Y & H
[2005] FMCAfam 229
•18 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| Y & H | [2005] FMCAfam 229 |
| FAMILY LAW – CHILD’S SURNAME – Whether it should remain as birth name (mother’s surname) or be hyphenated to include father’s surname – best interests of child – BAPTISM – Father is a practising Anglican, mother is atheist – whether child should be baptised now or when the child is older – PUBLICATION – Whether mother should be restrained from publishing information about court proceedings on her “blog” site. |
| Family Law Act 1975, ss.68B; 68F(2); 121(1) |
| Fooks v McCarthy (1994) FLC 92-450 Mahoney v McKenzie (1993) FLC 02-408 Chapman and Palmer (1978) 4 FAMLR 462; FLC 90-150 Beach & Stemmler (1979) FLC 962 Flanagan & Hancock (2001) FLC 93-074 |
| Applicant: | G E Y |
| Respondent: | G H |
| File Number: | BRM 8873 of 2004 |
| Judgment of: | Baumann FM |
| Hearing date: | 22 March 2005 |
| Date of Last Submission: | 10 March 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 18 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Slack |
| Solicitors for the Applicant: | Gallagher Jones |
| Respondent appearing on her own behalf. |
ORDERS
The father’s application for a change of surname for the child H is dismissed.
The father be permitted to have the child baptised in the Anglican faith.
That the mother be restrained and an injunction be granted restraining the mother from publishing:
(a)Any comment or information about any Court proceedings involving the child H; and
(b)Any comments denigrating the father or treating the father with disrespect.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 8873 of 2004
| G E Y |
Applicant
And
| G H |
Respondent
REASONS FOR JUDGMENT
H, aged 15 months, is the only child of a brief liaison between the Applicant father G Y and the Respondent mother G H. The parents never cohabitated. It is fair to observe they know very little about the other parent.
The parents were able to agree on contact arrangements. The mother, who is the unchallenged primary carer for the child lives in F whilst the father resides in Brisbane. This geographical obstacle coupled with a desire for frequent contact shaped the final contact orders made by me on 20 January 2005, which provide that the child have contact to the father through a graduated monthly regime in F until the child turns 3, after which overnight contact and then eventually holiday contact is agreed to occur. Weekly telephone contact is to occur, again after the child turns 3.
The parents were unable to agree on two matters, which expanded to three matters at the hearing on 22 March 2005. The father seeks orders, which are opposed by the mother, that:
“1.That the child H T H, born in 2004, be known as H T H-Y and that an injunction be granted restraining the use of any other name for the child;
2.That he have permission to baptise the child;
3.That the mother be restrained and an injunction be granted restraining the mother from publishing:
(a)Any comments or information about any Court proceedings involving the child H;
(b)Any comments denigrating the father or treating the father with disrespect.”
Surname
Arising from decisions such as Chapman and Palmer (1978)
4 FAMLR 462; FLC 90-150; Beach & Stemmler (1979) FLC 962 and Flanagan & Hancock (2001) FLC 93-074, the principles and factors to which a court should have regard in determining whether to change a child’s surname includes:
a)The welfare of the child is the paramount consideration.
b)The short and long term effects of any change of name and any advantage which might accrue to the child if the name is changed or not.
c)Any embarrassment likely to be suffered by the child if the child’s name is different from that of the parent with whom the child primarily resides.
d)Any confusion of identity which may arise for the child if his or her name is changed or not changed.
e)The effect which any change of surname may have on the relationship between the child and the parent whose name the child bears.
f)The effect of frequent or random changes of name.
g)The contact with the other parent has had or is likely to have in the future.
h)The degree of identification that the child now has with the father.
i)The desire of the father that the original name be restored, if applicable.
The child’s birth in New South Wales was registered under the mother’s surname of H. The birth certificate records the father’s particulars and he is identified as an “informant”, signing the papers at the hospital shortly after the child’s birth. The father sought DNA testing which was completed in May 2004 – confirming the Applicant as the biological father.
Although the email exchanges between the parties before the birth of H showed a distinct inability to communicate respectfully, after the birth, the mother also used an internet “blog” site to make comments about the father and her views of his future role with the child.
In the months after H’s birth (and particularly after DNA results were known), the father agitated for a change in the surname to be used by the child – seeking the use of a hyphenated name of H-Y. The mother’s email of 3 August 2003, before the child’s birth, states in part that:
“We better get this straight. Your involvement will be no more or less than any male who gets a complete stranger pregnant”.
Against that historical comment must be seen the facilitation of some contact before orders were made and the nature of the consent orders.
At this point I should observe that I have not had the opportunity to observe the mother give evidence. At the trial she appeared and was cross-examined by telephone. However it is clear that she is intelligent, articulate and holds strong views which she expresses in a forthright manner. H is her only child, and she is very protective of him. She sees the father as an unwelcome intrusion into her family life but is sufficiently aware that the father’s persistence in seeking contact and involvement in H’s life will be supported by the law – there being no evidence that the father presents a risk to the child or that otherwise contact is not in H’s best interests.
The father, some 14 years senior to the mother, has three children from his prior marriage, with whom he says he has a strong and loving bond. He sees those children regularly and says it is important to him that all his children have a relationship. He said at paragraph 52 of his affidavit that:
“…It is my experience that there are still many different attitudes towards children who are the children of single parents and it is my belief that a hyphenated surname gives a message to the world at large, that this child is loved and acknowledged as a child of both parents, not just a child of one or the other.”
In my view, this statement by the father reflects that the surname issue is more about his needs than a focus on the child’s best interests. Although the use of hyphenated surnames is becoming more frequent, it seems that they mostly arrive post separation of the parents. It is often seen as a compromise – which of itself involves discussions of which surname is just; is one surname to be used as an additional given or Christian name. Comment has already been made by the Courts of the effect of parents, each with a hyphenated surname, having children and the undesirability of these elongated four-part surnames which might evolve. I am aware of the decisions (particularly of Warnick J in Fooks v McCarthy (1994) FLC 92-450 and Mahoney v McKenzie (1993) FLC 02-408), however each case must be dealt with on its own merit with the child’s interests the paramount consideration.
H is likely, on the evidence before the Court, to live almost exclusively in the mother’s care. She has no other children. She says during an October 2003 dinner the father says he could “live with” the child using the surname H. The father denies such an admission and I am unable to say such a conversation took place.
I do not accept that having a hyphenated name gives a message to the world at large that the child is loved by both parents, any more than if a child uses a surname of the father (as is traditional with married couples) that it suggests the mother’s love is less.
H will, provided the contact continues as ordered, develop a sense of identity with his father and his siblings from the father’s previous relationship. He does not need to carry a “hyphenated name” to know his father loves him and who his father is. That arises from the level of commitment the father gives to his son during his life. There are no other apparent “father figures” in the child’s life at this time. It could be inferred that the mother is certainly young enough to bear more children, however there is no evidence as to what surname she would choose for those children (if any).
The child is unlikely to suffer any long term confusion about who is his father. The mother as the principal carer clearly would be unhappy to use a hyphenated name (which only is likely to raise questions in time about the manner of conception) and the need to continually explain those events does not add positively to the mother’s day to day care of H.
Clearly if the Court was to change the name, it should happen when the child is young. The child’s age means he is unlikely to identify with any particular surname at the moment.
I have come to the conclusion that it is not in the child’s best interests to require this child to use a hyphenated name as proposed by the father. That part of the father’s application shall be dismissed.
Baptism
The father seeks an order that he be permitted to have the child baptised in the Anglican faith. I am satisfied that the father is a practising Christian and that he holds a strong and genuine belief that his bond with H will be advanced by him being baptised. It is, in my view, considering the distance between where the parties live and the consequent lack of frequency of contact, that significant events which encourage or cement the bond between the father and H occur. Although baptism of the child can occur at any age, it is traditional for it to occur when the child is an infant. The father says it does not ensure the child adopts a Christian faith – that, as he acknowledges, can only occur when the child is older and more capable of considering all the options.
The mother is opposed to what she has described as a “branding” of the child as a Christian. This position is shaped by her statements in her Affidavit that:
“38. I identify as “No Religion”. I consider myself a committed atheist. I feel strongly that my belief system is equally as important as the belief system of the Applicant Father.
39. The Applicant Father has said to me words to the effect that ‘the child is a Christian because I am a Christian’. I said words to the effect, ‘No, the child is half Christian and half atheist.’
40. I do not intend to impose my own choice of religion (ie. none) on the child. I will be exposing the child to all religions so that when he is old enough, he can choose what he wishes to believe in.”
The fallacy with that argument is that it is unlikely the mother, as the primary career, will have the interest or motivation to “expose” the child to Christian beliefs. I am satisfied that will be left to the father.
The father will, quite frankly, have a limited opportunity to do so. The mother’s belief system will predominate in the child’s life because she is the primary carer. The father must accept that as H gets older he may choose not to adopt, or may even totally reject, the Christian beliefs the father holds to. This is by no means an unusual phenomenon. Teenagers often challenge the beliefs and principles which their parents (even in intact relationships) hold strongly.
The issue for me is whether a Christian baptism which at least on the father’s case, opens up an option for the child, should take place now or at some future date. I see it as consistent with the child’s best interests (and particularly his relationship with his father), that it occur as an infant. I intend to so order.
Publication of material on a BLOG site
It is, in my experience, common for parties in family disputes to feel the need to share their feelings and thoughts with others. They seek emotional support and comfort. Usually such comfort is sought from persons who are family or close friends, but often, more therapeutically it involves discussions with objective and trained analysts.
The internet has allowed those who are more technologically savvy, to expand their audience to the general public. Whilst it seems most people prefer to keep their private issues private, some do not.
The mother in this case is a person who has chosen to use the internet as a forum for debate and comment about her life and experiences. This is achieved through the use of a “blog” site. She describes herself as a “blogger”. “Blog” is a contraction on the term “weblog” – a sort of internet accessible private diary.
The mother has apparently achieved some notoriety with her personal “blog”, winning a Statewide award for it and being the subject of numerous “hits”, clearly from fellow travellers or internet surfers.
What, in my view, she has sought to do, before the commencement of these proceedings could not be regarded as a breach of s.121 of the Family Law Act 1975, which relevantly provides that a person commits an offence (punishable by a term of imprisonment) if that person publishes “by other electronic means, or otherwise disseminates to the public or a section of the public” any account of any proceedings under the Family Law Act 1975 that identifies as a party to the proceedings, or a person who is related to or associated with a party to these proceedings. This clearly includes a child.
Section 121(3) of the Act sets out how a person “shall be taken” to be identified if certain particulars are contained in the publication.
It is common ground that the mother did, on her “blog” site talk about these proceedings. She claims to have made “anonymously and factually correct” comments about the father on her “blog”. The father himself is a “blogger” who publishes political and social commentary which does not fit into his internet publications, including e-journal “Online Opinion”.
The father says the mother has made comments about him even since Court proceedings began. The mother uses her Christian name freely on the “blog” and has photos of herself and of H. The father claims that “from comments posted on my blog many of her readers know who I am”. He also complains that “as a result of the enduring nature of a blog post, if at some time in the future people who do not currently know our identities discover them, the information will still be available for them to read.”
I am not required in these proceedings to determine whether the mother has committed an offence under s.121(1) of the Act. What I am asked to order is that the mother be restrained from publicising comments about Court proceedings involving H or comments which denigrate H’s father.
In the circumstances of this case, the undisputed history of comments being posted on the mother’s “blog” and the mother’s concession that it would not be “helpful” to place derogatory comments about the father on the “blog”, I believe it is in the child’s best interests that I make the order sought by the father.
In doing so, I am using the injunctive power under section 68B of the Act, as I consider the order as appropriate “for the welfare of the child”.
I make the orders which appear at the commencement of these reasons.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Baumann FM
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