Muir and Newell
[2016] FCCA 1690
•7 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUIR & NEWELL | [2016] FCCA 1690 |
| Catchwords: FAMILY LAW – Parenting – application by father – little involvement in child’s life by father to date – application to change surname of child – refusal of application for equal shared parental responsibility – child to live with mother and spend time with father pursuant to her wishes – issue of child’s passport – authorities examined – consideration and application of legal principles. |
| Legislation: Adoption Act 2000 (NSW) Births, Deaths and Marriages Registration Act 1996 (Vic) Family Law Act 1975, ss.60B, 60CC |
| Cases cited: Barker v Ferris [2008] FamCA 1112 |
| Applicant: | MR MUIR |
| Respondent: | MS NEWELL |
| File Number: | MLC 5227 of 2012 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 25 – 26 February 2016 |
| Date of Last Submission: | 26 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 7 July 2016 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Ms A. Carter |
| Solicitors for the Respondent: | Taussig Cherrie Fildes |
| Counsel for the Independent Children's Lawyer: | Mr C. Dunlop |
| Solicitors for the Independent Children's Lawyer: | Trapski Family Law |
ORDERS
All extant parenting orders are discharged.
The mother have sole parental responsibility for the child X born (omitted) 2002 (“the child”).
The child live with the mother.
The child spend time and communicate with the father in accordance with the child’s wishes and at the child’s instigation.
In the event that the child expresses a wish to spend time or communicate with the father, the mother must do all things to facilitate the time or communication in accordance with the child’s wishes.
The father be permitted to send to the child birthday and Christmas cards, photographs, gifts and information about the paternal family from time to time and the mother must do all things to ensure that the child receives such cards, photographs, gifts and information.
For the purposes of s.11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child X born (omitted) 2002 upon application by the mother and without requiring the consent of the father to the child travelling outside the Commonwealth of Australia or his signing the passport application, the Court being satisfied this order is in the best interests of the child.
Notwithstanding any provision in the Family Law Act 1975 (Cth) to the contrary, the mother be permitted to travel with the child outside of the Commonwealth of Australia without first obtaining the consent of the father.
The father must keep the mother notified of his residential address, email address and telephone number and the mother must ensure the child is informed of same.
The mother must immediately notify the father of any serious illness or injury suffered by the child.
The mother and father themselves, their servants and agents be and are hereby restrained by injunction from denigrating, rebuking, belittling or speaking negatively about the other party to or in the hearing or presence of the child.
All extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Muir & Newell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5227 of 2012
| MR MUIR |
Applicant
And
| MS NEWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
Litigation between Mr Muir (“the father”) and Ms Newell (“the mother”) has been on foot since 2012. This proceeding is the latest rash of hostilities between the two. It commenced by application filed on 5 December 2013. In his initiating application, the father sought, among other things –
a)a declaration that the surname of the child X born (omitted) 2002 (“the child”) be changed;
b)an order that the Department of Foreign Affairs and Trade (“DFAT”) issue a new passport in the new name of the child;
c)an order for equal shared parental responsibility;
d)an order that the child live with the mother; and
e)orders in relation to the child spending time with the father.
Since the date upon which the father’s initiating application was filed, this case has been before this Court on six separate occasions on the hearing of interlocutory applications and most recently before me for final hearing on 25 and 26 February 2016.
The history of this litigation reveals that until only very recently, the father has had little to no involvement in the life of the child. He now wants this Court to sanction a regime by which he is very much more involved in the life of the child. Any such proposal is contrary to the recommendations made by the family consultant,[1] Ms D (“the family consultant”), who gave evidence in this proceeding.
[1] Family Report prepared by Family Consultant Ms D dated 13 March 2015.
Synopsis
For the reasons that follow –
a)I refuse the father’s application for the making of a declaration that the child’s surname be changed to his surname;
b)I refuse the father’s application that the parties have equal shared parental responsibility and instead I make an order that the mother retain sole parental responsibility;
c)I order that the child live with the mother;
d)I refuse the father’s application for the making of an order compelling DFAT to issue a new passport recording the child’s name as ‘X’; and
e)I order that the father spend such time with the child as the child chooses to spend with the father and not otherwise.
Factual background
During the final hearing of this proceeding the mother was represented by Ms A. Carter of counsel, the Independent Children’s Lawyer (“ICL”) was represented by Mr C. Dunlop of counsel and the father appeared in person.
On (omitted) 1958 the father was born in (country omitted). On (omitted) 1966 the mother was born in Melbourne. Between 2000 and 2002, the mother and father shared a relationship in which they did not live together.
On (omitted) 2002, while the mother was airborne during an international flight, the mother went into labour resulting in an unscheduled landing following which the child was born in (country omitted). It was common ground that the father did not know of the child’s birth in (country omitted).
It was also common ground that the mother had three other children with a man who was not the father in this proceeding.
The father gave evidence that he migrated to Australia over 30 years ago, that he was a (omitted) by occupation and that his income fluctuated. He said he had other children from other relationships, with some of whom he got on and with others he did not.
The mother gave evidence that the child was, at the date of the trial of this proceeding, a secondary school student at a prestigious girl’s school and that the child was content, well-adjusted and performing very well, scholastically, behaviourally and in all other regards.
The first issue – the child’s surname
The father’s evidence about the circumstances in which the child came to assume the mother’s surname was confusing. The father put in evidence a copy of a letter dated 17 July 2002 he sent by fax to the Australian Consul in (country omitted). In that letter he stated that as the father of the mother’s baby, then not named, he sought the assistance of the Australian Consul in forwarding that letter to the hospital in which the mother and baby were then staying.[2] On 20 July 2002, the Ministry of Health of the (country omitted) produced a sealed birth certificate in which the child was named bearing the mother’s surname. On 23 July 2002, the Australian Consulate General in (country omitted) sent a fax to the father informing the father that Passports Melbourne had notified the Australian Consul General in (country omitted) of the father’s consent to the issue of a passport in the child’s name having the mother’s surname.[3] The fax recorded that the relevant consular officer had received verbal advice from the mother giving him permission to send the father a copy of the child’s birth certificate.[4] In the fax the consular officer thanked the father for the speed and consideration the father had given in that matter as time had been of the essence.[5]
[2] Exhibit 2, letter dated 17 July 2002 to the Australian Consul, (country omitted) from (omitted), signed by Mr Muir.
[3] Exhibit 3, facsimile dated 23 July 2002 to Mr Muir from Ms K, Consular Officer – (country omitted).
[4] Exhibit 3, facsimile dated 23 July 2002 to Mr Muir from Ms K, Consular Officer – (country omitted).
[5] Ibid.
The father maintained in this proceeding that he had not consented to the child being given her mother’s surname. He swore in his affidavit dated 3 December 2013 that he could not have given such permission because that was taboo in his culture. The father did not elaborate on the manner or extent to which any such consent was taboo in his culture. However, he maintained that at no stage had he consented to the child being given a surname different to his own.
The version of the naming of the child as given by the mother was different to the version given by the father. In paragraph 7 of her affidavit sworn 22 September 2015, the mother stated that in
mid-(omitted) 2002 she was pregnant with the child. The mother swore that during her return to Australia from visiting her parents in (country omitted), the mother’s waters broke while she was on the plane and that she gave birth to the child in (country omitted). The mother swore that the Australian Embassy advised the father of the child’s birth and asked him to sign the necessary forms to register the child’s birth so that the mother could return to Australia and that the father signed the necessary paperwork.
Nowhere in her affidavit sworn 22 September 2015 did the mother attest to any want of consent by the father in the events surrounding the naming of their child on or around (omitted) 2002.
Each of the mother and the father were cross-examined about the circumstances in which the child came to assume the mother’s surname, especially the events on or around (omitted) 2002.
Neither the mother nor the father were particularly impressive witnesses. The mother’s style in giving her evidence was less than forthcoming. She did not provide information freely nor at times fully. Often her evidence was drawn from her. Conversely, the father in many aspects gave discursive, rambling and unresponsive evidence, volunteering information that was neither sought nor probative in this litigation. In many instances I was required to intervene so as to maintain the relevance of the information that he wanted to volunteer.
The father agreed that he knew “pretty much immediately” after the birth of the child that the child had been given the mother’s surname.[6] In cross-examination, it was put to the father that when the child was back in Australia he took no steps to apply to the Court to have the child’s surname changed. In answer, the father said –
I didn’t think I had to bring the matter to court when we … could discuss it … I’ve brought it to court because I’ve tried and tried and tried and tried. If things could be sorted out, I didn’t have to go – I’ve come here as a last resort.[7]
The father admitted he knew that the mother’s other four children all had her surname. When asked whether the child was living in a household with her mother and her four half-siblings, all of whom had the mothers surname, the father said “[i]t doesn’t matter. Yes”.[8]
[6] Transcript of Proceedings, 25 February 2016, p.51 at lines 28-29.
[7] Transcript of Proceedings, 25 February 2016, p.52 at lines 10-13.
[8] Transcript of Proceedings, 25 February 2016, p.52 at line 39.
The following exchange between counsel for the mother and the father was illuminating –
Counsel:And you say at thirteen and a half that what this court should do is change [the child’s] surname to your name. Is that what you seriously ask this court to do?
Father:Well, [the mother] took my child’s rights. You took my rights and my child right (sic) and forced – it’s almost like if you steal something and it has been there a while, you’re allowed to keep it because you had it for a while. That’s what has happened because … they’re instructed to give [the child] my surname but
[the mother]went behind and just told the ‑ ‑ ‑
Counsel:… I’m just asking as a matter of reality your daughter is now thirteen and a half. She has had [the mother’s surname] all her life. It is the same surname that she shares with her siblings who live in the same household?
Father:How do you know she likes it?
Counsel:I didn’t say she likes it. I said she had it all her ‑ ‑ ‑?
Father:She may not like it at all.
…
I think the court understands but the truth is the truth. I’m the father. You understand. And [the child] has been forced to have [the mother’s surname] and it’s like it’s stuck there now because she has been using it for a while. I understand all that but, really, give me my rights. Give [the child] her rights.
Cross-examination continued -
Counsel:So you understand [the child] doesn’t have any ties to your surname …?
Father:… everything has been forced on me and my kid.
Counsel:… do you accept that there would be some impact on [the child] if her surname is changed at this point in a negative way? Do you accept there will be any negative impact on her?
Father: No, I don’t think it will be negative.
Counsel:You don’t think there’s any negative impact?
Father: I don’t really think it will be negative.
Counsel:So you don’t think she would have any embarrassment at school?
Father:Well, [the child] might be embarrassed with [the mother’s surname].
Counsel:She would be embarrassed by [the mother’s surname]?
Father:Than my name, yes.
...
Counsel:So you don’t think that [the child] would be embarrassed to have her name changed at thirteen and a half. She wouldn’t have any embarrassment with her friends?
Father:She might be very, very happy.
…
… my instructions were there and [the mother] went behind and changed the name.[9]
[9] Transcript of Proceedings, 25 February 2016 at pp.52-54.
The mother’s evidence about the circumstances of the naming of the child was equally imprecise. It is necessary to record the exchange between the mother and the father when questioned by the father (who, as pointed out above, was not represented by a legal practitioner in the final hearing before me). The mother said in evidence –
All I know is I gave birth in (country omitted) and it’s a (religion omitted) country and, you know, it wasn’t my fault I was – happened and I didn’t intend to have a baby in (country omitted) and they just – the Australian Consulate assisted me out of the country.[10]
The mother said that there were telephone calls made by Consulate officials, all of which were done in her absence. She said she did not recall any letters and that she did not recognise the communications between the father and the Consulate.
[10] Transcript of Proceedings, 26 February 2016, p.88 at lines 14-17.
The family consultant gave evidence in this proceeding. She prepared an extensive family report dated 13 March 2015 and she also gave viva voce evidence during the trial of this proceeding. The family consultant was a most impressive witness. Her report was thorough, measured, well considered and balanced. I have heavily relied upon it in reaching determinations in this proceeding.
Consideration in relation to the first issue – the child’s surname
The application before me related to the change of the child’s name from the name that she has used for 13 and a half years. The circumstances in which the child’s name was registered in the (country omitted) as the mother’s surname seemed to me to have marginal, or for that matter peripheral, relevance to the issue that falls to me to determine. The evidence of the circumstances in (omitted) 2002 about the child’s name on her birth certificate was less than persuasive. It is a fair distillation of events that the mother’s recollection of the events immediately after the birth of the child was inexact. The father invited me to conclude that over his protests the child’s surname was registered in the (country omitted) as the mother’s surname. The father invited me to conclude that his protests were revealed in the communications he had with the Australian Consulate on 17 July 2002 and 23 July 2002. The father’s fax to the Australian Consulate in (country omitted) dated 17 July 2002[11] contained no opposition to the registration of the child’s surname corresponding with the mother’s surname. In his fax dated 17 July 2002,[12] the father sought the assistance of the Australian Consul to transmit his letter to the hospital in which the mother and her newborn child were hospitalised.
[11] Exhibit 2, letter dated 17 July 2002 to the Australian Consul, (country omitted) from (omitted), signed by Mr Muir.
[12] Ibid.
On no construction of that communication dated 17 July 2002[13] could it be said that the father conveyed his protest about the child’s surname being registered as the mother’s, nor did that letter record any demand that the child’s surname be registered as the father’s surname. On (omitted) 2002, the child’s surname on her birth certificate was recorded as the mother’s surname even though the father’s full name was differently recorded. Then, three days later on (omitted) 2002, a Consular Officer with the Australian Consul General in (country omitted) wrote to the father recording the father’s consent to the issue of a passport in which the child’s surname corresponded to the mother’s surname.[14] There was no evidence of any protest by the father to the Australian Consulate in (country omitted) (or to anyone else on or after (omitted) 2002 on the subject of the child’s passport being issued) recording in it the child’s surname corresponding with the mother’s surname.
[13] Ibid.
[14] Exhibit 3, facsimile dated 23 July 2002 to Mr Muir from Ms K, Consular Officer – (country omitted).
Other evidence revealed that for a sustained period of time the child has lived in an environment in which she shares the same surname as her half-siblings and that she is known at school having the surname that corresponds with the mother’s surname.
The cross-examination recorded above revealed what seemed to me to be the father’s true purpose in this aspect of his application. It is a fair summation of that evidence to record that the father is presently unhappy that the child’s surname is not his.
The evidence of the family consultant did not bear upon the subject of changing the child’s surname. However, aspects of other evidence given by the family consultant provided guidance about the desirability or otherwise of making orders changing the child’s surname. The family consultant recorded that, following an interview with the child on 11 March 2015 and contact with the ICL along with telephone contact with the child’s school on 12 March 2015, the family consultant reported that the child impressed as a “polite, engaging and verbally capable young adolescent girl”.[15] The child said she did not wish to spend time or communicate directly with the father at that particular time. The family consultant recorded the child’s preference to continue the normality of the existing living situation in which the child lived with the mother. The family consultant further recorded that in her view the current reality appeared to be that the child did not have an established emotional connection with the father.
[15] Family Report prepared by Family Consultant Ms D dated 13 March 2015, p.9 at [25].
Since amendments made in 2006 to the Family Law Act 1975 (Cth) (“the Act”), considerations in relation to changing a child’s surname have been governed by the provisions of s.60CC of the Act. In making decisions under that section, the best interests of the child are the paramount consideration. The factors the court is required to consider in determining the best interests of the child are set out in the Act as “primary considerations” and “additional considerations”. The evaluation of those considerations is guided by specific objects and underlying principles found in s.60B of the Act.
As was pointed out by Moore J in Barker v Ferris,[16] a body of case law revolving around those two issues has evolved since the 1970s. Those cases pre-dated the 2006 amendments to the Act but they contain principles that remain apposite. However, in other cases that go to the issue of a surname some are of antiquity. In the House of Lords decision of Cowley v Cowley[17] (“Cowley”), it was held that a surname is founded in use and reputation and can be changed by using a different surname and acquiring that different surname by repute. Observations to similar effects were made in Chapman v Palmer[18] (“Chapman”). In the decision of the Supreme Court of New South Wales in Director-General, Department of Community Services v The Adoptive Parents,[19] Giles JA held (with whom Mason P and Campbell AJA agreed) that a child will generally acquire a surname through his or her parents’ acts and the assumption of others that the convention of hereditary family name applies. The Court also held that a name or names may be conferred on a child by his or her parents at or shortly after birth but a different name or names may be subsequently given to the child for example by a carer if the child is placed for adoption or by foster parents or by proposed adopting parents.[20] The utility of the decision in that case beyond the portions extracted above is peripheral as the case largely concerned the provisions of the Adoption Act2000 (NSW), legislation that is irrelevant for present purposes.
[16] [2008] FamCA 1112 at [2].
[17] [1901] AC 450.
[18] (1978) 4 Fam LR 462.
[19] [2005] NSWCA 385 at [29].
[20] [2005] NSWCA 385 at [35].
One of the most authoritative early statements of principle under the Act concerning the change of a child’s surname was given by the Full Court in Chapman.[21] Citing Cowley,[22] the Full Court recited the common law position that an adult may assume any surname by using such name and becoming known by it because a surname is not a matter of law but is a matter of repute. The Full Court held that the surname by which a child is known is generally the one entered by the parents on the child’s birth certificate, even where the parents separated before the birth of the child.[23] The Full Court held that a child will generally be known by the name given to that child by the parents at birth, a phenomenon that arises both from the parents’ acts and the assumption of others. The Full Court further held that a child will generally be assumed to have the surname of the parents or of the parent with whom that child lives. That assumption may arise without any overt act on the part of the parent.
[21] (1978) 4 Fam LR 462.
[22] [1901] AC 450.
[23] See D v B [1977] 3 All ER 751.
The last mentioned point is of particular importance in this case.
In Chapman,[24] the Full Court held that the surname by which a minor is known will depend almost exclusively on the actions and intentions of the adult or adults in whose custody the child is. The Full Court said it is in the power of the child’s custodian to ensure that the child is known by the surname that custodians choose whether as a member of the household, in the neighbourhood, in registering the child at school, in medical insurance, in taxation returns or for whatever purpose it is necessary or convenient to use a surname. The Full Court held that the custodians have the same capacity to change the child’s surname as to change their own. The Full Court said a child need not be given and need not retain the name of his or her parent or custodian but whatever name is chosen by his or her custodians must be established by reputation and by usage.
[24] (1978) 4 Fam LR 462, 466.
The Full Court held that the factors to which courts should have regard in determining whether there should be any change in the surname of the child include the following –
a)the welfare of the child as the paramount consideration;
b)the short and long term effects of any change in the child’s surname;
c)any embarrassment likely to be experienced by the child if his or her name is different from that of a parent with custody or care and control;
d)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage (if relevant); and
f)the effect of frequent or random changes of name.
In Beach v Stemmler[25] (“Beach”), a single judge of the Family Court of Western Australia (Connor J) made observations on the question of changing the surname of a child. Connor J paraphrased the observations in Chapman[26] in the following way –
a)a custodial parent is permitted to change the surname of a child without reference to the other parent and without reference to the court;
b)a custodial parent may apply to the court to have the child’s name changed;
c)the court, as a general rule, is reluctant to interfere with the right that a custodial parent has to change a name, unless the exercise of that right does not promote the welfare of the child; and
d)the enquiry is a positive one intended to promote the child’s welfare
[25] (1979) FLC 90-692.
[26] (1978) 4 Fam LR 462.
In addition to those set out immediately above, Connor J listed the following additional matters to be taken into account –
a)the advantages both in the short-term and in the long-term which will accrue to the child if her name remains as it is now;
b)the contact the father has had and is likely to have in the future with the child;
c)the degree of identification that the child presently has with her father; and
d)the degree of identification which the child presently has with her mother.
Many of the cases referred to above pre-dated the 2006 amendments to the Act. More recent illustrations of authorities at intermediate appellate level have nevertheless applied the learning revealed by those earlier cases. An illustration is the 2009 decision in Koldsjor v Addington[27] in which the Full Court of the Family Court of Australia applied the “best interests” criteria.[28] That said, the reasons of the majority (Bolland and Thackray JJ) did not contain any detailed discussion of the concepts advanced in such cases as Chapman[29] or Beach[30] (set out above) and it is not easy to divine the path of reasoning in reaching the conclusions ultimately held.
[27] [2009] FamCAFC 21.
[28] [2009] FamCAFC 21 at [98].
[29] (1978) 4 Fam LR 462.
[30] (1979) FLC 90-692.
A more detailed examination of the issue was given by the Full Court of the Family Court of Australia in Darley & Darley[31] (“Darley”). There, Strickland, Murphy and Forrest JJ analysed the considerations given in Chapman[32] to the matters to be taken into account in a case involving a change to the child’s surname.
[31] [2016] FamCAFC 10.
[32] (1978) 4 Fam LR 462.
Relevantly synthesised, in dismissing the appeal in respect of the orders of the trial judge concerning the change to the child’s surname, the Full Court said that the trial judge correctly exercised his discretion by taking into account the following matters –
a)the child’s birth certificate contained the mother’s surname;
b)the litigants confirmed that the child identified with the mother’s surname;
c)the father was unable to keep his resentment from the child if the child’s name were to be changed;
d)the child’s birth certificate recorded the mother’s surname;
e)the mother used that same surname in relation to all official documents including bank documentation, driver’s licence and school registration for the children;
f)at that child’s school the mother was known by a particular surname; and
g)no evidence existed that the children would suffer embarrassment by the adoption of a particular surname.
By no means is that list intended to be exhaustive but rather it is illustrative of certain of the factors that an intermediate appeal court has recently taken into account in determining the question of whether to accede to a request by a parent to change the surname of the parent of that child.
Applying the learning from the cases of Chapman,[33] Beach[34] and Darley[35] to the facts of this case, it is possible for me to state the conclusions I have reached –
a)first, the welfare of the child is the paramount consideration. Whatever may be the private wishes of the parents must be subordinated to the paramountcy of the welfare of the child;
b)second, the short and long-term effect of any change in the child’s surname must be considered. When the child attains her majority at the age of 18 she will be free to change the name if she wishes. She may choose not to do so. It is not possible (nor necessary, still less desirable) for me to make a prediction about that. However, between the date of this judgment and the date upon which she attains her majority, I am persuaded that the child is likely to suffer adverse consequences if her name is changed in accordance with the father’s wishes. I accept the evidence that the child is settled, well adjusted, happy and performing well at school. I am also satisfied that she is known by the name under which she currently operates, that being the name corresponding to the surname of the mother. To my mind, the child is likely to suffer a sense of dislocation and detachment if a change of her surname is imposed upon her now, with effect upon her for the rest of her school career;
c)third, having regard to the evidence from the family consultant to the effect that the child does not presently identify with the father, it is likely that the child will experience embarrassment if an alteration to her surname is made so that it is different to the name of the parent with whom the child lives on a day-to-day basis, namely the mother; and
d)fourth, having regard to the evidence of the family consultant, I am also satisfied that the child is likely to suffer a confusion of identity if a change of name is imposed upon her. It will be recalled that the family consultant gave evidence that the child was well adjusted and that the child had expressed the view that she had no or little significant connection with the father by reason of the father’s absence for most of the child’s life. To my mind, it would be antithetical to the best interests of the child to mandate upon her an alteration from her current name to that of the father’s surname, especially in circumstances where the child did not identify, at least not to any marked degree, with the father.
[33] (1978) 4 Fam LR 462.
[34] (1979) FLC 90-692.
[35] [2016] FamCAFC 10.
From the passages above it will be readily apparent that a high degree of venom pervaded the relationship between the mother and the father. In the father’s words, no trust existed between them. The mother had behaved proprietorially towards the child and the mother had steadfastly maintained her influence in the welfare of the child.
I am satisfied that the effect of any change in surname would have a seriously deleterious influence on the relationship between the child and the mother if I were to order that the child’s surname be changed to that of the father.
The last criterion set out in the decision of the Full Court in Chapman[36] related to the effect of frequent or random changes of name. While there is no evidence of frequency of name changes in this case, the proposed name change as urged by the father is random in the sense that the child would, if the father’s application were to be granted, change from a decidedly Anglo-Australian name to an (nationality omitted) name.
[36] (1978) 4 Fam LR 462.
For those reasons, in respect of the first issue in this case, I am not persuaded that it is in the best interests of the child to accede to the father’s request in ordering a change of name for the child.
Before leaving the subject of name change, two further observations are appropriate. First, counsel for the mother correctly identified that this Court has no jurisdiction to approve a proposed change of name for a child under the provisions of the Births, Deaths and Marriages Registration Act 1996 (Vic). Any such application must be made to the County Court of Victoria. So much was considered by a judge of this court in Leggett & Willis.[37] Second, in Chapman[38] the Full Court made observations directly on all fours with this case in the following terms –
[I]t must be remarked that there appear to be situations where one parent or the other, and possibly both, appear to attach far too much importance to the question of the child's surname. It is seen by some parents almost as a proprietary interest. Attitudes of this kind are unlikely to find favour with the court, and often seem calculated to destroy the relationship between the child and the parent in question. The court should give no encouragement to parents who seek to change a child's name for reasons unconnected with the welfare of that child nor to parents who oppose a change only to bolster their proprietorial interest in the child. The fact that the parents are haggling over the surname can of itself engender insecurity and confusion in the child's mind.[39]
[37] [2014] FCCA 1779.
[38] (1978) 4 Fam LR 462.
[39] (1978) 4 Fam LR 462, 471.
To my mind the precise circumstances in which the name of the child in the (country omitted) came to be registered in the name of the mother are of secondary importance to the considerations that apply under s.60CC of the Act. One of the reasons the father advanced for bringing the application to change the child’s name related to his own desire for the child to identify more closely with him. To my mind, that smacks of a parent seeking to advance some proprietorial interest in the child rather than having the welfare of the child as her or his uppermost and paramount consideration. When the child turns 18, she will be free to make her own decisions about her own ethnicity, cultural heritage and allegiances to her (nationality omitted) bloodlines. I will not impose that upon her now.
The second issue – equal shared or sole parental responsibility
The father sought an order for equal shared parental responsibility. The mother sought an order for sole parental responsibility. The Independent Children’s Lawyer supported the mother’s application for sole parental responsibility.
As is recorded above, I agree with the submissions of Ms Carter, counsel for the mother and Mr Dunlop, counsel for the ICL, that in the circumstances of this case, the presumption of equal shared parental responsibility has been rebutted and I also agree with Ms Carter and Mr Dunlop that an order for equal shared parental responsibility is not and would not be in the child’s best interests.
In her affidavit sworn 22 September 2015, the mother stated that since the date of the child’s birth, the father has spent very little time with the child. She swore that for the first seven years of the child’s life the father rarely attempted to visit the child or to contact the child,
did not send any greeting card to the child on birthdays or special occasions and did not attend the child’s kindergarten or school events. The mother swore that in 2009 or thereabouts, on a particular day when the mother attended the child’s school to collect the child, the mother was informed by the school principal that the father had attended the school and demanded that the child’s name be changed.
A more balanced account of the possibility of equal shared parental responsibility as advocated by the father as opposed to the sole parental responsibility as advocated by the mother is given in the family report. The family consultant conducted interviews with the mother, the father and the child along with the ICL and others. The family consultant also examined a number of court documents filed in this proceeding.
Relevantly, the family consultant remarked that the mother had been the child’s primary carer since birth and aside from some assistance provided by the father immediately following the child’s birth, the amount of time spent by the father with the child had been extremely limited. The family consultant recorded the contentions advanced by the mother to the effect that the father had failed to act in a “consistent and committed manner” towards the child.[40] Conversely, the family consultant recorded the mother’s description of herself as a committed parent to the child, meeting all of the child’s needs and providing the child with opportunities while acting in the child’s best interests. The family consultant also recorded the mother paraphrasing the child’s expressed preference that, at this particular time in her life, the child would prefer not to re-establish a relationship or spend time with the father. The family consultant also recorded the father’s contentions that he had in fact been involved in the child’s care when the child was very young, that the father believed the child wanted to see him, that she was curious about him and that she knew the mother was preventing any such contact. The family consultant further recorded statements by the father to the effect that the father believes that the child would benefit from the child having him around and spending time with him.
[40] Family Report prepared by Family Consultant Ms D dated 13 March 2015, p.2 at [3].
Independently, the family consultant recorded her own impression of the child as a “polite, engaging and verbally capable young adolescent girl”.[41] The family consultant also recorded the child’s independent comment to the family consultant that the child did not want to spend time with or communicate directly with the father at that particular time, that at her particular year level was a bad time to commence any such relationship and that she was undertaking a significant number of extra-curricular activities. The family consultant also recorded the expressed statement by the child that the father had not send the child a birthday or Christmas gift, “suggesting that he was not a ‘responsible adult’”.[42]
[41] Family Report prepared by Family Consultant Ms D dated 13 March 2015, p.9 at [25].
[42] Family Report prepared by Family Consultant Ms D dated 13 March 2015, p.10 at [25].
The family consultant went on to record that the child had told the family consultant that when the child was older she (the child) might see the father but not at the present. Importantly, the family consultant recorded that the child said to the family consultant “I don’t think of him as dad, I don’t call him Mr Muir”.[43]
[43] Family Report prepared by Family Consultant Ms D dated 13 March 2015, p.10 at [26].
The family consultant stated that the child had been raised in maternal care with limited contact from the father over the years and that the child appeared to have benefited from that maternal care and commitment with a closer bond existing between mother and daughter. The family consultant recorded that the child expressed her preference to continue a normal lifestyle which did not include active involvement from the father. The following is a poignant representation of the views of the family consultant –
The cumulative effect of extremely limited contact and communication over the years, the existence of a strongly established maternal bond and living environment, lack of continuity when past arrangements have been made in respect to arrangements and lack of positive outcome when counselling services have been organised has resulted in the current situation of openly expressed reluctance of [the child] to engage with
[the father]at this time in her life. It is considered that it may be in the best interests of [the child] not to actively pursue formalised future arrangements at the current time. It is further considered that [the child] identifies herself as a member of
[the mother’s]family, not acknowledging or being familiar with the paternal surname.[44]
[44] Family Report prepared by Family Consultant Ms D dated 13 March 2015, p.13 at [36].
In the face of those observations, counsel for the mother submitted that the presumption of equal shared parental responsibility was rebutted by the circumstances of this case, supporting the conclusion that an order for equal shared parental responsibility would not be in the best interests of the child.
So far as the elements of s.60CC of the Act are concerned, I address those now.
Consonant with the obligations in s.60CC(1) of the Act, I have considered the matters in ss.60CC(2) and (3) of the Act. In formulating the orders in this case, I have kept in mind the primary considerations of the benefit of the child having a meaningful relationship with both parents as well as the need to protect the child from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence. The orders that have been formulated in this case recognise the benefit of the child remaining with the mother and living in her maternal care while at the same time allowing the child the opportunity to choose when and in what circumstances the child will interact with the father. No evidence was adduced in this case to suggest that the child needed protection from physical or psychological harm or exposure to abuse and neglect or family violence.
So far as the matters canvassed in s.60CC(3) of the Act were concerned, the views expressed by the child were recorded in the detailed report of the family consultant which I have considered in depth. Having regard to the conclusion expressed by the family consultant that the child was mature, I have attached considerable weight to the child’s views, especially the child’s views in relation to her expressed lack of enthusiasm to spend significant amounts of time with the father.
The nature of the relationship between the child and each parent was the subject of evidence from a number of sources. Each parent spoke about the relationship each enjoyed with the child. Overwhelmingly, the preponderance of evidence has historically favoured the relationship between mother and daughter rather than between father and daughter. In part, that is reference to the fact that the father has, in large measure, failed to avail himself of the opportunity to participate in decision-making concerning long-term issues in relation to the child or spend time with the child or communicate with the child. That was of his own making and of his own choice. While the father expressed some challenge to the fact, other more reliable evidence supported the conclusion that the father had been absent from the life of the child for the majority of the child’s life.
Further, on his own admission the father conceded in cross-examination that he had failed to fulfil his parental obligation to maintain the child. He advanced the reason that his income as a musician fluctuated.
The likely effect of any change in the child’s present circumstances in which she lives with the mother and the likely effect of the child caused by any separation from the mother will be significant. Based on the evidence, the conclusion is inescapable that the mother and the child have a very strong bond and that the mother has been protective, caring, nurturing and beneficial while raising the child to this point in the child’s life. The child is well-adjusted at school and is performing very well. The family consultant has cautioned against the active pursuit of a formalised arrangement between the child and the father having regard to the fact that, according to the current reality, the child does not have an established emotional connection with the father.
No evidence was addressed in the case to the matters canvassed in s.60CC(3)(e) of the Act.
So far as the capacity of each of the child’s parents was concerned to provide for the needs of the child including emotional and intellectual needs, the evidence overwhelmingly supported the mother.
The maturity, lifestyle and background of the child and of the child’s parents similarly favoured the mother. Since birth, the child had lived in the mother’s household together with the child’s step-siblings. The child appeared to enjoy a very comfortable existence in which she attended an exclusive girls’ school and was exposed to things and events to which the father was unlikely to expose her.
As the child was not Aboriginal or of Torres Strait Islander heritage, the provisions of s.60CC(3)(h) of the Act were inapplicable.
Each parent demonstrated a high degree of enthusiasm towards the child. However, in cross-examination, the father gave evidence that amounted to him having little understanding of the obligations imposed on a parent by the concept of equal shared parental responsibility. While I do not doubt that he presently embraces a warm and enthusiastic attitude towards his daughter and I also do not doubt that his other children have received the benefit of his enthusiasm as a father, the observations of the child, suggesting that the father was not a responsible adult have weighed heavily upon me for the purposes of s.60CC(3)(i) of the Act.
The evidence did not reveal any family violence.
So far as the desirability of making orders that would be least likely to lead to the institution of further proceedings in relation to the child is concerned, to my mind the orders that have been formulated adequately balance a collection of issues. They are –
a)the expressed wishes of the child;
b)the recommendations of the family consultant;
c)the evidence of the father;
d)the evidence of the mother;
e)the preferences expressed by the ICL; and
f)the practical reality the child (a little more than four years from her majority) has expressed the view that she is presently reluctant to engage with the father at this time of her life.
Of course, there can be no guarantee that between the date of these orders and the date on which the child attains her majority there will be no further litigation between the mother and the father in respect of the child. The history of the disputation between the mother and the father is such that it would be unsurprising if further litigation emerged, despite the care exhibited by the family consultant to formulate her recommendations and the considerations into which I have delved in formulating these reasons and crafting the orders made in this case.
The third issue – the child live with the mother and spend time with the father
Once properly developed, the contentions in respect of the third issue focused upon the desirability of my making an order that required the child to spend time with the father. The essence of the debate was the propriety or otherwise of my compelling the child to spend time with her father having regard to the fact that she did not have an established emotional connection with her father.
The father urged me to make an order in his favour. The mother resisted any such order, as did the ICL.
For reasons canvassed above, I am satisfied that the child does not presently have a sufficiently developed emotional connection with the father to warrant the imposition of an order upon the child compelling her to spend time with her father. The child appears to be mature beyond her years. To my mind, it would be antithetical to her proper development to impose any regime upon her, against her wishes, mandating that she spends time with the father given that her preference was to continue with the normality of her existing arrangements with her mother and her step-siblings.
Much of the attention in respect of this issue was directed to the desirability of the child herself being permitted to nominate the times and precise circumstances in which she might choose to spend time with her father. The mother and the ICL agreed that I should leave it to the child to determine the time in circumstances in which she might choose to spend time with her father.
Before acceding to any such request and realising that such an order would be made over the protests of the father, I carefully examined the evidence, especially from the family consultant, in relation to the reasons why the child exhibited apparent reluctance to spending time with the father. In her viva voce evidence, the family consultant spoke of the interview that she conducted with the father and also with the child. When the child was offered the opportunity to spend time with her father in the family consultant’s room, the child declined stating that she understood that her father was present and that she had the opportunity of meeting with him and that the child made the decision on that day to not accept the offer. The family consultant gave evidence that she was particularly mindful that the child was a well-adjusted 13-year-old who was doing well at school, engaged in other activities and who did not impress upon the family consultant on the day of the interview as having particular vulnerabilities or issues of immaturity. The family consultant said that if she had made observations of a child that was vulnerable in any way, if the child was uncertain and if she looked anxious, looked uncertain about expressing her views or such like then that would have been something about which the family consultant would have made an assessment as to the child’s maturity and emotional ability to make the statements about her intentions and how she felt. The family consultant said that her recommendations did not seem unreasonable. In answer to a question from Mr Dunlop, the family consultant told me that she believed that it was in the child’s best interests to have the ability to make decisions about her interaction with her father.
The family consultant impressed me enormously as a witness with considerable expertise in her chosen profession. It was apparent to me that in giving the evidence she did, the family consultant balanced the competing considerations advanced by the father against the realities, needs and expressed wishes of a child aged 13-and-a-half years.
To my mind it is significant that for most of the child’s life the father had been absent. Very recently, he exhibited a desire to be part of the child’s life. To my mind it is unrealistic for him to expect to insinuate his daily existence into that of the child in an unchecked manner. As was apparent from the report of the family consultant, the child had little to no experience at all with the father having regard to the fact that the father was absent for most of the child’s life to that point in time. To my mind it is both sensible and reasonable as well as being practical to introduce the father to the child, despite their biological connection, in a more staggered and structured way in which the wishes of the child are given full effect. I accept that the child is emotionally developed and sufficiently mature to make the decision expressed to the family consultant about the circumstances in which she wishes to interact with the father.
In those circumstances, it seems to me to represent the best interests of the child to accede to the position urged by the ICL that the father have such contact with the child as the child instigates and not otherwise. If that has the consequence that the child instigates no contact with the father, then that will give effect to the child’s wishes. In my judgment, it is not in the child’s best interests for me to impose a regime upon her by which she must interact with her father in predetermined circumstances and at predetermined times.
The fourth issue – the child’s passport
The final issue that fell for determination related to the child’s passport.
The precise tenor of the application on this fourth issue shifted during the life of this application. In his initiating application filed
5 December 2013, the father sought an order in the following terms –
THAT the Department of Foreign Affairs and Trade
(Passport Office) be ordered to issue a new passport for the child [with the father’s surname].[45]
[45] Initiating Application filed 5 December 2013, p.2 at order 4 of ‘Final orders sought’.
In his outline of case,[46] the father indicated that he sought orders that the mother is not authorised or permitted to apply for or receive an Australian passport and/or renew a passport for the child without first obtaining his written consent.
[46] Outline of case of the applicant filed 25 January 2016.
During the trial of this proceeding, the mother, not the father, initially said she sought an order permitting her to renew the child’s passport as and when required. After the matter was stood down briefly, Mr Dunlop informed me that the father did not have an issue with the passport being issued but that the father wanted to retain physical custody of the passport, a concept opposed by the mother. Ms Carter explained that the child’s passport was renewed in 2012 and that the renewal of the passport will only occur once more before the child attains her majority.
The father eventually stated that he was concerned that the mother would not return to Australia with the child if she travelled with the child and that the only way the father could prevent against the risk that the mother would not return to Australia with the child was upon his physically retaining possession of the passport.
The father gave evidence that the mother was romantically linked to a man in (country omitted), that she visited the man in (country omitted) and that the mother was likely to take the child to visit the man in (country omitted) never returning to Australia. The father submitted that the mother presented an unacceptable flight risk if she were permitted to travel with the child (or that was the substance of his submission).
Ms Carter submitted that I should refuse the father’s application in respect of the passport because the mother was not a flight risk and in reality, the father’s application was no more than an illustration of the father’s desire to dominate and control the mother and the child. Counsel for the ICL adopted the mother’s submissions.
Turning first to the likelihood that the mother was in reality a flight risk, I am not persuaded that she is. The child is being schooled in Melbourne at an exclusive girls’ school at which the child is excelling. It is inconceivable that the mother will jeopardise the ongoing progress of the child by fleeing, whether to (country omitted) or anywhere else. The child’s life is in Melbourne and the child’s future between her current age and her end of schooling is in Melbourne. The child’s family lives in Melbourne. While I accept that the mother’s financial circumstances enable her to travel with the child to (country omitted) periodically, I am not persuaded that between today’s date and the date upon which the child attains her majority, the child is at risk of permanently departing Australia in the manner asserted by the father.
Turning next to Ms Carter’s submission that the father’s application in respect of the passport is in reality the exhibition of domination and control, I agree. It ill behoves the father who for the majority of the child’s life has had very little to do with the child to re-enter the child’s life and at once attempt to control the child even to the extent of having the final say in whether the child travels outside of the limits of the Commonwealth of Australia.
To my mind, underpinning the father’s application in respect of the physical control of the passport is no more than another manifestation of the deep-seated mistrust and resentment exhibited between the mother and father. I will not tolerate, countenance or sanction the projection of that mistrust and resentment onto the child.
I refuse the father’s application in respect of his physical retention of the passport.
Conclusion and orders
Counsel for the ICL invited me to make orders in a form which in large measure mimicked the form of orders urged by the mother. I am willing to make orders in those terms.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 7 July 2016
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