Koldsjor & Addington
[2009] FamCAFC 21
•12 February 2009
FAMILY COURT OF AUSTRALIA
| KOLDSJOR & ADDINGTON | [2009] FamCAFC 21 |
| FAMILY LAW – CHILDREN – Best interests of the child – Change of name – Where the mother sought to change the child's surname to include the mother's surname – where the mother's surname was her first married surname – Where the mother had used that surname for 19 years – Where the child's half sibling had the same surname as the mother – Where the trial Judge found change of name not in the child's best interest. FAMILY LAW – APPEAL – From decision of Family Court judge – Whether the trial Judge failed to give adequate reasons – Whether the trial Judge made inconsistent findings – Matter remitted for rehearing FAMILY LAW – APPEAL - Whether an order by the trial Judge was a s 64 parenting order or an injunction under s 68B(1) – Whether in the absence of a specific legislative requirement the child's best interest should be the paramount consideration if the order was a s 68B injunction – No submissions received on the issue. FAMILY LAW – COSTS – Federal Proceedings (Costs) Act 1981 – Application for costs certificates by the husband – Costs certificates granted to the husband – Costs certificates not sought by the wife – Leave granted to the wife to apply for costs certificates. |
| Family Law Act 1975, s 60CA, s 60CC, s 64, s68B, Division 12A Pt VII Federal Proceedings (Costs) Act 1981 |
| A & J (1995) FLC 92-619 Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Bennett & Bennett (1991) FLC 92-191 Chamberlain v R (No 2) (1984) 153 CLR 521 Flanagan & Handcock (2001) FLC 93-074 Marsden & Winch (No 3) [2007] FamCA 1364 Sun Alliance Insurance Ltd v Massoud [1989] VR8 |
| APPELLANT: | Ms Koldsjor |
| RESPONDENT: | Mr Addington |
| FILE NUMBER: | SYF | 4035 | of | 2006 |
| APPEAL NUMBER: | EA | 39 | of | 2008 |
| DATE DELIVERED: | 12 February 2009 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Boland & Thackray JJ |
| HEARING DATE: | 26 November 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 March 2008 |
| LOWER COURT MNC: | [2008] FamCA 143 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lloyd |
| SOLICITOR FOR THE APPELLANT: | Musgrave Peach Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket Family Lawyers |
Orders
(1)That the appeal against orders 8 and 9.3 of the Honourable Justice O’Ryan made on 7 March 2008 be allowed.
(2)That the amended application of the respondent father filed 21 May 2007 and the amended response of the appellant mother filed 26 April 2007 insofar as they concern the name of the child … Addington be remitted for rehearing before a judicial officer other than the Honourable Justice O’Ryan.
(3)That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal against the orders made on 7 March 2008.
(4)That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent in relation to the rehearing referred to in paragraph 2 of these orders.
(5)That the appellant mother have leave to apply for costs certificates pursuant to ss 8 and 9 of the Federal Proceedings (Costs) Act1981, such leave to be exercised within 28 days of the making of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Koldsjor and Addington is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 39 of 2008
File Number: SYF 4035 of 2006
| Ms KOLDSJOR |
Appellant
And
| Mr ADDINGTON |
Respondent
REASONS FOR JUDGMENT
Coleman J
I have had the benefit of reading the draft judgment in this matter of Boland and Thackray JJ. I regret that I am unable to agree with the conclusion which their Honours have reached. My reasons for such disagreement can be briefly stated.
In his Amended Application filed 21 May 2007, the father sought that “[the child’s] name namely “… Addington” be maintained as registered on her birth certificate by both parents and the mother be restrained from threatening a change of name” and that “[the child] be Christened “... Addington”, being the name agreed to by both of the parents and previously registered on her birth certificate”.
By her Amended Response filed 26 April 2007, the mother sought an order that the father “do all things necessary and sign all documents necessary to cause [the child] to be registered on her birth certificate as ... Koldsjor-Addington” and that “[i]n the event the Applicant Father fails to comply with Order 7 then a Registrar of the Family Court of Australia be appointed in his stead to do all things necessary and sign all documents necessary to comply with Order 7.”
By their pleadings, the father sought to preserve the child’s surname as “Addington” whilst the mother sought to have the surname changed to “Koldsjor-Addington”. In her affidavit sworn 31 July 2007, the wife set out a number of matters upon which she relied in support of her position.
In his affidavit, also sworn 31 July 2007, the father set out his reasons for “strongly” disagreeing with the change of [the child’s] surname sought by her mother. Having done so, the father said “[w]ith conciliation, may I propose that the name ‘Koldsjor’ be added as a 2nd middle name making her full name ‘… L Koldsjor Addington’.”
By the time the matter came before the trial Judge, there had been prepared and filed on behalf of the mother, apparently on 4 September 2007, a document described as a “Comparison of Orders”. That document confirmed, accurately there is little doubt having regard to earlier material to which reference has been made, the competing proposals of the parties.
In relation to the father’s proposals, the document recorded:
That [the child] be christened “... Addington”, being the name agreed to by both of the parents and previously registered on her birth certificate.
That [the child’s] name, namely “... Addington” be maintained as registered on her birth certificate by both parents and the Mother be restrained from threatening a name change.
In relation to the mother’s proposals, the document recorded:
The Applicant Father do all things necessary and sign all documents necessary to cause [the child] to be re-registered on her birth certificate as ... Koldsjor-Addington.
In the event the Applicant Father fails to comply with Order 7 then a Registrar of the Family Court of Australia be appointed in his stead to do all things necessary and sign all documents necessary to comply with Order 7.
Not insignificantly, the document did not record the father advancing the “conciliation” position referred to in his 31 July 2007 affidavit. Nor did it record any desire on the part of the mother to accept, by way of alternative or “fallback”, the father’s “conciliation” proposal.
As the transcript makes clear, the trial Judge referred to the “Comparison of Orders” document early in the hearing of the proceedings on 5 September 2007. As the transcript also confirms, in the exchanges which followed, during which the trial Judge referred the parties to the comparison document, it was not suggested to his Honour by either party that the documents, either by commission or omission, failed to accurately reflect the position of each party.
Having discussed some procedural matters, the trial Judge enquired of each party whether there was “a position different to what had previously been put”. There followed a discussion of some “marginally different” orders which were being sought on behalf of the mother, none of which related to the question of the surname of the child [the child]. The father in turn clarified some respects in which his position at trial differed from his earlier pleaded position. Again, none of those matters related to the question of the child’s surname.
As a reading of the transcript makes clear, clarifying the issues thus occupied some time. On the resumption of proceedings after the lunch adjournment, by reference to the “Comparison of Orders” document, some matters which had apparently been agreed during the adjournment were identified, and identified in some detail. Again, significantly for present purposes, nothing was said with respect to the dispute in relation to the child …’s surname.
The oral evidence then commenced. The father was cross-examined by Counsel for the mother. During the course of such cross-examination the father was asked “[w]hat is your objection to [the child] adopting her mother’s name in part?”, to which the father replied that he had “a number of reasons for that” which he had “listed out in his affidavit”. Counsel for the mother then asked the father to “tell me what they are”. The following evidence then emerged:
Firstly, the mother’s surname is from a former husband, it is not from our family environment. The name [Koldsjor] is from another father who is not a father to [the child]. In that regard [the child] has no blood line in the direct [Koldsjor] family.
HIS HONOUR: You are saying that it is not the mother’s maiden name?--- Yes, from the mother’s family she has a grandmother, step grandfather and aunts and uncle. In the [Koldsjor] family there is no heritage, there are no relations in that regard, apart from her half sister.
MR LLOYD: What about her mother?--- Yes and her mother but what I am saying is that is a name adopted by her mother. Her mother could get remarried and adopt another name. I could have further siblings who would also be [the child’s] half sister who she might also be at school with, who she might also do sports with, who she might also be listed on voting rolls with.
…
Do you place any importance at all on the child’s mother being known as [Koldsjor]?--- What the mother would like to call herself is up to her.
So you place no importance upon it?--- Well I place as much importance on it as what she wants to call him.
That is the debate?---What somebody else wants to call themselves – I don’t quite understand your question.
I know you don’t but the question is have you given any consideration to the desire of the child’s mother to have the child known as her child in her own name?--- We agreed - - -
Have you given it any consideration, that is all I asked?--- Yes we did, we have, I have.
Is it your desire that [the child] and [S] attend the same school?--- Not necessarily.
Do you see it as an importance that they do?--- Not necessarily no, they are two different children and they have different families.
Do you think it is important that they be separated in terms of their education?--- No, I’m not saying that.
I want you to assume for a moment that [the child] would attend … with her eldest sister. Do you see it causing any embarrassment to [the child] that she is at school with her sister and that they - - -?--- No.
No?--- Well [S] would be at a different school. She would be at the senior school which was at a different campus altogether. For all essences the two schools work in a separate manner.
I see?---So I don’t. Further to that, and I was hoping one of Ms [Koldsjor’s] [sic] witnesses would come here today, I did ask them to come along, but they have different names within their family. Their daughters go by the name of [L] and their son goes by the name of [C].
That may be so but we are dealing specifically with [the child] here?--- Yes.
Your objection is based upon, as I understand it, bloodline and they are different families?--- I’ve listed a whole lot of objections in my affidavit which I rely on.
Do you think there might be some benefit for [the child], in the long term, to have recognition in her name of both her mother and father?--- In the long term I wouldn’t think so but I’m not qualified to say that. I think Ms Glazer is the person to answer those.
There would be some benefit, would there not, for [the child] and [S] together to be introduced in a similar manner, albeit hyphenated in part?--- I don’t see any benefit, no.
Your position is that it is simply non negotiable. It is your name and that’s it?--- I feel very strongly about the child adopting the father’s name. We agreed to this name when she was born, it was used in her passport and birth certificate.
Nothing emerging from the father’s subsequent cross-examination revealed any change of attitude or position on the part of the father from that stated by him in the last answer appearing in the passage of transcript set out above.
The mother was then cross-examined by the father. That cross-examination continued over two days. On the second day of cross-examination of the mother, the father addressed the “name change issue”. During the course of so doing, the father raised a number of matters with the mother. At no time did the father put to the mother the “conciliation” proposal referred to in his affidavit of 31 July 2007.
At the commencement of submissions, the status of the material before the trial Judge was such that, save for the father in his affidavit having made the “conciliation” proposal, there was no reason for the trial Judge to consider that proposal. That was so because neither of the parties was advancing the proposal by way of alternate or fall back position. Quite apart from that reality, the evidence before the trial Judge did not suggest that, in addressing the best interests of the child [the child], such proposal required consideration.
As is not in doubt, that state of affairs was potentially changed when, in the course of his submissions, the father said:
… I feel very strongly about changing [the child’s] name. I have put forward a proposal in my affidavit of bringing in the name [Koldsjor] as a second middle name. It is a difficult surname and I notice people in the courtroom have difficulty in pronouncing it and people around us. For all the reasons I list in my affidavit, your Honour, these children are different, they have different fathers. They will end up living – or [the child] – in individual houses, perhaps even half at some point in time, half in each.
[The child] has a large [Addington] family, both here and overseas. … But she doesn’t have that [Koldsjor] historic family apart from her mother and [S]. There are many instances of families, your Honour – and one of Ms [Koldsjor’s] [sic] best friends who has children that are similar age difference to [S] and [the child] who have different surnames. At the moment I do see that [the child] is comfortable with her surname. She does know what her surname is and she understands the concept of a surname and relations. She understands that her cousins have the same surname. She understands that her aunts and uncles have the same surname. So there is that.
The issue about the email way back when, your Honour, was not that Ms [Koldsjor] [sic] was trying to get her name imposed, it was more an argument that was had over a domestic relationship agreement. In my email you’ll see that I was saying that there was a threat that if I didn’t sign it that there was going to be a change of – that she would register her under the name [Koldsjor], not a double-barrelled name or anything like that; just would be registered under [Koldsjor].
Read in context, it could not in my view be fairly said that the father was there raising the “conciliation” proposal referred to in his affidavit as an outcome which he was urging upon the trial Judge.
The trial Judge thus in my view has been criticised for failing to consider the possibility of making “Koldsjor” the child …’s second Christian name, in circumstances where neither the father nor the mother ever urged the trial Judge to do so. In those circumstances, criticism of the trial Judge for failing to discuss an option which, viewed in the totality of the evidence before him, and the way the case was conducted by the parties, did not require consideration by him, is unsustainable.
If however, contrary to my conclusion, the trial Judge was obliged to consider the father’s “conciliation” proposal, what could he have constructively said in the light of the lack of evidence with respect to such proposal? Boland and Thackray JJ have discussed the principles governing challenges to the adequacy of judicial reasons. I cannot usefully add to that analysis. Whilst it is necessary for a trial Judge to give reasons which enable the reasoning process which has led to the conclusion which has been reached to be identifiable, I do not understand the authorities to require the trial Judge to give reasons for not adopting an outcome which neither party urged upon him.
It also follows in my view that the failure to have regard to a matter upon which neither party could realistically be said to have relied could not constitute appealable error. In those circumstances, I am not persuaded that the presumption in favour of the correctness of the trial Judge’s decision has been rebutted in this case. I would accordingly dismiss the appeal.
If, as the majority propose, the appeal be allowed, the parties should have the opportunity to adduce further evidence, and for such evidence to be tested by cross-examination. This is particularly so given the state of the evidence and the manner in which the case was conducted before the trial Judge. That exercise would be best undertaken by a single Judge.
Boland & Thackray JJ
Introduction
This is an appeal by Ms Koldsjor (“the mother”) against orders made by O’Ryan J on 7 March 2008 concerning the surname of her daughter, [the child]. The appeal is opposed by Mr Addington (“the father”).
The child’s name is recorded on her birth certificate as “... Addington”. The mother wants her to be known as “... Koldsjor-Addington”.
Background
The background facts are not controversial.
The father was born in 1965 in Z. The mother was born in 1964 in D.
The mother and father lived in a de facto relationship from September 2002 until February 2006.
The mother was previously married to a Mr Koldsjor, who died in 2001. There was one child of that marriage, S, who was born in 1997. S has lived with the mother throughout her life and has always been known by the surname “Koldsjor”.
The mother and S returned to Australia to live after the death of Mr Koldsjor. About 18 months later the mother commenced living with the father. The mother continued to be known by the surname of her late husband.
The child was born in October 2003. Her birth was registered showing her surname as “Addington”.
In March 2004 the parties entered into a cohabitation agreement which excluded the father “from any responsibility for the child [S]”.
In March 2006, after the parties’ separation, the mother sought to put in place contact arrangements for the child. The father thereafter began spending time with the child each week.
In October 2006 the father commenced proceedings for parenting orders in relation to both the child and S.
The trial, which was conducted in accordance with the less adversarial processes mandated by Division 12A of Part VII of the Family Law Act 1975 (“the Act”) was heard over three days in February, May and August 2007. At the trial the father abandoned his application for S to spend time with him. He did so in the light of a report prepared by a family consultant in which S said that although her mother encouraged her to see the father, she did not want to see him.
Judgment was delivered in March 2008. O’Ryan J ordered that the mother and father have joint parental responsibility for the child. He made an order for the child initially to spend four nights each fortnight with the father, increasing to five nights when she commenced attending the private girls’ school at which S is enrolled. His Honour made a variety of other orders, but the only ones of significance in this appeal are Orders 8 and 9.3, which are in the following terms:
8.The Father and the Mother each be restrained from causing the child to have or use any surname other than the surname [Addington].
9.The Mother be permitted to have the child christened in the Danish Church on condition that:
…
9.3the child be christened as ... [Addington].
The grounds of appeal
The mother relied on two grounds of appeal, namely:
1.That his Honour failed to give proper and adequate reasons in his Judgment and the making of the Orders.
2.That his Honour failed to give proper and adequate weight to the evidence of the Mother and the Family Consultant in his Judgment and the making of the Orders.
The orders sought at trial
For reasons which will become apparent, it is important that we record the precise orders sought by each party at trial concerning [the child’s] name.
By his amended application the father sought:
17)That [the child] be Christened “... [Addington]”, being the name agreed to by both of the parents and previously registered on her birth certificate.
…
19)That [the child’s] name namely “... [Addington]” be maintained as registered on her birth certificate by both parents and the mother be restrained from threatening a change of name.
In her amended response, the mother sought the following orders:
7.The Applicant Father to do all things necessary and sign all documents necessary to cause [the child] to be registered on her birth certificate as ... [Koldsjor-Addington].
8.In the event the Applicant Father fails to comply with Order 7 then a Registrar of the Family Court of Australia be appointed in his stead to do all things necessary and sign all documents necessary to comply with Order 7.
The affidavit evidence of the parties
Given the nature of the complaints made concerning O’Ryan J’s reasons, it is important we record what each party said in their trial affidavit.
The mother claimed in her affidavit that after the birth of [the child] she told the father she wanted to register her name as “... Koldsjor-Addington” but the father disagreed, allegedly saying “[Koldsjor] is not your name, it is a dead man’s name”. The mother also claimed that she tried to obtain an “extension of time to the naming period” but found this was not possible. She was, however, informed the name could be changed after being registered.
The mother attached to her affidavit copies of emails that passed between the parties in December 2003 (i.e. a few weeks after [the child’s] birth) in which the father expressed his “dismay” concerning the mother’s “threats to register [the child] under a different name should I not sign the current [Domestic Relationship Agreement] by Christmas.” The mother responded by email advising that “if we separate it is of impotence [sic] that [the child] also carry her mothers [sic] name”.
The mother went on to say in her affidavit “should the [father] find ... [Koldsjor-Addington] to be too long then I agree to remove the name [L]”.
Having asserted in her affidavit that at all times she had been the primary carer of the child and that she, the child and S had a very close relationship, the mother claimed that the child had said to her at times “why am I not [Koldsjor] like you and [S]?”
The mother also asserted, “I believe it is also important for [the child] that she carries my name and her sister’s name so that both children are able to identify as sisters and be known as sisters to the society [sic]”.
The mother claimed that the difference in surname had caused confusion at medical and other appointments and in activities in which both girls were involved. She said there was, for example, confusion at the ballet school “as to whether the girls are related due to their different surnames” and she went on to note that if the girls had the same name “in part” then they would be listed together in the end of year ballet concert program.
We were not provided with the complete affidavit of the father, but only those pages relating to the child’s name. The entire affidavit was 46 pages in length.
At paragraph 126 of his affidavit the father claimed:
Being aware of my strong feelings in this regard, the changing of [the child’s] surname to “[Koldsjor]” has been used as a threat by Ms [Koldsjor] since December 2003 when Ms [Koldsjor] said to me words to the effect:
“If you don’t sign our Domestic Relationship Agreement as is by Christmas, I will register [the child] with the name [Koldsjor].”
The father went on to say that he felt he did not have time to fully address the issues underlying the change of name dispute when he was interviewed by the family consultant.
The father then set out the reasons why he was opposed to “[the child’s] surname being changed and to her middle name being dropped”. We set out in below all he said:
128.1The name “[... L Addington]” was chosen by both parents and registered as such. The name “[…]” being proposed by Ms [Koldsjor] and “[L]” by myself.
128.2It is traditional for a child to take on the father’s surname and this was agreed at the time of her naming.
128.3[The child’s] surname “[Addington]” reflects her heritage and identity through her father.
128.4[The child] has an extensive “[Addington]” family network, both immediate and extended and within Australia and across the world. [The child] has her Grandmother as well as Aunts, Uncles, Cousins and distant relatives who along with her all bear the surname “Addington”.
128.5[The child] carries no blood line within the [Koldsjor] family or relatives in that regard.
128.6There remains a possibility that Ms [Koldsjor] may one day re‑marry and/or have further children and change her surname or her and [S’s] surname (during cohabitation, [S] wanted to change her name to “[Addington]”).
128.7There remains a possibility that I may one day re‑marry and/or have further children who would be ‘half’ siblings to [the child], as is [S]. In this regard I anticipate that they would bear the surname “[Addington]”.
128.8I feel that a name is not something that you can treat with according to the status of your relationships. [The child] should be able to decide her own changes when of age.
128.9I feel that a 15‑digit surname is not reasonable.
128.10The current application to change [the child’s] name has not been directly communicated to me or discussed with me by Ms [Koldsjor] [sic].
128.11[The child] appears to know and understand her name and surname and is beginning to put letters to them.
128.12[The child] appears comfortable in understanding that [S’s] surname differs due to her having had a different father.
128.13[The child] has said to me and I have heard her saying to others that her mother and [C] (whom she refers to as her mother’s boyfriend) tell her that her name is “[Koldsjor] not [Addington]”.
128.14I feel that a double barreled [sic] surname would result in her being called one name (even if for the sake of abbreviation) within one household and by one family and another name by the other household and family and that this would be confusing and demoralizing to her and others around her.
128.15I have not encountered parents providing their children with the surname of another father, unless adopted or under circumstances where the father may have died and the mother remarries.
128.16I am aware of several families where the mother has a different surname to the children or where different children within the same household have different surnames.
The father then went on to say, in a paragraph that potentially is of some significance in the appeal:
129.With conciliation, may I propose that the name ‘[Koldsjor]’ be added as a 2nd middle name making her full name “[… L Koldsjor Addington]”.
The family consultant’s report
The report of the family consultant largely focused on issues which are not the subject of this appeal.
In dealing with the change of name, the family consultant noted that the mother considered the child could drop her middle name and become “[… Koldsjor-Addington]”, as the mother knew that Koldsjor-Addington was “a big surname”. The family consultant also recorded the father’s concerns about [the child] “taking on a double‑barrelled name”.
When providing her “Evaluation”, the family consultant observed “many people have hyphenated surnames so if [the child’s] middle name is dropped … then a hyphenated surname is not too cumbersome”. The family consultant concluded her report by recommending that “[the child’s] middle name be dropped and that her surname be hyphenated, using both surnames”.
The evidence at trial
The father was cross‑examined concerning the surname issue. In doing so he repeated a number of the arguments he had made in paragraph 128 of his trial affidavit. The only additional argument he made was that although S and the child would be attending the same school, they would be on a “different campus altogether” and that “…the two schools [junior and senior] work in a separate manner”.
When the father was asked “do you think there might be some benefit for the child, in the long term, to have recognition in her name of both her mother and father” the father answered “in the long term I wouldn’t think so but I’m not qualified to say that. I think [the family consultant] is the person to answer those”.
When asked whether or not his position was “simply non negotiable. It is your name and that’s it?” The father responded “I feel very strongly about the child adopting the father’s name. We agreed to this name when she was born, it was used in her passport and birth certificate”.
The mother was cross‑examined by the father, who was self represented.
In cross-examination, the mother acknowledged that it “could certainly happen” that she would remarry. When asked whether or not she might also have children she said “I don’t think I will have any more children but yes, it could happen … I am 43 and I am happy with the two children I have”.
The father then put to the mother that he might have more children and he asked the mother whether in that event she thought that the child might feel “different to the other siblings that are being brought up in my household”, to which the mother responded that she was not asking for:
…[the child] not to be [Addington]. I am simply asking for her to be allowed to carry my name, [Koldsjor], the name I have had for 19 years, a name I’m known by to people around me and by the children.
The submissions at trial
In the course of his closing submissions at trial, counsel for the mother advanced a number of arguments in support of the mother’s proposal in relation to the child’s name. Amongst other things he submitted that whilst women in Australia had generally accepted the name of their husband, that tradition had “changed significantly over the last 10 years”. In response to an observation from the trial Judge that there was a “twist” in this case as the mother was not contending for her maiden name, counsel for the mother alluded to the mother’s evidence that she had used her current surname for 19 years.
Counsel for the mother also alluded to evidence in the mother’s affidavit concerning the impact upon both girls of the confusion at school, ballet and medical appointments as a result of them having different surnames. He also stressed that the mother was not “seeking to in any way remove the [Addington] [sic] heritage of the child”.
Counsel also drew attention to the mother’s evidence concerning the exchange of emails between the parents at the time of registration of the child’s birth which he contended amounted to “some pressuring upon [the mother] about that issue”.
Counsel for the mother concluded by submitting that:
… the downside to making an order in favour of the mother in this instance is hard to imagine. It can only let the child be identified by her parents. The only possible downside is an irritation it would appear to the father. With respect, that’s pretty low in the scheme of things when one’s looking at the future welfare of the child.
The father’s submissions were relatively brief, and we repeat them in full below [emphasis added]:
Your Honour, probably the most prominent thing for me at the moment is the name issue and the name change. I feel very strongly about changing [the child’s] name. I have put forward a proposal in my affidavit of bringing in the name [Koldsjor] as a second middle name. It is a difficult surname and I notice people in the courtroom have difficulty in pronouncing it and people around us. For all the reasons I list in my affidavit, your Honour, these children are different, they have different fathers. They will end up living – or [the child] – in individual houses, perhaps even half at some point in time, half in each.
[The child] has a large [Addington] family, both here and overseas. She doesn’t have a – sorry, I have to word this carefully. But she doesn’t have that [Koldsjor] historic family apart from her mother and [S]. There are many instances of families, your Honour – and one of [the mother’s] best friends who has children that are similar age difference to [S] and [the child] who have different surnames. At the moment I do see that [the child] is comfortable with her surname. She does know what her surname is and she understands the concept of a surname and relations. She understands that her cousins have the same surname. She understands that her aunts and uncles have the same surname. So there is that.
The issue about the email way back when, your Honour, was not that [the mother] was trying to get her name imposed, it was more an argument that was had over a domestic relationship agreement. In my email you’ll see that I was saying that there was a threat that if I didn’t sign it that there was going to be a change of – that she would register her under the name [Koldsjor], not a double-barrelled name or anything like that; just would be registered under [Koldsjor].
The trial Judge’s reasons
Given the limited scope of the appeal, it is necessary to refer only to a small portion of the judgment of O’Ryan J.
His Honour commenced his judgment with background information, the salient portions of which we have mentioned above.
His Honour noted that he had the benefit of the family report. He recorded that the family consultant had recommended that the child’s middle name be dropped and that her surname be hyphenated, combining the surname of each of her parents.
In his summary of the applicable law, his Honour drew attention to the objects of the Act and noted that s 60CA required him to regard the best interests of the child as the paramount consideration.
His Honour noted the view of the family consultant that “it was very difficult to bring the parents’ focus to the children’s future and their relationships with each parent” and that “both parents are very focussed on past events and seem unable to overcome their anger towards each other”. His Honour accepted the view of the family consultant in relation to these matters.
His Honour then recorded various portions of the family consultant’s report which related to the father’s original application to spend time with S. For reasons which will become apparent, his Honour’s findings (and in one instance his decision not to make a finding) in relation to S assume some importance in this appeal concerning the child.
Amongst other things concerning S that his Honour recorded from the family consultant’s report were the following:
· The father told the consultant he did not know why S refused to spend time with him; that he had been a good stepfather; and he believed S loved him. He accused the mother of poisoning S against him. He denied that he treated S and the child differently and denied that he ever yelled at S about her homework as had been alleged by both the mother and S.
· The mother denied that the father treated S the same as the child. She told the family consultant that S was fearful about the way in which the father would become angry when helping her with her homework.
· S was observed by the family consultant as being a “happy, articulate little girl” who had “looked fearful, shook her head and said, ‘No, I don’t want to see him’ when it was suggested that S might like to see the father in the playroom.
· S told the family consultant that she does “not trust” the father and believed that he does not really care about her. She said she was happy living with her mother and one of the reasons was that the father could “no longer yell at her”.
· S told the family consultant that she knows that the father believes the mother prevented her from seeing him but said this was not the case. She said that the mother encouraged her to go and see the father as often as she wanted but she had made up her own mind that she did not want to see him. She nevertheless felt envious that the child had a father to do things with but that she (S) did not perceive the father as her own father.
· S was very distressed at the notion of spending time with the father, had talked about her fear of being with him and her body language indicated that she had an aversion to him at the present time.
Having recorded these and other matters pertaining to S his Honour said:
101.I am going to proceed on the basis that the child [S] does not want to spend time with the Father. Further that given this attitude of the child I do not have to deal with any aspects of the welfare of this child. I also make no findings as to why the child [S] has this attitude towards the Father. It may be that it is a reflection of the very high level of conflict between the parents. It may be that it is a reflection of the attitude of the Mother. I note however that the Father has no objection to the child [S] also accompanying the child [the child] when the child lives with the Father.
His Honour’s judgment thereafter focused on the child as he worked through the various “additional considerations” mentioned in s 60CC of the Act.
Although expressing concern about the high level of conflict between the parents and their inability to focus on the child’s best interests, his Honour found that the child had a “very close and loving relationship” with each parent and that overall “both parents have a willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent”.
His Honour also found that it was “important for the child to have the opportunity to be exposed to the culture and traditions of both her parents.”
His Honour found also that “both parents have an appropriate attitude to the child and to the responsibilities of parenthood”, although he once again expressed his concern about their “inability to focus on the interests of the child”.
Having noted the parents’ agreement to share parental responsibility, his Honour went on to find that until the child commenced school she should spend four nights each fortnight with the father (and five nights each fortnight thereafter). His Honour also ordered an equal sharing of school holidays.
Having made decisions about special days and transportation arrangements his Honour turned to the name change issue.
Given the limited scope of the appeal and the fact that his Honour’s reasons are brief we will recite his entire reasons in full:
141.It is the Mother’s contention that the child [the child] should carry not only her Father’s name but also the Mother’s name, particularly as it is also the name of her sister.
142.The Family Consultant said that the Mother said that she believes that it is important that the child ... have the same last name as her mother and sister and that she also have her father’s name. The Mother said she knows that [Koldsjor-Addington] is a big surname but thought that the child … could drop her middle name and become [… Koldsjor-Addington]. The Family Consultant said that the child … resides primarily with her Mother and it is in the child’s interest that the community in which the child lives relate to the children as sisters. The Family Consultant said that many people have hyphenated surnames so if the child […’s] middle name is dropped, as suggested by the Mother, then a hyphenated surname is not too cumbersome.
143.For reasons I have already given there are concerns in this matter particularly the relationship of the parents and the attitude of each of them to the relationship of the child with the other parent. There are also issues about what appears to be an estrangement between the Father and the child S. Both parents have to recognise that the child has to have a meaningful relationship with both parents and do nothing to suggest that such relationships are not important. I do have some concerns about the attitude of the Mother and her attitude towards the relationship of the child and the Father. The Mother is not seeking that the child adopt her maiden name but her first married name. The Mother may re-partner and nothing has been said as to what may then happen. Thus the primary reason for the proposal appears to me to be because the surname of the child [S] is [Koldsjor].
144.In all the circumstances, I am not persuaded that it is in the best interests of the child that her surname be [Koldsjor-Addington]. I am of the view that it is in the best interests of the child that her surname remain as [Addington].
The submissions on appeal
At the commencement of his oral submissions before us, counsel for the mother advised that his outline of argument had overlooked one important aspect of the evidence. This was paragraph 129 of the father’s affidavit in which he had put forward the proposal that “Koldsjor” be added as a second middle name so that the child’s full name would be “… Koldsjor Addington”.
Counsel for the mother noted that the principal ground of appeal was the alleged failure of the trial Judge to give proper reasons for his decision (Ground 1). In support of Ground 2, which concerns the weight given to the evidence of the mother and the family consultant, counsel merely referred to the relevant passages of transcript and the report of the family consultant and noted that the family consultant had not been cross-examined.
Counsel for the mother noted that the trial Judge had recited the evidence given by the mother and by the family consultant in support of the application for the name change but had made no reference to any of the evidence of the father. It was submitted that no reasoning had been put forward as to why the mother’s application failed. It was further submitted that his Honour had failed to indicate “what aggravation or further harm might come to pass (insofar as the child is concerned) if the child had a hyphenated name given the apparent attitude between the parents”.
In response, counsel for the father relied heavily on the well-established authorities indicating that reasons will only be considered inadequate if the appeal court is unable to discern the reasoning by which the decision was made or if justice is not seen to have been done: Sun Alliance Insurance Limited v Massoud [1989] VR 8 per Gray J.
Counsel for the father noted that in Bennett & Bennett (1991) FLC 92‑191 the Full Court had made clear that it was not necessary for reasons to be “extensive” and that “the important thing is that the appellate Court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done”.
Counsel for the father also referred to the decision in A & J (1995) FLC 92‑619 at 82,230‑82,232 where the Full Court said:
…in matters where … competing proposals are evenly balanced, [it is] important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial Judge if, in all the circumstances, it is clear that the trial Judge has considered and evaluated all the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration.
Counsel for the father went on to submit that his Honour’s line of reasoning could be “gleaned from both the evidence, and his Honour’s judgment”. Reference was made by counsel to the father’s detailed evidence concerning the name change and the fact that the father was unshaken as to his reasons and commitment to oppose any name change. Counsel noted that the mother’s evidence on the issue “was also before his Honour”.
Counsel for the father referred to the evidence of the family consultant and asserted that the only reason given by the family consultant for her recommendation supporting the mother’s position was that “many people have hyphenated surnames so if [the child’s] middle name is dropped … then a hyphenated surname is not too cumbersome”.
Counsel went on to say that the family consultant had made no evaluation of the parties’ competing reasons in relation to the name change and “more importantly, did not identify any benefit to [the child] from her recommendation”. Counsel observed that in cross‑examination the only other reason advanced by the family consultant for supporting the name change was her agreement with the mother’s counsel that the child’s name would then be the same as her half-sister S.
It was asserted by counsel for the father that his Honour had carefully considered all of the evidence; that this was “obvious” from reading paragraphs 141 to 144 of the judgment; and that it was open to his Honour to conclude that “the primary reason for the proposal appears to me to be because the surname of the child [S] is [Koldsjor]”.
It was noted by counsel for the father that his Honour had identified “prior concerns raised by him over the attitude of each of the parents to the relationship [the child] should have with each parent” and it was asserted that his Honour had identified the basis for his concerns in saying, “I do have some concerns about the attitude of the mother and her attitude towards the relationship of the child and her father”. Counsel concluded, “having identified his concerns his Honour bases his decision on those concerns. He need do no more.”
In dealing with the second ground of appeal, counsel for the father submitted that his Honour was clearly aware of the recommendation of the family consultant. He further submitted that in paragraphs 142 to 143 his Honour had summarised the evidence of both the mother and the family consultant and claimed “there is an assumption that his Honour also had regard to the affidavit and oral evidence of the Father”. He went on to submit there was therefore little doubt that his Honour was not only aware of the competing proposals and evidence, but had weighed up all of the evidence in arriving at his decision.
Reliance was placed by counsel for the father on remarks made by the Full Court in Marsden & Winch (No. 3) [2007] FamCA 1364 where it was said:
155.Findings of fact involve a weighing of the probabilities and are not made in a vacuum. As Gibbs CJ and Mason J said in Chamberlain v R. (No 2) (1984) 153 CLR 521 and 536, findings concerning a particular fact are made “not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence”.
Counsel for the father concluded by saying the fact that his Honour failed to accept the reasons put forward by the mother and the recommendation of the family consultant did not of itself amount to a failure to give proper or adequate weight to their evidence.
We should observe that no submissions were directed by either counsel to the question of whether or not Order 8, which is challenged by this appeal, was a parenting order made under s 64 or an injunction granted under s 68B(1), and whether different issues arose in considering the adequacy of the reasons if the order was made under the latter provision.
We are therefore presented with the same difficulty as that faced by the Full Court in Flanagan v Handcock (2001) FLC 93-074, where Finn J said (at [50]-[53]):
50.Because the legislation had not expressly applied the concept of the best interests of the child as the paramount consideration in the exercise of the jurisdiction under s.68B(1), a question may perhaps arise with regard to his Honour's reference to the "best interests" concept or test in his ultimate conclusion… Again, however, I am not persuaded that he was wrong in this regard, bearing in mind that in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, the Full Court left open (in paragraph 10.62) the issue of whether the best interests of the child (or children) is the paramount consideration in applications for injunctions under s.68B.
51. In view of the fact that the Full Court in B and B raised but did not answer this question, it seems to me that decisions (be they of the Full Court or of single judges) which preceded that decision or which preceded the substantial re-writing of Part VII of the Act which occurred in 1995 (Family Law Reform Act 1995), 1987 (Family Law Amendment Act 1987) and also in 1983 (Family Law Amendment Act 1983), must carry little authority - although they may be of some assistance to trial Judges in drawing attention to practical matters which may be relevant in determining an application for an injunction in relation to the use of a particular name for a child.
52.The exercise of the power under s.68B(1) to grant injunctions in relation to the welfare of a child is a matter on which an authoritative decision is needed in view of the 1995 changes to the Act. But … neither the trial Judge nor this Court has had the benefit of full legal argument.
53.In my opinion, it cannot, given the provisions of the legislation and the uncertain state of authority, be said that the trial Judge was wrong in his ultimate resort to the best interests test…
The Act has been further amended since the decision in Flanagan v Handcock. Reference to s 65DAC(2) and the definition of “major long-term issues” in s 4(1), makes clear that in cases where an order is made for parents to share “parental responsibility” any decision concerning a child’s name is to be made jointly by the parents.
In the present matter, although the trial Judge made an order for joint parental responsibility, he restrained both parents from causing the child to have any surname other than the father’s surname. It is apparent that in coming to this decision his Honour applied “best interests” criteria (see paragraph 44 of the reasons). In our view nothing ultimately turns on this, since as Kay and Holden JJ said in Flanagan v Handcock (supra at [42]), “[i]f the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration”.
Discussion
The authorities already cited lay down the basis upon which appellate courts must proceed when faced with a challenge to the adequacy of reasons. We therefore accept that reasons need not be extensive and that we should avoid an overly critical analysis of them, especially where the competing proposals are evenly balanced. It is necessary only that we can follow the primary judge’s line of reasoning and be able to see that justice has been done.
The reasons for decision here are to be gleaned primarily from consideration of paragraphs 143 and 144 of the judgment, which we will repeat:
143.For reasons I have already given there are concerns in this matter particularly the relationship of the parents and the attitude of each of them to the relationship of the child with the other parent. There are also issues about what appears to be an estrangement between the Father and the child [S]. Both parents have to recognise that the child has to have a meaningful relationship with both parents and do nothing to suggest that such relationships are not important. I do have some concerns about the attitude of the Mother and her attitude towards the relationship of the child and the Father. The Mother is not seeking that the child adopt her maiden name but her first married name. The Mother may re-partner and nothing has been said as to what may then happen. Thus the primary reason for the proposal appears to me to be because the surname of the child [S] is [Koldsjor].
144.In all the circumstances, I am not persuaded that it is in the best interests of the child that her surname be [Koldsjor-Addington]. I am of the view that it is in the best interests of the child that her surname remain as [Addington].
We do not consider we would be undertaking an “overly critical analysis” of his Honour’s reasons if we look carefully at all his Honour had to say in these crucial paragraphs. It is only by this means that we can determine whether we are satisfied we can follow his Honour’s line of reasoning.
His Honour commenced paragraph 143 by noting that for reasons he had already given, he had concerns about the matter, “particularly the relationship of the parents and the attitude of each of them to the relationship of the child with the other parent”. We must confess we have some difficulty in reconciling the latter part of that proposition with paragraph 110 of the judgment where his Honour said:
110.There are some aspects of this matter that concern me particularly given the very high level of conflict between the parents and their inability to focus on the best interests of the child. However, overall I accept that both parents have a willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent. [emphasis added in both citations]
His Honour’s finding in paragraph 110 that both parents had a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent was consistent with other findings made. It was, for example, consistent with the finding that the mother had “sought to put in place some ongoing contact arrangement” between the child and the father after the separation. It would also have been consistent with the evidence indicating that the child had a very good relationship with the father and the absence of evidence of any difficulty the father had experienced in having contact with the child.
Thus, although we accept what was said in Chamberlain v R (supra) that findings concerning a particular fact are made “not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence”, the difficulty in the present matter is that it appears arguable that the finding in paragraph 110 is inconsistent with that made in paragraph 143. That inconsistency does not assist us in following his Honour’s line of reasoning.
In this regard it is important to note that in the first sentence of paragraph 143 his Honour does not make an independent finding of fact, but rather expressly refers back to reasons “already given” as supporting the propositions contained in the opening sentence. However, even if this part of paragraph 143 were to be seen as a “stand alone” finding – and even if we were to overlook the apparent inconsistency with an earlier finding – it is not apparent why the finding should provide support for the father’s case concerning the surname, since the criticism is directed evenly at both parents.
His Honour next mentioned the “issues about what appears to be an estrangement between the father and the child [S]”. This is followed immediately by the statement that both parents had to “recognise that the child has to have a meaningful relationship with both parents and do nothing to suggest that such relationships are not important”. This is followed in turn by the statement of his Honour’s concerns about the attitude of the mother and her attitude towards the relationship of the child and the father. In the context, the references here to “the child” are to be read as references to [the child].
We can only assume that the reason for his Honour making reference to the estrangement between the father and S in this context was to imply that this was in some way the fault of the mother. Again we have difficulty in reconciling any such proposition with paragraph 101 of his Honour’s judgment where he said he would make no finding as to why S did not want to spend time with the father.
His Honour had noted in paragraph 101 that S’s attitude to the father may have been “a reflection of the very high level of conflict between the parents” or “a reflection of the attitude of the mother”; however, he expressly chose not to make a finding either way. Nor did he expressly consider other possibilities, including the fact that S’s own experience of her step-father may have been such that she did not wish to spend time with him. In the absence of any finding about the reasons for S’s estrangement from her step-father, it is difficult to see on what basis his Honour considered it to be of sufficient relevance to warrant mention in his (understandably) short reasons relating to the child’s surname.
His Honour next recorded in paragraph 143 that the mother was not seeking that the child adopt her maiden name but her “first married name”, and he went on to say that the mother may re‑partner and “nothing has been said as to what may then happen”. As we have mentioned, the mother did acknowledge in her evidence that there was a possibility she might re‑partner. No proposition was put to the mother, however, to suggest that she would necessarily take the name of her new partner (she notably having not taken the name of the father while she lived with him) nor was it suggested that the mother would be likely to change or seek to change S’s name or the child’s name in that event.
His Honour concluded paragraph 143 by saying that the primary reason for the mother’s proposal appeared to be because S’s surname is “Koldsjor”. If indeed that was “the primary reason for the proposal” we consider that it was arguably incumbent upon his Honour to explain briefly why that was not a significant consideration, particularly in light of the mother’s evidence about:
a)the child asking why she did not have the same name as S; and
b)the confusion that had been experienced (about which the mother had not been cross‑examined) at medical appointments and other activities as a result of the two girls having different surnames.
We accept, as Kitto J said in Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627 that:
…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
That proposition, however, must be considered in light of the authorities which require the trial Judge to give adequate reasons, which can be followed by both the appellate Court and the parties. Although we do not consider that his Honour’s decision was “clearly wrong”, we recognise that there were weighty arguments advanced in favour of the mother’s case and it is unclear to us from consideration of his Honour’s judgment why those arguments failed.
We recognise that in paragraph 144 his Honour expressed the view that it was in the best interests of the child to retain only her father’s name. However, that conclusion stands to be assessed in light of the finding in the preceding paragraph which we consider to some extent to be inconsistent with his earlier findings and with his decision not to make a finding concerning the reasons for S’s estrangement from the father. Furthermore, it is unclear on what basis his Honour considered that refusing to combine the mother’s name and the father’s name would lead to a greater likelihood of the mother recognising the importance of the child having a meaningful relationship with the father.
We therefore consider the appeal should be allowed.
For the sake of completeness, we should say that we have not overlooked the fact that his Honour gave no consideration to the compromise proposal referred to by the father in his affidavit (and again in his closing address) which would have seen the mother’s name added as a middle name for the child.
Counsel for the father suggested that the father may have resiled from this compromise proposal in the course of giving his evidence. Whether this is so or not, there was no suggestion that at any time the mother indicated that this proposal would be an acceptable “fallback” position in the event her primary application was unsuccessful.
Although it may nevertheless have been open to his Honour to consider such a “compromise”, we do not consider that he erred in failing to do so. Significantly, although counsel for the mother alluded to the compromise proposal at the commencement of his oral submissions before us, he did not seek to amend the grounds of appeal to suggest that his Honour erred in failing to give consideration to the proposal.
Re‑exercise of the discretion
Counsel for the mother submitted that we ought to re‑exercise the discretion of the trial Judge and make the order proposed by the mother at trial. Counsel did acknowledge that it would be within the proper exercise of the discretion to make an order in the terms of the father’s compromise proposal, although he sought to persuade us not to do so.
Counsel for the father submitted that the appropriate course to follow, in the event the appeal succeeded, would be for the matter to be remitted to either the trial Judge or to another Judge.
We have serious reservations about remitting this matter for further hearing given the additional cost to the parties and the drain on Court resources. Nevertheless, given the comments we have made concerning the adequacy and consistency of his Honour’s reasons, it would be illogical for us to purport to re‑exercise the discretion.
We therefore conclude that the matter should be remitted for hearing. In our view the hearing ought to be conducted by a judicial officer other than his Honour. Given the nature of the dispute it may be considered appropriate for the matter to be ultimately determined by a Federal Magistrate.
Costs
Counsel for the mother submitted that in the event the appeal succeeded the father should pay the mother’s costs.
Counsel for the father submitted that if the appeal succeeded both parties should be given costs certificates under the Federal Proceedings (Costs) Act 1981. Counsel for the father further submitted that the father had put everything he could before his Honour in relation to the surname issue and he submitted, in effect, that it was not the father’s fault if his Honour had made an error leading to a successful appeal. Although we have considerable reservations about making any order that will leave the taxpayer to meet costs associated with this dispute, we consider there is merit in what was put to us on behalf of the father.
Accordingly, we consider it appropriate for the father to be granted costs certificates for the appeal and the rehearing. Counsel for the mother did not formally seek a costs certificate as he presumably anticipated that the Court would grant an order for costs against the father. A costs certificate cannot be granted unless requested. We will therefore make directions which will allow the mother to make such a request.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 12 February 2009
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