Tinley & Colton
[2020] FamCA 1015
•2 December 2020
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
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.
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”).
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”.
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.
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.
The family consultant’s central message was that both the child and the mother needed a break from the conflict with the father.
The family consultant notes that any benefits the child may have from having a relationship with both parents must be weighed against the “risk to her of engaging with her father who she evidently does not trust” (Family Report dated 16 October 2020, paragraph 117).
The family consultant recognises that the child has faced significant challenges particularly with regard to her health and that in the hierarchy of the child’s needs a “reduction in her levels of stress and the maintenance of her relationship with [the mother]” are at the top of that hierarchy (Family Report dated 16 October 2020, paragraph 118).
The family consultant did not address the issue of name change in her written report as it wasn’t highlighted by either of the parties during interviews nor was there any significant focus on the issue of the child’s surname during the hearing.
The family consultant recommended that there be no time ordered for a significant period and that thereafter there only be recognition visits by the father to the child in a hope to lay a platform for a reestablishment of the child’s relationship with her father when she is older. Most recently, the child has been entirely resistant to spending time with her father.
THE OUTCOME OF THE PARENTING HEARING
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”.
Only a short time later in the same month (October, 2018) there was another significant event at the hospital which caused the child distress. On this particular day the mother and the child arrived at the hospital at 9.30am for the child to receive chemotherapy. At about 10.30 am, as the mother was leaving the hospital with the child in a wheelchair, they were approached by the father, who was on crutches at the time. The mother told the father they should not be speaking to one another and she increased her speed. The father hurried on his crutches to get beside them and prevented them from moving by placing one of his crutches in front of the child’s wheelchair. The father admitted during his cross-examination, in response to a question I had asked, that he was travelling fast in order to position himself in front of the mother and child. He also admitted in his oral evidence that his actions caused the wheelchair to tip slightly and the child screamed before the mother was able to steady the wheelchair. During this incident the father told the child that the mother may go to gaol and that the mother is a nut job. What is even more concerning is that the father said that his actions were appropriate with the knowledge he had at the time. The father takes little, if any, responsibility for this incident at the hospital and states that the mother could have deescalated the situation by answering his questions about the child.
Several weeks later in November 2018 there was a further incident at the hospital in which the father approached the mother and the child and sat next to them trying to start a conversation. The mother had to wheel the child to the security office to seek assistance. The father then yelled, in front of the child, that the mother belonged in a mental home.
These incidents are not isolated and I had before me many examples of this constant emotional abuse in written communication between the parties as well as posts that were published on the father’s Facebook profile. Before me there are several examples of communications between the parties which are tainted with extreme hostility. The father in particular, antagonises the mother usually by referring to the mother’s mental health in a derogatory way, in circumstances where the mother has no mental health diagnoses. In this communication the father refers to the mother as a “sociopath”, and told her to get “help for her mental health condition”. This type of emotional abuse has occurred for most of the child’s life and were as recent as several months’ prior to the hearing.
CHILD’S SURNAME
As indicated, the one outstanding issue was the father’s application that he filed on 27 November 2018 seeking that the child’s surname be changed from “Colton” to “Tinley-Colton”. The actual formal order that the father sought was as follows:
34.For all purposes the child B COLTON born … 2012 be known henceforth as B TINLEY-COLTON.
The applicant is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child B COLTON born … 2012 to B TINLEY-COLTON, AND IT IS REQUESTED THAT the Registrar of Births, Deaths and Marriages for the State of New Sought Wales, upon the Application of the applicant referred to herein, give effect to this Order by doing all acts and things necessary to register the change of name of B COLTON born … 2012 to B TINLEY-COLTON pursuant to Section 28 of the Births Deaths and Marriages Registration act (1995) NSW notwithstanding that the consent of the respondent has not been obtained.
The Parents are to take all reasonable measures to ensure that B be known by the family name: TINLEY-COLTON.
(As per original)
The father initially in Exhibit 8 (the father’s amended proposed minute of order) had sought that the change of surname to Tinley-Colton be delayed until 2022. This was to take into account the evidence of the family consultant about the current need to reduce the level of stress. However, the father subsequently chose to recast his application in the terms of his November 2018 application and asked for an order that that change be immediate.
The mother resisted the father’s application and sought that it be dismissed.
The ICL supported the mother’s position.
LEGAL PRINCIPLES
In Chapman and Palmer (1978) FLC 90-510, the Full Court emphasised that an application in relation to change of name is something to be considered on the facts of an individual case with the best interests of a child being the paramount consideration. The Full Court in that case articulated that some relevant considerations might be:
·The short and long term effects of any change of the child’s name;
·Any embarrassment likely to be experienced by the child if its name is different from that of the person with whom the child normally lives;
·Any confusion of identity which may arise from the child if his or her name is changed or is not changed;
·The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore at the time of the application; and
·The effect of frequency or random changes of name.
In addition, subsequent cases have suggested that other relevant factors might be:
·Time that the parent who is agitating the change of name has had or is likely to have with the child in the future;
·The degree of identification that the child now has with the parent agitating the change of name;
·The degree of identification which the child now has with both the parties; and
·The desire of the parent who seeks the name change.
(see Beach and Semmler (1979) FLC 90-692)
Fundamentally though, as indicated, an order has to be made which takes into account, as the paramount consideration, the best interests of the child and consequently requires a consideration of all relevant s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) considerations.
The father in submissions, relied on a case of Reynolds & Sherman (2015) FLC 93-659 as being a case which he thought had some factual similarity to the current case. In that case, the mother wanted the child to bear her surname where the father wanted a hyphenated surname. After two trips to the Full Court, the father was successful.
Similar to this case, in Reynolds and Sherman the parties had the briefest of relationships and no cohabitation to speak of (they in fact never lived together). However, that case commenced when the child was 14 months old and the parents consented to equal shared parental responsibility and for the child to spend regular time with the father. In contrast, in the present case, the child is 8 years old and an order has been made for the mother to have sole parental responsibility and for the child to only have supervised recognition time every three months from the third school term in 2022. Whilst there are some similarities, when read as a whole, the factual constellation of relevant considerations in this case is discernibly different to those in Reynolds and Sherman.
BACKGROUND FACTS
The father relied upon the following facts:
·On 24 January 2012 whilst she was pregnant, the mother claimed that there was some doubts about the child’s paternity, saying in an email, “seeing the way I feel about the current situation, I will also be requesting a DNA test prior to u seeing bubs”.
·The child was born in mid-2012.
·On 10 July 2012 a DNA paternity test was done.
·On 16 July 2012 the mother lodged the child’s birth certificate without the father’s name on it. The father makes the point that this was done by the mother despite knowing the DNA test results which were pending.
·On 18 July 2012 paternity tests confirmed that the child was the father’s. In an email sent on this day, the father raised the subject of “B’s origins” saying that in his view the child needed to have a name that reflected both her parents and h his first suggestion being that she have as her third and fourth names, “Tinley” and “Colton”, without a hyphen.
·There were further exchanges of emails during 24 July 2012 where the mother asserted after setting out reasons, “Her name will be B Colton. End of story”. The father responded by suggesting that the child needed to understand that she has a mother and a father which is best done with: B Tinley.
·On 26 July 2012 the mother wrote to the father acknowledging that he was not being unreasonable to want his name “in the mix” but she however referred to what she said she considered to be the “bigger picture” and gave her reasons as to why she thought the child should have her surname. The father responded on the same day setting out why he thought it was important that the child have his name “Tinley” notwithstanding the fact that that was not always his name (for the first nine years of his life he had a different name and Tinley was the name of his adopting father).
·On 26 March 2013 the father was able to secure a change in the birth certificate with the consent of the mother so that he was noted on the birth certificate as B’s father, however, B’s surnamed remained “Colton” on that birth certificate.
It wasn’t until 27 November 2018 that the father made any formal application for a change of name to this Court. The child was six and a half years of age at that time.
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.
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.
Counsel for the mother makes the point that there is no evidence before the Court as to what the child’s current views are in relation to the issue of changing her surname. I infer however that had she been asked that question by the family consultant, it is highly probably that she would have rejected that suggestion given her resistance to seeing her father at all. In fact, the family consultant during the interviews for the family report took the professional decision not to require an observation of the child with her father.
As indicated already, there is significant evidence to support a finding that the mother has been exposed to a history of emotional abuse perpetrated by the father, some of it witnessed by the child. Notwithstanding that, the mother has from time to time in a cyclical pattern, used her best endeavours to re-establish the child’s time with the father which has worked satisfactorily for short periods but has then broken down.
It is important in the context of this application to take into account the relationship as it currently exists between the child and her father. It is not a relationship that currently needs to be protected by an order changing the child’s surname to include the father’s name.
The father argues that in addition to the order for supervised recognition visits which are aimed at creating a possible platform for the beginning of a development of a future relationship, he should also have the benefit of this order for the same purpose. I am unable to accept that it would be in the child’s best interests to make the order for that reason.
I accept the opinion of the family consultant that the priority at the current time is to allow the child to participate in her childhood, in her education and social activities without the pall of parental conflict which has enveloped her to date. The child simply does not need this new impost to be placed upon her in circumstances where she is having a “rest period”.
For those reasons, I dismiss the father’s application for a change in the child’s surname.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Watts. Associate:
Dated: 2 December 2020
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