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…
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CaseChat Overview and Summary
The primary legal issue before the court was whether to allow the children to retain or change their last names. The court had to weigh the children’s best interests against the mother's wishes and the practical implications of hyphenating last names. Additionally, the court needed to consider the children’s relationships with their respective fathers and the mother's custodial sentence.
The court determined that the children’s best interests were best served by having the last names of their respective fathers. The judge rejected the proposal for hyphenation, noting that it could cause confusion and was not in the children's best interests. The court also considered the children's lack of biological connection to the deceased former partner and the practical difficulties of maintaining hyphenated names. Ultimately, the court made an order that the children's last names be changed to their fathers' last names. Other proposed consent orders, which were in the children's best interests, were also approved by the court.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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