HOLLAND v BELLAMY [2023] NZHC 2046

HOLLAND v BELLAMY [2023] NZHC 2046 [3 August 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-502[2023] NZHC 2046UNDER the Care of Children Act 2004IN THE MATTER of an appeal pursuant to s 143 of the ActBETWEEN A HOLLANDAppellantAND R BELLAMYRespondentHearing: 17 July 2023Appearances: L J Barry for the AppellantC J Nicholls for the RespondentS I Robinson Lawyer for ChildrenJudgment: 3 August 2023JUDGMENT OF OSBORNE JThis judgment was delivered by me on 3 August at 3.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:The naming issue[1] A mother wants to appeal a court order by which her infant twins were givennames. The mother had selected and was using her preferred names for the twins. Herestranged partner sought orders renaming the twins. This was what I shall refer to asthe "naming issue". In the Family Court, the lawyer for the children suggested onecompromise solution. The Judge explored with the parties another compromise.Neither parent was prepared to agree to a compromise solution. Each insisted on theirpreferred solution. In her judgment (the "Judgment"), Judge Montague imposed whatwas a compromise between the competing positions (the "Order").1[2] The essential question raised by this proposed appeal is whether the Orderfailed, on the facts and as a matter of law, to give effect to the welfare and best interestsof the children.A brief family history[3] Ms Holland and Mr Bellamy were once a couple. They are now estranged. Inthis judgment the names of those two people are anonymised, and their children'snames will appear only by initials.[4] They have twin daughters, now aged five years, whose names were the subjectof a proceeding heard in the Family Court in 2021. There are also two older childrenof 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 andJ) that the names L and S might appear somewhere in their names. In the event, theJudge declined Mr Bellamy's application for the twins' names to be changed from N1 Bellamy v Holland [2021] NZFC 7519 [the "Judgment"].and R, but directed Mr Bellamy's preferred names (L and S) be substituted as thetwins' middle names.2[8] Although the Order was not expressed in terms that required the Register ofBirths to reflect the ordered names, it is common ground between counsel that theintention of the Order was that the twins' names for legal purposes3 and formalpurposes of record be as ordered. The Court was not making an order directing howthe 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 leaveto 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 interms of the welfare and best interests of the children to outweigh theneed for stability for the children and the inevitable cost and delayinherent 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 substantiveappeal (should leave be granted) I have had the benefit of hearing the full substantivearguments. Given the significance of a child's identity in relation to their welfare andbest interests, I find it appropriate to grant leave.4Protracted appeal process[11] The appeal process has been protracted. The Judgment was delivered on29 July 2021, dealing with issues of relocation, day-to-day care and contact, inaddition 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 onrelocation, contact and names.[13] Counsel have explained that subsequent events, including new orders made inthe Family Court in November 2021, largely overtook the subject matter of the appealas initially filed. Since 2021 Mr Bellamy has not had contact with his children — thenew orders precluded him from having contact unless supervised, an option he hasrefused to take up.[14] Earlier this year the parties recognised the naming issue is the only remaininglive issue. Ms Holland then filed an amended notice of appeal identifying the groundsset 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 theJudgment as it relates to the twins' names.[16] The range of issues raised by the parties pertaining to the twins' names, theparties' 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 conductof the parties, the circumstances of the children, the family dynamics andrelationships. The Judge found the children were bonded and attached to theirparents.5 The children were not at risk of physical, sexual or psychological violencein either of their parents' care.6 However, the parties had shown a failure tocommunicate and consult effectively which had meant they had not fully engaged intheir roles as parents and guardians.7[17] Mr Bellamy brought his application on the basis he had not been consulted byMs Holland on the names N and R and he did not like those names. He would struggleto call the twins by those names. Hence his desire that the names be changed.85 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 first18 months of the twins' lives, she had not received any alternative names from himdespite requests for such. Ms Holland strongly believed it would be contrary to thetwins' best interests to change their names (even their middle names) and she feltunable to compromise on the issue.9[19] The Judge found it was unlikely Ms Holland consulted effectively withMr Bellamy. But the Judge also found Ms Holland had given Mr Bellamy theopportunity to provide alternative names, which Mr Bellamy failed to do as aconsequence of their poor communication.10[20] The Judge also found that Mr Bellamy would continue to call the twins L andS when they were with him, regardless of the Court's decision or the confusion thatmay cause them.11[21] The Judge referred to the psychological evidence as to confusion that can becaused by the name changes and the weight of psychological evidence against namechanges.12 The Judge observed:[79] I consider the confusion for the twins being called two differentnames by two different parents in two different homes, contrary to theirwelfare and best interests.[80] The confusion will extend to their interactions with friends, schooland other organisations they engage with. They cannot be subjected to that.[22] The Judge finally made her observation (above at [7]) that there had notappeared 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 tochange their names from N and R;13 but(b) it was appropriate to include L and S as middle names in substitutionfor the twins' existing middle names; first to reflect each of the parties'choices; secondly in an endeavour to dilute the adult conflict on thisissue; and, thirdly, to provide the twins with some connection betweentheir legal names and the names Mr Bellamy would be calling them.14Arrangements preceding the Family Court hearing[24] The parties' relationship from November 2010 to late 2017 has previously beendescribed as "on/off".15 In October 2014 Ms Holland had obtained (without notice) atemporary protection order, which later that year became final. The parties reconciled,with their second child born in May 2016. The parties conceived twins but hadseparated by the time they were born on 29 June 2018.[25] The parties had a defended Family Court hearing in June 2020 relating to careand contact arrangements. Judge A P Walsh ordered the children to be in Ms Holland'sday-to-day care and that there be contact with Mr Bellamy.16 Judge Walsh found thechildren were being exposed to ongoing conflict between their parents, withdisagreements over contact arrangements and the twins' names.17 The Judge observedany long-term care arrangement would need to take into account the poor state ofcommunication between the parties.18 The Judge made a number of interim orders asto day-to-day care and contact, directed lawyer for the children to file a s 46Rapplication if the naming issue was not promptly resolved, and further directed that abrief for a s 133 report be prepared.1913 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 parentingorders were suspended the following month.[27] The breach of protection order charge against Mr Bellamy was heard anddismissed in March 2021.20[28] In the meantime, Ms Keith prepared her s 133 report in circumstances whereMr 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. Sheidentified the evidence and other materials with which she had been provided. Shealso identified the cumulative (equivalent) periods over which she had observed thechildren and parents. In her introduction to the report she indicated there was scopefor furthering her assessment but, as I read the balance of the report, that furtherassessment would have focused on the other issues before the Family Court and notthe naming issue.[30] In her report, Ms Keith found Ms Holland demonstrated an ability to steer asteady, warm, authoritative and loving course with the children. While the olderchildren 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 byMs 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'spuzzlement as to how to 'fit' a parent figure into their growing but earlyconcepts of whose who and how connected is the bond in that they haveexperienced from birth, the names [N] and [R] in their dominant environment.It was noticeable that [Mr Bellamy] when calling to either twin, but mostparticularly [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 ledby the older two and their dad) both [N] and [R] at times showed no registering20 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 signsof attention and recognition that infants show in the use of their names.[32] In her report, Ms Keith commented specifically on her observations in relationto each child. As between N and R, she commented on the naming issue only inrelation to R. The full discussion of R's situation reads:[R] was observed in both observation sessions to be quietly confident of thephysical and emotional connection and help from both parents, but with just alittle bit of hesitation and puzzlement with dad at the outset. Whereas at herage and stage [R] in a sense is in a conjoint bubble with her mother as a sharedidentity that is slowly developing at a normal pace with her language andphysical skills taking her more and more into her own sense of being aseparated identity in relation to her parents. The gaps in contact and confusionaround her name adds an element that has her slightly less connected with herdad than with her mum. This is not yet at a level where in terms of the variousdescriptors of attachment styles, secure attachment would still be the moreaccurate summation of a relationship that is a work in progress in terms of thedeepening of the bond.However, the bewilderment that will grow around the father's determinationon principle to call the twins by different names may create anxiety andconfusion once the girls are into their fourth year of development. [MrBellamy] may be described as a maverick in his delight in proselytisingdifferent perspectives around societal norms, be they legal or otherwise. Hisinsight is limited as to the complications flowing from this, including for thechildren.[33] Although Ms Keith did not go on to specifically discuss the impact of thenaming 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 ofMr Bellamy calling the twins by different names in his household and encouraging theolder children to also do so thus:In many ways this question in the brief has been the most complex toformulate confident opinions about, based on scholarly research to guideprediction. Intuitively as it is played out in this situation it is harmful to thechildren.Having sought useful guidelines in scholarly research there hasn't beenhelpful information. However, one anthropological article referred to thenaming 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 thempersonally. As a participant observer in the situation, it was noticeably asource of increased anxiety in the writer as to getting it right in dad's carewhen referring to each twin. If as the writer feels, that the older children alsoexperience anxiety about getting it right, it's just another layer of complexitythat [Mr Bellamy's] unique ideas that are based on his outrage at not being apart of the early naming, that the children, other adults and in future timesteachers are drawn into the parental conflict. More seriously the whole issueis a direct result of [Mr Bellamy's] non-compliance with normal child-helpfultimeframes. His lack of insight and compromise runs the risk of overloadinghis 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 ofdisparate names when the difference reflects deeper conflict (betweenthe 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 withtheir father, "moments of hesitation" but the twins remained "the lovelykids they are during the observations of interaction with their father";and(e) thought the twins had already adapted to an extent to the naming issueand 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. MsKeith stated that her "only concern" about the naming issue was if the children carrythe 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 viewabout the compromise suggestion made by lawyer for the children (involving themixing 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 becausethe 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 Judgeenquired whether Mr Bellamy would consider a compromise whereby the names Land 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 ofMr Bellamy and Ms Holland. I do so because aspects of Ms Holland's appeal focusedon what are said to be outcomes of the Order that in some way validate Mr Bellamy'sunilateral behaviour. As I have already noted, it transpired at the Family Court hearingthat neither parent was prepared to compromise on their preferences when it came tothe naming issue. Their respective personalities have significantly affected variousproceedings in the Family Court, including this latest. A brief reference to pastfindings will provide some context for the impasse with which the Family Court wasdealing.[40] The parties have, over the years, made many negative allegations about theconduct of one another and of their respective parenting approaches. Many of thoseallegations 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 unwillingnessto resolve matters" have been a major cause of the dysfunction.22 There have been, inhis conduct, elements of psychological abuse towards Ms Holland.2321 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 byMs Holland. She complained of specific conduct of Mr Holland towards the olderdaughter and of a sexual permissiveness on his part — she contended that behaviourshould affect Mr Bellamy's contact. The Court found, contrary to Ms Holland'ssuggestions, the children were not at risk of physical, sexual or psychological violencein either parent's care.24SubmissionsMs Holland[43] For Ms Holland, Ms Barry submitted the making of the Order resulted fromtwo errors:(a) it was an error to enable Mr Bellamy to continue to refer to the twinsby different names because the use of different names would not servetheir welfare and best interests; and(b) the Judge failed to place sufficient weight on the children'spsychological wellbeing should the twins be referred to by differentnames between households.[44] Ms Barry submitted the Judge correctly concluded that:25[T]he confusion for the twins being called two different names by twodifferent parents in two different homes [is] contrary to their welfare and bestinterests.[45] Against that background, Ms Barry observed the Judge was faced with thelikelihood 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 whatMs Barry described as "the unacceptable state of play" — allowing Mr Bellamy to24 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 someformality around those names.[47] Ms Barry submitted the Order also gave credence to the idea that Mr Bellamy'spreferred names can and should be used in environments such as schools and medicalclinics.[48] She submitted the Order enables Mr Bellamy to continue to encourage theolder children to call the twins by his preferred names, placing the older children'semotional and psychological welfare at risk.[49] Finally, under this first head, Ms Barry submitted the Family Court could besaid to have "caved to Mr Bellamy's pressure", sending him a signal that unilateraldecisions 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 twinssuffering increased anxiety through the use of different names, reflecting deeperconflict between the parents.[51] In Ms Barry's submission, the Judge failed to place any "deeper weight" on theimpact the parental conflict was having on the children — the Judge instead seekingto "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 recognisedthe selection and imposition of children's names may have long-term psychologicalimpact — such as through ridicule and embarrassment;26 a child's resentment atresistance to a proposed name change;27 and distress and disturbance caused by aparent's choice of name.2826 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 ofthe evidence, to reach the conclusion represented by the Order.[54] Mr Nicholls submitted the Judge had correctly identified the test under s 4 ofthe Act as being the welfare and best interests of the children.[55] Mr Nicholls further submitted the most relevant principle relating to thechildren's welfare and best interests was, under s 5(f) of the Act, the preservation andstrengthening of the children's identities. In that regard, the Judge upheld the firstnames given and used by Ms Holland since the twins' birth upon the basis "[t]heirsense of identity should not be a casualty of their parents' failure to communicate".29The Judge was correct to find it was not in the twins' best interests for their first namesto 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 theirpreferred names for the twins.[57] Mr Nicholls submitted that the Judge's reasoning in reaching the compromisesolution30 was sound — a solution that reflected not only the wishes of the guardiansas to the given names of the children but also had the potential to dilute the adultconflict on the issue.[58] Mr Nicholls submitted there was an absence of evidence to indicate a legalchange of the twins' middle names was going to cause distress to either child or thattheir welfare would be compromised by such a change. He observed this was not acase 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 addressthe twins by his preferred names regardless of any court decision;(c) the Order has "some merit" in terms of providing a connection betweenthe twins' legal names and Mr Bellamy's preferred names;(d) but the change arguably formalises the parental conflict and theconfusion 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 forthe children.[61] Mr Robinson submitted the Judge, in the compromise approach, had failed togive sufficient emphasis to the anxiety the twins may suffer in the future.[62] Finally, Mr Robinson noted that, because there has been no contact betweenMr Bellamy and the children since mid-2021, the twins have for the last two yearsheard themselves identified only as N and R. Contact, should it resume betweenMr Bellamy and the twins with Mr Bellamy using his preferred names, is likely tocause 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 theirparticular circumstances are the first and paramount consideration in any proceedingsinvolving 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 bepreserved and strengthened.[66] Section 6 of the Act requires a child be given reasonable opportunities toexpress views on matters affecting the child, and also requires that account be takenof any views expressed by the child directly or through a representative. In the caseof the twins, that required the Family Court in 2021 to take account of the views putforward 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 thedetermination of questions about important matters affecting the child. Under s 16(2)the child's name and any changes to it are "important matters".DiscussionThe names the parents will use[68] All counsel at this hearing responsibly accepted the validity of the Judge'sfinding that Mr Bellamy will continue to call the twins L and S when they are withhim 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 nothave been open to the Judge (if refusing to change the twins' names at all) to imposeon Mr Bellamy an order prohibiting him from using in his interactions with the twinshis preferred names.[70] Accordingly, an important factual consideration for the Judge in reaching herdecision 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 centralconsideration relating to their welfare and best interests.31[72] The Judge correctly concluded on the evidence there did not appear to be anyparticular significance to either party attached to the twins' middle names.32 As themiddle names had not been used in interactions with the children, it was open to theJudge to conclude that removing the middle names of the children could notrealistically affect their welfare and best interests, whether in relation to their identityor otherwise.The twins' sense of identity as N and R[73] The Judge implicitly addressed the guardianship duties, powers, rights andresponsibilities of each parent (under s 16 of the Act) in the steps they had taken (ornot taken) to co-operate on the naming of the twins.33 It was open to the Judge, on theevidence, to conclude (as she did) that both parents bore responsibility for the failureof 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.34The potential adverse consequences of different names[75] The Judge considered the twins' welfare and best interests first by reference tothe potential adverse consequences, as identified by Ms Keith.[76] I referred (above at [28]–[36]) to the relevant content of Ms Keith's s 133report 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'sconclusions — referring to them as potential adverse consequences. It is also relevantthat Ms Keith expressly (above at [34]) referred to the lack of helpful information inscholarly 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 wasreinforced by the answers she gave during cross-examination by Ms Barry. Inresponse to the question relating to the impact (of the use of different names for thetwins) 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 momentsof hesitation in the early part of their time with their father, the twins "got on withbeing the lovely kids they are". When pressed again by Ms Barry as to a potentialimpact on the twins' personhood, Ms Keith responded by that "in the whole contextof 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 ortheir older siblings. What was identified was some risk of harm resulting fromconfusion in the way the parents called the twins, which the Judge correctly found tobe a matter (of risk) contrary to the welfare and best interests of the twins.35The primary response to the risk[80] The primary appropriate response to this risk was, as the Judge found, tomaintain N and R as the first names of the twins — that was what was in their bestinterests 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 beenexposed to his preferred names. All the twins' interactions with other people will haveinvolved 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 namesto be changed was therefore appropriate at the time of the decision and is all the moreso (because of intervening events) appropriate now. Mr Bellamy does not on thisappeal 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 particularsignificance is attached to their existing middle names.[84] The next practical consideration was that Mr Bellamy, in his contact with thetwins, 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 tothe statutorily important matter of the twins' names.37 While the Judge was entitled tofind, as she did, that the dysfunctional communication between the parents hadeffectively cancelled out the failure of each to effectively consult, the Judge at thepoint of determining the issues before the Family Court was still required to take intoaccount their statutory guardianship roles.[86] The position taken for Ms Holland could be described, in essence, as invitingthe Court to override Mr Bellamy's role in relation to the naming of the twins on theground 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 thechildren.[87] Properly read, the Judgment is not open to either criticism, whether in terms ofintention 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 theappropriate outcome.37 Judgment, above n 1, at [83].[89] Equally, the Judgment cannot be described as "send[ing] a message toMr Bellamy that unilateral decisions around the children are condoned". As I havediscussed, 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 tothe 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 notinvolve a "unilateral decision" of Mr Bellamy as to how the children would be legallyor formally known. The Court made that decision. What was left to the parents wasthe unilateral decision of each as to how they would each address the children in theirrespective 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 butalso 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 ofcompromise exhibited by either Ms Holland or Mr Bellamy in cross-examination, thehope that the Court's order might dilute the level of conflict between the couple mightseem optimistic. But it was properly a consideration open to the Judge in the interestsof the children. The history of the couple's relationship was one of entrencheddysfunction, as recognised by Judge Walsh following the June 2020 defended hearing.A compromise approach to naming the twins justified for other reasons could properlybe viewed by the Judge as all the more appropriate if it carried with it some (evenmodest) 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 compromiseapproach was that Mr Bellamy's preferred names:39 will at least have some connection to [the twins'] legal names, minimisingthe potential adverse impact on their sense of identity and mitigatingconfusion 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 beusing his preferred names for the twins. Having regard to the lack of particularsignificance attached by either party to the twins' existing middle names, the Judge'sreasoning is logical — the twins will appreciate that the name their father is using forthem 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 howthe twins should be registered on the Register of Births, it is clear the Order was toaffect 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 twodifferent names in the two different situations.41[96] The Judge, at that point of the Judgment, observed:42The confusion will extend to their interactions with friends, school and otherorganisations 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 theappeal as it stood, I should nevertheless allow it to the extent of attaching a conditionto the existing Order. That condition would require both Ms Holland and Mr Bellamy,in all dealings with organisations such as Government departments, schools, medicalpractices and other bodies that maintain client or membership lists, to identify thetwins' first names as the names to be used in communication.[98] Counsel all recognised that such a condition would have appropriately beenimposed by the Family Court given the finding in the Judgment that the twins shouldnot 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 correctlyconsidered the welfare and best interests of the children were best served by the Ordermade, 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 thereshould be no order as to the parties' costs and disbursements.[101] In the event the parties do not reach agreement in relation to costs anddisbursements 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 tofile second, within five working days after service of the appellant's submissions. Anysubmissions of lawyer for child to be filed and served within five working daysthereafter. In the event no memoranda are filed the order of this Court will be, withoutfurther 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 7519is granted in relation to the naming issue;(b) the appeal is allowed to the extent that the order at [125](b) of theJudgment is amended by adding the words "and [the appellant] and [therespondent] shall in all interactions between the twins and organisationssuch as Government departments, schools, medical practices, and otherbodies maintaining client or membership rolls ensure that suchorganisations identify the twins' first names as the names to be used incommunication concerning the twins";(c) the appeal is otherwise dismissed; and(d) the costs and disbursements of the appeal are reserved.Osborne JSolicitors:Tiaki Family Law, Lower HuttChris Nicholls Law, Lower HuttPaino & Robinson, Upper Hutt