T-E and D
[2001] FMCAfam 71
•27 June 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
T-E & D [2001] FMCA fam 71
FAMILY LAW – Parenting orders – Specific issues orders – Injunction in relation to the welfare of a child – Child’s surname.
| Applicant: | T-E |
| Respondent: | D |
| File No: | ZP 2121 of 2001 |
| Delivered on: | 27 June 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 22 & 23 June 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Shepherd |
| Solicitors for the Applicant: | Heazlewoods, Level 4, 3 Carlingford Road, Epping 2121. DX 4411 Epping. |
| Counsel for the Respondent: | Mr Johnston |
| Solicitors for the Respondent: | Philip Beazley Solicitor, Suite 920, 185 Elizabeth Street, Sydney 2000 |
ORDERS BY CONSENT
That the father have contact with the children of the relationship, C born 3 August 1990 and S born 9 December 1993 (“the children”) for block periods of three weeks each December/January school holidays and such contact to fall in the last three weeks of those holidays upon condition that the father return the children to the mother no later than the Friday immediately prior to the commencement of school.
IT IS FURTHER ORDERED
That the father ensure that the children attend “Keane Kids”, any Australian Youth Choir and National Dance commitments that occur during periods when the children are with him subject to:
1.A child being ill;
2.The children having competing commitments and the father determining that the competing commitments should have priority;
3.The father determining that the interests of another child or family member required that the activity be foregone.
In the event that the father is unable to transport a child or the children to one of the activities identified in Order (2), the father is to notify the mother as soon as practicable that he cannot do so and request that the mother transport the child or children to the activity.
That during periods of holiday contact, the father is to cause the children to telephone the mother no less than once a week for each week of the holidays.
That both parties do all things necessary, including executing all relevant documents, to cause the children to be registered and known as “E-D”.
That Order (5) does not apply to the children’s birth certificates nor to any passports issued to them.
That during the first half of the Christmas school holidays if the children are within the geographic boundaries of Port Macquarie, Nowra and Bathurst the Father shall have contact:
(1)During years ending in an even number between 9.00am and 5.00pm Christmas day.
(2)During years ending in an odd number between 9.00am and 5.00pm Boxing day.
(3)The Mother is to advise no later than 23 days before Christmas day if the children will be available to exercise contact pursuant to this order.
(4)For this order changeover is to take place at McDonalds Thornleigh.
That for the purposes of contact changeover:
Until C starts school at McDonald College:
1.Weekend contact shall commence at the conclusion of school and the father shall collect the children from school at the commencement of contact;
2.The father shall otherwise collect the children from McDonald’s at Thornleigh and return them to the mother at McDonald’s Family Restaurant at Thornleigh at 5.30 pm at the completion of contact.
From the first weekend after C starts at McDonald College:
3.Alternate weekend contact shall commence at 4.30 pm on Friday;
4.The father or his agent shall collect the children from the mother or her agent at 4.30 pm at McDonald’s Family Restaurant at Thornleigh;
5.At the conclusion of weekend and school holiday contact, the father or his agent shall return the children to the mother or her agent at McDonald’s Family Restaurant at Eden Park.
That all exhibits be returned at the expiration of 28 days unless an appeal is lodged.
That all outstanding applications are dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA
ZP 2121 of 2001
T-E
Applicant
And
D
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings comprise an application for parenting orders and for an injunction relating to the children’s surname.
Background facts
The father was born on 6 October 1958 and is 42 years old. The mother was born on 23 April 1963 and is 38 years old. They commenced cohabitation in 1989 and separated in April/May 1998. Shortly after separation, the father left the family home at Umina.
The father married on 14 August 1999. Both he and his wife, C, have used the name T-E extensively since their marriage.
At the time of separation, C was enrolled at Woy Woy South Primary School and S had not yet started school.
On 31 August 1998, an Apprehended Violence Summons was issued on behalf of the mother at Woy Woy Local Court. On 28 October 1998, the father consented without admissions to a two-year order.
After a defended hearing, His Honour Justice Coleman made parenting orders on 24 September 1999. The orders provided that the children live with their mother and for a graduated program of contact by the father. By 24 September 2000 the operative orders provided for alternate weekend contact, from after school Friday until 6.00 pm Sunday and for one-half of all school holidays, starting with the September/October 2000 school holidays.
In 1999, the children were enrolled at Turramurra Public School and in 2001 they were enrolled by the mother at the Wahroonga Adventist School. C has been accepted for enrolment in 2002 at the McDonald College where she will commence Year 7. McDonald College is a school that promotes participation in the performing arts.
On 31 October 2000, further orders were made by consent, which orders varied on an interim basis the collection and return point for contact, so that it commenced from the children’s school, orders in relation to Christmas contact and attendance by the children at extra-curricular activities.
On 23 March 2001, interim orders were made by consent in respect of the children’s passports. As a result of these orders, Australian passports were issued to the children, using the surname “E”. C was then able to join a trip by the choir, which trip took her to Europe. Neither of her parents travelled with her.
These proceedings came before the Family Court for final hearing on 22 June 2001. The proceedings were transferred to the Federal Magistrates Court for hearing that day. At the commencement of hearing, the parties entered consent orders that addressed many of the disputed matters. Those orders provided for extended contact and addressed its implementation in great detail. The matters that remained the subject of controversy are:
·Christmas day contact;
·Attendance at extra curricular activities;
·Use of mobile telephones during contact and contact with the mother by telephone generally;
·The children's surname;
·Collection and return point for contact.
The evidence
The evidence relied upon by the parties was as follows.
·The father relied on his affidavit filed 14 June 2001 and his oral testimony;
·The affidavit of C T-E filed 14 June 2001 and her oral testimony.
The mother relied on her affidavit filed 8 June 2001 and her oral testimony.
Both parties relied on material that became exhibits in the proceedings.
Relevant law
Contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Determining the best interests of the children
The parties agree that the children will continue to live with the mother and have contact with their father. It is common ground between them that they have been engaged in extensive litigation since separation and that they are unable to communicate with each other on matters concerning the children, or at all. They have an obvious antipathy to each other, which antipathy was apparent throughout the proceedings. They agree that the children enjoy contact with the father, that it should continue and that it will continue to be an important part of the children’s lives.
Importantly, they agree that the children are musically talented and that the children enjoy a rich and diverse cultural life, which is in their interests and will continue. Their activities include participation in Keane Kids, C in the Australian Youth Choir and in the National Dance Company. As a consequence of the consent orders entered at the commencement of the proceedings, C will start at the McDonald School of the Performing Arts and S will join her there as soon as possible. Because of the children’s interests in the performing arts, they have weekend commitments that are substantial and in relation to which there can be, and will continue to be, competing priorities.
The children reside with the mother in Wahroonga. The mother is a gaming supervisor and works shift work at a Returned Services League club, between 5.30 pm and 4.30 am. The mother has not re-partnered.
The father lives with his wife and her two children in North Ryde. Exhibit D shows the positions of the parties’ homes and the relevant McDonald’s restaurants. The father provides little financial support for the children and the children are supported financially primarily by the mother, with some help from her parents. At present the father collects the children directly from school on Friday afternoons. Because of the children’s many extra-curricular activities, they can have a large number of bags and possessions to take with them for contact. C takes:
·Her choir uniform;
·Her dance bag — containing her clothes and shoes for Keane Kids;
·An overnight bag with weekend clothes, and
·Her school bag.
S takes with her:
·Her dance bag — containing her clothes and shoes for Keane Kids;
·An overnight bag with weekend clothes, and
·Her school bag.
Provided she isn’t working, the mother takes the children’s bags to them at school about ten minutes before classes finish, giving the bags to the children at assembly. Currently, the children have sports afternoons on Friday. On those occasions when the mother is unable to attend, her father delivers the children’s belongings.
It is the mother’s case that it would be more convenient to complete Friday afternoon changeover at McDonald’s Thornleigh. From her perspective, this is undoubtedly so. However, implementing the changeover at McDonald’s on Friday will deprive the father of the opportunity to continue to collect the children from their school, something he is keen to do. By collecting the children from school, he has the opportunity to briefly observe the children in their school environment, perhaps seeing interchanges with friends and participate, albeit briefly, in an aspect of their lives that he does not otherwise have exposure to. Although the children’s sports uniforms are returned often unwashed, I do not accept that this a reason to disrupt the Friday afternoon collection and return routine.
Once C starts at McDonald College, the Friday afternoon arrangements become more complicated. S will still be attending school at Wahroonga whilst C will travel to Strathfield, a significant distance from Wahroonga. The father proposes that he will continue to collect S from her school and that C can make her own way to Epping station and/or his home. I accept his evidence that C will travel through only about 2-3 stations by train and that she can then change to a bus which will bring her near to the father’s home. The distance from the bus station to the father’s home is a relatively short one. As a high school student and I accept a mature child, I am satisfied that C is able to coordinate the travel including the relevant transport connections. I am more concerned about C being required to take her weekend belongings with her to school in the morning, together with her schoolwork, and then the management of those belongings thereafter. Once she is in high school, it is reasonable to infer that her homework will become more onerous and her performance commitments may increase. Whilst I accept she can leave bags at school, her commitments are unlikely to enable her to do this. She will need schoolbags to bring schoolwork home for weekend homework, and must bring her own weekend and performance wear with her. There are, in my view, too many bags for a teenager to be transporting by public transport with any degree of comfort.
The mother’s proposal is that contact changeover take place at McDonald’s Thornleigh. That has worked in the past and once C starts high school, I consider that that is the venue where contact can most conveniently commence. C and S will both have time to come home from school, change into their weekend or choir clothing and contact will commence approximately one hour later than it currently does. This will deprive the father of the opportunity to collect S from school with the benefits that I have already identified for him. However, the advantages of the McDonald’s Thornleigh arrangement for the commencement of contact outweigh this disadvantage.
At the conclusion of contact, once C starts at McDonald College, I consider that the return venue should also change and that the father should return the children to the mother at McDonald’s at Eden Park. Although much was made of the comparative advantages of McDonald’s Thornleigh as compared to McDonald’s Eden Park, I remain unpersuaded that the distinctions were material. The children are old enough to co-operate with movement between family vehicles in a carpark and I am not satisfied that there is a material advantage at Thornleigh as compared to Eden Park. The advantage of Eden Park is that by affecting changeover at that place, it will minimise the impact of the reduction in time for contact that arises as a consequence of the changeover being affected at 4.30 pm on Fridays. Thus the time the children enjoy with their father will remain almost identical. Eden Park has the advantage of reducing the time the children travel because they do not have to double back, driving past their mother’s home to Thornleigh, before returning to her home. Because the parties have such a poor relationship and readily engage in litigation, I have determined that the current arrangements should remain until they must of necessity change. This should reduce the opportunity for disputation.
An important issue is whether it is in the interests of the children to make orders that require their father to take them to their identified activities. At the time of the hearing before Justice Coleman, the children were attending Keane Kids. Their activities have extended and now include Australian Youth Choir and dance. This year they started Little Athletics. They are very busy children. The mother without consultation with the father has extended the performing arts activities. Whilst the activities are worthwhile and important ones, they impact significantly on the nature of the contact that the father can enjoy with the children. I accept his evidence that he enjoys their activities and that he reliably ensures that they attend them. There was considerable disputation about the extent to which S has attended Keane Kids in the term immediately preceding this hearing. I accept the father’s evidence that S did miss one weekend whilst she was in his care and I accept his evidence that he is committed to ensuring the children’s continued attendance. The children have also missed classes when in the mother's care. Other than his attitude towards child support, he impressed me as a committed parent. He wishes to be part of the children’s lives and to enjoy their activities with them.
A matter that has influenced my reasons has been the need to achieve finality for the parties and the children. These parties will probably continue to litigate on matters concerning the children if the opportunity arises. The orders I have made are designed in part to deprive them of that opportunity and to give their children some peace from the strains of relentlessly litigating parents. The children need to know that they can rely on their parents' commitment to their extra-curricular activities and they are likely to be reassured by the fact that orders are made which document the father’s commitment. The mother agreed that there will be times, as indeed there have been in the past, when the children’s weekend commitments will clash and that the nature of their commitments in the future may change. The father will have the authority to determine those competing commitments on an event-by-event basis, as well as the opportunity to keep a child at home if she is unwell and otherwise balance family priorities. That is a necessary concomitant of effective parenting. He agrees that if he cannot take the children or otherwise arrange for them to attend a commitment, because only of travel difficulties, he will ask the mother to do so. The orders will reflect that commitment.
The mother seeks orders that will require the father to ensure that the children ring her each day of the weekend and each second day during longer periods. He opposes this order. In furtherance of the arrangements for telephone communication, the mother has given the children a mobile telephone and asks that the father be restrained from removing it from them during contact. It is difficult to understand why the mother seeks this order. The order appears to have little connection with the best interests of the children. The parties agree that C is a mature child and she has travelled internationally, unaccompanied by either parent. I do not accept that C perceives a need for daily telephone contact with her mother. She may like to do so, however it is unnecessary. Nor does the evidence support a finding that S needs daily telephone contact with the mother.
The father’s evidence is that he does not encourage the use of mobile phones in his home and he actively discourages their use. On 20 April 2001, the mother believed that the children had returned from contact without the mobile phone. She immediately faxed a letter, annexure K to her affidavit, to the father requiring that the phone be couriered to her. The father alleges, and I accept, that the telephone was found in one of the children’s schoolbags. As a consequence of her discussions with the children, the mother believes they are restricted in their use of the telephone. The father has taken and kept the mobile from C. The father is capable of meeting the children’s needs during any period of contact. That the mother agrees that this is so is implicit in the consent orders that provide for weekend and longer periods of school holiday contact. The father is entitled to establish standards in his home and as an exercise of his parental authority require reasonable co-operation from his daughters with objectively unremarkable behavioural guidelines. Counsel for the mother submitted, in effect, that all children have mobile telephones and restricting these children’s use of the phones flies in the face of current societal norms. I do not accept that this accurately reflects the current social order. If I am wrong, it is not apposite to the matter under consideration. The mother has placed bars on the mobile phone and it is clear that its primary use is to enable the children to be in contact with her. To the extent that it is necessary for them to do so, it is appropriate that whilst in their father’s home, they use a landline.
The presence of the mobile phone during contact has the potential to disrupt contact and as has already occurred, the absence of the mobile phone during or after contact, only leads to further parental disputation. It is in the interests of the children that is avoided and they ought not to attend contact provided with the mobile phone. I accept the submission made on behalf of Mr T-E, that the provision of the phone has created an opportunity for deceptive behaviour by the children, a most unfortunate outcome.
An issue for determination concerns Christmas contact while the children are with the mother. They will always be with her for the first half of the school holidays. She plans extensive overseas travel and it is agreed that if the children are overseas Christmas day contact cannot occur. This was a concession grudgingly given by the father. Any other outcome would be farcical. However if the children are close to home, there does not seem any reason connected with the children's best interests why they couldn't enjoy this special family time with both parents. Reasonable travel would be contained within Port Macquarie to the north, about 5 hours away, Bathurst to the west, about three hours and Nowra to the south, also about 4-5 hours. The opportunity for this style of contact will be limited and should be provided if available. The mother will need to give the father advance notice that the children will be available, so that all can plan their Christmas celebrations. These arrangements do not restrict the mother's holiday plans; they merely accommodate the father and children enjoying a special time when feasible.
The next issue that requires particular consideration is the children’s surname. The father seeks an order pursuant to s 68B of the Act that would prevent the mother from using or permitting the use of any surname for the children other than “E”. The court may make an order granting an injunction as it considers appropriate for the welfare of the child.
The nature of orders relating to a child’s surname was considered recently by the Full Court of the Family Court in Flanagan and Handcock [2000] FamCA 150. Although a grant of special leave to appeal to the High Court was given, the grant was subsequently revoked. Hence the relevant authority is the Full Court’s decision in that case. It is apparent from the Full Court decision, that whichever way one analyses a change of name issue, that is, by reference to a s 68B injunction or a s 65D parenting order, then either directly or indirectly the paramountcy principle is applicable, if not by direct application then at least indirectly. Both parties conceded through their representatives, that the best interests of the child are the guiding principle for determination of the name issue. Both addressed a third alternative, a hyphenated surname. Whilst the mother prefers an outcome that would enable her to continue to make extensive use of “D”, she conceded that “E-D” would cause minimal disruption to the children and any relevant authorities.
There are numerous decisions that pre-date the 1995 amendments relating to children's surnames. Fooks v McCarthy (1994) FLC 92-450 contains in my view useful guide for determination of this issue. In that case His Honour Justice Warnick said:
“There is only one principle, that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.”
The factors to which the earlier courts most frequently have regard in determining whether there should be any change in the surname of a child or of course for the surname to revert back to that which was previously used include:
a.the short and long term effects of any change in the child's surname;
b.any embarrassment likely to be experienced by the child if its name is different from the parent with custody or care and control;
c.any confusion of identity which may arise for the child is his or her name is changed or is 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 relationship;
e.the effect of frequent or random changes of name;
f.the contact that the husband has had and is likely to have in the future with the children;
g.the degree of identification that the children now have with their father;
h.the degree of identification which the children have now with their mother.
At the outset, it is important to understand that the father has abandoned the use of “E” as his name. Upon his marriage, he adopted the name “T-E” and has, as each opportunity arose, completed such documentation as is necessary to give effect to his decision to change his surname. He is still identified by the Roads & Transport Authority on his driver’s licence as “E”. That is because he has a five-year licence and the opportunity to change the name has not yet arisen. I am satisfied that he has for all intents and purposes abandoned “E” and that the only vestiges of “E” are in formal documentation used in this Court and his driver’s licence. The composite surname reflects the changing nature of his family unit, incorporating his wife's name.
The mother’s evidence in relation to the children’s surname was in many respects unsatisfactory. Without reference to the father, she enrolled the children this year using the surname “D”. This is her name and she says, reflects the children’s desire. It undoubtedly reflects hers. It seems probable that the mother has engaged, with the active co-operation of the children, in an exercise in subterfuge to change by common usage the children’s surname. She has continued to use “E” in many court documents, including an application for an Apprehended Violence Order, and on the children’s passports. The children have been able to use the hyphenated surname professionally and at previous schools. Not surprisingly, the issue is a contentious one and one in which the adults demonstrate their own possessory approach to the children’s surnames and disclose little appreciation of the children’s position.
For his part, the father concedes no inconsistency between his change of name and requiring the children to retain exclusively a name he has voluntarily altered. For her part, the mother gave no indication that she appreciated the conflict caused by facilitating the change in surname to “E-D” and then “D” by the children without the father’s consent. She anticipated correctly that the father would oppose any such alteration to the children’s surname. That she nonetheless proceeded reflects extremely poorly on her attitude to the responsibilities of parenting and to the father’s role in the children’s lives.
I have already made findings concerning these parties’ antipathy towards each other and their ready redress to litigation. Such is the level of disputation, that in earlier proceedings the children were separately represented. C has made her own enquires via the internet about how she can effect a change in her surname. She has either initiated or willingly accommodated an increasing use of “D”, and commensurate reduction in “E” whilst continuing to use “E-D” professionally. I am satisfied that she does wish to effect a change in her surname and that given her maturity and intelligence these wishes must be given considerable weight. S is younger and her wishes are probably impacted upon by her elder sister’s desire to change her name, as well as her mother’s desire. Whilst her wishes have less weight than C’s, they must nonetheless be accorded proper recognition.
These children are in a very difficult position, caught between two warring parents. That the battle is well and truly engaged was reflected in the nature of orders sought, the frequency and nature of proceedings since separation, and the manner in which these proceedings were conducted. The parties were openly hostile to each other when giving their evidence and there is little prospect that their attitudes towards each other will ever improve. Thus, these children must negotiate their remaining childhood years in a climate of continuing hostility between their parents. Their professional names are extensively the composite hyphenated surname. These children’s professional music lives may well be successful and assume increasing importance as they design their careers. Maintaining their stage name consistently could maximise their opportunity to build on successes already achieved.
The issue of the children’s surname has been a difficult one. However, I am satisfied on balance, that it is in the best interests of the children to extend the use of the hyphenated surname, rather than make the injunction sought by the father or do nothing as promoted by the mother. The course of action proposed by both parents is likely to lead to further litigation. That is because the children may well not co-operate and then conspire with the mother to have her breach the injunctive orders, limiting their surname to “E”. Refusing the father’s application without otherwise addressing the children’s surname, will result in the mother and children continuing to reduce the usage of “E” and increase the usage of “D”. This will promote conflict between the children and their father and may lead to further litigation.
“E-D” maintains a neutral ground for these children between their parents. If used exclusively, as I will order, the name reflects the children’s biological identity and their social connections. Thus the name will acknowledge their mother and their father, a position which the children will in all likelihood find comfortable and which will not involve embarrassment when given effect to. The children have a good relationship with their father. Changing their surname will not affect it. They will know he is disappointed but he and they are able to deal with that. The composite surname by order will stop the differing use of names and the confusion that comes with this.
There is no good reason to change the children’s passport, now or during their period of minority. As a common rule the passport identifies a person by their birth registration. These children can understand this and I am satisfied manage the differences without undue difficulty. If it becomes an issue for the children, it can be addressed when they reach their majority. It is, in the best interests of the children, that the father’s application in this regard is dismissed and an order made that requires both parties to do everything to give effect to the children being known as “E-D”. The order will require that the parties do everything necessary to not only cause the children to be registered with all relevant places that record the children’s details by using the hyphenated surname, but also that the children in fact use only the entire composite surname. Thus the father’s concerns about the risk that “E” would be dropped by common usage will be addressed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 27 June 2001
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