The Mother wished to change the Childrens’ name to include her surname as a given name. She was not asking for a hyphenated surname.
There were 3 children aged about 10 yrs, 11 yrs and 13 yrs when the decision was made by the Court.
The Mother had been diminished in the Childrens’ lives by the Father and was concerned that would continue to occur if the children retained their current name without any identity associated with the Mother.
The parties had reached agreement about who the children were to live with and most of the standard orders sought, the Judge making those Orders with the consent of the parties.
The matter had proceeded however seeking a Judge to make a decision on the ‘name issue, how much time the Children would spend with the other Parent and where changeover would occur since they lived some distance from eachother.
The Judge decided that given the circumstances of the Mother’s concern that she will continue to be marginalised in the lives of the 3 Children, that is appropriate for her surname to be added to their given names.
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.
Firth & Woodley  FCCA 3500 (16 June 2016)
Last Updated: 18 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
FIRTH & WOODLEY
FAMILY LAW – Parenting – change of name – split siblings.
MLC 2048 of 2008
7 December 2015
Date of Last Submission:
9 December 2015
9 December 2015
16 June 2016
Counsel for the Applicant:
Solicitors for the Applicant:
McGowan Family Law
Counsel for the Respondent:
Solicitors for the Respondent:
Tyler Tipping & Woods
THE COURT ORDERS THAT:
(1) There be final parenting Orders, in terms of the Minute of paragraphs 1-3, 4(b) – 5, 6(b) – 8, 10 -14 and 16 – 22 of Consent Orders signed by the parties and dated 9 December 2015 (“the Minute”).
(2) The lawyers for the Applicant engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.
THE COURT FURTHER ORDERS THAT:
(3) The children spend time and communicate with the Father from 6.30pm on Friday to 5.30pm Sunday on the first weekend of a three week cycle with week one to commence 29 January 2016.
(4) The child X spend time and communicate with the Mother from 6.30pm on Friday to 5.30pm Sunday on the second weekend of a three week cycle.
(5) When changeover does not occur at the children’s school the parents shall meet at the McDonalds (omitted), at the commencement of time spent and at McDonalds (omitted) at the conclusion.
(6) The mother shall be entitled to do all acts and things necessary top cause the children’s names to be varied to:
- (a) X,
- (b) Y and
- (c) Z.
(7) All extant applications be otherwise dismissed and the proceedings be removed from the list of pending cases.
IT IS DIRECTED THAT:
(8) The Minute be placed upon the Court file and marked Exhibit “A”.
AND THE COURT NOTES THAT:
- Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
BY CONSENT IT IS ORDERED: SAVE FOR 4(a), 6(a), 9 and 15 ARE ORDERS OF THE COURT:
(1) That the parents have equal shared parental responsibility for the children X born (omitted) 2003, Y born (omitted) 2005 and Z born (omitted) 2006 (“the children”) save for education whereby the father shall have the sole parental responsibility for X and the mother shall have sole parental responsibility for the children Y and Z.
(2) That the children Y and Z live with the mother.
(3) That the child X live with the father.
(4) That the children spend time and communicate with the father as follows:
- (a) From 6.30pm Friday to 5.30pm Sunday on the first weekend of a three week cycle with week one to commence 29 January 2016;
- (b) For one half of all Victorian gazetted term school holidays at times as agreed and failing agreement from 6.30pm on the last day of the school term to 5.30pm on the second Saturday of the holiday period;
- (c) During the defined long summer school holidays as follows:
- (i) In the 2015 as set out in orders 4 of the Orders dated 11 May 2015;
- (ii) In 2016 and each alternate year thereafter from 10.00am the second Saturday of the summer school holiday period to 10.00am on the third Saturday of the summer school holiday period and each alternate week thereafter with changeover to occur at 10.00am each Saturday;
- (iii) In 2017 and each alternate year thereafter from 10.00am the first Saturday of the summer holiday period to 10.00am the second Saturday of the summer holiday period and each alternate week thereafter with changeover to occur at 10.00am each Saturday;
(d) In the event Father’s Day falls on a weekend when the children are not ordinarily spending time with the father from the conclusion of school Friday to 5.30pm Sunday such time to be in addition to the time the children spend with the father as set out in paragraph 4(a) herein;
(e) By telephone each Tuesday and Thursday between 6.00pm and 7.00pm using when available Viber or such other VoIP application including facetime with the father to initiate the call to the mother’s mobile telephone number on Tuesdays and the mother to initiate the call to the father’s mobile on Thursdays;
(f) Such other times as may be agreed between the parents in writing (email and text).
(5) That the time the children spend with the father shall be suspended as follows:
- (a) That the time as set out in Order 4(a) herein shall be suspended during all school holiday periods and shall recommence at week 1 on the first Friday of each school term;
- (b) In the event Mother’s Day falls on a weekend when the children are ordinarily spending time with the father such time shall be suspended that weekend and makeup time shall be provided the following weekend; and
- (c) Such other times as may be agreed between the parents in writing (email and text).
(6) That the child X spend time and communicate with the mother as follows:
- (a) From 6.30pm Friday to 5.30pm Sunday on the second weekend of a three week cycle;
- (b) For one half of all Victorian gazetted term school holiday periods at times as agreed and failing agreement from 5.30pm on the second Saturday of the holiday period to 5.30pm on the last Sunday of the holiday period;
- (c) During the defined long summer school holiday period as follows:
- (i) In 2015 as set out in Order 4 of the Orders dated 11 May 2015;
- (ii) In 2016 and each alternate year thereafter from 10.00am the first Saturday of the summer holiday period to 10.00am the second Saturday of the summer holiday period and each alternate week thereafter with changeover to occur at 10.00am each Saturday;
- (iii) In 2017 and each alternate year thereafter from 10.00am on the second Saturday of the summer holiday period to 10.00am on the third summer holiday period and each alternate week thereafter with changeover to occur at 10.00am each Saturday;
(d) In the event Mother’s Day falls on a weekend when the child is not ordinarily spending time with the mother from the conclusion of school Friday to 5.30pm Sunday and such time shall be in addition to the time the child spends with the mother as set out in paragraph 6(a) herein;<li “=””>(e) By telephone each Tuesday and Thursday between 6.00pm and 7.00pm in accordance with Order 4(e) herein; and<li “=””>(f) Such other times as may be agreed between the parents in writing (text and email).
(7) That the time the child X spends with the mother shall be suspended as follows:
- (a) The time as set in paragraph 6(a) herein shall be suspended during all school holiday periods and recommence the second Friday of each school term;
- (b) In the event Father’s Day falls on a weekend when the child is ordinarily spending time with the mother then time shall be suspended for the whole of the weekend and make-up time shall be provided the following weekend; and
- (c) Such other times as may be agreed between the parents in writing (email and text).
(8) That the parent who does not have the care of the children on each of their birthdays or Christmas and the parent’s birthday shall be entitled to have telephone contact with the child/ren on those days between 7.00am and 9.00am with the parent who does not have the care of the child/ren to initiate the call to the other parent’s mobile.
IT IS ORDERED:
(9) That when changeover does not occur at the children’ school/s the parents shall meet at McDonalds (omitted), at the commencement of time spent and at McDonalds (omitted) at the conclusion.
(10) That the parents shall advise each other as soon as is practicable of any significant illness and/or injury suffered by the children or any of them whilst in their respective care along with the names and contact details of any treating medical, dental and/or allied health professionals providing treatment.
(11) That the parents shall be entitled to attend all school related events and extra curricular activities including but not limited to parent/teacher interviews, sports days, assemblies and all other events that parents are normally invited to attend.
(12) That the parents shall do all acts and things necessary to ensure the other parent is authorised to obtain copy school reports, notices, photograph order forms and all other correspondence normally provided to parents and that they are listed as an emergency contact with any education provider.
(13) That the parents shall advise the other parent in writing of any specialist medical appointments for the children or any of them including the names, dates and times of such appointments and the other parent shall be entitled to attend same.
(14) That the parents, their agents and/or servants are hereby restrained from:
- (a) Denigrating, belittling, harassing, intimidating, assaulting and/or rebuking the other parent to and/or within the hearing of the children or any of them;
- (b) Discussing these proceedings including any evidence given, any documents and/or reports filed in relation to these proceedings to and/or within the hearing of the children or any of them;
- (c) Knowingly allowing the children or any of them access to any documents and/or reports filed in relation to these proceedings; and
- (d) Physically disciplining the children or any of them.
IT IS ORDERED:
(15) That the mother shall be entitled to do all acts and things necessary to cause the children’s names to be varied to:
- (a) X;
- (b) Y; and
- (c) Z.
(16) That within 30 days of the date of these Orders the parents do all acts and things necessary including signing any necessary documentation to make application for the children to be issued with Australian passports with the father to hold Y and Z’s passports and the mother to hold X’s passport and the cost of obtaining such passports be shared equally between the parents and the parents shall do all acts and things necessary to ensure that the passports are at all times valid including renewing same.
(17) In the event either parent wishes to travel overseas with the children or any of them they shall be entitled to do so upon the following being provided to the other parent:
- (a) No less than 21 days prior to the intended date of departure a copy of the travel itinerary (including flight details); and
- (b) The contact details for the child/ren whilst travelling.
- (c) And in the event either parents time with the child/ren is not facilitated due to such travel then make-up time shall be facilitated upon the return of the child/ren to their residence.
(18) That the parents and children attend upon Ms L for the purpose of undertaking the PEP programme and in the event Ms L assesses the family as unsuitable for the PEP programme then the parents and children shall engage in therapeutic family counselling with Ms L as directed by Ms L the cost of which shall be borne by the mother and leave shall be given to the parents to provide Ms L with a copy of the Family Report prepared by Dr W, the Family Report prepared by Ms D and Ms B’s reports.
(19) That the children shall be entitled to take personal belongings with them to each of the parents respective homes and if the children accidentally leave belongings there those items shall remain there until the children return.
(20) All extant applications be dismissed.
(21) Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(22) It is certified that it was reasonable to engage Counsel to attend pursuant to Rule 19.50 of the Family Law Rules 2004.
(23) That in the event further applications are issued in this matter where possible same shall be listed before Small J.
AND IT IS NOTED:
That the long summer school holiday period shall be defined as commencing the first Friday of the gazetted summer holiday period and concluding the last Friday of the gazetted summer holiday period.
FEDERAL CIRCUIT COURT
MLC 2048 of 2008
REASONS FOR JUDGMENT
(Revised from Transcript)
- These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
- The issue of names is a very intricate and personalised one. It is not uncommon, in these days, for children to have hyphenated names. That is not an unusual thing. I often wonder what happens when children with hyphenated names meet and form a relationship with or get married to another child with a hyphenated name, but nevertheless it is not an uncommon thing.
- The mother says that the children ought to have her surname, Firth, as one of their given names, so that for instance X would be X, not hyphenated, and Y would be Y, etcetera. Z already has two given names, and so she would end up with Z, which is a bit of a mouthful, but nevertheless.
- The mother says that the children have (country omitted) heritage and that this is about identity, about knowing where they come from, and about having that as an important part of their lives because it is part of their name. She is not asking for it to be a hyphenated surname, but simply to be added as a given name.
- When I look at what the law says about this, one of the section 60CC(3) factors that I need to look at in looking at what is in children’s best interests is the question of a child’s heritage, the question of culture, the question of identity.
- All of those things are set out as part of, or read into 60CC(3)(g) for the Court to take into account.
- The Court can also take into account any other matter the Court thinks is relevant, and in this case what I think is relevant here is the status of the mother in the broader family in this dispute. The evidence before the Court is that the mother has been derided, abused, criticised, and generally diminished in the household of the father. The evidence is that there is no particular concern about that from the father.
- In those circumstances, and where the mother is concerned that she will continue to be marginalised in X’s life, I think it is in the children’s best interests for that name to be added to their given names so that their names become X, Y, and Z, for all the reasons given. And therefore order 14 will be made an order of the Court, and I note that what it says is that the mother shall be entitled to do all these things, does not require the father to do anything. So that order is an order of the Court.
RECORDED : NOT TRANSCRIBED
- The next issue before me is the regime of time that the children should spend with each parent. Currently, Y and Z live with their mother, and X lives with their father. That is not going to change as a result of these orders which the parents have agreed to. The mother’s proposal is for a three week cycle wherein on the first weekend Y and Z travel to (omitted) to spend time with their father and X; on the second weekend, X travels to (omitted) to spend time with his mother and Y and Z. In the third week of that cycle there would be no travel, and then the cycle would commence again.
- The father’s proposal is for a more detailed and lengthened cycle, such that it would be a six week cycle wherein, in the first weekend, X would travel to the mother’s home to spend time with her and his siblings; in the second week nobody would travel; in the third week Y and Z would travel to (omitted) to spend time with their father and brother; in the fourth week there would be no travel. Those first two are, in a sense, non-controversial because it provides two weeks out of the first three, at least, where the children are together.
- It is the week 5 that is controversial one, in my view, and that is where on the father’s proposal, X would travel to (omitted) to spend time with his mother, and Y and Z would travel to (omitted) to spend time with their father alone, or the father and stepmother alone, and then there would be another week where nobody travelled.
- In the mother’s proposal, the children are completely separated for only one weekend in three; in the father’s proposal, they are separated for one weekend in the first three, but two weekends in the second three of the six. So, three weekends in six, rather than two weekends in six, as would be the mothers’ proposal. The mother says that the relationship between the children is the one constant in these proceedings, and I certainly am required by section 60CC subsection (3) to consider the relationship of the siblings, and the potential splitting of the siblings.
- They are already split for most of the time and to be perfectly honest, it does not seem to me that the relationship between these siblings is any more fraught than the relationship between most siblings of their age. 12 year old boys always find nine year old sisters annoying. That is always the case – and I can tell you that having been a nine year old sister once upon a time.
- And I think when we look at this from the children’s point of view, I think they would prefer to have the two weekends in three, rather than the regime that the father proposes. However, the father’s proposal certainly has some merit. The idea that the children should spend special time with each parent has great merit, and the mother says well, that can happen anyway, and it does happen anyway. There are times when the two younger children go out to visit, there are times when they can be looked after and she can go out with X. There are times when, at the father’s house, the children spend special time with the father.
- My view is that while it is a good thing for children to spend one on one time with a parent, they are a family. Three children and the parent constitutes a family, and it is in my view in the children’s best interests to spend as much time with each other as they can. The mother says that her proposal has the benefit of maintaining stability in the children’s lives, because it continues the same routine as has been the case until now.
- The other advantage of what the mother proposes is that on every third weekend when Y and Z spend time with their father, the mother proposes that the father come to (omitted) and pick the children up from school. That too has great merit, in that it allows the father to spend time at the children’s school. He could come earlier, he could talk to the teachers, he could find out what is going on with the children at school, and the mother would have the same opportunity every third week when she travelled to (omitted) to pick X up.
- On the father’s proposal there is none of that, because the father proposes that the parties meet halfway every time. If these parties got on better, or were able to communicate better, it might be that they could have a mixture of those things. It might be that they could say, “Look, I would really like to go to Y and Z’s school this week, so I will pick them up from there.” Or, “Look, my back is really bad at the moment and I cannot come and pick them up this weekend, so can you bring them down?”
- Now, if the parties were reasonable I would have some confidence that that could happen. Unfortunately, these parties could not agree that the sky is blue, and I have no confidence that they are able to make arrangements that would be in any way different to the orders. I think this is the kind of dispute where the parties have shown that they are unable to be together without conflict.
- And I think in that situation it is a good idea for there to be as little face to face communication between them as possible while that enmity is in existence. It is to be hoped, that that enmity might dissipate with time although the parties have been separated for a very long time now, and it has not reduced over time as it does in most families, I must say. The father says that the children will be together and that there will be that special time.
- This is a very frustrating situation, because there are merits in both parties’ proposals.
- However, I think both parties’ proposals provide for the other’s possibility in any event. It is not that one proposal has more merit than the other, it is just a question of what I think is in the best interests of these children. The father says that it should be the six week cycle because the children would spend special time with each parent; I have already pointed out that the disadvantage of that is that the children miss one weekend together in every six.
- The father also says that changeover should be the midpoint, essentially, rather than at the school because he is unable to travel to the school, or unable to travel long distances, because of his back injury. It is not in dispute that the father has a serious back injury, for which he takes strong medication. The father was in the witness box yesterday. I thought his evidence was cogent, that it was perfectly sound, and rational, and he certainly did not seem to be under the deleterious effects of any medication at that time.
- The Father had his wife drive to the Court, he said in evidence yesterday, for these proceedings. Neither he nor his wife works. Mr Woodley is on a disability support pension, and his wife looks after him, and is also not employed. The mother, at the moment, is not employed but she is seeking work and if she does seek work she says she will seek some flexibility in that to allow her to travel to (omitted) every three weeks, and that she is committed to doing so not only in terms of time, but in terms of travel cost.
- It is true that both parties would bear greater travel cost in the mother’s proposal. It is actually quite difficult to discover and, I must admit, a bit close to maths for me to work out who would be paying the most in travel costs. However, the mother says that she bears the greater burden of the children’s care in any event because she has two of the children of the relationship full time, and the father has one, and the mother does not receive any child support, whereas until five months ago she was in fact paying child support.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Small.
Date: 16 June 2016
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties. Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.
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