Scoskinski and Szok

[2008] FamCA 438

FAMILY COURT OF AUSTRALIA

SCOSKINSKI & SZOK [2008] FamCA 438

FAMILY LAW – CHILDREN – change of name

Family Law Act 1975 (Cth) s 60CC

Fooks v McCarthy (1994) FLC 92-450
Flanagan v Handcock (2001) FLC 93-074
Henry & Donald (2007) Fam CA 876
Re Skipworth; Maney and Skipworth (1989) FLC 92-018
Director-General, Dept of Community Services v Adoptive Parents (2006) 34 Fam LR 372

APPLICANT: Mr Scoskinski

RESPONDENT: Ms Szok

FILE NUMBER: SYC 5336 of 2007

DATE DELIVERED: 13 June 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 February 2008 and
19 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The mother and father are restrained from using any name other than Szok for the female child of the parties born in October 2005 called in the birth registration … Szok.

2. The mother and father must ensure that the child uses only that name.

3. With the consent of the mother, the mother is restrained from using any other surname other than Szok. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5336 of 2007

Mr Scoskinski

Applicant

And

Ms Szoc

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The only issue remaining outstanding in this matter is the surname by which the parties’ child born in October 2005 (2 years 5 months) will be known.

2. The mother uses the surname Szoc.  The father uses the surname Scoskinski. 

3. The child has been known since her birth by the surname Szoc.  The mother asserts that this was an agreement the parties reached by themselves shortly after the child’s birth.  The father alleges that there was collusion between the mother and her current partner prior to the birth and immediately after the birth and that he was led into an agreement as to the child’s name shortly after her birth in circumstances, in which, upon reflection, he now believes were fraudulent. 

4. On 12 February 2008 I made final parenting orders in relation to the child, resolving all other outstanding issues between the parties in the following terms:

   1.The parents of [the child] born […] October 2005 (“[the child]”) have equal shared parental responsibility.

   2.Until the mother engages in full time employment or [the child] starts school, [the child] will spend time with her father from 5.30pm Friday to 8.30am Monday each week and otherwise live with her mother.

   3.Upon the happening of either the two events referred to in Order 2, then the current arrangement will change so that [the child] spends the following time with her father:

   Week 1:

   3.1.     5.30pm Monday to 8.30am Wednesday

   3.2.     5.30pm Friday to 8.30am Monday

   Week 2:

   3.3.     5.30pm Wednesday to 8.30am Friday

   and [the child] otherwise live with her mother. 

   4.[The child] will spend one half the gazetted schools holidays with each of her parents once she starts school or once the mother starts full time employment, whichever event first occurs. 

   5.The mother shall be entitled to enrol [the child] in the […] Child Care Centre on the basis that she pays the full costs for that centre. 

   6.If and when the mother commences full time employment then the parties will confer on whether or not [the child] will continue at that child care centre or whether or not a new child care centre will be found that is more convenient geographically to a shared parenting arrangement. 

   7.Leave is granted to either party to file a new application should there be a problem in relation to the child care centre [the child] attends. 

   8.Both parties prepare statements from themselves and any witnesses that either party wishes to call on 28 March 2008.

   9.This matter be adjourned to 28 March 2008 at 2.30pm for the finalization of the hearing as to whether [the child’s] surname will be changed. 

   IT IS NOTED THAT:

   10.The parties agree that they will review the order that comes into operation pursuant to Order 3, three months after it commences to assess how it is working for [the child]. 

THE EVIDENCE

1. The parties gave oral evidence before me on 12 February 2008 and during that evidence it was clear that both parties may be able to bring witnesses on issues where the parties were giving different factual versions of events.  Both parties were invited to provide further written statements.  Mr D, the mother’s current partner, was a maternal witness as to how the child came to have her current surname.  Accordingly I indicated to the mother that I would require Mr D to attend court on the second day of the hearing to give evidence.  The father provided a further written statement, the mother did not.  I asked for a written statement to be prepared by Mr D but that did not occur and I allowed him to give oral evidence on the second day. 

2. The mother indicated that there were two witnesses when the birth certificate was signed.  However, she was unable to contact those persons and they did not give evidence in the proceedings. 

3. At the conclusion of the first day the father asked me whether or not he could also bring witnesses and I indicated he could.  The father indicated that he intended to call Mr D’s ex partner as a witness because he said she and Mr D were both friends of the family and she could recall everything about what had happened, particularly regarding whether or not there was an agreement as to whether or not it was a good idea for the child to have the surname “[Szoc]”. 

4. I made it clear that the proposed witnesses should be available on the second day, so that they could be asked questions. 

5. The father’s statement (Exhibit A) has attached to it an affidavit of Ms M.  I will discuss what that affidavit asserts below.  However, the father failed to arrange for Ms M to come to court.  He indicated that she was available on the telephone.  At two different stages during the second day of the hearing on 19 March 2008 attempts were made to contact Ms M, both on her mobile telephone number and her office telephone number.  Those attempts were unsuccessful and the matter proceeded on the basis that her written evidence could not be tested.

CREDIT

1. Both parties speak reasonably fluent English.  However, both parties during the course of the hearing on both days were assisted by interpreters and both parties, on occasions, referred to them for clarification of something that had been said or to more confidently frame an answer that they were giving.

2. Both the mother and Mr D impressed me as witnesses.  The mother remained calm at all times and responded to the questions put by the father in a candid manner.  Mr D also answered the father’s questions in a moderate and reasonable way. 

3. The father asserted that Mr D’s credit should be impugned because he misinformed the Ukrainian Orthodox Priest by stating that he was Orthodox and was a member of the church.  Mr D was not questioned about that.  I accept Mr D’s statement that he is a “very religious man” and I accept that at the time that he entered into the solemn undertakings to be the child’s godfather that he was genuine about those undertakings.  Mr D gave impressive evidence as to how he viewed his role as godfather at the time he agreed to be the child’s godfather in a Ukrainian religious ceremony. 

4. The father asserts that I should find that Mr D was more than a godfather at the time of the christening and that he and the mother were having a relationship.  I am unable, on the balance of probabilities, to make such a finding.

5. It is clear that Mr D and the father had a falling out over financial issues in June 2007. These issues, coupled with the development of Mr D’s relationship with the mother, has embittered the father against Mr D.

6. In contrast, the father gave evidence and conducted himself during the hearing in a more emotional way.  The father made it clear that it was his view that the mother had betrayed her wedding vows to him.  In my view he was still clearly affected by the separation and his view about the events that took place immediately prior to and immediately after the child’s birth is, in my view, significantly coloured by him viewing those events through the prism of the perceived betrayal by the mother in concert with Mr D.  I formed the view that that has caused him to retrospectively re-interpret things that happened in the past.

7. Consequently where the mother’s version and the father’s version of past events vary, I prefer the mother’s version.

CHRONOLOGY

1. On 1 April 1998 the parties met in the Ukraine and commenced to live together.  The parties married in August 2001.

2. After the marriage the parties moved to Finland.

3. In about August 2005 the parties came to Australia when the wife was about 7 months pregnant with the child. 

4. In October 2005 the child was born.  

5. In January 2006 the child was christened and Mr D was made the child’s godfather. 

6. On 10 April 2007 the parties separated. 

THE MOTHER’S CASE

1. The mother asserts that after the child’s birth, she and the father had discussions which led them to agreeing that the child would have the father’s Christian name and she would have the mother’s surname, Szoc.  She said that this decision was reached after discussions between herself and the father alone and was based on their view that the child would have an easier time in Australia with the surname Szoc than she would have with the surname Scoskinski. 

2. The mother’s oral evidence was that the decision about the surname happened in hospital “when she was born after five minutes she got a name and surname”.  The mother also asserted that papers were signed and agreed to five minutes after the birth.  The mother was not cross examined as to this evidence and given that this evidence was partly given through interpreters I do not take the expression “five minutes” to literally mean five minutes but to  mean very shortly after the birth of the baby. 

3. The father’s evidence about this is slightly confused.  He said;

   “We hadn’t decided in hospital.  We didn’t decide anything in the hospital.  When the child was born she just get some small piece of paper, the name, because – and [the child] the daughter of [Szoc] and that’s it because I was not on the delivery and we had different surnames.”

4. When I asked when the birth certificate was signed, the father told me that it occurred about a week after the birth.   

5. It is not disputed that both parties signed an application for the child’s birth certificate in the name of Szoc in October 2005 (within the first week of the child being born). 

6. The mother said that when she and the father married in the Ukraine in August 2001 she retained her surname because she was well known under Szoc, as a professional sportswoman who had taken part in many championships.  The father challenged the assertion by the mother that she was a professional sportswoman.  Having heard the mother’s further evidence about this, on the second day and having heard concessions made by the father, I am satisfied the mother truthfully told me why it was that she didn’t change her surname at the time of the marriage to that of the father’s.  I find that the mother, whilst in the Ukraine, did play sports with a national league. The mother, at that time, received prize money if she was able to place in competition.  When she moved to Finland she received a professional contract to play sports.  She said that she was normally known as Szoc but conceded that there may have been various newspaper articles that referred to her with a differently spelled name.

7. The mother indicated that she would consent to an order that she would not in the future change her surname if an order was made to allow the child to retain her current surname. 

8. The mother said that she had formed a new relationship with Mr D but she was unable to say at this time what the future of that relationship might be. 

THE FATHER’S CASE

1. The father asserts that shortly after he came to Australia and in the six weeks prior to the child’s birth, he and the mother met Mr D.  The father says in discussions with Mr D he was convinced that Szoc was a better name to use in an Australian context.  It was an easier name than his own surname to pronounce and was shorter.  He indicated that Mr D’s then partner was privy to these conversations. 

2. The father said that once he realised the mother and Mr D were having a relationship (and there is no evidence before me that would convince me that that relationship commenced prior to the separation), he retrospectively concluded that he had been manoeuvred into a situation where the child did not have his surname.  It was clear that the father passionately felt that this was a deliberate collusion between the mother and Mr D, both before and at the time immediately after the child’s birth.

THE EVIDENCE OF MR D

1. Mr D is the current partner of the mother.  He says that he commenced cohabitation with the mother at the end of 2007.  They commenced a sexual relationship in October 2007.  He agreed that a number of months earlier than that he had travelled interstate on holidays with the mother but he claimed that he did so as a plutonic friend of the mother.  The trip to Tasmania was during April/May 2007.  It was not clear to me whether or not that trip was before or after the parties’ separation and whether or not it precipitated the parties’ separation. 

2. Mr D met the mother two days after she arrived in Australia and met the father a few hours after that.  The mother was seven months pregnant at the time and gave birth to the child six weeks later.

3. Prior to the birth Mr D estimated that he had between six and ten contacts with the mother.  He said that he remembers some general conversation about whether or not they picked a name for the baby.  He said that the response that was given by the parents was that there was a superstition against naming a child before it was born and that neither parent in fact knew whether or not the unborn was a boy or a girl prior to the child’s birth.  He didn’t attend the hospital and he didn’t know when the child was due to be born.

4. Mr D agreed that his then girlfriend Ms M was present during some of the conversations prior to the birth.

THE EVIDENCE OF MS M

1. Ms M’s affidavit states that she was present when Mr D explained to the mother and father that it would be best to choose an Anglo Saxon name for the child in order to not alienate the child when the child started school and entered general society and that he expressed the view that Szoc was less obvious.  Mr D denied that he had said those things.  He also denied that he himself had shorted his first name because his name was too difficult to pronounce.

2. That denial was consistent with the name Mr D used in these proceedings and the name the mother referred to him by prior to Ms M swearing her affidavit.

3. I have already indicated that the father was asked on the first day to bring Ms M to Court.  Despite two separate sets of attempts on the second day, Ms M was not able to be contacted.  As I indicated to the father, the weight that I can place on Ms M’s written statement is therefore significantly weakened by her not being able to be tested on the document. 

EVIDENCE OF THE FAMILY CONSULTANT

1. I was assisted on the first day by Ms T, family consultant, who had worked with the parties prior to the first day.  Her efforts had led to significant results in that the parties had agreed on all substantial issues, leaving me to only decide an issue in relation to which child care centre the child would go to and the issue that these reasons for judgment address.  Ms T said that the focus of the inquiry should be the question of whether or not there is any reality to the idea that the father might be being sidelined or if there was some realistic possibility that in the future some other man may become identified as the child’s father. 

CASE LAW

1. In Fooks v McCarthy (1994) FLC 92-450 at page 429, Warnick J said:-

   “There is only one principle that is that the welfare of the child is the paramount consideration.  It stands above the wishes of the parents.”

2. That statement is consistent with subsequent statements in Flanagan v Handcock (2001) FLC 93-074.

3. In determining what is in the child’s best interests I must consider the matters set out in s.60CC of the Family Law Act (“FLA”) and the objects and underlying principles of the Act.

4. Section 60CC(2)(a) FLA provides as its first primary consideration:

   “The benefit to the child of having a meaningful relationship with both of the child’s parents.”

THE RISK TO THE CHILD THAT SHE NOT HAVE A MEANINGFUL RELATIONSHIP WITH HER FATHER IN THE FUTURE

1. The father raised a number of matters where he asserted that there was a risk to the child not having a meaningful relationship with him.

2. Firstly, the father wanted to explore in evidence an allegation that he made that the mother attempted to have him deported immediately after he made an application to the Family Court to change the child’s surname.  The surname issue was not, however, the focus of that application by the father.  The initial application filed by the father on 10 August 2007, whilst it nominated a change of child’s surname as an “ongoing case”, focused on other interim issues centring on the amount of time the child was spending with her father and his allegation that the mother had breached a mediated agreement as to time the child should spend with him.  There was a suggestion that the mother, after the separation, moved away to regional New South Wales and had come back again.  I am unclear as to what the wife attempted to do with the immigration authorities.  The mother has now consented to an extensive shared care arrangement between the child and her father and that is not consistent with the argument that the mother intends to do everything possible to exclude the father from the child’s life.  The relevance of the immigration issue to the current surname issue seemed to be an assertion by the father that there was a risk in the future that the mother may attempt to cut the father out of the child’s life.  I do not accept that is so.  The father’s concerns about the mother moving away should be ameliorated by Order 1 made 12 February 2008 to the effect that both parents have equal shared parental responsibility for the child.  This means the mother can’t move away without the father consenting or further court order.

3. Secondly, the parties have had some history of moving countries and given that history the father inferred there may be some point in changing the child’s surname so that if the mother was ever successful in a relocation application in the future then that link back to her father could be made now before it had any actual psychological emotional affect on her (given her current age).  Yet it seems the child is bonded with both her parents.  Under the current orders the child currently spends six nights a fortnight and will spend seven nights a fortnight with her father.  The mother has re-partnered and the father is very wary of Mr D’s role in the child’s life. 

SOCIETAL NORMS

1. One matter that weighs in the father’s favour is societal norms. 

2. In Henry & Donald (2007) Fam CA 876 at paragraph 55, Ryan J commented on social norms in relation to unmarried people and said:

   “In an ever changing society naming conventions have also been changing.  I do not accept that there is now a social norm of general application which results in male children of unmarried parents being known exclusively by their father’s surname.”

3. Rolands J in Re Skipworth; Maney and Skipworth (1989) FLC 92-018 commented that where the mother was not married it was a more usual social custom for the child to use her name. This was in a case where the parties’ eight year cohabitation had ceased prior to the birth of the child.

1. In relation to married people, there is no published statistical data in Australia.

2. Laurie Scheuble, sociologist, Pennsylvania State University, found that in the United States the trends regarding married women’s names were:-

   52.1.adopt husband’s surname:  95 percent;

   52.2.Use maiden name as a middle name: 25 percent of those that adopt husband’s surname;

   52.3.Retain maiden name: 4 percent;

   52.4.Hyphenated name: 1 percent.[1]

   i)[1] Laurie Scheuble, ‘Trends in Women’s Marital Name Choice: 1966-1996’ 48 Names: A Journal of Onomastics (2000) 105.

3. Elizabeth Emens comments that Scheuble 5 percent figure (the combination of 52.3 and 52.4 above) is probably lower than the rate in the general population and says:

   “Overall, only 10 percent of married women in the U.S. have as their last name their own birthname or any name other than their husband’s birthname.  That number is greater among more educated women, and for those who have married more recently, but the historical trend is apparently not linear.  Note that reliable and consistent data are hard to come by in this area, so the finding should be taken with some caution.”[2]

   ii)[2] Elizabeth F. Emens, ‘Changing Name Changing: Framing Rules and the Future of Marital Names’, The University of Chicago Law Review, Volume 74, Summer 2007, Number 3 at pages 785-786

4. It is almost certainly still the case that most women in Australia still change their surname upon marriage.  The wife’s retention of her surname in this case is not the norm.  Even in circumstances where the mother retained her previous surname after marriage, it would still be an exception if a married couple had their children known by the mother’s surname.  I take that societal norm into account, in the husband’s favour, in considering what is in the child’s best interests. 

CULTURAL NORMS

1. In such matters, particular practices and conventions of a particular group may need to be considered (see Director-General, Dept of Community Services v Adoptive Parents (2006) 34 Fam LR 372).

2. The father asserted that Szoc is usually used as a woman’s first name in the Slavic culture.  The point the father was making, as I understood it, was that it would be inappropriate for the child to have a surname that was a Slavic given name.  Neither of the interpreters present during the hearing supported the father in the assertion that Szoc is a woman’s first name in the Slavic culture.  Even if that was so I would give that fact very little weight. 

3. The father gave evidence that it is a Russian/Ukrainian tradition that children in the Ukraine get their name from parent’s relatives, such as grandmothers or grandfathers.  This was to counter the mother’s argument that they had agreed for the child to have his Christian name and her surname.  He made the point that he is named for his grandfather and he annexed to his document a copy of the mother’s birth certificate which indicated that the mother’s also shared the same first name.  The mother seemed to concede these points and that concession weakened her evidence about why the child has her given name (she originally gave the impression it was just because the child and the father had that same first name). 

4. The father, as an additional point, asserted that he was the last in his family who bears the surname Scoskinski and the child needs the surname so that it can live on.  I find that argument a little difficult to understand because it would mean that if the child partnered when she grew up she would have to ensure that her children’s surname remained Scoskinski which would be contrary to his position in this application.

OTHER MATTERS

1. Matters that are sometimes relevant when considering whether or not a child’s surname should be changed, but which are not relevant in this case, include:-

   59.1.Any embarrassment the child is likely to experience if she is known by a different name.  This is not a factor in this case because of the child’s age.

   59.2.Likewise, the effect of frequent or random changes of name is not a factor.  The child has had the same surname since birth and any change I make would be a one off, permanent change. 

   59.3.The effect that any change in the child’s surname may have on the relationship between the child and the parent whose name the child bore during the relationship.  In this case that parent is her mother.  I am satisfied that if I decide to change the child’s surname to Scoskinski there will be no effect as a result of that change on the child’s relationship with her mother. 

CONCLUSION

1. Neither party suggested that the child should have a hyphenated name. 

2. There are a number of factors pointing in opposite directions.  I have to choose a result which is in the child’s best interests. 

3. The father is clearly passionately concerned about the issue of the child’s surname. I have little doubt that that passion has been intensified by the emotions he is still feeling as a result of the separation, the feelings he has in respect of Mr D arising out of a financial conflict with him and the fact that he is his wife’s new partner.  These feelings have led the father to believe that Mr D has betrayed him as godfather to the child.  It has also led him to retrospectively review the history of conversations that might have taken place prior to the child’s birth.

4. Current societal norms would point in the direction of the child having her father’s surname.

5. Notwithstanding current societal norms between married people, I find that the parents in this marriage agreed for the child to have the mother’s surname.  

6. I find that the parties at the time of the child’s birth did reach an agreement between themselves as to the surname by which the child would be known.

7. I find that any conversation that took place prior to the birth of the child was substantially in the terms given by Mr D; that is, there was nothing that was coercive in terms of the discussions that the parents had at the hospital after the child’s birth. 

8. The father makes the point that the mother may, and I infer on balance, probably will have further children.  It is speculative, and I have no evidence to assist me, as to what surnames the child’s future siblings might have, but I accept, on balance, their names may be different from the child’s. 

9. The mother has agreed to be bound by an order that she not change her surname if her application not to change the child’s surname is successful.

10. On balance the history as I know it of the interaction between the parties since separation does not give me any current concern as to the mother’s present attitude towards ensuring that the child has the benefit of a meaningful relationship with her father.

11. If, I had such a concern, then the balance may have been tipped in favour of changing the settled arrangement in relation to the child’s name.  I find it is in the child’s best interest that she retain the surname Szoc. 

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  13 June 2008