Scott & Kent
[2013] FCCA 127
•26 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SCOTT & KENT | [2013] FCCA 127 |
| Catchwords: FAMILY LAW – Children – name of child – best interests of the child – where mother has returned to former surname – where father has remarried – where mother seeks to add her surname to child’s name – no proposal to remove father’s surname – no proposal for hyphenated surname. FAMILY LAW – Children – children’s schooling – best interests of the child the paramount consideration – compromise an erroneous approach. FAMILY LAW – Children – travel outside Australia – whether parties should be permitted to take child outside Australia for a holiday for a period of 14 days or more – passport – whether child should be issued with an Australian passport. |
| Legislation: Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 65DAA, 65DAC, 65DAE, 65Y, 111B Births, Deaths and Marriages Registration Act 1995 (NSW) s.22 Family Law (Child Abduction Convention) Regulations 1986 Sch.2 |
| Cases cited: Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692 Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510 Flanagan & Handcock [2000] FamCA 150; (2001) 27 Fam LR 615; FLC 93-074 In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713 Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729 Mahony & McKenzie (1993) 16 Fam LR 803; FLC 92-408 MRR v GR [2010] HCA 4; (2010) 263 ALR 368; 42 Fam LR 531; FLC 93-424; 84 ALJR 220 Nash & Reis [2013] FMCAfam 11 Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 Sampson and Hartnett [2007] FamCA 1365; (2007) FLC 93-350; (2008) 38 Fam LR 315 Scott & Kent [2011] FMCAfam 1382 VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099 |
| Applicant: | MS SCOTT |
| Respondent: | MR KENT |
| File Number: | SYC 2313 of 2009 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 3 July 2012 |
| Date of Last Submission: | 7 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Anne Day & Associates |
| Counsel for the Respondent: | The Respondent appeared in person |
ORDERS
All previous parenting Orders are discharged.
The name of the child known as [X] Kent born [in] 2003 is to be [X] SCOTT KENT and the Registrar of Births, Deaths and Marriages in and for the State of New South Wales is directed to register the name [X] Scott Kent in the Births, Deaths and Marriages Register.
The Applicant Mother is to have sole parental responsibility for the child [X] SCOTT KENT in respect of the following major long-term issues in relation to the child:
(a)the child’s current and future education;
(b)the child’s religion and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)any changes to the child’s living arrangements that would make it significantly more difficult for the child to spend time with the father.
The Mother must inform the Father within seven (7) days of any decision which she proposes to make in respect of any of the major long-term issues referred to in Order (3) above and take into consideration any views expressed by the Father in relation to any proposed decision.
Each party is to have sole parental responsibility for making decisions on day-to-day matters not being major long-term issues in respect of the child [X] at all times when he is living with or spending time with that party in accordance with these orders.
The child [X] is to live with the Mother.
The child [X] is to spend time with the Father as follows:
(a)During the school term:
(i)Each Wednesday from after school until the commencement of school on the Thursday morning;
(ii)Until 2 March 2015 each alternate weekend from after school on the Friday until the commencement of school on the Monday morning, provided that if the Monday is a public holiday then the Father’s time with the child is to conclude at the commencement of school on the Tuesday morning;
(iii)From and after 3 March 2015 each alternate weekend from after school on the Friday until the commencement of school on the Tuesday morning;
(iv)For half of each of the Autumn, Winter and Spring school holiday periods in each year being the second half in 2013 and each odd-numbered year thereafter and the first half in 2014 and each even-numbered year thereafter;
(v)From 9:00am on New Year’s Day 1 January to 6:00 pm on 25 January in 2014 and 2015;
(vi)From 9:00 am on New Year’s Day 1 January to 6:00 pm on Australia Day 26 January in 2016 and each year thereafter;
(vii)From 9:00 am on Christmas Eve until 1:00 pm on Christmas Day in 2013 and each odd-numbered year thereafter;
(viii)From 1:00 pm on Christmas Day until 6:00 pm on Boxing Day in 2014 and each even-numbered year thereafter;
(ix)For the weekend that includes Father’s Day in 2013 and 2014 commencing from after school on the Friday until the commencement of school on the following Monday;
(x)For the weekend that includes Father’s Day in 2015 and each year thereafter commencing from after school on the Friday until the commencement of school on the following Tuesday;
(xi)From 9:00 am to 1:00 pm on the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the Father; and
(xii)At such other times if any as the parties shall agree.
For the purposes of Order (7) above the Father’s wife MS K is permitted to collect the child from school at the commencement of the child’s time with the father and deliver the child to school at the conclusion of the child’s time with the Father.
The time that the child [X] spends with the Father is to be suspended:
(a)for the weekend that includes Mother’s Day in each year; and
(b)from 1:00 pm to 5:000 pm on the child’s birthday if that day should fall on a day when the child is otherwise spending time with the Father.
For the purpose of the Father spending time with the child at the times set out in Order (7) above not involving the child being collected from school or returned to school the Father or his wife is to collect the child from the Mother’s residence or such other place as the Mother may nominate at 9:00am on the first day of his school holiday time with the child and the Mother is to collect the child from the Father’s residence at 6:00pm on the last day of the Father’s time with the child.
For the purposes of changeover as provided by Order (7)(above each parent must do all things necessary to ensure that the child is ready promptly to meet the other parent at the time specified.
The child [X] is to have telephone communication with the Father at a time commencing between the hours of 8:00 and 8:15 pm on every night that the child is in the Mother’s care according to these Orders and the Mother must do all things reasonably necessary to facilitate the telephone communication.
The child [X] is to have telephone communication with the Mother at a time commencing between the hours of 8:00 and 8:15pm on every night that the child is in the Father’s care according to these Orders and the Father must do all things reasonably necessary to facilitate the telephone communication.
Neither party is to denigrate or criticise the other party or the other party’s wife or partner in the presence or hearing of the child [X].
Each party is restrained by injunction from discussing these proceedings with the child [X].
In the event that the child [X] requires hospitalisation or treatment by a specialist medical practitioner when in the care of one or other of the parties then that party must inform the other party as soon as is reasonably practicable and provide the other party with the details of the name and address of the hospital or medical practitioner.
Each party is permitted to obtain from the child’s school copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
Each party is permitted to attend at the child’s school for the purposes of attending in social functions, sporting events and parent-teacher interviews.
The Mother is permitted to enrol the child [X] at [C] High School at [L] to commence Year 7 at the beginning of Term 1 in 2015 and the parties are to do all things and sign all documents necessary to secure the child’s enrolment at that school.
In the event that the child [X] is not able to obtain a place at [C] High School to commence Year 7 in 2015 then the partiers are to do all things necessary to enrol the child at [S] College Sydney in to commence Year 7 in 2015.
The mother is permitted to take the child [X] SCOTT KENT born [in] 2003 out of Australia for the purpose of a holiday in Hong Kong for a period of up to fourteen (14) days prior to 3 March 2015 and for a period of up to twenty-one (21) days from and after 3 March 2015 PROVIDED THAT she informs the Father in writing giving details of the child’s travel itinerary including flight numbers and times and an address and telephone number upon which the child may be contacted whilst out of Australia no later than three (3) months prior to the proposed date of travel.
The Father is permitted to take the child [X] SCOTT KENT born [in] 2003 out of Australia for the purpose of a holiday in the Philippines for a period of up to fourteen (14) days prior to 3 March 2015 and for a period of up to twenty-one (21) days from and after 3 March 2015 PROVIDED THAT he informs the Mother in writing giving details of the child’s travel itinerary including flight numbers and times and an address and telephone number upon which the child may be contacted whilst out of Australia no later than three (3) months prior to the proposed date of travel.
The child [X] SCOTT KENT born [in] 2003 is permitted to travel internationally and the Mother is permitted to apply for an Australian Passport for the said child and for this purpose the parties are to do all things and sign all documents necessary to facilitate the obtaining of a passport for the child.
The parties must keep each other informed of their current home address, email address, mobile telephone number and landline telephone number if any and inform each other no later than seven (7) days prior to any change to any address or telephone number.
IT IS NOTED that publication of this judgment under the pseudonym Scott & Kent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2313 of 2009
| MS SCOTT |
Applicant
And
| MR KENT |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders by the Mother of the parties’ son [X], who is now ten years old. [X]’s mother and father are in dispute about a number of issues, including:
a)whether the parties should have equal shared parental responsibility for their son or whether the Mother should have sole parental responsibility for him;
b)the amount of time that [X] should spend with his father;
c)the High School that he should attend;
d)overseas travel with the child; and
e)[X]’s surname.
The parties are also in dispute about property issues, will be dealt with separately.
Background
The parties commenced living together in February 1997 and were married [in] 1999. They separated in 2008 (January, according to the mother, on 19th September, according to the Father) and their divorce became final on 23rd November 2009.
The Mother was born [in] 1977 in Hong Kong. She has lived in Australia since 1988.
The Father was born [in] 1975 in the former USSR, now the Russian Federation. He has lived in Australia since November 1991.
There is one child of the marriage, [X] Kent, who was born [in] 2003. He lives with his mother. He currently attends [F] Primary School at [K].
The Mother has formed a new relationship with Mr F, whom she met in 2008.
The Father has remarried. He married Ms K (known as “Ms K”) on [date omitted] 2010. Their son [Y] was born [in] 2012.
Litigation History
The Father filed an Application for Divorce on 21st September 2009. The Application heard on 22nd October 2009 and a divorce order was made, effective after one month.
The Mother commenced these proceedings by filing an Application for parenting and property orders on 22nd November 2010. On 14th March 2011 the parties were ordered to attend a Child Dispute Conference with a Family Consultant, which they did on 17th March. The Family Consultant reported in the Family Consultant Memorandum to Court that the parties had reached an interim agreement that involved an increase in the time the child spent with his father on alternate weekends.
A Family Report was ordered on 8th June 2011.
On 3rd August 2011 an interim hearing took place on parenting issues.
On 16th December 2011 the Court made interim parenting Orders (Scott & Kent[1]). Those orders provided that:
[1] [2011] FMCAfam 1382
UNTIL FURTHER ORDER:
(1)The Applicant Mother is to have sole parental responsibility for the child of the marriage [X] KENT born [in] 2003.
(2)The child [X] KENT is to live with the Mother.
(3) The child [X] is to spend time with the Father as follows:
(a) During the school term:
(i) Each Wednesday from after school until the commencement of school on the Thursday morning;
(ii) Each alternate weekend, from after school on the Friday until the commencement of school on the Monday morning, provided that if the Monday is a public holiday, then the Father’s time with the child is to conclude at the commencement of school on the Tuesday morning;
(b)For half of each of the Autumn, Winter and Spring school holiday periods in each year, being the first half in 2012 and each even-numbered year thereafter and the second half in 2013 and each odd-numbered year thereafter;
(c)From 9:00 am on 2 January to 5:00 pm on Australia Day 26 January 2012 and each year thereafter;
(d)From 9:00 am on Christmas Eve until 1:00 pm on Christmas Day 2011 and each odd-numbered year thereafter;
(e)From 1:00 pm on Christmas Day until 5:00 pm on Boxing Day in 2012 and each even-numbered year thereafter;
(f)For the weekend that includes Father’s Day in each year commencing from after school on the Friday until the commencement of school on the following Monday;
(g)From 9:00 am to 1:00 pm on the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the Father; and
(h) At such other times if any as the parties shall agree.
(4)The time that the child spends with the Father is to be suspended:
(a)for the weekend that includes Mother’s Day in each year; and
(b)from 1:00 pm to 5:00 pm on the child’s birthday if that day should fall on a day when the child is otherwise spending time with the Father.
(5)For the purpose of the Father spending time with the child during the school holidays as set out in Orders 3b) and 3(c) above, the Father is to collect the child from the Mother’s residence or such other place as the Mother may nominate at 9:00 am on the first day of his school holiday time with the child and the Mother is to collect the child from the Father’s residence at the conclusion of the Father’s time with the child.
(6)For the purpose of the Father spending time with the child as provided by Orders 3(d), 3(e) and 3(g) the Father is to collect the child from the Mother’s residence or such other place as the Mother may nominate at the commencement of his time with the child and the Mother is to collect the child from the Father’s residence at the conclusion of the Father’s time with the child.
(7)For the purposes of changeover as provided by Orders (5) and (6) each parent must do all things necessary to ensure that the child is ready promptly to meet the other parent at the time specified.
(8)The child [X] to have telephone communication with the Father at 8:00 pm on every night that the child is in the Mother’s care according to these Orders and the Mother must do all things reasonably necessary to facilitate the telephone communication.
(9)The child [X] is to have telephone communication with the Mother at 8:00 pm on every night that the child is in the Father’s care according to these Orders and the Father must do all things reasonably necessary to facilitate the telephone communication.
(10)Neither party is to denigrate or criticise the other party or members of the other party’s family in the presence of the child [X].
(11)Each party is restrained by injunction from discussing these proceedings with the child [X].
On 7th June 2012 the Court released the Family Report to the parties.
Orders Sought
On 2nd July 2012 the mother filed a further Amended Application for property and parenting orders. The parenting orders which she now seeks are numbered 5 to 17 (although there are two separate proposed orders with the number 16) and are as follows:
5. The applicant wife have sole parental responsibility for the child [X] Kent born [in] 2003.
6. The child live with the wife.
7. The child spend time with the husband as follows:
7.1 During school terms:
7.1.1 Each Wednesday from after school until Thursday before school.
7.1.2 Each alternate Friday from after school until before school on Monday.
7.2During school holidays for periods to be agreed upon totalling 4 weeks per year unless otherwise agreed one month prior to the commencement of the school holidays.
7.3 On Father’s Day from 10am to 8pm.
7.4On Christmas Eve and Christmas Day as agreed upon at least one month prior to the date and in the absence of agreement from Christmas Eve at 5pm until Christmas Day at 2pm in years ending in an even n umber.
7.5 and as otherwise agreed.
8. the times the child spends with the husband shall be suspended and the child shall remain living with the wife as follows:
8.1 On Mother’s Day from 10am to 8pm.
8.2Unless otherwise agreed on Christmas Eve at 5pm until Christmas Day at 2pm in years ending in an odd number.
9. The child have telephone communication with the husband every night when the child is living with the wife at 8pm and the child shall have telephone communication with the wife every night when the child is living with the husband at 8pm.
10.The wife shall provide the husband with copies of all school reports, newsletters and school photographs forms received relating to any school the child may attend.
11.The wife be permitted to enrol the child at [C] College, [L] to commence Year 7 in 2015 and in the alternative [S] College.
12.The husband be restrained from approaching any school for the purpose of discussing or communicating by any other means the potential enrolment of the child.
13.The child be permitted to be known as [X] Scott Kent and the parties do all acts and things necessary and sign all documents to amend the record at the Registry of Births Deaths and Marriages NSW.
14.The parties inform each other as soon as practicable as to any medical treatment (except for minor ailments) that the child receives whilst in their care.
15.The parties inform each other of their residential address, home and mobile telephone numbers within seven (7) days and advise each other of any change within (7) days.
16 .The wife be permitted to remove the child from the Commonwealth of Australia without the consent of the husband to Hong Kong for a period of three (3) weeks in 2013 and the wife shall provide the husband with details of her travel dates and flight details three (3) months prior to the proposed departure date.
16. (Sic) The wife to forward to the husband a passport application for the child [X] Kent born [in] [2003] and the husband to sign such application and all other documents necessary to enable the wife to obtain the child’s passport within 28 days of receipt.
17.In the event that the husband does not sign a passport application the wife be permitted to make application without the consent of the husband for a passport to issue from the Department of Immigration[2] for the child [X] Kent born [in] 2003.
[2] It should be noted that the Department of Immigration and Citizenship does not issue Australian passports
The Father filed an Amended Response on 27th June 2012 in which he sets out (inter alia) a list of 32 parenting orders which he wishes to have made. They are:
The allocation of parental responsibility
(1)The parents are to have equal shared parental responsibility for the child [X] Kent born [in] 2003.
The persons with whom a child is to live while attending current primary school
(2)The child to live with the Mother while attending current primary school in [K].
(3) The child is to spend time with the Father as follows:
(a) During the school term:
(i) Each Wednesday from after school until the commencement of school on the Thursday morning (and if there is no school on any particular Wednesday or Thursday, then from 3:10pm Wednesday until 8:50am Thursday);
(ii) Each alternate weekend from after school on the Friday until the commencement of school on the Monday morning, provided that if the Monday is a public holiday or a staff development day, then the Father’s time with the child is to conclude at the commencement of school on the Tuesday (and if there is no school on any relevant Friday, then from 3:10 pm Friday);
(iii) Each alternate Thursday from after school until the commencement of school on the Friday, when not with the Father over the weekend (and if there is no school on any relevant Thursday or Friday, then from 3:10pm Thursday until 8:50am Friday);
(b)For half of each of the Autumn, Winter and Spring school holiday periods in each year, being the first half in 2012 and each even-numbered year thereafter and the second half in 2013 and each odd-numbered year thereafter;
(c)From 9:00am on 28 December 2012 to 8:00 pm on 23 January 2013 and same period in each year thereafter;
(d)From 1:00pm on Christmas Day until 5:00pm on Boxing Day in 2012 and each even-numbered year thereafter;
(e)From 9:00am on Christmas Day until 1:00pm on Christmas day in 2013 and each odd-numbered year thereafter;
(f)For the weekend that includes Father’s Day in each year commencing from after school on the Friday until the commencement of school on the following Monday (and if there is no school on a relevant Friday or Monday, then from 3:10pm Friday until 8:50am Monday);
(g)From 9:00am to 3:00pm if not on a school day or from 3:00pm to 6:00pm if a school day on the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the Father;
(h)From 9:00am to 3:00pm if not a school day or from 3:00pm to 6:00pm if a school day on the Father’s birthday if that day should fall on a day when the child would not otherwise be spending time with the Father;
(i)For half of each day that the child does not attend school, if not covered above; and
(j) At such other times if any as the parties shall agree.
(4)The time that the child spends with the Father is to be suspended:
(a)For the weekend that includes Mother’s day in each year commencing from after school on the Friday until the commencement of school on the following Monday;
(b)From 9:00am to 3:00pm if not a school day or from 3:00pm if a school day on the child’s birthday if that day should fall on a day when the child is otherwise spending time with the Father; and
(c)From 9:00am to 3:00pm if not a school day or from 3:00pm to 6:00pm if a school day on the Mother’s birthday if that day should fall on a day when the child is otherwise spending time with the Father.
(5)For the purpose of the Father spending time with the child during the school holiday periods as set out at (3)(b) above, the Father is to collect the child from the Mother’s residence or such other place as the Mother may nominate at 9:00 am on the first day of his school holiday time with the child and the Mother is to collect the child from the Father’s residence or such other place as the Father may nominate at 7:00 pm on the last day of the Father’s time with the child.
(6)For the purpose of the Father spending time with the child as set out above other than at (3)(b), the Father is to collect the child from the Mother’s residence or such other place as the Mother may nominate at the commencement of his time with the child and the Mother is to collect the child from the Father’s residence or such other place as the Father may nominate at the conclusion of the Father’s time with the child.
(7)For the purpose of the Father spending time with the child as set out at (3)(a)(ii) above, each alternate weekend is to be calculated independent of any school holiday period[3].
(8)For the purposes of changeover as provided by (5) and (6) above, each parent must do all things necessary to ensure that the child is ready promptly to meet the other parent at the time specified.
[3] The meaning of this proposed order is not clear
The persons with whom a child is to live while attending high school
(9)The child to live with the Father while attending high school.
(10)The child is to spend time with the Mother while attending high school as follows:
(a) During the school term:
(i) each alternate week from after school on the Monday until the commencement of school on the Monday morning the following week;
The other arrangements for the mother to spend time with the child proposed by the father in his proposed Orders (10)(b) to (15) effectively mirror the arrangements he proposes whilst the child lives with the mother in his proposed Orders (3)(b) to (15) inclusive.
The father also proposes the following parenting orders:
The communication the child is to have with both parents
(16)The child to have telephone communication with the Father at around 8:00pm on every night that the child is in the Mother’s [care] and the Mother must do all things reasonably necessary to facilitate the telephone communication.
(17)The child to have telephone communication with the Mother at around 8:00 pm on every night that the child is in the Father’s care and the Father must do all things reasonably necessary to facilitate the telephone communication.
Other
(18)Neither party is to denigrate or criticise the other party or members of the other’s family in the presence of the child.
(19)Each party is restrained by injunction from discussing these proceedings with the child.
The child’s primary school education
(20)The child is to continue attending his current primary school in [K] until completion of year 6 and neither parent is to remove the child from his enrolment at above primary school without the written consent of the other parent.
The child’s high school education
(21) The child to enrol at [O] School in Year 7.
(22)If enrolling the child at [O] School in Year 7 is not in the child’s best interest, then the child to enrol at [S] College, Sydney, in Year 7.
(23)The child not enrol at [C] High School, [L].
The child’s name
(24)The child to keep his name [X] Kent which was given to him at birth and which he continuously used since then.
Medical matters
(25)Should a medical emergency arise whilst the child is in the care of either of his parents then the parent concerned shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and an address of any treating medical practitioner and hospital attended by the child and the location of the child.
(26)Parents are to coordinate all medical appointments including dental appointments so that [X] has a benefit of regular necessary check-ups. All relevant information should be communicated between the parents so that each parent is aware of the health state of the child.
(27)The parents shall have the right to communicate with and obtain any information concerning the child’s physical and mental health and welfare direct from any medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor or social worker.
(28)The parents are not to take the child for assessment or treatment with any counsellor, psychologist or psychiatrist without the consent in writing of the other parent unless directed by the child’s school or treating specialist doctor or any other recognised authority.
The child’s extracurricular activities
(29)The parents to agree on the child’s possible extracurricular activities and failing such agreement the child to choose up to extracurricular activities in each calendar year, provided the cost of such chosen activities is not excessive and the activities do not adversely impact on the child’s regular homework and school learning.
The child’s parents residential addresses
(30)The parents are to reside within 100 kilometres of each other.
International travel
(31)The child not be allowed to travel internationally during school days unless both parents agree otherwise in writing.
(32)The child be allowed to travel internationally during school holiday periods with the Father or the Mother during the days the child resides with the respective parent without the need to consult the other parent, subject to the following conditions (unless parents agree otherwise):
(a)The travelling parent providing to the other parent a reasonably detailed itinerary of the trip at least 8 weeks prior to the departure;
(b)The travelling parent not taking the child to destinations listed (at the time the itinerary is provided) on the website under the headings “We advise against travel to these destinations” or “Reconsider your need to travel to these destinations” or under similar warning headings;
(c)The travelling parent bearing all necessary expenses of obtaining requisite travel documents including passport and medical immunisations;
(d)The other parent signing, authorising and making available all requisite travel documents including passport and medical immunisations.
Evidence
The Mother[4] relied on her trial affidavit sworn on 28th June 2012. The Father relied on three affidavits, affirmed on 8th June 2011, 22 June and 3rd July 2012. Both parties gave oral evidence.
[4] The parties will be referred to as “the mother” and “the father” throughout this decision. The mother’s Amended Application refers to the parties as “the wife” and “the husband” respectively, but this is inappropriate in my view, as the parties are divorced and the father is now married to someone else.
The Family Consultant who wrote the Family Report, Ms O, was required for cross-examination and gave her evidence first.
For the purposes of preparing her Report, Ms O interviewed the following people:
a)the Mother;
b)the Father;
c)the Father’s present wife, Ms K, known as “Ms K”;
d)the child [X]; and
e)the Mother’s partner, Mr F.
In her Report, the Family Consultant identified the following issues between the parties:
· Poor communication between the parents
· Unresolved financial issues
· Conflict and lack of trust between parties
· Lack of cooperation and lack of flexibility between parties.[5]
[5] Family Report page 5 at paragraph [16]
The Family Consultant’s evaluation is to be found at paragraphs [56] to [65] of the Family Report. In summary, she expressed these views:
a)The Mother has been the primary attachment figure and carer for [X] since his birth, although the Father was actively involved in his parenting;
b)The resolution of issues in dispute between the parties has been impeded by conflict about financial settlement, poor communication and a breakdown of trust, although both parties have maintained a close and meaningful relationship with the child;
c)Both parties have re-partnered and are now in stable and supportive relationships;
d)Tit for tat arguments between them about the child’s passport and what school he should attend “suggest that each parent continues to have problems in separating out their conflict from the best interests of [X]”;[6]
e)Despite the Father’s concerns, there is no evidence of any significant issues with:
i)the Mother’s mental health, drug use or parenting capacity; or
ii)Mr F’s involvement in the child’s life.
f)There is no evidence to support the Mother’s concerns that the child is scared of the Father – he appears to have a close relationship with his father;
g)The parties have issues with trust and have a combative communication style;
h)Importantly:-
It is impossible to predict what parenting arrangements will be in [X]’s best interests in 2015. However, unless there are strong reasons for change, including either [X]’s wishes or views as he gets older, then it seems likely that the current parenting arrangements should continue. [X] currently expressed a clear preference for primarily residing with Ms Scott, and spending a significant time with Mr Kent and a clear reluctance about a week about arrangement.[7]
[6] Family Report page 19 at [57]
[7] Ibid page 20 at [61]
The Family Consultant was of the view that [C] High School offered advantages to the child, not just because it was the child’s expressed preference, but because his closest friend would be attending that school and it also offered advantages in view of travel time:
…it seems more important that the school be closest to [X]’s primary residency, than either parent’s work.[8]
[8] Ibid page 21 at [62]
The Family Consultant was of the opinion that the child could cope with a change to his surname at his young age.
The following recommendations are made in the Family Report:
a)The parties should have equal shared parental responsibility of the child [X];
b)[X] should continue to live with his mother primarily and spend each Wednesday night and alternate weekends from Friday to Monday with his father, changeovers to take place at school;
c)From 2015 [X] should spend an additional weeknight with his father;
d)[X] should continue to spend school holidays in a week-about arrangement, as the interim orders provide;
e)Telephone communication between the child and the other parent at 8:00pm should be facilitated;
f)Both should complete a Parenting After Separation course;
g)Both parents should support the choices of school and surname;
h)[X] should have a current passport and travel overseas with each parent during school holidays; and
i)Both parents should refrain from inappropriate comments about each other or the child’s school in the child’s presence.
In cross-examination by Mr Jackson of counsel, for the Mother, Ms O said that she had initially assumed that equal shared parental responsibility would be appropriate, but there seemed to be very little prospect that the parents would be able to come to an efficient degree of communication. She said that after she read the affidavits she had seen that there was a higher level of conflict, which, if it cannot be resolves, would lead to the conclusion that the mother should have sole parental responsibility.
In cross-examination by the Father, Ms O said that she accepted that the parties had tried not to expose [X] to conflict directly, but indirectly he was aware of the conflict.
The Mother’s evidence was that she had always been the child’s primary carer and the child had spent more and more time with the Father. The Father had been living in [K], the same suburb where the Mother still lives, but after he moved to [M], the child started complaining about being too tired to go to his father’s home on Thursday nights. As a result, the Mother stopped the child from going to his father’s home on alternate Thursday nights.
The Mother deposed that she had had discussions with the Father about the proposed High School for [X] to attend. Her choice is [C] at [L], which she claims the Father suggested as long ago as 2007.[9] Her reasons for the child attending that school are:
a)There is a school bus from [K] with a journey time of about 30 minutes;
b)A number of [X]’s friends will be going to the school;
c)[X] missed out on a place to start in Year 5 in 2013 and was “upset” at missing out; and
d)She now proposes that he should start at [C] in Year 7, when more places will be available.
[9] Affidavit of Ms Scott 28.6.2012 at paragraph [26]
The Mother’s second choice is [S] College, although the disadvantage that she sees is that [X] would have to travel to and from the city by train, about which she is concerned.
It is the Mother’s case that the communication between the Father and herself is poor, consisting only of text messages or emails. She no longer attempts to telephone him as he does not answer her calls, nor does he call back.
The Mother deposed that in September 2010 she wished to take the child Hong Kong for 2 weeks. The Father’s reply was:
“Only if you let me go to the Philippines for 6 weeks over Christmas and New Year”.
Later I sent another email to Mr Kent which said:
“OK I will let you go to the Philippines but only for 2 weeks”.
Mr Kent said:
“No I am not letting you go”.[10]
[10] Affidavit of Ms Scott 28.6.2012 at [39]
The Mother also deposed that the child’s passport expired in 2010. She prepared the application forms and gave them to the Father but he never returned them to her.
The Mother deposed that she wishes to add her surname of Scott to the child’s name because:
a)the Father has told her he does not want her to use the name “Kent”;
b)it causes confusion at the child’s school when she signs her name as “Scott”.
In cross-examination by the Father, the Mother stated that she had no objection to the Father’s current wife, Ms K, collecting [X] from school from time to time.
The Mother reiterated that the Father still will not talk to her on the telephone. She denied that their communication was anything but poor. She said that her preference was for communication by email but he prefers to communicate by text message.
The Mother made the point that [X] should not be used as a messenger between the parties.
When the Father asked her why she believed it was in [X]’s best interests to change the child’s name, the Mother said that it was because she could be clearly identified as the child’s mother. When the school used the name “Kent” the father questioned her about it.
In his affidavit affirmed on 22nd June 2012 the Father referred to the interim Orders made on 16th December 2011 allocating sole parental responsibility to the Mother. He deposed that the situation had changed since the Orders were made:
Since 16 December 2011 there have (sic) been no such parental conflict and the parental communication has been very good. This is because the interim orders removed a lot of uncertainty for both parents; the parents have had nothing or very little to argue about. All communications since 16 December 2011 have been respectful.[11]
[11] Affidavit of Mr Kent 22.6.2012 at paragraph [1]
The Father deposed that:
The current arrangement for [X] to see me every Wednesday and every second weekend is working well, however [X] has told me he would like to see me and his brother more, therefore I thought it would be bin his best interest if he sees me every second Thursday as well, like he used to when I lived at [K] prior to May 2010.[12]
[12] Ibid at [3]
The Father stated in his affidavit that whilst he currently lives in a 2 bedroom villa in [M], by the time [X] finishes Year 6 he and his wife and their child [Y] will be living at [O].
The Father expressed a number of concerns about the Mother’s living situation and stated that if the child lives with both parents on a week about basis, those concerns will be partially addressed.
The Father stated that his concerns are:
a)The fact that the Mother and Mr F live together but are not married;
b)The fact that Mr F only lives with the Mother a couple of days a week;
c)The Mother has enrolled [X] in too many extra curricular activities;
d)The Mother has too many pets living inside the house, including two dogs and a cat “and others”:
e)Mr F drinks too much alcohol;
f)The Mother is often not at home when he calls to speak to the child;
g)
The Mother currently lives in a two bedroom villa, and when
Mr F is there spending time with his two daughters, the sleeping arrangements for [X] are unknown to the father; and
h)Both the Mother and Mr F smoke tobacco.[13]
[13] Affidavit of Mr Kent 22.6.2012 at [7]
The Father deposed that he wanted [X] to attend [O] School because it has a better academic standard than other schools, it is near to where the Father proposes to live and it is a co-educational school. He also proposes that if the Court decides that [X] should not go to [O] School, then [S] College should be chosen because:
a)it has better academic results;
b)it has very good sporting facilities;
c)it is more convenient for travel;
d)[X] has no connection to [L]; and
e)other reasons.[14]
[14] Ibid at [12]
The Father referred to his affidavit of 8th June 2011, one of two he affirmed on that day, where he set out at paragraphs [157] to [173] all the reasons why he did not believe that it was in the child’s best interests to have any change in his surname.
In his affidavit of 3rd July 2012, the Father replies to matters contained in the Mother’s affidavit of 28th June. The tenor of paragraphs [2] and [3] of his affidavit is that the school holiday arrangements and the Mother’s Day and Father’s Day arrangements set out in the Interim Orders of 16th December 2011 are working well and should not be changed.
The Father maintains his position that the parties’ communication is not poor but “very good, effective and respectful.”[15]
[15] Affidavit of Mr Kent 3.7.2012 at [29] and [31]
As to the Mother’s comments about the means of communication, the Father states:
First, there is nothing wrong with communicating by text messaging and emails in this modern day and age when adults especially working adults with family responsibilities such as myself are very busy…We also communicate in person sometimes which usually occurs at [sport omitted] games.[16]
[16] Affidavit of Mr Kent 3.7.2012 at [30]
In cross-examination by Mr Jackson of counsel for the Mother, the Father maintained his position that there would by no benefit to the child in making any change to his surname. He did not believe that the child is confused because his mother has a different surname to him. He said that a change of name would be appropriate if he did not have a meaningful relationship with the child, but that was not the case here.
The Father also maintained his position that it would be to the child’s benefit to spend alternate weeks with him from 2015 on, when he starts High School. That was because the child would be exposed to his household and would then see how his family works.
Submissions
Both parties prepared written submissions.
Counsel for the Mother submitted that the presumption in s.61DA(1) that the 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 had been rebutted by evidence that equal shared parental responsibility would not be in [X]’s best interests (s.61DA(4)).
Mr Jackson submitted that the evidence showed that there was deficient and often rancorous communication between [X]’s parents and high conflict between them on a number of issues. The Father readily conceded under cross-examination on several occasions that the communication level between him and the Mother was poor. Nevertheless, [X] appears to be coping well with the current parenting arrangements
It was submitted that the evidence does not point to a situation where the parties are capable, in a co-operative sense, of exercising equal shared parental responsibility about making decisions about a major long-term issue affecting [X]. Further:
Nor could it be a realistic scenario that by virtue of an equal shared parental order, the parties would be able successfully, to consult each other in relation to the decision, and to use genuine efforts to come to a joint decision as set out in section 65DAC(3) of the Family Law Act.[17]
[17] Applicant’s Parenting Submissions at [25]
As to future spend time arrangements, counsel for the Mother submitted that, whether or not the presumption of equal shared parental responsibility is rebutted, it is still appropriate to examine the factors set out in sub-section 65DAA(5) of the Family Law Act and the principles set in the High Court decision of MRR v GR[18] and the decision of the Full Court of the Family Court in Sampson and Hartnett (No 10)[19].
[18] [2010] HCA 4; (2010) 263 ALR 368; 42 Fam LR 531; FLC 93-424; 84 ALJR 220
[19] [2007] FamCA 1365; (2007) FLC 93-350; (2008) 38 Fam LR 315
The submission is that the distance between the parties’ homes creates inconvenience and causes difficulties and fatigue for [X]. He is regularly required to commute by train in order to see his father. The Mother’s evidence is that he finds those journeys tiring.
It is further submitted that, whilst [X] has a close and strong relationship with his father, which is important to his best interests, simply increasing the amount of time he spends with his father is not going to make an already close relationship any closer:
What it may do is risk a stressful situation not just for [X], but for both of his parents.[20]
[20] Applicant’s Parenting Submissions at [41]
The submission is that the Mother’s proposal reflects by and large what clearly appears to be wholly successful interim residence and spend time orders made by the Court in December 2011.
As to the child’s future High School, Mr Jackson submitted that if the Court were to adopt the Mother’s case that she should have sole parental responsibility for the child, then it would be compellable that her preference for the child to attend [C], [L] must be given considerable weight.
Mr Jackson referred the Court to the decision Re G:Children’s Schooling[21] where he said it was held that in the absence of agreement, an inconsistent outcome will be avoided by ordering that one party have sole responsibility for a tranche of long term decisions or by making a specific issues order that addresses the particular disagreement.
[21] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Further, it was submitted that [O] School only reflects a situation where the Court was to order equal time between the parents, because [O] is located conveniently to the father’s proposed address but is not convenient to the mother.
Counsel for the Mother noted that both parties appeared to accept [S] College as a second option.
On the question of the child’s travel overseas with one or other parent, Mr Jackson submitted that the issue is whether [X] should be permitted to travel overseas with his father for three or four weeks or more. Whilst such an order is not formally sought in the Mother’s Amended Application, Mr Jackson stated that she seeks as an additional order:
That the father be permitted to take the child overseas for no longer than 14 days.
As to the child’s surname, counsel for the Mother referred the Court to the decision of Chapman and Palmer[22] and the factors set out in that decision.
[22] (1978) 4 Fam LR 462; FLC 90-510
Mr Jackson submitted that the Father’s position reflects “a paternalist and sexist position that his surname is preferable to the Mother’s for no other reason that he is the father of the child.”[23] Whilst the Father at paragraph 157 of his affidavit of 8th June 2011 presented effectively a detailed submission as to why [X]’s surname should not be changed, there is no real evidence to support any of the Father’s submissions.
[23] Mother’s Parenting Submissions at [69]
In dealing with the relevant factors under s.60CC of the Family Law Act, Mr Jackson submitted that:
a)The current interim orders have not altered the undisputed fact that [X] is emotionally close to both of his parents;
b)Although [X] is nine and a half years old, he has clear views, which should be given weight, about:
i)living primarily with his mother;
ii)concern about his parents fighting; and
iii)his expressed preference for attending [C] High School at [L];
c)the interim Orders of 16th December 2011, “which are by and large supported by the Mother as becoming final orders, have not in any way impacted upon [X] enjoying anything less than a close and appropriate relationship with both of his parents”;[24]
d)despite multiple conflicts, both parents have shown an ability to encourage a close and continuing relationship between the child and the other parent;
e)the Father’s proposal for equal time would impact unnecessarily on [X]’s secure relationship with his primary caregiver, his mother;
f)there are practical difficulties associated with an equal time arrangement, noting how far the parties live apart; and
g)there is no evidence that the Mother lacks the capacity to provide for [X]’s needs, including his emotional and intellectual needs.
[24] Mother’s Parenting Submissions at [72]
The Father’s submission refers to the matters advanced in his affidavits of:
a)22nd June 2012;
b)3rd July 2012;
c)8th June 2011; and
d)The affidavit of 7th August 2012 incorporating his submissions.
The Father also filed an Amended Response on 7th August 2012, containing slight variations to the Orders which he seeks. He did not seek, nor was he granted, leave to file an Amended Application after the close of the evidence, nor was given leave to file any further affidavit containing fresh evidence.
The Father was taken to task about this practice in the judgment of 16th December 2011, where I said at [23]:
He also affirmed and filed a further affidavit on 5th August 2011. This affidavit was filed without leave of the Court and apparently without notice the Mother’s solicitor. This affidavit will not be considered, as it was filed two days after the hearing, which took place on 3rd August. The Father did not seek to reopen his case and it would be a denial of procedural fairness to the Mother to allow the Father to rely on an affidavit that was not in existence at the time of the hearing. The Mother has had no opportunity to make any submissions to the Court about the contents of the affidavit.[25]
[25] [2011] FMCAfam 1382 at [23]
The Father may have forgotten this statement.
I accept the fact that the Father is self-represented and not legally qualified. He has filed affidavits containing paragraphs that are more in the way of submissions than statements of fact, and it would not do justice to him if he has made his written submissions in the form of an affidavit not to give those submissions proper consideration. However, anything in the nature of fresh evidence will be disregarded.
In respect of the name issue, the Father also relied on the decision of Chapman & Palmer[26]. He also referred to the decision Beach Stemmler[27] at paragraph [168] of his affidavit of 8th June 2011, and to the decision of Flanagan & Handcock[28] during his cross-examination at the final hearing.
[26] supra
[27] (1979) FLC 90-692
[28] [2000] FamCA 150; (2001) 27 Fam LR 615; FLC 93-074
The Law to be applied in Parenting Applications
Section 60CA of the Family Law Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2), (2A) and (3) of s.60CC.
Subsection 60CC(2A) became operative on 7th June 2012, and provides that, in applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b). Paragraph (2)(b) requires the Court to consider:
the need to protect the child from psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It should be made clear at this point that there is no suggestion in this particular case of any risk of harm to the child when in the care of either parent.
Also, when making a parenting order, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.
The presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his parents to have equal shared parental responsibility (s.61DA(4)).
Where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA)(1) to consider whether it would be both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an equal time order, it must then, under s.65DAA(2), consider whether it would be both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
Substantial and significant time is defined by s.65DAA(3) of the Act. In determining whether equal time or substantial and significant time with each parent is reasonably practicable, the Court is required to have regard to the matters contained in s.65DAA(5), which include how far apart the child’s parents live from each other.
All of the matters in ss.60CA, 60CC, 61DA and 65DAA have been considered. Not all of them, of course, are relevant.
Conclusions
In advancing their contentions about the time that [X] is to spend with each parent, where he is to attend High School, and whether or not he is to travel out of Australia with either parent, the parties must satisfy the court that the arrangements they propose are in [X]’s best interests.
The interim Orders of 16th December 2011 were intended to be not just a stop-gap arrangement until the final hearing but a guide to a workable arrangement in the long run. It appears that each party considers that the Orders have assisted in reducing disagreements between them by providing for a degree of certainty. However, neither of the parties’ proposals offers in its entirety a blueprint for a harmonious and workable arrangement in the long term.
The Mother’s proposals at times seem to ignore parts of the evidence, including the evidence of the Family Consultant in the Family Report, whose viewpoint is that of an independent and impartial observer using her specialised knowledge of social science to assist the parties and the Court. It is difficult to see how a proposal by the Mother to reduce the amount of time [X] spends with his father is in his best interests, considering that [X] has a strong emotional bond and a loving relationship with him.
Again, the Mother’s proposals for school holiday time with the Father “to be agreed upon totalling 4 weeks per year unless otherwise agreed” appear to fly in the face of the consideration in s.60CC(3)(l):
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
A considerable part of the Mother’s case has been that the parties cannot communicate and cannot agree about matters relating to their son, but the Mother now seeks to have orders made requiring them to agree about dates and duration of school holidays each year. This appears to me, with respect, to be a recipe for further parenting proceedings on a regular basis until the child reaches the age of 18.
The parties’ evidence is that the Orders of 16th December 2011, which strictly prescribed times and dates, reduced the uncertainty and the opportunities for conflict between the parties. By departing from arrangements that appear to have worked in the intervening period, the parties run the risk of re-igniting old hostilities.
The Father’s proposals also contain some difficult aspects. Whilst the Father adopts almost verbatim some of the existing interim Orders, because he considers that they have worked to [X]’s benefit by reducing conflict between the parties, there are other proposed orders that either:
a)seek to “micro-manage” the way the parties, particularly the mother, raise their son; or
b)appear to be not so much in the child’s best interests but to stake the father’s claim to ownership of his son.
As examples of the Father’s attempts at micro-managing the way this child is to be brought up, the father proposes an Order (26) which says:
Parents are to coordinate all medical appointments including dental appointments so that [X] has the benefit of regular necessary check-ups. All relevant information should be communicated between the parents so that each parent is aware of the health state of the child.
Again, the Father’s proposed Order (29) states:
The parents are to agree on the child’s possible extracurricular activities and failing such an agreement the child to choose up to two extracurricular activities in each calendar year, provided the cost of such chosen activities is not excessive and the activities do not adversely impact on the child’s regular homework and school learning.
First, there has been no evidence that either of these issues poses any concern about the child’s welfare. It has not been suggested that the child has not been to the dentist regularly or that he spends his time in so many sporting or other activities that he is not doing his homework.
Second, the difficulty in enforcing orders of this nature is immediately obvious. The parties run the risk of being bogged down in litigation about whether one or other parent is spending too much money on his [omitted] or other sporting equipment. What business is it of the Father’s if the Mother chooses to spend an excessive amount of her money on the child’s sporting activities?
Orders of this nature have been rightly criticised by Federal Magistrate Brewster, as his Honour then was, in his recent decision of Nash & Reis[29], where his Honour held at [52]:
These orders are really nothing more than the court directing a parent to be a good and responsible parent. There are other orders sought by the respondent (and some which were sought by the applicant) that I decline to make. They would involve the court making orders micromanaging how each party cares for the child…In my view a court should be minimalist in the orders it makes which, in effect, micromanage how parents bring up their children. Further it would be demeaning for the parties and demeaning for a court established under Chapter III of the Constitution to exercise the judicial power of the Commonwealth. In my opinion such orders should very rarely, if ever, be made.[30]
[29] [2013] FMCAfam 11
[30] [2013] FMCAfam 11 at [52]
Brewster FM also referred to the decision of the Full Court of the Family Court in VR & RR[31], where their Honours (Kay, Coleman and Warnick JJ) held at [29]-[30]:
…in our view it is clear from the legislative scheme that the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the court is of the view that that the welfare of the child will be clearly advanced by that order being made.
[30]In our view it is not the role of the court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The court should only interfere in the way a parent proposes to raise a child to the extent that the welfare of the child requires interference.[32]
[31] [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099
[32] [2002] FamCA 320 at [29]&[30]; (2002) 29 Fam LR 39 at 44 [29]&[30]; FLC 93-099 at 88,940 [29]&[30]
I propose to follow the above decisions.
The Father seeks an order (3)(i) that would provide that the child, whilst still attending Primary School, is to spend time with him:
For half of each day that the child does not attend school, if not covered above.
This proposed order cannot have been properly thought out; it is clearly not child-focused. In effect, it proposes that if [X] has a day off school for some reason he has to spend half the time with his mother and the other half with his father. The evidence is that the Mother’s residence and the Father’s residence are approximately 25.2 kilometres apart. The proposed arrangement would involve the child in a round trip of over 50 kilometres for the day, to little if any obvious benefit.
I decline to make the order, as it is not in the child’s best interests.
The Father also seeks an order (30) that:
The parties are to reside within 100 kilometres of each other.
First, there is no evidence that either party proposes to move more than 100 kilometres away from the other. Second, the Court does not have the jurisdiction to make such an order. It is only if one party proposes to relocate the residence of the child away from the other party that the Court would have the jurisdiction to make an order.
I decline to make the order sought.
It is [X]’s best interests which are the paramount consideration, not the particular wishes of one or other parent. There are no winners or losers in this matter, nor should there be. If there is to be a winner, it has to be [X], who has the right to know and be cared for by both of his parents and the right to spend time on a regular basis with, and communicate on a regular basis with, both of his parents and other people significant to his care, welfare and development. Those are two of the principles underlying the objects of Part VII of the Family Law Act, as set out in subsection 60B(2) of the Act.
The parties might like to consider that another one of the principles underlying the objects is set out in s.60B(2)(d):
(d)parents should agree about the future parenting of their children.
I have considered the evidence of the parties, having observed them both in the witness box. I have also read their affidavits.
I have also considered the Family Report, which I have found very useful. I have listened with great interest to the evidence of the Family Consultant, Ms O, when she was being cross-examined by Mr Jackson of counsel and by the Father. In my view the Family Report is a very pragmatic and useful document and one which should be given considerable weight. This view is strengthened by the Family Consultant’s oral evidence.
However, this is not to say that the Family Report will necessarily be accepted in its entirety, let alone is there any suggestion that it is the Family Consultant who decides the case. The case is decided by the judge, based on the entirety of the evidence. As the Full Court of the Family Court (Evatt CJ, Asche SJ, and Hogan J) held in a well-known authority, In the Marriage of Hall[33] at 615; 78,819:
(a)There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor[34] is usurping the role of the court or that the judge is abdicating his responsibilities…
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
[33] (1979) 5 Fam LR 609; FLC 90-713
[34] Counsellors are nor called “Family Consultants”
In my view, the evidence shows that it is to this child’s benefit to have a meaningful relationship with both of his parents.
There is no unacceptable risk that requires orders to be made to protect [X] from physical or psychological harm in the care of either of his parents.
[X] has expressed a clear wish to live primarily with his mother, who has been his primary caregiver all his life. However, he enjoys spending time with his father, his step-mother and his half-brother. [X] is a little boy who is now ten years old, as he was born [in] 2003. His views will not decide the matter, but he is of sufficient maturity that they should be given some weight.
[X] is “comfortable and securely attached” to his mother, according to the Family Consultant, who observed that there was “a clear and strong bond between them”.[35] He appeared to be “equally comfortable and happy” with his father and Ms K.[36] He is obviously fond of his half-brother, [Y],
[35] Family Report page 17 at [53]
[36] Ibid page 18 at [54]
[X] was observed to be “similarly happy and carefree” with the Mother’s partner, Mr F, who was “attentive and engaged” with him.[37]
[37] Ibid page 18 at [55]
The parties clearly want to participate in making decisions about major long-term issues in relation to [X]; regrettably, they cannot agree as to what those decisions should be. They obviously want to spend time with [X] and communicate with him, which is why the Mother’s proposal to limit the amount of school holiday time [X] spends with his father is an issue between them. According to the Father, the current interim orders provide for him to spend up to seven weeks with the child, whilst the mother is only offering four weeks.
The Mother has complained about the Father’s previous failure to pay child support, although he claims that she delayed in making an application.
Changes in [X]’s current circumstances, such as a drastic reduction in the amount of time he spends with his father or the commencement of a week-about equal time arrangement between his parents would not be to [X]’s liking of benefit. This week-about arrangement appears to be more in line with the Father’s wishes than something that [X] wants. The Father’s view is that spending every alternate week with him will give [X] greater exposure to his family, which he regards as superior to the Mother’s current family arrangements.
There is some practical difficulty in [X] spending time with each parent, because the Mother lives at [K] and the Father currently lives at [M], but will eventually live at [O]. They are not neighbouring suburbs. [X] will have to travel in whichever of those two suburbs his father lives.
Despite what each parent appears to think, each one of them is capable of providing for [X]’s physical, emotional and intellectual needs. The Father is very critical of the fact that the Mother and Mr F live together out of wedlock, claiming that it sets a bad example. The Father may be surprised to know that in this Court the Judges, Family Consultants and lawyers see many hundreds of couples who are not married to each other but are doing their best to provide the children in their care with a stable and loving home.
Mr F has children from a previous relationship who spend time with him. [X] appears to have a positive relationship with him.
Similarly, the Mother needs to accept that the Father has remarried, as he had every right to do once the Mother and Father were divorced. The Family Consultant described Ms K as:
…a polite woman with a calm and happy disposition. She appeared capable of insight and reflective thinking and was well able to consider [X]’s position in this current situation.
41.Ms K provided a history of a stable upbringing in the Philippines and did not report any issues with mental health, drugs or alcohol. She described a positive relationship between her and Mr Kent and claimed she has additional support from many relatives in Australia.[38]
[38] Family Report page 14 paragraphs [40]-[41]
Ms K was not on affidavit and did not give evidence, but the Family Consultant’s observations of her give the Court no concerns at all about the home life that [X] has when he is with his father.
I have already mentioned that [X] is a boy aged ten who appears to be of normal maturity for his age. His background is such that he has a mother who comes from Hong Kong and still has family there, and a father who comes from the Russian Federation, and still has a connection with his country of birth. Moreover, [X] has a stepmother who comes from the Philippines and still has family members in her country of origin.
It would surely be to [X]’s benefit for him to have the opportunity to visit those places of which no doubt he has heard but never seen. Regrettably, [X] has not been to any of those countries and does not have a current passport, because his parents are unable to agree.
The parents’ attitude to [X] and to the responsibilities of parenthood appears to have been clouded by their history of disagreement and litigation over parenting and property issues. Ms O has described the parents engaging in “tit for tat arguments” over [X]’s passport and school issues, which she believes suggests that the parents have had difficulty in separating their conflict from [X]’s best interests.
There are no issues of violence of family violence orders.
This quite clearly a case where it would be preferable, indeed imperative, to make orders that would be least likely to lead to the institution of further proceedings in relation to the child. As was mentioned at [85] and [86] above, the Mother’s proposed orders that would require the parents to agree about the dates and duration of school; holiday time with the father is a recipe for further parenting proceedings, be they contravention applications or applications to vary the current orders.
Experience has shown that the arrangements between these parties have worked best when clearly spelled out by court orders.
Parental Responsibility
The Interim Orders made on 16th December 2011 provided that the mother was to have sole parental responsibility for the child until further order. This was an interim Order, and s.61DB provides that when the Court is making a final order, it must disregard the allocation of parental responsibility made in the interim order.
The Mother seeks a final order that she should have sole parental responsibility for [X]. The Father seeks an order for equal shared parental responsibility. The Family Consultant in her Family Report originally recommended equal shared parental responsibility but, under cross-examination, withdrew from that position, because of the high level of conflict between the parties.
The Mother claims that the parties cannot communicate except by text message or email. The Father cannot see anything wrong with communication in that way, and points out that they occasionally speak at the child’s rugby matches. In my view, communication in the manner described here falls far short of what should be expected of parties who have equal shared parental responsibility for a child, which is defined by s.61B as meaning:
…all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.
Parental responsibility must include the power to decide on major long-term issues affecting the child. The term major long-term issues is defined in s.4 of the Act:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name: and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
It can readily be seen that the parties here are engaged in litigation about such major long-term issues as the child’s education and his name, and, in 2015, a change in his living arrangements which would affect [X]’s ability to spend time with his mother.
Section 65DAC provides that where two or more persons are to share parental responsibility for a child under a parenting order and the exercise of parental responsibility involves making a decision about a major long-term issue in relation to the child, the decision is to be made jointly. The history of these parties, and the very fact that they are involved in litigation about major long-term issues in relation to their son, make it clear that they are unable to agree about joint decisions on those issues.
This is not a case where it is in the child’s best interests for his parents to have equal shared parental responsibility for him. Accordingly, an order will be made that the Mother is to have sole parental responsibility for [X] but must inform the Father about matters relating to his education, health, religious and cultural upbringing and any further issues about the child’s name.
This is not to say that the Father will not be able to exercise parental responsibility about day-to-day matters affecting [X] when he is spending time with his father. Subsection 65DAE provides that:
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b)shares parental responsibility for the child with another person;
about decisions that are made in relation to the child on issues that are not major long-term issues.
The note to s.65DAE helpfully states:
This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
The Child’s Living Arrangements
Turning now to Orders about [X]’s living arrangements, it is clear that the Mother has been the child’s primary caregiver and this situation should remain. The Family Consultant does not recommend that the child should go to an equal time arrangement between each parent in 2015 and [X] says that he does not want to do that. He wants to stay living with his mother and spend time with his father.
In my view, the equal time arrangement proposed by the Father appears more to satisfy the Father’s own needs to play a role in his son’s life than a move to provide a greater benefit for [X]. Equal time arrangements usually require parents to be able to communicate well and abstain from conflict, which is not the case here.
I do not see why the child’s school holiday time with his father should be reduced to a maximum of four weeks each year. It may well be, as Ms O agreed in cross-examination, that four weeks is too long for [X] to be away from his mother at his age, but the child was 9 years and four months old at the time. He is now ten years old. It can hardly be the case that he would not be able to spend four weeks away from his mother in the care of his father when he is 15 or 16 years old. In any event, there is no proposal by the Father for [X] to spend a block of four weeks with him at any time, although the proposed period of 28th December to 23rd January falls short of four weeks by only two days.
The orders for school holiday time will remain in the same format as those in the Interim Orders, which involved one week at a prescribed time during the mid-year school holidays and a longer period of time in January. Three weeks does not appear to be problematic in my view. A prescribed starting time and finishing time seems to be indicated, rather than the Mother’s proposal requiring two people with poor communicate to negotiate these arrangements each time.
The Mother seeks to reduce the time the child spends with the Father on days such as Father’s Day. With respect, I do not see why that would be in [X]’s best interest. There have been both a Mother’s Day and a Father’s Day since the Interim Orders were made in December 2011 and neither party has led any evidence to show that [X] spending the weekend that includes Mother’s Day or Father’s Day with his mother and father respectively was in any way problematic.
I am not satisfied that it is in [X]’s best interests to change the arrangements for him so that he starts spending equal time with each parent when he commences High School in 2015. It is not a proposal supported by the Family Consultant, as set out at paragraph [61] of the Family Report (see at [23(h)] above).
In my view it is also well known that the transition from Primary School to High School is a major step in a child’s life, and a major change to the child’s living arrangements would be likely to cause him additional stress. At this stage [X]’s views are clear. He does not want a week-about arrangement.
However, the Family Consultant has suggested that [X], as he “approaches adolescence… may express a desire to spend more time with Mr Kent, as the same sex parent”[39]. Ms O expressed the hope that this could be negotiated with some flexibility between the parents, but this appears to be, with respect, a forlorn hope, noting the history of conflict and between the parties and their poor communication.
[39] Family Report page 20 at [61]
There is, however, a recommendation that from 2015 [X] should spend an additional weeknight with his father, which is a recommendation that could well be in the child’s best interests. It would be better if that additional time were to be fixed by the Court, rather than left to the parties to negotiate. Adding another night in the middle of the week, however, would appear to be too disruptive to the child, in my view.
[X] is due to start High School in 2015. He will attain the age of 12 years on 3rd March 2015. By then he should be old enough to spend some extra time in his father’s household and he will have started High School at the end of January that year.
[X] will continue to spend alternate weekends with his father, from after school on Friday until the commencement of school on the Monday morning (or on Tuesday morning if the Monday is a public holiday) until he attains the age of 12. He will then spend the Monday night in the care of his father and return to school on the Tuesday morning, irrespective of whether the Monday is a public holiday or not.
The child should be able to spend a little more school holiday time with his father once he is twelve years old. The father nominates 8:00 pm as a time for returning the child after school holiday time, which appears to be too late in my view. I am satisfied that changeover time should be extended to 6:00pm, however, and I will order accordingly.
Neither party has raised any issue about the way the mid-year school holidays have operated, except that the Mother wishes to change the arrangement. They should stay as they are.
The Child’s High School
The parties have competing proposals for the High School that [X] is to attend in 2015.
The Mother’s first choice is [C] High School at [L]. Her second choice is [S] College in Sydney. She wants [X] to be educated in the Catholic Education system. He presently attends a Catholic Primary School.
The Father’s first choice is [O] School, which will be near to where he and his wife will be living in 2015. His second choice is [S] College, which is near to his present place of employment.
It would be an easy decision for the Court to choose [S] College, as it is each party’s second preference. However, it would be an erroneous decision to settle on each party’s second preference. Arriving at a compromise position does not accord with the principles set out by the Full Court of the Family Court in Re G: Children’s Schooling[40].
[40] supra
There is no legal presumption in favour of the choice of the parent with whom the child primarily resides, but the reality of a child residing predominantly with one parent may be relevant. Again, the objects and principles in s.60B of the Family Law Act are to be taken into account.
Rather than a compromise decision that meets the parties’ second choices, I am persuaded that the best interests of the child should be the paramount consideration when deciding which school he should attend. This involves a consideration of the relevant matters in s.60CC(3) of the Act, including the views of the child himself.
It is relevant that [X] lives predominantly with his mother, and will continue to do so under the final orders made. It is relevant that the child wishes to attend [C] High School as he will have at least one friend attending there. It is relevant that the Mother wishes [X] to continue in the Catholic Education system. The Father, in opposing the choice of [C] High School, does not take exception to schooling in the Catholic system, as he himself nominates [S] College as his second choice. His view is that [S] has a better academic record.
The Father’s first choice is [O] School, which is not a Catholic school. It is a State High School, near where the Father proposes to live in [O]. That appears to be the main reason for its choice. The child has at present no connection with [O] at all. As it is well known that State High Schools largely draw their pupils from the local area, it is highly likely that [X] would not know anyone at the school. The Father criticises the Mother’s choice of [C] High School because, he says, [X] does not have any connection with [L], but the same criticism applies equally to [O] School.
The Father’s choice of [O] School does not appear to be a child-focused choice at all, but merely to meet the wishes of the Father. It is an inappropriate choice.
[S] College and [C] High School are both Catholic schools. The Family Consultant leans towards [C] in the body of the Family Report, although her recommendations leave the ultimate choice to the Court. However, Ms O says at paragraph [62] of the Family Report:
It is in [X]’s best interest for him to have less travel time to school and to sporting activities, and [C] offers this from Ms Scott’s home at [K], which is his primary residence.
The Family Consultant’s views are worthy of considerable weight.
The facts are that this child will continue to live predominantly with his mother, even after his twelfth birthday, he wants to go to [C] and he has friends who are already there or will be going there.
The child [X] should go to [C] High School at [L] and the parents should do whatever is necessary to have him enrolled there. If, for some reason, the child is not successful in gaining a place at [C] High, then the parents should agree to send him to [S] College.
Overseas Travel and an Australian Passport
If ever the parties could be accused of engaging in “tit for tat” arguments[41], it is in the area of the child’s passport and the question of overseas travel with one or other of his parents. The parties’ inflexibility and inability to separate their conflict from [X]’s best interests[42] has meant that the child has missed out on the opportunity to have holidays outside Australia with either one of his parents. He does not have a current passport.
[41] Family Report page 19 at [57]
[42] Ibid
The Mother would like to take the child to Hong Kong, where she still has family, including her grandfather, who is an old man. The Father wishes to travel to the Philippines, which is his current wife’s country of origin. The parties have not been able to agree on either proposal, and, as a result, the child has not been to either place.
The Family Consultant expressed the view in the Family Report that:
Despite each party being unwilling for the other parent to travel internationally with [X], there appears to be no reason why this should not occur. Travel should occur during school holidays and not disrupt the parenting schedule…[43]
[43] Family Report page 21 at [63]
With respect, I agree. When making an order permitting a parent to take a child out of Australia, the Court must always consider “the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return[44]. In assessing the degree of risk, obvious considerations are:
a)the existence of continuing ties between the departing parent and Australia;
b)the existence and strength of possible motives not to return; and
c)the existence and strength of possible motives to remain in the nominated country.
[44] Line & Line (1996) 21 Fam LR 259 at 264 [4.49]; (1997) FLC 92-729 at 83,847 [4.49]
It is also relevant to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on the 25th October 1980, known as the “Hague Convention” (see in this regard s.111B of the Act).
The Mother has strong ties with Australia, having emigrated to Australia from Hong Kong with her family in 1998, when she was approximately eleven years old. She has formed a relationship with
Mr F, who is an Australian Resident. The likelihood that the Mother would have a motive to remain in Hong Kong and not return to Australia with the child appears to be very low indeed.
In addition, Schedule 2 of the Family Law (Child Abduction Convention) 1986 shows that the Special Administrative Region of Hong Kong in China is a signatory to the Hague Convention.
The Philippines is not a Convention country. However, I am also of the view that the likelihood that the Father choosing to remain out of Australia and not return [X] is again very low.
The Father has well established ties with Australia. He emigrated to Australia with his family at the age of 16 years. He has permanent employment and is married to a lady of Filipina background but resident of Australia. They have one child of their own. The degree of risk that they would remain away from Australia and not return is very low, and the only factor that would affect the question of a holiday for the child in the Philippines, or anywhere outside Australia, would be the proposed length of stay out of Australia. The Mother is of the view that a fortnight would be sufficient.
In my view, each parent should be permitted to take [X] out of Australia for a holiday in Hong Kong or the Philippines, and it would be to the child’s benefit to have a holiday out of Australia. The distance to either destination is not so great that the travelling time would be unduly onerous to a ten year old.
I am inclined to the view that a period of fourteen days away from the other parent is sufficient at this stage of the child’s life, but he should be able to cope with three weeks away from Australia by the time he is of High School age.
I agree with the Family Consultant that the travel should take place during the school holidays.
Subsection 65Y(2) of the Act permits the parties to consent in writing to the child being taken out of Australia and permits the Court to make an order permitting a party to take a child subject to a parenting order to a place outside Australia.
In my view, it is necessary to make an order that will specifically provide for the child to be taken out of Australia to his parents’ proposed destinations.
It is obvious that this child should have a passport. It is regrettable that a petty dispute between his parents has prevented this from happening.
Subsection 11(1) of the Australian Passports Act 2005 provides that:
(1)The Minister must not an issue an Australian passport to a child unless:
(a)each person who has parental responsibility for the child consents to the child travelling internationally; or
(b)an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.
I propose to make such an order.
The Child’s Name
The Mother seeks an order that:
The child be permitted to be known as [X] Scott Kent and the parties do all acts and things necessary and sign all documents to amend the record at the Registry of Births Deaths and Marriages NSW.
The Father opposes this order.
The Mother’s case is that she is inconvenienced and embarrassed by being called “Mrs Kent” at the child’s school.
The Mother deposed in her affidavit that after she had received letters from the school addressed to Mr and Mrs Kent and has passed them on to the Father, he has emailed her and asked her not to use his surname, although he denies this[45]. She also claims that the parties had agreed in about May 2010 that the child’s name would be changed to [X] Scott Kent but the Father later emailed her saying:
“I have changed my mind”.[46]
[45] Affidavit of Mr Kent 3.7.2012 at [43]
[46] Affidavit of Ms Scott 28.6.2012 at [52]
The Mother further deposed:
There have been several instances at school where I have been called Kent which Mr Kent objects to. There have also been instances when I sign my name Ms Scott, the school does not understand that I am the mother of [X] Kent. I ask that my name be included in [X]’s name so as to avoid any confusion.[47]
[47] Affidavit of Ms Scott 28.6.2012 at [53]
The Father opposes this proposal because he claims that:
(e)The real reason why Ms Scott seeks a name change is because she doesn’t want [X] to have the same surname as my wife because she is afraid that people will think that Ms K is [X]’s mother which Ms Scott believes would be embarrassing for [X]. Ms Scott told me so on the phone on Sunday 25 October 2009 and also via email in November 2009.[48]
[48] Affidavit of Mr Kent 3.7.2012 at [43(e)]
The Father sets out in his affidavit why he believes that the proposed change of name is not in [X]’s best interests:
(a)It is likely to lead to embarrassment and lower self-esteem because:
(i)He is a boy but the proposed surname would sound like a married girl’s surname – with hyphenation;
(ii)The hyphenated surname would sound like its owner is someone from a broken family and his father is not around;
(iii)It’s embarrassing for a boy of his age to explain his surname change to others;
(iv)It’s embarrassing to have a weird and long name; it would inevitably questions and jokes;
(v)[X] is known as ‘[X] K’ in class amongst his peers; abruptly changing that would be embarrassing.
(b) Zero benefits for [X] in the short or long term;
(c)Lifetime of inconvenience in the long term in filling forms, obtaining emails, etc (most official forms are not designed for hyphenated surnames);
(d)Ms Scott used ‘Ms Scott’ on various forms before and after [X]’s birth and there was never any confusion about [X] being her son when her surname is different to his;
(f)[X] should have the same surname as his brother because they have the same father.[49]
[49] Affidavit of Mr Kent 3.7.2012 at [44]
The Family Consultant expressed the view in the Family Report that:
[X] could cope with a change to his surname at this young age, if both parents support the outcome.[50]
[50] Family Report page 21 at [64]
The Courts have considered the often emotive aspect of changing a child’s name in a number of decisions.
In Chapman & Palmer[51]the Full court of the Family Court held that:
[51] (1978) 4 Fam LR 462; FLC 90-510
To summarize, the factors to which the courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a)The welfare of the child is 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 the marriage.
(f) The effect of frequent or random changes of name.[52]
[52] (1978) 4 Fam LR 462 at 471; FLC 90-510 at 77,675-77,676 per Evatt CJ, Asche and Marshall S.JJ
In Beach & Stemmler[53], a decision of the Family Court of Western Australia, Connor J added the following considerations:
· The advantages both in the short term and in the lo9ng term which will accrue to the children if their name remains as it is now.
· The contact that the husband has had and is likely to have in the future with the children.
· The degree of identification that the children now have with their father.
· The degree of identification which the children have now with their mother and their stepfather.
· The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored.
· The desire of the father that the original name be restored.[54]
[53] (1979) 5 Fam LR Note 13; FLC 90-692
[54] (1979) FLC 90-692
In Mahony & McKenzie[55] Warnick J granted an application that a hyphenated surname be used for the child, the mother having returned to the use of her maiden name. His Honour held that:
a)In determining the issue of what is the appropriate surname for the child, the key element is the welfare of the child, including its comfort in the use of a surname in its social circumstances;
b)The registration of the child under the surname of the father at the time of birth is of no real significance in relation to the appropriate “everyday” surname for the comfort and welfare of the child; and
c)The use of a hyphenated surname was appropriate.
[55] (1993) 16 Fam LR 803; FLC 92-408
In Flanagan & Handcock[56] the Full Court of the Family Court held that the trial judge was not in error in relying on the principle that the welfare of the child is the paramount consideration.
[56] [2000] FamCA 150; (2001) 27 Fam LR 615; FLC 93-074
In my view, the application in respect of the child’s surname needs to be considered in the context of its own particular facts. The parties are divorced and the Mother has returned to the use of her former surname. The Father has remarried, and his current wife now uses the surname “Kent”. The child lives primarily with his mother but spends time with his father on a regular basis. The Mother gave evidence, in answer to a question put to her by the Father in cross-examination, that she would have no objection to the Father’s current wife, Ms K, collecting the child from school.
The Mother’s proposal is to add her name of Scott to the child’s name to avoid confusion. She is not proposing to remove the surname of Kent. In short, she is neither proposing to change the child’s surname from Kent to Scott or to give the child the hyphenated surname of Scott-Kent.
Seen in this context, the Father’s objections appear to be:
a)misconceived; or
b)unreasonable.
The Father’s objection that the proposed surname “would sound like a married girl’s surname – with hyphenation” is not only misconceived but sexist. As for the submissions that the child would be embarrassed to have “a weird and long name” or that he would face “a lifetime of inconvenience in filling forms” because “most official forms are not designed for hyphenated surnames”, they both have an air of desperation about them and are quite unconvincing.
It is a matter of general knowledge in the Australian community that many people have hyphenated surnames; there is no evidence that official forms do not take that situation into account.
The Father’s submissions fail to address the Mother’s proposal as it is. She is neither seeking to remove the Father’s surname or to create a hyphenated surname; she is merely seeking to add her surname to that of her child in order to avoid confusion and provide some link to the fact that she is his parent.
The Mother’s desire to avoid confusion for the child at school so that people are not confused between the first Ms K and the second Ms K is reasonable in all the circumstances.
Why should the child not have a surname that helps to identify who his mother is? Why would that not be to his benefit? Why is it not in this child’s best interests? I am satisfied that it is in the child’s best interests.
Had the Mother been proposing to substitute the name Scott for the current name of Kent, the Father’s opposition would have been much more strongly based. That is not the case, however. There is no proposal to delete the name Kent.
I am satisfied that the Mother’s proposal is both reasonable and in the best interests of the child. It is unlikely that the Father will support the change, based on his submissions, but if he persists in using only the name Kent for his son it would be regrettable.
The Court has power under the Births, Deaths and Marriages Act Registration 1995 (NSW) to make an order resolving a dispute about a child’s name. Subsection (22)(3) of the Act provides:
(3)If any court (including a court of another State or the Commonwealth) resolves a dispute about a child’s name, the court may order the Registrar to register the child’s name in a form specified in the order.
Accordingly, I propose to order that the Registrar of Births, Deaths and Marriages of the State of New Wales should register the name of the child now known as [X] Kent born [in] 2003 as [X] SCOTT KENT.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 24 April 2013
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