Ambrose and Bead

[2017] FCCA 681

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMBROSE & BEAD [2017] FCCA 681

Catchwords:
FAMILY LAW – Parenting – Application by father to effectively change child’s surname – father did not agree to hyphenation – father’s application refused as not an order in the child’s best interest.

Legislation:

Family Law Act 1975 (Cth), s.60CC(2)(3)

Cases cited:
Flanagan & Handcock [2001] FamCA 189
Mahony & McKenzie (1993) 16 Fam LR 803

Applicant: MR AMBROSE

Respondent: MS BEAD

File Number: SYC 6332 of 2014

Judgment of: Judge Henderson

Hearing date: 9 March 2017

Date of Last Submission: 9 March 2017

Delivered at: Sydney

Delivered on: 21 March 2017

REPRESENTATION

For the Applicant: In person

For the Respondent: In person

ORDERS

1. The application filed by the father on 29 June 2015 to injunct the mother from using any surname other than Ambrose as the child’s surname is dismissed.

2. The Mother may use the name Bead as the child’s surname.

IT IS NOTED that publication of this judgment under the pseudonym Ambrose & Bead is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6332 of 2014

MR AMBROSE

Applicant

And

MS BEAD

Respondent

REASONS FOR JUDGMENT

1. This is an application by a father to injunct and restrain the mother from using any name for his son, X, other than X, and for that surname to be used for all purposes.

2. The reality is X’s name has been known as X for some years now. I accept that this name, that is X, is the name the mother determined to use in the absence of the father’s expressed agreement or consent and that his name on his birth certificate is X.

3. Both parties were self-represented before me. The mother made a concession in her material that she would concede to X’s surname being hyphenated, either X or X. For her, it did not matter that he had both parents’ surnames reflected in his surname. The father disagreed with any such hyphenating of his son’s surname.

4. The evidence for the Father was as follows;

   a)his amended application filed 27 April 2016;

   b)his affidavit 1 February 2017;

   c)A case outline prepared which was very helpful;

   d)A minute of the orders he sought was marked his exhibit 1;

   e)Exhibit 2 was the enrolment of X at preschool in relation to the name that he was enrolled under.

5. The mother’s evidence was;

   a)her affidavits of 2 February 2017 and 18 June 2015;

   b)her amended response of 4 September 2016;

   c)The mother also prepared a case outline.

6. The final orders that the father seeks are extraordinarily extensive on, really, such a narrow issue. They go for some nine paragraphs.

7. However, what they do contemplate is as set out in paragraph 7, that the parents may need to obtain some professional assistance for their son if his surname is changed to Ambrose.

8. Neither parent sought to ask the other questions and the matter was dealt with by way of submissions.

The relevant facts

1. The mother has used for X’s surname Bead effectively since his birth despite his surname on his birth certificate being Ambrose.

2. The reality is that X knows himself as X.

3. The mother’s asserted conversations with X that he said he had with his father at paragraph 4 of her affidavit of 2 February 2017, if correct, are very concerning. For example, they begin at paragraph 9 of the mother’s affidavit, she says this:

   “On 15 December 2016 X said to me, “Daddy keeps telling me my name is X, but I say no, my name’s X, you’re being silly Daddy”.”

4. At paragraph 10;

   “On 17 December 2017 X said to me “Daddy spoke to me about my name again. I told him he’s not allowed to talk to me about that.” I said, “What did Daddy say?”. X said, “He laughed and said he could talk to me about whatever he wanted”.”

5. At paragraph 11;

   “On 19 December 2016, X said to me “Daddy is saying the wrong thing. He’s being silly… he says my name is X when I was a baby and he told me that Mummy just is just saying things”. I said “What do you think about that Darling?”, to which he said “Is there any way you can make him stop? He is being silly.”

6. If those conversations are true, and I am in no position today to say that they are, they are both inappropriate and not child-focused. I cannot say whether these conversations are correct or that this is what the father is saying to the child. I accept the mother’s evidence this is what her son reported to her in using these sorts of words.

7. The father may well be, and clearly is, furious that the mother does not use his son’s registered name on his birth certificate, namely his surname, Ambrose, to describe X in official documents such as enrolment at school and the like. That anger or the consequence of the mother’s decision is not something that X should have to deal with. Thus, I trust that this behaviour, if it is occurring, will no longer occur for there is no doubt the father is very attached to his son.

8. The mother asserts that she told the father she wanted X to have her surname because the parents really did not cohabitate for any significant period after X’s birth. The mother’s case is that the father wasn’t ready to be a father and effectively left her on her own with her son, as a form of abandonment.

9. The mother asserts that she told the father she was using her surname, Bead, as X’s in August 2013 and that the father has known since at least that time that this is the surname she has used for their son.

10. The mother agreed that when she told the father she was using Bead as X’s surname, the father said he was not happy about that. The mother describes in her affidavit very disrespectful behaviour towards her from the father, being; the use of very poor language, cutting her off and dismissing her concerns. The mother describes this behaviour from X’s birth. The mother describes a lack of support from the father for her, particularly when X was first born, and that the father really was not ready to be parent initially. The mother does not contend that this is now the case however.

11. The mother said that the father was not really a responsible parent when X was born and so, because she was effectively a sole parent for X, it was very important that he had her surname of Bead and that that was the common usage that she wanted to adopt.

12. Fortunately, as I see it, the father was self-represented at this hearing. As I read his material, there had been a very combatative approach in my opinion, and a very unhelpful attitude towards these proceedings by the father’s former lawyers towards the mother. There was a rights-based parenting position taken previously which has now significantly diminished as the parents have agreed on every aspect of parenting, save for the use of X’s surname, and they are to be congratulated on coming to that agreement.

13. The father’s case is that the child having a different surname to him will alienate him from his child. The father makes this assertion despite final orders for the child to spend ultimately significant and substantial time with him during holidays, weekends, festivals, and before and after school as he ages. The father is clearly, by the orders and by consent, involved in all aspects of his son’s life. The surname of his son is an important issue for the father. However it seems to me it is much less significant or important for X.

14. It is clear from both the mother and the father’s material, and particularly from the father’s affidavit of 3 February 2017, that X is confused at times about his surname.

15. If I look at paragraph 35 of the father’s affidavit of 1 February 2017, he says this:

    “On 29 January 2017 at (omitted) at (omitted), NSW, whilst in the company of my new partner and my parents, X struck up a conversation with a young family in the resort who made comment to the effect, “Your family called you.” X then said, “They are not my real family.” Later that day, I asked X why he said I was not his real family and X said, “Because you’re not.” I assured X that I’m his father and his family. I fear having a different surname to X will serve to alienate me from X. I do not want X to feel alienated from me and my side of the family by not sharing my surname, especially in circumstances where he will be living primarily with Ms Bead.”

16. Paragraph 38, the father says :

    “Ms Bead has engaged in a pattern of conduct of unilaterally making decisions about X as to care/education and other matters such as the use of the surname “Bead.” If X’s surname is changed from “Ambrose”, I am concerned it will continue to make it more difficult for me to practically fulfil my duties and responsibilities to X in circumstances where on a practical level Ms Bead is, and will continue to be, the parent who has the primary, in timing and frequency, contact with others involved in X’s life such as at his place of education, healthcare, sporting and other activities and otherwise.”

17. That assertion by the father in paragraph 38 is simply incorrect. The reason it is incorrect is that the surname of a child in no way, shape or form has any impact upon the parents’ capacity or obligations and duties to their child, or their capacity to parent their child or be involved in all aspects of their child’s life. If the father just thinks on this, it would mean that for a mother who did not change her surname from the name she had at marriage, but whose children have the name of their father, would also find it more difficult to practically fulfil her duties and responsibilities to her children. That is simply is not the case. The surname a child has is absolutely no impediment whatsoever to a parent exercising parental responsibility and this father is well placed to exercise parental responsibility towards his son.

18. Paragraph 40, the father says in his affidavit:

    I am proud of my culture and family history and I want to pass that legacy onto X so that he also can know who he is and identify with his paternal family history. My father is (nationality omitted), my mother is (nationality omitted), and in both cultures, the male is expected to bear the family name. At present, apart from X, there are no other male Ambroses to carry on the family name.”

    That is clearly very important to the father and I accept that. However, the father does not want a hyphenated name. It is only Ambrose that he will accept.

19. I do not accept that for X having a separate surname, or a different surname to either of his parents, would impact on his relationship with them. He is their child, they are his parents, and his surname or his parents’ surname is not an issue for X. It is an issue for his parents however, that is clear. X is cognisant of this dispute, clearly, on the evidence. He has, in his short life, always known himself to be X. This is raised by both parents in their affidavit.

20. This is a parenting matter and I must have regard to section 60CC(2) and (3) of the Family Law Act1975 in relation to these issues and I have had regard to such that are relevant.[1]

    [1] Family Law Act 1975 (Cth), s. 60CC(2)(3).

21. The order that the father seeks will change the usual arrangements for X; that being that X’s surname, which is now Bead, would be changed to Ambrose. The reality is that to change X’s surname now to Ambrose will confuse X. Of that I am clear, and I am concerned to subject a child to counselling in order for the child to accommodate a need of a parent in relation to a surname, unless there are some other factors at play here.

22. What other factors are in play? I can see none other than the need of the father. I have formed the view that changing X’s surname at this time is not an order in X’s best interest, although it would be an order in his father’s best interest and his father would be very happy about that. That however, is not the law.

23. The father does not want a hyphenated name as the mother’s proposed and, therefore, I will not make that order.

24. When I go to the case law, I turn to the decision of Flanagan & Handcock.[2] The children in that case, as here, had a clear sense of identification with their father and it was inappropriate, the Court found, to ask the mother to change the surname she had chosen for the children. X has a clear identification, knowledge of his father and understanding who his father is and to change his surname now would be merely confusing for the child.

    [2] Flanagan & Handcock [2001] FamCA 189.

25. In the decision of Mahony & McKenzie,[3] a hyphenated name was determined by the Court to be an order in the children’s best interests as that would reflect each parent’s surname for the child. However, the father does not agree to a hyphenated name in this matter.

    [3] Mahony & McKenzie (1993) 16 Fam LR 803.

26. I do not have any concerns that X does not know who his father is; he clearly does know who his father is. Additionally in their decision, the Court determined to change a children’s surname to their father’s name to ameliorate the father’s resentment and anger at the children not having his surname, and that that such an order would make it easier or better for them in terms of their relationship with their father.

27. If I had formed the view that that was the attitude of Mr Ambrose, then I would be concerned to make any orders for Mr Ambrose to spend time with his son. However, that is not the attitude of this father. He will never have anger or resentment towards his son for decisions the Court may make. One would question in this day and age how the Court could have even made the order they did it in the factual circumstances that are described. These types of applications are clearly, when one has a look at these cases, very much fact-based and very specific to the facts of each case.

28. I am most concerned at this stage that to change X’s surname now to Ambrose when he has known himself as X, and not have some hyphenation of both names, would be significantly confusing to X and I do not see that that this is then an order in his best interest and, therefore, the father’s application cannot succeed

I certify that the preceding thirty –six (36) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 5 April 2017