A and B (No.2)
[2003] FMCAfam 530
•27 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & B (No.2) | [2003] FMCAfam 530 |
| FAMILY LAW – Children – contact – name of child – best interests of the child – use of hyphenated surname proposed – child of school age. |
Family Law Act 1975 (Cth), s.65D
Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510
Beach & Stemmler(1979) FLC 90-692
Mahony & McKenzie (1993) FLC 92-408
Flanagan and Handcock (2001) FLC 93-074
| Applicant: | M A |
| Respondent: | K E B |
| File No: | PAM 3073 of 2003 |
| Delivered on: | 27 November 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 24 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Shaddick Baker & Paull |
| Counsel for the Respondent: | Mr Maddox |
| Solicitors for the Respondent: | Ian Harper & Co |
ORDERS
The child F A born 3 January 1998 is to be known as F J A-B for all purposes.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3073 of 2003
| M A |
Applicant
And
| K E B |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a little girl called F, who was born on 3rd January 1998, for an order that would permit her to use the hyphenated surname “A-B” for the child, instead of just the surname of “A”. The child currently has the surname of “A”, and this was the name that appears on her birth certificate. “A” is the father’s surname.
The father opposes the application. He seeks that the child should retain the surname of “A”, although he conceded through his counsel that the name “B” could be added as one of the child’s given names.
Background
The mother and father lived together from 1997 until they separated in August 2001. There is one child of the relationship, F, who was born on 3rd January 1998. F will reach the age of 6 on 3rd January next.
F lives with her mother. The parties consented to orders on
20th October 2003 that F would live with the mother and the father would have contact. The only matter that they have not been able to agree about is the question of the child’s name.
There is no doubt that the child’s name appears on her birth certificate as “A”. It is also clear that, for the most part, the child was known by the name of “A” before the parties separated. The father has annexed to his affidavit a copy of a certificate entitled “Certificate of Namegiving, Appointment of Godparent”, dated 22nd March 1998, showing that the child was referred to as “F Jane A”. A civil marriage celebrant conducted a ceremony at which the child’s name was publicised to friends and family members. The father described the ceremony “as an alternative to having F christened in a religious service.”[1] Despite the non-religious nature of the service, the parties still appointed a Godparent.
[1] Father’s affidavit sworn 17 November 2003, paragraph 6
The mother pointed to one instance where the child was known as “A-B” prior to separation. She says that the child was enrolled in a riding club under the hyphenated surname.
Issues
As is often the case, the father says that he found out in April this year that F was attending G Public School, where she is in kindergarten, under the name of “A-B”. The father says that F told him that her name at school was F A-B. The father says that this was done unilaterally by the mother, without his consent. He deposed that when he found out that the child was enrolled at the school under the hyphenated name, he demanded that the name should be changed back.
The mother claims that the change to the surname is at least partly due to the expressed wish of the child. She says that she and the child live with her mother, I B, and the child asked why her surname was different from theirs. The mother claims that she told the child that she could add the name “B” to the end of her name if she wanted to.
The father denies that the child has ever expressed any desire to be known by any other surname than “A”.
The relevant law
In Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510, the Full Court of the Family Court stated that the general principle appeared to be that the Court would not intervene to prevent a parent from changing the name of a child in the custody (however described) of that parent unless satisfied that “The change was made without the consent of the other parent and that it does not promote the welfare of the child.”
The Full Court set out the factors to which a Court should have regard in determining whether there should be a change in the child’s surname:
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 suffered by the child if (the child’s) name is different from that of the parent with custody or care and control[2];
d)any confusion of identity which may arise for the child if his or her name is changed or not changed;
e)the effect which any change of surname may have on the relationship between the child and the parent whose name the child bore during the marriage (or during the period of cohabitation); and
f)The effect of frequent or random changes of name.[3]
[2] In other words, the parent with whom the child lives
[3] See at pages 77,675 and 77,676 of the decision.
In Beach and Stemmler (1979) FLC 90-692 Connor J took into account the matters set out in Chapman and Palmer and mentioned certain other matters that may be relevant, including:
a)The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now;
b)The contact that the husband (or father) has had and is likely to have in the future with the children;
c)The degree of identification that the children now have with their father; and
d)The desire of the father that the original name be restored.[4]
[4] At page 78,693
The decision of Warnick J in Mahony and McKenzie (1993)
FLC 92-408 refers to a case, not unlike this one, where the child had been registered in the father’s surname at birth. The mother had reverted to the use of her family name, by itself, after the parties separated. The father found out that the child was attending pre-school under the mother’s surname, and sought orders to ensure that the child was known by his surname.
The Court attached no significance to the fact that the child’s surname had been registered under the father’s surname at birth, and held that a number of benefits could be expected to arise from the use of a hyphenated surname, made up of the surnames of each parent. One such advantage was that the use of the name accorded with the reality of life. The child in that case had an ongoing relationship with both his parents, even though they did not live together.
In Flanagan and Handcock (2001) FLC 93-074, the Full Court of the Family Court held that the power to change a child’s name is clearly an aspect of parental responsibility as defined by s. 61B. The resolution of a dispute between the parents of a child about that child’s name is ultimately to be resolved by the making of a specific issues order under the provisions of s. 65D, which is governed by the provisions of s. 65E. That section requires the Court to consider that the welfare of the child is the paramount consideration.
Conclusions
I am satisfied that the child was usually known by the surname of “A” before the parties separated. It also appears to me that the mother decided to use the hyphenated surname of “A-B” without the father’s consent. The father was annoyed when he found out that the child was listed under that name at school, and “demanded” that the name be changed back.
The father says that the child does not use the hyphenated surname when she is with him, but this may well be a reflection of the child’s awareness that her father objects to the use of anything but his name. He is clearly involved as a part of his daughter’s life and wishes to remain so.
The fact is that the mother does not wish to remove the father’s name from the child, she wishes to add her own surname. The father is objecting to the child having the mother’s name as well as his own.
There is no independent evidence about the wishes of the child on this issue. She lives with her mother and grandmother, both of whom have the surname of “B”. She also has a strong ongoing relationship with her father, who has the surname of “A”. Like Warnick J in Mahony and McKenzie, I see that there are advantages to this child in having a hyphenated surname made up of the names of both of her parents. It seems to accord with the reality of her life.
The parents did make a decision to register the child’s surname as “A” at birth, but the situation has changed. They are no longer together. I do not see that the father’s surname is inherently superior to the mother’s surname; they are equally important. I believe that it is in the best interests of the child to have a surname that reflects her parentage and allows her to identify with both her mother and her Grandmother. To refuse to allow the name of either parent to be used would be prejudicial to the child, in my view, as it could be seen as a statement that one of those names was in some way inferior.
I do not believe, with respect, that the father’s “fallback” position, adding the mother’s surname as a given name, is an acceptable situation. It seems a second-rate arrangement, and sounds like a grudging compromise to me.
It is for these reasons that I propose to order that the child’s name should be “A-B”.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 27 November 2003
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