Maraichers & Tesson

[2009] FamCA 780

FAMILY COURT OF AUSTRALIA

MARAICHERS & TESSON [2009] FamCA 780

FAMILY LAW – CHILDREN – Magellan – best interests of child – change to surname of child
FAMILY LAW – CHILDREN – Magellan – best interests of child – consumption of alcohol whilst child in care of a parent

Family Law Act 1975 (Cth) ss60B(1), 60CC, 60CC(1), 60CC(2), 60CC(3)

Beach & Stemmler (1979) FLC 90-692
Chapman & Palmer (1978) FLC 9510
Flanagan & Handcock (2001) FLC 93-074
Fooks and McCarthy (1994) FLC 92-450

FATHER: Mr Maraichers

MOTHER: Ms Tesson

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8704 of 2008

DATE DELIVERED: 12 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 August, 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Ms. Cranenburgh

SOLICITOR FOR THE FATHER: Fitzroy Legal Service

COUNSEL FOR THE MOTHER: Ms. Benjamin

SOLICITOR FOR THE MOTHER: Marshalls & Dent

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grigg

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

PARENTING ORDERS BY CONSENT

1. That all previous parenting orders in relation to the children A born … February, 1999 and C born … April, 2002 (“the children”) be discharged. 

2. That the mother and father have equal shared parental responsibility for the children.

3. That the children live with the mother. 

4. That the father spend time with the children as follows until 19 December, 2009 :

   (a)each alternate weekend from 8:00 am. on Saturday until 7:00 pm. on Sunday, to commence the first weekend following the making of these orders;  and

   (b)from the conclusion of school each Tuesday until 6:00 pm. 

5. That the time spent provisions referred to in paragraph (4)(a) and (4)(b) hereof shall take place on the condition that the children are permitted to continue with the sporting interests and that the father shall be present during the said sporting commitments. 

6. That with respect to the time spent pursuant to paragraph (4)(b) hereof, the father shall collect the children from school on a Tuesday afternoon and spend time with them in the local area of K and return them to the mother’s home to arrive at 6:00 pm. 

7. That from 30 January, 2010, provided that the father has been consistently compliant with the time spent orders, and has provided clean blood test screens for illicit drugs consistently in compliance with the orders, the father shall spend time with the children as follows:

   (a)each alternate weekend from the conclusion of school on Friday to 7:00 pm. on Sunday;  and

   (b)from the conclusion of school each Tuesday until 6:00 pm. 

8. That from the date of these orders to 30 January, 2010, the father provide a random supervised blood test for the detection of illicit drugs as requested by the independent children’s lawyer.

9. That the mother and father do all acts and things and sign all necessary documents to initiate contact with the children’s schools and otherwise receive reports, newsletters, details of sporting events, camps, speech nights and any other information that would usually be provided to parents, from time to time. 

10. That the father otherwise spend time with the children as agreed between the parties. 

11. That on occasions when time does not commence or conclude at school, the father is to collect the children at the commencement of time in K (at the residence of the mother) and the mother is to collect the children at the conclusion of time in S (at the residence of the father) unless otherwise specifically stated in these orders or by written agreement. 

12. That the father spend time with the children each Greek Easter from 12:00 noon on Saturday to 6:30 pm. on Sunday. 

13. That for the September 2009 school holidays, the father spend time with the children from 12:00 noon on Friday 25 September, 2009 to 6:30 pm. on Sunday 27 September, 2009, and from Wednesday 30 September, 2009 at 10:00 am. to Friday 2 October, 2009 at 3:00 pm. 

14. That the father spend time with the children during the long summer school vacation in 2009/2010 on each alternate weekend from Friday at 4:00 pm. to Sunday at 7:00 pm., and each alternate Wednesday immediately following the weekend the father has spent time with the children from 4:00 pm. Wednesday to 4:00 pm. on Friday, save that the father’s time be suspended from 8:00 am. on 19 January, 2010 to 6:00 pm. on 25 January, 2010. 

15. That for first term 2010 holidays (27 March to 11 April, 2010), the father spend time with the children from Friday at 4:00 pm. to Monday at 4:00 pm. on the second weekend of the holidays, and from the immediately following Wednesday at 4:00 pm. to Friday at 4:00 pm. 

16. That the father spend time with the children in term 2 holidays of 2010 (26 June to 11 July) from the conclusion of school on Friday 25 June, 2010 to 4:00 pm. Tuesday 29 June, 2010, and from 4:00 pm. the immediately following Friday, 2 July, 2010 to 4:00 pm. on Sunday, 4 July, 2010. 

17. That commencing in the third term holidays in 2010, (18 September to 3 October) that the father spend time with the children for half of all school term holidays and in absence of agreement for the first half of the first and third term school holidays, and for the second half in the second term school holidays. 

18. That while denying the necessity for same, the father and mother be restrained from smoking marijuana or taking or using any illicit drug. 

IT IS FURTHER ORDERED

1. That without admitting the necessity thereof the father be restrained from consuming alcohol to excess or being under the influence of alcohol at any time that he has care of the children. 

IT IS FURTHER ORDERED BY CONSENT

1. That the father shall ensure that the children have their own beds and sleep in a separate bedroom to their father during all periods of time spent. 

2. That the father ensure he is appropriately clothed at all times that the children are in his care. 

3. That the father ensure the child A has privacy for bathing, showering, toileting and changing her clothes. 

4. That unless required or requested to assist by the child C, the father ensure C has privacy in bathing, showering, toileting and changing his clothes as is appropriate for his age. 

5. That the father and mother, their servants and agents be and are hereby restrained from the following :

   (a)denigrating or criticizing the other parent or any member of that parent’s family;

   (b)discussing or raising with A or C any court proceedings involving the father and mother;  and

   (c)talking with A or C about any future parenting arrangements including but not limited to where the children are to live or the amount of time they spend with either parent. 

6. That the father be at liberty to communicate with the children by telephone on a Thursday evening at 6:00 pm. 

7. That in the event A or C reasonably request to telephone or otherwise electronically communicate with the parent whom they are not with, such reasonable request will be facilitated by the parent who has the care of the children at the relevant time. 

8. That in the event of a medical emergency or accident in relation to either of A or C, the parent in whose care the child/children is/are at the time is to notify the other parent as soon as practicable immediately after the commencement of the illness or occurrence of the accident and is to authorise any medical practitioners or hospital staff to discuss the medical needs of the child/children with the other parent.

9. That the father spend time with the children Christmas Day 2009 from 1:00 pm. to 6:00 pm. Boxing Day 2009, subject to the father continuing to reside with the paternal grandmother. 

10. That the father spend time with the children from 4:00 pm. Christmas Eve 2010 to 2:30 pm. Christmas Day 2010 and each alternate year thereafter. 

11. That the father spend time with the children each alternate Christmas Day from 2:30 pm. to 6:00 pm. Boxing Day commencing 2011 and each alternate year thereafter.  

12. That if Mothers’ Day falls during a period usually spent with the father in accordance with these orders, that the time spent period be suspended from 7:00 pm. on the Saturday immediately preceding Mothers’ Day. 

13. That in the event Fathers’ Day falls during a period when the father would not usually spend time with the children, that they spend time with the father from 7:00 pm. on the Saturday evening immediately preceding Fathers’ Day to 7:00 pm. on Fathers’ Day. 

14. That in the event either of A or C’s birthday fall on a school day where the father would not otherwise be spending time with the children in accordance with these orders, that they spend time with the father from the conclusion of school until 6:00 pm., with the father to collect them from school and return them to the mother’s residence. 

15. That in the event A or C’s birthdays fall on a Friday during school term, where the father would usually collect them from school and spend the weekend with them, such time to commence from 6:00 pm. from the mother’s residence unless otherwise agreed. 

16. That in the event that A or C’s birthdays fall on a non-school day that the children would usually be spending time with the father in accordance with these orders, such time is suspended for a period of four hours over a meal time unless otherwise agreed and, failing agreement, from 12:00 noon to 4:00 pm. 

17. That in the event A or C’s birthdays fall on a non-school day where the children would not usually be spending time with the father in accordance with these orders, that the father spend time with them for a period of four hours over a meal time and, failing agreement, from 12:00 noon to 4:00 pm. 

18. That the parties shall ensure at all times that when transporting the children in a motor vehicle, that it will be in a road-worthy condition fitted with age appropriate child restraints, and the driver hold a current driving licence. 

19. That in the event the drug screens the father provides show a positive result, all time spent periods shall be supervised by a person nominated by the mother and agreed between the parties, or by a professional child supervision service or children’s contact centre nominated by the father, until the father provides a clean supervised blood test on two occasions (not less than 14 days and not more than 21 days apart). 

20. That in the event paragraph (38) hereof is applicable, the father continue to provide clean drug screens for a period of six months, not more than 21 days apart unless otherwise agreed. 

21. That the order for the appointment of the independent children’s lawyer be discharged as from 30 January, 2010. 

22. That all extant applications be otherwise dismissed. 

23. That these applications be removed from the List of matters awaiting finalisation.

24. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

25. That the reasons for judgment this day be transcribed and copies made available to the parties. 

26. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

A.The father consents to the orders in paragraphs (21) to (23) hereof, without admitting the necessity for same.

CHILDREN’S SURNAME ORDERS

1. That the mother and the father are hereby restrained from using any name other than A MARAICHERS-TESSON for the female child of the parties born … February, 1999 named in the birth registration as A MARAICHERS. 

2. That the mother and the father are hereby restrained from using any name other than C MARAICHERS-TESSON for the male child of the parties born … April, 2002 named in the birth registration C MARAICHERS 

3. That the mother and the father must ensure that the child A MARAICHERS-TESSON uses only that name. 

4. That the mother and the father must ensure that the child C MARAICHERS-TESSON uses only that name.  

5. That each of the father and mother must forthwith do all acts and execute all documents to apply for the Registrar of Births Deaths and Marriages for the State of Victoria to amend the registration of the female child’s birth to include the new name A MARAICHERS-TESSON.

6. That each of the father and mother must forthwith do all acts and execute all documents to apply for the Registrar of Births Deaths and Marriages for the State of Victoria to amend the registration of the male child’s birth to include the new name C MARAICHERS-TESSON.

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym  Maraichers and Tesson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8704 of 2008

MR MARAICHERS

Father

And

MS TESSON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties have been engaged for some time in litigation about their children A, aged ten, and C, aged seven.  Their applications were listed for trial this week.  They have now reached agreement about a number of parenting orders; those, and the parental cooperation underlying them, will be of inestimable value to the children.  It is not unusual in such circumstances that there is a stumbling block, an aspect on which parties cannot compromise.  In this case, the parties are not able to agree on two issues: the father’s consumption of alcohol during times the children are with him and the children’s surnames. I will deal with each issue in turn.

Legal Principles

1. The provisions in the Family Law Act 1975 (“the Act”) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC. 

Orders by consent

1. I am satisfied that the orders which the parties seek to have made by consent are in the best interests of the children. They provide for equal shared parental responsibility, and for the children to spend time with the father on each alternate weekend from 8 am. on Saturday morning until 7 pm. on Sunday evening, and from the conclusion of school each Tuesday until 6 pm.  From 30 January 2010, there will be an extension of that time.

2. It is further agreed that until 30 January 2010 the father is to provide random supervised blood tests for the detection of illicit drugs, as requested by the independent children’s lawyer (“ICL”).  Both parties have relied on affidavits which raise allegations of excessive drug use.  That has been a contested issue in the proceedings.  The family report of the family consultant, Ms B, of 30 June 2009, recommended that orders revert to supervised day contact only, should there be any further allegations of inappropriate sexualised behaviour (a matter I do not now need to consider) or evidence of ongoing drug or excessive alcohol use. 

Injunction regarding alcohol use

1. Without admitting the necessity for it, the father seeks an order that he be restrained from consuming alcohol to excess or being under the influence of alcohol at any time he has the care of the children.  The mother seeks a blanket prohibition; that is, that the father be restrained from consuming alcohol or being under the influence of alcohol at any time he has the care of the children. As orders of the court are enforceable until children turn 18, the prohibition she seeks would remain in force for some eleven years. 

2. There is little trust between the parents, although they have moved a long way towards acting cooperatively in their children’s best interests.  Essentially, the mother’s position is this: if there is no opportunity for a first drink, there is no opportunity to be adversely affected by alcohol.  The father’s submission is that this would be a significant and unwarranted restriction on his freedom. He does not intend to drink when the children are with him but an order in the terms sought by the mother would not allow him to have half a glass of champagne to celebrate an achievement of a late teenage child. 

3. The court must balance the perceived risk to the children.  I take into account the significant allegations made throughout the proceedings, and the parties’ capacity to focus on the children’s best interests and seek many orders by consent.  I place weight on Ms B’s evidence, which cautioned against excessive alcohol use.  Hers was not a counsel of perfection; rather, she expressed an opinion that excessive drinking could pose a risk of sufficient magnitude to warrant supervision.

4. I propose to make the order in the terms sought by the father, being satisfied that is in the best interests of the children.

Children’s surname

1. The final matter for determination is the surname by which the children are to be known.  The family report of Ms B, released on 30 June 2009, recommended that a hyphenated surname be used.  On 15 July 2009, a fortnight later, the mother filed an amended initiating application; at paragraphs 31 to 34 of the final orders sought, she sought to be authorised to change the children’s surnames to, and the parties be restrained from using any surname for the children other than, the surname Tesson-Maraichers. 

2. That application is opposed by the father who seeks that the children retain the surname with which they were registered at birth, which is his surname.

3. The ICL supports the adoption of the hyphenated surname Maraichers-Tesson.  Having heard that submission, the mother would not oppose that hyphenation, in lieu of Tesson-Maraichers.

Evidence

1. I will briefly summarise the evidence relevant to the issue to be determined. 

2. The mother relied on affidavits sworn by her on 22 September 2008, 28 November 2008, 14 April 2009, 22 April 2009 and 23 July 2009.  The father relied on affidavits sworn by him on 10 November 2008, 17 April 2009 and 14 July 2009 and on an affidavit sworn by his mother on 16 January 2007. 

3. Before the court, and relied on by the ICL and each of the parties in certain respects, were two reports by Dr N dated 10 March 2009 (one in respect of each of the parents), the family report of Ms B dated 30 June 2009, an addendum to the family report dated 5 August 2009 and a report from the Department of Human Services dated 15 January 2009.  In addition, one document was tendered by the father in the course of proceedings today which confirms his evidence of the mother using his surname when purchasing white goods, and arranging delivery, prior to separation.  

4. The mother was cross-examined about paragraphs 51 to 62 of her trial affidavit sworn 23 July 2009, which dealt with her application to change the children’s surname.

5. No one sought to cross-examine the father.  The parts of his affidavits which deal with relevant matters are more diversely spread.  I take into particular account those parts which reflect the importance to him of his Greek heritage, his evidence of the mother’s alleged disdain and lack of support for that Greek heritage and his evidence of the mother’s alleged lack of support for his relationship with the children and failure to facilitate that relationship.  I also take into account her denials of a number of matters put to her by counsel for the father.

1. In Flanagan & Handcock (2001) FLC 93-074, the Full Court considered an appeal against an order of the trial judge dismissing the father’s application for an injunction restraining the mother from using her surname for the children. At that time the appeal raised the question of whether a grant of an injunction, under then Division 9 of the Family Law Act 1975, was governed by the application of the paramountcy principle, by which was meant the rule that the best interests of the child are the paramount consideration when determining orders relating to children. Kay and Holden JJ held that if the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration.

2. Without fully expanding the point, their Honours considered whether the true nature of such an injunction application was governed not by s.68B, which is the section specifically referable to injunctions concerning children, but by s.65D, which was then the more general provision concerning children.  Finn J held that the power to grant the injunction arose pursuant to s.68B(1) and that the best interests of the child is the paramount consideration or essential test for an exercise of that jurisdiction. 

3. The Full Court in Flanagan & Handcock also considered the relevance of authorities pre-dating the 1995 amendments to the Family Law Act 1975. In particular, they referred to two decisions which are often quoted by counsel and by the court when considering such applications.

4. The first is Chapman & Palmer (1978) FLC 9510.  In that case, the mother had attempted to change the surname of the children of her first marriage to the surname of the husband of her second marriage.  Their Honours identified six factors to which regard should be had.  The first was that the welfare of the child is the paramount consideration.  That needs to be read in the light of the majority decision in Flanagan & Handcock, to which I have referred.  The second was the short and long-term effects of any change in the child’s surname.  The third was any embarrassment likely to be experienced by the child if her or his name was different from that of the parent with custody or care and control. The fourth was any confusion of identity which may arise for the child if her or his name was changed or, conversely, was not changed.  The fifth was the effect which any change in surname may have on a relationship between the child and the parent whose name the child bore during the marriage or, one might extrapolate, the relationship.  The sixth and final factor was the effect of frequent or random changes of name.  

5. A few years later, in Beach & Stemmler (1979) FLC 90-692, Connor J considered a case where, as in Chapman & Palmer, the mother had attempted to change the surname of the children of her first marriage to the surname of her children of her second marriage.  His Honour held that the court was not restricted to the six matters to which the Full Court had adverted in Chapman & Palmer and identified a further six factors which he took into account.  They were the advantages in the short and the long term which would accrue to the children if their name remained as it was; the contact the husband had had, and was likely to have, in the future with the children; the degree of identification that the children then had with their father;  the degree of identification the children then had with their mother and, because of the nature of that application, with their stepfather; the degree of identification which the children would have with the child who was about to be born to their mother; any likely confusion in those circumstances if the father’s surname was restored; and the desire of the father that his original surname, carried by the children, be restored.

6. In the decision of Fooks and McCarthy (1994) FLC 92-450, Warnick J spoke about the difficulty that these cases pose. In one sense, it is not a legal difficulty but a question of societal and personal preferences for patrilineal, matrilineal or hyphenated surnames. He held that in that case a change in the child’s name from the father’s surname to a hyphenated surname was likely to lead to the child being exposed to his father’s resentment and increased animosity between his parents, and was therefore not in the child’s best interests.

7. There is no doubt that the obligation to name a child and the power to change a child’s name is an aspect of parental responsibility as defined in the legislation.   The parties have agreed that an order be made for them to have equal shared parental responsibility for the children.  As they are unable to agree on what surname their children should carry, the court needs to determine that issue having regard to the best interests of A and C and the various other matters to which I have referred.

8. In essence, the mother’s case is that since the separation, when the children were very young, and C would have had no idea of the meaning of a surname, the children have been aware that her name is Tesson.  Her surname reflects her Chinese heritage from some three generations ago.  Chinese forebears of the mother came to Australia and it seems, as was often the case, immigration officials recorded her forebears’ name in a phonetic but not accurate way.  The family carried the surname Tesson from that point on in their Australian lives.  History here and in America is replete with such examples of misspellings and misunderstandings, and of immigrants carrying these arbitrarily imposed surnames into their new lives.

9. The mother is candid that her involvement with the Chinese heritage is carried on through Tesson family reunions and her sense of the importance of the name to herself and to her children, rather than through any day-to-day connection with rituals which might be identified as specifically Chinese.  Australia has, of course, a long heritage of Chinese immigration and members of the Chinese-Australian community have made a significant contribution to the country.

10. Australia has also benefitted from the significant contribution of Greek immigrants and their descendants: it is sometimes asserted that there are more people of Greek origin in Melbourne than in all but the two or three largest cities in Greece.  The father’s evidence is that it is particularly important to him that the children maintain their Greek heritage, which is fostered in a day-to-day way when they are with him and the paternal family;  with him, they live their culture.  It was submitted on his behalf that it is particularly important to Greek men that children carry their surname.  As counsel conceded, there was no expert evidence on that point.  Nonetheless, I proceed on the basis that it is very important to the father that the children carry his name.  That is one factor to which the court has to have regard, but is not the only matter. 

11. The father’s evidence, scattered throughout the affidavits sworn by him – affidavits, it must be said, which are very critical of the mother – is that she has failed to foster the children’s connection with their Greek heritage and has attempted to undermine that connection.  This is denied by her.  It is probable each has a different perception. 

12. The mother’s evidence was that in 2007 she asked the father for his consent to the use of a hyphenated name.  He led her to believe he agreed with the proposal but never returned the form necessary to register the change.  The father gave a different account.  In 2008 the mother asked the school to use the surname Tesson for the children and this occurred for about a term.  The school then became aware of the father’s objection and took the view that it should use the name on the children’s birth certificates. 

13. The mother’s evidence is that it was at the father’s insistence the children were registered at birth with the surname Maraichers.  He denies that.  It is a matter to which the court can have regard but it is not determinative of the matter now.  The children are ten and seven.  The court must focus on their best interests now and the way their name is likely to impact on them and their relationship in the future. 

14. The matter was considered briefly by the family consultant in her report dated 30 June 2009.  At paragraph 41, she noted that:

    [A] was aware of the issues in dispute between her parents, particularly in relation to the proposed change of surname.  She was not opposed to a change in surname and believed, given it was her mother that mostly cared for her, it made sense that she should share her mother’s surname.  She was aware that her father opposes it, but would not tell him this because she was concerned this would hurt his feelings and that she loves both her parents and does not want to upset either of them.  There was a sense from [A] that a hyphenated surname would be fair to both parents, which is a typical response from a young person who does not want to disappoint either parent.

15. I take into account the views of A as expressed in the family report.  

16. C was seven when the family consultant spoke with him.  She noted that he did not have the same detailed knowledge of issues between his parents.  He had no deep thoughts about their relationship and how it affected him.  He did, however, express a wish to see more of his father and reflected that he only saw him a few times last year, which made him feel sad. 

17. In a case in which the parties made very significant allegations against the other, it is probable both took pleasure from the family consultant’s very complimentary descriptions about the presentation of both children.  It is not always the case that children whose parents have been involved in contentious litigation present in such a positive way.  Ms B described A and C at paragraph 50 as:

    … delightful children, achieving at high levels, competent in their academic performance, successful with their social skills and networking, appropriately engaged in extra-curricular activities, enjoying substantial time and involvement with their mother.  They appeared intelligent and insightful.  They are enjoying loving and warm relationships, and they themselves, importantly, display confidently nurturing interactions with both their parents.

    That the children were able to present to Ms B in that way bears out her opinion that they appear to have had very little exposure to the allegations and counter-allegations between their parents.  Both have a very high opinion of their mother and their father.  That assessment augers well for their future.

18. Ms B recommended that the children’s surname be changed to the hyphenated name of Tesson-Maraichers.  Her opinion was informed by her view that the children were thriving in the primary care of their mother.  I place weight on her evidence insofar as it illuminates the relationship between the parties and their children.

19. I take into account the primary consideration contained in s.60CC(2)(a) of the Act, which is the importance and benefit to the child of having a meaningful relationship with both their parents. I take into account the various allegations that are made about the parents’ respective parenting capacity and willingess to foster the children’s relationship with the other parent. It must be said that Ms B is very complimentary about the mother. Further, she expressed the opinion that the father’s concern about the potential effect of the children’s name being changed reflected more on his own feelings and perceptions than on the practical impact of a change on the children.

20. In terms of the additional considerations contained in s. 60CC(3), I have already referred to A’s views; the nature of the children’s relationship with each of their parents; and the maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the children and of either of the children’s parents.

21. The ICL has submitted that the children’s surname should be Maraichers-Tesson.  The mother initially sought that the children be known as Tesson-Maraichers but is content to adopt the ICL’s proposal.  The father seeks that they be known as Maraichers. 

22. One could no doubt dance on the top of a pin about the difference between Maraichers-Tesson and Tesson-Maraichers.  The ICL proposed Maraichers-Tesson because it prioritises the children’s original name, which is their father’s surname;  in a list of names, they will be found under “M” for Maraichers.  One might say that when people hear a child’s name, particularly if the child has a number of names, it is the last name which is recalled.   The court must balance these contentions.

Conclusion

1. Balancing all factors, I am satisfied that the children should have a hyphenated name and it should be Maraichers-Tesson, for the reasons advanced by the ICL.  Orders will provide for the children to be known by that name. A number of consequential orders will be made and each of the parties will be restrained from using a name other than Maraichers-Tesson.

2. The provision about the children’s surnames will be included in a separate order to that which contains the detailed parenting orders to be made, in the main, by consent.  Third parties may need to access the order which provides for the children to use the surname Maraichers-Tesson but they do not need to be privy to the personal matters referred to in the broader orders. 

Notation sought by the father

1. I note that the father seeks that a notation be added to the orders which are to be made by consent noting his future intention to seek a different arrangement.  I understand he may seek a shared residence order at some time.  In his response filed 10 November 2008, the father sought that the children live with him and spend time with their mother.  A thread runs through his evidence of a move closer to the children’s school and to seek to spend at least equal time with them.  The mother would say this is a velleity; it reflects rhetoric, not reality.

2. I do not find it appropriate to make any such notation to the order.  Each of the parents retains the capacity to seek a different parenting order from the court.  If an application were made, the court would need to be satisfied of the existence of sufficient new facts and circumstances to justify the reopening of the case.  This litigation has been lengthy and hard-fought. Both parties have compromised in the best interests of the children.  A party could expect to face significant cost sanctions or an application for security for costs if he or she sought to vary or discharge the final orders agreed today, without justification.  I say nothing further but make it clear that such a notation will not form part of the order, that the parenting orders today are final orders and that each of the parties and the ICL supported the making of them as final orders.

I certify that the preceding
 43 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.