PULLER & TRAPP

[2011] FamCA 931

FAMILY COURT OF AUSTRALIA

PULLER & TRAPP [2011] FamCA 931

FAMILY LAW – CHILDREN – Child’s name change – Child’s views

Family Law Act 1975 (Cth)

Chapman & Palmer, In the Marriage of (1978) FLC 90-510
Beach & Stemmler, In the Marriage of (1979) FLC 90-692
Flanagan v Handcock (2002) FLC 93-102

APPLICANT: Mr Puller

RESPONDENT: Ms Trapp

FILE NUMBER: SYC 624 of 2009

DATE DELIVERED: 4 November 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 4 November 2011

Orders

(1)That the child, B born … 1999, continue to use and be known by the surname Trapp.

(2)That the parties pay the costs of the Independent Children’s Lawyer as follows:

i.as to two thirds an amount of $742 by the father; and

ii.as to one third an amount of $372 by the mother

(3)That the father pay the sum of $742 within three (3) months of this date to Legal Aid NSW in respect of the costs of the Independent Children’s Lawyer in this matter.

(4)That the mother pay the sum of $372 within twelve (12) months of this date to Legal Aid NSW in respect of the costs of the Independent Children’s Lawyer in this matter.

(5)That all applications and cross applications in respect of parenting issues shall be and are hereby dismissed.

(6)That all issues be removed from the Active Pending Cases List.

(7)That all material produced on subpoena be returned not before fifty-six (56) days from the date of these Orders. 

(8)That the mother serve upon the father, care of each of his mother and sister, a copy of these orders by placing them in a sealed envelope with an accompanying letter, to each of his mother and sister, requesting them to make the envelope available to him.  Service of those documents may be proved by affidavit.

IT IS NOTED that publication of this judgment under the pseudonym Puller & Trapp is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 624 of 2009

Mr Puller

Applicant

And

Ms Trapp

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.On 28 July this year I made a number of orders concerning the subject child B.  On that occasion, the mother and the Independent Children's Lawyer were present in Court.  The father, Mr Puller, attended by telephone, only after the Court made contact with him.

2.On that day, the father indicated that he did not wish to take any further part in the child’s life, save with one reservation to which I will come shortly.  Accordingly, on that day, I discharged all existing orders in respect of the said child.  I then ordered that she live with her mother, that the mother have sole parental responsibility and that the father spend time with the child in accordance with her wishes.

3.I accept that since the making of those Orders, there has been no contact or communication between the mother and father, and, as far as I understand it, no communication between the father and child.

4.The issue that was not disposed of on 28 July was that of the surname by which the subject child is to be known.  The father indicated that he opposed vehemently any situation whereby the child should continue to be known by the name of Trapp.  Accordingly, the matter was listed today to deal with that discrete issue of the name.  It is now 27 minutes past 10.00 am.  Before I proceed further, I will have my Court officer call Mr Puller outside the Court.

5.I note that on his name being called outside the Court, there is no appearance by Mr Puller at this time.

6.I accordingly propose to deal with the matter in his absence.  I propose to order that a copy of my orders be sent to him via his sister, which seems to be the only effective point of contact.  I will, however, order that a copy be sent to both his sister and to his mother’s addresses.

BACKGROUND

7.A brief background to this matter is as follows.  The father, Mr Puller, was born in 1976, the mother, Ms Trapp in 1975.  There is some dispute between the parties as to the extent of their relationship, but, notwithstanding that, it is clear that the child, B, was born in 1999.  In her birth certificate, which has been filed as required in these proceedings, there is no doubt the child’s surname, or family name, as recorded in the certificate is Puller.

8.The relationship between the parties, I am satisfied, ended in about March 2000.  On 12 April 2003 the mother and Mr Trapp married.  The child has lived with them since that time and has been known as B Trapp.  The child attended C Preschool between August 2003 and January 2005.  From February 2005, the child attended Kindergarten at D School.

9.I am satisfied from the affidavit material, and particularly the affidavit of the mother sworn on 24 August and filed on 25 August, that the child, throughout her schooling, has been known by the name Trapp.  Annexures to that affidavit include reports and photographs which establish that point clearly.

10.Further, when the mother was before me on 28 July, I ordered that a consultant of this Registry prepare a further report to deal expressly with the issues of the child’s views.  A report by Ms E was produced, which makes it very clear to me that the child wishes to be known by the name of Trapp.  Additionally, Ms E makes this observation:

It is my assessment that [the child’s] wish to change her name was authentic not influenced by her mother or step-father.  She had been identified with the name [Trap] [sic] ever since she could remember.

And Ms E goes on to observe:

Unless the Court finds evidence to the contrary, it is recommended that [the child] be allowed to change her surname to [Trap] [sic].

11.In the circumstances of this case, I am satisfied that that is a clearly expressed view by a child with sufficient maturity to make an informed decision.  It is clearly the wish of her mother that the child be known by that name.  The father, in my view, has not taken the opportunity that was afforded to him by the adjournment on the last occasion and the fixing of the matter for today to participate in these proceedings and put his concerns and opposition before me.

12.The names by which children have been known, or should be known, or are to be known have been a constant matter of concern for this Court.  One of the first significant judgments in this regard was that of Chapman & Palmer[1] in 1978.  The Full Court in that case said that the general principle appeared to be that the Court would not intervene to prevent a parent from changing the surname of a child in the custody of that child where a change has occurred, unless the Court is satisfied the change was made without consent “and it does not promote the best interests of the child or the welfare of the child”. 

[1] (1978) FLC 90-510

13.That phrase resonates through the other decisions that have been handed down in respect of this issue.  In cases such as Beach & Stemmler[2] there was identified this list:-

§  The advantages both in the short term and in the long term which will accrue to the children if the name remains as it is now.

§  The contact the husband has had and is likely to have in the future with the children.

§  The degree of identification that the children now have with the father.

§  The degree of identification which the children have now with their mother and their stepfather.

…

[2] (1979) FLC 90-692

§  The desire of the father that the original name be restored.

14.Latterly, and in the most recent decision I can find of the Full Court on this point, in Flanagan v Handcock[3] the Full Court said that each case turns on its individual facts, but they adopted very much the guidelines that I have already referred to.  I would now propose to deal with each of those very briefly, and perhaps not in precise order.

[3] (2002) FLC 93-102

15.The first being the contact that the father, Mr Puller, has and is likely to have in the future.  It has been minimal to non-existent, for some time, and I see no indication that I could rely upon that it will change in the future. 

16.The identification the child now has with her father is in the same category:  non-existent and with no indication it will change in the future. 

17.As to the degree of identification with mother and stepfather, there can be no doubt that the child identifies herself as being the child of her stepfather.  She is closely allied to him and she has a proper and loving relationship with her mother.  On these elements, I am satisfied that the use of the name Trapp is proper in all the circumstances. 

18.The father had expressed, on the last occasion, a desire for the child to be known by the name of Puller.  As I have already recited, there can be no doubt that that is the name with which appears on the child’s Birth Certificate.  However, the father has, I can only assume, chosen not to promote his case that that name be restored. 

19.I am satisfied that the matter should be dealt with and finalised for everybody’s sake, particularly including the child, on this occasion. 

20.I therefore propose to order that the child be known by the name Trapp.

THE RELEVANT DOCUMENTS

21.I note that the material which I have relied upon today can be summarised as follows:-

(a)      The mother’s Amended Response filed on 14 January 2011;

(b) The report of Ms E dated 26 August 2011, released to the parties n 30 August 2011;

(c)      The mother’s affidavit sworn 24 August 2011 and filed 25 August 2011. 

22.I note that on 28 July I made Orders for the father to file and serve his material by 14 October.

23.I am satisfied that the mother complied with the time allocated for her to file her material.  Service was not successful, as I have referred to already in these reasons for judgment.  The father could have known that the mother’s document had been filed and served had he collected his mail, and, in any event, he knew the obligation placed on him to file and serve his material arising from his participation in these proceedings on the 28 July 2011. 

24.I will also make orders dismissing all outstanding applications and cross applications in respect of parenting issues.

ISSUE OF THE INDEPENDENT CHILDREN’S LAWYERS COSTS

25.Given the conclusion of this matter, an order for costs is being sought by the Independent Children’s Lawyer. I have given the matter some consideration. Of course, any order for costs, be it for an Independent Children’s Lawyer or otherwise, relies on section 117 of the Family Law Act1975 (Cth). The usual course, as provided by 117(1), is that each party pay their own costs. However, section 117(2) makes it clear that, in the event that the Court considers it appropriate, an order for costs can be made. The circumstances required to justify such an order need not be special or exceptional, but nonetheless must justify the making of that order.

26.In making such an order, I am required to have regard to the matters set out in section 117(2A). The mother, regrettably, is not legally aided and therefore, she is not excused from payment pursuant to the provisions of section 117(4). 117(2A)(a) requires me to look at the financial circumstances of each of the parties. I have no real idea of the father’s situation. I accept that the mother is the sole breadwinner in her family, and her income is modest. Whether any party to the proceeding is in receipt of legal aid, to my mind, has no application here.

27.The conduct of the parties, to my mind, seems to be the principal matter to which I would have regard.  The father commenced these proceedings.  When the matter came before the Court, he indicated he wished to take no further part in the child’s life, that he was prepared, and, indeed, wished to consent to the mother having sole responsibility, an order for the child to live with her, and for an order for time between him and the child to be as specified by the child.

28.However, on that date, he was adamant that he wished to pursue the issue of the child’s name.  Accordingly, the matter was set down today for half a day for that purpose.  He has not appeared. 

29.I am required to take into account whether the proceedings were necessitated by a failure to comply with previous orders, and I find that not applicable.  As to whether any party to the proceedings has been wholly unsuccessful in the proceedings, in this case, the father is in that position.  He initially sought orders in respect of the living arrangements of the child and the time the child would spend with the parents.  By his own concessions on 28 July, orders were made in such a manner that he was wholly unsuccessful in regard to those issues.

30.The remaining issue then specified was the name change, which I have heard and disposed of today.  The father, in that regard, has been wholly unsuccessful, and I take that into account.

31.I have thereby come to the conclusion that, in this case, it is appropriate that the parties bear the costs of the Independent Children’s Lawyer, but in vastly different proportions.  I am satisfied that, because of his actions and perhaps inactions, the husband ought to pay two-thirds of the amount sought, which is an amount of $742.00, and the mother should bear one–third, which is an amount of $372.00.  So far as the husband is concerned, I propose to allow him three months to pay.  So far as the mother is concerned, I propose to allow her 12 months to pay.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Colliers delivered on 4 November 2011.

Associate:     

Date:              4 November 2011