Lenard and Rogers

[2018] FamCA 128

FAMILY COURT OF AUSTRALIA

LENARD & ROGERS [2018] FamCA 128

FAMILY LAW – CHILDREN – Parenting Orders – Where the mother seeks for the children’s surnames to be changed – Where the mother has sole parental responsibility – Where the children spend no time with the father – Where the Independent Children’s Lawyer supports the surname change – Where the children have expressed desire for their surname to be changed – Application allowed

Family Law Act 1975 (Cth)

APPLICANT: Ms Lenard

RESPONDENT: Mr Rogers

INDEPENDENT CHILDREN’S LAWYER: Mr Ng

FILE NUMBER: SYC 1585 of 2010

DATE DELIVERED: 8 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 8 February 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams Partners

Orders

1. Both parents be restrained from allowing E Rogers born … 2003 and F Rogers born … 2005 (“the children”) to be known by any other surname than Lenard.

2. Subject to order 1 the mother be permitted to make all decisions about the surname used by the children.

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 Lenard & Rogers 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 1585  of 2010

Ms Lenard

Applicant

And

Mr Rogers

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By way of the mother’s application in a case filed 26 September 2017 the mother seeks orders that E Rogers born in 2003, aged 14 and F Rogers born in 2005, aged 12. (“the children”) be permitted to change their surname from Rogers to Lenard. The father opposes that order being made. The Independent Children's Lawyer supports the mother’s application based upon his understanding of the children’s expressed views.

2. On 16 July 2012, as a result of orders made by Rees J, the children came to live with their father.

3. The mother unsuccessfully appealed that decision to the Full Court of Australia.

4. At the conclusion of the 2015 school year the children returned to live with the mother. The mother made the unilateral decision to enrol the children in different schools without the knowledge or consent of the father. The father thereafter had little involvement with the children.

5. On 23October 2017, by consent, I made orders discharging Rees J’s orders that the children live with their father. In effect what has happened is that the incredible conflict between the parties has led to a situation where the children have chosen one parent.

6. On 23 October 2017 orders were made:

   6.1.Granting the mother sole parental responsibility for the parties’ two children;

   6.2.That the children live with their mother; and

   6.3.No order was made for the children to spend time with or to communicate with the father.

7. The father to his credit has ultimately stopped the litigation by walking away to avoid further ongoing conflict for the children.

8. Still one issue in relation to the children remained. The mother continued to press for a change of the children’s surname; she wanting the children to be named by her surname.

9. The mother says that both children have requested that their surname be changed to Lenard as they consider the maternal family to be their family and do not spend time with the paternal family. Since 2013 the mother says that the children have been unofficially using Lenard as their surnames. She states that this is evidenced by the children’s library cards and email accounts being under the name Lenard.

10. The mother annexes to her affidavit filed 27 November 2017 a report dated 22 November 2017 by Dr G, a psychologist who recommends the change of the children’s surname. In the report, Dr G says that she is the Victim’s Services appointed psychologist for the children and that the children have told her that they wish to carry their mother’s surname. Dr G opines that this change is ‘an important act of repair in their recovery from the diagnosis of complex post-traumatic stress disorder’. Dr G explains that complex post-traumatic stress disorder in these children does not meet the criteria of post-traumatic stress disorder for adults in the DSM-V because it does not list developmental criteria as part of that diagnosis. In her report Dr G attributes the father’s treatment of the children while in his care as the cause of this disorder. She concludes that report as follows:

    On the surface, it may seem that a surname is a negligible thing. In the case of [F] and [E], using the name ‘[Rogers]’ is a daily reminder of attachment to an oppressor. With every utterance they are having to identify with a person whose values and behaviour have been a source of pain. If condoned by the court it will be just another layer of an abandonment by a system that has not intentionally, but consistently affirmed that their reality is invalid. This is what their father did. It will simply be a continuation of what they have experienced their whole lives. I would be grateful if the court could remove this tether for these girls. It is a powerful validation of the identity that they need to forge moving forward from very difficult beginnings.

11. The father denies the children were abused or neglected in his care and conversely says that the children are suffering as a result of living with their mother. The father disputes the ability of Dr G to express the opinions that she has given considering that she hasn’t had any involvement with him and has never met him or observed him with the children. I accept that Dr G’s evidence should be considered in light of those limitations. Nonetheless the psychologist’s evidence does confirm the current express views of the children and ultimately I have to make a decision in this parenting order which is in their best interest.

12. Given their ages of 14 and 12; given their close relationship with one another and most importantly given their express views, I find it is in their best interest to make an order that they be able to use the surname that they say they wish to use. I acknowledge the pain that that may cause the father and the downside of removing that last link given the courageous act the father has taken in this case; to walk away from the conflict of this litigation in the best interests of the children. However, I find on balance it is in the best interest of the children to make orders permitting the change of their surnames.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 8 February 2018.

Associate: 

Date:  22.2.18