Reynolds & Sherman
[2016] FamCAFC 240
•29 November 2016
FAMILY COURT OF AUSTRALIA
| REYNOLDS & SHERMAN | [2016] FamCAFC 240 |
| FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Where the mother appeals against an order that the child’s surname be hyphenated – Where an order as to a child’s name is a parenting order pursuant to s 64B(2)(i) of the Family Law Act 1975 (Cth) and the court must regard the best interests of the child as the paramount consideration – Whether the primary judge took into account irrelevant considerations or failed to take into account relevant considerations – Whether the primary judge prevented the mother from addressing issues during her cross-examination of the father – No appealable error established – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful – Where the appellant receives Centrelink benefits – Appellant ordered to pay the respondent’s costs of the appeal. |
| Births, Deaths and Marriages Registration Act 2003 (Qld) s 8(2)(c) Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC, 61B, 64B, 117(2A)(a) |
Family Law Rules 2004 (Cth) Schedule 3
Chapman and Palmer (1978) FLC 90-510
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
Herridge & Handerson and Ors (2011) FLC 93-474
House v The King (1936) 55 CLR 499
Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23
Lenova & Lenova (Costs) [2011] FamCAFC 141
Norbis v Norbis (1986) 161 CLR 513
Reynolds & Sherman [2015] FamCAFC 128
Rollings v Rollings (2009) 230 FLR 396
| APPELLANT: | Ms Reynolds |
| RESPONDENT: | Mr Sherman |
| FILE NUMBER: | BRC | 8456 | of | 2013 |
| APPEAL NUMBER: | NA | 8 | of | 2016 |
| DATE DELIVERED: | 29 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Murphy & Aldridge JJ |
| HEARING DATE: | 1 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 January 2016 |
| LOWER COURT MNC: | [2016] FCCA 42 |
REPRESENTATION
| FOR THE APPELLANT: | The appellant in person |
| COUNSEL FOR THE RESPONDENT: | Mr J Bunning |
| SOLICITOR FOR THE RESPONDENT: | Tubaro Lawyers |
Orders
The appeal be dismissed.
The appellant mother is to pay the respondent father’s costs of the appeal assessed in the sum of $8000. Such sum is to be payable within 12 months of the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reynolds & Sherman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 8 of 2016
File Number: BRC 8456 of 2013
| Ms Reynolds |
Appellant
And
| Mr Sherman |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of C (“the child”), who was born in 2013, cannot agree on his surname. Ms Reynolds (“the mother”) wishes him to be known as C Reynolds. Mr Sherman (“the father”) wants him to be known as C Reynolds-Sherman.
On 29 January 2016 Judge Baumann resolved that dispute by ordering that the child be known as C Reynolds-Sherman. The mother, who appeared for herself, now appeals that decision.
By way of introduction, it is sufficient to record that the parties had a relationship which lasted approximately one month. They never lived together. Since his birth the child has lived with the mother.
On 23 October 2014 consent parenting orders were made which provided for there to be equal shared parental responsibility and for the child to live with the mother and to spend supervised time with the father during the day each Monday, Wednesday and Saturday. From March 2015, the child was to spend unsupervised time with the father on Mondays, Wednesdays and alternating Saturdays and Sundays. The parties agreed, at that time, that upon the child turning three years old they would engage in family dispute resolution for “the purpose of making arrangements for the child to spend overnight time with the father”.
Notwithstanding those consent orders the relationship between the parties is not cooperative and has been marked by significant conflict.
This is the second time that the issue of the child’s name has come before the Full Court. On 23 October 2014 a judge of the Federal Circuit Court ordered that the child be known as C Sherman-Reynolds. The mother appealed and on 30 June 2015 the Full Court set aside those orders and remitted the matter for re‑hearing (Reynolds & Sherman [2015] FamCAFC 128 (“Reynolds & Sherman”)).
Is an order as to the name of the child a “parenting order”?
In Reynolds & Sherman at [53], the Full Court expressed the “tentative” view that orders as to the name of a child are parenting orders as they fall within the broad terms of s 64B(2)(i) of the Family Law Act 1975 (Cth) (“the Act”).
If an order is a parenting order the court must regard the best interests of the child as the paramount consideration: s 60CA of the Act. In determining those best interests the court will have regard to the considerations set out in s 60CC of the Act.
A parenting order is defined by s 64B relevantly as “an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2)” (s 64B(1)(a)). Subsection (2) provides:
(2) A parenting order may deal with one or more of the following:
…
(c) the allocation of parental responsibility for a child;
…
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
Section 61B defines “parental responsibility” as follows:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
(Original emphasis)
As can be seen, this definition is very broad in scope.
In turn, the phrase “major long-term issues” is defined in s 4(1) of the Act. The phrase means “issues about the care, welfare and development of the child of a long‑term nature” and includes issues of that nature about the child’s name.
Thus it follows in our opinion that the name of a child is an aspect, at least, of the parental responsibility for a child and that the view expressed in Reynolds & Sherman should be followed.
The parties and the primary judge approached the hearing as to the child’s name on the basis that the orders under consideration were parenting orders to which the considerations set out in s 60CC applied. That was the correct approach.
The appeal
The mother appeared for herself in the appeal. The mother indicated that she only pressed grounds three and four of her original seven grounds of appeal and abandoned the others.
The decision of the primary judge is a discretionary one and appellants who seek to challenge such a decision face a high bar. It is not sufficient to persuade the court that it would have come to a different decision – the appellant must identify error on the part of the primary judge: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513.
We have not dealt with all of the complaints made by the mother. Many were of little moment and could not have affected the outcome of the appeal. We have dealt with all we considered to have some significance and relevance.
Did the primary judge take into consideration irrelevant and/or incorrect facts and dismiss relevant considerations? (Ground 3)
Under this ground the mother raised many discrete and sometimes diffuse points. In doing so the mother relied heavily on her Summary of Argument. The headings that follow represent our attempt to distil the essence of each complaint.
Did the primary judge dismiss the father’s previous use of different names for the child?
The mother submits that the primary judge failed to take into account that the father “has not shown stability in a surname for our son”. The mother referred to the father’s evidence in cross-examination where he initially said that he had only used the surname “Reynolds” for the child but then agreed that he refers to the child as “Sherman” on his Facebook page. The mother also pointed to the father’s affidavit, in which he stated that he “identified the child to others with the surname ‘Sherman’”.
The mother suggests that, in light of this, the primary judge erred in finding that:
35.On balance, the father has consistently argued for “[Reynolds‑Sherman]” since the child’s birth was known to him….
The mother submits that that finding neither reflects the evidence to which she referred nor the fact that at various times the father has suggested the names “Sherman” or “Sherman-Reynolds”.
In his Initiating Application filed on 2 October 2013, approximately three months after the child was born, the father sought that the child’s surname be “Reynolds-Sherman”.
The father’s written Summary of Submissions provided to the primary judge contended for both names. The submissions continued, however, that “in the alternative if the court considers it is in the best interest for the child to have only one of the parent’s name, then such name should be [Sherman]” (as per the original). The submissions then continued to provide contentions as to why that was the preferable alternative, in the event that the name was not to be hyphenated.
In Reynolds & Sherman the Full Court described the issue before the primary judge in October 2014 and in 2015 as follows: “[t]he only issue on which they disagreed was whether [the child] should have his mother’s surname, or a hyphenated surname combining the names of both parents” (at [3]).
It must be pointed out that the finding at [35] of his Honour’s reasons is not a finding as to the various names the father has actually called the child. This issue was not adverted to by the primary judge.
Rather, it is a finding as to the name for which the father has, at various times, contended for in the orders proposed by him. That finding was made after his Honour had determined that the child’s surname should consist of both of the parents’ names (at [33] and [34]) and in the course of determining the order in which they should appear.
Although the mother pointed to the father’s evidence that if the name was not to be hyphenated the child should bear his name, the primary judge made it clear during the course of the mother’s cross-examination of the father that such evidence was not relevant, as the only proposals before his Honour were a hyphenated name or the mother’s surname.
The finding that the father had, at least in the proceedings, contended for the name Reynolds-Sherman was therefore one that could be made on the material before the Court.
The parties have never agreed upon the child’s name. There has therefore been uncertainty about it, other than for the period it was set by orders. We do not see that the fact that the father has, at different times and places in the limited circumstances established by the evidence and while the child was a baby, used different names for the child has any relevance to the issue as to what name is in the best interests of the child in the future. It follows that the primary judge was not in error in referring to it.
Did the primary judge err by not taking into consideration the mother’s evidence about the father denying paternity?
The mother’s evidence was that when he was first contacted by the Child Support Agency (“the CSA”) to inform him of the child’s birth, the father denied that he was in fact the father. The mother submitted that it follows that if the father had denied paternity in the past, he will do so again.
The primary judge found:
13.…Within a few days the Child Support Agency contacted the father and informed him of the birth, and although the father did not admit paternity initially, the paternity of the child is not in dispute.
Whilst the father was aware that the mother was pregnant before the child was born, he only learnt of the child’s birth from the CSA. In his oral evidence the father disputed that he had denied that he was the father of the child. He accepted, however, that at the time of the child’s birth he did not acknowledge paternity and said “I wanted to see a birth certificate with my name on it”. Whilst it is clear that the mother told the Family Report writer that the father had denied paternity, the Report does not record such an admission by the father. It was also true that during the hearing the father expressly admitted that he was the father of the child.
The evidence is not all one way and it follows that the finding of the primary judge was open to him on the evidence.
The primary judge also said:
17.However, since the child has been the subject of Court action, the father has shown his commitment to trying to increase his time with the child – the only way that his relationship can develop. This has required extensive travel by the father….
Thus, we consider that the primary judge did consider the mother’s contention but ultimately did not accept it. That was a course that was open to his Honour on the evidence.
This aspect of the ground has not been established.
Did the primary judge fail to “take into consideration gender driven remarks” made by the father?
The father’s evidence was that he thought it preferable for a male child to take the father’s name for cultural reasons.
It is true the primary judge did not refer to that evidence. Rather, the primary judge found:
27.…[the child] will, like most children, have the opportunity to feel connected and proud of his heritage of both his paternal and maternal side.
(Emphasis added)
It is plain that the primary judge did not give any weight to the father’s evidence on this issue and there was no need for him to refer to it.
Did the primary judge fail to consider that the use of a hyphenated name would accede to the father’s desire to antagonise the mother and that the father sought a hyphenated name for proprietorial reasons?
The essence of the mother’s submissions on this point was that the father’s preferred name for the child was based on antagonism towards the mother and a desire to assert a proprietorial interest in the child. Neither, she submitted, was in the best interests of the child.
The mother referred to the following evidence of the father. First, in his affidavit the father said:
I believe that the mother has a negative view of me generally and a negative view of a short relationship which she would rather forget. A hyphenated name may remind her.
When cross-examined by the mother, the father said:
[MR SHERMAN:] …It will remind her that her son that we both had a – she had a relationship.
…
MS REYNOLDS: Do you not believe that the fact that we have a two-year-old will be enough reminder for me that we had a relationship?
[MR SHERMAN:] I reckon he needs more to be reminded of us having a relationship, your Honour.
The mother submits that this evidence indicated that the father’s desire for a hyphenated name was not related to the best interests of the child but was designed to antagonise her. Indeed, the mother’s evidence was that having a hyphenated name will be a “constant reminder of [the child’s] illegitimacy and parent’s [sic] relationship breakdown”. The primary judge said of this:
24.…In circumstances where the parents never lived together and ceased their relationship before [the child] was born, this last comment seems to be more about the mother’s inability to explain a hardly unusual history. The facts of his conception are the facts.
Thus the primary judge did consider the mother’s submission but did not give it decisive weight. It is apparent from the whole of his Honour’s reasons that his Honour found that a hyphenated name was in the child’s best interests because it would “enhance … his sense of identity with both his father and the mother and their extended families” (at [33]). That was a course that was open to his Honour.
The mother then submitted that the evidence of the father that a hyphenated name “would show his school friends, coaches and teachers, leaders and all others the clear connection between him and both his parents” indicated that the father was attempting to assert a proprietorial interest in the child. The mother referred to Chapman and Palmer (1978) FLC 90-510 at 77,674 and 77,676 in support of that proposition.
It is clear, however, that the primary judge did not accept the mother’s submission. His Honour said:
22.…If I took the view on the evidence that the father – through some perception of parental right – would only maintain a relationship with his son, if [the child] carried his surname in some form, then that would be a concern. The evidence does not support that view…
His Honour had available a Family Report dated 29 August 2014. The report writer concluded:
171. From my observations of the father’s interactions with [the child], he presented as a caring and supportive man who is keen to do the best he can as a parent. From his mother’s account, he still has much to learn in the way of parenting skills and that is not unsurprising given his lack of experience with children. Still, he appears willing to do so and he also appears willing to be guided.
172. He did not present as a person who is prepared to put his own needs above those of his son, in the sense that he was not proposing anything unreasonable in terms of parenting arrangements. He exhibited a willingness to be guided by expert advice.
The Report suggests that the father’s motives were not proprietorial. The evidence referred to by the mother does not compel a different finding. Accordingly, this was also a finding that was open to his Honour on the evidence.
Did the primary judge make inconsistent findings as to family violence?
The mother obtained a two year Domestic Violence Order (“DVO”) against the father in March 2013. It was extended for another two years on 19 March 2015.
The mother submitted that the primary judge’s finding that no action was being taken under the DVO was inconsistent with his findings of family violence.
His Honour said:
26.I have earlier in these Reasons referred to the mother’s allegations of bullying, cyber and internet harassment and the like by the father and his family. The father denies many of the allegations. It is a pity some of these disputes are played out on “Facebook”. The mother has had the Domestic Violence Order extended for a further two years. Although she claims “breaches” of the Domestic Violence Order, there is no evidence of any such actions being taken. The final parenting orders are clear. Compliance with them is mandatory. I envisage it is likely, regrettably, that the parties’ discussions about moving to overnight time for [the child] will create further conflict. It is clear that these two very different parents see [the child]’s best interests from entirely different perspectives. The mother’s continued expressed concerns about the father’s parenting and/or possible sexual abuse have not been supported by any investigations by the Department – investigated at the mother’s request.
The mother’s evidence was that she had reported the breaches of the DVO to the police. There was no evidence as to what the police did in response.
The findings of the primary judge were in accord with the evidence and no error has been established.
The mother was also critical of the primary judge for not giving the issue of family violence greater weight. In particular, she relied upon a statement made by his Honour when ruling on the admissibility of a question in cross‑examination to the effect that exploring family violence “might be a dangerous line of inquiry” and that “I don’t know if it will necessarily assist you”. Nevertheless the mother was permitted to ask questions on that issue if she wished to do so.
In light of this and for the reasons discussed below at [108] – [110], we agree with the primary judge that, given the parenting orders currently in force and the particular facts of this case, the family violence issues raised by the mother had little significance in determining the appropriate name for the child.
Thus no error has been established.
Did the primary judge dismiss the mother’s fears of the father disengaging with the child in the future?
It was a significant plank of the mother’s case that there was a reasonable apprehension that the father would disengage with the child in the future. This would also cause there to be further litigation, the mother submits, in order to remove the father’s surname from the child’s name. Some of her submissions have already been dealt with at [41] – [49] above.
This aspect of the challenge relies upon the following passage in the Family Report. The Family Consultant said:
185.I note that there is a dispute between the parents about [the child]’s last name, with the father requesting that it be hyphenated and the mother preferring that it remains as [Reynolds]. This is an issue that is beyond my expertise except to say that if the father is going to be an important person in [the child’s] life in the future, a hyphenated name would seem reasonable. A hyphenated surname may also serve to reinforce to the father the value that he holds in [the child’s] life as [the child] develops into the future. This may in part reduce the risk of the father disengaging from his son should disputes over parenting arrangements and the like be marked by further difficulties.
The mother submits that this passage indicates that the Family Consultant must have been of the view that there was a risk of the father disengaging, otherwise he would not have raised the matter.
The primary judge referred to that passage and said:
22.The foundation for this opinion which seems somewhat speculative is unclear and in the absence of explanation through cross‑examination, it is of little assistance.
That passage was not explored in cross‑examination. The Family Report does not otherwise refer to “the risk of the father disengaging” and it is not at all clear on what basis the Family Consultant said what he did. The magnitude of the risk was not explored.
In those circumstances the primary judge was fully entitled to give that passage little weight.
Did the primary judge denigrate the mother because she did not inform the father of the child’s birth?
It is clear that the mother did not notify the father of the birth of the child but rather the CSA did. The primary judge said that this did the mother “no credit” (at [16]).
The mother submitted she was entitled not to contact the father because she was too frightened to do so. She relied upon the DVO of March 2013 (some three and a half months before the birth) and s 8(2)(c) of the Births, Deaths and Marriages Registration Act 2003 (Qld). Thus, she submitted that her actions were justified and that the primary judge was wrong to criticise her. The provision in the Births, Deaths and Marriages Registration Act 2003 (Qld) upon which the mother relied is concerned with the circumstances in which the Registrar may register a child’s birth based on an application signed by only one of the child’s parents. The provision was irrelevant to the case at hand.
Further, the primary judge’s finding must be seen in context.
His Honour said:
16.I am satisfied that the child will benefit from a meaningful relationship with both of his parents. It has been the position of the mother that the father’s past behaviour and attitude raises concerns about the father not being committed to a role as a parent and possibly “disengaging”. I do not believe the mother’s concerns are founded on the evidence. Certainly there were hurtful remarks directed by the father towards the mother during the pregnancy. It seems that the father may have wished the relationship to continue when the mother had firmly decided it was over. However, the mother’s actions in letting the Child Support Agency inform the father about the birth does her no credit. In short, at that time, both parents could, and should, have acted more maturely.
Whilst it can be understood why the mother would not have wished personally to inform the father of the birth, there were means available by which the father could have been informed promptly and by someone other than the CSA.
The remarks of his Honour must also be seen in the context of the paragraph as a whole. His Honour was critical of both parties for their conduct at the time of the birth. We do not see, however, that this had any impact on the reasoning that followed or on the outcome.
Thus, no error has been established.
Should the primary judge have found that a hyphenated name would be confusing to the child?
The mother submitted that it would be confusing if the child did not have the same surname as the parent with whom he lives. She also submitted that in the future the child will be attending the same school as the mother (as the mother is training to be a teacher) and that it will be embarrassing for the child to constantly explain to people why they have different surnames.
The primary judge said:
25.The mother’s responses in cross-examination and the tenor of her affidavit generally reveal in my view a personal concern (strongly held) that as she has adopted for [the child] her surname of “[Reynolds]” and is the primary carer, no benefit (but much confusion) will occur if he is forced to carry a hyphenated surname. I simply do not accept that is likely to be the case for a child of this age who has a father, who has shown commitment to building a relationship with him. Furthermore, the mother knew as early as August 2013 that the father disagreed with the sole surname of “[Reynolds]” – but nonetheless continued to use it and create “keepsakes” for him (see paragraph 18).
…
29.The mother, at paragraphs 15 to 20 sets out problems she envisages with the child having a hyphenated name. Many, it seems to me, are based on the mother’s personal anxieties created by “coming from a broken family” and living in a “mixed family”. She also relies, it seems, on comments made by “family and friends”, none of whom are identified or gave evidence. Frankly however, even if they did, it is hard to see how their experience might be [the child’s] experience. I do not accept [the child] will be “confused” having a hyphenated surname containing the surnames of both his biological father and mother. Whether he might choose to “drop” a name when he gets older is uncertain. I do not accept the evidence establishes data recording issues for people with hyphenated surnames or travel issues with passports etc.
Thus the primary judge considered, and rejected, the mother’s submission. Further, we would observe that the experience of this Court demonstrates it is now common for children to have a different surname from at least one of their parents, even in intact relationships.
We consider that the finding was one that could be made on the evidence and that no error has been shown.
Did the primary judge err in placing weight on the fact that the mother calls the father by his first name rather than “Dad” or similar when in the presence of the child?
The primary judge noted the father’s concerns about the mother’s attitude to him being involved in the child’s life. His Honour continued (at [24]):
[The father] points to examples like [the mother] encouraging or at least allowing the child to call him [the father’s first name] rather than “Dad” or similar…
The mother submits that “there is no law that states that I must use a particular name when referring to someone”. That may be so but encouraging a young child to use a name such as “Dad” for his father could be seen as being more supportive of their relationship than by using the father’s name.
His Honour continued:
32....The only real risk initially, is if the mother seeks to diminish the child’s sense of identity by restricting his connection with his father and his family. She must be prepared to embrace the Court’s decision and move on….
This was a matter that his Honour was entitled to take into account.
Was the appropriate weight given to the Family Report?
The mother, whilst accepting that passages in the Family Report supported both her application and the application of the father, submitted that the primary judge erred in not giving the Family Report sufficient weight.
It is clear that his Honour was well aware of the Family Report and indeed, as we have seen, quoted a paragraph from it which he found not to be particularly helpful. It is not entirely surprising that the primary judge did not refer to the balance of the Family Report because it was directed almost entirely to the then‑unresolved parenting issues. The only reference to the child’s name was in the paragraph to which the primary judge referred and which his Honour did not find to be of any assistance.
This challenge is not established.
Was the importance of keepsakes and a social footprint given sufficient weight?
The mother submitted that the child had already accumulated significant keepsakes bearing the name Reynolds and that he had also established a social footprint under that name to such a degree that his name should not now be changed. The social footprint referred to by the mother was the child’s registration at his early learning centre and swimming lessons and his registration with a variety of Government departments and the like.
In submitting that the primary judge gave too little weight to those considerations, the mother referred to Reynolds & Sherman at [11] where the Full Court said:
With respect to her Honour, the reference to “little footprints in other little identification documents” could reasonably be seen as a somewhat dismissive description of a significant element of the mother’s case.
(Original emphasis)
We pause to indicate that this statement must be seen in the context of the issue before that court, which was whether the comments of the primary judge quoted by the court established a reasonable apprehension of bias.
The words quoted by the Full Court were the introductory comments of a different judge and were discussed in the context of whether a bystander would have a reasonable apprehension of pre-judgment. Hence the reference to the “little”. The Full Court did not say, as the mother seemed to suggest, that the “Reynolds” footprint was a significant factor which weighed strongly in favour of its continued use. As such, the comments have little relevance to this appeal. The question for us is whether the primary judge was in error in giving this issue insufficient weight.
The primary judge noted that as early as August 2013 the mother knew that the father disagreed with the sole surname of Reynolds but nonetheless “continued to use it” and create “keepsakes” for the child (at [25]). Later in his Honour’s reasons the primary judge referred to the age of the child (“then 30 months”) which he considered to be of significance and said:
32.However, this little boy is yet to embark on any substantial schooling or being involved in team sports or community activities. When he begins to do so with a greater awareness of his surname, I have no real concerns that he will not be able to proudly state his surname in a hyphenated form….
The primary judge clearly took into account the mother’s submissions. Merely because they were not accepted does not mean that an error is thereby established. The age of the child was a significant factor to be taken into account in determining the weight to be given to the keepsakes and to the social footprint.
We are not satisfied that any error has been established in the primary judge’s approach.
Did the primary judge properly find that a hyphenated name would enhance the child’s “sense of identity with both his father and the mother and their extended families”?
The mother submits that the primary judge erred in making this finding by wrongly applying a presumption in favour of a hyphenated name. We accept that there is no such presumption: Reynolds & Sherman at [38]. However, we do not accept that the primary judge applied such a presumption.
In the course of discussing the s 60CC factors the primary judge said:
27. …The mother’s pride in her surname is fair and reasonable, as is the father’s pride in his surname. It is not a competition about which family has the longer or more distinguished pedigree. Rather [the child] will, like most children, have the opportunity to feel connected and proud of his heritage on both his paternal and maternal side. The hyphenated name will slightly enhance that connection for this child…
That language hardly suggests the application of a presumption.
Under the heading “Conclusion”, the primary judge said:
33.I am satisfied that it is in the best interests of [the child] that he have a surname which accurately reflects his heritage. To do so enhances his sense of identity with both his father and the mother and their extended families.
It is clear that his Honour had regard to the matters raised by s 60CC of the Act and made a decision as to what he considered to be in the best interests of the child.
This aspect of the challenge does not succeed.
Was there undue delay in the judgment or distraction by another case?
The mother submits that there was a break in the proceedings for some 40 minutes whilst the primary judge attended to another urgent matter. She also submits that because there was a delay of four months in the primary judge giving a decision “it is very likely that he had forgotten relevant considerations and evidence as well as [the father]’s antagonism shown both to the Court and me whilst he was in the witness box under oath”.
The mother did not identify any passages in the transcript or particularise what considerations or evidence his Honour had forgotten. None is obvious to us.
Further, mere delay does not of itself establish error: Rollings v Rollings (2009) 230 FLR 396 at 415; Herridge & Handerson and Ors (2011) FLC 93-474 at 85,779 - 85,780. This principle holds true in respect of much longer delays than occurred in this case.
Finally, we observe that it is common in busy lists for matters to be interrupted by other matters. Whilst that may, of course, be distracting for the litigants, nothing in the transcript suggests that his Honour was so distracted.
Did the primary judge wrongly find that the mother had re-partnered?
In the introduction to his Honour’s reasons, the primary judge noted that the mother had re-partnered. The mother said that this was in fact not the case.
This reference was only made in the introductory passages to the reasons and seems to have been given no weight by his Honour. If it was therefore an error, it was an error that had no consequence: De Winter and De Winter (1979) FLC 90-605 at 78,092.
For these reasons this aspect of the ground is not established.
It follows that this ground of appeal has not been established.
“The primary judge using incorrect facts to base his reasoning on due to disallowing the mother to address the matter in cross-examination” (Ground 4)
The mother complains that the primary judge “has seemed to take everything in [the father’s] Affidavit … to be true and correct even when proven to be false or due to not permitting me to clarify with my questioning during Cross Examination” (as per the original). The mother also complained that the primary judge frequently interrupted her questions and in particular prevented her from asking questions about domestic violence.
The only “error” of fact identified by the mother related to an unsuccessful application brought by the mother against the paternal grandmother. The father said the magistrate had described the application as “frivolous”. According to the mother, the father could not give this evidence because he was not present at the hearing before the magistrate.
His Honour said at [23]:
Sadly, this conflict between the mother and the father’s family reached a stage at one point where the mother caused domestic violence proceedings to be launched against the paternal grandmother, but the application was dismissed. The evidence was insufficient to make any findings about that matter.
The primary judge did not find the proceedings had been dismissed because they were frivolous. The premise for the mother’s submissions has not been established.
We turn then to the submissions as to the cross-examination.
The mother sought to ask the father some questions about the domestic violence order. The following exchange occurred:
HIS HONOUR: Well, you know, at your request. You might be asked some questions about that. I don’t know what you – what relevance you say that the existence of a family violence order has. If you are saying that you want to explore in these proceedings as a way of demonstrating it’s in the best interests of the child the child does not have a name that involves the father’s name, hyphenated or in any other form, through family – because of the family violence, well, I think that’s a dangerous line of inquiry. But if you wish to go down that track, you know, you can do so. But I don’t know if it will necessarily assist you.
MS REYNOLDS: Your Honour, it’s not – it’s not the
HIS HONOUR: I’ve indicated to you, madam, if you wish to go down that track you may. I’m saying to you, it may not necessarily assist you. Okay? I’m giving you that indication because you’re unrepresented. Okay? But, if you wish to, ask your question. I will see if it’s relevant.
Possibly confused by his Honour’s intervention, the mother’s next question was not about family violence but about another topic. The mother did not return to it. Very shortly afterwards the mother was asked if she had any other questions and she replied that she was “pretty sure I covered everything”. Thus the mother was not prevented from asking questions about family violence or, indeed, about any issue at all.
Nevertheless, lest there be any misunderstanding, we do not see how in the circumstances of this case family violence was a relevant consideration. Consent orders were in place which provided for the child to live with the mother and spend time with the father. Leaving aside the personal antagonism of the parties towards each other, the orders seem to be working well for the benefit of the child who, the primary judge found, had a meaningful relationship with each parent. We do not see how the nature and extent, if any, of verbal denigration by the father against the mother or his ostensible “anger management issues” bore directly upon what name was in the child’s best interests.
This ground also fails.
Accordingly the appeal will be dismissed.
Costs
In accordance with our usual practice we took submissions on costs at the end of the appeal hearing. In the event that the appeal was to be dismissed the father sought an order for costs submitting that the appeal was wholly unsuccessful.
The mother opposed such an order and submitted that each party should pay their own costs because she was on a pension receiving about $19 000 per annum. She said she could not afford to pay any costs orders. That is of course a relevant consideration: s 117(2A)(a) of the Act. It is also true that impecuniosity is of itself no bar to a costs order: Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
Having regard to the fact that the appeal was entirely unsuccessful, it is appropriate that the mother pay the father’s costs.
It is desirable, in the interests of saving all of the parties time, trouble and expense, to fix the costs if an appropriate amount can be ascertained. The father sought to have the court assess his costs in the sum of $8000. No evidence of any nature was given as to how that figure was constituted but its reasonableness was not disputed by the mother. It seems to us to be a modest amount.
We consider, without adopting a particularly scientific approach (see Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [10]), that the appropriate order is that the mother pay the father’s costs assessed in the sum of $8000.
In the light of her financial position she should have 12 months in which to pay them.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy & Aldridge JJ) delivered on 29 November 2016.
Associate:
Date: 29 November 2016
14
7
2