SARGENT & REYNOLDS

[2013] FCCA 1017

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARGENT & REYNOLDS [2013] FCCA 1017

Catchwords:
FAMILY LAW – Parental responsibility – equal shared parental responsibility order in force – parents agreed on child’s full name, school child to attend and that child should commence school at the commencement of 2013 – parents disagreeing on the given name by which child is to be called at school and at extracurricular activities – mother refusing to send child to school if child to be called by father's preferred name – determination of name by which child to be called at school and extracurricular activities.

Legislation:
Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65DAA, 65DAB

Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC ¶93-296 MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

Applicant: MR SARGENT

Respondent: MS REYNOLDS

File Number: PAC 2105 of 2008

Judgment of: Judge Halligan

Hearing dates: 18 & 19 July 2013

Date of Last Submission: 19 July 2013

Delivered at: Parramatta

Delivered on: 5 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Givney

Solicitors for the Applicant: Hannaford Cox Connellan & McFarland

Counsel for the Respondent: Ms Obradovic

Solicitors for the Respondent: Dear Loneragan & Hogan

ORDERS

1. Each of the parents of the child [X] [Y] Reynolds Sargent born [in] 2007 shall do all things necessary to ensure the child attends school in accordance with the Education Act 1990 (NSW).

2. Each of the parents of the child shall forthwith do all things and sign all documents necessary to apply to enrol the child in [M] School.

3. If the enrolment application is accepted by [M] School, each of the parents shall do all things necessary to ensure the child attends that school and completes his primary education at that school, unless the parents otherwise agree in writing.

4. If the enrolment application is not accepted by [M] School, each of the parents shall forthwith on being so advised do all things and sign all documents necessary to apply to enrol the child in the State primary school nearest to the mother's home or in such other State primary school to which they may be referred by the State primary school nearest to the mother's home, and on the child becoming enrolled in a State primary school, each of the parents shall do all things necessary to ensure the child attends that school and completes his primary education at that school, unless the parents otherwise agree in writing

5. Pending further order, the parents shall do all things and sign all documents necessary to authorise teachers and staff at the school the child attends from time to time, and officials at any extracurricular activity in which the child may be engaged from time to time, to use of the name “[Y]” to refer to the child.

6. It is noted that the preceding order does not-

   (a)alter the child’s name as specified in the parenting orders made by this court on 21 July 2009; or

   (b)prevent the father, members of his family and his acquaintances referring to the child as [X] or [X] [Y] at any time.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DUBBO

PAC 2105 of 2008

MR SARGENT

Applicant

And

MS REYNOLDS

Respondent

REASONS FOR JUDGMENT

Introduction

“What’s in a name? that which we call a rose

By any other name would smell as sweet;”

(Shakespeare’s Romeo and Juliet, Act II, Scene II)

1. Alas, the parents of [X] [Y] Reynolds Sargent, who turns six on [date omitted] this year, are not as flexible about names as Shakespeare’s Juliet when it comes to their son.  While they agree on his full name, they disagree on the given name by which he should be called at school and when involved in extra curricular activities, the father insisting he be called [X] or [X] [Y] and the mother insisting he be called [Y].

2. In fact, the parents are so entrenched in their views, that the mother withdrew the child from the preschool that he had attended for three terms in 2012, an activity the chid enjoyed, because the father had succeeded in having the child called [X] rather than [Y], as he had been known for the previous three terms.  And so entrenched are they that despite agreeing the child should commence school this year, and despite agreeing which school he should attend, the child still has not commenced school because the father has succeeded in having the school use the first name on the child’s birth certificate to refer to the child and the mother will not accept the child being called that name by teachers at his school, and so has simply not sent him to school.

3. Thus, the parents have turned to the court to determine what name the child is to be called at school and at extra curricular activities.

4. The father sought orders-

   a)requiring both parties to do all things necessary to enrol the child in the school the parties agreed the child should attend as soon as possible and to cause the child to complete his primary education at that school unless the parents otherwise agreed; and

   b)requiring the parents to do all things to ensure that the child is known by the first name “[X]” or “[X] [Y]” at any educational institution or extracurricular activity which he may attend from time to time in accordance with the requirements of that institution.

5. The mother sought an order to the effect of the second of the orders the father sought, but with the child to be known by the first name “[Y]”.

6. Both parties proposed that the court include a notation in its order that the father and those associated with him be at liberty to call the child “[X]” or “[X] [Y]” when the father and those associated with him interact with the child at events associated with the school, and the mother and those associated with her be at liberty to call the child “[Y]” when the mother and those associated with her interact with the child at events associated with the school.  I am left to infer that the same dichotomy is to exist when the child is engaged in extracurricular activities.

7. This is but one issue outstanding in the current parenting proceedings.  There are issues now about the allocation of parental responsibility, the time the child should spend with the father, the name the father should call the child, and other parenting issues.  However, due to the urgency of the schooling issue, with the boy’s 6^th birthday fast approaching and with school attendance being mandatory in New South Wales from a child’s 6^th birthday, this aspect of the parental dispute has been listed for determination as a discrete issue.

Background

1. Consent parenting orders were made in relation to the child on

   
   

   21 July 2009.  Competing parenting applications by the parents had been listed for final hearing on that date, and both parties were represented by counsel when those orders were made.

2. The child’s birth had been registered under the name [X] [Y] Sargent.  The consent parenting orders made on 21 July 2009 provide that-

   a)The parents have equal shared parental responsibility for the child.

   b)The child live with the mother.

   c)The child spend time with the father on an escalating regime, culminating in the child spending three nights a fortnight and half of school holidays with the father from 27 August 2012 until he commences at school, and thereafter five nights a fortnight and half school holidays.

   d)The parents do all things to change the child’s name on his birth certificate to [X] [Y] Reynolds Sargent, with that order followed by notations that the mother calls him [Y] and the father calls him [X] [Y].

3. Neither parent took any steps after those orders were made to have the child’s birth certificate changed.  On the first day of the hearing, I ordered the parents to take the necessary steps within a short specified timeframe to register the child’s name in accordance with those orders.

4. It is relevant that the child has an older half sibling, a child of the mother to a prior relationship, [W] born [in] 2004.  [W], who therefore is now aged nine, lives with the mother and the child.

5. It is also relevant to note that while the 2009 orders noted that the father calls the boy [X] [Y], he in fact referred to him as [X] in correspondence about the very issue I am now determining, and he ultimately admitted in cross-examination that he tends to call the boy [X], when not referring to him by names none of which appear on his birth certificate, and that the child’s paternal grandmother calls him [X] [Y].  As to the names the father calls the boy that are not on his birth certificate, the father admitted calling the child [Z] on occasions.  I do not accept the father's explanation of his use of the expression [omitted] as being a reference to a part of the child’s anatomy he uses when speaking to the child about aspects of personal hygiene, and am satisfied that he calls the child by that name on occasions as well.

The relevant facts

1. The parents’ current relationship is marked by a high level of conflict, distrust and animosity, as is clearly apparent from the brief outline of the current controversy I have already given.  The mother finds both the father and his name extremely distasteful.  She has disliked the father's name, and hence her younger son’s first given name, for most if not all of the child’s life, always referring to the child as [Y] and never as [X].  Nonetheless, in the parenting orders made in 2009 she agreed to the child retaining the given names given to him shortly after his birth, with the addition of her last name as a third given name for the child.

2. The mother has never sought to encourage the child to use his first given name.  She has never sought to reassure the child as to the merit or value of the child’s first given name, a name she agreed he should have.  The child’s first given name is a family name in his paternal family, being the first given name of his father, grandfather and great grandfather, albeit there has been a minor variation in the spelling from generation to generation, the father's first given name being spelt with an “[letter omitted]”, unlike the child’s first given name.  Whatever the source of the tradition in the father's family about the use of this name, the derisive way in which the mother treats the regard for this name by the father's extended family is gratuitously offensive and highly inflammatory.

3. As mentioned, neither party paid any regard to the order that they register the child’s change of name effected by the 2009 orders.  Both parents have paid scant regard to the equal shared parental responsibility order.  The father unilaterally enrolled the child in a preschool in a different country town to the one in which the parents and child live in 2011.  The mother unilaterally enrolled the child in a preschool in the town in which the parties and child live in 2012 under the name [Y] Reynolds Sargent, although the mother did provide the preschool with the child’s birth certificate, which did not show the child’s correct name as the parents had taken no steps to have the birth certificate changed.

4. It is this latter preschool from which the mother withdrew the child after three terms because the father ultimately succeeded in having the preschool adopt the policy of referring to the child by his first given name.  He was unsuccessful at first, when the director of the preschool declined to change the name by which the child had become known by staff and pupils at the preschool and with which the child was comfortable.  However, the father made a formal complaint against the preschool director to the board of management of the preschool, and after exchanges of correspondence between the father's solicitors and solicitors retained by the preschool, the board of management decided to accede to the father's demands.

5. The mother was wrong to register the child in preschool unilaterally and under a name that is not the child’s name.  But even if the mother had registered the child under the name determined under the 2009 orders, it begs the question as to the name by which the child ought to have been called at the preschool, the 2009 consent orders allowing the use of either of two names.

6. The father's actions on discovering the child was being called [Y] at preschool display a total disregard for the child’s welfare.  He refused to accept the professional opinion and advice of the Director of the preschool that it would be best for his son that he continue to be called the name by which he had become known.  It should not require professional advice for the father to realise that to change the name by which staff and peers at the preschool had come to know the child for three terms may have some adverse impact on the child.  Yet even with that professional advice, he was undeterred in insisting on the change of name.

7. The Director of the preschool in a letter dated 13 June 2012 said-

   “Many children (and staff) are known by names other than those that are registered on their birth certificate.  As is our standard practice with young children when there is a discrepancy with their name, we ask them what they prefer to be called.  [Y], from the outset, has confidently expressed his preference to be called “[Y]” – and that is the name by which he is known in the playground or in the classroom where [Y] has happily and spontaneously called out this name.”

8. It was clearly foreseeable that under the compromise the parties reached over the child’s name as reflected in the 2009 orders, which involved the use of two different given names for him, an issue had to arise about what he is to be called when not with either parent or members of their family and their acquaintances.  But given the agreement that he could be called either of two given names, there is no logical reason why either party should think that he or she has a greater right than the other to insist on the child being called one rather than the other of those names.

9. The father's actions in going over the head of the preschool Director and making a formal complaint about her to the board of management of the preschool had nothing to do with the father seeking to make the arrangements that were best for his son in the circumstances that then existed.  Rather, it have everything to do with the father not being prepared to concede anything to the mother, even if it might have been best for the child to make the concession at that point.

10. Not that the mother’s actions display any greater child focus.  Her withdrawal of the child from the preschool, and her refusal to send the child to school this year, were driven by the same motives.  Her assertion that she was motivated by concern at the distress the child would experience at becoming known by a different name after three terms, a name the child did not like, is quite disingenuous when the mother agreed to the child having the name she abhors, she has made no effort to reassure the child about the appropriateness of that name, and she made no effort to reassure the child about becoming known by a different name at preschool, or to arrange strategies with the preschool to alleviate any distress the child might feel.

11. As for the mother's obdurate refusal to send the child to school this year, this is simply an obstinate refusal to bow to the father's will, regardless of the impact on the child.  This child will now commence school over half way through the school year, well behind his peers academically and socially, after his peers have well and truly settled into school and school routines and formed their peer friendships.  The same adverse observations apply to the father's obstinate insistence that the child must be know as [X] or [X] [Y] at school.

12. The mother has paid scant regard this year to the orders that the child spend time with the father. She stopped making the child available to the father in late January 2013. The father's time with the child resumed in late June 2013 after the mother was found to have contravened the 2009 parenting orders on a number of occasions this year. Those contraventions were dealt with under Subdivision F of Division 13A of Part VII of the Family Law Act 1975, that is, as more serious contraventions proved beyond a reasonable doubt, and she was placed on a s.70NFE bond with an order made for compensatory time.

13. When the father's time resumed in June 2013, the child at changeover told him he did not like the name [X], did not want to be called that name, and did not want to go with the father.  The child in fact ran into the police station in front of which changeover was to occur, and had to be escorted out of the police station and to the father's car by police officers.

14. The mother asserts that her older son [W] has a strong dislike of the father, and of his name.  She says the subject child dislikes his father, does not want to spend time with him, dislikes his father's name, and hence dislikes his own first given name, a name the mother confirmed as his first given name in seeking the consent orders in 2009.  She asserts in fact that [W] and the child so dislike the father that they hate to even hear his name, which she says they refer to as “that stupid name” rather than utter it.

The applicable law

1. Parenting proceedings fall to be determined under Part VII of the Family Law Act 1975.

2. In proceedings for a parenting order, the court may make such parenting order as it thinks fit, subject to ss.61DA (rebuttable presumption as to equal shared parental responsibility) and 65DAB (parenting plans) (s.65D(1)). There is an equal shared parental responsibility order currently in force, and I am not asked by either party to explicitly vary or discharge that order. Thus s.61DA is not relevant. As there is no evidence of any parenting plans, s.65DAB too is not relevant.

3. In determining whether to make a particular parenting order, the court must regard the child’s best interests as the paramount consideration (s.60CA). In determining what is in a child’s best interests, the court must have regard to the considerations set out in s.60CC. And the court must assess the s.60CC considerations against the background of the objects and principles of Part VII of the Family Law Act as set out in s.60B (Goode v Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC ¶93-296 at 80,888-9).

4. Where an equal shared parental responsibility order is in force or is proposed to be made, the court must consider whether the child spending equal time with each parent is both in the child’s best interests and reasonably practicable, and if it is, the court must consider making an equal time order.  If the court does not make an equal time order, it must next consider whether an order that the child spend substantial and significant time with each of the child’s parents is both in the child’s best interests and reasonably practicable, and if it is, the court must consider making a substantial and significant time order (s.65DAA, and see MRR & GR, [2010] HCA 4 at [13], (2010) 42 Fam LR 531, (2010) FLC ¶93-424).

5. Both parties’ cases were presented on the basis that I was being asked to make a parenting order. Neither party’s counsel addressed the court as to the nature of the parenting order I was asked to make, and nor did either party’s counsel advert to the imperative imposed by s.65DAA. If, as I am left to surmise, it was considered that s.65DAA did not apply, no submissions were made as to why that would be so, given the equal shared parental responsibility order that exists.

6. A parenting order includes an order “dealing with … the allocation of parental responsibility for a child” and an order “dealing with … any aspect of the care, welfare and development of the child or any other aspect of parental responsibility for a child” (s.64B(1) and (2)(c) and (i)).  “Parental responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (ss.4(1) and 61B).

1. I proceed on the basis that the word “other” in the phrase “other aspect of parental responsibility for a child” in s.64B(2)(i) relates to the phrase “any aspect of the care, welfare and development of the child”, and that an order “dealing with … any … aspect of parental responsibility of a child” is a parenting order under s.64B.

2. There is no issue as to the child’s name, there being no application to change it from the name determined by the orders made in 2009.  Nor is there any issue as to the school the child is to attend.

3. It may therefore appear that there is no issue that arises as to the aspects of parental responsibility covering the child’s name and education, thus raising a question whether the orders I am asked to make are parenting orders, and if so, of what kind.  As the impasse between the parents as to the child’s name at school is preventing the child attending school, and the order I am asked to make will overcome that impediment, I will proceed on the basis that I am being asked to make an order “dealing with” the child’s education, being an aspect of parental responsibility, and not a parenting order “dealing with” the determination of the child’s name as an aspect of parental responsibility, there being no dispute about the boy’s name.

4. That however would leave the “allocation” of parental responsibility by the equal shared parental responsibility order made in 2009 in place. What, then, of s.65DAA? The High Court in MRR & GR said (Ibid) that in relation to making an equal time order-

   “A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind.”

5. I will proceed on the basis that s.65DAA applies, but as neither parent sought any orders in the hearing before me as to the apportionment of the child’s time between them, and as the parents did not place before me evidence to enable me to properly assess the child’s best interests in relation to his care arrangements, I cannot at this stage of the proceedings be satisfied that it would be in the child’s best interests to live in an equal time arrangement with his parents, or to spend substantial and significant time with his parents. In the final hearing of the remaining parenting issues, the court will have evidence as to the care arrangements that are in the child’s best interests, and will then be able to make the assessments s.65DAA calls for, assuming the current equal shared parental responsibility order is to remain undisturbed after that hearing.

Discussion and decision

1. In relation to such of the s.60CC considerations as appear relevant, I note the following-

   a)The child’s first given name is a strong point if identification with his father and his extended paternal family.  His expression of a strong dislike for that name is said to flow from his dislike of his father.  To support the effective abandonment of that name in public as the mother seeks is to possibly reinforce and validate the negative view the boy has of his father, and may impede the child having a meaningful relationship with his father from which he could benefit.

   b)The child has said he does not like his first name and does not want to be called by that name.  However, I have no expert evidence to provide guidance as to why the child is saying this, and as to what weight should be attached to the child’s expressed view.  That will change at a final hearing of the remaining parenting issues.  I am satisfied the child has been strongly influenced in his views by the mother and his brother [W].  I note the child’s age.  In the circumstances, I am satisfied that I should place some significance on the child’s expressed views, as either indicating a genuinely held view of the child, or alternatively reflecting the extent to which the child has become enmeshed in and influenced by the parental conflict.

   c)The child appears to be closely aligned with his mother.  His relationship with his father appears at present to be under considerable strain.  While I am satisfied the mother is partly responsible for this, I am concerned that, despite the somewhat limited and constrained evidence I have heard, it seems that the father has contributed to this state of affairs by also exposing the child to the parental conflict and by being insensitive to the potential impact on the child of his actions in having the child’s name at his pre-school changed after three terms’ attendance.

   d)Both parents have made unilateral decisions about the child that under the equal shared parental responsibility order they had no authority to make, and the mother has stopped the child’s time with his father for a significant period this year without any justification.

   e)I have real doubts about the capacity of both parents to meet this child’s emotional needs.  In fact, I am satisfied that both of the parents are exposing this child to the risk of serious psychological harm by their unilateral actions taken to advance or vindicate their positions in the parental conflict with no regard for the impact of their actions on their son, and by exposing the child to the full glare of their mutual animosity and distrust.

2. The remaining, and most significant issue, in my view, is the likely effect of the orders each party asks me to make on the child.

3. I have no doubt at all on the current evidence that the child has been strongly influenced by his mother, both in relation to his attitude to his first given name, and to spending time with his father.  That is not to say that I am satisfied that the child is simply parroting what he has learned from his mother, and that what he has recently said and done does not indicate the child’s own view, albeit it is consistent with, and strongly influenced by, the mother’s views.

4. I am deeply concerned at the potential adverse consequences for the child of the mother's distaste for the child’s own name.  There is no suggestion in the currently pending parenting proceedings that the child’s name should change.  His birth certificate will continue to show his first given name as [X].  The child is known by this name by the father’s extended family and their circle of friends and acquaintances, in the same way the child is known as [Y] by the mother's extended family and her circle of friends and acquaintances.  Whatever name the teachers at school, and officials at extra curricular activities, may call him, in the country town in which he and his parents live he will meet children from families some of whom will know him by one name and some of whom will know him by the other name, and he thus will be referred to by both names by different peers and acquaintances with whom he mixes.  Both parents conceded as much.

5. Not only that, in the final orders sought by the parents in relation to this discrete issue, they both propose that they and their extended family and acquaintances continue to use the name by which they refer to the child when interacting with him at school events and functions and extracurricular activities.  That is the mother's proposal despite her seeking a final order in the balance of the parenting proceedings that the father be restrained from calling the child by any name other than [Y], although his extended family and acquaintances could, and I am satisfied would, continue to call the boy [X] or [X] [Y].

6. This is a truly absurd situation, and casts both parents in a singularly unflattering light.  Neither is showing any regard for this child’s best interests.  Rather they are both simply intent on forcing their will on the other, whatever the cost for their child.

7. If I determine that teachers and the like should refer to the child as [Y], some of his peers and some adults who know him outside both parties’ families will continue to call him [X], as will the father and members of his family, both at school and at extra curricular activities.  If the child is as averse to this name as the mother asserts, and the mother has done nothing to mitigate the boy’s aversion to the name, I am concerned there is a real risk that the child’s social interactions and activities may become restricted if he seeks to avoid people and situations where he may be referred to as [X].  In a country town such as the one in which the parties live, that could place a significant restriction on his socialisation and pursuit of normal activities.

8. On the other hand, I am satisfied the child is under relentless pressure to conform to the highly negative attitude to the father and to his name the mother and her son [W] have.  These are the two people who make up the household in which the child primarily lives, and with whom he has primarily lived all his life.  If I order that the child be known at school and extra curricular activities as [X], I am concerned the child may feel a deep sense of betrayal and disloyalty to his mother and his brother.  It is significant that [W] attends the school this child will attend.  I am also satisfied that if the child is to be known as [X], it is likely that the mother will not involve him in any extracurricular activities, just as she withdrew him from preschool although he enjoyed attending there because he was to become known as [X], and has refused to send him to school this year for the same reason.  This too will have a significant restrictive effect on his socialisation and pursuit of normal, healthy activities.

9. The parental dispute about the child’s name at school is but one manifestation or symptom of a deep seated problem between the parents, one which no court order can ever fix, and that is their highly conflictual relationship.  With the mother, as I am satisfied she has done, at least encouraging, if not instigating, the child’s adverse reaction to the name she agreed he should have as his first given name, there is a real risk that the child may become increasingly cut off not only from his father and his extended paternal family, but also from other families in the town who associate with the father’s family and who know the child as [X].

10. Neither party presents the court with an option that will relieve the child from his current predicament.  Whatever I order, the child will continue to be called different names by different people, and sometimes in the same setting at the same time.

11. What I perceive as the very real danger for the child in this situation is that whatever I do, the ongoing conflict between the parents about the child’s name and their exposure of the child to their conflict will drive a wedge not only between the child and his father, but between the child and his extended paternal family and their friends and acquaintances in the town.  In my view, if the parental conflict continues unresolved, there is a real likelihood that this child will be denied the opportunity of a relationship with his father, his paternal family, and with some of his peers at school.  He deserves much better than that from each of his parents.

12. However, I cannot make an order to change the parent's attitudes, and have them act as responsible, child focussed parents if they will not do so.  All I can do is attempt to discern which of the options the parties present is likely to involve the lesser risk of harm to the child.  I am certainly satisfied that the negatives of both proposals outweigh any potential benefits.

13. Ultimately, I am satisfied that the order that is most likely to secure the child’s greater comfort with the outcome in the home in which he primarily lives, the mother's, and which is likely to lead to a lesser degree of social isolation and restriction in participation in extra curricular activities, is for him to be called [Y].  This is also consistent with the child’s expressed wish, and how, according to the preschool Director, the child identified himself, albeit I am satisfied the child has been strongly influenced in this by the mother.  I acknowledge that this may reinforce and validate the negative view of the father and his name that the child has expressed, but doing the best I can on the limited evidence available, I am satisfied this is the least harmful option.

14. I am aware that this outcome may be seen, by both the father and his family and the mother herself, as rewarding and supporting the mother for behaviour that warrants censure, namely her failure to ever encourage a positive attitude in the child to the name she agreed he should have, and with it, her attempts to hinder the child’s relationship with his father.  While this is a matter that causes me considerable concern, in the context of the discrete issue I am asked to determine, I am not satisfied that granting the father's application will change the mother's behaviour.  In fact, I am satisfied it would be more likely to make it worse, to the child’s even greater detriment.

15. For the foregoing reasons, and as I have not had the benefit of hearing all the evidence or having the assistance of expert evidence, I am satisfied that I should not make a final order about the child’s name at school.  The order I will make will be an interim one, and the issue will need to be considered again in the context of the final hearing of the full parenting proceedings.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Halligan.

Date:  5 August 2013