Lambert & Rafferty
[2022] FedCFamC2F 1732
Federal Circuit and Family Court of Australia
(DIVISION 2)
Lambert & Rafferty [2022] FedCFamC2F 1732
File number(s): CAC 1883 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 November 2022 Catchwords: FAMILY LAW – final parenting orders – dispute as to child’s surname – child going by multiple surnames – asking child’s opinion may place emotional burden on child – why children “report” to the other parent – pressing need to protect child from adult dispute – ordered hyphenated surname – child’s surname to incorporate mother and father’s surnames. Legislation: Family Law Act 1975 (Cth) ss 60B, 63B, 64, 69ZL Cases cited: Beach and Semmler (1979) FLC ¶90-692; [1979] FCWA 1
Chapman & Palmer (1978) FLC 90-605; [1978] FamCA 86
Division: Division 2 Family Law Number of paragraphs: 28 Date of hearing: 18 November 2022 Place: City B Counsel for the Applicant: Mr Nicholson Solicitor for the Applicant: Walsh & Blair Counsel for the Respondent: Mr Korke Solicitor for the Respondent: Family Centred Law ORDERS
CAC 1883 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAMBERT
Applicant
AND: MS RAFFERTY
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The parents do all acts and things to cause and ensure that for all purposes X Lambert and/or X Rafferty-Lambert is known as X Rafferty-Lambert, with her surname or last name or family name as Rafferty-Lambert.
2.That the child be henceforth known as X Rafferty-Lambert, and that her parents, or either of them, are at liberty to approach the Registrar of Births, Deaths and Marriages in the State of Victoria to have such change of name recorded on the child’s birth certificate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lambert & Rafferty has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
RES TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered res tempore, that is, oral reasons delivered shortly after the hearing, but not immediately following the hearing, pursuant to s 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical and repetition errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
On 16 November 2022 at the City B Circuit sittings of this Court I heard submissions from the parties concerning the child’s name. That day, I had more than half a dozen matters vying for attention in the courtroom and I wished to reflect on the evidence and the submissions of the parties, in any event. The parties had sensibly agreed on very detailed orders relating to the child’s welfare and living arrangements, and I made those orders as final orders on 16 February 2022. The orders noted that the issue of the child’s name remained to be determined.
The question I have to determine today is the child’s name. It is common ground between the parties that the child needs to have one name for all purposes, rather than depending where she is or the circumstances, utilising three different names from time to time.
I want to acknowledge the maturity of both parties in being able to reach agreement about the child’s living arrangements. Apart from their attention, parental authority, devotion and love, and the benefit of their disparate personalities, the parties now provided the child the further gift of parental agreement about her living arrangements. This child can tell herself and be comforted by the knowledge that these living arrangements are what her parents agreed. That will be a comfort to her for the rest of her life.
The brief background is that the parties’ commenced cohabitation in about 2013. They separated in about October 2015 and the Father issued these proceedings in 2021. Along the journey to reach the final orders as to the child’s living arrangements, there was a Child Impact Report prepared by Ms C. That report is dated 20 December 2021 and the interviews were around about that time. I infer that that report assisted the parties reach an agreement about the child’s living arrangements. Significantly for this dispute, that report stated as follows:
[35]That [the child] constantly be referred to and enrolled at school and all activities by the surname that is registered on her birth certificate. The issue about her surname remains in dispute between the parties.
The Mother’s case was that there was a lack of reasoning behind that recommendation or observation of the report writer. I note that this was in the Child Impact Report, previously known as a section 11F report, which is a much less detailed but no less important report than what I will describe as the full Family Report pursuant to section 62G of the Act. The resources available to prepare a Child Impact Report necessarily mean some brevity in the reasoning.
The Father seeks an order that would maintain the child’s surname as registered on her birth certificate, Lambert, for all purposes. The Mother seeks an order that would cause the parties to ensure that the child is known by the hyphenated name of the Mother and the Father’s surname of Rafferty-Lambert. I am satisfied that I can make either order pursuant to section 64B(2)(i) of the Act, which provides as follows:
Section 64B Meaning of parenting order and related terms
…
2. A parenting order may deal with one or more of the following:
…
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The Mother’s case is that from when the child was three years old, it was the child’s wish to be known as Rafferty-Lambert. The Father’s case was that the Mother had unilaterally determined to change the child’s name, and he saw that as part of an overall attempt to sideline his importance in the child’s life.
I note that the parties sensibly determined that the matter be resolved on submissions and not to further exacerbate their parental relationship by undergoing cross-examination of each other and the report-writer. Further, the parties’ counsel indicated that I did not need to deliver reasons at all in the circumstances of a very busy list for the week, and I am grateful to them for that. Nonetheless, I am of the view that the parties are entitled to have reasons for this very important decision in regard to their child.
I accept the Mother’s evidence that the child was enrolled at kindergarten as Lambert. That is the Father’s name and that is the name that is on her birth certificate. It is significant that at the time of her birth the child was registered with the name of Lambert. Likely in late 2018, in anticipation of the child starting school in 2019 and without consulting the Father, it also appears that the Mother enrolled the child in school as Rafferty-Lambert. It then appears undisputed that for school purposes the child has been known as Rafferty-Lambert. The child commenced prep in 2019 and now at the end of 2022 has almost finished grade 3. The child has been enrolled as, and known at school as Rafferty-Lambert over the entire four years of her primary school education so far.
The further background to this dispute about the name is reflected in the Child Impact Report. The Mother stated in her affidavit as follows:
[45][The child] has frequently cried Monday nights, and asked not to go to [the Father’s] house on Tuesday, since separation. In the past six months, her distress has increased in intensity and [the child] has been crying every Monday night and Tuesday morning, begging me on not to make her go to visit [the Father] on Tuesdays. [The child] states that the adults sit around and talk and ignore her, that she has nothing to do and that when they put her to bed they just say goodnight, turn the light off and close the door; she does not get tucked in, or a goodnight kiss or cuddle. She states she is scared at night alone in the dark, but she refuses to tell [the Father] that. She says she cries herself to sleep, but tries to cry quietly into the pillow so that [the Father] doesn't hear her.
[46]Since [the Father] has been asking to have [the child] for a whole week in the school holidays [the child] has become more and more angry. The first time he asked, I told her that she might go to stay with her Dad for a week in the school holidays and she immediately said 'no'. She explained it is too long, she does not want to be there for that long. I convinced her to stay for four nights, but she was really upset when she got home and told me it was too long. She said ‘I asked Dad if I could call you and he just said no’.
It was significant to the Father’s case that there was a real discordance between the Mother’s perception of the child’s relationship with the Father on the one hand, and the relationship that he said he had with the child and that was observed by the report-writer on the other hand.
The parties are very fortunate to have the child that they have. The Child Impact Report describes the following:
[9]During [the child]’s interview, she presented as a personable, confident and articulate child who seemed to express herself comfortably. She provided thoughtful comments about her situation…
…
Harmful Conflict Considerations
[24]The contrast between [the child]’s expressed enjoyment of her time with her father and her warm relationship with him was in significant contrast to the information provided by [the Mother]. [The child] appeared to confirm the father’s perspective of her spend time arrangements with him and their relationship.
[25][The Father] stated that [the Mother] had purposefully made false claims about [the child’s] views about her time and relationship with him, which might be the case, or not. It is feasible that, for whatever the reason, [the child] is not able to hold her father in a positive life in her mother’s household, and potentially she feels she needs to report negatively against him. Situations where a child negatively reports against an otherwise well loved parent usually develops due to a number of complex factors. This may include, psychological disturbance in one or both parents, unresolved loss and grief about the parental separation by one or both parents, family of origin issues for one or both parents, long standing and protected parental discord and a lack of parental cooperation. A factor in this matter that might be impacting adversely on [the child’s] experience of being parented is that she has been given adult like responsibilities by [the Mother] including to determine her spend time arrangements with [the Father]. While asking a child’s opinion might appear to be child focussed behaviour, in reality, it can place a considerable emotional burden on the child and causes the child to become a significant player in the parental dispute and conflict, to their detriment. Moreover, sometimes a child feels a need, for whatever the reason, to support one or other parent’s position on any given issue.
…
Developmental Considerations
[28]Children of [the child’s] age start to understand more about their place in the world and they generally pay more attention to friendships and teamwork and they want to be liked and accepted by friends. That [the child] understands that she is known by 3 different surnames depending on the setting and which parents she lives with is a concern and further demonstrates her exposure to the parental conflict and dispute. Moreover, if [the child] constantly feels a need to keep things from one or other parent, or to directly tell untruths, there may be serious adverse impacts on her moral development and long term good adjustment.
PARENTAL UNDERSTANDING OF THE CHILD’S NEEDS
[29]When [the Mother] was provided with feedback about [the child’s] expressed views, she was visibly shocked and upset and she became a little teary. She appeared to be genuinely taken aback and confused about why [the child] had indicated a different view of her situation to the writer than was known to her. [the Mother] appeared open to reflecting on whether the matter was more complex than she initially thought.
[30]However, [the Mother] later suggested that [the child] might have made false reports about her time and relationship with [the Father] because she was aware that he would learn about her views and she wished to placate him. She further reported that [the child] wanted her surname changed to Rafferty-Lambert and that her views about that needed to be given considerable weight, displaying limited parental reflective capacity in this regard. [The Mother] asked if the writer had asked [the child] about that, which she had not.
…
(Emphasis added)
The stress that the child has been under because of the conflict between her parents is apparent from her statements to the report-writer. I refer to the following paragraphs of the Child Impact Report:
[16]In regards to the parental relationship, [the child] explained that her parents “don’t get along” and “school holidays, it’s the hardest time for all 3 of us”. [The child] stated, “whenever school holidays are coming up, it’s hard for me”. She explained that she feels pressured from both parents about her school holiday arrangements.
[17][The child] further added, “it[’]s just 2 weeks to go (until the upcoming December school holidays) and it’s not sorted” and she feels very worried about that. [The child] said that usually “it[’]s sorted” by this time as her father normally emails her mother 2 weeks before any school holiday period. That it has not been sorted out, [the child] said, “it’s a worry for me”.
Hence, I accept the report writer’s observations. I accept the report writer’s concern as to the most pressing need for the child which was as follows:
[32]At this stage, the most immediate need for [the child] is that she be protected from the adult dispute. Specifically, at this stage, [the child] would benefit from Court Orders that provide for clearly defined school holiday spend time arrangements with both parents, during the interim and over the longer term.
Notwithstanding the child’s presentation to the report writer, the Mother and a psychologist, on the Mother’s account, unilaterally retained by the Mother, saw a different child. The Child Impact Report states:
[8]Prior to the Child Impact Report, [the Mother]’s solicitor contacted VIC CCS indicating that [the child] had expressed extreme concern and anxiety to her psychologist about her interview and had asked multiple times if she were allowed to have someone in the room with her as a support person, such as her mother, her psychologist or a close family friend. [The Mother] re-stated this during her interview and suggested a support person be present. It was explained to [the Mother] that [the child] would need to be interviewed separately and both parents were advised that [the child] would be supported and encouraged to participate by the writer but that there would no pressure placed on her to participate if she felt uncomfortable and did not wish to do so.
That a parent would press for the child to have a support person during the family report interviews is, to say the least, unusual. Especially in conjunction with a psychologist unilaterally chosen as a therapist for the child without consultation with the other parent. In the end, and I infer because of the expertise of the report-writer, nothing turned on that unusual request.
In this case, I will apply the whole of Part VII of the Act. It is unnecessary that I recite any of the provisions, save to say I am proceeding on the basis that, as I am requested to make parenting orders, I must make orders that are in the best interests of the child. The issue of the name is guided by the best interest of the child, whatever may have been the position before the amendments of 2006.
I also have looked at and am cognisant of the principles of the authorities that deal with change of name cases which come up from time to time, including the principles set out in the well-known authority of Chapman & Palmer (1978) FLC 90-605; [1978] FamCA 86 (Chapman & Palmer), and the authorities that have, subsequent to that, reflected upon those principles as cited in the CCH commentary:
[¶8-020] Changing a child’s name
The law was originally set out in Chapman and Palmer … and held that each case was to be dealt with in a way that would promote the welfare of the child.
Matters for consideration were:
•welfare of the child as the paramount consideration
•short and long-term effects of a change
•any embarrassment to the child
•any confusion of identity, and
•effect a change in name would/may have with the parent whose name the child bore in the marriage.
Additional factors were identified in Beach and Semmler (1979) FLC ¶90-692; [1979] FCWA 1 to be:
•advantages both short and long-term in a change
•contact the parent has had with the child
•degree of identification with both the parents
•degree of identification with any new child, and
•parent’s wishes.
I referred the parties during submissions to the observations of the learned authors of the LexisNexis, previously Butterworths Family Law Commentary, which reads as follows:
Decisions in cases as Chapman & Palmer took place against the widely accepted conventions (it was never a rule of law) that on marriage the wife took the husband’s surname, and the children also took that surname.
These parties were not married and there is a convention, at least for much of the community, that a child born would take a father’s surname, whether the parties are living in fact as husband and wife (de facto) or legally married as husband and wife. That was a convention, not the law, and that convention no longer universally applies. It is not unreasonable that the Mother wants her name as well as the Father’s name reflected in the child’s name.
I do not accept the Mother’s case that the child from three years old to five years old of herself, and uninfluenced by her Mother, determined that she wanted the name complete with the hyphen, as sought by her Mother. I also accept that it is unsurprising and not unreasonable that the Father would be concerned, upset and troubled at the unilateral change of the child’s name that the Mother imposed upon this family when she enrolled the child at school.
The Act makes unilateral decisions of parenting responsibility as antithetical to the principles of the Act, including section 63B of the Act:
Section 63B Parents encouraged to reach agreement
The parents of a child are encouraged:
(a)to agree about matters concerning the child; and
(b)to take responsibility for their parenting arrangements and for resolving parental conflict; and
(c)to use the legal system as a last resort rather than a first resort; and
(d)to minimise the possibility of present and future conflict by using or reaching an agreement; and
(e)in reaching their agreement, to regard the best interests of the child as the paramount consideration.
Note:Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent.
Though the above is under the heading “Parenting Plans”, the principle applies to all children concerned with the Act under section 60B, which reads:
Section 60B Objects of Part and principles underlying it
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
…
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
….
Hence, it is quite clear that neither parent should have unilaterally determined to enrol the child at school in a name other than her birth name without consulting the other parent. However, the reality is that the child has gone through her whole school life, as she approaches grade 4, with the name of Rafferty-Lambert at school.
In her Father’s household, she uses the name Lambert. In her Mother’s household, she uses the name Rafferty-Lambert. It is clear that the child uses the name in the respective households that she understands each parent expects of her.
In determining what name the child should be known by, I approach it on the basis of the name that will cause the child the least trouble, and the name that will best protect the child from the parental conflict that she has been concerned about. That name is the name that she has been enrolled in at school for her whole school life. Hence, I determine in all the circumstances that it is in the child’s best interests that she be known by the name of Rafferty-Lambert.
Those are my reasons.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the res tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 20 December 2022
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