Acerbi & Hodson
[2025] FedCFamC1F 87
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acerbi & Hodson [2025] FedCFamC1F 87
File number(s): CAC 2440 of 2022 Judgment of: BRASCH J Date of judgment: 11 February 2025 Catchwords: FAMILY LAW - PARENTING - Children's last names - Where the mother changed her own and the children's last name to the last name of her then partner after he committed a serious crime and died in the same violence - Where mother serving a lengthy custodial sentence for complicity in this crime - Where children have no biological connection to the deceased former partner - Where all parties agree oldest child's last name be changed to his father's - Where mother seeks to keep the deceased former partner's last name for the two younger children and hyphenate it with each child's respective father's last name - Where all other parties propose the children have the last names of their respective fathers - Order made - No hyphenation - Children to have last name of their respective fathers - All other proposed consent orders in best interests of children Legislation: Family Law Act 1975 (Cth) ss 64B and 60CC Cases cited: Lysons & Lysons & Anor [2019] FamCAFC 29
Reagan and Orton [2016] FamCA 330
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 11 February 2025 Place: Canberra Counsel for the Applicants: Mr L. Finch (direct brief) Counsel for the First Respondent: Mr V. Cataldi Solicitor for the First Respondent: Christina Lam & Associates Counsel for the Second Respondent: Ms R. Lyons Solicitor for the Second Respondent: Guy Sara and Associates Lawyers Solicitor for the Independent Children's Lawyer: Ms C. Mussato ORDERS
CAC 2440 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ACERBI
First Applicant
MR ACERBI
Second Applicant
AND: MS HODSON
First Respondent
MR MICHELAKIS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
11 FEBRUARY 2025
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders are discharged.
2.Ms Acerbi and Mr Acerbi (“the carers”) shall have sole decision-making responsibility for all major long-term decisions for X (to be changed to the last name of Mr C) born in 2007, Y (to be changed to the last name of Mr B) born in 2013 and Z (to be changed to the last name of Mr Michelakis) born in 2017 (“the children”).
3.For the purpose of Order 2 and only in respect to the child Z:
(a)Prior to making a major long-term decision the carers shall write to Mr Michelakis (the second respondent) about the decision to be made;
(b)Give him 14 days to provide his views in writing;
(c)The carers shall take his views into consideration when making the decision; and
(d)Within 7 days of making the decision, the carers shall inform Mr Michelakis of the decision made in writing.
4.The children shall live with the carers.
X’s last name
5.The carers are entitled to apply to the relevant Registrar of Births, Deaths and Marriages in Victoria, without the involvement or consent of the biological parents, to have the name of the child X, born in 2007, changed to the last name of Mr C.
Communications
6.The mother may send the children, letters, gifts and cards, which are to be posted to an address provided to the mother by the carers, and:
(a)Upon receiving such items, the carers will inform the children and give them the opportunity to receive or read the material;
(b)If any of the children do not want to receive or read the material, the carers will keep the material for them and provide it to them when they request; and
(c)If any of the children wish to respond to the mother this will be facilitated by the carers.
7.If either X or Y wish to communicate or spend time with the mother either in writing or otherwise, the carers will facilitate this occurring.
Z and the mother
8.Z will have video calls with her mother on 4 occasions each year, if this can be facilitated by the relevant correctional centre in December, March, June and August in each year and:
(a)The video call is to be no longer than 30 minutes;
(b)If on any occasion Z does not want to speak to her mother, the carers will advise the mother on the video call; and
(c)The frequency of these calls may increase if Z expresses a wish to do so and it can be facilitated by the relevant correctional facility.
9.During the video call between Z and her mother, the mother must not:
(a)Make any negative comments about Mr Michelakis or the carers;
(b)Directly ask Z for information in relation to her siblings; and
(c)Directly question Z about her wishes in relation to future video calls.
10.At the conclusion of each school term the carers will provide the mother with a written update in relation to Z, including but not limited to information about her health, education (including school reports, school newsletter photos and school photos), overseas travel, extra-curricular activities and any other significant events that have occurred.
Z and the second respondent father
11.Unless otherwise agreed in writing between the second respondent father, Mr Michelakis (“the father”) and the carers, Z will spend time with her father as follows:
(a)Once each school term for a period of no less than two (2) overnights in Region D, upon him giving the carers 21 days’ notice of his intention to travel, and the father will ensure that Z attends all activities and school commitments during the time she is in his care;
(b)During each school holidays for a period of no less than two (2) overnights in Region D, upon him giving the carers 21 days’ notice of his intention to travel, and the father will ensure that Z attends all activities during the time she is in his care; and
(c)For Christmas each year the father will spend overnight time between 19 and 21 December, but if the carers intend to travel overseas during these dates, they shall give the father 21 days’ notice and nominate alternate dates for him to spend time with Z in the Christmas period.
12.This Order acts as authority for any school attended by Z to provide to the father at his own expense, information usually shared with a parent such as, but not limited to, school reports, school or class photographs, and access to any electronic platform that a parent is usually able to access.
13.This Order acts as an authority for any health professional, attended by Z to provide the father all details of any attendances, medical reports or other information in relation to her health and wellbeing at his own expense.
14.The carers and the father may provide a copy of these orders to any school or health professional engaged for Z.
15.The father may call/video the child each Sunday between 6:00 pm and 7:00 pm, with the father to initiate the call/video and at any other reasonable time as requested by Z, and:
(a)If Z wishes to call her father, the carers will facilitate this occurring; and
(b)The father may call Z on special occasions if he is not already spending time with her in person, including Z’s birthday and Father’s Day.
16.Not before six (6) months from the date of these orders, the father and the carers will attend mediation, on the condition that the father initiates the mediation process.
AND THE COURT ORDERS THAT:
17.The carers are entitled to apply to the relevant Registrar of Births, Deaths and Marriages in Victoria, without the involvement or consent of the biological parents, to have the children's last names changed in line with the following:
(a)The name of the child Y, born in 2013, changed to the last name of Mr B; and
(b)The child named Z, born in 2017, changed to the last name of Mr Michelakis.
18.In the event any wording in this Order constrains or otherwise fetters the carers’ ability to secure last name changes for the children with the Office of Births, Deaths and Marriages (or however so styled) in line with this order, they have liberty to approach chambers by email copying the relevant respondent/s with an affidavit explaining the problem and proposing a solution, under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
AND THE COURT FURTHER ORDERS THAT:
19.The Independent Children's Lawyer be discharged.
20.All extent applications are dismissed.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) 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 "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these orders.
B.Each of the legal representatives advised the court their respective clients agreed to the consent orders, without demur from the clients, including those on-line.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
Consent Orders
I am well familiar with this matter, having been involved in it since its very first return on the Critical Incident List. The three children have had considerable complexity in their lives, in circumstances which are well known to the parties. I am satisfied that the orders that are proposed are in the children's best interests.
I consider X is of an age, really, where he can do what he likes, but now can have his name changed, which I understand from the Independent Children’s Lawyer (“ICL”), is something that is important to him.
I also think the orders need to, and do, tread carefully with respect to Y and his mother in the circumstances that are, again, well known to the parties.
With respect to Z, I consider that there should be some certainty between Z and her father, Mr Michelakis, in terms of time. I think the proposal is an age-appropriate regime. Insofar as communication between Z and her mother, I am satisfied that what is proposed is in Z's best interests and sets out constraints to make sure the conversations stay on track and are age appropriate for her.
I accept what is said in the two expert reports that are before me and that have been essentially adopted by all parties in giving Z some time with her mother but, of course, that is time that will need to occur by video for the reasons everybody understands. I consider those orders that are handed up to me in the draft, being orders 1 through to 17 (although 5 and 6 have now been combined as one) to be in the children's best interests, and I make those orders on a final basis by consent.
Name change dispute and agreement
There are three children in this matter and the issue that is now in dispute is the last names [of the younger two]. The applicants, who have been called throughout these proceedings “the carers”, are Ms and Mr Acerbi. They were both born in 1983. They were neighbours or friends of the first respondent mother but have had the care of the three children for some time now.
In all documents before me, the first respondent mother is named “Ms Hodson”. I am told she was known as “Hodson” in the criminal proceedings as well. She was born in 1986.
The second respondent is Mr Michelakis, who was born in 1983.
The three children are as follows.
X was born in 2007. His father is Mr C. Mr C has been able to make his own arrangements to spend time with X at least since the matter has been before me in the last couple of years. It is agreed by everybody that X change his name to that of Mr C. I am told by the very experienced ICL that he is firm in that view, which was re-expressed only a couple of weeks ago, and it stands to reason in some of the circumstances I am about to describe.
I was told this morning again by the ICL, who has met with and talked to the children, that X really wants to be able to change his name before his 18th birthday. All parties and, in particular, the mother, who is online appearing from a correctional centre, consent to an order that he be able to do that. I trust that the applicants will, consistent with X's views, make that happen as soon as they possibly can, and if they need any assistance from the ICL, I am sure she will help.
The dispute - Y and Z’s last names
The dispute then about last names focuses on Y and Z.
Y was born in 2013. He is 11. Y's father was Mr B. He died in 2016. He died as a result of an incident involving the mother's then partner, Mr E. Mr E was born in 1967 and had a short relationship with the mother.
Z was born after Mr E died. Z was born in 2017. She is still young. She would not understand the concept of last names. Her father is Mr Michelakis, who is the second respondent in these proceedings.
The dispute that is before me now is set out on the last page of the consent orders that were handed up to me, and that I have already made. The dispute is whether Y’s last name should be that of Mr B or, as the mother proposes, the names of both Mr E and Mr B hyphenated. I pause to observe, whilst the mother might have changed her name to that of Mr E, that is also the last name of the man who perpetrated a serious crime against Y's father. It seems common ground that the mother changed the children's last names to that of Mr E a few months after Mr E perpetrated this crime against Y's father. Mr E also died in the process.
Similar is sought for Z. It is proposed that Z change her name to Z Michelakis, her father's name. The mother proposes the name be changed to the last names of Mr E and Mr Michelakis hyphenated. Again, Z was born after Mr E perpetrated a serious crime against Y's father and also died in the process.
It is not necessary for me to say any more about the background to this matter given how narrow the dispute is. The parties put on trial material and some of it touches upon the children's last names.
Legal Principles
The principles for a change in name are clear.
The Court has power to order a change of name for a child. Section 64B(2)(i) of the Family Law Act (“the Act”) gives the Court power to make parenting orders dealing with relevantly:
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Despite what I would consider to be an earlier equivocation in change of name cases, the Full Court of the Family Court in Lysons & Lysons & Anor [2019] FamCAFC 29 at paragraph [2] said:
It is entirely correct to say that orders as to the child's name are parenting orders within the meaning of section 64B of the Act and therefore must be made in the child's best interests, taking into account the considerations raised by section 60CC.
Even though s 60CC and other parts of the Act changed a couple of years ago, I have no reason to suspect that that statement of law is now wrong. Indeed, it must undoubtedly be right.
Older cases, such as Reagan and Orton [2016] FamCA 330 at [34] per Foster J, set out a range of matters a court might consider when determining whether to change children's name. They include:
The factors frequently considered in determining whether there should be any change to a child's name include:
a.Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
b.Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
c.The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
d.The effect of frequent or random changes of name;
e.The contact that the non-custodial parent has had and is likely to have in the future with the child;
f.The degree of identification that the child or children have with their non-custodial parent; and
g.The degree of identification which the child or children have with the parent with whom they live.
Submissions
The mother's submissions were to the effect that the children ought keep a link to the name of Mr E as that is the mother's legal name. I note though, that the children's names were not changed until after Mr E perpetrated a serious crime against Y's father. I can understand to a degree the link she sees for herself, but I must look broader than the link between Mr E and her. I again pause to observe she is known as Ms Hodson in all the proceedings before me. There is the wider picture though of the link to Mr E.
The applicants, who have been caring for the children, highlight that the mother changed the children's last name to that of Mr E after a serious crime had been committed, and Mr Finch of Counsel for the applicants says that the mother was only married to Mr E for a number of days. I do not think very much turns on that because it remains that the last name of Mr E is, as the mother says, her legal name now. But it is also a name that surely must, for the children, link them to a tragedy that saw Y's father taken from them, and in reality, saw their mother taken from them and, in another reality, saw her partner Mr E taken from them.
Mr Finch for the carers also highlights what Dr F says at paragraph 48 [of her report] - that the mother said she “married the wrong person”. Submissions highlighted that keeping the last name of Mr E was really to honour a man, whom I will frankly call a criminal.
The second respondent, Mr Michelakis, adopted the submissions of the carers. Ms Lyons, though, helpfully took me to parts of the family report where Y said at paragraph 89, “that [Mr E’s surname] does not feel right.” There could hardly be any surprises there. There is also a mention at paragraph 73 about Mr E having no biological relationship to any of the children.
I was very much helped by the ICL’s submissions; she had talked to the children only a couple of weeks ago. X was adamant [about his last name] and all parties have heeded to his wishes.
I am told by Madam ICL that Y finds the name of Mr E upsetting, and again it was highlighted that Z's name became that of Mr E after the death of Y's father and of Mr E in a serious crime.
At paragraph 75, the mother says in her affidavit:
I believe that my children sharing a surname shows their connection with each other and hope for this to continue.
By virtue of the consent orders I have made today, the children will now not have a common last name. Everybody has appropriately acceded to X's wishes, and he will, no doubt as soon as he possibly can, be changing his name to the last name of Mr C.
The mother also says something in her affidavit which really highlights why it is not in the children's best interests to have the name of Mr E included in their names at paragraph 76:
However, I understand the name [of Mr E] may carry negative connotations due to the actions of [Mr E].
At one point, the mother proposed a combination of her names - interestingly, Hodson or her maiden name - hyphenated with their respective father's last names. But that is not the proposal that is in writing before me, placed with the papers and signed by me earlier when I made consent orders.
Discussion and disposition
(a) any embarrassment likely to be experienced by a child if his or her name is different from the parent with residence or care of control
I turn to the kind of factors to which I must give thought as set out from Regan; the first of which is any embarrassment likely to be experienced by a child if his or her name is different from the parent with residence or care of control.
These principles that Foster J highlighted really came from mother and father relationships. Of course, it is slightly different here, but I can only imagine the embarrassment it could well cause any of the children and, particularly now, I am focused on the younger two - Y and Z - whose last name is in dispute.
I can only imagine it would be a horrifying thing to be in a school yard or at a university and somebody saying to you, "Oh, are you related too…?". I accept Mr E’s surname is not the most unusual name, but I am told and have no reason to doubt that the circumstances of the children's mother and [Y’s] father is, as submitted earlier by one of the parties “plastered all over the internet.”
I think there is something very persuasive in the children's best interests in terms of their last names, to be saved whatever embarrassment or opprobrium from being linked to the man who perpetrated a serious crime against, in Y's case, his father and, in Z's case, against her brother's father.
(b) Any confusion of identity which may arise for the child if his or her name is changed or is not changed
This is, in the circumstances of this case, a variation on the first consideration. I can understand why the mother would like the link of the last name of Mr E from her to the children, but there is a much broader picture here and one that sees her serving a prison sentence for her involvement in a serious crime perpetrated by Mr E.
(c) The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship
The mother has been Ms Hodson. She has changed her name to that of Mr E. She changed the children's name to that of Mr E but, on the evidence before me, there is one constant for each of the three children and that is the last name of their father. For X, Mr C. For Y, Mr B, and on the material that is before me, he seems that he is suffering a great loss. His father is no longer alive but to the applicants' great credit, they are involving Y in the wider paternal family. I commend them for doing that and that really ought continue as Y too has lost his mother.
Z's father is Mr Michelakis. So, there is a continuity there for each of the children to have the name of their father. Yes, that is three different names, but I am satisfied X, Y and Z have a very strong sibship bond, and I can only imagine that that bond is something that has got them through the loss of Y's father, the loss of Mr E, who had some involvement in their lives, and the loss of their mother, in what might be a loss for many years.
(d) The effect of frequent or random changes of name
This is irrelevant.
(e) The contact that the non-custodial parent has had and is likely to have in the future with the child
Again, this consideration is not quite why we are here. Arrangements have been put in place for the boys to engage with the mother if they wish. There is an arrangement in place that Z will be able to keep a link to her mother, but there are arrangements in place for Mr C and Mr Michelakis to continue to have time with their children. There is an identity then for X and for Z with their fathers and for Y with his wider paternal family.
(f) The degree of identification that the child or children have with their non-custodial parent
(g) The degree of identification which the child or children have with the parent with whom they live
This really touches on what the ICL told me about the children's wishes. The degree of identification the children have with whom they are living is one that does not, in reality, apply here. The applicants have the last name of Acerbi but in evidence that is before me, X, Y and Z - as painful as what I am about to say may be to Ms Hodson - have taken to their carers and see them very much in the position of a mother and father. The Acerbis also have their own children and have suffered a tragic loss with the loss of one of their own children. On all the evidence before me, including expert reports, X, Y and Z, now have stability arising out of absolute tragedy.
The final consideration (g) does not really arise.
Section 60CC factors
I finally then give some thought to the s 60CC factors. This is not really one where promoting the children's safety is relevant – we are talking about last names - but I have their wishes, which is, of course, an integral part of the s 60CC(2) factors.
The capacity to provide for the children and the children's needs: the children's needs are best served by having names linked to their fathers, not a name linked to the man who perpetrated a serious crime against Y's father and, therefore, X and Z losing their sibling Y’s father.
Relationships in s 60CC(2): this is not really a relationship matter, suffice to note that X will be spending time [with his father] as he wishes, and Z, per a regime with a man [her father] whose last name each shall now share.
‘Anything else’ is the final s 60CC factor. I do not see anything else.
Accordingly, for those reasons, I consider it to be in Y and Z's best interests to make the following orders.
Slip-rule
I will hear from the parties, but I propose to make a further order - basically, a slip rule order - because, I have, particularly in the Critical Incident List, come to learn that some Births, Deaths and Marriages can be very particular about the [form of] orders [for a name change].
Accordingly, I propose to make a further order to the effect that if the wording in any of these orders constrains or fetters the applicants' ability to change the children's name or X's ability to change his name, then they are at liberty to approach chambers by email with an affidavit setting out the problem, copying all other parties, and proposing a solution.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 19 February 2025
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