S and H
[2007] FMCAfam 97
•23 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & H | [2007] FMCAfam 97 |
| FAMILY LAW – Parenting order – order restraining parent from communicating with child – children – change of surname. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2), 60CC(3), 60CC (4) (4A), 60CG, 61DA, 64B(2)(c), 65D(1), 65DAA, 65DAB |
Chapman & Palmer (1978) FLC 90-510
Beach & Stemmler (1979) FLC 90-692
| Applicant: | KS |
| Respondent: | PWH (AKA H) |
| File Number: | NCM3161 of 2004 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 16 November 2006 |
| Date of Last Submission: | 16 November 2006 |
| Delivered at: | Newcastle |
| Delivered on: | 23 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms O'Rourke |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Mr Gorton |
| Solicitors for the Respondent: | Boyd Olsen Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Hollins |
| Independent Children’s Lawyer: | Sharon Moore Solicitor |
ORDERS
The child currently known as DJH born 18 August 2002 live with the mother.
The mother have sole parental responsibility for the child.
The father is restrained from communicating with the child.
The mother KS is authorised to apply to the Registrar of Births, Deaths and Marriages that the child registered as DJH born 18 August 2002 be now registered as DJS.
Pursuant to s.28(5) of the Births, Deaths and Marriages Registration Act NSW 1995 the Registrar, register the child’s name in the form specified in Order (4) herein.
A sealed copy of the Orders be served forthwith upon the Registrar of Births, Deaths and Marriages NSW.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM3161 of 2004
| KS |
Applicant
And
| PWH (AKA H) |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in relation to a young child, DJH born on 18 August 2002. D is therefore 4 years of age.
The Applicant in these proceedings is the child’s mother KLS. D’s father PWH also known as H responds to that application.
The mother seeks orders as set out in her further amended application filed on 27 October 2006. Effectively the mother seeks orders that D live with her, that she have sole parental responsibility for the child and that the father be restrained from communicating with the child. She also seeks an order that the child’s name be changed from DJH to DJS.
The father seeks the orders set out in his amended response filed on
15 November 2006. He agrees with the mother that the child should live with her and that she have sole parental responsibility for him. The father opposes the change of surname for the child. The father does not seek any order to spend time with the child but does seek an order that he be able to communicate with the child by way of letters and/or gifts and that the mother provide to the father once a year a photograph of the child.
The child was independently represented in these proceedings by Ms Moore solicitor and Ms Hollins of counsel. At the end of the proceedings the Independent Children’s Lawyer submitted that there would be no benefit to the child to receive any communication from his father and submitted that the child’s surname should be changed.
The evidence
The Applicant mother relied on her affidavit filed 27 October 2006, the affidavit of her partner RH also filed on 27 October 2006 as well as the affidavit of GSG a psychologist which was filed on 30 October 2006. Both the mother and Mr H were cross examined however Mr Grant was not required for cross examination.
The father relied on his affidavit filed on 16 November 2006 and was cross-examined.
A number of documents were tendered by each party from the police, Department of Community Services, James Fletcher, John Hunter and Port Macquarie hospitals and the District court.
I have read all of the evidence and observed the parties in the witness box and the court room. The mother appeared distressed throughout the proceedings. An application was made for her to sit beside a screen whereby she would not see the father not only while she was giving her evidence but during the whole proceedings. The application was granted as it was not opposed.
I was invited by the solicitor advocate for the father to draw a negative view of the mother’s evidence generally and in particular her evidence in relation to the father’s attendance at the John Hunter Hospital in 2004.
The mother gave evidence about being at the hospital in June 2004 when the child was to have a small operation. She says that the father attended notwithstanding her request that he not do so and the existence of the Apprehended Violence Order. The mother requested a security block at the hospital on the day of admission in case the father turned up.
Exhibit F2 indicates that on 22 June when the mother and child attended at the ward she spoke to a social worker about having the security block placed. The social worker notes an impression that “the mother seems very calm and not particularly worried or concerned about her ex-partner showing up”. The notes show that the mother was informed of on call social work if the father turned up and that the nursing staff was aware of the issues. The social workers notes for
23 June read:
“23 June 2004 11.00 am SOCIAL WORKER – have met with mum, surgery has been done and D very distressed but mum managing well, stressed but well.
There was a question of whether dad was present last night but mum states that he was not.
He – PH – is in the hospital at the time of writing this but mum states he has not approached her nor has he come within 100 metres as per the AVO.
Currently mum does not feel threatened by him and he is sitting in the chapel.
Security aware of this fact.
Mum has asked to meet DB – social worker will arranged this -------------- s/w (RM P2934)
Mum requested a note be given to PH, note said D was fine and surgery was fine and had a drawing of D. I provided this to PH and all he said was Thank you, he appeared calm when I gave the letter to him. Informed mum of this.
Mum has spoken to Dr. Kumar stated D is fine to go home today.
As it is a joint admission between Dr. Kumar and Dr. Murray Webber, I contacted Murray re: same issue and he to has stated mum and D are fine to go.
Mum expressed a desire to go home as she feels they – herself and D, will be safer there. According to mum, P is of the impression they will be in JHCH until tomorrow so, basically mum and D will be a ‘day ahead’ of PH.
Currently mum and D in café having lunch.
During admission mum has been very appropriate and attentive to D and has been quite calm not showing outwardly any fear or great concern.
Mum still wishes to meet DB and I have asked nursing staff to page D on 2826 when mum returns from lunch.
No further social work intervention required at the moment --------------- s/w (RM P2934)
It was put to the mother that she was not concerned about the father’s presence there and that she sent him a note. Her evidence was that she did not send a note to him. When the above quoted notes were put to the mother she said:
“I probably wrote the note so that he would leave but I can’t actually remember doing it.”
I accept the mother’s version of events. The mother’s comment that she wanted to leave as she would feel safer at home and that she would be a day ahead of the father corroborate the mother’s expressed concerns.
The father appeared to be concerned about maintaining a relationship with the child. He acknowledged that his behaviour towards the mother was at times inappropriate however he appeared to minimise its affect on her. The father gave evidence that he could not understand that the mother would be frightened of him. When asked if he accepted he had a problem with anger he replied:
“No more than anyone else.”
Although the father was planning to do an anger management course his evidence was that he was only doing so because the court asked him to. He personally did not see the need.
I found the mother’s evidence to have been given in a truthful and forthright manner notwithstanding her level of distress. Where her evidence differed from that of the father I preferred that given by her.
Mr H gave evidence in an honest and forthright way.
Mr Grant prepared a report for the mother in relation to a Victims Compensation claim. He expressed the view that the mother was in March 2006, when he saw her, suffering an adjustment disorder with depression. He concluded that the legacy of her past relationship with the father impacts on her level of functioning and psychological health to a moderately severe degree. He of course did not see the father.
The solicitor advocate for the father argues that there is a lack of expert evidence in this case in order to assist the court. Whilst in many cases expert evidence is of great benefit to court in deciding what orders should be made I am satisfied in this case that the facts speak for themselves. I have considered those facts in the light of the legislative framework and the authorities.
Background
The father is 36 years of age and is currently serving a term of imprisonment. The mother is 31 years of age. She lives with Mr H. Because of a history of violence between the mother and father the mother has requested not to disclose her home address. That has not been challenged by the father and has not been required by the court.
The parties commenced to live together in early 1997 however they had an “on again off again” relationship for many years finally separating on 29 December 2002.
There has been an extensive history of domestic violence between the mother and the father. In September 2004 the father was imprisoned for 5 months for breaching an Apprehended Violence Order that had been made in early 2003. Soon thereafter the mother applied for parenting orders for D in this court. In January 2005 orders were made for D to be separately represented and for the father to have supervised contact at the Rainbows Contact Service. This contact never occurred.
On 31 May 2005 the father committed a sexual assault upon the mother and the father was ultimately sentenced to gaol and is not due for release until 13 December 2008. The father pleaded guilty to this charge. On the 13 July 2005 orders were made suspending the father’s contact with the child.
In April 2006 the child SJS was born to the mother and Mr H. The mother and Mr H had commenced their relationship in September 2004.
Issues
There are only 2 significant issues for determination by the court. The first issue was whether or not the father should be able to communicate with the child by sending him cards and/or letters. The second being whether or not the child’s surname should be changed from H to S.
The solicitor advocate for the father argued that the father should be able to communicate with the child by sending a card or letters to the mother via the Legal Aid Commission of NSW. The intent of this submission was to allay any concern that the Father may be attempting to communicate with the mother through the letters that would be written to the child. The child of course would not be in a position to read the letters himself given his young age. The mother and the Independent Children’s Lawyer oppose such course.
Legal principles
These proceedings are parenting proceedings and the court must have regard to the legislative frame work for such proceedings.
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the court must consider the best interests of the child as the paramount consideration: s.60CA. That is the overriding principle.
Section 60B sets out the objects of Pt VII and the principles which underlie those objects. This section provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring the children have the benefit of both of their parents, having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; and
(c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that except when it is or would be contrary to a child’s best interests:
(a)children have a right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development such as grandparents and other relatives; and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining what is in a child’s best interests I must consider the matters set out in s.60CC. The Act prescribes primary considerations and additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the second is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. I intend to give them careful consideration.
I must also take into account, insofar as they are relevant, the additional considerations set out in s.60CC(3). I must also consider the extent to which each parent has fulfilled his or her parenting responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities: Section 60CC (4) (4A)
I must also have regard to any family violence order and ensure that any order that is made does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interests being treated as paramount: s.60CG.
Section 61DA provides:
(1)when making a parenting order in relation to a child 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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a) abuse of the child or another child who at the time was a member of the parent's family (or that other person's family); or
(b)family violence.
(3) ……
(4) 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.
Section 65D(1) provides:
In proceedings for a parenting order the Court may, subject to s 61DA and s 65DAB and this Division, make such parenting order as it thinks proper.
A parenting order includes an order for parental responsibility: s.64B(2)(c).
In the event that the court orders the parties to have equal shared parental responsibility for the child the court must apply the provisions of s.65DAA.
Family violence is defined in s.4(1):
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about his or her personal wellbeing or safety.
However in cases where the presumption does not apply it does not necessarily follow that one party will gain sole parental responsibility. The court may make such parenting order as it considers to be proper.
The presumption is clearly rebutted in this case given the significant history of domestic violence. The father is supportive of the mother having sole parental responsibility for the child. The evidence as to the domestic violence and the inability of the parents to communicate weighs high in my consideration of this issue. I am satisfied that the order both parties seek is the only appropriate order in all of the circumstances. I find that it is in the child’s best interest that the mother have sole parental responsibility for the child.
The primary considerations: Section.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
The father does not seek an order that the child spend time with him. This is understandable given he is serving a period of imprisonment. Although there may be benefit to some children to maintain a relationship with a parent by visiting them in prison for the reasons set out in this judgment I find that there is no benefit to the child in doing so.
The child has not spent significant time with the father throughout his life the last time being Good Friday 2005. Prior to that the mother promoted a relationship between the child and the father including moving back to the Newcastle area to facilitate the relationship.
The child is aware that Mr H is not his natural father having been told such by the mother and Mr H. Although the mother gave evidence that D is aware who his father is there does not appear to be any other evidence to establish the child has any current understanding that Mr H is his natural father. There was certainly a time when the child recognised his father and spent time with him but it is almost two years since the two were together.
The mother’s evidence is that the child does not currently speak of his father although in the past he has described him as a mean person. The mother tells the court that she has never said anything bad about the father to D although I find it impossible to accept that she would be capable of speaking positively about him to D given her evidence that she feels uneasy even seeing the name “P” or “H”. The mother gave evidence that she refers to the father as “an object” when discussing him with Mr H. The child obviously can pick up on this if he overhears any of the conversations.
When the father was first serving a term of imprisonment for the breach of an apprehended violence order he attempted to communicate with the child by writing to him. D is too young to read such correspondence. Although the envelopes were addressed to the child the letters inside were for the mother as well. By sending these letters the father clearly further breached the apprehended violence order. The content dealt with expressions of affection for the mother.
The father sent a birthday card to the child in August 2006. Although there was no complaint from the mother that anything inside that card was not age appropriate I have no confidence the father would be able to refrain from attempting to communicate with the mother under the guise of writing to the child in the future.
Given the history of violence between the father and the mother, that much of that violence has occurred in the presence of the child, and that the father has at times not been able to confine any letters to the child to age appropriate and child focused correspondence I am not satisfied that there is any benefit to the child in him receiving communication from the father.
This would appear to be contrary to the principals and objects of the legislation referred to above. The principals and objects however make it clear that they are always subject to the best interests of the child.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
There is a lengthy and sad history of violence and inappropriate behaviour on the part of the father towards the mother.
In 2000 the father threatened that he was “going to get a knife” to the mother. In 2002 whilst the mother was pregnant with the child the father held her down and tried to choke her.
Further in December 2002 when the child was a few months of age the father threw various objects at the mother and pushed her to the floor and held her by the throat. The mother’s evidence is that the child was present at the time. He would have been a couple of months of age when this incident occurred.
An Apprehended Violence Order was made against the father in the Toronto Local Court on 7 January 2003 naming the mother as the protected person. The order was to last for 2 years.
In December 2003 the mother moved back to the Newcastle area from Port Macquarie so that the child would be able to see his father more regularly. However that same month there was another assault whilst the mother was holding the child in her arms. The father concedes that this incident occurred although his evidence differs to that of the mother. The father was admitted to James Fletcher Hospital as a result of that incident.
In March 2004 the mother went to the father’s workshop after he contacted her. The mother found the father hanging from a rope. She had D with her at the time. To avoid the child witnessing the scene the mother took the child to her car and secured him in it. The mother undid the rope and called 000. A friend of the fathers arrived after that and the mother left with the child.
In May 2004 after an argument the mother and child had evacuated her home to across the road. The father, out the front of the home and in front of the child attempted to commit suicide by inflicting knife wounds on himself. The police were forced to subdue the father. He was subsequently charged and taken away. The Apprehended Violence Order was amended.
The mother returned to the Port Macquarie area in June 2004 after another incident between the father and her.
On 14 July 2004 the mother made a statement to police about a number of incidents. The father was subsequently charged with breaching the Apprehended Violence Order. He was convicted and sentenced to
5 months imprisonment.
The mother filed her application in this court seeking orders that the father have supervised contact with the child in November 2004 and interim orders were made by consent on 18 January 2005 providing for such contact. A few days later the Port Macquarie Local Court extended the Apprehended Violence Order by a further 2 years.
In February 2005 the mother and child stayed with the father overnight at a motel in Wallsend.
In March 2005 the father had sexual intercourse without consent upon the mother in a public place and he subsequently pleaded guilty to the sexual assault upon the mother and was sentenced to 6 years imprisonment. His expected date for release is 13 December 2008.
Interim Orders were made by Federal Magistrate Donald suspending the previous orders for contact between the child and father in July 2005.
The father’s behaviour has been totally unacceptable in relation to the child. The child must be protected from either receiving any physical abuse himself or suffering any psychological harm from witnessing either his father being violent to his mother or his father attempting suicide in front of him. Although I am not asked to make any order for the child and father to spend time together I must still take into account the history of the father’s involvement with the child in deciding whether it is in the child’s best interests to have limited communication with his father.
The additional considerations: Section.60CC(3)
Although I have considered all of the consideration in this provision I detail below those matters that are or particular relevance.
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
This child is only four years of age and any views would not be determinative of this matter.
The nature of the relationship of the child with each of the child’s parents
I am satisfied that the child has a good relationship with his mother and with Mr H.
The father, by the orders he seeks, is hoping the child will retain a memory of him so that in the future he may be able to re-establish a relationship that involves spending time with him. I am not satisfied that the child has a current relationship with his father given that he has not now seen his father since Good Friday 2005. D was only 2 years and 7 months of age at the time.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
Notwithstanding the history of domestic violence I am satisfied that initially the mother was supportive of a relationship between the child and the father. The mother in fact returned from Port Macquarie to the Newcastle area in December 2003 so that the child could see his father more often.
The mother is now absolutely opposed to facilitating or in anyway encouraging the child to have a close relationship with the father. Given that the father has committed a number of acts of violence upon the mother and in particular a most degrading sexual assault upon her in 2005 I find that the mother’s unwillingness is understandable in all of the circumstances.
The unwillingness to facilitate that relationship goes even to the extent of not wanting to give the child cards and letters. She says that she has had to overcome significant emotional issues as a result of her relationship with the father and that although she has improved in recent times if she was forced to give the child such letters she feels that any progress made would be affected.
The report of Dr Grant indicates that the mother has suffered considerable psychological impairment as a result of the father’s treatment of her. The mother gave evidence that if she were ordered to provide the cards sent by the father to the child it would: “destroy me”. After further cross-examination she said that if she was ordered to do so she would. I find that to make such an order would seriously undermine her confidence and possibly set back the progress she has made in dealing with her emotional issues. Ms O’Rourke asked the court to find that the mother had been ‘gilding the lily’ in relation to this evidence. I do not accept that submission.
The father has submitted that the mother’s concerns could be alleviated by an order that the father send letters to the Legal Aid Commission in Newcastle so that they could be vetted before on forwarding to the mother for her to read or ultimately to give to the child to read.
I accept the submissions of the mother that there are inherent difficulties in adopting such a course. Over time staff in the office of the Legal Aid Commission will change. Future staff may not have a proper understanding of the issues in this case and may not be in a position to properly vet the correspondence. Furthermore there would be heightened expectations in the mother’s household around the child’s birthday and Christmas each year to see if any correspondence would be received.
Although Mr H indicated a willingness to read the correspondence to the child in place of the mother there is no possibility of guarding the mother from seeing the correspondence or of the child discussing the letters with his mother. This has the potential to cause the mother further stress. I am of the view that there is a real likelihood of the mother being unable to hide such stress from the child. The potential for such stress to negatively effect her parenting is real and not in the child’s best interests.
The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs
The father’s behaviour has been such that I can have no confidence that he will be able to consider the child’s needs above his own even in the issue of sending correspondence.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
The father has been unable to control his behaviour towards the mother which has had a negative impact on her ability to parent the child. I am not satisfied that he will be able to focus on exercising his responsibilities appropriately.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
I have covered in some detail already the history of family violence in this case. I have taken into account the breaches of the Apprehended Violence orders and the need for the mother to be protected from the father. It is clear that the father has been unable to restrain his actions and his aggression towards the mother even though they have not been in a relationship now for many years.
Whether it would be preferable to make the order that would be least likely to lead to the situation of further proceedings in relation to the child
There is every likelihood that there will be further proceedings between the parties. The father intends to make an application after his release from prison to spend time with the child.
Although the mother’s Further Amended Application filed 27 October 2006 sought an order that the child spend no time with the father such an order was not sought in the written submissions of either the mother or the Independent Children’s Lawyer. Although there appears to be sufficient evidence to warrant consideration as to making such an order I would not make an order prohibiting the child from spending time with the father without expert evidence.
No order is sought by the father to spend time with the child. I am satisfied that at this stage in the child’s life he will not come into contact with the father.
Change of name
The mother seeks to have the surname of the child changed to her surname of S. This is her family name and the surname she uses.
In cases such as this the court will not ordinarily prevent a parent from changing the surname of a child in their care unless it is satisfied that it is made without the consent of the other parent and that it is not in the child’s best interests to do so.
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 parents. Neither parent has the onus of proof in these cases as it is for the court to weigh up the competing factors for and against the change. In doing so the court should have regard to:
a)the short and long term effects of any change in the child’s surname;
b)any embarrassment likely to be experienced by the child if it’s name is different from that of the parent with residence or day to day care of the child;
c)any confusion of identity which may arise for the child if his or her name is changed or is not changed ;
d)the effect which any change in surname may have on the relationship between the child and the parent; and
e)the effect of frequent or random changes of name.
See Chapman & Palmer (1978) FLC 90-510.
In the decision of Beach & Stemmler (1979) FLC 90-692 Justice Connor suggested the following additional factors that the court may wish to consider:
a)the advantages both in the short term and in the long term which will accrue to the child if their surname remains as it is now.
b)the contact that the father has had and is likely to have in the future with the child.
c)the degree of identification that the child now has with the father.
d)the degree of identification which the child has now with the mother and step father.
e)the desire of the father that the original name be restored.
The mother gave evidence that she did not intend to change her surname if she were to marry Mr H. Mr H gave evidence that the child, S, has the surname of S as he did not want there to be confusion in the family. D is known as S although this has caused difficulties for the mother. Mr H hoped that, subject to discussions with the mother, if they were to marry the names of the family could change to H. The mother’s evidence was that she would not do that. I accept the mother’s evidence over that of Mr H in this regard.
The mother gave evidence that it upsets her to write the name “H” or see the name “P”. The child is enrolled as “DH” with his Daycare but according to the mother he is known as “DS”. The mother’s evidence is that each time she signs the child into Daycare using the surname “H” she becomes teary.
The child calls Mr H “Dad”. According to the mother this was not encouraged by her or Mr H but freely chosen by the child. The child however knows that Mr H is not his natural father. Although a surname is relevant to the question of identity a child’s identity is not soley determined by having the same surname as his or her father. Many children have the same surname as their mother. I am satisfied that it is the intention of the mother that the child’s surname be the same as hers and that the surname remain S. Given the child’s young age and that he will have the same surname as his primary carer I am satisfied that the issue of the child’s surname will not cause any confusion as to his identity.
The solicitor advocate for the father argues that there is no evidence to assist the court in making any findings as to short and long term effects of any change in D’s surname. Although there maybe some cases where the court could be guided by the assistance of an expert as to these issues, I am of the view that there is sufficient evidence in this particular case as to the father’s past behaviour towards the mother, the mother’s health as a result of that behaviour, and the age of the child for the court to make a determination of the matter.
I am satisfied that because the child is so young he is not personally aware of his surname and that he will not suffer any short or long term effects if that surname is changed. I am satisfied that once the child starts attending school and indeed when his young sister is also attending school he may find embarrassment having a surname different to that of his mother and his sister.
I am aware that the father will be upset that the child’s surname is not the same as his, however it must be borne in mind that father himself did not use the surname H until he was in his twenties. The father is still known as H as well as H.
The child does not currently have a relationship with the father and therefore a name change will not affect any relationship.
The court is concerned as to the effect of any frequent or random changes of a child’s surname. In this particular case there is some evidence that Mr H may want the child’s surname changed again in the future to that of H. Having observed both Mr H and Ms S in the witness box I am of the view that Ms S would “win out” in any discussion she may eventually have with Mr H as to the surname of both herself and the children. I am therefore satisfied on the evidence that there is unlikely to be any future changes of name for this child.
Conclusion
In all of the circumstances having taken into account the above factors, the difficulty the mother has in even writing the name H, that she will have sole parental responsibility for this child and will need to attend with the child to doctors and schools and other professionals and given the child’s young age, it is appropriate that his surname be changed to Searle.
Although the orders sought by the father in relation to communicating with the child appear in themselves to be of narrow compass on balance I am of the view that the child’s best interests will not served by allowing the father to do so. I am concerned that the father will not be able to focus on the child’s needs over his own and that the communication will not always be child focused. Even if he is able to communicate appropriately the past has had such an effect on the mother she is likely to have her parenting compromised if the father is to communicate with the child.
For these reasons I make the orders set out at the beginning of this judgment.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Acting Associate: Helen Drysdale
Date: 23 February 2007
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