Tinley & Colton

Case [2020] FamCA 1015

FAMILY COURT OF AUSTRALIA

Tinley & Colton [2020] FamCA 1015

File number(s): SYC 7584 of 2018
Judgment of: WATTS J
Date of judgment: 2 December 2020
Catchwords: FAMILY LAW – CHILDREN – CHANGE OF CHILD’S SURNAME – Where the child’s surname is the same as the mother’s and has been since birth – Application by the father to change the child’s surname to a hyphenated name – Where it is not in the best interests of the child to change the child’s surname – Application dismissed.
Legislation: Family Law Act 1975 (Cth) s 60CC
Cases cited:

Beach and Semmler (1979) FLC 90-692

Chapman and Palmer (1978) FLC 90-510

Reynolds & Sherman (2015) FLC 93-659

Number of paragraphs: 45
Date of hearing: 16 – 18 November 2020
Place: Sydney
For the Applicant: The applicant appeared in person
Counsel for the Respondent: Ms Otrebski
Solicitor for the Respondent: Buttar Caldwell & Co Solicitors
Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors

ORDERS

SYC 7584 of 2018
BETWEEN:

MR TINLEY

Applicant
AND:

MS COLTON

Respondent

HOLMES DONNELLY

Independent Children’s Lawyer

ORDER MADE BY:

WATTS J

DATE OF ORDER:

2 DECEMBER 2020

THE COURT ORDERS THAT:

1.The father’s application filed 27 November 2018 for a change of B Colton’s surname, be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

WATTS J

INTRODUCTION

  1. B Colton (“the child”) is 8 years old and is recovering from treatment for cancer. Her parents lived together for only about one month during the pregnancy.

  2. Over three days, there was a final hearing in relation to a suite of differing applications for parenting orders that were sought by the applicant father; respondent mother; and the Independent Children’s Lawyer (“ICL”).

  3. The parties were able to eventually agree on what parenting orders should be made, except for one. The child’s surname remained controversial. The father proposes an immediate order that the child’s surname be changed from “Colton” to “Tinley-Colton”.

  4. Cyclically there have been patches of time in the child’s life when she has seen her father punctuated by periods when she has not. There has mostly been high conflict between the parents around what time the child should spend with her father.

  5. The Court was assisted by a comprehensive report from Ms C, a Regulation 7 Family Consultant (“the family consultant”) and the oral evidence that she gave at two points during the hearing.

  6. The family consultant’s central message was that both the child and the mother…

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AGLC
Tinley & Colton [2020] FamCA 1015
Case
[2020] FamCA 1015
Decision Date

CaseChat Overview and Summary

In the matter of *Tinley & Colton*, Mr Tinley (the applicant father) sought to change the surname of the child, B Colton, to a hyphenated surname, Tinley-Colton. Ms Colton (the respondent mother) opposed the application. The Independent Children’s Lawyer also supported the mother’s position. The proceedings were heard by Watts J in the Family Court of Australia.

The primary legal issue before the court was whether it was in the best interests of the child to change her surname from Colton to Tinley-Colton. This required the court to consider the child's current circumstances, her relationship with both parents, and the potential impact of a surname change on her identity and well-being. The court also had to weigh the father's desire for the child to acknowledge his surname against the mother's position and the recommendations of the family consultant.

Watts J dismissed the father's application, finding that it was not in the child's best interests to change her surname at that time. The court noted that the child had lived with the surname Colton since birth and that the father had delayed making the application until the child was six and a half years old. Crucially, the court considered the recent final parenting orders, which mandated a 22-month period where the child would have no contact with the father, followed by supervised recognition time. The court reasoned that the success of these orders in re-establishing a meaningful relationship between the child and father was uncertain. Imposing a hyphenated surname during this period of uncertainty could send a conflicting message to the child and undermine the goal of providing her with a period of rest and reduced family stressors. The court indicated that the father might wish to renew his application in the future if a strong relationship with the child was re-established, but acknowledged that by then the child would likely be in early adolescence and have a strong identification with her current surname.

Orders

Orders of the court

SYC 7584 of 2018

BETWEEN:

MR TINLEY

Applicant

AND:

MS COLTON

Respondent

HOLMES DONNELLY

Independent Children’s Lawyer

ORDER MADE BY:

WATTS J

DATE OF ORDER:

2 DECEMBER 2020

THE COURT ORDERS THAT:

1. The father’s application filed 27 November 2018 for a change of B Colton’s surname, be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

With the assistance of the ICL and the guidance given in oral evidence by the family consultant, all matters were able to be resolved apart from one. Final orders were made as follows:1.That all previous parenting orders be and are discharged.2.That the Mother have sole parental responsibility for B Colton born … 2012.3.That B live with her Mother.4.That B spend no time with her Father until the commencement of the third school term in 2022. 5.That thereafter B spend time with her Father as may be agreed in writing between her parents and, absent such agreement, for one two-hour period each three months under the supervision of an independent professional supervision agency, being D Group or that organisation’s nominee at the equal cost of the parents. The mother shall be responsible for making arrangements with the supervisor.6.That the Father be permitted to send B a birthday card and/or gift on her birthday and a Christmas card and/or gift at Christmas time. 7.That B’s primary school education be at Suburb E Public School, Suburb E.8.That the Father be and is hereby restrained by injunction from approaching B’s school and medical appointments, the Mother and child’s residence and the Mother’s place of work but nothing shall prohibit the Father from arranging and having a parent-teacher interview with B’s teacher by telephone or other electronic medium if available.9.The parents each be authorised to receive all correspondence about B’s medical matters and from B’s school such as school reports, school photos and activity notices. 10.That the Mother take all reasonable steps to notify the Father within 24 hours of any medical emergency, serious illness or injury that B suffers. 11.That each parent be permitted to produce a copy of the report of Ms C in these proceedings to any of B’s and/or each of the parents treating health practitioners including psychologists. 12.That the parents are each restrained from making any comments about or alluding to the other parent or the child or the outcome of these proceedings on any public forum including the internet and including any social media platform.THE BACKGROUND OF CONFLICT BETWEEN THE PARENTS The mother asserted the father had been involved in coercive and controlling family violence, and there was significant evidence to support that contention. There was no allegation of actual physical violence. During the trial, evidence was given of some totally inappropriate behaviour, mainly by the father, in circumstances where it was clearly very distressing for the child. One such incident occurred in October 2018, while the child was receiving chemotherapy at hospital, a social work progress note prepared by Ms F (a social worker at the G Hospital at Suburb H) noted the following:Called to the ward urgently by nursing staff due to parental distress. Mum and dad both present in the room when social work arrived. [The child] was lying in bed with the blanket over her head crying. [The mother] said that when [the father] arrived to see [the child] he started saying ‘cruel and inappropriate’ things to her in front of [the child]. [The mother] said she requested nursing and social work assistance as she feels both parents should leave the room to allow [the child] to calm down and that [the father] was refusing. Social work proposed nursing staff sit with [the child] while both parents meet as planned to discuss care arrangements for the weekend. [The father] commented that he wanted to discuss “psychiatric services for the mother’s obvious mental health issues”.

Evidence

Evidence Before The Court

The other piece of evidence that the father relies upon is a document which contains 12 school photographs of children from Suburb E Public School, one of them is the child. Another image in the photograph is of Z. Z is a friend and classmate of the child and is the daughter of a witness in the mother’s case. The point the father wished to make is that that child has a hyphenated name.EVIDENCE OF THE FAMILY CONSULTANT The mother sought to rely upon the oral evidence of the family consultant. In response to questions asked by the ICL, the family consultant, having been confronted with this question for the first time, said that her initial reaction was that a change of the child’s surname would “not be so great”. She said that if it was to be done it should be left until the child was a bit older and the period where both the mother and the child were to be given a rest was behind them. She said it was not appropriate to introduce this topic, which had the potential of generating a lot of tension, in circumstances where she said that it might otherwise at a later time be perfectly okay. In answer to questions from counsel for the mother, the family consultant conceded that this topic had thrown her a bit but she confirmed her view that she would not recommend a change of the child’s surname at this time. This was in circumstances where she said that this topic was not in the upper levels of the hierarchy of the child’s needs and it is something that should be taken off the table right now as the child needed to experience less family stressors and this should be the least of her worries. That evidence was given in the context of there still being outstanding at that time the major issues in relation to parental responsibility and the time the child would spend, if any, and what circumstances, with her father. SUBMISSIONS The submissions from the ICL were that:·There may well be emails that have been exchanged in the past between the parties but the evidence from the family consultant is that a change of the child’s surname is really not necessary right now. ·The family consultant noted that it does not mean that the name will never change but given the father required a determination now, she did not see the merit in doing that at this time. ·The family consultant is aware of the child’s journey and in her words, in terms of a hierarchy of the child’s needs, does not put a change of the child’s surname in the hierarchy as warranting attention. The ICL therefore, supports the mother’s position that the application should be dismissed. The mother’s submissions were that:·The evidence that the father relies upon happened in 2013 and there is a very different landscape today. ·The change of name is not supported by the family consultant. ·A change of name is too optimistic where the final orders made are protective of the child for a 22 month period so that there is no time with the father and by that time the child shall be 10 years of age. ·There is no evidence of the child’s views who is 8. ·The child currently has a strained and distressing relationship with the father and the addition of the name Tinley would send a conflicting message to a child who has been told she does not have to spend time with the father for two years. ·The recognition time is hopeful and optimistic but it is full of unknowns and uncertainty and it would be wrong to assume it will lead to a resumption of the relationship between the child and the father. To take such a significant step, relevant to the child’s identity, given the uncertainty, would be wrong. ·The mother and the child both need to be given a significant period of rest for the mother’s anxiety to abate and enforcing the name Tinley undermines that goal.

Decision

Reasons for decision

The father’s submissions were that:·When the child was born he was devastated that the mother lodged the birth certificate without his name on it, although that has now been amended to register the applicant as the child’s father but still does not include his name in the child’s name. ·It is important that the child knows she has a father and having a hyphenated surname will remind her of that and provide framework for identity recognition. ·The welfare of the child will benefit from knowing both identities of both parents. ·Whilst the family consultant is concerned about the change of name, looking at the longer term, an identity framework needs to be created. ·The long-term advantages of a name change will outweigh any disadvantages that the child feels now and any distress she has. ·The embarrassment of a change of name is not an issue and one of her friends has a hyphenated name. ·There will be no confusion because both family names will be there, half mum and half dad. ·It is acknowledged that the mother might feel uncomfortable with a hyphenated name. CONCLUSION I find that it is in the child’s best interest to retain her current surname. Whilst the father, shortly after the child was born, raised the issue of the child’s surname with the mother, the mother had made it very clear to him what her intention was. He did not make any court application about it at that time. He agreed to a birth certificate being issued in 2013 with Colton as the surname. It wasn’t until the child was six and a half years of age that he made the current application to the court. I accept the submissions by counsel for the mother about the reasons why final parenting orders have been made that the child not see her father for a period of about 22 months and after that time there will be the institution of supervised recognition time visits. The purposes of making that provision is so that a platform might be created for the child to reinstitute some type of relationship with her father. Whether or not the orders for recognition time create that platform is not able to be known at this time. It is consequently possible that orders for recognition contact will not create a circumstance where the child is comfortable in resuming a relationship with her father. In those circumstances it would not be in the child’s best interests to change the child’s surname to Tinley-Colton, at this time. It might well be that if a relationship is re-established and that relationship develops into a meaningful one, then the father might wish in those circumstances to renew his application based on those significantly changed circumstances. It goes without saying that if that happens in a number of years’ time then the child will be in her early adolescence and will have had Colton as her surname the whole of her life. Absent agreement, I acknowledge that may create an insurmountable barrier to the success of any such application by the father in the future.

Ratio Decidendi

Legal Principle Established

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