M and W
[2001] FMCAfam 209
•18 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & W | [2001] FMCAfam 209 |
| FAMILY LAW; CHILDREN – Change of surname of child – Child's wishes relevant but not determinative of the application – Name by which child known determined as a parenting order – Injunctions for the welfare of the child made to give effect to primary parenting order – s65D, s65E, s68F(2) and s68B Family Law Act 1975 (Cth). |
| Applicant: | S D M |
| Respondent: | S A W |
| File No: | ZP2283 of 2001 |
| Delivered on: | 18 October 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 15 October 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Applicant: | Mr M in person |
| Mr S M NSW |
| Solicitor Advocate for the Respondent | Ian Bullock |
| Solicitors for the Respondent: | Ian Bullock Partners, Solicitors, DX 8207 Parramatta |
ORDERS
That the respondent mother do all things including signing all authorities and documents as are necessary to ensure that the child
G L M is known as and referred to as “G L M”.That the respondent mother is restrained from using or permitting any person to use any name for the child other than the family name “M”.
That all outstanding applications are otherwise dismissed.
That all exhibits be returned at the end of one calendar month unless an appeal is lodged.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP2283 of 2001
| S D M |
Applicant
And
| S A W |
Respondent
REASONS FOR JUDGMENT
The applications and evidence
S D M (“the father”) filed an application on 3 July 2001. The orders sought by him are as follows:
1.The respondent refrain from referring to the child G L by the family name “W”.
2. The respondent refrain from using the family name “W” in reference to any registration of the child G L in school and any other social activity in which he is involved.
3.The respondent refrain from encouraging the child G L from using the family name “W”.
4.In circumstances where registration of the child G L is required, the signature of both the applicant and respondent is required.
5.The respondent refrain from instructing the child G L’s school and any other social activity groups from using the name “W” as a preferred family name.
6.The respondent supply copies of registration forms for all current social activities being undertaken by the child G L, specifically soccer and basketball registration.
At the hearing he relied on the following evidence:
·His affidavit sworn and filed 3 July 2001 and his oral testimony.
·Statement of W S made 15 October 2001 and her oral testimony.[1]
·Consent orders entered in the Family Court of Australia in November 1998.[2]
[1] Exhibit A
[2] Exhibit B
S A W (“the mother”) filed her response on 10 August 2001. She sought the following orders:
1.That the application filed on 3 July 2001 be dismissed.
2. That the child G L M born 21 September 1994 be known as G L W–M.
At the conclusion of the hearing, whilst challenging that an order for a hyphenated surname should be made, the father asserted that any hyphenated surname should be 'M–W". The mother agreed that such an outcome had her support.
At the hearing the mother relied on the following evidence:
·Her affidavit sworn and filed 10 August 2001.
·Her affidavit sworn 11 October 2001 and filed 12 October 2001 and her oral testimony.
·Affidavit of B M W sworn 12 November 2001 and filed in court on 15 October 2001 together with his oral testimony.
Short history
The father was born on 15 March 1962. He is 39 years old.
The mother was born on 21 September 1965. She is 36 years old.
The parties were married on 6 October 1990 at W. They did not live together prior to their marriage.
There is one child of their marriage, G L M, who was born on
21 September 1994. G is 7 years old.
The parties separated on 13 June 1996 and a Decree Nisi was ordered on 14 April 1998.
On 1 July 2000 the father remarried. He married W S.
On 1 December 2000 the mother remarried. She married B W.
The father's current circumstances
The father and his wife live at 27 S Street, A. He is a police officer working in the court legal services branch. In addition to a full workload he is undertaking a full-time subject load in his Bachelor of Laws degree. His wife is also studying for a Bachelor of Laws degree. She works ful- time as a deputy principal of a primary school. Ms S has two children by her former marriage. Her 22 year old daughter has married. She and her husband lived with the father and Ms S until approximately six weeks ago. They have now established their own home. Ms S’s 20 year old son still lives with the family, living in the granny flat attached to the property.
Since January 2001 the father has been unable to exercise alternate weekend contact to the child. Rather, contact has been day time contact exercised each second or third week most frequently on a Saturday. Each weekend the father attends the child’s soccer game and spends time with the child usually at the end of the game. He also exercises telephone contact.
The current orders provide for contact each alternate weekend from Friday evening until Sunday evening and for one week during each school holidays. The orders require that the father take leave during any periods of holiday contact. The father has been unable to arrange annual leave during school holidays for the last two or three years.
The mother’s current circumstances
The mother is a police officer. Her husband is a sales manager. They met approximately three years ago. When they met Mr W was a widower. He has two children, Jake aged 9 years and Aaron aged 6 years. The mother and Mr W established a close relationship over a period of some two and a half years during which time G saw Mr W and his sons two or three times a week, including many weekends. The mother and Mr W commenced cohabitation upon their marriage. The mother and G moved into Mr W’s home.
The father and mother were married in a Presbyterian church. After separation, in May 1999, the mother embraced Catholicism and has become a Roman Catholic. The father agreed to a religious annulment of their marriage, which freed the mother to marry Mr W in accordance with the rites of the Roman Catholic church. At the mother's request, the father agreed that the child could also become a Catholic, which he has.
Relevant events
Upon separation the mother and child returned to live with her parents. They lived with the mother’s parents until her remarriage.
The child was one and a half years old at separation. After separation the father exercised contact to the child regularly, which contact ultimately culminated with regular alternate weekend contact starting from 21 September 1998.
The child started preschool in late 1998 and attended preschool throughout 1999. In 2000 he started his formal schooling and was enrolled in kindergarten at St B’s school at C H. St B’s school is attached to the Catholic parish church at C H. J and A attend St B’s school.
At all times the mother has ensured that the child is formally registered by the name “M”. He used "M" for all purposes until about the start of the 2001 school year.
It is common ground between the parties that prior to the mother’s marriage to Mr W, G was known for all purposes as M. There was no challenge by the child to the use of the surname M until after the mother married Mr W. Upon her marriage the mother relinquished the use of "M" and became known as "S W".
Although the mother had changed her surname, neither she nor her husband discussed with the child the ramifications or more correctly lack of ramifications for him of her change of name. Nor were there any discussions by Mr W with J and A about the name that G would use.
In early 2001 G began to refer to himself as “G W” or “one of the W boys”. Neither the mother nor Mr W took any steps to discourage this nor to correct the child or his step-brothers. Some time earlier the child had started using “dad” when speaking to Mr W. Again this has not been discouraged or corrected by the mother or Mr W.
In early February 2001 during a contact visit the child spoke to Ms S. They were sitting on a sofa reading, talking also about school and home. The child said, “Mummy and I have a secret.” Ms S said, “What sort of secret?” The child said, “When I’m at dad’s I have to call B ‘B’ and when I’m at home I call B ‘dad’.” Ms S said, “How do you think dad would feel about this?” The child said, “He would be sad”. The conversation continued and Ms S said, "You have two families and you don’t have to change your name to be part of the family. I don’t have daddy’s last name and J and D didn’t change their name to M after daddy and I were married”. She then said, “Daddy and mummy gave you your name and that’s who you are, you don’t have to change your name or to be the same as the boys to be part of the family”. He said, “I know”. Ms S discussed this conversation with the father.
The father then raised the issue with the child. He had seen toys and soccer balls with initials “G.W”. The conversations with the child were carefully constructed and enabled the child to tell the father that the child wished to be known by the name “W”. During these conversations with the father the child explained his reasons for seeking the change of name. They included:
·To have the same surname as his mother.
·Because teachers at school use W.
·So that he can have the same name as J and A.
The father did not agree to the use of W and in about April 2001 he raised the issue with the mother. The mother confirmed with the father that the child was registered as M at his school, at soccer and basketball. In relation to common usage of W she said, “He’s allowed to call himself that because that’s what he wants to call himself. I want him to feel part of our new family”. The father emphasised that he considered it to be the mother’s responsibility to ensure that the child understood that he was loved and totally incorporated in the W family and would still be so even if he continued to use “M”. The mother did discuss with the child that he was loved and his position in the W family completely secure irrespective of the surname that he used. However, she gave the child no explicit encouragement to maintain his surname and I am satisfied left him with the clear understanding, as far as common usage was concerned, it was his decision whether he used W or M.
In June 2001 G’s school reports issued recording his name as “G W”. The father then attended the child’s school for a parent/teacher night on 29 June 2001. He spoke with the child’s teachers and with the school principal.
Again, the father raised the surname issue with the mother. The father challenged the mother, advised that he had been to the school and that he understood that although the child was formally registered as M he was to be known as W. The mother did not respond to the father. He then continued the conversation and said to her, “It appears you are going to continue this course”. She said, “That’s correct. He feels part of the family”. At that time the father advised the mother that he would initiate proceedings.
The mother denies that she gave the school any instructions that could have allowed the child to become known as W. She conceded that the teachers, child and classmates used the name W. That the school reports issued in June 2001 using W, she asserts, is a mistake. The mother cavilled with the concept that a school report was an official record. I am satisfied that the mother considered her obligation to be that the child is formally registered as M, but that otherwise common usage was effectively at large. I do not accept that the school reports issued in error. Rather, I am satisfied, having regard to the totality of the evidence, that the mother and school colluded to achieve an outcome that enabled the mother and school to comply with their obligation, viz not changing the name of a young child without order or parental consent, while simultaneously allowing the child to take on another name for all apparent purposes. That this is so is reinforced by the fact that the child used W extensively in the classroom.
The father and child continued to have discussions about the surname. The child reinforced with the father on a number of occasions that he wanted to be known as W. During these conversations the child became upset, which upset dissipated as the father explained with clarity the child’s name was M and that his position in the W family was lovingly entrenched.
On 14 July 2001 the child received the “most valuable player” award at soccer. Both parents were at the game. The certificate issued using “M-W”. After the child showed the father his trophy the father asked to see the certificate. The child returned to his mother. He was crying. Clearly he was anxious that his father not see the hyphenated surname. The child asked the mother to accompany him when he returned with the certificate to his father, which she did. The father challenged the mother in relation to the surname and in answer to his challenge she said, “... G in general refers to himself as G W or one of the W boys, but we are trying to include M as well”. The father sought to retain the certificate for the purposes of these proceedings. Properly, the mother withheld the certificate so that the child could enjoy the fruits of his award.
After the proceedings commenced there were a number of instances identified in her affidavit [3] where the child reinforced with the mother his desire to be known by W. The mother was taking a clearer stand with the child and reinforcing with him that his name was M. In spite of her direction the child emphasised his desire to be known as W.
[3] paragraphs 7, 8, 9 and 10
The relevant law
The nature of orders relating to a child's surname was considered recently by the Full Court of the Family Court in Flanagan v Hancock[4]. Although a grant of special leave to appeal to the High Court was given that grant was subsequently revoked. Hence the relevant authority is the Full Court's decision in that case. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a section 68B injunction or a section 65D parenting order, that either directly or indirectly the paramountcy principle is applicable.
[4] (2001) FLC 93-074
When I come to consider the change of name issue I must ensure that the best interests of the child are the guiding principle for determination of the name issue. There are numerous decisions that pre-date the 1995 Family Law Act amendments relating to children's surnames. Foocks v McCarthy[5] contains in my view a useful guide for determination of this issue. In that case Warnick J said:
"There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents".
[5] (1994) FLC92-450
The factors to which the earlier courts most frequently have regard in determining whether there should be any change to a child's surname or for the surname to revert back to that which was previously used include:
a)The short and long-term effects of any change in the child's surname.
b)Any embarrassment likely to be experienced by the child if its name is different from the parent with custody or care and control.
c)Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
d)The effect of any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
e)The effect on frequent or random changes of name.
f)The contact that the non-custodial parent has had and is likely to have in the future with the child.
g)The degree of identification that the child or children have with their non-custodial parent.
h)The degree of identification which the child or children have with the parent with whom they live.
Determining the child’s surname
The first matter to be addressed is the family name by which the child should be known. The father’s application seeks orders pursuant to section 68B. The orders he seeks are injunctive and address the mechanism by which any decision concerning the child’s name would be given effect to. In her response the mother seeks a parenting order that will enable the child to adopt a hyphenated surname. The orders sought by the mother are clearly orders pursuant to section 65D of the Act. As a consequence those factors identified in section 68F(2), insofar as they are relevant apply. The decision taken ultimately must be one that ensures the best interests of the child are the paramount consideration[6].
[6] Section 65E
It is agreed between the parties that the child wishes to use his step-father’s surname. This is a desire that has developed during 2001 and is strongly held by him. The mother submits that the child’s wishes reflect his sense of identity and strong connection in the family she has formed with her husband. Accordingly, she submits that the child’s wishes should be given effect to in part. The mother proposes that the child use a hyphenated surname maintaining an obvious connection to his father and also with the family that he lives with. This does not accord with the child’s wishes, but it is clearly more in tune with them than the father’s proposals.
Whilst readily acknowledging the strengths of the child’s wishes, the father submits that the court should carefully analyse the manner in which those wishes have been formed and as a consequence should not give effect to them. Relevantly he referred to R & R: Children’s wishes[7] and submitted that in that authority the court finds guidance about the manner in which a child’s wishes should be considered. Although that case deals with a residence matter, the decision is relevant to any proceeding in which section 68F(2) applies. Thus I must ensure that “what is required is that they be given appropriate and careful consideration and not simply be treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial judge, it is apparent that good reason should be shown for doing so.”[8]
[7] (2000) FLC93-3000
[8] at Page 87 1000, 71
For six and a half of his seven years, the child has comfortably used his father’s surname. His surname has materially contributed to his identity, both the child's own perceptions of himself and societies understanding of who he is. He is an intelligent child and the evidence satisfies me that he functions at an age appropriate level of maturity. His response to his mother’s marriage to Mr W was a joyful one. Because the mother and Mr W took their time in establishing their relationship with one another’s children and the children’s relationship with each other the transition into one household has been managed skilfully and happily for their children.
Unfortunately, they did not anticipate that the child would question the continuation of his surname. Consequently he was provided with little or inadequate guidance by them once he raised the issue of his surname and started to explore changing his name. It was only in April 2001, some three months after the change of name had started to be given effect to, that the mother confirmed with the child that his place in the family was secure irrespective of his surname. When giving evidence the mother repeatedly referred to her family as “normal” and intimated that to be a “normal family” all members ideally share the same surname. I am satisfied that this is the belief that she and Mr W share. This is the climate within which the child’s wishes as to his surname have formed. Given the lack of parental guidance that the child has received in relation to his surname from the mother, his age and level of maturity and the climate within which he lives I am not satisfied that the child has the capacity to maturely evaluate relevant matters implicit in a decision to change his surname. As will become apparent from these reasons, there are other matters that are more compelling in terms of the child’s best interests than his wishes to be known as W.
The mother is the child’s prime caregiver. He has lived with her all his life and she is the person to whom he has his deepest attachment. He has a loving relationship with his father and is closely attached to him. He is very attached to Mr W and to his step-brothers. The success of all these relationships contributes enormously to the child’s sense of wellbeing and happiness. The child is very clear about his biological connection to the father. He is absolutely clear that Mr W is his step-father and there is no confusion in the child’s mind in his relationship with these two men. Changing or not changing the child’s surname will not enhance nor harm the child’s relationship with the step-father. Although the child's relationship with the father has strengthened this year, there is a risk that this relationship could be unintentionally undermined if the child's name is changed. This is because the child will publicly relinquish the father's name in favour of a composite surname. An important measure of their connection will be diminished. For reasons which appear later in this judgment I am satisfied that a hyphenated surname will almost inevitably result in the loss of "M" from the child's name.
An important issue in these proceedings is the effect of changing or not changing the child’s surname. Will this be confusing or embarrassing for him? Currently his surname is confusing. This is because from the child’s perspective his situation is ambiguous. With the tacit approval of his mother and step-father earlier this year he adopted by common usage the name W. He had been known at his school the previous year as M. Giving effect to the name change must have involved the child in many explanations with classmates, to teachers, people at soccer and in his general social milieu. I do not accept that the school would have cooperated with the apparent change on the child's instruction alone. Although the mother says that this is so, I reject her evidence as fanciful. Thus the child was required to manage formal records referring to him as M, records issuing with the hyphenated surname and records issuing in W. At school assembly he was called M whilst in class called W. Because of the different names that the child has used during 2001 the child has been confused and on occasion embarrassed. Because the change of surname has been surrounded by confusion, not fully given effect to and is comparatively recent giving effect to an order that ensures that the child reverts to his formal name will be momentarily embarrassing, but not confusing. Other than for some members of his soccer team, this child’s family, friends, church, school have all known him to use M for six and a half of his seven years. This will minimise any embarrassment and ensure that it is but momentary. The mother is a demonstrably competent parent who is committed to her sons' welfare. She has the capacity, intellectually and emotionally, to equip the child to deal with any transitional embarrassment.
Returning to the exclusive use of M could not be considered random. Nor indeed would taking up W. A hyphenated formulation of his parent’s surnames will result in further change. Throughout 2001 the mother has allowed the child to relinquish his surname without the father’s consent and more recently in spite of his opposition. Although on the face if it this outcome represents a logical compromise, it is only a compromise if it is given effect to in the long term. There is a significant risk that "M" will be dropped from the child's name in the long term. Thus the child's name will in all likelihood change again. This will result in further litigation and is unnecessarily confusing.
Both parties have a strong commitment to the child. So does Mr W. The mother and Mr W meet the child’s needs on a daily basis and both are intimately involved in his care. Mr W has readily accepted and met his responsibilities to the child as a step-parent. The father’s study and work commitments are major impediments to the time he makes available for contact with the child. Nonetheless he sees the child every week and is deeply committed to his welfare. He takes a responsible attitude to his obligations as a parent.
The father submits, and I accept, that this child’s identity is intrinsically linked with the name he has used, at the behest of his parents, virtually all of his life. It acknowledges the child’s biological connection to the father and reflects an integral part of the child’s life experiences. The child does not have a biological connection to Mr W. Whilst his emotional attachment, as is J's and A's is a deep one, that connection is not undermined by the child being known exclusively as M. The child's relationship with the mother is profoundly strong. It is pivotal to the child's welfare. Is it harmed or undermined by the prospect that will carry different names. Upon her marriage the mother chose to change her surname. Her decision to do so is logical. When she did so she understood that her son would continue to carry his father’s name. I am satisfied that she evaluated their relationship as one that is so strong that carrying different surnames would not interfere with it at all. The relationship is strong and it will not be harmed if they carry different names.
Before a child’s surname is changed the possible change should be the subject of careful consideration by the child’s parents, particularly where the child is young. The child should have the benefit of parental guidance whilst the child is formulating its response to a possible change. This child was deprived of that guidance. Because he has always been so comfortable using M and until comparatively recently always regarded himself as G M, I am satisfied with careful guidance his declared identity could have continued without challenge by him.
Conclusion
I am satisfied that it is in the child's best interest that he should continue to exclusively use his father’s surname. This is the name used for the overwhelming majority of the child's life. The name was chosen by the child's parents and until recently marked his identity. Because the order does not give effect to his wishes, the child will be unhappy with the outcome. His unhappiness will be transitional because of a number of important factors. These include the mother’s capacity to equip the child to cope with his disappointment and to advise school, sports clubs and friends of the court’s decision. The child will revert to the exclusive use of a surname that is the name he has been known by at his school, church, sports clubs and in his social milieu. In a society that comprises many blended families, members of who frequently carry different surnames, that the child carries a different surname than the other members of the family he lives with will not be cause for embarrassment.
The father carries significant responsibility in minimising the child's unhappiness with the court’s decision. Ideally he and the mother should discuss how the court’s decision is to be communicated to their son and by whom. If they are unable to explain it together, they must ensure that the explanation each gives is consistent and does not criticise the other parent. These parties have agreed on many complex parenting issues since they separated. During submissions the father readily endorsed the mother's capacity and commitment as a parent. He made the same observations about her husband. The mother has supported in most respects the father’s relationship with the child. They should draw on this goodwill and commitment to their son and jointly take responsibility for implementing the court’s decision.
Injunction for the welfare of the child
Not all of the injunctive orders proposed by the father are necessary. The orders I make are orders that will give effect to the primary order that the child be known exclusively as “M”. The injunctive orders merely reinforce the mother’s obligation to ensure that that order is given effect to. She must immediately advise the school and other places that the child attends of the courts decision, so that this task is not left to the child. Thereafter she must ensure that others do not undermine the effect of the orders. That will be her responsibility. This is in the best interests of the child. It cannot be left to him alone to undo that which has taken place this year.
For these reasons I make the orders identified at the commencement of this judgment.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 18 October 2001
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