Surname – is a change best?

Surname – is a change best?

Hurley & Simpson [2016] FamCA 139 (4 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/139.html

BACKGROUND FACTS

14. The father was born in 1981 and is currently 34 years old.
15. The mother was born in 1990 and is currently 25 years old.
16. The mother gave birth to F in 2008. F lived with the mother until she was 2 years old and then commenced living with her father. F now ordinarily lives with her father and spends alternate weekends with the mother.
17. In August 2009 the father presented to Suburb C Community Health with affective and psychotic symptoms relating to his ice and cannabis use.
18. The mother asserts the parties resided together between June 2010 and May 2013. The father says the parties did not begin to cohabit until June 2011. Both parties admit to using ice during the relationship. The father admits that he smoked ice and marijuana regularly and that he also injected ice.
19. On 31 October 2011 the father assaulted the mother and was arrested and charged with multiple counts of grievous bodily harm and kidnapping. The father assaulted the mother on multiple occasions whilst he locked her in the house for about four hours. I discuss the events of this day in detail below.
20. In December 2011, after spending six weeks on remand, the father was granted bail and the parties reconciled.
21. In early 2012 the mother was taken to J Hospital and admitted to the psychiatric ward because of her ice use. She remained there for about three weeks and says she then quit using ice. The father asserts in his affidavit that the mother was admitted to the psychiatric ward after she was charged with assaulting him. This incident was not raised during the trial.
22. The mother fell pregnant in early 2012 and returned to live with the father.
23. On 12 April 2012 the mother made an application to revoke the AVO that had been put in place to protect her from the father.
24. In June 2012 the father pleaded guilty to three charges of assault occasioning grievous bodily harm, three charges of common assault, one charge of stalk/intimidate and one charge of breaching an AVO, arising out of the 31 October 2011 incident. The father received a custodial sentence with 18 months non parole and 5 months parole.
25. On 20 June 2012 the father completed his intake at prison and admitted to using ice and cannabis.
26. On 12 July 2012 the father refused urinalysis in prison.
27. On 19 October 2012 the father was released from prison and the parties resumed their relationship.
28. The child was born in 2012. While in hospital, the child was tested for effects from the mother’s drug abuse, and the mother notified the hospital of her concerns regarding the father’s continued use of drugs.
29. On 27 February 2013 the parties received a letter from DoCS noting that the child was not at risk of harm and no investigation would pursue.
30. On 25 May 2013 the parties had an argument where the mother asserts the father punched her in the face. The police attended the home and the mother went to a women’s refuge with the child. The father was arrested and was held on remand for six weeks awaiting a hearing. The parties separated following this incident.
31. On 24 June 2013 the charges against the father were dismissed but an AVO was made for the protection of the mother and child.
32. From 11 to 14 July 2013 the child spent time with the father. On 14 July 2013 the father did not return the child to the mother.
33. On 17 July 2013 the mother filed an Initiating Application in this court.
34. An interim hearing was held on 31 July 2013 and interim orders were made providing that the child live with the mother and spend time with the father from 9.00 am to 3.00 pm each Saturday and Sunday and one day during the week and for each of the parents to submit to random urinalysis testing upon receipt for a request from the Independent Children’s Lawyer or the other party.
35. On 5 August 2013 the father tested positive to amphetamine and methamphetamine but the test was not disclosed to the other parties.
36. On 9 December 2013 the father tested positive for amphetamines.
37. Between December 2013 and October 2014 the child spent no time with the father.
38. On 23 May 2014 the father failed urinalysis testing for use of cannabis.
39. In June 2014 the child was burnt in a kitchen accident at the mother’s home.
40. On 23 July 2014 the father tested positive for cannabis, amphetamine and methamphetamine.
41. On 4 August 2014, when the matter was mentioned at court, the father advised the mother that he is HIV positive.
42. On 3 September 2014 the father tested positive for codeine, morphine, pseudoephedrine and cannabis.
43. On 30 September 2014 the father advised a treating psychiatry registrar of abstinence from ice and infrequent cannabis use.
44. On 20 October 2014 the parties came before me for an interim hearing. Orders were made for the child to spend time with the father subject to urinalysis testing and conditional upon supervision by the paternal grandmother. The orders envisioned a transition to time at a contact centre once a place became available.
45. In November 2014 the child recommenced spending time with the father.
46. In December 2014 the father did not complete urinalysis testing when requested to do so by the Independent Children’s Lawyer. The mother suspended the father’s time with the child.
47. On 20 January 2015 the contact centre cancelled the parties’ position on the waiting list for a place because the father failed to attend two appointments for an intake assessment. On one occasion the father says he broke his foot and was unable to attend. On the makeup appointment the father says he did not attend because his car broke down on the way to the appointment, and he telephoned the contact centre to notify them of his lateness and asserts they told him not to come at all.
48. On 22 January 2015 the father again failed to undergo urinalysis testing as requested by the Independent Children’s Lawyer.
49. On 24 March 2015 the mother’s solicitors wrote to the paternal grandmother offering her to spend time with the child in the presence of the mother.
50. On 24 April 2015 interim orders were made that upon the father complying with a random urinalysis within 48 hours of a request by the Independent Children’s Lawyer, the child’s time with the father could resume.
51. On 27 April 2015 a request for urinalysis was sent to the father by the Independent Children’s Lawyer. The father did not comply with the request.
52. On 15 May 2015 the father undertook urinalysis which tested positive for opiates, creatine and cannabis.
53. On 25 June 2015 the father tested positive for cannabis and creatine.

MAJOR ISSUES

The mother’s mental health and drug use

54. The mother has previously been diagnosed with having borderline personality disorder. This has caused her to self-harm, have emotional regulation problems, poor self-image, impulsivity, inability to care for herself, immature coping skills, use of prostitution and drugs and seeking out unstable relationships. The single expert has formed the view that the mother continues to suffer from borderline personality disorder.
55. The mother was the only child of her two parents who separated when she was young. The mother has not had a relationship with her birth father. The mother formed a close relationship with her step father who became part of the mother’s household when the mother was about seven years old. The mother had a rebellious relationship with her own mother during her teenage years and has been homeless on and off since the age of 13 years old. The single expert reports that there is a theme of abandonment in the mother’s life which gave the mother difficulties in developing a strong sense of self-worth and confidence.
56. The mother’s stepfather committed suicide by hanging himself in 2002 and the mother found her stepfather’s body.
57. The mother was treated for ADHD as a child and had emotional, behavioural and learning difficulties in primary school. The mother also has a history of post-natal depression and some anxiety adjustment disorders and has had admissions to the J Hospital and was treated with Avanza (a depression medication). The mother also has a history of self-harm and cutting her arm. She told the single expert she did this for stress release. The single expert however, formed the conclusion that there is no indication that the mother has ongoing clinical depression or anxiety and there is no evidence of psychosis. The single expert is of the view that the mother has chronic low-grade depression which is related to her long-term environmental adversity and rejection and her personality disorder.
58. The mother used ice and marijuana whilst in the relationship with the father. She stopped using ice when she left the father in early 2012 and stopped using marijuana when she left the father in May 2013.
59. In his updated report of June 2015 the single expert opines that the mother appears to be in a stable environment now. During oral evidence he said that the mother has engaged well with services. The mother’s case worker spoke positively about the mother following recommendations and said this had given him a degree of optimism that the mother may be able to step up to make and provide good parenting. He said that whilst it is still the early days, and the mother may need a longer period of time for support and observation, he has optimism that the mother is attempting to stabilise her life.
60. Ms Q provided evidence by affidavit and orally. She is a caseworker at the Brighter Futures program and has known the mother since early 2014. Ms Q was assigned as the mother’s caseworker on 2 March 2015. She says the mother has engaged very well with the Brighter Futures program and has been open to advice about parenting skills, childcare services, personal growth and general wellbeing. The mother has attended various parenting groups and has completed an anger management course. The mother also volunteers in the community kitchen. Ms Q indicates that the mother’s home is clean and tidy and during the period of her involvement with the mother she had not seen any indications that the mother is using illegal drugs.

FATHER’S MENTAL STATUS AND DRUG USE

61. The father has used speed, ice and marijuana regularly over the past ten years.
62. The father has had treatment for anxiety and at the time of the first report by the single expert, was seeing a counsellor. The single expert opines in his first report that the father probably has a mild generalised anxiety disorder with some panic symptoms but those difficulties are not debilitating. The father had a history of stable work but also used drugs consistently. The single expert reported that although the father has some antisocial features, his major personality style relates to poor self-esteem and this is reflected in his tendency to become anxious. The father’s use of drugs such as speed could make his anxiety worse, but using medication such as Xanax could reduce those anxiety levels. Overall, the single expert opined that the father’s personality difficulties are more self-esteem based personality problems leading to low confidence and dependency issues. He says the father could qualify for a diagnosis of personality disorder but it was uncertain.
63. In his updated report of June 2015 the single expert continued to have concerns about the father’s use of drugs and inability to demonstrate long term abstinence. During oral evidence the single expert indicated that the father’s drug taking is likely to impact on his whole life. He said that if the father is using drugs regularly, he is not able to place priority on the child over his own drug needs.
64. The single expert stated during oral evidence that the two well recognised side effects of using ice are an acute state of psychosis and ongoing development of a schizophrenia type illness which can move into an ongoing psychiatric condition including hallucinations or delusional ideas. According to the single expert, because ice is so uncontrolled, amounts taken are irregular and the higher the dose the more likely the user is to become irrational.
65. Records produced from corrective services in 2009 note that the father refused medication for psychosis because he was aware the psychosis was drug induced. The father denied this.
66. Records were tendered by the mother from Justice Health which record that on 19 July 2012 the father told one of the psychiatrists that he had experienced a drug induced psychosis. The father denied he ever reported this. The records suggest the father also reported having heard voices when using ice. The father also denied this during cross examination. Another record from Justice Health indicates that in November 2011 the father reported psychosis from taking speed.
67. I agree with counsel for the father that it is unlikely that the father told a support service that he had “drug induced psychosis”. The father indicated in the witness box he did not even know what that term meant and I accept that is so. However, I find that the father did say things to the service that led them to conclude that what he was describing was a drug induced psychosis.
68. At page 5 of the mother’s case outline document is a summary of the father’s drug tests. He has failed four tests for amphetamine or methamphetamine use. He has failed on about 9 occasions for cannabis use and has also been detected in respect of creatine, codeine, morphine, pseudoephedrine and opiates. The father also failed to undergo testing when required at the end of 2013, end of 2014 and early 2015. I find he was using ice heavily in 2014.
69. I have no evidence that the father has used ice in 2015. However, he has used ice consistently over a 15 year period.
70. The single expert opines that given the father has neither submitted himself to any rehabilitation service nor sought in any serious way to amend his lifestyle to eliminate drugs, it is very unlikely that the father no longer has a serious drug problem.
71. Counsel for the father put to the single expert that the father was using marijuana as a way to minimise the symptoms he suffers associated with his medical condition. The single expert said that it is very easy to rationalise using marijuana to manage side effects, but in the case of the father, he is reliant on it and it has become part of his lifestyle. The single expert opined that if the father wants to demonstrate that he is able to take responsibility and have a position in his child’s life, he needs to step up and take responsibility himself and remove drug taking as a feature of his life. It was put to the single expert that occasional drug taking would not make the father a bad parent, but the single expert asserted that if the father is using cannabis two to three times per week, it is suggestive of the habit being an important part of his life. If the rest of the father’s life was in order and there had not been severe family violence, the father had not had jail terms and problems with the police, then the single expert opined it could be argued that cannabis usage was not impacting the father’s life, but in this case the single expert is of the view that the drug taking is having a severe impact on the father’s life and he is having difficulty maintaining stability.
72. I find that the father continues to have a serious drug problem.

FAMILY VIOLENCE

73. On 31 October 2011 an incident occurred which resulted in the father spending time in prison. A police record of this incident is Exhibit 6. The father indicated that he did not completely agree with the facts that were presented to the court but I am satisfied that what I now record is what took place during a period when the father held the mother for about four hours.
74. The parties were at the father’s home and had argued over a number of minor issues. At around 3.00pm the parties had a minor verbal altercation and the mother left the home with a friend. She attended another friend’s home nearby. While she was away, the mother received numerous calls from the father and the father left the mother numerous voice messages. The mother returned to the father’s home at about 1:30am and found the father sitting on the front steps. The father had placed the mother’s personal belongings on the front lawn and began asking the mother where she had been. The father said to the mother “You are full of shit, you are nothing but a slut. You are a dog and just using me”. He then stood close to her face and said “You are a slut, you should be dead. You are nothing but a low life.” The mother pushed the father in the chest to move him away from her and entered the home. The father entered behind her and was yelling and screaming at her, demanding to see her mobile phone. The mother handed the father her phone and called the father a dog. At this stage, the parties were in the main bedroom of the home and the father stood up and slapped the mother across the left side of her face with his hand in a “backhand motion” causing immediate pain to the mother’s cheek. The mother said to the father “you are a low life junkie scum”. The father then hit the mother across her back shoulder causing immediate pain and the mother walked out of the bedroom to sit down. The father followed her and demanded her Facebook password. The mother refused to supply this. The father had a pair of blue and black scissors in his hand and something occurred which resulted in the mother’s scalp being cut causing it to bleed. The mother attempted to leave the premises via the rear door but found it was dead locked. She attempted to exit via the laundry but this was also locked. The father then followed the mother into the kitchen and hit her head and upper body causing pain to those areas. The father threw glasses and coffee cups at the mother and said to her “I’m going to kill you, I’m a psycho, I won’t do it quick and easy, I will lock you in the house for days and torture you until you beg me to kill you, or you kill yourself.” He further said “I’ll bite your nose off and make sure you have two glass eyes. Next time you see your daughter, she won’t recognise you and [sic] run away with horror”. The father then proceeded to punch the mother in the head and she kicked him in the groin area which enraged him. The father proceeded to punch the mother and pinned her to the bed, causing her more harm and pain. The mother tried to tell the father to stop but was having difficulty breathing. The mother attempted to leave through the front door but was unable to because it was also deadlocked. The father approached the mother, pulled the back of her hair and said “you are not going anywhere. If you are going to leave here is (sic) will be in a body bag”. The father restrained the mother from leaving by holding her ankles and dragging her across the floor. The father then had trouble breathing and went to another room. The mother followed him to see if he was okay and noticed he was holding a medium sized filleting knife. What followed with the knife is blacked out in the police records, but the father caused the mother some fear and pain with that knife. The mother was of the belief the father was going to stab and kill her. She ran into her daughter’s room and the father began throwing objects and furniture at her. He told her “The only way you are going to leave here is in a body bag. I am going to strip you naked and make you walk up to [Mr R’s] house past all the school kids, and flog you out the front of [Mr R’s] house and see if they will help you now.” Further physical violence occurred, the extent to which is unknown and the parties began to wrestle. The father then rang his mother and said “I’m going to kill her. This is it. she has done it now and pushed me too far”. When the mother heard this she attempted to escape by climbing on the kitchen bench, opened the kitchen window. She got out and took refuge with neighbours. Ambulance officers attended the location and the mother was taken to Suburb C Hospital for treatment. In oral evidence the mother said the incident took place over a four hour period.
75. Both parties were under the influence of drugs during the incident and the father was later arrested and charged with 14 different offences arising from what had happened on this day. The father pleaded guilty to the charges.
76. These events happened before the birth of the subject child and the parties reconciled after this incident.
77. There was a further incident which led to the final separation of the parties on 25 May 2013. On this occasion, the mother was laying in her bed with the child when F entered the bedroom wanting breakfast. The mother went to make breakfast for F and the father followed. The mother heard the father speaking to F in a way that the mother described as a “piece of shit”. The mother told F to go to her own bedroom and not talk to the father. The mother and father got into an argument during which the father repeatedly told the mother “pack your shit and get out”. The father said to the mother “if your mum doesn’t take you today I’m going to drag you out and drop you on your head”. The mother was very fearful for her safety and the safety of her two daughters. The mother told the father “yeah you would you dog”. The father took one step towards the mother and used his right fist to punch the mother in her left eye. The mother left the house and called the police. The mother went out for a walk and then returned and the father again hit the mother in the left eye. The police arrived and saw redness around the mother’s eyes. She had been crying and the police were unable to be positive as to whether or not the redness on the mother’s face was caused by an assault perpetrated by the father on the mother as alleged by the mother or as a result of crying. The police however accepted the mother’s version and charged the father with assault and obtained an apprehended violence order. There was subsequently a criminal hearing where the Magistrate was not satisfied that the version given by the mother could be accepted beyond reasonable doubt. The father spent six weeks on remand awaiting hearing before he was released. During oral evidence the father vehemently denied this incident and asserts the mother framed him. I am able to find that on this day the father at least behaved in a threatening and intimidating manner towards the mother.

PARENTAL RESPONSIBILITY

104. Given that there is family violence in this case, there is no presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility.
105. I find it is not in the best interests of the child for an equal shared parental responsibility order to be made in any event. There is no communication between the parties and it is unlikely that situation would change any time soon. The mother has agreed to provide particular information to the father about the child’s welfare from time to time. There is no point however making an order that the parents genuinely consult about major long term issues. Given that the child will ordinarily live with the mother, she should have sole parental responsibility for the child, apart from the issue in relation to the child’s surname which I deal with below.

TIME

106. Given that there will be no order for equal shared parental responsibility, the provisions of s 65DAA of the Act are not triggered. Even if they were, I would find in this case that it is not reasonably practicable to order equal time or substantial and significant time given the total lack of ability of the parents to communicate with one another.
107. Taking into consideration the matters referred to above, and in particular considerations under s 60CC(2)(b) and s 60CC(2A) of the Act, I conclude that it is in the child’s best interest only to have recognition contact with the father as proposed by the Independent Children’s Lawyer and the mother.
108. Given that that is my conclusion, there is no need to implement the drug testing regime that the father has proposed in his orders.
109. I have previously made orders, during the time when the final phase of the hearing was pending, for the child to see her father at a child contact centre. Those orders were never made to work, principally because the father was unable to organise himself to complete the intake procedures at the child contact centre (he gave reasons relating to an injury to his foot and a breakdown of a motor vehicle). Whilst I do not comment on the validity of those reasons, the fact is, the father was not able to organise himself to get that regime of contact working. I do not think there is any particular need to take that risk again. The mother wants a contact centre because she does not like the paternal grandmother or the father’s new partner.
110. Both women gave evidence before me and in the context of the personalities in this case, I was reasonably impressed particularly with the father’s new partner. The paternal grandmother is in fact a State certified carer of two of her grandchildren. Whilst the mother has some justification for being critical about the insights of both women into the extent of the father’s drug taking, I am confident that if the father was affected by drugs to the extent that he would be a danger to the child, that neither the paternal grandmother nor the father’s current partner would allow the child to be with him. The risks are small given the amount of time that is involved. In those circumstances I conclude that supervision need not be at a contact centre but can be conducted by the paternal grandmother and the father’s current partner.
111. The Independent Children’s Lawyer had originally floated the idea that the father could be at changeover with a supervisor at Suburb M Police Station. I inquired as to whether or not the mother was attracted to that idea on the basis that she could then make some observation of the father before the child went with the father. The mother indicated through her counsel that because of incidents that have taken place between the parties in the past, the mother would give up that advantage of observing the father’s condition before time with the child in preference for not having to have face to face contact with the father. Accordingly, changeover will happen between the mother and either of the two nominated supervisors at Suburb M Police Station.
112. The father sought an order that the mother provide him with the names and addresses of treating doctors and treating medical specialists. There is no necessity to do that. There will be an order however, that the mother provide by email to the father copies of any reports from any medical specialist consultant that the child attends.
113. The father asks for an order that he be permitted to attend any school event relating to the child to which the parents are ordinarily invited and to any of the child’s extra-curricular activities. Given the level of conflict between the parties and the orders for recognition contact that have been made, it is not in the child’s best interest to make that order.

CHANGE OF NAME

114. As indicated above, the mother wishes to change the child’s surname to Hurley. The father opposes that change of name, wanting the child’s surname to remain the same as his. The Independent Children’s Lawyer proposes a middle course by changing the child’s surname to Simpson-Hurley.
115. In Reynolds and Sherman (2015) FLC 93-659, the Full Court expressed a “tentative view” that an order dealing with a child’s name and not allocating that responsibility to one or both the parents, falls within the broad terms of s 64B(2)(i) of the Act and is therefore a “parenting order” (see also Boland J in Ryan and Burnett [2008] FamCAFC 72). With respect, the tentative view expressed by the Full Court in Reynolds and Sherman must be the correct view.Section 64B(2)(i) relates to a parenting order which deals with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child”. “Parental responsibility” means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 4 and s 61B of the Act). Parental responsibility includes making a decision about a major long-term issue in relation to the child (see s 65DACof the Act). Major long-term issues are defined in s 4 of the Act to include:

(d) the child’s name

116. It follows from the construction of the Act that a decision in relation to a child’s name is a decision about a major long term issue. A decision about a major long term issue is an exercise of parental responsibility. Accordingly, a decision about a child’s name is in my view a decision about an aspect of parental responsibility.
117. It follows that when considering the issue of the name by which a child is known, I must regard the best interests of the child as the paramount consideration.
118. In Chapman and Palmer (1978) FLC 90-510 at p 77,674, the Full Court said that in any application concerning the change of a child’s surname:

….The guiding principle is that the welfare of the child [now best interests] is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.

119. The Full Court went on to say at pp 77,675-77,676 [as punctuated in the report]:

… the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:

(a) the welfare of the child is the paramount consideration,

(b) the short and long term effects of any change in the child’s surname,

(c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage or relationship.

(f) The effect of frequent or random changes of name.

120. The mother’s motivation for wanting to change the child’s surname is so that the child will have the same surname as herself and F (the child’s half-sister who comes into the child’s household every alternate weekend and half of school holidays). The mother says it is appropriate to change the child’s surname if an order is made for the child to only have recognition contact with the father.
121. Counsel for the father refers to a statement in the mother’s affidavit where she says, “I want [the child] to have a father in her life”. He submitted that that statement is contradictory to the mother’s proposal whereby she seeks not only limited recognition time between the child and father but also for the child to forego using the father’s surname.
122. Further, counsel for the father submits that if the court were to make an order in accordance with that sought by the Independent Children’s Lawyer, then given the mother’s attitude to the father and the father’s family, it is a reasonable expectation that Simpson (as part of a hyphenated surname) will shortly be dropped off and the surname will ultimately remain as only Hurley.
123. I am not attracted to the hyphenated name as suggested by the Independent Children’s Lawyer because I accept the argument of counsel for the father that it is likely that at school the first part of the surname will be dropped off given the length of the double barrel name.
124. I accept that if the child’s name is to be changed then it is better that that happen prior to her going to school to save her from any embarrassment that she might experience if her name is changed by a court or by agreement at a later stage.
125. There is some risk with only recognition contact that the child will not have a close connection with the father or his family. There is also some risk that given the father’s mental status and his use of drugs and its attendant lifestyle, the father may drift out of the child’s life.
126. At this stage however, the father is indicating an interest to remain known to the child and be part of the child’s life. It will in my view be useful for the child’s future sense of identity to retain the surname that she currently has. The retention of the father’s surname might also assist in the event that the father at some future date is able to rehabilitate himself sufficiently to open the door to a more expansive relationship with the child when she is older.
127. I conclude it is in the child’s best interest for her to retain her current surname.