SOMERVILLE & SOMERVILLE (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERVILLE & SOMERVILLE (No.2)

[2019] FCCA 2665

Catchwords:
FAMILY LAW – Parenting – consideration of the rule in Rice & Asplund – consideration of whether there has been a change in circumstances justifying further litigation – whether the mother should be permitted to change the child’s surname – application allowed.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Beach & Stemmler (1979) FLC 90-692
Chapman & Palmer (1978) FLC 90-510
McEnearney & McEnearney (1980) FLC 90-866
Rice & Asplund (1979) FLC 90-725

Applicant:

MS SOMERVILLE

Respondent:

MR SOMERVILLE

File Number:

MLC 11607 of 2016

Judgment of:

Judge Mercuri

Hearing date:

14 May 2018

Date of last submission:

14 May 2018

Delivered at:

Melbourne

Delivered on:

21 September 2018

REPRESENTATION

Counsel for the applicant:

Mr Lethlean

Solicitors for the applicant:

Carew Counsel

Advocate for the respondent:

Ms MacRitchie

Solicitors for the respondent:

Kennedy Partners

Counsel for the Independent Children’s Lawyer:

Ms Chia

Solicitors for the Independent Children’s Lawyer:

Clark Family Lawyers

ORDERS

The child previously known as [X] born on 2008 now be known as [X].
The applicant apply to the Victorian Registry of Births, Deaths and Marriages to register the child’s name in accordance with the preceding order and do all such acts and things and sign all such documents as may be required to give effect to that registration.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Somerville & Somerville (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11607 of 2016

MS SOMERVILLE

Applicant

And

MR SOMERVILLE

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for orders permitting the applicant mother to change the name of the child of the relationship, [X] born 2008 (“the child”). The background is set out in more detail below.
A preliminary issue arose for determination, namely whether the principles in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) are satisfied, such that the court ought to entertain this application in the first instance.

Background

The background to these proceedings is briefly as follows:
a)the respondent father was born on 1973 and is now 45 years of age;
b)the applicant mother was born on 1984 and is now 34 years of age;
c)there is one child of the relationship who was born on 2008 and is currently 10 years of age;
d)the parents commenced cohabitation upon their marriage on 2003 and finally separated on 9 November 2016;
e)the mother initiated proceedings in this court relating to both parenting and property matters shortly after separation on 28 November 2016;
f)the mother filed numerous interlocutory applications, including:
i)seeking the suspension of the father’s time in February 2017; and
ii)seeking an interim order permitting her to relocate to Brisbane with the child in May 2017; and
g)in addition, the father filed:
i)numerous contravention applications;
ii)an application in a case seeking recovery of the child following the mother’s relocation to Brisbane in June 2017.

November proceedings

The hearing of the substantive application commenced on 13 November 2017 and after four days of hearing including hearing evidence from a number of mental health professionals about the child’s mental health, the parties to their credit, reached an agreed position in relation to both parenting and property matters. That agreement was reflected in final consent orders made on 17 November 2017 (“the November 2017 consent orders”).
For the purposes of these reasons, I will refer to those proceedings as the “November proceedings”.
Relevantly, for present purposes and without repeating the orders verbatim, in substance, the November 2017 consent orders provided that:
a)the mother have sole parental responsibility for the child;
b)the mother be permitted to relocate with the child to Brisbane;
c)the child live with the mother and spend no time or communicate with the father other than:
i)the father receiving reports from the child’s treating medical professions about her treatment;
ii)the father being at liberty to provide cards, letters or gifts to the child on three occasions per year; and
iii)the father receiving from the mother the child’s school reports, photographs and any other medical reports concerning the child; and
d)the father (including by his agents and servants) be restrained from negatively influencing the Suburb A Church in the State of Queensland and be restrained from attending that church.
Relevantly, the November 2017 consent orders contained the following notation:
The parties in entering into these orders intend, subject to the child’s treating medical practitioners’ advice, they do all things reasonably necessary to assist the child’s relationship with the father resuming in future.[1]
[1] Notation A of the orders made by consent on 17 November 2017.
When the proposed minute of consent orders was tendered in court after four lengthy days of hearing, counsel for the Independent Children’s Lawyer (“ICL”) made the following submissions:
… the father, bravely, in the circumstances – because these orders mean that he won’t have a relationship in the near future with his daughter – has agreed to these orders, which give him some limited information and capacity to communicate with [X], communication being treating medical professionals providing regular updates as to treatment, school reports, photographs, and he’s able to provide letters, cards and gifts three times a year.[2]
… There are also restraints in relation to the mother’s attendance unencumbered at the Suburb A Church in Brisbane. (The mother) has sole parental responsibility and she can move up to Brisbane with [X].[3]
[2] Transcript page 354 at lines 10 to 15.
[3] Transcript page 354 at lines 20 to 23.
Counsel for the ICL also referred to the notation set out above in commending the proposed orders to the court.
For his part, the father’s counsel made the following submissions in relation to the proposed consent orders:
I echo my learned friend’s comments about courage of my client. I might say that he has listened to the medical advice that has been given. He has listened to the advice from the psychologists and it is based on that advice that these orders are in [X]’s best interests that he has instructed me to agree to those orders. And he hopes that in the future the relationship can resume with the help of the medical practitioners and the wife.[4]
[4] Transcript page 355 at lines 31 to 36.
In the course of the November proceedings, evidence was led about the child’s mental health. The father’s counsel submitted that that evidence was not before the court in this present application. Given the nature of the November proceedings and the fact that I had the benefit of sitting through four days of evidence, including extensive cross-examination of a number of health professionals, I am satisfied that it is appropriate for me to have regard to that evidence in determining what is in the best interests of the child in the current application. I am mindful however, that the father did not give evidence in the November proceedings and therefore I am not able to make any findings in relation to those matters which he disputes and in respect of which his evidence was not tested.
Dr H, a consultant psychiatrist at the Hospital, gave evidence in the November proceedings that the child was suffering significant post-traumatic anxiety against a background of alleged chronic family violence and discord. In a letter provided to the ICL dated 27 September 2017, Dr H stated:
[X]’s mental health is being directly affected by the ongoing legal uncertainties, and we are of the opinion that it is in [X]’s best interests that this matter settled (sic) as soon as practicable. Further adjournments with regards to the final settlement of the issue of custody, are likely to be significantly detrimental to [X]’s mental state going forward. As the November court date has approached, [X] has become increasingly distressed, as evidenced by her recent presentation to the Hospital Emergency Department and subsequent admission to the Hospital Child Inpatient Unit with high levels of distress and anxiety, with associated risk of harm to herself and to others.[5]
[5] Exhibit ICL-7 from the November proceedings.
Dr H also gave evidence supporting the mother’s application to relocate with the child.
Importantly, Dr H gave the following evidence in response to some questions from counsel for the ICL:
ICL:And the father’s case is that [X]’s mother is orchestrating her condition. What do you say to that allegation?
Dr H:So I’ve seen [X] individually several times over the time that I’ve worked with her, and she has clearly disclosed this trauma to me independent of her mum being in the room. A nine year old child is not capable of the cognitive capacity to retain and maintain that kind of confabulation over a period of time, consistent at that times that I’ve seen her. I don’t think it’s, really, something that a nine year old child could do.
ICL:And you’ve seen her when she has been very bad at the Hospital in March?
Dr D:Absolutely. Yes. Yes.
ICL:How difficult is it for a child of that age to sustain that if it’s false?
Dr H:I don’t know that a child could sustain the level of severe arousal that she had. So particularly, I will refer to the admission to the Hospital’s emergency department prior to going to the Hospital where she required chemical sedation prior to transfer, I’m not aware of anybody, in my career, even in the adult setting, either, but certainly not in children that would maintain that level of arousal purely for a… malingering purpose.[6]
[6] Transcript page 244 at lines 25 to 42.
Ms B who was at the relevant times, a senior mental health clinician involved in the child’s care, also gave evidence in the November proceedings and was subjected to extensive cross-examination. Her evidence also went to the question of relocation and the supports that that would provide to the mother and the child. Ms B also commented on the impact of the litigation on the child and stated in this context:
… she’s an intelligent young girl and we know that children are very instinctual and that they have a good sense of what’s happening in their environment around them where (sic) the adults have kind of given them the exact information or not... I think triggers for her are definitely uncertainty in her environment, lack of stability, not knowing what’s coming next for her is something that she finds very difficult…[7]
[7] Transcript page 291 at lines 1 to 7.
As stated, ultimately the parties reached a consent position in relation to parenting arrangements for the child which:
a)provided the mother with sole parental responsibility;
b)permitted the mother to relocate to Brisbane with the child; and
c)provided very limited ongoing contact between the father and the child
acknowledging that the intention of the parties, subject to medical advice, was to assist the child’s relationship with her father to resume at some point in the future.

Current application

Against this background, the mother then filed an application in a case on 22 November 2017, some five days after the November 2017 consent orders were made. By that application, the mother sought orders in relation to an alleged contravention of section 121 of the Family Law Act 1975 (Cth) (“the Act”). The mother also sought orders to permit her to change the child’s surname to a surname to be determined by the mother.
The application in a case was abridged to deal with the alleged breach of section 121 and came before me on 28 November 2017. At that time, the father was self-represented. The issue of the change to the child’s name was not pressed at that hearing.
In the mother’s application in a case, the mother alleged that the father had breached order 6 of the November 2017 consent orders which contained an injunction on the father and his servants and agents, from negatively influencing members of the Suburb A Church in the State of Queensland.
It is common ground that both parents are members of the Suburb A Church. The mother indicated in her evidence in the November proceedings that it was her intention to attend the church in Suburb A if permitted to return to Queensland.
It was alleged by the mother that in breach of order 6 and more generally, section 121 of the Act, the father had either directly or indirectly disclosed information regarding the proceedings which found their way onto a discussion thread on an online forum. It was alleged that this thread not only disclosed information about the November proceedings but also identified the mother, the child and the mother’s family and had the effect of negatively influencing members of the church against the mother.[8]
[8] Annexure S-2 to the affidavit of the mother affirmed and filed 22 November 2017.
I do not propose to set out any aspect of the thread referred to above, but note that it expressly named the mother, the maternal grandmother and by implication identifies the child. It also made various disparaging and negative comments about the mother.
In his affidavit in response, the father conceded that the thread appeared on their church website but denied having anything to do with it. He further conceded that the content of the thread was negative.[9]
[9] Paragraph 8 of the affidavit of the father affirmed 27 and filed 30 November 2017.
After hearing from the parties on 28 November 2017, various orders were made in relation to the alleged breach of section 121, largely with the father’s consent. The mother’s change of name application was adjourned to a date to be fixed. It was in this context that counsel for the ICL sought the inclusion of a notation which the court made to the effect that, on a preliminary basis, and having regard to the case law, the ICL supported an application for the child’s name to be changed.[10] As stated, the name change issue was not ventilated at the hearing on 22 November 2017.
[10] Notation A of the interim orders made 28 November 2017.
The bulk of the mother’s affidavit filed 22 November 2017 deals with the alleged breach of section 121 by the publication on the Church website. To the extent that it supported the application for a change of name, it simply referred to:
a)the fact that the mother has sole parental responsibility; and[11]
b)the fact that the mother did not wish to disclose the new name that she proposed for the child on the basis that she is concerned that the father would publish that information.[12]
[11] Paragraph 21 of the affidavit of the mother filed 22 November 2017.
[12] Paragraph 22 of the affidavit of the mother filed 22 November 2017.
The father has at all times opposed the mother’s application to change the child’s name. In his affidavit affirmed 27 November 2017, the father stated:
As noted in the Consent Order, I hope to re-establish my relationship with [X] in the future, depending on her mental health and the recommendations of her treating medical team. Therefore, I strongly oppose (the mother’s) request for an order changing [X]’s surname.[13]
[13] Paragraph 6 of the affidavit of the father affirmed 27 and filed 30 November 2017.
Further at paragraph 14, he goes on to state:
[X] has been known by the surname, “Somerville” all her life. It will be to her detriment in her surname is changed.[14]
[14] Paragraph 14 of the affidavit of the father affirmed 27 and filed 30 November 2017.
The mother relied upon two affidavits in support of her application to change the child’s surname. In her affidavit filed 2 February 2018, among other things, the mother:
a)referred to the evidence given in the November proceedings by Dr H and Ms B about the child’s mental health issues arising from exposure to family violence;[15]
b)stated that the child’s surname “Somerville, is synonymous with abuse and a change will assist her rehabilitation”;[16]
c)referred to the fact that the online forum referred to above identified details of the parenting proceedings and identified the child;[17] and
d)stated that she believes that the father’s family is seeking information about the child from her new church congregation.[18]
[15] Paragraph 8(ii) of the affidavit of the mother filed 2 February 2018.
[16] Paragraph 8(i) of the affidavit of the mother filed 2 February 2018.
[17] Paragraph 4 and 8(iii) of the affidavit of the mother filed 2 February 2018.
[18] Paragraph 8(v) of the affidavit of the mother filed 2 February 2018.
The mother also deposed that:
a)she and the child have relocated to Brisbane;
b)she has chosen to change her surname “because (her) married name is synonymous with betrayal, brutality, and abuse”;[19]
c)she wants to have a surname which she and the child can share “and allow (the child) to develop an identity with happiness and emotional assurance”;[20]
d)various people connected with the father have sought to engage with her and the child and that the child has “on two occasions decompensated after contact or seeming approaches by people known to the father”[21];
e)the child is enrolled at school under the name Somerville although she has advised the school that she has made an application to change the child’s surname;[22] and
f)the child contacted the father by telephone on 23 January 2018 and was completely distraught after the telephone call, disclosing to the mother that the father had told her that he loved her and that her “mother and grandmother are evil people” and that he had done everything possible to see her.[23]
[19] Paragraph 9 of the affidavit of the mother filed 2 February 2018.
[20] Paragraph 10 of the affidavit of the mother filed 2 February 2018.
[21] Paragraph 14 of the affidavit of the mother filed 2 February 2018.
[22] Paragraph 15 of the affidavit of the mother filed 2 February 2018.
[23] Paragraph 15 of the affidavit of the mother filed 2 February 2018.
The father also relied on two affidavits. In his affidavit filed 2 May 2018, the father deposed the following:
a)he continued to deny publishing any account of the proceedings, details of the case or the identity of parties or witnesses in the proceedings;[24]
[24] Paragraph 6 of the affidavit of the father filed 2 May 2018.
b)
he understood that following the orders made by this court on

28 November 2017, the online forum had been removed from the website;[25]
[25] Paragraph 7 of the affidavit of the father filed 2 May 2018.
c)he continued to oppose any change to the child’s surname;[26]
d)in his view, the “application to change [X]’s surname is another way in which she is seeking to eliminate any trace of me as [X]’s father”;[27]
e)there has been no significant change which would warrant reopening the November proceedings which were resolved by consent;[28]
f)the application for a change of name ought to be dealt with at trial and cannot be determined without hearing and testing of evidence;[29]
g)it is in the child’s best interests for litigation to conclude;[30]
h)although the mother and the ICL rely on evidence given by Dr H and Ms B in the November proceedings, as stated those proceedings concluded without a final determination by the court and, that evidence did not go to the issue of a change in the child’s surname;[31]
i)to the extent that the ICL supports the application to change the child’s surname on the basis that the child has been exposed to domestic violence throughout the relationship, the father denies committing family violence and in any event, as he did not give evidence in the November proceedings and was not subject to cross examination, there are no findings of fact made by the court as to any such violence;[32]
j)there is no evidence before this court that changing the child’s surname will assist in her rehabilitation;[33] and
k)the father conceded that the child called him in January 2018 but deposed that during this telephone call, the child cried and told him that she loved him; he then broke down and cried and told her that he loved her. The father denied that he spoke about the mother or maternal grandmother to the child and expressly denied that he called either of them ‘evil’ as alleged.[34]
[26] Paragraph 9 of the affidavit of the father filed 2 May 2018.
[27] Paragraph 12 of the affidavit of the father filed 2 May 2018.
[28] Paragraph 13 of the affidavit of the father filed 2 May 2018.
[29] Paragraph 14 of the affidavit of the father filed 2 May 2018.
[30] Paragraph 14 of the affidavit of the father filed 2 May 2018.
[31] Paragraph 17 of the affidavit of the father filed 2 May 2018.
[32] Paragraph 18 of the affidavit of the father filed 2 May 2018.
[33] Paragraphs 22 and 27 of the affidavit of the father filed 2 May 2018.
[34] Paragraph 31 of the affidavit of the father filed 2 May 2018.

At the hearing on 14 May 2018, counsel for the mother tendered a letter from Ms R, a clinical nurse consultant from Queensland.[35] In that letter Ms R states that she is the child’s case manager at Suburb B Child and Youth Mental Health Service and that she has seen the child regularly since January 2018. In supporting the mother’s application to change the child’s surname, Ms R relevantly states:
I feel that if [X] does not identify as being a ‘Somerville’ any more she can move forward in her recovery and be a more settled well adapted child.[36]
[35] Exhibit 1 from the hearing on 14 May 2018.
[36] Exhibit 1 from the hearing on 14 May 2018.

Issues

The present application gives rise to the following issues:
a)whether the applicant mother has satisfied the requirements of Rice & Asplund such that the court should revisit the November 2017 consent orders; and
b)if so, whether it is in the child’s best interests to change her surname.

Rice & Asplund

The father’s counsel opposed the mother’s application on various grounds, the first of which was that the requirements in Rice & Asplund have not been met.
As correctly submitted by the father, the application to change the child’s surname is an application for a parenting order under Division 12 of the Act.
It is not in dispute that the November proceedings initiated by the mother in November 2016 were resolved on a final basis culminating in the November 2017 consent orders. It is also not in dispute that at no stage in those proceedings, did the mother or the ICL claim that an order should be made changing the child’s surname.
It is uncontroversial that in parenting matters whilst principles of

res judicata
do not strictly apply, it is necessary for a party seeking to reopen final parenting orders to establish that there has been a substantial or significant change in circumstances warranting such action.[37] The underlying principle behind this approach is that it is necessary to bring an end to litigation. This is equally and perhaps particularly so in the context of parenting matters where ongoing litigation between parents is generally contrary to a child’s best interests.
[37] McEnearney & McEnearney (1980) FLC 90-866 at [75,499] per Justice Nygh.
As noted in Rice & Asplund:
The principles which, in my view, should apply in (cases in which a fresh application for parenting orders is made) are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation… change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material… It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factor which will justify the court in reviewing a custody order will vary from case to case.[38]
[38] Rice & Asplund (1979) FLC 90-725 at [78,905] per Evatt CJ.
In applying the principles in Rice & Asplund, the court must always act in the best interests of the child.
The principal change since the making of the November 2017 consent orders which the mother points to is the publication of information and commentary about the outcome of the November proceedings on the Church online forum. It is the mother’s case that the father either directly or indirectly was involved in disclosing information which made its way onto that website. The father denies this.
Irrespective of any involvement or otherwise by the father in the comments which were made on the forum discussed above, the father concedes that the commentary was negative. It is also evident and I find that the comments identify, by name, the mother and the maternal grandmother. As a result, it is possible to identify the child by implication.
In written submissions filed on behalf of the mother, the court was told that the mother was prepared to advise the court and the father that she proposed to adopt the name (name omitted)which is a derivative of her maiden name, (name omitted).[39]
[39] Paragraph 6 of the mother’s outline of submissions dated 10 May 2018.
In support of her application, the mother submitted:
a)she and the child were subjected and exposed to “harrowing and egregious” family violence throughout the marriage;[40]
b)the mother no longer wishes to be associated with her married surname particularly given she was subjected to “gross humiliation” from the comments on the Church website;[41]
c)the mother wishes to have the same surname as the child to avoid embarrassment and as the child identifies comprehensively with the mother;[42]
d)the child should be allowed to have a fresh start, and “a new identity to be established with separate values, traits and meaning”;[43]
e)the child does not identify with her current surname which is a constant reminder of the abuse, anger and damage to which the child and the mother were subjected during the marriage;[44] and
f)in any event, a change in surname would have no detrimental or adverse impact on the child in the current or foreseeable future with respect to the child’s relationship with the father given the current no-time orders in place.[45]
[40] Paragraph 9(i) of the mother’s outline of submissions dated 10 May 2018.
[41] Paragraph 9(iii) of the mother’s outline of submissions dated 10 May 2018.
[42] Paragraph 9(v) and (viii) of the mother’s outline of submissions dated 10 May 2018.
[43] Paragraph 9(vii) of the mother’s outline of submissions dated 10 May 2018.
[44] Paragraph 9(ix) of the mother’s outline of submissions dated 10 May 2018.
[45] Paragraph 9(x) of the mother’s outline of submissions dated 10 May 2018.
It was also submitted that allowing the mother to change the child’s surname would:
…promote the welfare of the child and allow for union between the Mother and the Child in terms of forging a new path for their identity after years of emotional upheaval, suffering and disturbance.[46]
[46] Paragraph 9(xi) of the mother’s outline of submissions dated 10 May 2018.
In response, it was submitted on behalf of the father that the application should not be entertained for the following reasons:
a)as the November proceedings were resolved by consent, no findings of fact were made by the court;[47]
b)whilst the mother was the subject of cross examination and her evidence was tested, that of the father was not, consequently the allegations of family violence remain contested;[48]
c)to the extent that the mother relies upon the evidence of the health professionals who gave evidence about the child’s condition in the November proceedings, that evidence is not before this court and therefore ought to be disregarded;[49]
d)the mother, on her own evidence, caused the pastor of her church in Queensland to discuss the parenting orders with the congregation;[50]
e)the embarrassment of the mother is not a relevant consideration to the question of whether the child’s surname should be changed;[51]
f)the father denies involvement with the online publication and maintains that the child was not personally identified;[52] and
g)there is no evidence before the court that the child does not identify with her current surname, and the name proposed by the mother is a name created by her and the child will have no connection to the maternal family through that name.[53]
[47] Paragraphs 47 and 48 of the father’s outline of submissions dated 14 May 2018.
[48] Paragraphs 46 to 48 of the father’s outline of submissions dated 14 May 2018.
[49] Paragraph 49 of the father’s outline of submissions dated 14 May 2018.
[50] Paragraph 52 of the father’s outline of submissions dated 14 May 2018.
[51] Paragraph 53 of the father’s outline of submissions dated 14 May 2018.
[52] Paragraph 54 of the father’s outline of submissions dated 14 May 2018.
[53] Paragraphs 42, 63 and 64 of the father’s outline of submissions dated 14 May 2018.
Having regard to all of these factors, on balance, I am satisfied that there has been a substantial change since the November proceedings of the kind contemplated in Rice & Asplund, to warrant reopening the parenting issues in this matter.
The mother’s move to Queensland was to provide a fresh start for the mother and the child as well as allowing them both to access the support of the maternal family and the mother’s church community. The comments posted on the online forum have adversely impacted the mother and child’s ability to make that fresh start.
Whilst it may well be the case that the father’s evidence with respect to the alleged family violence was not tested in the November proceedings, the evidence from the child’s treating health professionals was given and tested. I find on the basis of that evidence, that the child had significant mental health issues which the mother was seeking to address and monitor with professional support.
Without apportioning blame, it was clear from that evidence which I had the benefit of hearing and which I accept, that the child had ongoing and specific psychological needs and the child’s treating health professionals supported the mother’s application to relocate to Queensland with the child.
In those circumstances, I am satisfied that the requirements in Rice & Asplund have been satisfied. In coming to this conclusion, I have also had regard to the particular circumstances of this case.

Change of name

I turn then to the question of whether the mother’s application to change the child’s surname ought to be granted.
It was submitted by the father that if I were satisfied that the Rice & Asplund requirement had been met, that I could not deal with the substantive application without a final hearing to test the evidence. In this regard, it was further submitted that I could not have regard to the evidence led in the November proceedings.
I am not persuaded by this argument. I agree with the father’s submissions that I cannot make any findings as to whether or not the father engaged in family violence either against the mother and/or the child because this is a contested issue and his evidence was not tested. However, I am satisfied that I do not need to make a positive finding with respect to the alleged family violence in order to deal with the present application.
The application to change the child’s name arises in large part, because of the impact of the dissemination of comments on the online forum discussed above. There is no dispute that those comments were made; that they appeared on a church website; that they were negative and derogatory of the mother and that they identified the mother, the maternal grandmother and by implication, the child.
Having had the benefit of hearing evidence from a number of medical practitioners who were treating the child in Victoria at the time, including extensive cross examination of those practitioners by the father’s counsel, it is open to me to make findings about the child’s mental health issues. On the basis of that evidence, I find that the child has been diagnosed with Post-Traumatic Stress Disorder and has had significant episodes which have resulted in hospital admissions and, at least on one occasion, chemical sedation.
I now turn to consider the relevant principles in applications to change a child’s name. These are well settled. In addition to the principles articulated in Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 (“Chapman”) and Beach & Stemmler (1979) FLC 90-629, any such order, being in the nature of a parenting order, would also need to satisfy the primary and additional considerations in section 60CC of the Act.
In Chapman, the issue before the court was whether the children of the marriage could change their surname to take the mother’s married name following the mother’s second marriage. The children lived with the mother and spent some time with the father. The issue in that case arose because the elder of the children did not wish to continue to be known by his father’s surname.
As noted in Chapman:
…the change or retention of a particular name may affect a child in a number of ways…The desires of the parents are, however, of secondary importance when put alongside the welfare and the wishes of the child in question. Because a change in a child’s surname may cause him or her confusion and because the issue usually arises between the parents the court will exercise a supervisory role in the matter when called upon to do so.[54]
[54] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77674].
Chapman also stands for the proposition that the key issue for a court where one or other parent seeks to change the child’s name, is “what should be done to promote the welfare of the child…”[55]
It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.[56]
[55] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77675].
[56] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77675].
After considering a range of cases in which the question of how a court should approach a change of name case, the court summarised the following factors as those to which a court should have regard in determining whether there should be a change to the child’s name:
a)the welfare of the child is paramount;
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 is 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; and
f)the effect of frequent or random changes of name.[57]
[57] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77676]-[77677].
I deal with the welfare of the child in the context of the section 60CC factors at paragraphs 73 to 99 below.
In terms of the short and long term effects of any change to the child’s name, it is acknowledged that the child will need time to become accustomed to a different surname in the short term. This is particularly so given that the child is 10 years of age and has always been known by the name ‘Somerville’ and her identity can be presumed to be linked to that name. However, the child is under the care of a large medical team and there is some, albeit limited evidence that a change in name is supported by the child’s case manager.
The court is satisfied that the child will have various support to work through any issues which might arise from the change to her surname. Moreover, in the long term, the proposed change in name will allow the child to build on her identity with the mother who has sole parental responsibility and the day to day care of the child.
In relation to (c) above, the mother’s evidence is that she no longer wishes to be associated with the father’s name not only because of the violence she alleges occurred during the marriage, but also because of the hurt and humiliation caused by the comments about her published online. In those circumstances, the mother argued that if she changes her name, given that the child is living with her and has no contact and minimal communication with the father, it would be a cause of some embarrassment to have a different name to that of the child. Having said that, there is no evidence before the court as to any embarrassment or otherwise to the child as a result of having a different name to that of her mother and primary carer. The court however, does have regard to the fact that the child’s case manager is supportive of the change from a medical perspective and that the ICL is also supportive of the mother’s application.
The question of any possible confusion which might arise if the child’s name is changed or not is dealt with at paragraph 61 above.
As to the effect of any change in surname might have on the child’s relationship with the father, it is relevant that the consent orders provide for the mother to have sole parental responsibility and for very minimal contact between the father and the child at this stage. I have had regard to the possible impact that a change in the child’s name might have in attempts to rebuild a relationship with her father at some point in the future, as was contemplated by the November 2017 consent orders. The November 2017 consent orders provide the father with an opportunity to maintain some level of communication with the child and the ability to be kept informed as to the child’s medical and educational development. This contact is not dependent on the child having the same surname as the father. In considering this factor, I have also had regard to the fact that the child is currently 10. She will have an awareness and knowledge of her name prior to any change. This is not a case of an infant who has no memory of the name they shared with their father.
It is hoped that through this communication and with the support of the child’s health practitioners, there will be a basis for the child to

re-establish a relationship with the father. This will not, in my view be dependent on the father and child sharing the same surname.

Part VII of the Act

In considering the welfare of the child, I have also had regard to the objects and underlying principles identified under Part VII and specifically, section 60B of the Act.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) 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).
I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

In this case, the father has agreed to final orders which not only provided the mother with sole parental responsibility, but permitted her to relocate with the child to Queensland. They further provide for no contact and minimal communication with the child. I acknowledge the notation in the November 2017 consent orders reflects the father’s intention to

re-establish a relationship with his child in the future.
Having said that, the father’s best chance of one day reconnecting with his child, is for her to recover her mental health. I am satisfied on the basis of the evidence before me, including the evidence given throughout the November proceedings that the mother is doing all that she can to facilitate the child’s recovery. Ultimately, rehabilitation of the child’s mental health is not only in the child’s best interests but is also the most likely path to the child developing a meaningful relationship with her father at some point in the future.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The court is satisfied on the basis of the uncontested evidence before it that the mother, and by reference the child, have been subjected to unwanted and personally hurtful attention in their community since returning to Queensland.
I make no finding as to the father’s involvement in that and for the purposes of these reasons, accept the father’s evidence that he had nothing to do with the publication. However, the father concedes the existence of the publication and that its content was negative.
I accept the mother’s evidence that in light of this publication, she no longer wishes to be known by her married name and cannot take her maiden name as it too, was the subject of negative commentary online.
In those circumstances, taking an anglicised derivative of her maiden name is understandable. In circumstances where the mother, by consent, has sole parental responsibility of the child, and has pursuant to the November 2017 consent orders relocated to Queensland, it is also reasonable that the mother and child share the same surname.
The father has asserted that the mother’s application is an attempt by her to eradicate him from the child’s life. He submits that the child’s surname is the only connection that she has to the paternal family and her heritage.
I am not persuaded by the father’s claims in this regard. I find that the mother’s application to change the child’s surname is a direct result of, and response to, the publication. The timing of the mother’s application is indicative of this. It is unfortunate that such comments were made on the online forum which were extremely derogatory of the mother and her family.
Whilst the father seeks to maintain a connection to his child through a shared surname, that desire, while understandable, does not override the paramount consideration which is the child’s best interests.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

As stated above, there is no evidence before the court which identifies what the child’s wishes are in this regard. There is no affidavit material which provides any information about the child’s views on her name. There is simply an absence of any evidence as to the child’s views.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

This has been canvassed above. The child lives with the mother and spends no time with the father at present. In the long term, the father has indicated that he wishes to re-establish a relationship with his child, subject to advice from appropriate medical practitioners. I am not satisfied that a change to the child’s name will be an impediment to the re-establishment of that relationship.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child

Given the nature of the November 2017 consent orders, this is not relevant to the present application.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

Given the nature of the November 2017 consent orders, this is not relevant to the present application.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Given the nature of the November 2017 consent orders, this is not relevant to the present application.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

This is not relevant to the present application.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

This is not relevant to the present application.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

As stated above, the child is 10 years of age. There is however, no evidence before the court about her views on the proposed change to her surname.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

To the extent that this factor is relevant, it has been discussed above.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

The mother submits that the proposed orders are warranted having regard to the family violence to which the child was exposed during the relationship.
The father denies involvement and/or responsibility for any family violence however, concedes that the child has psychological issues which need to be addressed.
As the substantive parenting issues were resolved in the November 2017 consent orders, the court did not make a finding of fact in relation to the allegations of family violence. Indeed, the court did not have the benefit of the father’s evidence being tested through cross-examination as the proceedings resolved prior to him being called to give evidence.
As such, in coming to the view that it is in the child’s best interests to grant the mother’s application, I do not make any findings about the specific allegations of family violence against the father.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;
(ii)    the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter

I refer to and repeat my comments above.

Section 60CC(3)(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

In circumstances where the November 2017 consent orders provided for the mother to have sole parental responsibility and relocate with the child to Queensland, an order granting the mother’s application to change the child’s surname is least likely to lead to further proceedings being instituted.
It will provide the mother and child with the ability to make a fresh start. The remaining orders still provide the father to have some, albeit limited communication with the child and access to the child’s medical and educational information.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

All relevant factors have been addressed above.

Conclusion

For each of the reasons outlined above, I make orders 5 and 6 sought in the mother’s application filed on 22 November 2017.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 21 September 2018

[2018] FCCA 2665

21 September 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness