KORUBA & FURST

[2017] FamCA 265

FAMILY COURT OF AUSTRALIA

KORUBA & FURST [2017] FamCA 265

FAMILY LAW – CHILDREN – Best interests – Change of name – Where there is one child who is 18 months of age – Where during the final hearing consent orders were made to permit the mother to relocate overseas with the child – Where the remaining issue in dispute is the father’s application to change the child’s middle name to include an additional middle name – Where the relevant statutory considerations are s 60CC(2)(a), s 60CC(3)(g) and s 60CC(3)(m) of the Family Law Act 1975 (Cth) – Where it is in the best interests of the child for his name to be changed to include an additional middle name.

FAMILY LAW – COSTS – Application by the Independent Children’s Lawyer (“ICL”) that each parent pay half of the costs of the ICL – Where the Court is of the view each parent has the financial capacity to comply with an order for costs – Where neither party has been wholly successful in the proceedings – Where it is just that a costs order be made – Order made that the parents each pay one half of the costs of the ICL.

Family Law Act 1975 (Cth) – Part VII; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 64B(2)

Reynolds & Sherman [2016] FamCAFC 240

APPLICANT: Mr Koruba

RESPONDENT: Ms Furst

INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

FILE NUMBER: SYC 3148 of 2016

DATE DELIVERED: 1 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 9, 10 & 11 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Frankham Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cumming

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

Orders

1. That the parties sign all documents and take all steps required to change the name of the child “B E Furst” born on … 2015 to “B E Koruba Furst”.

2. That the father and the mother each pay to Legal Aid NSW one half of the costs of the Independent Children’s Lawyer in these proceedings as agreed or assessed on a party/party basis.

3. That all exhibits be released.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Koruba & Furst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3148 of 2016

Mr Koruba

Applicant

And

Ms Furst

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issues for determination are whether a child’s name should be changed and costs of the Independent Children’s Lawyer (“ICL”).

2. B E Furst is 18 months of age having been born in 2015.  His parents are Ms Furst (“the mother”) and , Mr Koruba (“the father”).  They had been unable to agree about the parenting arrangements for the child. 

3. At the heart of their dispute was the keen desire of the mother to be permitted to relocate the child’s residence to Europe where her family resides.  The father was strongly opposed to such a course.  The mother was suffering from stress and anxiety particularly about this litigation and the uncertainties involved.  In these circumstances the hearing of the substantive proceedings was expedited and the hearing commenced on 9 January 2017.

4. To the parties’ credit, they were able to resolve the relocation issue and the other aspects of the parenting arrangements apart from the issue about the child’s name and the matter of the costs of the ICL.  Orders were made by consent on 10 January 2017 in relation to the agreed matters.

Applications

1. The father seeks the following order:

   That the parties sign all documents and take all steps required to change the name of their child from B E FURST to B E KORUBA FURST.  In other words he would like his family name “KORUBA” to be included as an additional middle name for the child.

2. On the other hand, the mother opposes such an order.  She asks the Court either to make no change to the child’s name or to substitute “KORUBA” for the child’s second name E. 

Background

1. The brief background matters are as follows.

2. The father was born in 1980 in Australia.

3. The mother was born in 1987 in Europe.

4. In 2006 the mother came to Australia after finishing secondary education. While she was in Australia she commenced tertiary education and completed a Bachelor degree and an Honours degree. 

5. In 2006 or 2007, the parties met and had a brief relationship.

6. In 2013 the parties met again. They recommenced their relationship in 2013 or 2014.

7. In November 2014 the parents separated but reconciled shortly thereafter.

8. In November 2014 the mother started consulting a psychologist, Ms C. She said that this was to assist her to cope with the emotional and mental strain of her relationship with the father.

9. In February 2015 the mother became aware that she was pregnant.

10. In April 2015 she formed the view that she wanted to return to live in Europe after the child’s birth. She said that she informed the father of her view.

11. From 6 – 19 June 2015 the mother went to Europe to visit her family.

12. In July 2015 the father moved into the mother’s apartment in Sydney.

13. On 17 September 2015 the mother’s sister, Ms D arrived in Sydney, followed by the maternal grandmother on 29 September 2015.

14. In 2015 B (“the child”) was born.

15. The mother advised the father of her intention to return to Europe in the days after the child’s birth. In early October she obtained the relevant documentation to apply for a passport for the child.

16. On 7 October 2015 the father moved out of the mother’s apartment. 

17. On 30 November 2015 the mother travelled with the child to Europe.  She returned to Australia with the child on 11 March 2016.

18. In mid-May the mother informed the father that she wanted to travel to Europe because her grandfather had passed away.

19. On 20 May 2016 the father commenced these proceedings in the Federal Circuit Court. The child’s details were subsequently placed in the Airport Watch List.

20. On 29 June 2016 the Federal Circuit Court transferred the proceedings to this Court.

21. In July 2016 the mother became a permanent resident of Australia.

22. On 6 September 2016 orders were made for the appointment of an ICL and listing the proceedings for final hearing. By consent, orders were made that the child spend specified time with the father.   The parties agreed to the mother travelling with the child to Europe for a holiday.  A single expert was appointed.

23. On 11 October 2016 orders were made by consent to permit the mother and the child to return to Australia on 7 or 8 November 2016 rather than 30 October.

24. On 15 October 2016 the mother and the child travelled to Europe. They returned on 7 November 2016.

25. The father spent time with the child on frequent regular occasions during November and December 2016.  

26. On 10 January 2017 orders were made by consent about parental responsibility and which permitted the mother to relocate the child’s residence to Europe, and to reside there permanently thereafter but only from 1 July 2018. In the meantime, under the orders, the child is to live with the mother and to spend regular and frequent time with the father.  The purpose being, to provide a period during which the child would have an opportunity to develop a meaningful relationship with his father prior to the relocation of his residence to Europe.  The orders also provided for time to be spent between the child and his father in both Europe and Australia following the child’s relocation to Europe.

Change of name

1. The father’s application for change of the child’s name was an issue in the substantive proceedings.  In his Amended Initiating Application filed on 5 December 2016 the father had sought the following order:

   That the name of the child be changed to B Furst-Koruba.

2. The question of what name the child would be given by the parents had caused considerable difficulty between the parties.  Eventually they were able to agree that “B” would be appropriate for his first name.  The mother asked the father whether he wished to choose an African middle name for the child and he said that he did not care.  Subsequently his parents and the mother agreed upon the father’s grandfather’s name ‘E’ which identifies a particular African clan.  Then the father informed the mother that he wanted the child to be called “Vader Koruba”, “Vader” being after Darth Vader the fictional character in the iconic movie Star Wars.  The mother did not agree.  She prepared the relevant birth certificate document with the name “B Furst” and asked the father to sign the document.  After some argument he signed the document.

3. At the outset of the hearing, the father was still pressing for the child’s surname to be changed to Furst-Koruba.

4. In her affidavit the mother said that if the child’s last name was hyphenated to include “Koruba” she thought this would be considered odd in her culture.  She said that her culture is very traditional and that “Koruba” is a very exotic name compared with traditional European names.  She said that hyphenated names are very uncommon in the area that she proposes to live in, that she thought it important for the child to carry the same last name as her to avoid any confusion and that she had no intention to change that last name should she ever re-partner.  She said that she was also concerned that the child would be embarrassed by a last name which differed so much from that of herself and her family and from others in the area where he is likely to be.  She thought this might cause the child some confusion of identity.

5. During the parties’ negotiation about the substantive orders the father conceded that he would no longer press for the child’s last name to be hyphenated.  He said that he would be satisfied if his family name (Koruba) could be included as an additional middle name for the child.  The child’s name would then be “B E Koruba Furst”.

6. The mother opposed such a change.  She said that the names “E” and “Koruba” would both be regarded in Europe as exotic names.  She said that she could accept that it would be in the child’s best interests to bear one African name for the purposes of identifying the child’s African heritage but she considered that two African names for the child would be “too exotic”.

7. Accordingly, she said that if the father wished to include “Koruba” as a middle name for the child then he would have to accept removal of “E” as one of the child’s names.

The Law

1. An order concerning the name of the child is a parenting order within the meaning of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 64B(2)(i) provides as follows:

   (2)  A parenting order may deal with one or more of the following:

   …

   (c)  the allocation of parental responsibility for a child;

   …

   (i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

   …

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. All this is clear from Reynolds & Sherman [2016] FamCAFC 240 at page 2 where the Full Court said that “the name of a child is an aspect, at least, of the parental responsibility for a child …”.

4. Section 60CC(1) provides that in determining what is in a child’s best interests the court must consider the matters set out in s 60CC(2) and s 60CC(3) of the Act which are relevant.

5. It was agreed by the legal representatives for each of the parties that those statutory considerations relevant to this matter are s 60CC(2)(a), namely the benefit to the child of having a meaningful relationship with both of his parents and s 60CC(3)(g), namely the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

Submissions

1. It was submitted on behalf of the father that the inclusion of his family name “Koruba” would identify his family and that the importance of this would be magnified by the geographical distance which would lie between the child and the father, and his family, upon the child’s residence being relocated to Europe.  The two middle names proposed by the father would signify the child’s association, not only with the father but also with the father’s family.  The child is already called “E”.  It would be in his best interests to retain this name because firstly, it is the name which he already has and secondly, it is the father’s clan recognition name.  It means “song”.  It is mean and petty-minded for the mother to insist on the child having only three names when there is special significance to the child in the two proposed African names.  The child will be moving to live in quite a different culture and for him to have a visible symbol in the form of two names denoting his African heritage would be in his best interests.

2. On the other hand, the submissions on behalf of the mother were as follows.  The father has now changed his position from that which he was seeking in his Amended Application.  What the father now proposes was not discussed with the single expert, Dr F.  The mother has not given evidence in relation to this because it is a new proposal.  In her affidavit she was addressing the father’s application for the hyphenated last name.  The father provides no evidence of how the addition of a middle name would be in the child’s best interests.

3. The mother’s evidence is that the child’s present name would fit in with her culture even though the middle name is somewhat exotic but she accepts that it is appropriate because it acknowledges his heritage.  The mother says that her culture is very traditional.  She says that “Koruba” is an exotic name compared with traditional names.  Whether hyphenated or not the addition of yet another exotic name is not something which would necessarily assist the child in the future.  In fact, having two exotic middle names poses the potential to be burdensome and embarrassing for the child and something that potentially would take him further outside the culture in which he would be living.  She says that there is no warrant for it.  It should not simply be a matter of “that’s what the father wants so that’s what the father gets”. The relevant statutory considerations do not assist the father and in any event there is no relevant evidence about these.

4. It was submitted on behalf of the father in reply that upon relocation to Europe the child would be sheltered in a small village.  Having both African names would provide opportunity for the child to at least feel a connection with his paternal family and through that, have a more meaningful relationship and a continuing reminder about that relationship.  The mother indicated that she wishes to raise the child as a bilingual child.  Having the proposed names would also reflect the fact that the child is a bilingual child and reference to his name would illustrate the fact that not only is the child connected with his paternal family, but also his clan.  The child has Australian, African and European heritage and the proposed names would represent a touchstone for each part of this heritage.  The Court would not accept that the child could be embarrassed or potentially alienated by having two, rather than one, exotic middle names.  The relevant statutory considerations are a meaningful relationship and s 60CC(3)(g).  It was accepted that the submissions on behalf of the mother would fall within s 60CC(3)(g). 

5. It was submitted on behalf of the ICL that the mother had said in her affidavit that the name “Koruba” would be acceptable to her.  Greater consideration to cultural aspects has been referred to by counsel for the father in his submissions than was included in the father’s evidence.

Discussion and Conclusion

1. In my view, the essential question is what name would better serve the best interests of the child?  I accept that the relevant considerations are the benefit to the child of having a meaningful relationship with both parents, the relevant background, culture and traditions of the child and parents as set out in s 60CC(3)(g) and s 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant.

2. As I have indicated above, these parents have had considerable difficulty agreeing about the child’s name.  As also indicated above, they agreed that the name “E” should be included to reflect the child’s African heritage.  By implication they have agreed that it would be in the best interests of the child to have this name.  The father had raised issue about the change of the child’s name in the context of asking the Court to make an order to change the child’s surname.  As indicated above, his initial application was for his family name “Koruba” to be reflected in hyphenated form with the mother’s family name “Furst”.  To his credit, the father made a concession in the context of endeavouring to resolve all the substantive issues and that concession was that he would no longer require the hyphen between his family name and that of the mother.  It was at that point that the mother apparently informed him of her view that if his family name was to be included then the middle name which the parties had chosen for the child should be deleted.

3. Both parties have the view that it would be in the child’s best interests for his name to include a name which connected him with his African family and heritage.

4. I accept the general thrust of the submissions on behalf of the father as being a better fit with the relevant considerations, particularly a meaningful relationship and the culture and traditional matters referred to in s 60CC(3)(g) and s 60CC(3)(m).  The parents having agreed on the name “E”, I am not persuaded that the best interests of the child would be served by now abandoning that name.  To accommodate the mother’s concerns expressed in her affidavit about having a hyphenated last name for the child as I have said, the father has listened to the mother’s concern and endeavoured to meet this by offering not to insist on a hyphenated last name. 

5. In my view, the reality for this child is that he will be known by the German surname “Furst”.  For the father’s family name “Koruba” to be included as part of the child’s name can, in my view, only promote the likelihood of the child having a meaningful relationship with his father, connection with his paternal family and serve as a reminder of his background, culture and heritage.

6. To the extent that the father was criticised for not having provided evidence to support his application for the order sought in the form that it is, I note that he faced the position where the mother had formed her latest view about the name, that is, that she did not wish the child to have two African middle names, after the father had closed his case and during the course of the negotiations during the hearing which resolved the substantive issues.  Accordingly, in my view, the reality became one in which the issue about the child’s name could mainly only be dealt with by submissions.

7. In circumstances where the mother wanted the child to use the African name “E” and has expressed the view that it would be in his interests to have this name, I do not accept that the addition of his father’s family name would be likely to cause him embarrassment let alone potentially be alienating.

1. In conclusion, for these reasons, in my view, it would serve the best interests of the child for his name to be changed to “B E Koruba Furst”.  I propose to make an order accordingly.

Costs

1. Mr Cook sought on behalf of the ICL an order that each party pay to Legal Aid NSW one half of the costs of the ICL.  He indicated that one half of such costs was the amount of $4,911.50.  Mr Cook also indicated that to date the father has contributed the sum of $2,450 and the mother has contributed the sum of $1,650.

2. In my view the relevant matters are the financial circumstances of each of the parties and whether either party has been wholly unsuccessful in the proceedings.

3. In relation to the father’s financial circumstances, they are far from clear.  He operates his business as a graphic designer/painter which he established in 2005/2006.  He has not lodged an income tax return since the financial year ending 30 June 2014.  He said that the business has struggled although in recent times it has turned a profit but he was unable to indicate the level of such profit.  He said that at present he is earning between $1,000 and $2,000 per week and that his income after paying expenses would be approximately $1,800 per week.  He also said that his parents have assisted him by lending him monies, particularly for the purpose of funding these proceedings.  I sought the details about this but was not provided with any material.  Accordingly, the conclusion I reach is that the father’s financial circumstances are far from clear.  He resides with his parents and they appear to represent a financial resource for him.  He has been able to fund his legal representation in these proceedings.  He has informed me that he proposes to sell his 1971 Holden Monaro motor vehicle which has an agreed value of $50,000.  It is clear that pursuant to the orders that were made in the substantive proceedings he will be making significant financial provision for the child over the next 18 months also. 

4. In all these circumstances, in my view, the father would have the financial capacity to be able to pay his share of the costs of the ICL.

5. On the other hand, the mother’s financial circumstances are also unclear to me.  Some time ago the mother had an amount well in excess of $100,000 in savings.  But she has had to fund these proceedings.  As was the case with the father, I sought details of the costs of these proceedings and the source from which she has paid her costs.  Such material has not been forthcoming.  It is also clear that the mother will be required to support herself and the child between now and 1 July 2018 in Sydney although, as I have said, the father will be making a significant contribution to this.  Nevertheless considerable expenditure will obviously be involved.  But, in all these circumstances, unsatisfactory as they are, in my view, the mother would be able to comply with an appropriate order in relation to costs.

6. The other relevant matter is whether either party has been wholly unsuccessful in these proceedings.  Neither party was entirely successful in the outcome which they sought in the substantive proceedings.  So clearly neither has been wholly unsuccessful in the proceedings.

7. This is a matter where I considered it appropriate for an ICL to be appointed for this child, particularly given the serious nature of the application being an international relocation.  The Court has been assisted by the independent representation of the child. 

8. In all the circumstances, in my view, it is just that a costs order be made.  In my view, each party should be required to pay one half of the costs of the ICL in these proceedings.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 1 May 2017.

Associate:   

Date:  1 May 2017