Mayes & Denning
[2017] FCCA 1754
•4 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAYES & DENNING | [2017] FCCA 1754 |
| Catchwords: FAMILY LAW – Final parenting – limited issue of the child’s time with the father – change of name – international travel. |
| Legislation: Family Law Act 1975, s.65DA Federal Circuit Court Act 2001, ss.14, 18 |
| Cases cited: Chapman & Palmer (1978) FLC 90-150 |
| Applicant: | MS MAYES |
| Respondent: | MR DENNING |
| File Number: | PAC 4944 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 17 July 2017 |
| Date of Last Submission: | 17 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Appearing for the Respondent: | Mr Mackay |
| Solicitors for the Respondent: | Christopher Mackay Lawyer |
ORDERS
All previous interim parenting orders are discharged.
The parties shall have equal shared parental responsibility for the child X born (omitted) 2010.
The child shall live with the mother.
The child shall live with the father as agreed to by the parties in writing, but failing agreement as follows:
During school term:
(a)In week 1 from after school on Thursday to before school on Friday;
(b)In week 2 from after school on Thursday to before school on Monday, or if Monday is a non-school day to before school on Tuesday.
During school holidays at the conclusion of Terms 1, 2 and 3 of the school year:
(a)In even numbered years from the conclusion of the school term until 5pm on the middle Saturday of the school holidays;
(b)In odd numbered years, from 5pm on the middle Saturday of the school holidays to the commencement of the new school Term;
During the school holiday period at the conclusion of Term 4 of the school year:
(a)At the conclusion of the 2017 school year on a week about basis commencing at 5pm on the first Saturday after the school term concludes;
(b)At the conclusion of the 2018 school year and each alternate year thereafter for the first half of the school holidays, commencing on the last day of school and concluding at 5pm on the middle day of the school holiday period (with the mother to collect the child from the father’s residence at the conclusion of such time); and
(c)At the conclusion of the 2019 school year and each alternate year thereafter, for the second half of the school holidays commencing at 5pm on the middle day of the school holiday period (with the father to collect the child from the mother’s residence at the commencement of such time) to the commencement of the new school year.
Commencing from the Christmas school holidays at the conclusion of the 2018 school year, either parent may take the child out of Australia for the purpose of a holiday during school holiday periods when the child would ordinarily be with that parent pursuant to these Orders, subject to the following conditions:
(a)The parent proposing to travel with the child is to provide notification to the other parent six weeks prior to the date of the proposed departure including the proposed destination, written itinerary including dates of travel, mode of travel, flight numbers and times, rooming arrangements for any accommodation for the child, contact details of all places where the child will be staying including telephone number(s), email address(es) and postal address(es).
(b)The parent proposing to travel with the child shall confirm to the other parent the details of the arrangements referred to above one week prior to travel.
Within 28 days, both parents shall do all acts and things and sign all necessary documents to allow the issue of a new Australian passport for the child.
Within 28 days the mother shall sign all documents and consents presented to her by the father for the purpose of the father applying for the issue of an (country omitted) Passport for the father.
The parties shall keep each other advised of any medical emergency relating to the child.
Each party shall be at liberty to attend all events involving the child including but not limited to sporting events, extra-curricular activities, school functions, parent teacher interviews, concerts, assemblies, birthdays, social functions.
Each party shall be entitled to receive copies of any school reports and related material normally sent to parents of children attending the child’s school.
Each party must ensure that his or her name and contact details are placed on file at the child’s school for use in case of an emergency.
The application to change the child’s surname is dismissed.
All outstanding issues are removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Mayes & Denning is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4944 of 2014
| MS MAYES |
Applicant
And
| MR DENNING |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the type of matter that should have been resolved by the parties on a final basis without requiring judicial determination. By the time the hearing commenced, there was not much left by way of justiciable issue.
It is the story of seven year old X, who has two loving, committed parents. It is a typical family law story, peppered with some allegations of violence, but ultimately a story of two people who were not able to see eye to eye sufficiently enough to save themselves almost three years of litigation. In the context of the life of their child, a period of almost half her life.
The issues for ultimate determination were:
a)Whether the child’s time with the father ought to conclude on Sunday night or Monday morning in alternate weeks (after the parties agreed that the child should spend time with the father from Thursday);
b)Whether the Christmas school holidays from 2018 ought to be in a week about basis, or on a block period basis;
c)Whether the father ought to be permitted to travel with the child overseas from January 2019; and
d)Whether the child’s surname ought be changed to include the mother’s surname.
The parties agree that the child has a strong attachment to both of her parents.[1] They are both caring and competent parents, who acknowledged each other’s important relationship with the child.[2]
[1] See for example Family Report paragraph 12
[2] Family Report paragraph 46
Short Chronology
The father was born on (omitted) 1969.
The mother was born on (omitted) 1974.
The parties commenced cohabitation in (omitted) 2009.
The only child of the parties’ relationship, X, was born on (omitted) 2010.
The parties separated on a final basis in October 2011.
Court proceedings were commenced by the mother on 15 October 2014 by way of filing an Initiating Application.
The father filed a Response to the Initiating Application on 25 November 2014.
On 4 February 2015 the mother filed an Amended Initiating Application.
On 25 February 2015 the father filed an Amended Response.
Following the parties separation and from April 2015 the father was spending time with the child each second weekend from 5pm Friday to 5pm Sunday and each Wednesday from 5.30pm to 7.30pm.
On 28 August 2016 the Family Report of Mr G was released to the parties.
On 9 September 2016 the mother filed a further Amended Initiating Application.
On 9 September 2016 final orders were made by consent by Judge Harman as to Christmas and Easter spend time with as well as interim orders made by consent regarding time during the school term, school holiday time and special occasions as well as telephone communication.
On 24 May 2017 the matter was listed before Judge Harman when the Court confirmed the hearing date of the matter being 17 July 2017, to which these Reasons refer.
Time with the Father
The parties are a night per fortnight apart in their positions. They both agree that the child should spend time with the father as follows:
a)In week one from after school on Thursday to before school on Friday; and
b)In week two from after school on Thursday to Sunday night.
The father contends that time in week two ought to conclude on Monday morning; the mother contends that the time ought to conclude on Sunday night. The mother’s position is that the child will be tired and that the father might not be able to organise things so that she is ready to go to school on time on the Monday morning. This logic is a little difficult to follow since it was the mother’s position at the commencement of the hearing that the child should be spending time with the father each alternate week from after school on Friday to before school on Wednesday or alternatively, from after school on Wednesday to before school on Monday. Furthermore, the mother contends that it is appropriate for orders which facilitate the child being taken to school by the father every Friday morning. There is nothing in the evidence which would suggest that the father would not be able to do the same of a Monday morning.
Furthermore, there is agreement about parental responsibility, namely that both parties submit to the Court that an order for equal shared parental responsibility is appropriate. Such an order will be made. Consequently, the Court is bound by section 65DA of the Family Law Act1975 to consider equal time or significant and substantial time, this making the issue in dispute even narrower.
The Court accepts that an order for equal time is neither practical nor in the child’s best interest. The parties do live some distance apart, and the practical difficulty to the child of having to face Sydney traffic every morning and every afternoon for five days each fortnight to get to school and back, in circumstances where such travel is likely to take over an hour by car (and no doubt much more by public transport) is not a circumstance which the Court deems to be in the child’s best interest.
In respect of significant and substantial time and the practicalities thereof, having the father take the child to school three mornings out of every 14 would ensure that the father is involved in the ‘hard yard’ of getting her to school, making sure her homework is done and that all things are properly packed for the school day ahead, without being too onerous on the child in terms of travel to school over a whole fortnight. It will give the child the opportunity of interacting with her father in ways other than relaxed weekend time, and ensure that both parents take on a significant amount of the responsibility for raising this child.
As such, the Court finds that it is in the child’s best interest for time to conclude on Monday morning, rather than Sunday afternoon.
The Court holds likewise in respect of school holidays. The child should have the opportunity of having to get ready for the school term with her father, and not just her mother – with the father also having to ensure that all uniforms are washed and ready to go, that the right stationery is purchased and that school bags are ready for the term ahead, and that the child is sufficiently rested for the school week ahead.
Overseas Travel
The father would like the opportunity of taking the child overseas from the commencement of 2019 for a period of three weeks, and every two years thereafter. By January 2019, the child will be eight and a half years old. She would have spent significant and substantial time with her father pursuant to these orders for a year and a half, including holiday periods.
The mother submits to the Court that the child will simply be too young to travel overseas in January 2019. She submits to the Court that the parties ought to revisit this issue when the child is 10 years old, and that it may be appropriate for her to travel overseas with her father from when she is 13 years old. At that age, the mother submits, she will know how to call home and will understand what being overseas means. The Court accepts that these are the mother’s concerns and subjective views, but accords them limited weight due to their subjective nature.
The father has an (nationality omitted) background, with both of his parents being born in (country omitted). He has extended family in (country omitted). He wants to travel with the child overseas, but particularly to (country omitted) during holidays. This would be a wonderful experience for the child, to learn about her (nationality omitted) heritage first hand. She is a child who is attending school, she is articulate and intelligent. She has a good relationship with both of her parents. She is old enough to remember significant events in her life. Overseas trips are such significant events. The Court accepts the father’s submission that taking the child to places such as (omitted), (omitted), (omitted) and (omitted) would provide opportunities of cultural enrichment for her, and would also provide a significant opportunity for the child and parent to bond over such proposed excursions. The proposed holidays are for limited periods of time.
The Court finds, on balance, that permitting the father (and also the mother) to travel overseas with the child from the commencement of 2019 is in the child’s best interest. For that purpose, the child will need to hold a passport and the parties will need to ensure that such passport is applied for. An order to this effect will be made.
The father holds dual citizenship. He did, until it expired in September 2015 and for a period of twenty years, also hold an (country omitted) passport. The Court understands that the father, because he has a child in Australia, can only renew that passport with the mother’s consent (even though they are no longer in a relationship). The Court does not quibble with whether this is the correct law of that country, it accepts what the father says is his understanding of that law. The mother does not consent to the father having an (country omitted) passport because she is concerned that he might move to (country omitted) (or somewhere else in (country omitted)) and not be here to support his daughter. The father, and the Court accepts his evidence, has no intention of moving to another country. He wants to travel and to be able to do so on his (country omitted) passport which would permit travel in different ways through the (country omitted) countries than would not be permitted on an Australian passport. In this strange situation which has arisen, the mother, by virtue of what the father tells the Court is foreign law, can prevent the father from exercising his rights as an (country omitted) citizen. While there may be other avenues within (country omitted) law for the father to explore which the Court is not aware of the situation remains as is.
The Court does not consider it is appropriate for the mother to withhold her consent for the father to be issued with an (country omitted) passport on the stated basis. It is not supported by the evidence. For that reason, the Court will direct the mother to provide such consent as is necessary for the father to be able to apply for an (country omitted) passport. The mother has not addressed the Court as to any lack of jurisdiction or power to make such an order. Given the issues in dispute about the child being able to travel overseas, the Court holds that the power and jurisdiction exist for the orders to be made, as sought by the father, pursuant to ss.14 and/or 18 of the Federal Circuit Court Act 2001.
In respect of the father’s application for the mother to sign any documents such that the child may be issued with an (country omitted) passport, the Court declines such application. The Court understands that the child holds dual citizenship. She will no doubt be able to exercise her rights under her other citizenship when she is an adult. Orders will be made for the parents to apply for an Australian passport, which will permit the parties to travel overseas with the child in accordance with the order which the father seeks and which will be made.
Change of Name
The mother submits to the Court that an order for the child’s surname to be changed to include her surname, is an order that is in the child’s best interest.
The mother approached the father about changing the child’s surname approximately three years ago, and indeed she commenced proceedings in that regard in October 2014. At the time, the child was just four years old and had not yet started school. The father did not consent then, nor does he consent now to the child’s surname being changed.
The father says that the child’s name was agreed at her birth or shortly thereafter, evidence which the Court accepts given that it is the name she was registered under by the parties after she was born. The father says that the child knows her surname; that she is proud of her surname and that in his view the child would be confused about now having to change her surname particularly given that she is already at school.
The mother says that she believes the child would be proud to have both her parents’ surnames, and that she ought to be known by the mother’s surname because the mother is her primary carer and the person she spends most of her time with. The mother submits that the child ought to also carry her mother’s surname so that she feels like she is a part of the mother’s extended family.
The mother has already commenced hyphenating the child’s surname on what the mother calls ‘informal’ occasions – such as the child’s enrolment in (hobby omitted); that is the mother has already been using a name which is not the child’s surname to refer to the child. Such actions are likely to lead to confusion for the child.
Mr G[3] notes as follows:
[3] Family Report paragraph 13, 21
The name change issue appeared quite important to the mother. Ms Mayes argued that she has not been married to the father and considers it unfair for X to retain his name solely.
…
It seemed of greater importance that X’s surname be changed to acknowledge the mother’s role as primary parent. Ms Mayes argued that the child spends most of her time with her side of the family and predicted she will want to see this reflected in her name as she grows older.
…
On the subject of proposed name changed the father remained opposed, arguing the names are too long and cumbersome to be joined together. He did not agree that X will be affected by this issue, stating if she wants to change her surname when “older” he will consider her request then.
The opinion expressed by Mr G[4] on the issue of change of name was as follows:
[4] Paragraph 47 Family Report
… each person offered firm reasons for his/her proposal yet (at her young age) X was not in a position to express a view. If no formal decision is made on this issue at the present time the parents would be advised to take into account any preference the girl may express when she is older.
…
… in the event of no immediate decision being made about X’s surname, the parties seek family mediation should issues arise at a future time.
The principles regarding a change of name for children are articulated in the Full Court decision of Chapman & Palmer (1978) FLC 90-150.
In a helpful summary, which the Court respectfully adopts, Judge Turner in Slade & Hewitt [2012] FMCAfam 812 held that consideration must be given to:
a)The welfare of the child being the paramount consideration;
b)Any short or long term effect of any change in the child’s name;
c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
f)The effect of frequent or random changes of name.
There is no evidence before the Court as to the child’s current views about her surname. She is now seven years old. The Court is not persuaded by the evidence and after hearing submissions, that her surname ought to be changed at the present time.
The name which the child has is the name which the child has been known by at her school and for the purposes of any ‘formal’[5] matters. While the mother has used the hyphenated name to refer to the child when enrolling her into (hobby omitted), the evidence does not suggest that the child considers her surname to be anything other than “Denning”.
[5] To adopt the language of the mother
There is no evidence to suggest that the child does not feel like she is part of the extended maternal family because she carries her father’s surname, or that this prevents her in any way from engaging or being involved with the extended maternal family.
There is no evidence that the child is confused about her name or the role of her mother should she retain the father’s surname as her name.
It is likely that for a seven year old child a name change might be confusing and it may have a negative impact on the child, for example it may result in a temporary questioning of her identity, as a hyphenated name would give the child a surname that differs from that of her father and differs from that of her mother.
Lastly the application for change of name appears to be more of an application which is focused on the mother’s wishes rather than being an application made in the best interests of the child. This is not to suggest that it was made mala fides, rather that it is an application which may well be misguided.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 4 August 2017
CORRECTIONS
Order 1 above is amended pursuant to the slip rule to read “all previous interim parenting orders are discharged”.
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