S and L
[2002] FMCAfam 195
•10 May 2002
FEDERAL MAGISTRATES COURT OF AUS TRALIA
| S & L | [2002] FMCAfam 195 |
| FAMILY LAW – Contact – best interests of the children – overnight contact – degree of contact – change of the children’s name – mother’s unilateral decision to change the children’s surname – relationship of the children with each parent – conduct of the parents – violence between the parents. Family Law Act 1975, ss.60B, 65E, 68F(2) Chapman and Palmer (1978) FLC 90-510 |
| Applicant: | R I S |
| Respondent: | R K L |
| File No: | PAM643 of 2002 |
| Delivered on: | 10 May 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 9 & 10 May 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Boyle |
| Solicitors for the Applicant: | Walker Kissane and Plumber DX 8593 Burwood |
| Counsel for the Respondent: | Ms Carr |
| Solicitors for the Respondent: | Mr Mackay of Baldock Stacy and Niven DX 28417 Parramatta |
ORDERS
T he Applicant father and the Respondent mother are to do all things and execute all such documents that shall be necessary to change the registration of the surnames of the children, known as K J S born 15 May 1997, and G K L born 19 November 2001 to S-L and each party is restrained from calling either of the said children by any other name.
Order (3C) made by Consent in these proceedings earlier today is vacated.
In addition to the contact provided in Order (3a),(b) and (d) made by Consent earlier today, the Applicant father is to have contact with the child K J S-L born 15 May 1997 during mid-terms school holidays in 2002 and thereafter for four consecutive days commencing on the first Saturday of the said holidays at 9.00 am, and a second period of four consecutive days commencing at 9.00 am on the second Saturday of such holidays. Such contact to conclude at 5.00 pm on the fourth day of each block of contact.
The Applicant father is to have contact with the child G K S-L born 19 November 2001 as follows:
(a)Until 1 December 2002 from 12.00 noon to 1.00 pm on each alternate Sunday, commencing on 19 May 2002;
(b)From 1 December 2002 until 19 November 2003, from 12.00 noon to 5.00 pm on each alternate Sunday, to correspond with the father's contact with the said child K J S-L;
(c)From 19 November 2004 and all such times as correspond with the father's contact of the said child K J S-L;
In addition to the contact otherwise provided the father shall have contact with the said children over the Christmas period as follows:
(a) On Christmas Day 2002 from 3.00 pm to 6.00 pm;
(b)From 3.00 pm. on Christmas Day to 5.00 pm on Boxing Day 2003, and each alternate year thereafter;
(c)From 5.00 pm on Christmas Eve to 3.00 p.m on Christmas Day 2004 and each alternate year thereafter.
Orders 3 and 4 are subject to the following limitation;
(a)Overnight contact is to take place at the home of the father's parents until 1 December 2002;
(b)The father is not to permit either of the children to remain in the presence of any person administering to themselves any prohibited drug or prohibited substance;
(c)The father is not to enter the premises at which the mother resides for any purpose including contact, and contact changeover is to take place outside the mother's residence.
The father's not to exercise contact with either child on Mother's Day in each year.
Neither party is to denigrate or criticise the other party, or use offensive of insulting language to the other party, or commit any third person to do so, in the presence or hearing of either of the children.
The Court notes that an Interim Apprehended Violence Order was made by the local Court of New South Wales at P on 21 November 2001 and remains in force, and except for the purposes of exercising contact pursuant to these Orders, the father is to observe the provisions of that said Apprehended Violence Order at all times.
Within one month from the date of these Orders, the parties are to contact the Supervisor or other proper person of the Keeping Contact Program at P to arrange an appointment for the purpose of assessing their suitability for participating in a program of counselling, to deal with issues relating to contact with the said children.
FEDERAL MAGISTRATES |
PAM 643 of 2002
| R I S |
Applicant
And
| R K L |
Respondent
REASONS FOR JUDGMENT
The Application before the Court relates to the father's Application for contact with the two children of the relationship between himself and the Respondent. The two children are K who was born on 15 May 1997 and G who was born 19 November 2001.
The parties had intended to marry, but instead the relationship came to an end at a time when the mother was pregnant with the younger child, G. The parties separated and have remained apart. Not surprisingly the separation caused the Respondent mother a great deal of distress, and indeed, the circumstances of the matter are still distressing to her.
There are other proceedings between the father and the mother before the New South Wales District Court relating to the joint property, and those proceedings are unresolved. This Court has no jurisdiction in respect of property in those circumstances.
The two children lived the mother. When the child K was born, here surname was registered as S, the father's name. The mother's explanation for this, was that the parties intended to marry at some stage in the future, and that it would be disruptive for the child to change the surname. The child, G, was born after the parties had separated, and indeed at a time when the relationship between the parties was so acrimonious that the child was born some two days before the parties appeared in the local Court at P, in the interim an Apprehended Violence Order was issued.
The mother has given this child her own surname, that of L. The child K attends school. The mother enrolled the child in school and the evidence is that the name L is being used for the child K. The mother's explanation for this was that the father had left her, that it was inappropriate for the children to have different surnames, and it was also inappropriate for the children to have a different surname from their mother.
The Principal indicated that because the child's name S was on the birth certificate, that the best that the school could do was enrol the child under the hyphenated names of the parents L-S, and the mother indicated that the child was to be known as L. The mother's view was that that was not unilateral with the change of name.
The relevant law on changing a child's name is set out in a variety of cases, from as long ago as 1978. In Chapman v Palmer (1978) FLC 90-510. The full Court of the Family Court said that and I quote:
"The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent, or to direct that a name be restored where a change has occurred, unless the Court's satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child."
The Court set out the factors to which the Court should have regard in determining whether there should be a change in the child's surname to include :
(a) The welfare of the child as the paramount consideration;
(b)The short and long term effects of any change in the child's surname;
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
(d)Any confusion of identity, which may arise for the child if his or her name is changed or not changed;
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during marriage, and
(f)The effect of frequent or random changes of name.
Now in Beech and Stemler (1979) FLC 96-92 Connor J mentioned certain additional matters which may be relevant, including the contact that the husband or father has had and is likely to have in the future with the children, and that a degree of identification which the children now have with their father.
I have had referred to me a recent case not yet reported, except on the Internet, called Flanagan v Handcock . Whilst that decision deals with the injunctive power or the specific issues power for Orders relating to name, the name of the child, it is clear the full Court takes the view that both Beech and Stemler and Chapman and Palmer remain good law.
The circumstances in this case are that it is certainly inappropriate that children of the same parents, plural, should be of different surnames from each other. It is not unreasonable for a mother to, in circumstances where the children are living with her, and the father has agreed and Orders have been made by Consent, that that is to be the case, that the children should bear a surname that identifies them with her.
At the same time, it is clear that the mother's decisions have been taken unilaterally, without the consent of the father. This is not a case where the father is not involved with the children or seeking to be, indeed, there are Orders made by Consent today relating to the father's contact with the elder child, K.
The mother's explanation, as I said for K being enrolled under the name of L-S with the - but being known as L at the school, is quite frankly disingenuous. The reality is that the mother has taken steps to have the child named by a different surname from the name with which she was registered. A name which is not the name of the father with whom the child still has a relationship. The mother has unilaterally taken the steps to have the child named by that name. Her explanation as to why she has done that step, does not sit at all with her explanation, that it was thought to be disruptive if the child's name were to be changed later when the parties were married from L to S then. If it is disruptive to change a child's name from S to L, it is equally disruptive to change the name the other way. The evidence from the mother, however, is that the child had no disruption whatsoever, or so she says.
The circumstances are that the mother can clearly be seen to be taking steps to remove the father's name from identification with the children. I am of a view that if the father does have an involvement with these children, as it is appropriate that the children should have both the same surname that the appropriate Order should be is that the parents' surname should be hyphenated and that the name should therefore be
S-L, and that that is the name by which each child should be known.
Whilst sisters may have different surnames when one or both of them is married, I am of the view that it is quite inappropriate for children of school age or younger to be in that situation when they are full sisters.
There are other issues before the Court relating to the degree of contact to be exercised. Largely, contact between father and K was settled by Consent this morning, except that the mother and the father could not agree on Order (3)(C) which was made by Consent as to the commencement of a second block of four consecutive days contact in the school holidays. The mother had proposed that the starting day should be a Monday, so that the Order should read:
And a second period of four consecutive days commencing on the second Monday of such holidays.
The father was of the view that it should commence on the Friday, so that the Order would read:
And a second period of four consecutive days commencing on the second Friday of such holidays.
In the end as the party could agree, neither day was inserted, so that the Order has become an absurdity reading and a second period of four consecutive days commencing on the second of such holidays which is not only misleading, but totally incapable of enforcement, or even definition. The Order therefore cannot stand, and I propose to make a fresh Order, and I am of the belief that the appropriate commencement of the second block of time should be the Saturday morning.
There is a disagreement over Christmas. The father's view is that the Christmas contact should be shared, the mother is of the view that the permanent arrangement should be that the father's Christmas contact should commence at 3 o'clock on Christmas afternoon and go through to 5 o'clock on Boxing Day. The explanation for that was that the father usually spends the afternoon of Christmas Day with his family. I am not satisfied that that that is a reason that would convince me, and I am of the view that there should be shared Christmas.
The largest issue of course, relates to the implementation of contact and the father's contact with the younger child, G. The principles to be considered in contact proceedings, are those set out in s 60B(2) of the Family Law Act. The Court must take these into consideration except when the Application of any of them is, or would be contrary to the child's best interests. Sub-section 60B(2B) for instance, refer to children's right of contact on a regular basis, with both their parents and other people significant to their care, welfare and development.
The primary consideration of course, is that set out in s 65E of the Act. When a Court exercising jurisdiction under the Family Law Act is considering making Contact Orders concerning a child, that section must be followed. It lays down that the Court must regard the best interests of the child as the paramount consideration. s68F(2) sets out a number of matters that a Court must consider when determining what is in a child's best interests. There are 12 of them in all from s 68F(2a) through to (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered as the Court's done in this matter. Sub-section 68F(2A) requires the Court to consider any wishes expressed by the child and any factors, such as the child's maturity and level of understanding that may be considered to be relevant.
The children concerned in G's case, are far too young to express any wishes. In K's case a question of wishes has not been canvassed and her level of maturity is not great in any event.
The Court must consider the nature of the relationship of the child, with each of the child's parents and with other persons. The mother throughout her evidence was constant in denying the father's capacity as a father, and expressed no optimism whatsoever that G, at least, would develop a good relationship with him. The reality is that she is not prepared to say a good word for him.
The father, despite his criticisms of the mother, was not prepared to criticise her parenting ability. The Court must also look at the relationship between the child with other parents, including grandparents. I am conscious of the decision of the late Trevaux J, in the case of Bright v Bright and Bright v Mackley (1995) FLC 92-570 where His Honour considered the desirability of a child having contact with grandparents in the light of the welfare of that child being the paramount consideration. His Honour said that 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. Certainly, the father has been living with his own parents, although he is now living with friends – more about her a little bit later - and I am of the view that contact arrangements which would provide for the children to spend time with their paternal grandparents would clearly be in the children's best interest. The father also has a sister, and there is no reason to my mind, where contact arrangements that involve the father's sister, would not otherwise be in the children's best interest.
Sub-section 68F(2)(c) requires the Court to consider the likely effect of any changes in the child's circumstances. This is more relevant in residence cases than this case. It is important to consider the practical difficulty in expense of a child having contact with a parent. There is no evidence that the parents live enormous way apart geographically. The Court must consider the capacity of each parent where relevant to provide for the needs of the child, including emotional and intellectual needs. Whilst the mother constantly expressed criticism of the father, or no confidence in his ability as a father, there are no factors to my mind shown in evidence to indicate that he does not have the capacity to provide for the children's emotional and intellectual needs.
The Court has to consider the children's maturity, sex and background, they are little girls, very young. K is just of school age, G is so young that she is still feeding from her mother. The Court must look at the need to protect the child from physical or psychological harm, either by being directly subjected or exposed to abuse, ill treatment, violence or other behaviour, or by seeing or hearing another person being subjected or exposed to such ill treatment. This sub-section deals with subject matter that is also to be considered under subsection 68F(2) (i) and (j).
In that regard, one looks at the occurrence of any family violence and whether or not there is a current Family Violence Order, commonly referred to as an Apprehended Violence Order or AVO. In this case, there is an AVO in existence, there is an Interim Apprehended Violence Order in force until the local Court can deal with the matter on a final basis in early July. The terms of the Apprehended Violence Order are interesting in that they are quite restrictive. The father is the defendant, and Order (3) after the standard Orders made by the Court, was that the defendant must not enter the premises at which the protected persons may from time to time reside or work, or other specified premises, 24 S Street, S G. (4) The defendant must not go within 100 metres of the premises at which the protected persons may from time to time reside or work, or other specific premises being 24 S Street, S G.
Notwithstanding that, there have been Orders in existence since early this year, including Orders made by Consent which provide a regime of contact where the father has contact with the younger child G in the mother's home, the said 24 S Street. Indeed, there is evidence before the Court, of the father being permitted to have contact with the child but other members of his family not being - at least another member of the family not being permitted entry. The Court must also look at the attitude of the child and to the responsibilities of parenthood displayed by each parent.
I will get back to that in a moment and I have also, just dealing with family violence for a moment, not only is there an Apprehended Violence Order in existence, but there has been evidence of unseemly scenes at exercising contact. There is evidence of a friend of the mother's, a Mr S. On the mother's evidence at least intervening in a discussion about payment or otherwise of child support, indicating that the father's failure in that regard, would come back and requite him.
The father's evidence was that there was, in fact a confrontation between Mr S and himself, in which he alleges Mr S had a confrontation with him. Their chests came into contact and he alleges that Mr S suggested to him that he the father, should strike him, so as to be in breach of the Apprehended Violence Order. The mother certainly agreed with the statements alleged to have been made by Mr S. It is difficult to see that the presence of Mr S is at all helpful and indeed, the unseemly behaviour reported at contact changeover cannot be in the best interest of either child.
In Patsaloo v Patsaloo (1995) FLC 92-580 the Full Court held that the making of derogatory or denigrating remarks by one party to another and the inflicting of physical violence by one party on the other are relevant matters to be taken into account, as to the access cases. Any person who indulges in such behaviour presents a very poor role model.
I turn now to the other consideration, the attitude to the child and to the responsibilities of parenthood displayed by each parent. Well now there has been - the mother's raised concerns about the father's current living arrangements with Mr and Mrs G who apparently smoke regularly, and not just cigarettes. There are also allegations they administer themselves the prohibited substance known as cannabis or marijuana. Now passive smoking is these days well and truly regarded as a danger to the child or to any other persons. The father himself does not smoke in the house and I am of the view that the father's actions in that regard should continue.
It is difficult to frame an Order in such a way that would require the father not to take the children at all into contact with people who smoke in a confined space, and whilst I have concerns about the children spending any length of time inside a house, or inside a room, with people who are heavy smokers, I am not satisfied that appropriate circumstances exist to make a specific Order prohibiting that. I am of the view however, that the father should not take either child into contact with people who are administering to themselves any prohibited drug or any prohibited substance, and I shall be making an Order to that effect.
The mother's attitude to the children is to my mind largely dictated by her attitudes to the father. It is clear that her anger at the father, the circumstances of the separation remains unabated. An Order that she sought involves the father not taking the children into contact, with a woman called G H, with whom the father now apparently has a relationship. This Order that is sought is for a period of 18 months. It is on the basis that the father's relationship with the woman, G H, causes the mother distress. What is going to change in 18 months? The father may or may not continue with that relationship. There is no evidence presented to show that the woman G H is in any way a person of bad character or bad habits or lack of personal hygiene, or otherwise irresponsible. The reality is, that the mother does not like her. What the Court is being asked to do, is to ban the father from taking either child into contact with Ms H for a period of 18 months, until such time as presumably, the mother, can control her animosity towards this woman. I am not of the view that any argument has been advanced showing that such an Order, or such a prohibition is in the interests of the child at all, and in fact, I am of the belief that the mother's actions throughout these proceedings, have indicated that she has placed her own anger at the father, and indeed her desire for revenge, beyond a realistic and reasonable appreciation of the best interests of the child. I do not propose to make any Order relating to the father's relationship with another person.
As far as overnight contact with the G family is concerned, I am concerned enough about the smoking to require that the children, certainly for the time being, or the child, in the case of K, should have overnight contact at the grandparent's place, the father's parents. This would have the advantage of the children, or child spending time with the grandparents and if the child is not overnight in the house that is full of cigarette smoke that would have some beneficial effect, but I am principally of the view that the stabilising influence of grandparents, if stabilising that is, is a matter to be considered for overnight contact, at least for the time being.
The mother has indicated, and this is disturbing, that her efforts to contact the father by ringing his parent's place that resulted in the parents hanging up the phone and not allowing any message to be passed. The parents have not attended Court today, and have not been challenged on this point. If it is the case however, I am of the view that the father needs to speak seriously to his parents, because if that is what they are doing, then this is not conducive to the passing of even emergency messages. If the mother wishes to indicate that a child is seriously ill, and the father does not have a mobile phone and indeed, he is not obliged to have a mobile phone – for many years people in Australia managed to live without them – but if there is no way that the mother can communicate an urgent message about the health of a child, then this would be a situation which would not be in the children's best interests. So the father needs to make sure that there is a proper method whereby the mother could pass urgent telephone messages.
What about the contact arrangements? The current contact arrangements involve the father attending at the mother's residence, contact taking place inside the house under the control of the mother for a short period of time. There is evidence of the father attending with his sister, and the sister being denied entry, even to the point of being refused permission to use the toilet. The father on the evidence before me, chose not to exercise contact on that arrangement, even though the mother indicated that it was perfectly all right. The father could come in, have the time with G whilst presumably his sister waited outside hopping from one foot to another. That situation is quite frankly ludicrous, it is not a situation that is at all conducive to a beneficial and friendly atmosphere for the child.
The mother has said that the child is still being fed on demand, and therefore there is a prohibition imposed on the father doing anything more than taking this child out of the house, except for a walk no more than 30 minutes, as long as the weather's fine and the child's fine. The mother has indicated that that is as far as she is prepared to go with contact. This is also ludicrous, it is totally unsuitable for the child's needs. It brings about an air of tension and unhappiness and it can only be seen as a failure by the mother to appreciate the need for the child to spend time with the father in a tension free atmosphere, and to indicate that a child on the breast at the age of nearly six months, cannot be taken away from the mother for a period in excess of 30 minutes, is a submission not backed by any medical evidence whatsoever, and is contrary to the general knowledge of adults who are parents in Australian society.
The fact is, that whilst the father was prepared to go along with this arrangement for a short period of time, the Court is not. The parties must realise that the best interest of the children are paramount, and that if they cannot make arrangements between themselves that are in the best interests of the child, if they require the Court to do so, well the Orders are at large. The Court will be bound by its responsibilities under s 65E of the Family Law Act. That the best interests of the child are the paramount consideration. I am of the view that the father, despite the mother's negative view, is seeking to have a proper and positive relationship with his children. Whatever the circumstances of his separation from the mother – and indeed the description tends not to give the father much credit whatsoever – he is not in a position where he should be punished for the rest of his life for those particular actions or that he should not be given any opportunity to develop a proper relationship with his children.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 3 July 2002
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