Pavlov-Decker and Meyer
[2009] FMCAfam 567
•5 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAVLOV-DECKER & MEYER | [2009] FMCAfam 567 |
| FAMILY LAW – Parenting – change of child’s name. |
| Family Law Act 1975, s.60CC |
| Beach & Stemmler (1979) FLC 90-692 Chapman & Palmer (1978) FLC 90-510 Flannagan v Flannagan (2001) FLC 93-074 Fooks v McCarthy (1994) FLC 92-450 Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 |
| Applicant: | MS PAVLOV-DECKER |
| Respondent: | MR MEYER |
| File Number: | SYC 4042 of 2008 |
| Judgment of: | Kemp FM |
| Hearing dates: | 21 January & 24 April 2009 |
| Date of Last Submission: | 24 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Doolan Wagner & Callaghan |
| Counsel for the Respondent: | Ms Langley |
| Solicitors for the Respondent: | Uther Webster & Evans |
ORDERS
Save as to order 3 below, the mother’s application to change the surname of the child, [X] Meyer-Decker (“the child”) be dismissed.
That the father’s application in his response to change the surname of the child be dismissed.
That the mother be permitted to do all acts and things and sign all documents as may be required to change the name of the child “[X] Meyer-Decker” by the insertion of the word “Pavlov” as an additional middle name before the child’s surname of “Meyer-Decker” and after the word “[X]”.
Within fourteen days of today’s date (or such other date as is arranged), a family consultant in the Sydney registry of this Court shall attend upon the child at Level 2, of the Family Court of Australia Building, Goulburn Street, Sydney for the purpose of explaining to him the effect of these orders.
If any party seeks costs, an appropriate application to my chambers may be made within 21 days of today’s date and the Court will deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within that time period, there will be no order as to costs.
All outstanding applications (save as to costs) otherwise be dismissed.
All exhibits tendered in these proceedings, be returned at the expiration of 1 calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect the subpoenaed material produced and return it to the owner in 14 days.
The matter be removed from the list of cases awaiting finalisation.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Pavlov-Decker & Meyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4042 of 2008
| MS PAVLOV-DECKER |
Applicant
And
| MR MEYER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the mother’s application filed on 10 July 2008 seeking various orders with respect to the child, [X] Meyer-Decker, born in 2001 (‘the child’). A number of those proposed orders were later the subject of consent orders made on 17 October 2008.
The only matters currently before the Court relate to proposed orders 1, 2, 3 & 6 of that application, which are to the following effect:
i)That the mother be authorised and permitted to do all acts and things and sign all documents as may be required to enable the name of the child to be changed to and, thereafter, registered as "[X] Pavlov-Decker";
ii)That the respondent father do all such acts and things and sign all documents as may be required to give effect to the above order, failing which, the Registrar of the Federal Magistrates Court of Australia at Sydney be empowered to sign such documents or things on behalf of the father;
iii)That the child be known as [X] Pavlov-Decker.
iv)That the respondent father pay the applicant mother's costs of and incidental to these proceedings.
The father has filed a response on 25 August 2008 which relevantly seeks the following orders:
i)That the parties do all acts and things necessary to ensure that the Registrar of Births, Deaths and Marriages registers the name of the child as "[X] Meyer".
ii)That the mother pay the father's costs of and incidental to the proceedings.
The mother's application is supported by the following affidavits:
i)Her affidavit sworn on 10 July 2008;
ii)Her affidavit sworn on 26 September 2008;
iii)The affidavit of the mother's husband, Mr Pavlov, sworn 11 November 2008;
iv)The affidavit of Ms A sworn 13 November 2008; [received as an aide-memoire for the Court’s reception of audio material referred to below] and
v)The affidavit of Ms A sworn 21 January 2009 [received as an aide-memoire for the Court’s reception of audio material referred to below].
The respondent father relies on his affidavit sworn 22 August 2008.
Only the parties and Dr Vardanega were cross-examined.
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
Z
Dr Vardanega’s report released 12/11/08
12/11/08
The Court
A
Copy of both sides of the mother’s Medicare card
Applicant mother
1
Letter from the mother to the father, post-marked 10 March 2002
10/03/02
Respondent father
2
5 photographs of a birthday party
Respondent father
3
3 photographs (with the child in each photograph)
Respondent father
4
Change of name file (AM4770/2005)
Respondent father
B
2 CDs containing relevantly 4 recorded conversations, 3 on the first CD and one on the second
Applicant mother
The Court, on 17 October 2008, made parenting orders to the following effect:
(1)That the child live with the mother;
(2)That the father communicate with the child by telephone as follows:
1. During school terms, each school day between 3 pm and 3.10 pm.
2. During school holidays, public holidays and each Saturday and Sunday of school terms, between 2 pm and 3 pm.
3. At such other times as the parties may agree.
(3)That the father shall cause a mobile telephone to be provided to the child and shall, at all times, ensure that the mobile is kept in credit.
(4)That the mother shall do all acts and things necessary to ensure that the mobile, as provided to the child, shall be turned on and fully charged at the times as provided for in the above order.
(5)That the mother do all acts and things necessary to authorise the school that the child attends to provide to the paternal grandmother copies of school reports, all other forms for school photographs of the child, certificates and/or awards that may be awarded to the child from time to time, newsletters and all other documents pertaining to the child's progress at school and activities that the child may engage from time to time.
(6)That each of the parties be restrained from speaking to the other on occasions that the father telephones the child pursuant to these orders.
(7)That, in the event that the mother is unable to facilitate the telephone call from the father to the child pursuant to these orders on a school day, due to the mother's work commitments, then the father shall have an extra telephone call with the child on the next non-school day for each day that the mother is unable to facilitate the call from the father to the child.
The Court further noted the following matters:
(8)The Court notes that the parties have agreed that the mother shall open an bank account in the child's name and shall provide to the father details of such bank account and the father will cause to be deposited in such bank account the sum of $500 per month by way of child support.
(9)That the Court notes that the parties have agreed to do all acts and things necessary to instruct the Child Support Agency to release the balance of moneys standing in the father's credit in relation to the child support assessment in respect of the child to be released to the mother.
(10)The Court notes that the parties have agreed to enter into a child support agreement in terms of notation (8) as above.
Further, the Court in this matter had an application brought by the paternal grandmother; namely, Mr M, for certain parenting orders in respect of the child.
On 13 November 2008, the Court, made by consent, various orders with respect to the paternal grandmother's application. The Court noted that her application was otherwise dismissed and that, as final orders had been entered into with the paternal grandmother, she would take no further role in the proceedings.
Those final parenting orders were to the following effect:
i)That the paternal grandmother spend time with the child as follows:
1. Excepting school holiday periods and excepting the month of September, on the first weekend in each month from after school Friday until 4 pm Sunday evening provided that, in the month of September, the child spend time with the paternal grandmother on the second weekend from after school Friday until 4 pm Sunday, provided also that the time that the child is to spend with the paternal grandmother commences after sport on Saturday during sport seasons.
2. For one week on each June/July school holiday period and one week in the Christmas school holiday period by agreement, failing agreement, for the first half of the June/July school holiday period in years ending in even number and the second half of the June/July school holiday period in those years ending in an odd number and for the period 9 to 16 January in the Christmas holiday period.
3. From 6 pm Friday until 6 pm Saturday in Easter periods in those years ending in an even number and from 6 pm Saturday until 6 pm Sunday in Easter periods in those years ending in an odd number.
4. In the Christmas period each year, from 1 pm Christmas Day until 5 pm Boxing Day.
5. That, during periods of time that the child spends with the paternal grandmother, the child is not permitted to come within one kilometre of any prison or correctional facility in which the father may be incarcerated.
6. That, during the periods in which the child spends with the paternal grandmother, the paternal grandmother and/or the child's paternal aunt, Ms M, shall be the primary carers and shall be responsible for the care of the child.
7. That, in event that both the paternal grandmother and the paternal aunt, Ms M, are unable to care for the child due to illness or any other circumstances, then the paternal grandmother shall ensure that the mother is so notified to enable the mother to collect the child as soon as practicable.
8. That in the event that the child is unwell and unable to spend time with the paternal grandmother, then the mother will provide the paternal grandmother with notice of such illness as soon as possible and will do all things necessary to arrange for the paternal grandmother to spend additional time with the child when he is feeling better.
9. That, during the periods that the paternal grandmother spends time with the child, she shall ensure that the child sleeps at her place of residence, currently Property W, provided that, if the paternal grandmother intends to spend overnight time with the child away from her residence, that she provides the mother with notice of her intention to spend overnight time away from her residence.
10. That the "drop off" and "pick up" of the child, pursuant to these orders will take place at the paternal grandmother's residence at Property W or where she shall reside from time to time.
11. That both the paternal grandmother and the mother do all things necessary to facilitate the child spending additional time at either parties' residence should the child indicate a desire to do so.
12. That, during periods that the child is spending time with the paternal grandmother or living with the mother, the paternal grandmother and the mother do all acts and things to ensure that the child not attend any Court proceedings or attend any activity or task associated with any Court proceedings.
The matter was initially set down on 17 October 2008 for hearing on 13 November 2008 with an estimate of one day.
On 31 October 2008, the Court made an order for the appointment of Dr Lucia Vardanega to prepare a Family Report to consider the mother’s application to amend the surname of the child. Dr Vardanega prepared a report but that report was not released until 12 November 2008.
On 13 November 2008, the proceedings were further adjourned to 21 January 2009 to enable Ms Langley, Counsel for the father, to take detailed instructions and for there to be some further evidence and for the transcription of certain telephone conversations recorded on two compact disks.
The father is currently on remand at [S] Remand Centre awaiting a committal hearing in respect of a number of charges including drug charges of supply (a commercial quantity of cocaine) and importation, money laundering and driving while disqualified. Bail was refused in July 2007 and the father has been incarcerated for some 18 months pending the allocation of a committal hearing date. The father gave evidence that he was to plead “not guilty” to all charges and that he was hopeful of a committal date being set in about May 2009. As at the resumed hearing on 24 April 2009, no committal date had yet been set.
The following is a short chronology:
a)The father was born in 1974 and is currently 34 years of age.
b)The mother was born in 1976 and is currently 32 years of age.
c)The parties commenced a relationship in 1994 and were married in 1999.
d)In October 2001, the father and the mother's brother were incarcerated at [J] Correction Centre.
e)In January 2002, the father's mother took the mother and the child to the United States of America to visit the father’s extended family for approximately three months.
f)There is a dispute as to the date of separation, the mother asserting January 2002 and the father asserting August 2002. Notwithstanding that, the date of separation referred to in the application for the divorce was 15 December 2001 and a divorce was granted, on an uncontested basis, on 29 June 2003.
g)In July 2002, the father was involved in a car accident and hospitalised for about three weeks. Upon discharge from hospital, the father went to his mother's home to recuperate.
h)In late 2005, the father asserts that the mother informed him that she wished to change the child's name but the father did not consent.
i)On 14 November 2005, the father commenced paying $500.00 child support.
j)On 18 November 2005, orders were made by the Federal Magistrates Court at Parramatta in relation to the child's surname to the following effect: The child's name was changed to "Meyer-Decker". These orders were made ex-parte with the father asserting that he had no knowledge of the proceedings and the mother asserting that at the time she made application for name change she did not know the whereabouts of the father to serve him with the Court documents.
k)On 20 December 2005, the father paid $500.00 child support.
l)On 6 February 2006, the father paid $1,000.00 child support.
m)On 27 May 2006, the mother gave birth to a child, [Y] Pavlov-Decker, now currently aged two and a half years.
n)In late 2006, the father commenced paying $23.00 per week child support.
o)On 13 January 2007, the father married Ms Y. There are no children of that relationship.
p)In January 2007, the child commenced school.
q)In February 2007, the father and the mother had a disagreement about the child and the mother disconnected her mobile telephone number and sent a text message that she would not be contactable and that she would call every second Thursday to confirm a fortnightly Saturday visit with the child.
r)In February/April 2007, the mother arranged with the paternal grandmother for her to spend time with the child.
s)In June 2007, the child spent his last time in the physical presence of the father. The father was arrested on the charges referred to above with bail refused. Subsequently, the father's current wife was also arrested. By agreement between the father and the mother, the father has not seen the child but speaks with him regularly by telephone. The child has been told the father is currently overseas.
t)On 9 June 2007, the mother married Mr Pavlov (“Mr Pavlov”).
u)In December 2007, the mother gave birth to a third child, [Z] Pavlov-Decker, now aged one year;
v)On 21 December 2007, the mother's solicitors wrote to the father seeking his consent to the child's change of name;
w)On 10 July 2008, the mother commenced these proceedings.
On the final hearing, the mother was represented by Mr Levy of Counsel and the father was represented by Ms Langley of Counsel.
When the hearing commenced on 21 January 2009, the mother gave evidence and was cross-examined. It was put to the mother that she had sworn incorrect dates as to the date of separation. The mother drew a distinction between emotional separation and actual separation. Notwithstanding her swearing that the parties separated in January 2002, a letter written by the mother in about March 2002 was placed into evidence which indicated that she was on good terms with the father. Her affidavit which stated that she had separated in January 2002 at para.4 only some three paragraphs later, asserted a separation date of some six months after the child’s birth which would have been a separation in about October 2001. Again, the Court notes that the date in the divorce document which was not contested by the father, asserted a separation date of 15 December 2001.
The mother's evidence was further to the following effect:
a)That the child wished to change his name as he questioned why it was different from his half-brother, [Y]’s, as he had seen the names on the mother’s Medicare card and letters from the sporting club at [W] and the Kid’s Club at [L].
b)The mother calls herself both “Ms Decker” and “Ms Pavlov-Decker”.
c)The mother said that the child had said to her that he was “uncomfortable” to talk to the father about his wish as he understood it would upset him and he did not want him to get angry.
d)The mother denied that it was her that wanted to change the child’s name.
e)The child is not being teased at his school, [S] School where he is currently in year 2. The school is the junior school associated to the [B] School and is part of its campus. The high school and junior school appear to have a common playground.
f)The child’s siblings are not yet old enough to attend school and the child’s expressed concerns of being teased are hypothetical. [Y] will not start school until 2011/12 when the child will be in years 4/5. [Z] will not start school until 2013 when the child will be in year 6. While there may be a cross-over, the child will be substantially older at that time.
g)Subject to the mother and her husband being able to afford school fees, [Y] and [Z] will attend at the same school as the child.
At the conclusion of the mother's evidence, the Court having been informed that the father did not seek to cross-examine the mother's husband, the father was called. The father gave evidence by video-link from [S] Remand Centre. His cross-examination commenced and, at a certain point, Mr Levy indicated to the father that he intended to proceed to cross-examine on issues the subject of Dr Vardanega's report. The father indicated that he had not read that report. This caused some confusion and concern as, in accordance with Mr Levy's submissions, the matter had been adjourned from November until January to enable that report to be discussed and appropriate instructions obtained from the father. Ms Langley indicated that she understood that the report had been sent to the father. Nevertheless, the cross-examination by Mr Levy could not continue in light of the father's revelation.
Accordingly, the Court stood the matter down to enable Ms Langley to obtain suitable instructions and, at approximately 2.30pm, the Court was informed that there would be a joint application for an adjournment. That application was granted with the applicant mother's costs reserved.
Further, when the matter came on for hearing, the Court was informed that Dr Vardanega would be available by telephone to give some evidence as the father wished to ask a number of questions arising out of her report. The Court was informed that Dr Vardanega was in New Zealand and that, during the course of the day, verbal and text messages were left for the doctor on her mobile phone number. However, there was no response from the doctor at or about the time of the adjournment. The matter would need to have been adjourned in any event to accommodate Dr Vardanega giving evidence.
The proceedings were stood over for further hearing on 24 April 2009 when the father’s cross-examination concluded.
The Court arranged for the father to give evidence via a video conference system. However, the Court accepts that it is no substitute for the various parties and witnesses being physically in the same location as the Court, where the judicial officer has the opportunity to more closely observe them. In Dearman v Dearman (1908) 7 CLR 549 at 561, Issac J said:
“A look, a gesture, a tone or emphasis, a hestitation or an undue or unusual alacrity in giving evidence will often lead a judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type”.
This technology was a considerable advance on taking evidence via the telephone. In all of the circumstances, the Court is of the view that it can assess the credibility of the father who gave evidence by means of this process. The inherent lack of physical proximity however, encouraged the father to give answers to questions before Mr Levy of Counsel had finished asking them. The effect of this was that the father took on an aggressive approach to the process of his cross-examination. This was not entirely helpful as there were a number of his answers which were inaudible.
Dr Vardanega’s report, followed interviews with the mother, her partner and the child and the father at the [S] Remand Centre and sets out the following matters.
a)The parties provided quite different accounts of the history of the child’s relationship with the father after the parties’ separation. The mother reported that she fostered the relationship between the child and the father and his extended family. The father asserted that he spent time with the child on a fortnightly basis and in the period prior to his arrest in 2007 the child was with him every Saturday.
b)
The child currently lives with the mother and her partner,
Mr Pavlov, and their two children [Y] Pavlov-Decker born in 2006 (aged 3 years) and [Z] Pavlov-Decker born in 2007 (aged 1 year).
c)The mother had been working for Centrelink but had recently completed [omitted] qualifications and hoped to secure work as a [omitted].
d)The child spends time with his paternal grandparents and aunt on weekends as arranged between the mother and the paternal grandmother.
e)The child has a mobile phone and speaks with the father almost daily. The mother described this as “good for [X]”.
f)The mother presented as “an articulate and out-going person” who described her cultural background as “Australian born Arabic”.
g)The mother reported her application was a response to the child’s views which, she said, he had been expressing for some time.
h)The mother said she still has some fears for her safety, if the father was to know where she lived.
i)The mother said she was the child’s consistent care-giver with only sporadic assistance from the father.
j)The mother said she wanted the child to have a relationship with the father and his family. The child is spending approximately one weekend in three with the father’s family and on special occasions.
k)The mother said there was a strong relationship between the child and Mr Pavlov. She claimed that the child identified strongly with that family unit which included her, his step father and two half siblings. She referred to the child as having “a big part in the lives of his brother and sister” and “really being responsible as an older sibling”.
l)The mother claimed that, since the birth of his half brother, [Y], the child had remarked that he perceived himself as different to others in his family. She stated that this first came to her attention when he mentioned to her once in the doctor’s waiting room after seeing a Medicare care with names on it, that he had a different name to that of his half brother and that he has also expressed some apprehension to her about being different to his half siblings at school. The mother claimed that the child was becoming increasingly aware of the differences between himself and the remainder of the family and cried about it and now “starts looking for it”. She stated that when the child becomes distressed her response is to “explain to him that we love him, that we’re family and are all the same”.
m)The mother in her affidavit material also referred to the potential negativity the name “Meyer” conjured up given the father’s arrest and the publicity associated with it and the possibility this will be revisited on his committal hearing and trial, if committed.
n)The mother said that the child is progressing very well at school. She described him as happy but emotionally sensitive and that the extent of his sensitivity was evident in his reaction to wanting to change his name.
o)The father presented as “defeated and disadvantaged in the proceedings because of his incarcerated status”. He stated that his word “won’t carry much weight because I’m in here”.
p)The father believed the mother’s actions were not child focused but rather designed to “kick me when I’m down”, “do my head in”, “to control me and strip me of my manhood and make me suffer”. He described the mother as a “liar, cheat, disgraceful, vindictive, manipulative and jealous and not over me”. He considered the mother’s actions as a way of moving Mr Pavlov into the role of “a new father”.
q)The father referred to his Assyrian heritage and the importance of the family name in that culture.
r)The child was baptized in the Catholic Church. The child’s christian name, [X], was reported by Dr Vardanaga as being the same as his paternal grandfather’s, but the evidence of the father was that it was the father’s grandfather (that is the child’s great-grandfather).
s)The father said that the mother’s request was disrespectful and stands to destroy him, as well as his family.
t)The father believed the child was echoing the mother’s views and the child did not understand the implications of a name change. The father referred to his strong relationship with the child. He referred to their shared interests in football, motorbikes, outdoor pursuits and animals.
u)The father stated that it would be difficult for him and his family to maintain contact with the child should his name be changed and he believed that he would have no option but to sever any contact with the child should the name change application be successful. This was the view that clearly worried Dr Vardanega. The father, however, in his oral evidence said that that was false. Indeed, his evidence was clearly that he loved his son unconditionally. That for him the child came number “one” and that whilst he would be hurt, upset and shamed if the mother’s application was granted, he would not take that out on his son. He said that he was not vindictive and nothing was going to affect his love and support for the child. He said he would never sever his relationship with his child or abandon him.
v)Mr Pavlov stated he was of Macedonian descent and had been a long standing close friend of the mother’s brother. The father had also been a friend of the mother’s brother. Mr Pavlov supported the mother’s application. He stated that he thought there were times when the child felt torn between the two families and he “has learned to adapt and play a role” in order to be accepted.
w)The child was aged 7 years and 7 months at the time of the report and presented as a “thoughtful, quietly spoken and well mannered boy”. He spoke openly about both of his parents and his respective extended families. He listed the people he loves as his brother and sister, his mother and Artu being “Aunt” (but asserted by Dr Vardanega to be Mr Pavlov), his uncle and Buba (the father). In respect of Mr Pavlov he said “he always likes to play with me. He gives me hugs and kisses me. He is a nice Dad not a mean Dad”. As for the father, he said “he’s nice too. They are both good. I love them both”.
x)The child disclosed that he had not spent time with his father for a period because “he is working overseas” and added “I miss him”. He stated that he speaks with his father almost daily on the telephone and asked “when he’s coming back”. The child stated that the father had told him “soon”.
y)The child reported a recollection of the activities he was involved with, with the father.
z)The child stated that he wanted to change his name because “I don’t want the children to tease me why my name is not like my brother and sister. If my brother and sister come to the same school they will tease me”. [X] stated that he feels “sad” that he had a different name to his siblings and sometimes he cries about it. He stated that he talks to the mother about his feelings and that she tells him “that maybe I’ll change my name or not”. The child stated: “Mum would be happy if I change my name. She’d be happy because I would be happy”.
aa)Dr Vardanega requested the child tell her if there were other occasions when he wished his name was different and he told her “when I see the mail. Meyer is only me. I want to be the same as my brother and sister. I want the Judge to change my name, then I’ll be happy every day. At school I won’t get teased, because normal people, their brother and sister have the same name, but I don’t”.
bb)Throughout the interview he repeated several times that “I want to be the same as my family” and “when I saw the mail I first wanted to change my name. That was a long time ago this happened”.
cc)The child stated that the mother told him “Meyer name won’t go away”. Whilst “in the other house, they say they just want Meyer, not Pavlov”.
Dr Vardanega in her evaluation stated:
a)It is important for the child to have the opportunity to form a relationship with both parents and their respective extended families as “an integral part of him consolidating his self esteem”
b)Because of the father’s detention it is difficult for the child to spend time with him.
c)The mother has assisted the child maintain, through regular visits, a relationship with the father’s extended family.
d)The Meyer family views the application to change the child’s name as a “powerful insult” and an “assault to their cultural foundations”.
e)Whilst the child disclosed in the interviews that he does have some uneasiness with being different to the remainder of his family, this behaviour was “consistent with that of children of this age who cognitively become more aware of groupings and classifications”.
f)The child’s view of his attachment to the mother would have been affected by the introduction of the mother’s new partner and then his two half siblings.
g)The child has had to deal with the physical loss of the father with whom he shared interests and was spending regular time with.
h)As time passes, the father is likely to be become “more of a disembodied voice for the child and a less powerful influence in his life”. This is, particularly, at a time when the doctor says that developmentally the child would be moving towards seeking greater involvement with his same sex parent. All of these would undoubtedly give rise to some concerns for the child regarding his role and place in his family and increase his need for security. Having the same name as his immediate family group may be perceived by him as one way of securing his sense of belonging to that group.
i)The child appeared burdened by the name change issue. This was causing him tension as he attempted to discuss it in the context of both families.
j)It is highly unlikely that the child has the capacity to understand what a legal change in name involves.
k)The history of the mother changing her own name as well as that of the child raises some concerns about the consequences should there be difficulties in her current relationship.
l)The father’s case for which he is in remand is unresolved. If he does proceed to a public trial and in the event that he subsequently remains in detention, there is the likelihood that this could be a difficult time for the child with some associated embarrassment issues.
Dr Vardanega’s recommendation was that if there was to be a change in the child’s name, it should be for the purposes of “common usage only” for example; at school and in the local community. She recommended that any legal change be left to when the child has a greater emotional maturity to make that decision.
Dr Vardanega gave oral evidence by telephone and that evidence was to the following effect:-
a)The father had portrayed himself as disadvantaged and the underdog. He portrayed the mother as vindictive, controlling, dishonest and manipulative. The doctor remarked that this portrayal of the mother appeared inconsistent with the mother’s behaviour in terms of her support of the child’s relationship with the father and the father’s family.
b)The issue of the child’s name must balance the need for the child’s security within the mother’s family unit (the Pavlov family) on a day to day basis with the need to ensure that the child’s personal identity as a member of a different family unit (the Meyer family) is protected.
c)Whilst the doctor conceded that she had not conducted cognitive testing, she stated that given the child’s age, his cognitive development was such that he did not have the skills of an adolescent which would have enabled him to think abstractly so as to comprehend the concept of his own identity.
d)The child’s understanding and statement that what made him happy would make his mother happy was viewed by the doctor as demonstrating that the child had not separated his own identity from that of the mother. That separation being “a developmental milestone of adolescences” leading to a development of a child’s individual identity.
e)That the child’s distress over his name was genuine.
f)That a legal change in surname given the changes to date would not be in the child’s best interests and the Court should consider a change of name for the purposes of common usage.
g)The proposal of inserting the word “Pavlov” before “Meyer-Decker” was raised by the Court itself with the family consultant who opined that:
i)Inserting an additional middle name does not “discount” it.
ii)This proposal would be inclusive of the Pavlov family unit and preserve the identity of Meyer-Decker.
iii)This proposal would go a long way toward the identification with the child’s siblings but still preserve important aspects of his birth.
iv)Inserting two hyphens, that is, Pavlov-Meyer-Decker would make the child’s name cumbersome.
v)The proposal would resolve matters without keeping the child in limbo.
vi)That a family consultant should be appointed to explain to the child the importance of that change.
vii)That whatever change it would be useful for the child to have access to a family consultant (that was not aligned with his father or his mother) to be able to talk through the name issue.
The Court has quoted extensively from the family report writer’s report as set out above. The family report writer’s oral evidence was however, entirely consistent with the terms of her written report.
The Court accepts and gives significant weight to the expert’s principal recommendation. The Court has had regard to the general observations set out by the Full Court of the Family Court in Hall & Hall (1979) FLC 90-713 at p. 78,819 to 78,820.
In relation to name change, the Court relies on the decision of the Full Court of the Family Court of Australia in Chapman & Palmer (1978) FLC 90-510 where the Full Court summarises the factors which should be taken into account by a Court in determining applications such as this as including:
(a) The welfare of the child is the paramount consideration.
(b) The short and long-term effects of the change in the child's surname.
(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with … [care or day-to-day care].
(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.
(f) The effect of frequent or random changes of name.
In Beach & Stemmler (1979) FLC 90-692, Connor J took the following additional factors into account:
a)the advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now;
b)the contact that the husband has had and is likely to have in the future with the children;
c)the degree of identification that the children now have with their father;
d)the degree of identification which the children have now with their mother and their stepfather;
e)the degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored; and
f)the desire of the father that the original name be restored.
g)The convenience for a “custodial” parent to have a child’s surname changed was not, by itself, a sufficient reason.
As in all children’s cases, the Court must apply the overriding principle that the best interests of the child are the paramount consideration, see Flannagan v Flannagan (2001) FLC 93-074. The power to change a child’s name is clearly an aspect of parental responsibility. As Justice Warnick said in Fooks v McCarthy (1994) FLC 92-450 “It stands above the wishes of the parents”. It is for the Court to weigh up the competing factors in support of or against any change of name and neither parent has the onus of proof in such cases. There is no prima facie principle that a child should bear the surname of the father
Taking into account the above factors and the evidentiary matters referred to, the Court must consider the issues that it is required to consider to determine the best interests of the child under s.60CC of the Family Law Act 1975 (“the Act”). Those factors are as follows:
a)The primary considerations:
i)The benefit to the child of having a meaningful relationship with both parents:
1. The mother submits that the child has a meaningful relationship with her and that the father has been incarcerated since June 2007;
2. The mother acknowledged that, notwithstanding the child has not seen the father for nearly two years, the child has a close relationship with the father and his paternal grandparents.
3. The mother acknowledged the child missed the father and wanted to see him.
4. The father says that he has and continues to have a relationship, notwithstanding his incarceration, through daily telephone calls with the child. Further, the father says that the child is unaware of his incarceration and that, as he intends to be found not guilty, he would be in a position to resume his physical relationship with the child as soon as that occurs. It was put to him that, if he was found guilty, he may face a long gaol term of some 10 to 20 years. This may be the case, however, the Court must ensure that the father’s presumption of innocence is considered and protected;
ii)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence:
1. The mother submits and the Court accepts that this factor would not appear to be relevant to the discrete issue being tried.
b)The additional considerations under s.60CC of the Act, including the child's views and the weight to be attached to them:
i)The mother submits that the child has expressed his clear wish to have the same surname as his siblings and the child has expressed that to both the mother and the father;
ii)The father submits that the child's statements are more an expression of the mother's desire to effect a change of the surname than an expression of the child’s true wishes;
iii)The father was in a state of complete denial that the child had expressed his own wish. The father’s view can be summed up by his words “Listen, we both know that that’s his mother’s voice echoing… from his mouth”. The father accused the child of lying when the child told him that that was not the case.
iv)The father also stated that even if the child wished to change his name, he would never agree to it. He clarified this statement on the basis that if the child expressed such views when he was, say, 16-18 years he would then discuss that issue with the child.
v)As Dr Vardanega states, if the Court acceded to the child’s views at this time, it would not be responding to views that are “mature and with a full understanding of the life long implications”.
c)The nature and the relationship of the child with each of the child's parents and other persons:
i)The mother submits and the Court accepts that the child has a primary bond with her;
ii)The mother concedes that the child has a close relationship with the father, the paternal grandmother and the paternal aunt.
iii)The child confirmed that the father was a significant figure in his life and the child was missing him.
iv)The child’s stepfather is known as “Pavlov”.
v)The child’s siblings are known as “Pavlov-Decker”.
vi)The child is currently known as “Meyer-Decker”.
vii)The Court accepts that the child has a strong bond with his step-father and a bond with his two siblings;
d)The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between a child and the other parent:
i)The mother submits that she has demonstrated a willingness to encourage the child's relationship with the father. There is no evidence that this willingness would cease or be affected by the order which she seeks;
ii)The mother submits that the father's conversations with the child demonstrates that he does not possess a similar willingness and ability to that of the mother. The Court accepts that some of his conversations with the child were not child focused.
iii)The father was entirely dismissive of the mother’s role in encouraging the child’s continuing contact with him and time with his extended family and refused to give her any credit in protecting the child from the reality of the father’s detention, pending committal. His response was “What’s with the credit. I don’t give her credit, no”.
iv)The Court accepts that the mother has supported and continues to support the child’s relationship with the father and the father’s extended family, notwithstanding difficulties that the father says he experienced in telephoning the child following his detention.
v)The father’s reluctance to concede that the child has a close relationship with Mr Pavlov demonstrates a lack of a willingness to encourage a relationship between the child and the mother given her relationship with Mr Pavlov and the fact that she is the mother of the child’s two half siblings.
e)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of the parents, any other child and any other person:
i)The mother submits that the practical effect of the orders she seeks would be to facilitate the child's security in her home and facilitate his security in his relationships with the mother, her husband and the child's siblings. There was no evidence that the mother’s relationship with Mr Pavlov was anything other than stable.
ii)The father submits and the Court accepts that retaining “Meyer” as the child’s surname will facilitate the child’s long term security within that family unit.
f)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child's right to maintain personal relationships and direct contact with both parents on a regular basis:
i)The mother submits and the Court accepts that this is not an issue in these proceedings, noting, however, the uncertainty surrounding the father’s current position in respect to his detention pending a committal hearing.
g)The capacity of each of the parents and any other person to provide for the needs of the child including emotional and intellectual needs:
i)The mother submits and the Court accepts that her capacity is superior to that of the father.
ii)Mr Pavlov has formed a strong relationship with the child.
h)The maturity, sex, lifestyle and background of the child in light of the parents and any other relative characteristics of the child:
i)The mother submits that the child is mature for his age and, accordingly, weight should be given to his views. The Court accepts the recommendations of the report writer that the child lacks relevant cognitive development for the Court to be able to give weight to his expression of such views.
ii)The Court accepts that the child’s ethnic origins will potentially be a significant aspect of his self-esteem and the use of “Meyer” in his surname is likely to be a significant aspect in that issue.
i)The child's right to enjoy his or her Aboriginal culture:
i)This is not applicable.
j)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents:
i)The mother submits and the Court accepts that she has demonstrated an ability to put the child's needs before her own. The father’s attitude has to a large extent been shaped by the reality of his detention.
k)Any family violence involving the child or a member of the child's family:
i)The mother submits and the Court accepts that this is not applicable.
l)Any family violence order or order made after contested proceedings that applies to the child or a member of the child's family:
i)The mother submits and the Court accepts that this is not applicable.
m)Which order is likely to lead to the institution of further proceedings:
i)The mother submits that it is the orders sought by her.
ii)The Court is of the view that an order which retains “Meyer-Decker” as a surname and inserts “Pavlov” as a further middle name is the order least likely to lead to the institution of further proceedings. The Court is of the view that Dr Vardanega’s recommendation for a change “for common usage” is fraught with definitional difficulties and is likely to lead to further litigation.
n)Section 60CC(4)(a) of the Act; the extent to which each of the child's parents has fulfilled or failed to fulfil his or her responsibilities in participating in making decisions about major long-term issues, spending time with the child and communicating with the child:
i)The mother submits and the Court accepts that she has fulfilled her responsibilities.
ii)The father’s position has to a degree been affected again by the reality of his detention.
o)Section 60CC(4)(b) of the Act, the extent to which each of the child's parents has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues, spending time with the child and communicating with the child:
i)The mother submits she has done so.
ii)The father submits that the mother previously changed the child’s surname without notifying him, notwithstanding the evidence before the Court appears to be that the father, to the mother’s knowledge, was having contact with his parents, when they were seeing the child, and that a form of substituted service of any application to have service effected on his parents in lieu of personal service on him may have brought the earlier proceedings to his knowledge. In any event, the mother sought and was granted an order dispensing with personal service. That order was sought in her initiating application reliant upon previous attempts to serve the father. The Court is not prepared on the evidence before it, to find that the mother had knowingly misled the Court or that her application for the earlier name change was not, in itself, child focused. The mother’s affidavit in support of that application relevantly states “whilst I do want my son to have his father’s surname as part of his name, I consider that given that the child lives in a family relationship with me that it is in his best interests that his surname contain both mine and the [father’s] surnames”. The mother did not in that application seek to sever any links with the father via the father’s surname.
p)Section 60CC(4)(c) of the Act; the extent to which each of the child's parents has fulfilled or failed to fulfil the parent's obligation to maintain the child:
i)The mother submits the father has not done so, but concedes that he pays 50% of the child’s private school fees.
ii)The father, however, states that he provided moneys to his parents or his parents provided such moneys which were paid into the Child Support Agency and those moneys were subsequently, pursuant to Court orders, effectively released to the mother and that, thereafter, the father has paid child support obligations (currently at $320.00 per month), together with half the school fees. The father operates a painting business with his father and his wife and he receives income from that. As the father was in detention he was not in receipt of any monies and he looked to his family and friends to meet his legal expenses and ongoing child support payments.
This is the second time it is proposed that the child’s family name be changed in three years and the Court needs to consider the effects of frequent changes.
There is no evidence that the mother’s relationship with her partner is not otherwise stable.
Conclusion
The Court accepts the mother’s evidence that the child did raise the issue of his name with her.
The Court accepts, however, Dr Vardanega’s evidence that the child lacks the maturity to fully understand the consequences of a change in surname and its relevance to the concept of the child’s own identity.
Whilst the Court is concerned that the child be protected from any publicity concerning the father’s pending committal hearing, it must not be forgotten that the father is entitled to the presumption of innocence. This is the case, notwithstanding the father’s evidence he had received some considerable publicity in the newspapers and on television. The father did not accept that the child was at an age to understand what was going on in the media.
The Court is of the view that it is important for the child to have a continuity in his current family unit as this is intrinsically bound up with the child’s own stability as confirmed by Dr Vardanega. The Court accepts Dr Vardanega’s evidence that the child would see himself primarily as a part of the mother’s family unit and would derive his daily security from that unit.
What is most important for the child is the assurance that he does belong and a change in name does not necessarily assure him of this. The Court accepts Dr Vardanega’s recommendation that the child needs to be relieved of the pressure related to the name change issue and to be reassured that the decision made by the Court is in no way a reflection on him or of having made a choice of one family over the other. The Court is of the view a family consultant should be appointed to assist in this.
The Court is of the view that the child’s surname should remain “Meyer-Decker” but that the child be permitted to take on the additional middle name of “Pavlov”. The Court is of this view for the following reasons:
a)First, such a name change would reflect the involvement of the Pavlov side of the child’s family. The child has expressed concerns that his name appears different from his siblings, the difference being identified by him as the missing “Pavlov” title. By the insertion of “Pavlov” in the child’s name, the child will be able to see that he is attached to the mother’s new family unit and to his siblings. This is likely to potentially limit any ongoing embarrassment issues.
b)Secondly, the positioning of “Pavlov” as a further middle name does not impact on the existing registered surname of Meyer-Decker, and accordingly is likely to avoid the child suffering any confusion in his identity on a long term basis. The Court is of the view that the current hyphenated name is appropriate for this child reflecting the two cultural identities attached to the mother’s and father’s families. The child will have an ongoing relationship with the father and any sense of removal of the father’s surname from the child’s name would be of concern to the Court in destabilising this ongoing role. This is particularly so given that the Court adopts Dr Vardanega’s view that the child will still need considerable support to deal with the disappointment of his father’s actions as well as the betrayal of having been told that his father was elsewhere, once the outcome of the father’s committal hearing is known. This, as the Doctor says, will require significant emotional resources from the mother, the Meyer family as well as possibly some external professional. Because of this need to potentially support the child, the Court would be reluctant to do anything to remove one of the pillars of such support for the child. The removal of the name Meyer from the child’s surname may potentially have such an effect, given the close relationship between the child and the father and his extended family including, in particular, the paternal grandparents. The Court has balanced that against the primary attachment relationship with the mother and the Pavlov family unit.
c)Thirdly, the child has already had one change of surname, to that now recorded as “Meyer-Decker”. The Court is not minded to make an order as sought by the father, as that would implement a further change that the Court does not believe is in the child’s best interests. The Decker component being accepted by the Court as the common feature linking the child and his siblings and the maternal family. The father’s Counsel in her cross-examination of Dr Vardenega assumed to some extent that Meyer-Decker as a surname would be retained. The Court accepts Ms Langley’s submission that if the father is released from detention, the physical strength of the father/child relationship is likely to be increased. However, if the father is not so released, the retention of the name Meyer may potentially be of critical importance to preserve his relationship in the circumstances of any ongoing physical separation. At that point in time, the parties would need to consider how to inform the child of this and how any physical time could be put in place.
d)
Fourthly, given the child’s current wishes to have his surname changed are as the Family Consultant indicated of immature formation, the Court is of the view that there should be no formal change to the child’s surname, notwithstanding any short term advantage to the child, until the child is of sufficient age to give appropriate consideration of this issue (in accordance with the father’s wishes) and to reflect on the matters as outlined by
Dr Vardanega in her report and further, given the uncertainty as to the father’s continuing physical separation due to his detention pending committal.
e)Finally, while the parents have both agreed to “protect” the child from exposure to the issues concerning the father’s current detention, the Court does not accept that the change in surname proposed by the mother is a natural extension of that protection.
The Court does not agree that there should be any orders reflecting that the child’s name should be utilised in circumstances of common usage. The Court anticipates that it would be extraordinarily difficult to define the circumstances where one name is used and another is not, it is likely to lead to confusion and uncertainty and that is certainly not in this child’s best interests.
Other Orders
Within fourteen days of today’s date (or such other date as is arranged), a family consultant in the Sydney registry of this Court shall attend upon the child at Level 2, of the Family Court of Australia Building, Goulburn Street, Sydney for the purpose of explaining to him the effect of the Court’s orders.
Costs
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is naturally something that can only be addressed after judgment is delivered.
If any party seeks costs (including reserved costs), an appropriate application to my chambers may be made within 21 days of today’s date and the Court will deal with that matter by way of written submissions unless the parties wish to be heard orally. If no such application is made within that time period, there will be no order as to costs.
The Court is satisfied, on balance, that the proposed orders are in the child’s best interests and accordingly, will so order.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Kemp FM
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