M and B - [2004] FMCAfam 606

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & B

[2004] FMCAfam 606

FAMILY LAW – Children – change of surname – contact after relocation.

Family Law Act 1975, ss.65E, 60B, 68F, Part VII

Applicant:

Respondent:

File No:

PAM2840/2004

Delivered on:

4 November 2004

Delivered at:

Parramatta

Hearing Date:

26 October 2004

Judgment of:

Sexton FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms C. Munk

Solicitors for the Applicant:

Watson Stafford

Solicitor Advocate for the Respondent:

Ms M. Matthew

Solicitors for the Respondent:

McKelvey Mathews

ORDERS

Unless otherwise agreed between the parties, JM shall have contact with her father as follows:
(a)For one weekend during the first and the fourth school terms each year, being the weekend nearest to the middle weekend of the applicable term, precise dates to be agreed between the parties.
(b)On the Queensland long weekends in May and in June each year.
(c)On the Australia Day weekend in January in 2006 and in alternate years thereafter [when JM has contact with her father in the first half of the Christmas school holiday period].
(d)On the Father’s Day weekend each year.
(e)Subject to (f) and (g) herein, for the first half of all school holidays when the mother will arrange a flight from Brisbane to Sydney on the first full day of the school holiday period leaving Brisbane no later than 10.30 a.m. and the father will arrange a flight from Sydney to Brisbane on the changeover day [or last day if applicable] of the holiday period leaving Sydney by no later than 5 p.m. if a weekday and no later than 12 midday if a weekend.
(f)For the half of the first school term holidays in which Easter falls in 2005 and the half in which Easter does not fall in 2006, alternating thereafter when travel arrangements will occur as in 1 (e) herein.
(g)For the second half of the Christmas school holiday period in 2004/5 and in alternate years thereafter, and in the first half of the Christmas school holidays in 2005/6 and in alternate years thereafter when travel arrangements will occur as in 1 (e) herein.
(h)By telephone on the father’s birthday when JM shall telephone her father.
(i)By email or telephone at any time and the mother is to facilitate JM’s contact with her father by phone by ensuring JM can speak to her father in complete privacy.
(j)For at least one weekend each term in Queensland when the father will travel to Queensland, collect and deliver JM from her home in Toowoomba and remain within a 3 hour radius of Toowoomba for the contact period.
(k)At any other time by agreement between the parties.
For the purpose of contact in accordance with Order (1)(a)(b)(c)(d) the mother will arrange a flight from Brisbane to Sydney, leaving Brisbane no later than 5 p.m. on the Friday and the father will arrange a return flight from Sydney to Brisbane leaving Sydney no later than 5 p.m. on the Sunday or on the Monday if a public holiday.
Each party shall consult with the other party prior to finalising flight details at least 14 days prior to the relevant contact period.
Each party shall confirm to the other by text or phone that the flight on which JM is traveling has departed and/or has arrived.
Each party shall be responsible for meeting the cost of the fares of the flight to be arranged by that party when JM has contact in Sydney.
The father to meet the costs of travelling for contact in Queensland in each school term.
The changeover date in the school holiday periods will be on the middle date between the first full day of the school holiday period and the last full day of the school holiday period, unless there is no clear middle date when the earlier of the two middle dates will apply.
For the purpose of these orders, the mother shall arrange for JM to be delivered to and collected from Brisbane airport and the father will arrange for JM to be delivered to and collected from Sydney airport.
The mother shall provide to the father within 5 days of receipt copies of JM’s school reports and notices concerning functions to which parents are invited to attend or participate.
Each party shall advise the other immediately in the case of JM suffering any kind of medical emergency.
Each party shall keep the other party informed of their contact details including the telephone number on which JM can be contacted when on holidays.
Each party shall advise the other at least 6 weeks in advance of any overseas travel proposed for JM.
JM shall for all purposes be known as JM.
The father shall serve a copy of these Orders on The Principal of JM’s school by forwarding a copy of the Orders by pre-paid post within 7 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2840 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings for final parenting orders.
The matter concerns contact between a 9 year old child JM and her father. It also concerns JM’s family name.

History of proceedings

On 2 January 2003 orders were made by consent providing for JM to have alternate weekend contact with her father.
The father filed an Application on 2 June 2004 seeking interim and final contact orders.
The mother filed a Response on 20 July 2004 opposing the father’s application and seeking different interim and final orders.
On 5 July 2004 this Court made Interim Orders providing for JM to have contact with her father for one weekend in the middle of each school term and for half the mid-year school holidays. Other orders were made regarding specific issues. In addition the mother was restrained from permitting JM to be known otherwise than as JM until further order.
The father now asks that JM have contact with him on the first weekend of each month, for half school holidays, for telephone contact and for other specific issues orders.
The father also asks for an order that the mother be restrained from permitting JM to be known otherwise than as JM.
The mother asks for JM to be known as JM-B for day to day purposes, but not for legal purposes such as school enrolment, medical records, passport.
The mother asks for JM to have contact with the father for one weekend each term, for half school holidays, telephone contact and for other specific issues orders.

Background Facts

The father was born on 29 September 1966. He is 38 years old.
The father is self-employed in a computer business. He does some travelling for marketing purposes. The father’s wife works with him in the business.
The mother has recently started employment full time as an office manager.
There is one child of the marriage JM born 1995. She is 9 years old.
The parties were divorced on 6 March 2000.
The father lives in an outer suburb of Sydney with his wife, HM and their two children RM, aged 3 years and AM aged 1.
The mother lives with her de facto husband JB in Toowoomba Queensland, and their son CB, aged 2 years. JB works full time. The mother and JB are involved in competitive dog shows on some weekends.
JM lives with the mother and her family in Toowoomba.
From the date of separation until early 2003 JM had regular and frequent contact with the father on at least alternate weekends and during holidays.
In early 2003 the mother relocated to Queensland with JM and her family. JM had contact with the father for one weekend a month during 2003.
In March 2004 the mother stopped assisting the father with the cost of JM’s airfares. The father therefore made this application to the court for contact orders and for the costs of contact to be shared.

The issues

The question for the Court is how often JM should travel to Sydney for contact with her father, and whether the mother should be restrained from using M-B as JM’s name for day to day purposes.

Relevant law

Parenting orders arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). They are subject to s.65E of the Family Law Act that provides, in determining the outcome, the best interests of the child is the paramount consideration. This is the overriding principle.
Subject to that, s.60B sets out the objects of Part VII and the principles which underlie those objects. The four principles are:
a)Children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
b)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
c)Parents share duties and responsibilities covering the care, welfare and development of their children.
d)Parents should agree about the future parenting of their children.
Section 68F sets out the way a Court determines what is in a child’s best interests. The Court must consider the matters set out in Section 68F(2) and I have done so. In particular, I have considered (a), (b), (c), (d), (e), (f), (h) and (k) of Section 68F(2).

The evidence and findings

The father relied on his affidavits filed 2 June and 12 October 2004 and the affidavit of his wife HM, filed 12 October 2004. The father also gave oral evidence at the hearing.
The mother relied on her affidavits filed 20 July and 19 October 2004. She gave oral evidence at the hearing.
A Family Report prepared by Mr David Hugall dated 21 October 2004 was in evidence and Mr Hugall was cross-examined.
JM is presently having contact with her father in accordance with the Interim Orders of this Court of 5 July 2004.
When the mother first moved to Toowoomba she made an arrangement with the father for JM to continue regular contact with him. I accept the evidence of the father that he may have resisted the mother’s move, had he realised that regular contact would become so difficult. Fortnightly weekend contact was never established as the father had hoped. A pattern of monthly weekend contact and school holiday contact in Sydney continued until about March 2004. The mother then decided she could not afford to share the expenses associated with contact so the pattern of monthly contact threatened to collapse. The father paid all expenses to avoid this occurring though contact became less frequent. This change in circumstances led to this litigation.
In response to the father’s application, the mother sought orders, which involved only school holiday contact. She thought the travel for weekend contact in Sydney during school terms was too onerous for JM, given the very short time available. The mother said JM had complained to her about the frequency of the travel. The mother believes the father is insensitive to the impact of the travel on JM. To her credit however, when she read the family report, the mother changed her position and sought an order for one mid- term period of weekend contact as well as holiday contact. While I accept the mother has the concerns she expressed, I am also satisfied the mother does not regard the continuing regular contact for JM with her father, as a priority for her against other practical considerations. At Easter 2004 the mother travelled to Sydney by car to attend the Easter show. She did not bring JM with her to give her the opportunity to see her father. Although the mother’s legal representative said it was as a result of herself being on holidays, I am not satisfied this was the case. There was no reason why the mother could not have contacted the father and arranged contact for a couple of days directly with him. The mother said “it was my turn for Easter contact”. At a practical level, the mother listed a number of reasons why weekend contact was difficult for her. She said the family had only one car which her partner often needed; the traffic was heavy late Friday afternoons; the whole family was affected as they all had to travel to Brisbane with JM; her mother was unable to give her assistance; the mother and her partner were not able to participate in dog trials on that weekend if they had to travel to Brisbane.
I accept that there were and continue to be practical difficulties in relation to weekend contact for the mother, but the issue is one of priorities. How does the inconvenience measure against the need for JM to see her father? In her oral evidence the mother conceded that she could probably borrow her mother’s car to go to the airport and it was not necessary to take CB and JB with her to Brisbane airport. She still believed however, that weekend contact should not be more than once a term, given the travel time involved for JM and JM’s wish to participate in weekend extra curricular activities. I have concluded that the mother’s practical reasons for limiting weekend contact can be overcome.
The father seeks orders for weekend contact once a month. He said it worked well in 2003 and should continue. He does not accept it is unduly tiring for JM and is critical of the mother for putting practical obstacles in the way of contact weekends. I think there is truth in what the husband asserts, but I also agree with Mr Hugall that the father does not fully appreciate that JM has a need to pursue her own life, with minimum interruption to her weekend activities.
This is a difficult matter largely because the parties cannot communicate effectively in JM’s best interests. It is clear from the contents of the family report that the parties’ inability to communicate in an effective way is well known to JM and likely to impact adversely on her emotional welfare.
JM finds herself in the unenviable position of walking an emotional tightrope between the two parents she loves. Mr Hugall said “I assess JM to be an intelligent and adaptive child who is caught between two stubborn and waring adults.” JM wants to please them both and not exacerbate their conflict with each other. Both parents to some extent recognise this. Regrettably, there was little said in evidence by either party that gave me confidence that the position for JM was likely to change. I have no doubt that both parties love JM and want the best for her, but I found both parties were finding it difficult to put JM’s interests ahead of their own. Despite the fact that there were limited issues in dispute between them and that they had been given considerable assistance by Mr David Hugall, they were unable to resolve the issues between them without a Court determination. JM knows this.
It is not possible with one party living in Toowoomba and the other in the outer Sydney area, to give JM exactly what she wants and needs. That is, lots of time with her father, and the freedom to enjoy her school, her friends and her extra curricular activities while living with her mother. The task of the Court is to focus on JM and what will work in her best interests in the short and longer term. What might work well for her now, at 9 years of age, might not work so well for her when she is 14 years of age. By then, her friends and activities are likely to be even more important to her. I agree with Mr Hugall that there has to be a limit to the number of times JM travels to Sydney, 4-5 hours travelling each way, to see her father for weekend contact for a total of about 30 hours. Otherwise, there is a risk she will become resentful of both her parents who have put her in this position.
Both Mr Hugall and I raised the question of the father sometimes travelling to Queensland to relieve some of the pressure of travel on JM. The father said this was difficult for him because of his work and family commitments. However, he thought it would be possible sometimes, though expensive if he were take the whole family. Mr Hugall discussed this possibility in the context of the father spending some time with JM alone, and I support his view that this would be of benefit to JM. JM has said she wants more time alone with her father, rather than always sharing their time together with his new family. This is not to say that JM does not relate very well to her father’s wife and to her siblings RM and AM. I was impressed by the content of the affidavit of HM and accept she has developed a good relationship with JM. That does not change the fact that JM wants time with her father alone as well.
Mr Hugall said JM impressed as an intelligent and confident child. She has very good verbal skills. She said she had strong and positive attachment with both her parents and a good relationship with her step-parents. He said JM was keen not to take sides, being aware of the nature of the dispute between her parents. Mr Hugall believed JM wanted to please adults and would be unlikely to contradict adults who state their views strongly. JM said she found Friday to Sunday contact weekends tiring but enjoys her contact with her father and family. She preferred not to have such short visits but did not want to miss any school or activities. She wanted more than a week with her father in the school holidays. Mr Hugall said it was not a good thing for JM to arrive late in Sydney on Friday night and start the weekend tired. He thought she did need some weekend contact during the term, probably once each term, and preferably a long weekend.
I am satisfied JM would also benefit from a weekend with her father in each school term, not too far from Toowoomba. It may be possible on these weekends for the father to watch JM participate in gymnastics and meet some of her friends. I have ordered that the father have contact in Queensland each school term, though I have not specified how his time with her should be spent. I have not specified the times for these weekends, but as the contact ordered in Sydney is not evenly spread throughout the year, it may work best for JM if the contact in Queensland fills some of the gaps.
I have decided JM should spend the Queensland long weekends with her father in Sydney. This will mean a weekend in May and in June. I have not included the Anzac Day weekend, which in any event is not always a long weekend, because it falls so close to the May holiday weekend.
As I have said in these reasons, I was concerned that both parties seemed more concerned about practical difficulties facing them in arranging contact between JM and her father, than they were about the difficulties facing JM. JM has been placed in a position of conflict. On the one hand, she wants to be able to enjoy her gymnastics and other extra-curricular activities at her home base and on the other hand, she wants to spend time with her father with whom she has a relationship very important to her. It is a difficult balancing act for her.
JM’s family name was a significant issue in this case. The father sought an order restraining the mother from permitting JM to be known otherwise than as JM. The mother sought an order permitting JM to use the name M-B for day to day purposes. The mother did not want JM’s name changed for any formal purpose, such as school or health records, passports or licences.
The mother said JM initiated the name issue by asking if she could be called JB. B is the family name of the mother’s de facto husband and the name used by her mother and JM’s half brother CM. These are the people with whom JM lives and she told her mother she wanted to identify with this family as much as with her father’s. The mother said she gave JM no encouragement or direction in relation to this issue and explained to JM that her father would oppose the idea. The mother however, did not discuss the issue with the father directly, leaving it to JM to discuss with him. JM did so, but was unsuccessful in persuading her father that M-B for day to day purposes was a good idea. The mother said JM felt very strongly about using M-B in her local community and the mother’s view was supported by Mr Hugall in his report. He said JM wanted the hyphenated family name as it allowed her to feel she belonged in both families. JM did not change her position, even when with her father in interview. Mr Hugall assessed this expressed wish to be her most comfortable option, being keen to please both parents and to have a sense of identity with both families. She wants to remain on good terms with both parents. The mother said she had no preference one way or the other for herself, she was only concerned about JM and her wishes. When asked whether this is a decision JM should be making, the mother repeated that it was JM’s idea. I do not think the mother appreciated the significance of the decision JM was being asked to make. JM was using M-B for certain purposes with the mother’s permission until orders were made in July 2004 restraining her from doing so.

In his oral evidence Mr Hugall reiterated that JM wanted to use M-B in relation to her activities in her local area. He said her reasons were complex. One of them was to please both parents. Another was to have a feeling of belonging to both households. He said she had an understanding of the difference between ‘day to day usage’ of a name and ‘legal usage’ well beyond her years and the matter had clearly been discussed with her at length by the mother. He agreed with the solicitor for the father, that a decision to leave her name as M would be unlikely to cause long term ill effects. He thought she would be initially disappointed but if the matter was handled sensitively by her mother, and her mother supported such a decision, JM would adjust very quickly. He was pessimistic about the mother’s ability to give JM sensitive support on this issue. He conceded that if her name were to change again from M-B to something else, it would be damaging. He agreed there was potential for dispute between the parties into the future about what was ‘legal’ and what was ‘day to day usage’. Mr Hugall conceded that to leave her name as ‘M’ was the simpler solution to the problem. He said such a solution may in fact, give JM a sense of relief, as the name would no longer be her decision. Mr Hugall did think JM would be initially irritated by being told only to use ‘M’, but he did not think her irritation would be long lasting or would cause her any harm.
The father said the name M was fundamental to JM’s identity and he was adamant she should keep the name she was born with. He was critical of the mother for allowing JM’s name to become an issue. He did not accept that JM had initiated the discussion about her name.
I accept the mother’s evidence that JM did raise the name as an issue, but I am satisfied this is a clear example of JM trying to please her mother and her father and ensure she is always even-handed. I accept Mr Hugall’s view that JM has a very naive understanding of what changing her name means. I have decided JM should retain the name she was given by her parents at birth. I am concerned about the manner in which JM’s request for a change in her name came about. I am optimistic that the mother will deal with this issue sensitively with JM, and support her in overcoming any initial disappointment JM might feel at the Court’s decision.
The order I have made is that JM be known as JM for all purposes.

I have not ordered that the mother be restrained in relation to JM’s name. I have decided that any such order has the potential to invite further litigation between the parties, which would work very much against JM’s interests. Section 68F(2)(k) provides that I must make the order that would be least likely to lead to further proceedings in relation to JM and I have done so.
Both parents are devoted to JM and committed to her welfare. Their partners have a caring and loving relationship with her. She has siblings in each family. JM will be well served if she can share in the love and support each family can offer and it was apparent to me that is what both parties want to achieve.
JM loves both her parents and the issue for me has centred on how to establish a rhythm to JM’s life which will enable her to enjoy a healthy relationship with her father as well as enjoy her own life as she grows older. I am satisfied the orders I have made strike a balance for JM and her parents and will work to promote JM’s best interests.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate:Collette McFawn
Date:4 November 2004