SOLER & BERENDT

[2013] FamCA 853

FAMILY COURT OF AUSTRALIA

SOLER & BERENDT [2013] FamCA 853

FAMILY LAW – CHILDREN – Parental responsibility – change of the child’s surname – mother seeks hyphenated surname reflecting the father’s surname and her new married surname – father seeks order that the mother’s application be dismissed and that the child’s surname as previously ordered in contested proceedings be retained – consideration of principles to be applied – mother’s application dismissed.

Family Law Act 1975 (Cth)ss. 4(1), 60CC, 64B(2), 64B(3), 68B

Flanagan & Handcock [2000] FamCA 150
Chapman & Palmer (1978) FLC 92-510

APPLICANT: Ms Soler

RESPONDENT: Mr Berendt

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown

FILE NUMBER: PAC 5326 of 2011

DATE DELIVERED: 30 October 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 21, 22, 23 October 2013

REPRESENTATION

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown

Orders

1. That the mother’s application for a change of surname for the child B Berendt be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soler & Berendt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5326  of 2011

Ms Soler

Applicant

And

Mr Berendt

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These are parenting proceedings in relation to the child B Berendt born in 2004.

2. There has been a history of litigation between the parties in relation to the child with the first application having been filed in May 2007.

3. On 19 June 2009 Collier J made orders in this Court on a final basis as to parenting. In summary those orders provided as follows:

   a)That the mother and father have equal shared parental responsibility for issues concerning the child’s education, health and religious upbringing;

   b)That the mother have sole parental responsibility for other issues concerning the child’s long-term, care welfare and development;

   c)That the child live with the mother, that the child spend time with the father on the fifth weekend of each school term from Friday afternoon until Sunday afternoon, all of the term one and term three school holidays, the first half of the term two school holidays and for three weeks in the December/January school holidays;

   d)The Court otherwise made orders facilitating the father’s time with the child telephone contact and exchange of information between the parties in relation to the child;

   e)That the mother and father within 30 days do all things necessary to amend the birth certificate of the child to record the father on the birth certificate as being the father of the child and changing the child’s surname to “Berendt”.

4. Subsequently on 23 October 2009 supervision of the orders by the family consultant was discharged and the father’s time with the child was suspended.

5. Thereafter on 31 March 2010 the Court made orders reinstating the father’s time with the child.

6. The present application before the Court was filed by the mother on 14 November 2011 and at that time the mother in summary sought orders as follows:

   a)That the child continue to live with her;

   b)That the mother and father have equal shared parental responsibility in relation to issues relating to the child is health, education and religious upbringing; and

   c)That the mother otherwise have sole parental responsibility for the child’s long-term care welfare and development.

7. The present proceedings before the Court were listed for hearing on 21 October 2013 allocating three days for trial. Following the completion of the parties evidence and before the commencement of evidence by the family consultant proceedings were substantially resolved by the parties with the assistance of the independent children’s lawyer and by consent on 23 October 2013 the Court made final orders that relevantly in summary provided for:

   a)That all previous parenting orders be discharged;

   b)The continuation of the appointment of the independent children’s lawyer for a period of six months to monitor implementation and compliance with orders;

   c)That the mother and father have equal shared parental responsibility for the child for all issues concerning the child’s long-term care, welfare and development;

   d)That the child live with the mother;

   e)That the child spend time with the father during the fifth weekend of each school term from Friday afternoon until Sunday afternoon, for the whole of the school holidays at the conclusion of terms one and three, for the first half of the school holidays at the conclusion of term two and for three weeks during the Christmas school holiday period in each year;

   f)Orders as to implementing the child’s time with the father;

   g)That the child have Skype communication with the father each Tuesday with orders implementing that communication;

   h)That the parties provide to each other for the purposes of implementation of these orders current email address and a mobile telephone number capable of sending and receiving text messages;

   i)That staff in relation to any school, extracurricular activity or sporting activity the child is engaged in his authorised to provide to each parent copies of all notifications and other relevant documents relating to that activity;

   j)That any medical practitioner, specialist or health provider upon whom the child attends is authorised to provide to each parent copies of all medical notes and reports and other relevant documents relating to the child’s attendances and treatment;

   k)Orders facilitating notification by each party to the other of any relevant circumstance relating to the child;

   l)An order restraining the parties from denigrating each other or members of the other’s family in the presence or hearing of the child;

   m)That the parties enrol promptly in a “Keeping Kids in Mind” program as nominated by the independent children’s lawyer;

   n)That prior to any further application to the Court for parenting orders the parties attempt mediation with a registered family dispute resolution practitioner.

8. During the course of the trial an issue arose as to the child’s surname. In her oral evidence the mother initially sought an order that the child carry her maiden surname of Miller, although when examined on the issue the mother changed her position to seek an order that the child carry a hyphenated surname of “Soler-Berendt” or “Berendt-Soler”. Soler is the mother’s new married name.

9. The father opposed any change to the child’s surname seeking to retain the effect of the orders made on a final basis on hearing in June 2009.

10. The independent children’s lawyer did not support any change to the name of the child.

Background

1. The applicant mother is now aged 38. The respondent father is now aged 45.

2. The applicant mother has two older children from a previous relationship, Mr C born in 1994 and Mr D born in 1997. These children’s father is deceased.

3. In September 2001 the father and mother commenced cohabitation in the father’s home. The children Mr C and Mr D were part of that household.

4. In late 2003 the parties separated. Following separation the child the subject of these proceedings B Berendt was born in 2004.

5. In 2005/6 the parties’ relationship resumed and the father commenced spending time with the child. In March 2007 the parties’ relationship ended and at that time the mother and the children left Sydney. At that time the mother commenced a relationship with her new husband Mr Soler. The mother married her new partner in 2009.

6. The father commenced proceedings in May 2007 seeking to have the child returned to reside in the Sydney area.

7. In June 2007 orders were made that provided that the child the child live with the mother but spend one week in four with the father with changeovers taking place at E Town police station. In March 2008 following allegations of physical harm to the child orders were made that the child spend time with the father for two hours each four weeks at the F Town contact centre and two hours each four weeks at the G Town contact centre with the child to have telephone communication with the father every Wednesday and Saturday. Those orders continued until final orders made on 19 June 2009 as referred to above.

8. The mother and her new husband have two children of their relationship, H born in 2012 and J born in 2013.

9. The child presently attends K School, where he has attended since the commencement of his formal schooling. The child is known at that school as B Berendt and all his school records and reports issue in that name.

10. The mother in her oral evidence conceded that the child uses the surname Berendt.

11. The child’s school report for semester one 2013 is in evidence as Annexure M to the trial affidavit of the mother. It is apparent from the school report that at times the child’s behaviour at school in relation to other members of his class and teachers is somewhat challenging. The school report notes “it would help [the child] if he remembers that teachers are there to assist his learning and will gladly help if he has an area of need. He needs to speak to them in a courteous way and follow the instructions….. Target: improved organisational skills and less distracting behaviour in lessons”.

12. The child’s school report otherwise evidences a sound base for the child to continue his ongoing formal education.

13. Regrettably it is common ground between the parties that their relationship has for a period of years been conflictual and there are allegations of violence one against the other. Indeed in the family report the family reporter observes “[The child] said that he would like someone to tell mum and dad to stop fighting with each other and tell them to get along”.

14. The family reporter notes that the child had positive relationships with his father as well as his mother and members of her household. The child indicated to the family consultant that his relationships with his brothers were very important to him.

15. The family reporter noted that:

    The mother and father appeared to be engaged in an ongoing acrimonious dispute over [the child]. Each identified significant difficulties in communicating about [the child]. Such a situation is likely to have a negative impact on [the child] and may result in him having problems with his mental health, poor academic achievement and difficulties establish and sustained sustaining interpersonal relationships in the future.

16. It is clear that the foreshadowed negative impact is that commencing to be revealed in the context of the child’s behaviour and attitudes at school.

17. It is to the parties’ credit that they have been able to resolve the primary issues as to parenting and as it were re-implement substantially the parenting arrangements provided for in the 2009 orders.

The Family Consultant

1. In oral evidence the family consultant acknowledged that a child’s surname gives the child a sense of identity, although it is not the sole or defining part of that identity and that it was not sensible or necessary to change a child’s surname without good reason.

2. The family consultant noted that the child the child was very aware of who his mother and father were and who his brothers were and their relationships to him. The family consultant further was of the view that the retention by the child of his father’s surname would in some way negate the mother’s negative views of the father and a retention by the child of his father’s surname would be a reminder to the child of the father’s input into the child’s life and to be supportive of the child relationship with the father.

3. The family consultant was further of the view that the child’s relationship with his younger brothers was not dependent upon the child carrying their surname but in reality dependent upon the circumstances within the household in which he lives.

4. When asked whether the child having a different surname to his younger brothers at school would create any difficulties the family consultant noted that perhaps that was a possibility but in today’s society there was a significant number of children attending school from blended families and it was not an unusual circumstances that would be seen as a disadvantage to the child

The Law

1. An application for change of name can come before the Court firstly as injunctive relief to precluding or facilitating a change of name by reason of section 68B of the Act or as an issue relating to the allocation of particular aspects of parental responsibility.

2. Section 68B provides as follows:

   If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   …

   (3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

3. In Flanagan & Handcock [2000] FamCA 150; Finn J, having regard to the terms of s 68(B) as was then operative, said:

   ...the requirement that the Court must regard the best interests of the child as the paramount consideration (which is imposed on the exercise of many of the Court’s powers under that Part) has not been expressly imposed on the exercise of the Court’s power to issue injunctions under s 68B(1). Rather, under that sub-section, the Court is empowered to “make such order or grant such injunction as it considers appropriate for the welfare of the child”.

4. Section 68B was amended by the Family Law Amendment (Shared Responsibility) Act 2006 (Cth), but the wording of sub-section (1) insofar as it empowers the Court power to grant an injunction in relation to a child was not altered.

5. The issue as to change of name arose in the present proceedings in the context of parenting proceedings in which the issue of the allocation of parental responsibility was in issue. The parties resolved that issue by agreement and an order was made that the parties have equal shared parental responsibility for the child.

6. The parties however could not agree as to the issue of the child’s surname.

7. Section 64B(2) of the Act provides:

   A parenting order may deal with one or more of the following:

   ...

   (c) the allocation of parental responsibility for a child; ...

8. Section 64B(3) provides:

   Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

9. Major long-term decisions are defined in s 4(1):

   …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:

   ...

   (d) the child’s name; ...

10. The Court is being asked to make an order dealing with one aspect of the allocation of parental responsibility rather than an injunction under s 68B, and thus the best interests of the child are the paramount consideration.

11. In Flanagan & Handcock (supra) the majority (Kay and Holden JJ) set out a useful summary of cases which have considered the question of a child’s name and the principles to be applied by a judge when determining such an application.

12. The Full Court in Chapman & Palmer (1978) FLC 92-510 set out relevant factors as:

    a)The short and long-term effects of any change in the child’s name;

    b)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;

    c)Any confusion of identity which may arise for the child if his or her name is changed or not changed;

    d)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;

    e)The effect of frequent or random changes of name.

13. Other factors that have been identified are:

    a)The contact that the non-custodial parent has had and is likely to have in the future with the child;

    b)The degree of identification that the child has with their non-custodial parent; and

    c)The degree of identification which the child has with the parent with whom they live.

Best interest Considerations

1. The best interest considerations are set out in s 60CC of the Act.

2. The Court has had regard to each of the additional consideration set out and relevantly to this matter they are:

   a)The nature of the child’s relationship with each of the child’s parents and any other relative of the child

   The circumstances touching upon this consideration are referred to above. Importantly the child’s present household is in many respects a blended family in which one of his older brothers bearing a different surname remains part of the household and his two younger brothers again bearing a different surname form part of the household. The nature of the relationship between the parties has been referred to above and it is the view of the family consultant that by retaining his father’s surname the child would be reminded of the importance of his father in his life particularly in circumstances where the mother has held and continues to hold negative views of the father.

   b)The extent to which each of the parents has taken the opportunity to participate in aspects of the child’s life

   There is historically disputed evidence as to this however the father has spent regular time with the child since the final orders in 2009 in circumstances where there is a significant distance between the parties. The father is anxious to continue his relationship with the child and the child as can be seen from the family report is anxious to continue his relationship with his father.

   c)The likely effect of any changes in the child’s circumstances

   In this regard the only proposed change is the proposed hyphenated surname as sought by the mother. The child has settled into schooling using his father’s surname and it is the mother’s evidence that the child is known by that surname in the context of where he lives and his relationships. The family consultant expressed reservations as to another change of name for the child expressing the view that the child himself as a consequence of his blended household and his relationships within that household knows his place in terms of his relationship with each member of that household. The child is struggling as a result of the parties’ ongoing conflictual relationship and another change that impacts upon his day to day life and schooling can only exacerbate that problem.

   d)The capacity of the parents to provide for the child’s needs including emotional and intellectual needs

   In this context both parents have demonstrated little insight into the needs of the child having placed their own conflictual relationship ahead of the child’s emotional needs. It will be a reminder to the child of his rightful relationship with his father in the context of his ongoing relationships with his mother and father and his siblings in the event that he retains his father’s surname. This can only facilitate a more settled emotional circumstance in which the child will live.

   e)The attitude to the child, and the responsibilities of parenthood demonstrated by each of the child’s parents

   In the context of this consideration neither parent has presented well to the Court. Neither of them have appropriate reflective capacity in relation to the needs of the child and the way in which they should properly conduct their relationship with each other. The family reporter has given evidence as to the importance of the child retaining his sense of paternal identity part particularly in the context of the parent’s own inadequacies.

1. The Court is also required to consider the primary considerations set out in section 60CC. Firstly the Court is required to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. It may be said that in relation to that relationship the question of surname would be of little relevance. However in the context of the inter-parental relationship as referred to above it is important for the purposes of the child’s relationship with his father that he retain the father’s surname. This will provide to the child a valuable reminder of his relationship with the father and as referred to above perhaps minimise the effect of the mother’s ongoing negative views of the father within her own household upon the child.

2. Secondly the Court is required to have regard to protective concerns in relation to the child. In the context of this discreet determination of this issue is of no relevance.

3. Having regard to the reasons and considerations, particularly the factors for the Court’s consideration in relation to change of name, set out above the Court is satisfied that it is in the best interests of the child that there been no change to his surname and accordingly the mother’s application in that regard is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 October 2013.

Associate: 

Date: 30 October 2013