Mahoub and Ferrante

[2013] FamCA 905

FAMILY COURT OF AUSTRALIA

MAHOUB & FERRANTE [2013] FamCA 905

FAMILY LAW – CHILDREN – Child related proceedings – Change of name – Best interests of the child – International travel –  Where the mother has previously stated an intention to take the child to a country that is not a signatory to the Hague Convention.

Family Law Act 1975 (Cth)
Births, Deaths and Marriages Registration Act 2003 (Qld) s 17

Flanagan v Handcock (2001) FLC 93-074

APPLICANT: Mr Mahoub

RESPONDENT: Ms Ferrante

INDEPENDENT CHILDREN’S LAWYER: Julie Harrington

FILE NUMBER: BRC 4925 of 2011

DATE DELIVERED: 22 November 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 2, 3 & 4 April and
20 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Ms McDiarmid (on 3, 4 & 5 April 2013) and
Ms Ferrante in Person on 20 November 2013

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

(on 2, 3 & 4 April 2013)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Sayers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harrington Family Lawyers

Orders

In addition to the Orders made on 20 November 2013, it is further ordered:

1. That both the Mother and the Father forthwith join in making application, using the Queensland Government’s prescribed Form 4C pursuant to the Births, Deaths and Marriages Registration Act 2003 (Qld), to the Registrar of Births, Deaths and Marriages, Queensland, to register a change of the name of the child, B Mahoub born …, in the change of name register so as to include as a third “first name” the name “Ferrante” after his existing first name “B”.

2. That each of the Mother and the Father is restrained and an injunction is issued restraining each of them from causing the child to be registered, enrolled, listed or known anywhere by a family name (or surname) other than “Mahoub” and the Mother shall forthwith take all steps and do all things necessary to have the child’s family name (or surname) correctly registered, enrolled, listed or known as “Mahoub” where she may have previously caused it to be registered, enrolled, listed or known otherwise.

3. That each of the Mother and the Father is restrained and an injunction is issued restraining each of them from making application for a passport to issue for the child by any Government of any country without the prior written agreement of the other parent.

4. (a)      That the Mother and the Father and their servants and agents are restrained and an injunction is issued restraining each of them from removing or attempting to remove or causing or permitting the removal of the said child, B Ferrante Mahoub born … 2011 (male) from the Commonwealth of Australia.

   (b)That B Ferrante Mahoub born … 2011 is hereby restrained from leaving the Commonwealth of Australia.

5. That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child, B Ferrante Mahoub born … 2011 (male), on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia for the purpose of preventing removal of the child from Australia in breach of these orders and maintain the child on the Airport Watch List and this order ceases to have effect on 22 April 2025 unless discharged by earlier order.

6. That upon expiration of the period referred to in Order 5 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.

7. That the Independent Children’s Lawyer is discharged.

IT IS NOTED

(a)If after the expiration of the period set out in Order 5 above any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4925 of 2011

Mr Mahoub

Applicant

And

Ms Ferrante

Respondent

REASONS FOR JUDGMENT

1. Two days ago, on 20 November 2013, I made orders in contested parenting orders proceedings between the Mother and the Father in this matter. Those orders were made with the consent of the Mother and the Father and the Independent Children’s Lawyer. They finalised all but two matters that were in dispute between the parties.

2. Those orders principally provided for the parties’ little boy, who is now two and a half years of age, to live with the Mother as he has been since his parents’ separation when he was just an infant, and to spend time in his father’s care on a regular basis –  increasing as he gets older. 

3. Those orders, consented to by the Mother, were made on the fourth day of the trial of the matter where the first three days had taken place in April of this year. The dispute that the parties settled was not just about what time the little boy spends with his father but was also about whether the Mother could take the little boy back to Sri Lanka, the country of origin of both the Mother and the Father,  to live with her there permanently. In settling the dispute, the Mother compromised that part of her case.

4. After I made the orders that the parties asked the Court to make, I heard submissions from the parties in respect of the two outstanding issues in dispute and then reserved my decision on those matters.

The Two Matters to be Determined

1. The first of the two matters to be decided relates to the child’s name. The child’s name is B Mahoub. Mahoub, is the Father’s family name. That is how the boy’s name was registered after his birth with the Queensland Registrar of Births, Deaths and Marriages.

2. The Mother’s family name is Ferrante. She seeks an order permitting the change of the child’s family name (or Surname as it is described on the Queensland Government Form 4C used for Change of Name Applications for children) to a hyphenated combination of her family name and the boy’s current family name, so that it becomes  “Ferrante-Mahoub”.

3. The Father opposes such a change. However, he has indicated that he would agree to the Mother’s family name Ferrante being added as another first name for the child after B.

4. In her Amended Response to the Father’s Initiating Application that she filed on 31 July 2012, the Mother sought an order that she be permitted to “change the child’s name formally to B Ferrante Mahoub.

5. The evidence the Wife deposed to in her affidavit of evidence in chief filed 18 September 2012 in support of the application for name change as it then stood was as follows:

   180.I seek that the baby’s name be changed by the addition of my surname [Ferrante] as the second last name, before the surname of [Mahoub].

   181. This is so that there is some connection between my surname of [Ferrante] and my baby’s name. I propose to call [B] by name using either the hyphenated name [Ferrante-Mahoub] or just enrol him with his entire name of [B Ferrante Mahoub].

6. In the Mother’s affidavit of evidence filed 2 April 2013 the Mother said:

   11.I am seeking orders for the surname [Ferrante] to be one of [B]’s surname. This way there is a link between him and I as far as the names are concerned. This is of symbolic importance to me.

7. The Mother attached a draft of the final orders she was seeking to that later affidavit and in it she clearly changed the name change she was seeking to the hyphenation of the two family names, Ferrante and Mahoub.

8. An order such as that sought by the Mother can, no doubt, be made by this Court. Such an order is a parenting order and, like all parenting orders, it must be made having regard to the best interests of the child rather than the rights, expectations and wishes of the parents. Various matters to be considered and evaluated have emerged out of past decisions of the Court.[1] The child should not be subjected unnecessarily to any confusion of identity. The short and long term effects of any change of name must be considered. The advantages, both in the short and long term which may accrue to the child if the name remains as it is now, must be considered. The present and ongoing involvement of both parents in the life of the child must be considered. Due consideration must also be given to the fact of the child’s current name registration and any earlier agreement that evidenced. Of course, that list is by no means exclusive of any other relevant considerations.

   [1]     Flanagan v Handcock (2001) FLC 93-074 in which the following cases were reviewed: George and Radford (1976) FLC 90-060; Chapman and Palmer (1978) FLC 90-510; Beach and Stemmler (1979) FLC 90-692; Kelley and Kelley (1981) FLC 91-002; Skrabl and Leach (1989) FLC 92-016 and Mahoney and McKenzie (1993) FLC 92-408.

9. As I understand the evidence in this case, the child’s name was decided upon by the parents at around the time of his birth and it was registered by them as it currently reads. The parties were in agreement, in their submissions, that as in Australia (and so many other countries around the world) the traditional, cultural practice in Sri Lanka in respect of the naming children is to give the child the family name of its father. The Mother’s position now reflects a change of preference by her following the breakdown of her relationship with her child’s father.

10. The child is only two and a half years old. There is no evidence that the child is currently confused about his identity or in some way embarrassed about his family name. I expect that any change made to the child’s name at this immediate point in his life would not cause him very much confusion in the short or long term. I am, however, concerned, having regard to all of the evidence that I considered in this case, that if the child is given a family name (or surname) that is a hyphenation of the Mother’s and the Father’s family names that the Mother’s current level of commitment to the value of the ongoing relationship between the child and the Father might just prompt her to use just her own family name in the future, dropping the Father’s family name. I consider that at the moment there is a risk of that happening in the future. If that happened, I consider that it could cause unnecessary confusion for the child.

11. The child is too young to express any preference about the matter. Of course, as he grows up he may do that and further consideration can always be given to the matter by the parents co-operatively or by this Court on application by one of the parents. When the child reaches adulthood what name he wishes to be known by will be a matter for him.

12. I acknowledge that understanding their identity is important for children as they grow. In circumstances where a child’s parents have separated at a point in the child’s life that the child will not even remember as it grows into maturity it is quite easy to understand a parent wishing to have her name included as part of the child’s name as a point of reference for the child in determining and understanding its identity as it grows. However, where the parents themselves agreed on the child’s name when it was born and caused the registration of that child’s family name to be the family name of one only of the parents and the child is going to continue to have a meaningful relationship with that parent into the future, without more, the simple desire of the other parent, after separation, to have the child’s family name changed to include his or her own family name is insufficient to persuade me that it is in the child’s best interests for such a change.

13. However, it is not unheard of for children to be given, as one of their first names, a name that is the family name of the other parent whose family name the child does not bear as its own family name. That way, as the child grows, it clearly has a point of reference to both parents’ families of origin in its name to assist it in determining and understanding its identity. In circumstances such as present in this case, I am satisfied that such a change to the little boy’s name at this point in his life would be in his best interests. Although the Father does not positively advocate for such a change, he is supportive of it. Accordingly, I am satisfied that such a change should be ordered. Although not going as far as the Mother proposed, I am satisfied that such a change will give the child the link to the Mother that the Mother described as “symbolic”. The child will grow learning, as he comes to learn his entire name, the link with his mother’s family that his name gives him, as well as to his father’s family. He will though be spared confusion and troubling issues that might arise out of him having a double family name that is unsupported by both parents.

14. Pursuant to s 17 of the Births, Deaths and Marriages Registration Act 2003 (Qld), where a child’s birth was registered in Queensland the child’s parents may apply, using the approved Form 4C, to register a change of the child’s name in the change of name register. In this case, both parents must apply for that to happen as the circumstances that allow only one parent to apply do not prevail. For certainty, I will order both parents to join in making such an application for the child’s name to be changed so as to include as a third “first name” the name “Ferrante” after the first name “B”. I will also order that each parent is restrained from causing the child to be registered, enrolled, listed or known anywhere by a family name (surname) other than “Mahoub”.

15. The second issue that remained in dispute between the parties in this case was whether or not the Mother should be able to take the child with her out of the country to visit Sri Lanka. The Mother, although compromising her application to be able to take the child to live with her permanently in Sri Lanka, nevertheless pressed for orders that she be permitted to take him with her to visit Sri Lanka from time to time.

16. The Mother’s application in this respect was opposed by the Father and also by the ICL.

17. The Mother submits that all of her extended family of origin live in Sri Lanka and that her little boy has cousins, uncles, aunts and grandparents who he should be permitted to visit so that he may get to know them and form relationships with them. The Mother submits that she is making a big sacrifice in compromising her application to take him to live in Sri Lanka and that holiday time there should at least be allowed.

18. I accept that in normal circumstances allowing a child to be able to spend time with members of both of his parents’ extended families, so as to be able to develop relationships with them, would be in its best interests. However, the facts of this case cause me to take a far more cautious approach.

19. The Mother has no other family members in Australia. She has no property interests in this country. She does not have a relationship with a new partner in this country. Until 20 November, 2013 she was strongly pressing her application to be permitted to take the child to live with her in Sri Lanka. I am satisfied that she has no strong ties to this country that would draw her back from Sri Lanka once she was there with the child even if she went there with the stated intention of just going for a visit and then returning to Australia.

20. Sri Lanka is a signatory to the International Convention that family lawyers know as the Hague Convention. More particularly it is described as the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Again, in normal circumstances, the Court and a parent in the Father’s position ought to have comfort that a decision by the Mother to not return the child to Australia from Sri Lanka once there on an intended short-term visit would be met with decisive action by the Government of that country to give effect to its obligations under that Convention to return the child to Australia.

21. However, in this case, the evidence that I read, heard and considered caused me to have very grave concerns about the Mother’s understanding of and commitment to the importance of the child having a meaningful relationship with his father. In fact, I was very concerned that the Mother was not committed at all to promoting that relationship.

22. There was evidence before me that shortly after the parties separated the Mother informed the Father of her unilateral decision to take the child back to Sri Lanka and then, after a short stay there, to take him on to live with her in Dubai in the United Arab Emirates, where the Mother had already lived and worked for a number of years for a major Asian based bank, before she married the Father. At the same time, she had told him that she might, alternatively, take him to live in the UK.

23. It is the Mother’s statement to the Father of her unilateral intention to take the child to live with her in Dubai that creates for the Court the most concern, in the circumstances, for the future of the child’s relationship with his father if the Mother is now allowed to take the child to visit Sri Lanka. The UAE is not a signatory to the Hague Convention referred to above. If the Mother took the child to visit Sri Lanka and then simply travelled from there to Dubai, taking up residence again, there would be no guarantee that the child would ever see the Father again, let alone spend any time with him.

24. Sri Lanka, whilst a signatory to the said Hague Convention, is not a signatory to the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. As such, I am not satisfied that steps could be taken by the Court or the Father to ensure that the child, once taken to Sri Lanka for a holiday visit, could not be taken from that country on to another country such as the UAE.

25. The Mother informs the Court that she would come back to Australia. She cannot, however, even offer a cash bond as is sometimes ordered to be put in place in such cases. The evidence she has given to the Court about the statement of intention she gave the Father in the period after separation, along with all the evidence that persuaded me that her current level of commitment to the fostering and facilitation of the child’s relationship with the Father, the evidence that the maternal grandmother gave about the Mother’s intentions post-separation and her understanding of those intentions (which evidence I found troublingly inconsistent and, with respect, not able to be believed) all combines to cause me to be satisfied, at this particular time, that there is indeed an unacceptable risk of the child not being returned to Australia if the Mother is permitted to take him with her for visits to Sri Lanka.

26. As I said during the parties’ submissions on this point, I am optimistic that there will be a time in the future when the Mother and the Father have re-established trust between themselves such that would see the Father permit the Mother to take the child for visits to Sri Lanka. The Mother can look forward to that day and should continue to work hard towards rebuilding the trust that will see it come sooner rather than later. In the meantime, I will continue to restrain the Mother and the Father from taking the child from the country other than by agreement between them or further Court order. I will continue to restrain each of them from applying for any passport for the child from any country other than with the written agreement of the other parent.

1. I make the orders that are set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 November 2013.

Associate: 

Date:  22 November 2013