Raleigh and Rian
[2008] FMCAfam 41
•24 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RALEIGH & RIAN | [2008] FMCAfam 41 |
| FAMILY LAW – Children – Parental responsibility – change of name – whether it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility – where mother unilaterally changed child’s surname – whether change of name in child’s best interests – whether hyphenated name should be used – in order to rebut the presumption of equal shared parental responsibility there must be evidence sufficient to satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. |
| Family Law Act 1975 (Cth) ss.60CA, 60CC, 61B, 61C, 61D, 61DA, 65D. |
| S & H [2007] FMCAfam 97 referred to. B & L [2007] FMCAfam 503 referred to. Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510 followed. Beach and Stemmler (1979) FLC 90-692 referred to. Flanagan and Handcock (2001) FLC 93-074 referred to. Bright and Bright v Bright and Mackley (1995) 92-570 followed. S & W [2003] FMCAfam 160 referred to. Mahony and McKenzie (1993) FLC 92-408 referred to. |
| Applicant: | MR RALEIGH |
| Respondent: | MS RIAN |
| File Number: | CRC120 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 November 2007 |
| Date of Last Submission: | 22 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2008 |
REPRESENTATION
| Solicitors for the Applicant: | A. Guthrie Solicitors |
| Solicitors for the Respondent: | Peter Marr & Associates |
ORDERS
That the child C born in December 2002 live with the mother.
That the father spend time with the said child as follows:
(a)Each alternate Friday from 4:30 p.m. to Saturday at 4:30 p.m.
(b)After four (4) one night overnight periods, each alternate weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m.
(c)During the Autumn school holidays in 2008, for seven (7) overnight periods being three (3) consecutive overnight stays in the first week and four (4) consecutive overnight stays in the second week, as agreed between the parties and failing agreement being the first Friday of the holiday period from 5:00 p.m. to the following Monday at 9:30 a.m. and in the second week commencing on Monday at 5:00 p.m. to the following Thursday at 9:30 a.m.
(d)During the Winter and Spring school holidays in 2008 for one (1) week commencing on Saturday at 9:00 a.m. and concluding on the following Saturday at 9:00 a.m. which week will be agreed between the parties and failing agreement being the first week in even numbered years and the second week in odd numbered years.
(e)During the Christmas school holiday period in 2008/2009 for one half of that holiday period being on a week about basis which weeks shall be agreed between the parties and failing agreement commencing with the first week in even numbered years and the second week in odd numbered years with the exception that the father will spend each alternate Christmas Day with the child from 4:00 p.m. on Christmas Day until 4:00 p.m. on Boxing Day.
(f)Thereafter for one half of each school holiday period which half shall be agreed between the parties and failing agreement being the first half in even numbered years and the second half in odd numbered years with the exception that the father will spend each alternate Christmas Day with the child from 4:00 p.m. on Christmas Day until 4:00 p.m. on Boxing Day.
That the overnight and extended holiday time the father spends with the child will commence on the second weekend after the father has:
(a)obtained appropriate independent accommodation to accommodate the child spending overnight time with the father; and
(b)notified the mother of the address of the accommodation obtained and provided to the mother a brief description of where the child will be sleeping, who else will occupy the accommodation when the child spends time with the father and the facilities available in that accommodation.
The accommodation referred to in Order 3 above may be temporary accommodation but if the father has not obtained suitable permanent accommodation within a period of twelve (12) months from the date of these Orders then either party shall have liberty to apply in respect of Orders 2 or 3 above.
That the time the child spends with the father in accordance with these Orders also be conditional upon the following:
(a)The father making himself available to supervise the child.
(b)The father advising the mother of his availability for the child not less than two (2) weeks prior to the commencement of each extended holiday period.
(c)The father keeping the mother advised of the address and telephone number (either mobile or landline) where the child will spend overnight time with the father.
(d)The father notifying the mother of his intention to take the child out of the Coffs Harbour district during the time he spends time with the child.
That in order to facilitate the time the child spends with her father the mother shall cause the delivery of the child at the commencement of the period and the collection of the child at the conclusion of the period to and from a point agreed between the mother and the father and failing agreement that collection and return point shall be at the offices of Ixxx situated at Coffs Harbour.
That the name of the child shall be C RALEIGH RIAN.
That the father is restrained from leaving the child unsupervised in the care of his sister MS K or from allowing the child to remain in the presence of his said sister if she appears to be affected by an illicit drug or intoxicating liquor.
That the father be restrained from smoking tobacco in the presence of the child.
That each parent shall within 24 hours of any change of address notify the other of that change of address and provide a contact telephone number.
That neither parent denigrate the other or any members of the other parent’s family to the child or in the presence of the child or at all.
That the mother authorise the child’s school to provide the father on a regular basis copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the child.
That the mother keep the father informed about the welfare and health of the child and provide the father with copies of any medical reports and authorise any medical practitioner providing treatment for the child to communicate directly with the father. In addition the mother shall advise the father immediately of the child’s admission to hospital.
That the child have telephone communication with the father each Tuesday and Thursday between the hours of 5:30 p.m. and 6:30 p.m. with the father to initiate the telephone call.
That during the time the child spends with him the father shall give the child the opportunity to have telephone communication with the mother if the child expresses that wish and in extended holiday periods the child shall have telephone communication with the mother each Tuesday night between the hours of 5:30 p.m. and 6:30 p.m. with the mother to initiate the telephone call.
That the father be restrained from bringing the child into contact with MR S.
IT IS NOTED that publication of this judgment under the pseudonym Raleigh & Rian is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CRC120 of 2007
| MR RALEIGH |
Applicant
And
| MS RIAN |
Respondent
REASONS FOR JUDGMENT
Application
The applicant is the father of a little girl who will be referred to as C. She was born in December 2002. The respondent is C’s mother. C has always lived with her mother, who has now married and has two other children from that marriage.
The father seeks final orders that C continues to live with the mother but that the parents share responsibility for the child’s long-term health, education and welfare. He also seeks orders:
(a)that C spend time with him every second weekend until she starts school;
(b)that after she commences school, she spend every second weekend of the school term with him as well as half of the school holidays;
(c)that C have telephone contact with him on Tuesday and Thursday evenings;
(d)that she should be known by his surname; and
(e)other ancillary orders relating to school functions, medical arrangements, notification of any change of address or telephone number and that no further proceedings be commenced until after the parties have had the opportunity to attend mediation.
The mother, in her amended case summary document, seeks a number of orders and identifies these issues:
(a)commencement of overnight and extended holiday periods;
(b)accommodation for the child during time with the father;
(c)notification by the father of availability prior to extended holiday periods;
(d)restraint on the father from bringing the child into contact with his sister K;
(e)the surname by which the child is to be known;
(f)Christmas Day; and
(g)The mother having the sole parental responsibility for the child.
Background
The father was born in April 1980 and the mother was born in April 1982. They started living together in about the middle of 2000 and separated in about August 2003.
The child C was born in December 2002. She was about 8 months old when her parents separated and has always lived in the care of her mother. The father was working away from Coffs Harbour but visited Coffs Harbour when he could in order to spend time with his daughter.
The mother married another man on 22nd April 2006. That same month she asked the father to consent to changing the child’s surname. The father declined to consent.
The mother has since given birth to two children from her current marriage, S who was born in September 2006 and P who was born in October 2007.
The father commenced these proceedings on 11th September 2006 in the Local Court at Coffs Harbour. Interim orders were made by consent on 6th March 2007 and the proceedings were transferred to the Federal Magistrates Court.
On 4th September 2007 the parties consented to interim orders providing that (in summary):
(a)The child C will live with the mother.
(b)The parties continue with a plan of gradual re-introduction of the father into C’s life by means of the father spending time with the child on alternate weekends, initially without overnight contact; and
(c)The time that the father was to spend with C was to be subject to the following conditions:
(i)the father was restrained from bringing C into contact with his sister K;
(ii)the father was to be available to supervise and spend time with the child;
(iii)the father was not to smoke tobacco in C’s presence; and
(iv)the father was to advise the mother of the address and telephone number of the premises where C would be spending time with the father.
Agreed Orders
The parties have agreed to certain orders being made. Those orders are:
(1)That the child C born on 9 December 2002 should live with the respondent mother.
(2)That the time the child spends with the father in accordance with these Orders be also conditional upon the following:
(a)the father being available to supervise and spend time with the child; and
(b)the father keeping the mother advised of the address and telephone number (either mobile or landline) where the child will spend overnight time with the father.
(3)That in order to facilitate the time the child spends with her father, the mother shall cause the delivery of the child at the commencement of the period and the collection of the child at the conclusion of the period to and from a point agreed between the mother and the father and failing agreement that collection and return point shall be the offices of Ixxx situated at Coffs Harbour.
(4)That the father be restrained from smoking tobacco in the presence of the child.
(5)That each parent shall within 24 hours of any change of address notify the other parent of that change of address and provide a contact telephone number.
(6)That neither parent is to denigrate the other parent or members of the other parent’s family.
(7)That the mother will authorise the child’s school to provide the father with copies of school reports and other information.
(8)That the mother will keep the father informed about the child’s health and welfare and provide copies of medical reports.
(9)That the child have telephone contact with the father between 5.30 pm and 6.30 pm each Tuesday and Thursday.
Evidence
The father relied on his affidavit sworn on 10th November 2007 and was cross-examined by the mother’s solicitor, Mr Marr.
Essentially, it is the father’s evidence that he was constantly involved in his daughter’s parenting from the time of her birth until he and the mother separated in about August 2003, when C was about 8 or 9 months old. After he and the mother separated, the father worked as a sub-contractor for the one employer at various sites in New South Wales and other States until December 2006.
He deposed that he would return to Coffs Harbour about one week each month and try to spend time with his daughter during that time. It was his evidence that he was never able to spend more than a couple of hours with her, due to the intransigence of the mother. Even after she had married her present husband, the mother would not give the father a telephone contact number.
Eventually, the mother asked him in April 2006 to sign a form of consent to change the child’s surname. The father deposed that the form did not indicate what the new surname would be. The father refused, and says that the mother retaliated by saying that she would not let him see the child.
The father deposed that, as a result of the mother’s refusal to allow him to see his daughter, in which she was aided by her parents, he was unable to spend time with C between April 2006 and March 2007, when he had commenced court proceedings through the Local Court of New South Wales at Coffs Harbour.
Since then a program has been worked out by the Ixxx Centre. This has involved the father spending time with the child for several hours at a time at intervals of about a fortnight. He has also spoken to her on the telephone on various occasions.
The father deposed that he has now returned to Coffs Harbour and works in the Coffs Harbour area from Monday to Friday. He does not have to work on weekends and would also be available to see her after 4.00 pm on weekdays.
As to the child’s surname, the father deposed that he does not agree that she should have any surname other than Raleigh. The child had also been known by that name. The father also expressed a concern that the mother and her husband were trying to persuade the child that the husband is the child’s father.
The applicant referred to the mother’s concerns about the child coming into contact with his sister K, who is on a methadone program. He deposed that his sister does not take any illegal drugs and no longer associates with a man named R, who has a criminal record for offences of dishonesty. The applicant said in his affidavit that he wants his daughter to meet his sister and get to know her, but stated that he would not leave his daughter in his sister’s care, nor was it his intention that C would stay or live with his sister.
In cross examination by Mr Marr, who appeared for the mother, the applicant said that he had originally sought an order for contact overnight and during school holidays, but did not have a permanent place to live at that stage.
The applicant also said that his sister had a serious intravenous drug problem and was now on methadone. She had had a propensity to mix with criminals but this was no longer the case. Her former partner R is now in prison. He said that he would not have cigarettes or drugs in his home.
The applicant was definite in his view that he wanted his daughter to be known by his surname. He agreed that he had not had a lot to do with her between 2003 and 2006. He did not see that it would be embarrassing for C to have a surname different from that of her siblings if the reason for the difference was explained to her. He was firm in his belief that C is his daughter and has a link to him. He expressed himself to be “not thrilled” at the concept of a hyphenated surname.
The applicant expressed the view, as he had done in his affidavit that he wanted to spend time with his daughter on Christmas Day. He seeks alternate Christmases.
The applicant complained that he felt he was being “phased out” of his daughter’s life and felt that he was “constantly under the magnifying glass” to prove himself good father.
The applicant spoke of paying child support, saying that he pays the amount that he is required to do by the Child Support Agency. At the time of the hearing he was paying $81.00 per fortnight.
The applicant was adamant that he wanted to play more of a part in his daughter’s life as a financial contributor. He did not want to make C’s life uncomfortable or the mother’s life uncomfortable. He conceded that his accommodation was a problem, expressing himself to be “embarrassed” at his financial difficulty.
In re-examination, the father said that he would give an undertaking not to bring his daughter into contact with the man R and not to leave her in the sole care of his sister.
The mother gave evidence by affidavit but was not required for cross-examination. It is her evidence that the telephone communications with the father and the times that he spent with the child were “irregular and infrequent”. She claimed that during those periods the father “elected to spend only a couple of hours with the child on each occasion”. She denied that she purposely discouraged the father from spending time with the child but admitted that she had lost contact with him and had no means of contacting him. She claimed that he had paid “little or no child support” and showed no interest in spending time with the child on a regular basis.
The mother referred in her affidavit to the father spending time with C in accordance with the program put together by the manager of Ixxx at Coffs Harbour. The father spends time with the child on an unsupervised basis from 9:30 am to 4:30 pm..
The mother expressed in her affidavit anxiety about the child spending overnight time with the father, based on the fact that she has seldom been out of the mother’s supervision. The child has been supervised by her maternal grandmother on “a couple of occasions” but still becomes distressed when separated from her mother.
Another concern expressed by the mother is the father’s lack of a permanent residence. The mother does not oppose the father’s proposal to arrange accommodation at a beachside cabin or a caravan park as an interim arrangement, but does not consent to such an arrangement on a permanent basis. She expressed the view that the father should provide a stable, familiar arrangement for his daughter for overnight contact.
Similarly, the mother expressed concerns about the father’s proposals for extended holiday time with the child. She would wish to know where the child will be and the circumstances of the holiday. She also expressed concern about the need for the father to supervise the child rather than some other person. Her particular concern is for “stability of accommodation for the child during extended time spent with the father”. She proposes a graduated arrangement, building up to a period of 7 days.
The mother wants the child to spend Christmas Day with her and her extended family. She and her husband wish to take all three children to church on Christmas Day. She deposed that the father had “limited family” in the Coffs Harbour and speculated that the father would spend Christmas Day with friends rather than family.
As to the father’s sister, K, the mother expressed concerns about her serious drug problem and the fact that “she also smoked cannabis on a frequent and regular basis”. The mother also claimed that the father himself smoked drugs when she and the father were together.
The mother does not wish the child to be exposed to cigarette smoke, stating that she is fearful of the effects of passive smoking. She complained that the child had told her that the father had smoked cigarettes when she was spending time with her.
The mother conceded in her affidavit that she had referred to the child by the surname of Rian since she had re-partnered. She herself commenced using that name not long after her relationship with the man who is now her husband became permanent. The mother expressed the fear that the child would be embarrassed if she had a different surname from her siblings. She stated that she did not wish C to be “confused about her identity” and was concerned that a change of name at this stage would confuse the child.
The mother raised in her affidavit that the father has in the past paid child support at only the minimum amount of $21.00 per month, although she conceded that the father had been assessed to pay at $80.00 per fortnight.
Submissions
For the applicant father, Mr Guthrie submitted that the father did not object to notifying the mother of his availability prior to extended holiday periods, although he said that it was unnecessary as there were “fail-safe” provisions.
As to the proposed blanket ban on the child being brought into contact with the father’s sister K, he submitted that K was addressing her addiction and had never harmed the child. She is a relative of the child.
Turning to the question of the child’s name, Mr Guthrie referred the court to the recent decisions of Lapthorn FM in S & H[1] and B & L[2] both of which deal with the issue in some detail.
[1] [2007] FMCAfam 97
[2] [2007] FMCAfam 503
Mr Guthrie submitted that there was more to Christmas Day then religion and that time with the child on Christmas should be shared between the parents.
Parental responsibility should be shared between the parents, he submitted, and the mother should not have the sole responsibility.
For the mother, Mr Marr submitted that the father wanted to spend time with the child and it was, therefore, only reasonable that he should give the mother some notice. He submitted that an appropriate order was the mother’s proposed Order 5.2, that the child spending time with the father being conditional upon the father advising the mother of his availability to care for the child not less than two weeks prior to each extended holiday period.
Mr Marr submitted that the proposed “blanket ban” on the child’s being brought into contact with the father’s sister K arose from the sister’s significant drug usage and her propensity to mix with the criminal element. He also sought an order banning the child being brought into contact with the man R.
On the question of the child’s surname, Mr Marr pointed that she is about to start school. She is now aware of who she is and has been using the mother’s current surname since she was 3 years of age. It would be confusing to change the child’s name back to the father’s surname at this stage. He distinguished this situation from one of a child aged twelve who had a memory of an earlier surname. One possible solution would be to use both names without a hyphen.
The mother saw Christmas Day as an important day for her current family. Christmas Day is more than just a social event, Mr Marr submitted, and it is important for the child to spend time with her two younger siblings.
On the question of whether parental responsibility should be shared or not, Mr Marr drew the court’s attention to the provisions of ss.61B and 61D of the Family Law Act, particularly s.61D(4), which sets out the circumstances in which the presumption of shared parental responsibility may be rebutted.
The Relevant law
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). Section 60CC of the Family Law Act sets out the primary considerations and the additional considerations that the court must bear in mind when determining what is in a child’s best interests.
The term “parental responsibility” is defined by s 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Each of the parents of a child who is not 18 has parental responsibility for the child (see s 61C).
Under the provisions of s 61DA of the Act, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, as Mr Marr submitted, the presumption may be rebutted by evidence that satisfies that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (Family Law Act 1975, s 61D(4)).
Changing a child’s surname is often a highly emotional issue for a child’s parents. In Chapman and Palmer[3] the Full Court of the Family Court stated that the general principle appeared to be that the court would not intervene to prevent a parent from changing the name of a child in the custody (however described) of that parent unless the Court were satisfied that the change was made without the consent of the other parent and that it did not promote the welfare of the child. The Full Court set out a number of factors to which a court should have regard in determining whether there should be a change in the child’s surname.[4]
[3] (1978) 4 Fam LR 462; FLC 90-510
[4] (1978) FLC 90-510 at 77675-6
In the later decision of Beach and Stemmler[5]Connor J took into account the matters set out in Chapman and Palmer and also mentioned some other additional matters that may be relevant:
(i)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.
(ii)The contact that the husband (father) has had and is likely to have in the future with the children.
(iii)The degree of identification that the children now have with their father.
(iv)The desire of the father that the original name be restored.[6]
[5] (1979) FLC 90-692
[6] (1979) FLC 90-692 at 78,693
In Flanagan and Handcock[7]the Full Court of the Family Court held that the power to change a child’s name is clearly an aspect of parental responsibility as defined by s.61B of the Act. The resolution of a dispute between the parents of a child about that child’s name is ultimately to be resolved by the making of a specific issues order under the provisions of s.65D, which is subject to s.61DA (presumption of equal shared parental responsibility when making parenting orders).
[7] (2001) FLC 93-074
Conclusions
There are seven issues referred to in the mother’s Amended Case Summary Document, and I will deal with them in the order set out in that document.
Commencement of overnight and extended holiday periods – There are competing proposals for the commencement of overnight time with the child. The father’s proposed order is that until C commences school she would spend time with him from 9:00 am Saturday to 4:00 pm Sunday every second weekend. Once the child commences school, she would spend time with the father from 9:00 am on Saturday until 5:00 pm on Sunday every second weekend.
The mother proposes a more conservative approach, with the father spending time with the child each alternate Friday from 4:30 pm to Saturday at 4:30 pm. Once four of those overnight periods have taken place, the mother then suggests that the father spends time with the child each alternate weekend from Friday at 5:00 pm until Sunday at 5:00 pm.
In my view, the mother’s proposal contains a graduated approach to the amount of time that the child and the father would spend together, which would seem to me to be in the child’s best interests, as it would allow her to get used to spending more time away from the mother and with the father. The mother’s proposal will eventually see the child spending more time with the father on a weekend as opposed to the father’s proposal. This will allow the relationship to develop, because father and daughter will have time to undertake activities together such as picnics and other outings.
The mother’s proposal for the time that the child spends with the father during school holidays again contains a graduated approach, with three consecutive overnight stays in the first week of the Autumn school holidays and four consecutive overnight stays in the second week. The later school holidays in 2008 would see the father and child together for a full week at a time.
The mother proposes that the Christmas/January school holiday period would progress to the more traditional half of each school holiday period, with the exclusion of Christmas Day.
The father, by comparison, wishes to progress straight to half of each school holiday period, without any exclusion of Christmas Day.
Leaving the vexed question of Christmas Day to one side for the time being, the mother’s more conservative graduated approach to school holiday time between father and child appears to me to be preferable. I am conscious that, for whatever reason, the father and daughter have spent comparatively little time together between 2003 and 2006, and there is a risk that “too much too soon” would be a bit much for the child to get used to. The mother clearly wishes to get her daughter used to spending more and more time with the father, and I consider that the mother’s approach offers a better chance of building a successful arrangement which will ultimately be beneficial for both father and daughter.
As I am satisfied that the mother’s graduated approach is more likely to be in the child’s best interests, I propose to make orders in accordance with the mother’s proposal, with the exception of the reservation of Christmas Day to the mother. That is another issue.
Accommodation for the child during time with the father – The father appears to be aware that his lack of a permanent residence in the Coffs Harbour area is a significant hurdle that he has to overcome. The mother’s concerns about the need for some proper accommodation for the child when she is with the father are not unreasonable. Again, not unreasonably, the mother does not object to the father arranging accommodation at a beachside cabin or in a caravan park as an interim arrangement, but not as a permanent arrangement. The mother’s view that the father should provide a stable, familiar arrangement for accommodation for himself and the child when they are together is, in my view, clearly directed towards ensuring that the child will feel secure and confident when staying with her father. This is in her best interest.
The mother proposes that the father should obtain “appropriate independent permanent accommodation” and that he should notify her of the address of that accommodation, as well as providing her with details of the arrangements for the child. This, again, is a reasonable request. Clearly, the father need not wait until he has a permanent home in Coffs Harbour before spending time with his daughter, but he should certainly make efforts to provide adequate temporary accommodation for her until he can obtain permanent accommodation. I propose to make orders along the lines proposed by the mother.
Notification by the father of availability prior to extended holiday contact periods - I am satisfied that it is not an unreasonable request on the mother’s part for the father to notify her at least two weeks before the start of the school holidays that he will be in a position to assume the care of his daughter during the holidays. It would be a cause of some inconvenience for the mother if the father were to announce at the last moment that he would not be able to take his daughter for that time. I propose to make an order as suggested by the mother.
Restraint on the father from bringing the child into contact with his sister – the mother effectively seeks a “blanket ban” on the child being brought into contact with his sister K. This is because of the sister’s previous drug abuse problem, both with intravenous drugs and cannabis, and her association with members of the criminal element, including her former partner R, who is now in prison.
It would not be in the best interests of this child to have any contact with people who administer to themselves illicit drugs, nor would it be in her interests to have any contact with the man R, who I understand to be currently serving a prison sentence for offences of dishonesty.
However, taking into account the fact that the father’s sister is the child’s aunt, I am of the view that it would be in the child’s best interests to spend some time with the father’s sister, who is the child’s aunt. One consideration for the court is the nature of the relationship of the child with persons other than the parents, including any grandparent or other relative of the child (Family Law Act 1975, s.60CC(3)(b)(ii)).
In Bright and Bright v Bright and Mackley[8] Treyvaud J said this about child’s relationship with grandparents:
It is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles aunts and cousins, so that the child grows up feeling part of an extended and supportive family.[9]
[8] (1995) FLC 92-570
[9] (1995) FLC 92-570 at 81658
In this case, the person concerned is the child’s paternal aunt. Clearly, because of her unfortunate drug history, she should not be left alone with the child. However, if the child is in the care of her father and the sister is not affected by any illicit drug, it would appear to me that it would be of benefit to this little girl to know that she has an aunt on her father’s side.
I do not propose to make an order banning the child from being brought into contact with her aunt, as I am satisfied that proper orders can be made to safeguard the child’s welfare.
The surname by which the child is to be known – this is clearly an emotional issue for the parents. On the one hand, the father wants to be seen as this child’s father and he wishes to be a part of her life. Against this, the mother has remarried and has had two other children from her marriage. She wants her daughter to be a part of the new family that she has formed with her husband and she does not want the daughter to feel that she is somehow different, not quite a full member of the family, perhaps.
The fact is, however, that this child does have a different father, and a father who wants to be part of her life. Whilst there has been relatively little contact in the early years of the child’s life, for whatever reason, it is clear that the father is making a serious effort to be a father to this little girl, even though he concedes that she should continue to live with her mother. He is, after all, the applicant. He commenced these proceedings in an effort to be a part C’s life and for her to recognise him as her father.
The mother unilaterally changed the child’s surname when she formed a permanent relationship with her new husband. No doubt she did this so that C would fit in with the rest of the family and not be seen as an outsider. However, the father has not disappeared. He does not wish to be relegated to the status of a benevolent stranger. It seems clear that the father wishes to pursue a regular relationship with his daughter.
Against this, the child has been using the new surname for several years. The child resides with her mother and with her half-siblings. They all have the same surname, and there could well be a level of embarrassment in this child having to explain why her surname is different to theirs. It is unlikely that the child recalls the use of the father’s surname, as the present surname is the one that she has used since she was a baby. Whilst it may grieve the father, I am not satisfied that it is in this child’s best interests to make an order changing her name back to what it originally was. As Lapthorn FM said in S & H:
As in all children’s cases the paramountcy principle applies. That is, that the best interests of the child are the paramount consideration. That must always stand above the wishes of the parents.[10]
[10] [2007]FMCAfam 97 at [83]
This does not mean, however, that the father’s name should be obliterated from the child’s life. She does have a father who wishes to be identified as her father. I have considered the feasibility of a hyphenated surname, using both the father’s name and the mother’s current surname. I made such an order in S & W[11], following the decision of Warnick J in Mahony and McKenzie.[12]
[11] [2003] FMCAfam 160
[12] (1993) FLC 92-408
In this case the father gave evidence that he was “not thrilled” by a “double-barrelled” name and maintained his belief that the child should bear his surname, and his alone. As I have indicated, I am not going to make the order that he seeks because I do not believe that it is in this little girl’s best interests to do so.
Mr Marr, for the mother, submitted that the court should consider the father’s surname remaining as part of the child’s name, without the use of the hyphen. This is an attractive proposal, because it meets the need for the father’s surname to be preserved as part of the child’s name, even though it would not be the surname by which she would be known at school and in her daily life. The name would still be there, as a constant indication of the fact that the applicant is the child’s father. I am satisfied that an order in these terms would be in the child’s best interests and I propose to order accordingly.
Christmas Day – so often a vexed issue, as it is in this case. The father’s proposal would have the child spending Christmas in alternate years. The mother, however, proposes orders that would have the child spending every Christmas Day with her. Even though the mother proposes orders that the Christmas school holidays would be shared on an alternate basis, she still would exclude Christmas Day from that arrangement, with an order that provides that the child would spend Christmas Day “with her mother and siblings commencing at 4.00 p.m. on Christmas Eve and concluding at 9.00 a.m. Boxing Day”.
I am not satisfied that it is in this child’s best interests for her never to see her father on Christmas Day. Accordingly, I intend to order that this child will spend the time from 4.00 pm on Christmas Day until 4.00 pm on Boxing Day with the father in each alternate year.
Whether the mother is to have sole parental responsibility for the child – this is a matter where the mother seeks an order whereby she should sole parental responsibility of for the child. The Family Law Act requires the court making a parenting order in relation to a child to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA(1)).
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence (s.61DA(2)). That is not the case here; there are no reasonable grounds, or any grounds, to form that belief.
Section 61DA(4) provides that the presumption may be rebutted:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In my view, it is clear that it is up to the party seeking the order to produce evidence sufficient to satisfy the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility of the child. It is not in, in my view, sufficient for there to be a disagreement between the parents about parenting orders. The court must be affirmatively satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
Neither party has led any evidence sufficient to satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Accordingly, the test in s 61DA(4) has not been met and there are no grounds for finding that the presumption should be rebutted.
Accordingly, there are no grounds for making an order that the mother should have sole parental responsibility for the child.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 22 January 2008