Holland v Bellamy
[2023] NZHC 2046
•3 August 2023
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-502
[2023] NZHC 2046
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal pursuant to s 143 of the Act
BETWEEN
A HOLLAND
Appellant
AND
R BELLAMY
Respondent
Hearing: 17 July 2023 Appearances:
L J Barry for the Appellant
C J Nicholls for the Respondent
S I Robinson Lawyer for ChildrenJudgment:
3 August 2023
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 3 August at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HOLLAND v BELLAMY [2023] NZHC 2046 [3 August 2023]
The naming issue
[1] A mother wants to appeal a court order by which her infant twins were given names. The mother had selected and was using her preferred names for the twins. Her estranged partner sought orders renaming the twins. This was what I shall refer to as the “naming issue”. In the Family Court, the lawyer for the children suggested one compromise solution. The Judge explored with the parties another compromise. Neither parent was prepared to agree to a compromise solution. Each insisted on their preferred solution. In her judgment (the “Judgment”), Judge Montague imposed what was a compromise between the competing positions (the “Order”).1
[2] The essential question raised by this proposed appeal is whether the Order failed, on the facts and as a matter of law, to give effect to the welfare and best interests of the children.
A brief family history
[3] Ms Holland and Mr Bellamy were once a couple. They are now estranged. In this judgment the names of those two people are anonymised, and their children’s names will appear only by initials.
[4] They have twin daughters, now aged five years, whose names were the subject of a proceeding heard in the Family Court in 2021. There are also two older children of the relationship, now aged nine years and seven years respectively.
[5] Ms Holland had named the twins, born after the couple separated, N F and R J (Holland). The everyday names she used for them were N and R.
[6]Mr Bellamy sought orders changing their first names to L and S.
[7] In the course of the Family Court hearing, the Judge raised the possibility (given that neither parent attached particular significance to the middle names F and
J) that the names L and S might appear somewhere in their names. In the event, the Judge declined Mr Bellamy’s application for the twins’ names to be changed from N
1 Bellamy v Holland [2021] NZFC 7519 [the “Judgment”].
and R, but directed Mr Bellamy’s preferred names (L and S) be substituted as the twins’ middle names.2
[8] Although the Order was not expressed in terms that required the Register of Births to reflect the ordered names, it is common ground between counsel that the intention of the Order was that the twins’ names for legal purposes3 and formal purposes of record be as ordered. The Court was not making an order directing how the twins were to be addressed on a day-to-day basis.
Application for leave to appeal
[9] Ms Holland, under s 143(2) Care of Children Act 2004 (the Act), seeks leave to appeal the Order upon the grounds that:
(a)the Order has long-term implications for the welfare of the children;
(b)the impact of the Order upon the children is sufficiently significant in terms of the welfare and best interests of the children to outweigh the need for stability for the children and the inevitable cost and delay inherent in appellate review; and
(c)the Order raises seriously arguable issues of fact and law.
[10] As the application for leave was set down for hearing with the substantive appeal (should leave be granted) I have had the benefit of hearing the full substantive arguments. Given the significance of a child’s identity in relation to their welfare and best interests, I find it appropriate to grant leave.4
Protracted appeal process
[11] The appeal process has been protracted. The Judgment was delivered on 29 July 2021, dealing with issues of relocation, day-to-day care and contact, in addition to the names’ issue.
2 Judgment at [82]–[84], [125](b).
3 At [84]
4 Care of Children Act 2004, s 5(f).
[12] Ms Holland promptly filed a notice of appeal in relation to the decisions on relocation, contact and names.
[13] Counsel have explained that subsequent events, including new orders made in the Family Court in November 2021, largely overtook the subject matter of the appeal as initially filed. Since 2021 Mr Bellamy has not had contact with his children — the new orders precluded him from having contact unless supervised, an option he has refused to take up.
[14] Earlier this year the parties recognised the naming issue is the only remaining live issue. Ms Holland then filed an amended notice of appeal identifying the grounds set out at [9] above.
The Family Court hearing and the Judgment
[15] Given the narrowed subject matter of the appeal, I will here focus on the Judgment as it relates to the twins’ names.
[16] The range of issues raised by the parties pertaining to the twins’ names, the parties’ evidence and a report obtained under s 133 of the Act from a psychologist, Geraldine Keith, provided the Judge with material as to the personality and conduct of the parties, the circumstances of the children, the family dynamics and relationships. The Judge found the children were bonded and attached to their parents.5 The children were not at risk of physical, sexual or psychological violence in either of their parents’ care.6 However, the parties had shown a failure to communicate and consult effectively which had meant they had not fully engaged in their roles as parents and guardians.7
[17] Mr Bellamy brought his application on the basis he had not been consulted by Ms Holland on the names N and R and he did not like those names. He would struggle to call the twins by those names. Hence his desire that the names be changed.8
5 Judgment, above n 1, at [58].
6 At [46].
7 At [49], [73].
8 Judgment, above n 1, at [63]–[65].
[18] Ms Holland gave evidence she had consulted Mr Bellamy but that, for the first 18 months of the twins’ lives, she had not received any alternative names from him despite requests for such. Ms Holland strongly believed it would be contrary to the twins’ best interests to change their names (even their middle names) and she felt unable to compromise on the issue.9
[19] The Judge found it was unlikely Ms Holland consulted effectively with Mr Bellamy. But the Judge also found Ms Holland had given Mr Bellamy the opportunity to provide alternative names, which Mr Bellamy failed to do as a consequence of their poor communication.10
[20] The Judge also found that Mr Bellamy would continue to call the twins L and S when they were with him, regardless of the Court’s decision or the confusion that may cause them.11
[21] The Judge referred to the psychological evidence as to confusion that can be caused by the name changes and the weight of psychological evidence against name changes.12 The Judge observed:
[79] …I consider the confusion for the twins being called two different names by two different parents in two different homes, contrary to their welfare and best interests.
[80] The confusion will extend to their interactions with friends, school and other organisations they engage with. They cannot be subjected to that.
[22] The Judge finally made her observation (above at [7]) that there had not appeared to be in any particular significance attached by either party to the twins’ middle names.
[23]Those matters relating to the underlying facts led the Judge to two conclusions:
9 At [69]–[70].
10 At [73]–[74].
11 At [66].
12 At [66] and [79].
(a)on the balance of probabilities it was not in the twins’ best interests to change their names from N and R;13 but
(b)it was appropriate to include L and S as middle names in substitution for the twins’ existing middle names; first to reflect each of the parties’ choices; secondly in an endeavour to dilute the adult conflict on this issue; and, thirdly, to provide the twins with some connection between their legal names and the names Mr Bellamy would be calling them.14
Arrangements preceding the Family Court hearing
[24] The parties’ relationship from November 2010 to late 2017 has previously been described as “on/off”.15 In October 2014 Ms Holland had obtained (without notice) a temporary protection order, which later that year became final. The parties reconciled, with their second child born in May 2016. The parties conceived twins but had separated by the time they were born on 29 June 2018.
[25] The parties had a defended Family Court hearing in June 2020 relating to care and contact arrangements. Judge A P Walsh ordered the children to be in Ms Holland’s day-to-day care and that there be contact with Mr Bellamy.16 Judge Walsh found the children were being exposed to ongoing conflict between their parents, with disagreements over contact arrangements and the twins’ names.17 The Judge observed any long-term care arrangement would need to take into account the poor state of communication between the parties.18 The Judge made a number of interim orders as to day-to-day care and contact, directed lawyer for the children to file a s 46R application if the naming issue was not promptly resolved, and further directed that a brief for a s 133 report be prepared.19
13 Judgment, above n 1, at [82].
14 At [83]–[84].
15 At [4].
16 Bellamy v Holland [2020] NZFC 4676 [the “2020 Judgment”].
17 At [68], [71]–[72].
18 At [83].
19 At [84]–[88].
Section 133 report
[26] In August 2020, as a result of an incident involving the eldest child, Mr Bellamy was charged with breach of a protection order. The interim parenting orders were suspended the following month.
[27] The breach of protection order charge against Mr Bellamy was heard and dismissed in March 2021.20
[28] In the meantime, Ms Keith prepared her s 133 report in circumstances where Mr Bellamy had not been able to see the children in any ongoing way since mid-2020, around the time the twins turned two.
[29] Ms Keith provided her report to the Family Court in January 2021. She identified the evidence and other materials with which she had been provided. She also identified the cumulative (equivalent) periods over which she had observed the children and parents. In her introduction to the report she indicated there was scope for furthering her assessment but, as I read the balance of the report, that further assessment would have focused on the other issues before the Family Court and not the naming issue.
[30] In her report, Ms Keith found Ms Holland demonstrated an ability to steer a steady, warm, authoritative and loving course with the children. While the older children were “overjoyed to see dad” (this after a four-or-five-month gap in contact), the twins showed some uncertainty in the early contact, reactions not unexpected by Ms Keith given the gap in contact.
[31]Ms Keith commented specifically in relation to the use of names:
There is an added complication that may well compound an infant’s puzzlement as to how to ‘fit’ a parent figure into their growing but early concepts of whose who and how connected is the bond in that they have experienced from birth, the names [N] and [R] in their dominant environment. It was noticeable that [Mr Bellamy] when calling to either twin, but most particularly [N], to bring them into the fold of the ongoing stream of activities (perfectly normal parenting of younger infants in the context of the events led by the older two and their dad) both [N] and [R] at times showed no registering
20 Police v Bellamy [2021] NZDC 6157.
that they were being called into action. This is in contrast to [Ms Holland’s] parental calling using the names [N] and [R], they both showed all the signs of attention and recognition that infants show in the use of their names.
[32] In her report, Ms Keith commented specifically on her observations in relation to each child. As between N and R, she commented on the naming issue only in relation to R. The full discussion of R’s situation reads:
[R] was observed in both observation sessions to be quietly confident of the physical and emotional connection and help from both parents, but with just a little bit of hesitation and puzzlement with dad at the outset. Whereas at her age and stage [R] in a sense is in a conjoint bubble with her mother as a shared identity that is slowly developing at a normal pace with her language and physical skills taking her more and more into her own sense of being a separated identity in relation to her parents. The gaps in contact and confusion around her name adds an element that has her slightly less connected with her dad than with her mum. This is not yet at a level where in terms of the various descriptors of attachment styles, secure attachment would still be the more accurate summation of a relationship that is a work in progress in terms of the deepening of the bond.
However, the bewilderment that will grow around the father’s determination on principle to call the twins by different names may create anxiety and confusion once the girls are into their fourth year of development. [Mr Bellamy] may be described as a maverick in his delight in proselytising different perspectives around societal norms, be they legal or otherwise. His insight is limited as to the complications flowing from this, including for the children.
[33] Although Ms Keith did not go on to specifically discuss the impact of the naming issue upon N, it would appear Ms Keith’s second paragraph in relation to R (above at [32]) was intended to apply also to N.
[34] Ms Keith brought together her conclusion as to the effect or likely effect of Mr Bellamy calling the twins by different names in his household and encouraging the older children to also do so thus:
In many ways this question in the brief has been the most complex to formulate confident opinions about, based on scholarly research to guide prediction. Intuitively as it is played out in this situation it is harmful to the children.
Having sought useful guidelines in scholarly research there hasn’t been helpful information. However, one anthropological article referred to the naming of a child as a societies mode of assisting a child to become a ‘somebody’ in their own right.
Both [N] and [R] showed a delayed response to their father calling out to them, indicating a less than certain recognition of the words connecting to them personally. As a participant observer in the situation, it was noticeably a source of increased anxiety in the writer as to getting it right in dad’s care when referring to each twin. If as the writer feels, that the older children also experience anxiety about getting it right, it’s just another layer of complexity that [Mr Bellamy’s] unique ideas that are based on his outrage at not being a part of the early naming, that the children, other adults and in future times teachers are drawn into the parental conflict. More seriously the whole issue is a direct result of [Mr Bellamy’s] non-compliance with normal child-helpful timeframes. His lack of insight and compromise runs the risk of overloading his children with anxiety.
[35] Ms Keith, at the Family Court hearing, was examined in relation to her report. Observations that emerged from that examination included that Ms Keith:
(a)had not been able to find helpful research that informed her thinking (about the possibility of harm to the children) from the naming issue;
(b)did not see it as “an easier ride” for these children to have two sets of disparate names when the difference reflects deeper conflict (between the parents);
(c)did not think the older two children were bothered by the naming issue
— she thought they had adapted to it;
(d)had observed, particularly early in the period when the twins were with their father, “moments of hesitation” but the twins remained “the lovely kids they are during the observations of interaction with their father”; and
(e)thought the twins had already adapted to an extent to the naming issue and that it was a matter of complication they would ultimately adapt to.
[36] In questioning by Mr Bellamy, Ms Keith confirmed the use of different names “works in the sense that little children respond”, apart from their initial hesitation. Ms Keith stated that her “only concern” about the naming issue was if the children carry the burden of the legacy of knowing that their parents are so divided.
[37] In his questioning of Ms Holland, Mr Bellamy asked Ms Holland for her view about the compromise suggestion made by lawyer for the children (involving the mixing of the proposed names, such as one twin being named “L N” and the other “R S”). Ms Holland said she was not prepared to talk about such a proposal because the twins had “known themselves as N and R since they were born”.
[38] In questions to Mr Bellamy, when he was giving his evidence, the Judge enquired whether Mr Bellamy would consider a compromise whereby the names L and S appear somewhere in their (full) names but N and R remain their first names. Mr Bellamy’s answers indicated he was not prepared to agree to such a compromise.
The parents’ personalities and conduct
[39] I shall refer briefly to the personalities and aspects of the conduct of Mr Bellamy and Ms Holland. I do so because aspects of Ms Holland’s appeal focused on what are said to be outcomes of the Order that in some way validate Mr Bellamy’s unilateral behaviour. As I have already noted, it transpired at the Family Court hearing that neither parent was prepared to compromise on their preferences when it came to the naming issue. Their respective personalities have significantly affected various proceedings in the Family Court, including this latest. A brief reference to past findings will provide some context for the impasse with which the Family Court was dealing.
[40] The parties have, over the years, made many negative allegations about the conduct of one another and of their respective parenting approaches. Many of those allegations have been considered by the Family Court and found not to be established.
What has been found to exist is a volatile and dysfunctional relationship.21
[41] It has also been found that Mr Bellamy’s “attitudes, beliefs and unwillingness to resolve matters” have been a major cause of the dysfunction.22 There have been, in his conduct, elements of psychological abuse towards Ms Holland.23
21 2020 Judgment, above n 16, at [62].
22 2020 Judgment, above n 16, at [70].
23 At [74].
[42] On the other hand, the Family Court rejected a number of concerns raised by Ms Holland. She complained of specific conduct of Mr Holland towards the older daughter and of a sexual permissiveness on his part — she contended that behaviour should affect Mr Bellamy’s contact. The Court found, contrary to Ms Holland’s suggestions, the children were not at risk of physical, sexual or psychological violence in either parent’s care.24
Submissions
Ms Holland
[43] For Ms Holland, Ms Barry submitted the making of the Order resulted from two errors:
(a)it was an error to enable Mr Bellamy to continue to refer to the twins by different names because the use of different names would not serve their welfare and best interests; and
(b)the Judge failed to place sufficient weight on the children’s psychological wellbeing should the twins be referred to by different names between households.
[44]Ms Barry submitted the Judge correctly concluded that:25
[T]he confusion for the twins being called two different names by two different parents in two different homes [is] contrary to their welfare and best interests.
[45] Against that background, Ms Barry observed the Judge was faced with the likelihood that Mr Bellamy would continue to call the twins his preferred names (regardless of the Court’s order as to naming).
[46] Ms Barry submitted the compromise represented by the Order continued what Ms Barry described as “the unacceptable state of play” — allowing Mr Bellamy to
24 Judgment, above n 1, at [39]–[46].
25 At [79].
feel able to continue to refer to the twins by his preferred names through creating some formality around those names.
[47] Ms Barry submitted the Order also gave credence to the idea that Mr Bellamy’s preferred names can and should be used in environments such as schools and medical clinics.
[48] She submitted the Order enables Mr Bellamy to continue to encourage the older children to call the twins by his preferred names, placing the older children’s emotional and psychological welfare at risk.
[49] Finally, under this first head, Ms Barry submitted the Family Court could be said to have “caved to Mr Bellamy’s pressure”, sending him a signal that unilateral decisions around the children are condoned.
[50] Ms Barry, turning to the second ground (insufficient weight on the twins’ psychological wellbeing) emphasised references in the s 133 report to the twins suffering increased anxiety through the use of different names, reflecting deeper conflict between the parents.
[51] In Ms Barry’s submission, the Judge failed to place any “deeper weight” on the impact the parental conflict was having on the children — the Judge instead seeking to “dilute” the adult conflict on this issue through the terms of the Order.
[52] Ms Barry referred to a number of decisions in which the courts have recognised the selection and imposition of children’s names may have long-term psychological impact — such as through ridicule and embarrassment;26 a child’s resentment at resistance to a proposed name change;27 and distress and disturbance caused by a parent’s choice of name.28
26 ACP v TJOM [2011] NZFLR 897 at [21].
27 Volevas v Gore [2015] NZFC 3749 at [44].
28 C v LT [2009] NZFLR 1098 at [66].
Mr Bellamy
[53] For Mr Bellamy, Mr Nicholls submitted the Judge was entitled, on the basis of the evidence, to reach the conclusion represented by the Order.
[54] Mr Nicholls submitted the Judge had correctly identified the test under s 4 of the Act as being the welfare and best interests of the children.
[55] Mr Nicholls further submitted the most relevant principle relating to the children’s welfare and best interests was, under s 5(f) of the Act, the preservation and strengthening of the children’s identities. In that regard, the Judge upheld the first names given and used by Ms Holland since the twins’ birth upon the basis “[t]heir sense of identity should not be a casualty of their parents’ failure to communicate”.29 The Judge was correct to find it was not in the twins’ best interests for their first names to be changed as that would cause confusion for them.
[56] Mr Nicholls submitted the Judge had to consider the reality of the situation, namely that neither parent would compromise and each would insist on using their preferred names for the twins.
[57] Mr Nicholls submitted that the Judge’s reasoning in reaching the compromise solution30 was sound — a solution that reflected not only the wishes of the guardians as to the given names of the children but also had the potential to dilute the adult conflict on the issue.
[58] Mr Nicholls submitted there was an absence of evidence to indicate a legal change of the twins’ middle names was going to cause distress to either child or that their welfare would be compromised by such a change. He observed this was not a case of a parent seeking to promote an offensive or ridiculous name.
Lawyer for the children
[59]Mr Robinson, for the twins, responded to the written submissions.
29 Judgment, above n 1, at [77].
30 At [83]–[84].
[60]In his submission:
(a)the Judge had correctly identified the test to be applied;
(b)the Judge correctly determined Mr Bellamy would continue to address the twins by his preferred names regardless of any court decision;
(c)the Order has “some merit” in terms of providing a connection between the twins’ legal names and Mr Bellamy’s preferred names;
(d)but the change arguably formalises the parental conflict and the confusion for the twins; and
(e)the Judgment may have given insufficient regard to Ms Keith’s “intuitive” conclusion that the use of different names was harmful for the children.
[61] Mr Robinson submitted the Judge, in the compromise approach, had failed to give sufficient emphasis to the anxiety the twins may suffer in the future.
[62] Finally, Mr Robinson noted that, because there has been no contact between Mr Bellamy and the children since mid-2021, the twins have for the last two years heard themselves identified only as N and R. Contact, should it resume between Mr Bellamy and the twins with Mr Bellamy using his preferred names, is likely to cause the twins confusion.
Children’s welfare and best interests — the statutory regime
[63] Under s 4(1) of the Act, the welfare and best interests of the child in their particular circumstances are the first and paramount consideration in any proceedings involving the guardianship of the child.
[64] The Family Court, under s 4(2), was required when considering the twins’ welfare and best interests, to take into account the principles in s 5 of the Act.
[65]The s 5 principles include:
(f) a child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[66] Section 6 of the Act requires a child be given reasonable opportunities to express views on matters affecting the child, and also requires that account be taken of any views expressed by the child directly or through a representative. In the case of the twins, that required the Family Court in 2021 to take account of the views put forward by lawyer for the children.
[67] Of relevance are the provisions of s 16 of the Act, which identify (in this case) the role of Ms Holland and Mr Bellamy as guardians of the children. Under s 16(1) the duties, powers, rights, and responsibilities of each guardian include the determination of questions about important matters affecting the child. Under s 16(2) the child’s name and any changes to it are “important matters”.
Discussion
The names the parents will use
[68] All counsel at this hearing responsibly accepted the validity of the Judge’s finding that Mr Bellamy will continue to call the twins L and S when they are with him regardless of the Court’s decision or the confusion that may cause them.
[69] It was also common ground between counsel at this hearing that it would not have been open to the Judge (if refusing to change the twins’ names at all) to impose on Mr Bellamy an order prohibiting him from using in his interactions with the twins his preferred names.
[70] Accordingly, an important factual consideration for the Judge in reaching her decision was that, so long as contact continued between the children and Mr Bellamy, the parents would be using different names for the twins.
Creation of confusion for the children
[71] The twins’ sense of identity was correctly identified by the Judge as the central consideration relating to their welfare and best interests.31
[72] The Judge correctly concluded on the evidence there did not appear to be any particular significance to either party attached to the twins’ middle names.32 As the middle names had not been used in interactions with the children, it was open to the Judge to conclude that removing the middle names of the children could not realistically affect their welfare and best interests, whether in relation to their identity or otherwise.
The twins’ sense of identity as N and R
[73] The Judge implicitly addressed the guardianship duties, powers, rights and responsibilities of each parent (under s 16 of the Act) in the steps they had taken (or not taken) to co-operate on the naming of the twins.33 It was open to the Judge, on the evidence, to conclude (as she did) that both parents bore responsibility for the failure of effective consultation.
[74] That properly left the Judge to determine the matter in terms of the twins’ welfare and best interests, as the paramount consideration.34
The potential adverse consequences of different names
[75] The Judge considered the twins’ welfare and best interests first by reference to the potential adverse consequences, as identified by Ms Keith.
[76] I referred (above at [28]–[36]) to the relevant content of Ms Keith’s s 133 report and her evidence.
31 Judgment, above n 1, at [77].
32 At [81].
33 At [73]-[75].
34 At [76].
[77] The Judge was clearly mindful of the tentative nature of Ms Keith’s conclusions — referring to them as potential adverse consequences. It is also relevant that Ms Keith expressly (above at [34]) referred to the lack of helpful information in scholarly research and described her own conclusions (twice) as intuitive.
[78] The guarded nature of Ms Keith’s conclusions as stated in her s 133 report was reinforced by the answers she gave during cross-examination by Ms Barry. In response to the question relating to the impact (of the use of different names for the twins) on the older children, her answer was that she thought they had adapted to it. In answer to Ms Barry’s questions as to the impact on the twins as they grow older, Ms Keith did not want “to speculate too far”. Instead she observed that, after moments of hesitation in the early part of their time with their father, the twins “got on with being the lovely kids they are”. When pressed again by Ms Barry as to a potential impact on the twins’ personhood, Ms Keith responded by that “in the whole context of the nature of the difficulties for these children … they will adapt to it”.
[79] None of this evidence established a probable negative impact on the twins or their older siblings. What was identified was some risk of harm resulting from confusion in the way the parents called the twins, which the Judge correctly found to be a matter (of risk) contrary to the welfare and best interests of the twins.35
The primary response to the risk
[80] The primary appropriate response to this risk was, as the Judge found, to maintain N and R as the first names of the twins — that was what was in their best interests as the three-year-olds they had become.36
[81] On this appeal the Court must also have regard to the subsequent events. Mr Bellamy has not seen the twins for the last two years. The twins have not been exposed to his preferred names. All the twins’ interactions with other people will have involved them being called N and R.
35 Judgment, above n 1, at [77].
36 At [83].
[82] The Judge’s decision to dismiss Mr Bellamy’s application for the first names to be changed was therefore appropriate at the time of the decision and is all the more so (because of intervening events) appropriate now. Mr Bellamy does not on this appeal suggest otherwise.
What then to do about the twins’ middle names?
[83] The starting point, in relation to the twins’ middle names, is that no particular significance is attached to their existing middle names.
[84] The next practical consideration was that Mr Bellamy, in his contact with the twins, would continue to use his preferred names come what may.
[85]The Judge — in structuring the Order to “reflect each of the parties’ choices”
— recognised the guardianship role that each parent was entitled to have in relation to the statutorily important matter of the twins’ names.37 While the Judge was entitled to find, as she did, that the dysfunctional communication between the parents had effectively cancelled out the failure of each to effectively consult, the Judge at the point of determining the issues before the Family Court was still required to take into account their statutory guardianship roles.
[86] The position taken for Ms Holland could be described, in essence, as inviting the Court to override Mr Bellamy’s role in relation to the naming of the twins on the ground that, in order to bring his wishes into account, the Court would be “cav[ing]” to Mr Bellamy’s “pressure” and condoning his unilateral decisions around the children.
[87] Properly read, the Judgment is not open to either criticism, whether in terms of intention or outcome.
[88] The Judge had regard to “the parties’ choices” but determined Mr Bellamy’s “choice” (namely that his preferred names became the twins’ first names) was not the appropriate outcome.
37 Judgment, above n 1, at [83].
[89] Equally, the Judgment cannot be described as “send[ing] a message to Mr Bellamy that unilateral decisions around the children are condoned”. As I have discussed, the orders the Family Court could appropriately make (relating to the twins’ legal or formal names) would not impact on times of contact which had to be left to the parents themselves (that is, how the parents call their children when with them). The outcome through the Judgment, following a full Family Court hearing, does not involve a “unilateral decision” of Mr Bellamy as to how the children would be legally or formally known. The Court made that decision. What was left to the parents was the unilateral decision of each as to how they would each address the children in their respective households and interactions.
Dilution of adult conflict on the naming issue
[90] The Judge crafted the Order not only to reflect each of the parties’ choices but also in “an endeavour to dilute the adult conflict on this issue”.38
[91] On the evidence before the Family Court and in particular the lack of compromise exhibited by either Ms Holland or Mr Bellamy in cross-examination, the hope that the Court’s order might dilute the level of conflict between the couple might seem optimistic. But it was properly a consideration open to the Judge in the interests of the children. The history of the couple’s relationship was one of entrenched dysfunction, as recognised by Judge Walsh following the June 2020 defended hearing. A compromise approach to naming the twins justified for other reasons could properly be viewed by the Judge as all the more appropriate if it carried with it some (even modest) prospect of reducing the level of parental dysfunction.
Alignment between Mr Bellamy’s preferred names and the formal names
[92] The Judge’s final consideration weighing in favour of the compromise approach was that Mr Bellamy’s preferred names:39
… will at least have some connection to [the twins’] legal names, minimising the potential adverse impact on their sense of identity and mitigating confusion in their day to day lives as they grow older.
38 Judgment, above n 1, at [83].
39 At [84].
[93] In this conclusion, the Judge again correctly recognised Mr Bellamy would be using his preferred names for the twins. Having regard to the lack of particular significance attached by either party to the twins’ existing middle names, the Judge’s reasoning is logical — the twins will appreciate that the name their father is using for them is a name they have been (formally) given earlier in their lives.
A missing qualification?
[94] Although the Judge did not expressly structure the Order by reference to how the twins should be registered on the Register of Births, it is clear the Order was to affect the twins’ “legal names”, that is to say their registered names.40
[95] The Judge reached the decision the twins’ middle names should be changed, notwithstanding a degree of confusion would arise for the twins being called two different names in the two different situations.41
[96]The Judge, at that point of the Judgment, observed:42
The confusion will extend to their interactions with friends, school and other organisations they engage with. They cannot be subjected to that.
[97] In the course of this hearing, I suggested to counsel that, were I to dismiss the appeal as it stood, I should nevertheless allow it to the extent of attaching a condition to the existing Order. That condition would require both Ms Holland and Mr Bellamy, in all dealings with organisations such as Government departments, schools, medical practices and other bodies that maintain client or membership lists, to identify the twins’ first names as the names to be used in communication.
[98] Counsel all recognised that such a condition would have appropriately been imposed by the Family Court given the finding in the Judgment that the twins should not be objected to name confusion in their interactions with such bodies (above at [21]).
40 Judgment, above n 1, at [84].
41 At [79].
42 At [80].
The welfare and best interests of the children
[99] Having regard to the above conclusions, I am satisfied the Judge correctly considered the welfare and best interests of the children were best served by the Order made, subject to there being the additional condition discussed at [94]–[98] above. The orders to be made below reflect these findings.
Costs
[100] My tentative view, having regard to the outcome of the appeal, is that there should be no order as to the parties’ costs and disbursements.
[101] In the event the parties do not reach agreement in relation to costs and disbursements the same will be determined on the basis of memoranda filed and served (four-page limit in each case). Counsel for the appellant in that event to file first, within 10 working days after delivery of this judgment. Counsel for the respondent to file second, within five working days after service of the appellant’s submissions. Any submissions of lawyer for child to be filed and served within five working days thereafter. In the event no memoranda are filed the order of this Court will be, without further judgment issuing, that there be no order for costs and disbursements.
Outcome
[102]I order:
(a)leave to appeal the judgment in Bellamy v Holland [2021] NZFC 7519 is granted in relation to the naming issue;
(b)the appeal is allowed to the extent that the order at [125](b) of the Judgment is amended by adding the words “and [the appellant] and [the respondent] shall in all interactions between the twins and organisations such as Government departments, schools, medical practices, and other bodies maintaining client or membership rolls ensure that such organisations identify the twins’ first names as the names to be used in communication concerning the twins”;
(c)the appeal is otherwise dismissed; and
(d)the costs and disbursements of the appeal are reserved.
Osborne J
Solicitors:
Tiaki Family Law, Lower Hutt Chris Nicholls Law, Lower Hutt Paino & Robinson, Upper Hutt
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