Ambrose and Bead (No.2)

[2017] FCCA 1130

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMBROSE & BEAD (No.2) [2017] FCCA 1130

Catchwords:
FAMILY LAW – Stay of order in relation to a child’s surname pending an appeal – stay refused.

Legislation:

Family Law Act 1975

Cases cited:

Aldridge & Keaton [2009] FLC 93

Applicant: MR AMBROSE

Respondent: MS BEAD

File Number: SYC 6332 of 2014

Judgment of: Judge Henderson

Hearing date: 18 May 2017

Date of Last Submission: 18 May 2017

Delivered at: Sydney

Delivered on: 18 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Levy

Solicitors for the Applicant: Gordon & Barry Lawyers

Counsel for the Respondent: In Person

ORDERS

1. The father’s stay application filed 2 May 2017 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ambrose & Bead (No.2) 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 for a stay of orders I made on 21 March 2017, in particular, order 1 of the application for a stay seeks that I stay Order 2 made on that date.

2. Order 2 is that the mother may use the name, Bead, as the child’s surname. That decision was made following a contested hearing where the parties had agreed on all aspects of parenting other than the child’s name. The child’s name on his birth certificate is registered as Ambrose. The child’s name has been and the mother has used as the child’s name X.

3. The father seeks an appeal from that decision saying at the least it should have been a hyphenated name of Ambrose-Bead, or I think as the mother also put forward in her material Bead-Ambrose. The decision I made was that the mother could use for the child’s name, the name Bead, as had been his used name.

4. Stay applications are well settled law. In Aldridge & Keaton[1] is probably the most quoted Family Law decision in relation to stay and particularly in relation to parenting matters. That decision is this.

   [1] Aldridge & Keaton [2009] FLC 93.

5. The onus is on the applicant to establish a proper basis for the stay.

6. The person who has obtained a judgment is entitled to the benefit of the judgment, entitled to presume it is correct.

7. A court must weigh the risk that the appeal will be read a nugatory if a stay is not granted.

8. The best interests if the child subject to the proceedings is the paramount consideration.

9. The mere filing of an appeal is not sufficient to warrant the granting of a stay.

10. Now, the father has moved quickly to file his appeal. It has not been filed on any basis of mal fides. He has a justiciable issue to put before the Court and he has exercised what is his entitlement.

11. There are issues raised about the manner by which I conducted the hearing, as is always the case, particularly with litigants in person, and the decision ultimately made. These are matters for the Full Court to determine.

12. The two areas which are of the most difficulty for me or have the most meat in them is whether, by not granting the stay I render the father’s appeal nugatory, or if, in granting or not the stay, I, in some way, impact negatively on upon a child’s interests.

13. I made my decision on the basis of the evidence before me on that occasion and as I said at paragraph 36 of my judgment:

    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 this is an order in his best interests and, therefore, the father’s application cannot succeed.

14. I made the decision on the basis that the father was very much against there being any hyphenation in any form, either Bead-Ambrose, or Ambrose-Bead of the surname. That the child had been known as Bead and I determined that that was an order in his best interests in those circumstances to retain that name and that remains the same today.

15. I do not see that by not staying Order 2 that I made on 21 March 2017 I am rendering the father’s appeal nugatory. Order 2 is that the mother may use the name Bead as the child’s surname. He has a name on his birth certificate of Ambrose. The order does not mention what name the father can use nor does it mention any other name to use. Order 2 says the mother may use the name, Bead, as the child’s surname.

16. That order may create some difficulties, however, I came to the decision after a contested hearing. I do not see that in not staying the order I render the father’s appeal nugatory.

17. The mother tells me the child is not to attend big school until 2019. Even if he was enrolled in big school under the name of Bead at the time of a re-hearing, that would be only one factor that any court would take into account in the re-exercise of discretion, if indeed that is what occurs and the Full Court does not re-exercise the discretion. That would be one factor to have regard to and there may be others.

18. For all those reasons I dismiss the father’s application for a stay.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  30 May 2017