MONEIM & MONEIM
[2013] FMCAfam 246
•28 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MONEIM & MONEIM | [2013] FMCAfam 246 |
| FAMILY LAW – Parenting – discreet issue as to whether change to child’s Christian names is appropriate – use of different names within different households – order permitting additional Christian name to be registered – parental responsibility – previous final order as to equal shared parental responsibility – no change of circumstance justifying re-litigation of the issue. |
| Family Law Act 1975, ss.65D, 68B |
| Flanagan v Hancock [2000] FamCA 150 Fooks v McCarthy [1993] FamCA 117; [1994] FLC 92-450 Elkin and Cheney [2008] FMCAfam 1361 Freeman and Freeman (1987) FLC 91-857 Rice and Asplund (1979) FLC 90-725 Miller and Harrington [2008] FAMCAFC 150 Marsden v Winch, [2009] FamCAFC 152 SPS and PLS [2008] FAMCAFC 16 |
| Applicant: | MS MONEIM |
| Respondent: | MR MONEIM |
| File Number: | WOC 65 of 2008 |
| Judgment of: | Foster FM |
| Hearing date: | 25 February 2013 |
| Date of Last Submission: | 8 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maurice |
| Solicitors for the Applicant: | Helen Volk Lawyers |
| Solicitors for the Respondent: | Good Legal |
ORDERS
The Mother MS MONEIM be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the Child registered as [X] MONEIM born [in] 2005 be now registered as [X] [Y] MONEIM.
Pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the Child’s name in the form specified in Order 1 herein.
The Court forward a sealed copy of this Order to the Registrar of Births Deaths and Marriages, New South Wales.
All other applications before the Court are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Moneim & Moneim is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC 65 of 2008
| MS MONEIM |
Applicant
And
| MR MONEIM |
Respondent
REASONS FOR JUDGMENT
Proceedings
These are parenting proceedings commenced by the applicant mother by application filed on 14 February 2012.
The mother in that application sought orders that in summary provide as follows:
a)That the name of the child [X] Moneim be changed to [Y] [X] Moneim and that he be henceforth known as and referred to as [Y].
b)This order acts as the authority of both parents for the mother to do all things necessary and sign all necessary documents without the need for the signature or consent of the father to change the child’s name to [Y] [X] Moneim with all government and non-government agencies,
c)That order one of orders made on 29 October 2009 be discharged and substituted with:
i)That the mother in consultation with the father have sole parental responsibility for making decisions pertaining to the long term care, welfare and development of the children of the marriage namely [Y] [X] Moneim born [in] 2005 and [Z] born [in] 2007.
ii)For the purposes of order one the mother shall notify the father of any issues pertaining to the long term care, welfare and development of the children and seek the father’s views,
iii)The mother shall have regard to the father’s views in exercising her responsibility but shall not be bound by them,
iv)That the mother notify the father of any decision made by her in exercise of her parental responsibility within seven days of any such decision being made.
The father in his amended response filed on 19 February 2005 simply sought an order that the mother’s amended application be dismissed and an order as to costs.
The proceedings were first listed before the court on 4 June 2012 and on that date the parties were ordered to attend a child inclusive dispute conference on 30 August 2012. The family consultants memorandum dated 30 August 2012 was admitted into evidence by the court as Exhibit A.
The proceedings were next listed before the court on 4 September 2012. On that date the court made various trial directions and adjourned the matter for hearing to 25 February 2013 noting that the issues for determination were the allocation of parental responsibility and the child’s name.
The matter was heard on 25 February 2013. On that date the parties made some amendments to the existing orders in relation to the child by consent that do not touch upon the issues for determination. The court reserved its decision to a date to be fixed.
Background
The mother is presently aged 36 and the father is presently aged 37.
The parties commenced cohabitation at marriage on [date omitted] 2004.
There are two children of their relationship [X] Moneim born [in] 2005 and [Z] born [in] 2007.
The parties separated on 27 October 2007 and were divorced in January 2011.
Proceedings as to parenting were commenced between the parties in 2008 and those proceedings culminated in final parenting orders be made by consent on 29 October 2009. Those orders provide in summary:
a)That the parties have equal shared parental responsibility for the children,
b)That the children live with the mother,
c)That the children spend substantial and significant time with the father including weekend, mid week and school holiday time.
In support of the orders sought by her the mother relies upon the following documents:
a)Her affidavit filed on 11 January 2013,
b)Affidavit of Mr M filed on 12 February 2013,
c)Affidavit of Ms M filed on 5 February 2013.
In support of the orders sought by him the father relies upon his affidavit filed on 21 December 2012.
The mother is presently employed part-time as a [omitted]. She earns approximately $750 per week. The father is presently unemployed and has been mostly unemployed since 2000. The father is currently assessed to pay nil by way of child support.
The parties separated following an assault by the father on the mother in respect of which the father was convicted of assault occasioning actual bodily harm. An apprehended violence order was made for the protection of the wife for a period of three years, that order expiring on 20 February 2012.
The mother relies upon the significant history between the parties and circumstances leading up to the final orders made by consent on 29 October 2009. That history has little relevance to the issues facing this court for determination.
The mother says that she agreed to the Christian name of the eldest child being [X] on the basis that the child would be referred to as [Y] and enrolled at school as [Y]. The mother says that the father agreed to this arrangement. The father denies that there was any such agreement.
However it appears to be common ground between the parties that within the maternal household and the extended maternal family the child is unfailingly referred to as [Y]. The mother further asserts that at preschool and now at school the child is commonly referred to as [Y].
On the other hand in the paternal family and the extended paternal family the child is referred to as [X] or “[omitted]” being the Lebanese nickname for [X].
Regrettably the mother has involved the child directly in the issue between herself and the father as to the child’s name. The mother gives detailed evidence as to conversations with the child in relation to his name and it is clear that the child is all too aware that his father would prefer him to be known, at least within the his father’s sphere of influence, as [X].
It is also clear that the name issue has been the primary focus of the ongoing conflictual relationship between the mother and father over the last two years. Both the mother and father have engaged the child’s preschool and now the child’s school in the issue.
The mother in her affidavit of some 279 paragraphs maintains a constant and carping criticism of the father. She touches upon the father’s intention to take the children to Lebanon, their disagreement as to the child’s school which resulted in the mother enrolling the child at [H] School, the father’s failure to allow the child to participate in soccer on his weekend, the father’s constant correction of the child and others in relation to the use of the name [Y], the father’s constant relocation of his accommodation, his non-compliance with orders as to the child’s time with him, the father’s denigration of the mother in the presence of the children and the father’s lack of day to day engagement with the children.
The mother also expresses concern that the name [X] Moneim will somehow identify the child as associated with the paternal grandfather who some years ago was convicted of an offence relating to financial fraud.
The mother conceded that since the 2009 orders there have been no further incidents of violence perpetrated by the father. Indeed the apprehended violence order that she obtained has now expired by a fluxion of time.
For reasons that are not quite clear the father has mostly remained out of employment since separation and provides no child support to the mother to assist with the children.
The Child’s Name Issue
The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan v Hancock [2000] FamCA 150. Although a grant of special leave to appeal to the High Court was given it was subsequently revoked. 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 s.65D parenting order, either directly or indirectly the paramountcy principle is applicable.
There are numerous decisions that pre-date the 1995 Family Law Act 1975 amendments relating to a child's surname.
In Fooks v McCarthy [1993] FamCA 117; [1994] FLC 92-450 Warnick J held "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."
The factors frequently considered in determining whether there should be any change to a child's name include:
* Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control.
* Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
* The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
* The effect of frequent or random changes of name.
* The contact that the non-custodial parent has had and is likely to have in the future with the child.
* The degree of identification that the child or children have with their non-custodial parent.
* The degree of identification which the child or children have with the parent with whom they live.
This is limited to the question of the child’s forename and circumstances whereby the child’s given name at birth and the as it were nickname of [Y] are used interchangeably depending on whether the child is in the maternal sphere of influence or the pattern in all sphere of influence.
The Family Consultant’s Memorandum
In evidence before the court is the child inclusive conference family dispute memorandum dated 30 August 2012 which was admitted into evidence as Exhibit A.
During the child inclusive conference the parents were interviewed separately, the children interviewed together and separately and feedback was given to the parents together.
The family consultant identified of the issues in dispute as being the name of the eldest child and the question of sole parental responsibility.
In the context of the conference the mother raised historical issues as to domestic violence.
The mother reported to the family consultant that the child’s preschool and soccer team knew him as [Y] and this is the name that her son would prefer to be called. She says that the conflict between herself and the father as to the child’s name has created confusion and stress for both herself and her son and that the father has unnecessarily pressured the children on the name issue. The mother stated that having the name [Y] was important for both herself and her son.
The father as referred to above denied that there was ever any agreement for his son to be known informally as [Y]. However the concession by both parties that the child has been known within different parental spheres as both [Y] and [X] in the court’s view belies this assertion. The father conceded that in not wanting to cause conflict he did not oppose the use of the name [Y] at the child’s preschool.
The subject children were initially interviewed together. [X] wrote this name on the board when referring to himself. The family reporter observed that the child appears clear that his formal or official name is [X] and said that this is the name he is referred to at school. The child explained that some of his friends choose to call him [Y] which was the name he had used at preschool. The youngest child most often referred to her brother as [Y] during the interview session and said that she was more accustomed to using the name [Y].
[X] clearly stated to the family report writer that he prefers to use the name [Y] and cities shorter and easier to write and say. He is aware that his father prefers the name [X] and that this is his real name. Both of the children explained to the family reporter that in their father’s household the name [X] is used and in their mother’s household the name [Y] is used. The children acknowledge that it can be confusing at times and sometimes they are reprimanded by the father for not using the name [X] when in his company.
[X], observed the family reporter appeared aware of the ongoing tension between his parents and the conflict over his name. He told the family reporter that this conflict makes him feel sad and he expressed a wish that his parents’ relationship would improve. The family reporter reports that in discussions it appeared that the conflict between his parents over the name is more significant to this little boy and the name itself.
The family report writer provided some feedback to the parents in relation to the confusion and stress that the children were experiencing over this issue. The report writer observes that the children’s heightened sense of worry and their awareness of the need to use different names in the parents home is of some concern but that it is not uncommon for children to be sometimes known by other names and this can be managed if parents have a common and agreed approach, otherwise it can cause stress and confusion over one’s identity.
Discussion
It is of interest for this court to note the observations by Brown FM in Elkin and Cheney [2008] FMCAfam 1361 where His Honour observed:
“the most problematic aspect of the child’s life, at present, is the ongoing and endemic conflict between his parents. The dispute about his name is emblematic of this conflict. Both the father and mother are strong-minded personalities, who have little if any respect or regard for the other or his or her point of view. As such, in my estimation there exists a very real possibility that neither the father nor the mother will take any notice of the order of this court, regarding the child’s name, if he or she does not think it suits his or her cause or personal preference.
Names, particularly nicknames grow organically. It is a common phenomenon that individuals bear names which are not recorded on their birth certificate or otherwise legally recorded. Through a process of usage or the individual appeal of a name, it sticks to the person concerned and becomes his or her own.
It is a common phenomenon within Australia that a person will use his second given name in preference to his or her first name. The reasons for this are manifold, perhaps to avoid confusion with another relative who bears the same name or out of individual preference.
Again, individuals have different names, which they use in different circumstances. Within the intimacy of a family, he or she may have a particular family name. That individual may use another name again at school and another again for formal purposes.
The use of a particular name will not affect the essential quality of the person concerned or his or her relationship with any other particular person. A name is just a name.
His Honour went on to observe that the child in the case before him will continue to be the child of the mother and father in that case no matter what he is called. A name does not change a person.
It is clear in the present matter before the court that [X] will identify with that name or [Y] depending on what is called. It is clear that in the extended maternal household he responds primarily to one name and in the extended paternal household to the name he was registered with at birth.
The child is clearly not compromised in any way by the use of either or both names in any particular circumstances. What compromises the child and to a lesser extent his younger sister is the ongoing conflict between his parents on this discrete issue.
Ultimately this court is of the view that how the parties refer to the child within their respective domestic circumstances and within the shadow of extended maternal or extended paternal family is a matter for them.
The ultimate question for the court, as posed by Brown FM above, is whether it is mindful to make orders prescribing the child’s name limited to the formal or official context where it would seem appropriate there be consistency. Considerations of ordinary commonsense, observed His Honour, must dictate that the child have one predominant given name for the purposes of his education and other official purposes, where necessary and it’s not beyond the bounds of possibility that, as time unfolds, another name will attach to him, as a result of common usage.
It appears that the child school has resolved the issue and at least formally the child is known as [X], although from time to time the child adopts the use of the name [Y] in the school context as he sees fit
In all of the circumstances and having regard to the extended use by the child of the name [Y] the court proposes an order that will require the parties to register a second forename for the child, that name being [Y] so that for formal or official purposes the child’s name will be [X] [Y] Moneim.
Otherwise the parents, the child and the extended family, friends and acquaintances may no doubt use the names [X] or [Y] as they see fit.
Parental Responsibility
The remaining issue as between the parties is that of parental responsibility.
Proceedings as to parenting were commenced between the parties in 2008 and those proceedings culminated in final parenting orders being made by consent on 29 October 2009. Those orders provide in summary:
a)That the parties have equal shared parental responsibility for the children,
b)That the children live with the mother,
c)That the children spend substantial and significant time with the father including weekend, mid week and school holiday time.
The court record reveals that both parties were legally represented on that day by experienced Counsel. The court infers that the import and obligations as to the order for equal shared parental responsibility was explained to each of the parties.
The issue of parental responsibility are of course is the linchpin of the statutory pathway from which parenting orders emanate. In the event of an order for equal shared parental responsibility the court is required to consider whether equal time or substantial and significant time is in the best interests of the children and reasonably practicable.
This matter comes before the court by reason of two issues only. The first which the court has dealt with above being the discrete issue as to the name of the oldest child. The second is the mother’s application that she have sole parental responsibility by reason of the matters referred to in her affidavit that are touched upon in the court’s reasons above.
As a threshold issue the court is required to be satisfied that there has been a substantial change in the circumstances of the children before the court permits again an examination of substantive parenting orders made in relation to those children.
In Freeman and Freeman (1987) FLC 91-857 Strauss J said at 76,470-71:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. For these and like reasons the court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously. The court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing: The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should be not overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
In Rice and Asplund (1979) FLC 90-725 the leading judgment was given by Evatt CJ, with whom Pawley SJ and Fogarty J expressed their agreement. Having discussed certain authorities Evatt CJ said at 78,905-6:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material ... These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec 64 and weigh up the factors for and against the proposals for each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard
As has been observed in a stream of cases “a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material”.
The court also has had regard to the consideration of the rule in Rice and Asplund by the Full Court in Miller and Harrington [2008] FAMCAFC 150.
In Marsden v Winch, [2009] FamCAFC 152 the Full Court agreed with the observation of Warnick J in SPS and PLS that the application of the rule in Rice and Asplund is closely connected with the nature and degree of change sought to the earlier order.
In SPS and PLS [2008] FAMCAFC 16 Warnick J said that “[t]he rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes”.
In all of the circumstances the court is not satisfied that there is such changed circumstances which would justify such a serious step as a re-litigation as to the fundamental issue of parental responsibility.
Accordingly the mother’s application in this regard will be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Foster FM
Associate:
Date: 28 March 2013
0
5
1