be an exception. She is particularly fortunate to be able to see her paternal grandmother. As she is already 80 years old, the child will probably not have many chances to get to know her in her own environment. She is unlikely to get many opportunities to spend time with the father’s other family members and friends overseas. It will probably be good for the child to spend some time with them on a one on one basis i.e. in the absence of her father.

   Undertaking (vii). The father has his own medical practitioner of choice. I cannot accept that the mother should be able to dictate which doctor the child should attend. The father has made it quite clear that he will act responsibly in relation to the child’s need to receive inoculations and the like.  

   (2)The father has already provided sufficient information about travel arrangements provided there is no substantial change.

(3),(4),(5)&(6) I have dealt with these matters.

(7)&(8)The concept that only the mother can be trusted with the child’s passport is wrong and inimical to the child’s best interests because it will tend to give the child the impression that her father is not as capable of promoting them. In my view, each parent should be able to hold the passport. One can mind it until the other one needs it. Thus, if the father receives it to allow the child to travel with him, he should retain it until the mother needs it.

1. Before determining what to order in these proceedings, I must determine what orders are in the child’s best interest. Although this determination is not the only consideration it is the paramount one. The parties’ respective wishes and needs are relevant and ought to be taken into account. Those of one would only prevail if the child’s best interests do not so weigh in favour of one party’s wishes that the wishes of the other would not tip the balance in the other’s favour.

2. To determine the child’s best interests s 60CC of the Family Law Act requires the Court to consider certain matters so far as the evidence permits such considerations. There are two primary considerations. One relates to protection of the child from family violence and the like. This does not appear to be of any relevance in view of the mother’s concession that the father will protect the child from harm as best he is able and the lack of evidence about it. The other primary matter is the benefit to the child of having a meaningful relationship with both parents.

3. To be able to visit the father’s family and friends in some of the circumstances in which he was raised and in their current circumstances is, in my assessment, likely to make the child’s relationship with the father more meaningful. She is likely to understand him better. To go with her father on what can be regarded by the Court as likely to be an exciting and memorable trip to an exceptional natural wonder such as … is also likely to make the child’s relationship with the father more meaningful. The trip that the father proposes will be highly likely to benefit the child. As it will be undertaken when the child would otherwise not be in the mother’s care, it will not interfere with her relationship with the mother.

4. Additional considerations are contained in S.60CC(3). They are:

   a)The child’s expressed views – There is no evidence of any.

   b)Nature of the relationship between the child’s, each parent and others of significance – As I have said, whatever the relationship with the mother and her side of the family, including the child’s half-sister, it will not be undermined by the trip. Whatever the relationship between the child and the father is, and it is not suggested to be other than appropriate, the trip is highly likely to improve it, to the child’s benefit. The evidence suggests that the paternal grandmother has visited the child in Australia. It is not suggested their relationship is other than appropriate. To be able to visit her overseas and stay in her home, as the father plans, is virtually bound to improve this relationship and advance the child’s welfare. To be able to visit and in some instances stay with people who are close and important to the father is also likely to benefit the child.

   c)Each parent’s ability to maintain, facilitate and encourage improvement in the child’s relationship with the other – The wish of the mother to control the conditions under which the father cares for the child infers some lack in her of this ability. In fact, in the proceedings about the child’s name, the father alleges the mother is attempting to distance the child from him. The impression the mother gave me when she gave evidence is that she is seeking to do this.

   The mother alleges in the name issue proceedings that the father lacks commitment to and insight into the child, despite at the same time admitting that the child and the father have a loving relationship and his claim to appreciate the importance that it continue. I think the mother’s stance is a tactical one. My impression of the father is that he is an unexceptional, normal, loving father who has both insight into and commitment to his daughter and who is not likely to attempt to create any degree of estrangement between the child and the mother.

   d)Effect of separation as a result of the trip – For the reasons already discussed there is none.

   e)Practical difficulties caused by the trip – The only likely practical difficulty would be in the mother’s contact with the child by telephone. This may be a problem from time to time. Her own application seems to me to infer she only wishes to telephone the child twice each week. She should usually be able to do this. If she must content herself with less contact, it is unlikely to be adverse to the child’s welfare. The child is now of an age when she should, with confidence, be able to be deprived of telephone contact with the mother for much more than a week or so while with her father or friends or relatives without being adversely affected. She will usually be able to telephone the mother via a land line or mobile when she wishes. There is no suggestion that the father might prevent this. The mother is highly likely to be able to afford any additional call costs occasioned by the child being overseas.

   f)The capacity of the parties and others of significance to meet the child’s needs – There is nothing in the evidence, including the evidence about the father’s alleged refusal to pay a small amount in school fees, to suggest he does not have the capacity to meet the child’s intellectual or emotional needs. The resistance of the mother to the trip proposed by the father creates a strong inference that the mother, to some degree, lacks this capacity. I assume a trip of the type planned will advance both the child’s intellectual and emotional welfare. She will generally broaden her experience and learn more about the world, especially the nature and natural wonders …, and will get to know her father’s relatives and friends better as well. The opportunity to develop her relationship with her very elderly paternal grandmother is likely to be particularly beneficial to her. She may not have many chances to do this. Better relationships with all the father’s relatives and friends are likely to advance her emotionally and thereby provide for her emotional needs.

   g)The child’s and the parents’ lifestyle and background – As I have said, the child is of an age where she can understand the implications of her travel. She is entitled to know and experience the lifestyle her father once had and that of his relatives and friends. Most importantly she is entitled to understand that element of her own background which comes from her father as well as his own background. Such an understanding is bound to benefit her.

   h)Parent’s attitudes and levels of parental responsibility – I regard the father, from my observations, as quite able and responsible and unlikely to do anything which would involve any unacceptable risk to the child. He seems to have her interest in mind, and while not being unrealistically altruistic, does not habitually demote her needs to a place behind his own. I have the opposite impression of the mother. Her parental responsibility appears to me to be somewhat lacking. If she were properly responsible, she would not have raised unreasonable impediments to the trip. I find that, overall, her conditions for giving consent are unreasonable.

   i)Preferability of orders which will lead to less likelihood of further proceedings concerning the child – It is usually preferable to make such orders, but I cannot do much in this instances because the issues should be limited to the specific trip which is planned.

   j)Other relevant matters – I have canvassed the matters which could make a difference either on their own or in any combination above. There are no other relevant matters.      

5. I regard this as a clear case where the child’s best interests will be furthered by permitting her to be taken on the trip the father plans without most of the restrictions the mother seeks to impose. I think sufficient notice of the itinerary and travel details have been given. I shall, however, order the father to provide the mother with his mobile telephone number so she can occasionally telephone the child and limit the trip substantially to the areas of which he has already given notice or require the father to give the mother notice of any substantial changes in itinerary when he learns of them. The mother should provide the child’s passport to the father within 21 days and he should be able to retain it until he consents to the mother taking the child overseas or the mother obtains an order of the Court to allow her to do so. As O’Ryan J has already ordered the child’s name to be removed from the Federal Police Airport watch list, it is not necessary for me to make such an order.

6. It is the mother’s application to change the child’s name from Addington, which appears on her birth certificate, to Koldsjor-Addington. She also asks that the child be permitted to be christened with that name and to restrain the father from doing anything which recognises or encourages the child to recognise any name other than the one the mother asks the Court to give her. The father seeks that the child’s name remain as it was registered.

7. The mother’s case is contained in her affidavit filed 25 June 2009. Firstly, she says the father lacks commitment to the child. If this is true, to change her name to something which might to him seem to attenuate his relationship with the child would not be likely to increase his commitment to her. I am not, however, satisfied it is true. I could discern no lack of commitment and the mother concedes they have a good relationship. All the complaints in which the mother places her faith to demonstrate the claimed lack of commitment can be attributed to entirely different reasons.

8. The mother argues in favour of a name change that, when the child was born, the parties could not agree on her name. She wanted what she still wants. However, because she felt compelled by a time limit on name registration and knew that the parties could not agree within that time she decided to register the name the father wanted and change it later. She had learnt that she could do this before the child’s birth was registered. In my mind, although this may answer any claim by the father that there had been agreement about the child’s name when she was born and arguments that the agreement should have some sway, it is not a strong reason to change the child’s name because it is not a reason related to the child’s welfare. It is a reason related to the mother’s wishes, just as the father’s wishes are a weak reason to retain the child’s present name.

9. The mother’s next argument is really a criticism of an argument she claims the father has advanced to resist change. She says the father claims that Koldsjor is a name which is not part of the child’s heritage. It is said that the father claims this is the name of the mother’s deceased husband and as such identifies with a family which is not the child’s family. This is true, with the exception that the mother’s name is now Koldsjor and has been for more than 20 years. The mother identifies with this name and is identified by it. It is the child’s half sister’s surname. She too identifies with it and is identified by it. If names are for the purpose of family identification, and I think that is one of their purposes, the child might benefit from having this name.

10. The mother next says that if the child is called Koldsjor-Addington it is not too long and complicated. Many people, in these days when parents often do not marry, have hyphenated surnames, including children at the child’s school. In some European and South American countries it is traditional for married women to continue to use their maiden name in conjunction with their husband’s name. I do not regard it as likely to be a burden for the child to have a hyphenated surname. The distinctiveness of such a name may even be an advantage at times. The mother also argues that while Koldsjor is an unusual name in Australia and some here may not know how to pronounce it or spell it, this is not a major concern because those who know the child will have no difficulty learning it. I agree, and add that as Australia becomes more multicultural, names which are common in English speaking countries are not as prevalent as they once were. Most individual Australians are quite adept at handling names which are not derived from their own background. The racial discrimination inherent in unwillingness and much inability to do so is declining. Nevertheless, these matters do not provide a reason for a change of name, they are merely arguments which lower some of the supposed barriers to the advisability of a name change.

1. The mother further argues that as the child is close to her and S they should share a name. The fault with this argument is that they will not share a surname because the mother’s and S’s will be Koldsjor and the child’s will be Koldsjor-Addington if a change is permitted. However, there is some force in the mother’s argument that many people such as teachers do not realise the relationship between S and the child and sometimes people do not identity the child as the mother’s daughter and that this is something inconvenient and disadvantageous for her. Despite this, I cannot identify any significant disadvantage to the child which might result from this. The mother makes a specific point in relation to D School, which both daughters attend, where this has occurred on occasions. I do not regard this as a significant problem for the child because she is usually on a different campus to S. She is in kindergarten and will not move to the high school premises until after S leaves school.

2. The mother says that the child wishes to be called Koldsjor. At her age such a wish is likely to be the result of direct influence by the mother or by S or the child’s wish to make either or both happy rather than any inherent need in the child. My assessment of the mother is that she is likely to have influenced the child in this way both consciously and unconsciously.

3. Finally the mother says that if the father regards … L Koldsjor-Addington as “too long”, the middle name L can be dropped. No argument by either party was put to me about this although the father would, if he cannot prevent change, prefer to drop L if it is thought that to have four names is a burden provided Koldsjor replaces it as a middle name rather than as part of her surname. The argument the mother has advanced involving examples of S’s experiences with the child’s surname seem to me to be irrelevant except to the extent already discussed. The examples of claimed problems with the child’s current name which are relevant and relied on by the mother seem to me to be so minor or petty they could not be regarded as significant. The claimed inconvenience is an exaggeration and the confusion in others seems harmless from the child’s point of view.

4. The father’s major reason for opposing a name change is that he alleges the mother is attempting to distance the child from him and the name change application is a step in that process. As I have said, my assessment of the mother is that she is likely to be attempting to do what the father alleges. In the face of this risk, a change in name will have a tendency to help the mother shift the allegiance the child has to the father away from him. The father also alleges the mother has an extremely selfish motive for the stance she has taken in that she is attempting retribution against the father because she has not been able to get all her own way in other aspects of the parents’ relationship. He said, and it was not disputed, that in December 2006 she wanted the father to sign a domestic relationships agreement. When he refused, she responded by threatening “If you do not sign our Domestic Relationships Agreement, unaltered, then I will register [the child] with the surname [Koldsjor]”. My impression is that such a tactic would be typical of her. She is very wilful. In fact, the father states that the child volunteered that “mummy is saying that it’s not fair to her that I’m not [Koldsjor] and that my name must be [Koldsjor]”. That the child said this is not disputed. It is significant that this is a statement which is unlikely to have been induced by anything the father said or did. The father says that the child has said from time to time since 2007 that the mother has said things to indicate that the child should think of herself as Koldsjor rather than Addington. 

5. The father points out that the child is almost five years old and has always been known as Addington and understands why her name is different to that of her mother and her sister. He says there is nothing to suggest the child would be better off if her name was changed now. The father is concerned that a name change might convey a message to her that something is “not right” about her and or him and his family and emphasise the conflict over her between the parents to her. He says he has never experienced anybody who is confused by her name or finds difficulty with it. This is probably because it is the same as his.

6. A strong argument the father advances is that the child is happy, doing well and healthy emotionally and physically. He says any change in name might risk the status quo. He adds that, as the child has a strong and good relationship with the mother and S, there is no warrant to change her name. To do so is unlikely to improve it. The father argues that, as the child has accepted living in two different homes where there are different parenting styles and is not in any way disconcerted by the difference between her name and her mother’s and sister’s name, there is no reason for change.

7. He also argues that the name was agreed on at birth. I am not in a position to determine where the truth lies about the parties’ differing stories on this matter, but their agreement is irrelevant to the child’s welfare. He feels very strongly that the child should not have a name which is that of her mother’s former husband and proffers a bloodline argument in support of his stance. I do not regard this argument as any better than the mother’s argument to much the same effect i.e. that her current name recognises the child’s maternal bloodline because the mother is known as Koldsjor.  Both arguments are based on parental need rather than the child’s welfare. In this respect, it is a relevant matter that the mother is actually known as Koldsjor. However, it is equally relevant that, despite evolution of Australian cultural attitudes and practices, the vast majority of married and unmarried women are content for their children to bear their father’s surname.     

8. Another argument advanced by the father is that the mother is currently in a defacto relationship. He speculates that she might marry him and change her name again or that she might have a child to him who will be as close in relationship to the child as S is, but is likely to have a different surname. As the mother is already 45, the prospect of her having another child is very small. Much more likely is that the father may marry and have more children who will also be as closely related to the child as S and carry the name Addington. One would think that if the mother does remarry, her new husband is unlikely to be happy for her name to remain that of her first husband and that there are significant prospects that the mother would change her name again.

9. As already stated, s 60CC of the Family Law Act must be complied with in deciding the issue of name. Some paragraphs of subsection(3), the additional considerations, cannot be usefully applied to determine whether or not in this case there should be a name change. Subsection(2), so far as it can be relevant, requires, consideration of matters which in this instance are of great significance.

10. There is no doubt that I should make orders which tend to solidify or maintain the child’s relationships with her parents and ensure they do not in any way, so far as I can do so, undermine these or expose her to psychological harm or mental abuse. However, it should be pointed out that because “abuse” is defined in s 4 of the Act in a manner that confines its meaning to assaults including sexual assaults and involvement in sexual activity although not necessarily by being sexually assaulted, any psychological abuse or psychological harm which results from actions which do not come within the statutory meaning of “abuse” or are not primary considerations . I think this is a deficit in the Act which ought to be cured. Any action which can be seen to be likely to cause emotional problems for a child should be a major concern, not merely one which is relegated to a lesser status such as it is if considered under subsection(3)(c),(f),(i) or (m).

11. I have already made clear my impression from seeing and hearing the mother of her attitude to the child having a meaningful relationship with the father. My impression of the father is that the only reason he might create any impediment to the maintenance of the presently existing strong and meaningful relationship between the child and the mother would be to stop the mother from attempting to continue to undermine his relationship with the child.

12. The mother claims the father is attempting to undermine the child’s relationship with her as well as with S. She asserts that this is not deliberate but is the result of his lack of insight and commitment to the child’s best interests. The examples of this she provided are quite lacking in specificity and detail. She lists these matters as:

    i)Interference with telephone calls between the child and S – This is entirely without specific detail and is not said to be the subject of any complaint by the child. The mother simply claims that S has complained of this because S can “always hear him talking to [the child]” when she speaks to the child by telephone and ends her calls early. This is alleged to have occurred, on average, fortnightly over the previous year.  

    ii)The father’s failure to agree that the child should attend D School, which she attends, and difficulty in getting him to pay half the fees – No doubt the mother also failed to agree with the father on this. She got her own way. He has agreed to pay and has paid his share of the fees. The small penalty he resisted paying but eventually paid was incurred because he sent his share of the fees to the mother and she transferred them back to him without telling him and did not pay, as she could, what he sent her to the school. I regard this complaint as being irrelevant to or neutral to the issue, except to the extent that it demonstrates the mother’s keenness to extend the parental conflict.

    iii)Lack of effective communication between the parties over care issues – This complaint, too, assumes the mother should always get her own way, i.e. that the only effective communication would be for the father to agree with her. There are no specific instances provided by the mother. However, I note that the father has attempted to get the mother to undertake mediation to improve communication. He has also attempted to communicate by telephone with her but the mother has rejected his attempts. The parties’ affidavits annex many emails by which each has attempted to communicate with the other. They leave little doubt that the mother is the usual source of communication difficulties.

    iv)That the father lacks respect for S and the mother – No specific examples are said to illustrate this. The impression I got from the presentation of each party while that party was giving evidence is that the mother has less respect for the father than the father has for the mother.  

13. The father has provided more detailed examples to illustrate his claim that the mother wishes to distance the child from him. The most significant are:

    i)The mother does not send the child’s homework book, textbooks, library book and/or birthday invitations and the like with the child when the child will be in his care at the relevant time for ensuring the child attends events or has things she ought to have with her.

    ii)The mother attempted to prevent the father from attending the child’s school picnic at Easter.

    iii)On 29 March 2009, when the father saw the child by chance at the beach, the mother prevented the child from greeting him even though she obviously wished to and was excited to see him.

    iv)The mother has, in effect, told him she wishes to continue conflict through the Court because she believes she will succeed by attrition as she is wealthier.

    v)The mother does not facilitate telephone contact between the father and the child – The complaint is much like that which was made by the mother.

    vi)The mother will not permit the child to take clothes or toys from one home to the other even though the child might want to – Significant examples are given. When the child won medals at her school athletics carnival she could not show them to the father because the mother specifically would not permit her to. This occurred as recently as June 2009. When the child is collected by the father she is always wearing the dirty school uniform she had worn on the day the father returned her, even in the school holidays. During the last April school holidays the child remarked to the father “Dad, it’s really weird that I have to wear my uniform to come to you”.

    vii)The mother’s objections to the overseas holiday, including reliance on the unrelated matter of school fees which involved only $40.00.

    viii)The mother’s manner with the father in the child’s presence – The way she behaves when the father comes to her house to collect the child; by failing to answer the door promptly or closing the door on him while he waits outside or not opening it at all while the child is getting ready and in each instance not greeting him civilly must be a vivid demonstration to the child of the mother’s distain for the father. The child has commented on this. There is also the suggestion implicit in what the child once said to the father and her usual delay in getting ready, that the child is not warned in advance that the father is coming to collect her.

    ix)The mother has made birthday parties for the child without telling or inviting him and also excludes those friends of the child who associate with him – The father has tried to achieve more cooperative arrangements and feels the mother’s behaviour tends to distance him from the child. I agree despite knowing that the mother’s behaviour in respect to birthdays is the norm between separated and conflictual parents, at least if the behaviour of so many parents who are so conflictual they eventually come before the Court in contests over the children or property is anything to judge by.

    x)A very significant substantial example of a failure to encourage the relationship that it must be regarded as an illustration of a wish to put distance into it, is the failure by the child to obtain a birthday present for the father as recently as in May this year. The child apologised to the father and told him the mother would not allow her to get him one. This is not the first time it has happened. On other celebration days, the father has been able to arrange for friends to help the child get a gift for him. He helps the child obtain gifts for the mother and S.

    xi)In 2008 the mother refused to allow the father to take the child to Thredbo for an extra day on a long weekend. She would not even allow him to collect the child an hour or two earlier so the father could better avoid the heavy long weekend traffic with the child – There was no justification for her stance.

    xii)The mother decided which school to send the child to at the start of 2009. She would not confirm which of two schools contemplated until the day before the child was to commence. Despite orders in March 2005 by O’Ryan J that she attend D School which were not disturbed or challenged on appeal, she appeared to abandon her quest to send the child to that school. She purported to discount her application to send her there on 17 April 2008 when she told a judicial registrar the child would no longer be going to D School. It had been the aim of her relevant application before O’Ryan J that the child attend D School. In August 2008, the mother sent the father an application for the child to attend N Public School. The father executed his part and sent it to the school. The mother would not however confirm the child would be attending this school or agree to any other school despite attempts by the father to conclude the matter. Anyone with experience of a 4 or 5 year old who is due to start school would realise how difficult it must have been for the father to be unable to speak to the child about the school she would soon attend and how damaging this situation might be to the child and her relationship with the father.

    xiii)A very serious matter is that the father alleges that the mother has accused the father, falsely, of forging her signature in an attempt to steal from her. She has told parents at D School. That she has done so has got back to the father via the parents. According to the father, there is a high level prospect that one of the children of parents who have been told this will learn of it and there is a strong prospect the child will be confronted by it at school. Already, according to the father, S has told a girl at school that her father “tried to take” her mother’s money and took her mother to Court. To risk the child hearing such allegations is to risk undermining the child’s relationship with her father. I think it is more probable than not that the mother has told parents of children at D School what the father alleges.

    xiv)Another serious matter which only to some extent may be attributed to the mother is that S has told the child that the father hates the mother. The child is close to both her mother and S. To hear this from S could tend to undermine the child’s relationship with the father. It may be that there is not much that the mother can now do about this. One suspects, however, S developed this idea as a result of some appreciation of the mother’s attitudes even if the mother did not set out to teach S this. The point now is that in the light of the situation the Court ought to be alert to ensure that nothing more recurs which might tend to undermine the relationship between the child and the father.                  

14. The aspects of s 60CC(3) which can be regarded as able to apply to the main issues are:

    a)The child’s expressed views – The mother says the child has, more than once, said she would prefer to be called Koldsjor. Of course, she will not become “Koldsjor”. The mother’s application is for her to be called “Koldsjor-Addington”. In any event, because of my assessment of the extent the mother is probably prepared to go to get her own way and of the child’s age, it is likely that these expressions of her supposed wishes are more expressions of a need to please her mother than of her essential need. A child of 5 is quite unlikely to independently form a need to have a particular surname in place of that which she has always been known by. The expression of this wish should not be given much weight.

    The father, too, claims that the child has said something which, probably incidentally, could be regarded as an expression of a wish to retain the name Addington. She asked why she is the first named child on school lists. When the father explained that her surname is the reason she is usually at the top of the list she answered that she liked to be “first”. The father says she now naturally relates this to her surname. This, as a reason to retain that name, borders on the frivolous and should not be given any weight.

    b)The nature of the relationship between the child and significant persons – I have already discussed most aspects of this, but it is appropriate to mention that the present surname will help her identify with her paternal grandmother and other members of the father’s family, of whom she sees little. Adding Koldsjor to her name will not assist the child identify with her maternal family, including her maternal grandmother, because the mother’s maiden name is J. She is already close to the mother and S, so will not be assisted in identifying with them by the inclusion of their surname in hers. Such inclusion would probably help in distancing the child from the father. It will tend to reduce the significance he has to her.

    c)Each parents’ willingness to facilitate and encourage an optimal relationship between the child and the other parent – The father, I find, has no difficulty in doing this, and with one exception is quite willing to do it. He is concerned to counteract what he accurately believes are the mother’s active attempts to distance the child from him. I accept the truth and force of the examples he has provided and which have already been discussed. I find that the mother has, quite probably consciously as well as subconsciously, attempted to undermine the child’s love for and closeness to the father.

    d)The likely effect of a change in the child’s name – Except for the emotional effect it will have on the child, which could in my assessment only be adverse to her welfare, it will have little effect. The issues raised by each party of inconvenience, prejudice, confusion and the like are inconsequential. A refusal of the application to change the child’s surname could not harm her at all. A granting of the application could, and probably would harm her for the reasons I have already advanced.

    f)Each parent’s capacity to meet the child’s emotional needs – As I have said, the mother has a more significant deficit in this respect than the father. She has put her own needs ahead of those of the child on the relevant issue. To some extent the father has too, but his needs more closely coincide with those of the child on the question of surname.

    g)The child’s degree of maturity, background and lifestyle – She is not of sufficient maturity to have any significant need to change her name. She is vulnerable to the needs of her parents because of her age. The need of the mother to distance her from the father is being, and will probably continue to be, strongly asserted to her. A change of name, as the mother seeks, will have a real tendency to achieve the mother’s end in this regard. If it is ordered by the Court it will tend to ratify her view of the father to the child.

    There are elements of the child’s background, lifestyle, culture, traditions and heritage which are of importance. There has been a strong tendency in these proceedings to overlook one of these elements. It is that she was born and raised in and is a citizen of Australia where she will continue to live. Despite a tendency to relax it, the custom in Australia is still to name children after their father. It is still exceptional to do otherwise. This tradition does not seem to undermine recognition of and identification with a child’s maternal line. With the sweeping use of computers, genealogy has become very popular. The newspapers, internet and other media commonly devote space to people’s requests and pleas for information about their forebears. There is no indication that there is a preponderance of interest in the paternal line.

    The child is disadvantaged by having both sides of her family living overseas. They presumably have different cultures and customs. The mother is entitled to, and justified in attempting to, ensure the child appreciates her European roots and identifies with her European family. However, in this instance any benefit from adding her mother’s European name, the name by which the mother and S are known, is outweighed by the detrimental distancing of the child from the father which will probably occur in the circumstances which exist here.   

    i)The level of responsibility as a parent each party has demonstrated – The above leads me to regard the mother as lacking this type of parental responsibility; the responsibility which would be demonstrated by sufficient willingness to act to strengthen the bonds between the child and the father to permit the child’s name to be changed to add the mother’s surname without leaving a reasonably held fear that it would harm the child emotionally. The father appears to be a normally responsible parent, much more responsible in the aspects of parenting which are relevant to the issue here.

    l)Avoidance of further litigation over the child – It is noteworthy that the mother has already threatened more litigation, not to further her rights or the child’s welfare but to bully the father. Success in these proceedings for her is more likely to encourage further conflict resulting in litigation. It is fair to say on both the travel and name issues, the mother has caused the litigation by the stances she has adopted.

    m)Other relevant matters – The father has expressed a willingness to accept a change or changes to the child’s middle name or names by way of compromise while not departing from his opposition to the change. The mother, too, has expressed a willingness to compromise if she cannot achieve her principal claim. Whereas the father would not change the child’s surname he would accept that Koldsjor become her second middle name and, if it is thought that to have four names would be too unwieldy to drop “L”. The mother’s compromise would be to drop “L” for the same reason, but to make the child’s surname Koldsjor-Addington. The reality is that the dropping of “L” would not achieve what either party seeks and they would remain nearly as far apart over the child’s surname as they are over the current situation.

    …

    Apart from the matters already dealt with, many other matters are contained in the evidence before me. None of them either alone or in any combination with the matters also before me whether considered in this judgment or not are relevant or of sufficient significance to potentially affect the outcome of the proceedings.

1. A weighing of all the matters I have referred to specifically leads to the conclusion that a change of name like the mother seeks or either party would have as a compromise is unlikely to benefit the child to a degree which would warrant the change; in fact, to any worthwhile extent. However, any such change is likely to tend to assist the mother to undermine the closeness and quality of the highly beneficial bond which exists between the child and the father and in doing so has substantial capacity to damage her emotional health. A balancing of these prospects with the mother’s need for change and the father’s need to maintain the status quo leaves the Court with the clear conclusion that the child’s best interests will be advanced by refusing to allow any change to her current name and by restraining the mother from doing anything to suggest or recognise that the child’s full name is other than … L Addington. The mother’s wishes and needs, while relevant, do not warrant a change which is contrary to the child’s best interests. I shall make orders accordingly.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  2 October 2009