Astil & Sampson
[2008] FamCAFC 15
•26 February 2008
FAMILY COURT OF AUSTRALIA
| ASTIL & SAMPSON | [2008] FamCAFC 15 |
| FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – Change of child’s name – Whether the Federal Magistrate erred in restraining the mother from altering the child’s name – Appeal Dismissed. COSTS – No order as to costs. |
| Family Law Act 1975 (Cth) |
| Beech & Stemmler (1979) FLC 90-692 |
| APPELLANT: | MS ASTIL |
| RESPONDENT: | MR SAMPSON |
| FILE NUMBER: | BRM | 8314 | of | 2005 |
| APPEAL NUMBER: | NA | 72 | of | 2007 |
| DATE DELIVERED: | 26 February 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 25 February 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 October 2007 |
| LOWER COURT MNC: | [2007] FMCfam 634 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | DK Law Solicitors |
Orders
That the appeal be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Astil & Sampson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 72 of 2007
File Number: BRM 8314 of 2005
| MS ASTIL |
Appellant
And
| MR SAMPSON |
Respondent
REASONS FOR JUDGMENT
I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (“the Act”).
The mother appeals from part of the orders made by Federal Magistrate Slack on 3 October 2007. The mother had asked in a Reply filed 3 November 2005 for orders as follows:
2.a. That the mother be authorised to apply to the Registrar of Births, Deaths and Marriages, that the child previously registered as ‘J Sampson’ be now registered as ‘J Astil’.
b.That a sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages who is requested to give effect to any such application.
3. That the child known as J Astil reside with the mother.
The father resisted such orders at the final hearing and the Federal Magistrate ordered that:
1.That the mother be restrained from altering the name of the child from J […] Sampson or from causing the child to be known by any other name.
The parents were otherwise able to agree on parenting arrangements for the child including equal shared responsibility and that the father has substantial amounts of time with the child.
Although part of the mother’s grounds of appeal took issue with findings of fact made by the Federal Magistrate, there are some matters which are uncontroversial. The parties commenced a relationship on 2 November 2003, married in 2004 and finally separated on 24 April 2005. There is one child of the marriage, J Sampson, born in January 2005. The child’s name registered on his birth certificate is J Sampson. It is clear that J will live with his mother.
The father is from Vanuatu and currently has a permanent residency visa to remain in Australia.
The mother has two other boys aged 14 and 16 years living with her. Their surname is Astil being the name of their father, her first husband. The mother explained that she has used the surname Astil for 14 of the past 18 years, except for a short period when she used the surname of her second husband, and again when she used the surname of Sampson, her third husband. Following her divorce from Mr Sampson, the mother has returned to the name Astil. It is this surname that the mother wishes to use for J.
In paragraph 13 of the judgment his Honour correctly set out the major points in the mother’s case:
13.The concerns raised by the mother (and her submissions for the change of name) are set out in her written submissions and affidavit. At paragraph 51 of her affidavit she says:
“My concerns are the effect on our child of having a different surname to myself and his two older brothers as we all live together. As he grows older, it would likely cause identity confusion and embarrassment if he has a different name to us, compounded by the risk of feeling displaced as he will have the slightly darker skin to us as well. There is also the practicality involved with areas of society he may deal with from time to time, where questions are bound to be asked if he has a different surname. I not only consider it is in our child’s best interests but also in the best interests of my older sons as the connections between the three of them.
I have been using my previous married name Astil for myself and our child since mid 2005. Before doing this, I was advised by several legal resources in Government departments that changing a child’s name by usage was allowed, and that a parent may then apply to the Court if the other parent did not agree to a change in the registration. I also asked my first ex-husband and his parents if they would object to the use of their family name for both me and my youngest child. I never sought to change my oldest sons names, despite being separated from their father since 1994 and being remarried twice after, showing the gravity I view this decision with.”
14.The mother seeks to register the child’s name as “J Sampson Astil”. She says that:
“his current middle name […]’ is a ‘Vanuatu surname’ (which the father did not tell me at the time of naming him) but which holds no special familial significance. Changes [sic] his middle name to ‘Sampson’ means he would still be carrying his father’s name and could therefore use it later in life if he chooses to. Astil is the legal surname of my two older sons and myself, and the surname I have used for J and myself for nearly two years. I am prepared to give an undertaking to the Court that I will not seek any further name change for our child, even in the very unlikely event I were to remarry at some time in the future.”
The mother submitted that the cross examination of the father revealed that the name Sampson was of no specific significance. Certainly, reading the transcript this evidence is confusing. However, Sampson is the name used by the father as his last name and it is also the last name of his father. Although the mother put forward various propositions about the culture of Vanuatu in her affidavit and submissions, the father did not agree and there was no expert evidence available to his Honour.
FM Slack made a number of findings, some of which the mother now takes issue submitting that they were not open to him. For example, in paragraph 17:
17 e)The father did not consent to the mother’s change in the usage of the name although she has been using the name “Astil” for the child since 2005.
It emerged from the evidence that the mother had sent the father a text message in mid 2005 simply informing him that she intended to call the child, J Astil, but that he had taken no active steps to restrain her from this course until the morning of the final hearing.
Further in paragraph 17, his Honour said:
17 f)It is difficult to assess what role the father will ultimately play in the child’s life. Although there has not been any overt conflict between the parents, there are a number of underlying issues between these parents which would suggest it is unlikely that they will have any significant co-operative parenting relationship in the future.
The mother told me that currently the child is having contact with the father most weekends for day periods only due to his age although the fathers time with the child in the past had been less reliable.
It was not submitted by the mother that his Honour applied any wrong principles in the sense of incorrectly applying the Act however, it was submitted that a proper appreciation of those provisions, especially of section 60CC and the numerous authorities to which she referred would lead to a different result.
Of some importance it was not suggested by the mother or the solicitor for the father that the principles to be applied to such orders being an injunction would be other than the best interest principle (see Flanagan & Handcock (2001) FLC 93-074).
His Honour concluded that the application is for a “parenting order” as defined in s 64 of the Act and that the best interest of the child must be regarded as the paramount consideration. In paragraph 18 d) his Honour set our the particular matters which he should consider relevant to section 60CC:
18 d)As part of the relevant s.60CC factors, the Court should take into account (as identified in the authorities referred to above):
(i)The short and long term effects of any change in the child’s surname.
(ii)Any embarrassment likely to be experienced by the child if his name is different from that of the parent with whom he lives.
(iii)Any confusion of identity which may arise for the child if his name is changed or is not changed.
(iv)The effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(v)The effect of frequent or random changes of name.
(vi)The advantages both in the short term and the long term which will accrue to the child if his name remains as it is registered.
(vii)The contact that the father has had or is likely to have in the future with the child.
(viii)The degree of identification that the child has with his father.
(ix)The degree of identification that the child has with his mother and step-brothers.
(x)The desire of the father that the original name be restored.
As it was submitted by the mother that his Honour’s reasons insufficiently complied with the provisions of section 60CC and were otherwise against a line of authority, it is useful to set out the essence of his Honour’s reasons in refusing the mother’s application and imposing the injunction:
20.My reasons for reaching that conclusion are as follows:
a)I am not satisfied that the child, at the moment, identifies with any particular surname and at his current stage of development, a change back to his registered name would not likely have any significant impact on his welfare.
b)The change of name proposed by the mother (although the name of his brothers) is not the birth name of either his mother or his father. It is the name of one of the mother’s former husbands. It is unlikely the child will ever identify with that person.
c)A primary consideration in s.60CC is the benefit of the child having a meaningful relationship with both of his parents. This child will likely predominantly be cared for by his mother. He will have a strong identification with her because of the primacy of that relationship. His connection to his father will be important in his overall development but he is not likely to spend as much time with his father as he does with his mother. A connection that he does have with his father is the name that he was given at birth which was agreed to by both his parents. To change the name strips him of a connection to his father.
d)The mother has, in the past, adopted the name of her husband when married. She has not considered that to have a different name to her other children would have caused embarrassment or adverse impact on those children. I do not accept the mother’s contention that it is unlikely that she will form any new relationship or remarry.
e)I intend to take judicial notice of the fact that, in society, there are many children who bear a different name to the parent with whom they live (both in intact families and in separated families). I do not accept that it would necessarily be the case that the child would be embarrassed by having a different name to his mother or brothers, or without proper management of the issue that such an occurrence would likely cause any significant adverse consequences for the child.
f)The mother is a very capable person as she has already demonstrated the capacity to protect the emotional security of the child. I do consider that she can manage this issue for the child such that it does not create any adverse consequences for him.
g)There have been difficulties in the relationship between the mother and father since the birth of the child and I consider those difficulties (not the least of which the publication by the mother of an article about her relationship with the father in a national magazine) have been the cause of some of the father’s absences from the development of his relationship with his child. I anticipate that once the child moves beyond the primacy of his relationship with his mother that it is likely that his father will maintain his relationship with him.
h)The father did not consent and had no part to play in the mother’s decision to change the child’s name.
i)I attach weight to the agreement that the parties reached at the time of the child’s birth about the name he was to be given.
With the possible exception of paragraph d) the evidence supported these findings and correctly identified the issues relating to the child’s best interests.
Appellant’s Argument
In a careful analysis of a number of cases referred to by the appellant, it was submitted by her that the facts of this case should have lead to the result as asked by the mother in her application to the Court.
Apart from the obvious difficulty that in such highly discretionary matters all cases turn on their own facts (see Flanagan & Handcock (supra) Para 35) there are no cases which would lead to such a conclusion based on so called ‘principle’. In addition it was submitted that his Honour mistook the law in this regard. There are six factors referred to in Chapman & Palmer (1978) FLC 90-605 and further factors in Beach & Stemmler (1979) FLC 90-692. These are reproduced, with the exception of one, in his Honour’s judgment at paragraph 18 to which reference has been made.
It is also submitted that the trial Judge failed to properly consider the decision of Warnick J in Fooks & McCarthy (1994) FLC 92-450 in particular that the fact of registering a surname at birth should not be “visited” against the parent now suggesting a change, merely because such registration was, in very different circumstances consented to at the time.
A very useful summary of the cases about changing children’s names in this Court is contained in the joint judgment of Kay & Holden JJ in Flanagan & Handcock (supra). It demonstrates the complexity of such decisions and the emphasis that must be placed on the child as opposed to the parents.
Of interest in Beach & Stemmler (supra) Connor J said at p.78,693:
In many cases it might be convenient for a custodial parent to have the child’s name changed but I do not believe that mere convenience by itself is a sufficient reason for changing a name.
Respondent’s Argument
In essence it was submitted on behalf of the respondent that the father did not consent to the mother’s change of name although he was made aware of it by her.
Further that even if some factual errors were made in the judgment none were such as to influence the outcome of the proceedings. Overall it was submitted that his Honour had due regard to the provisions of the Act and the principles set out in the various cases.
Conclusion
As his Honour correctly observed, the best interests of the child must be the paramount consideration. In addition, his Honour correctly identified the relevant factors in section 60CC and applied these to the facts of this case.
Appellate Courts can only interfere with an exercise of discretion within certain well defined limits (see House v The King (1936) 55 CLR 499 and De Winter v De Winter (1979) FLC 90-605). It is necessary to demonstrate an error of principle, an error of fact or the arrival of a result that is plainly wrong.
I am not persuaded that in his determination of this matter his Honour was mistaken or otherwise erred.
Overall his Honour’s decision to grant the injunction in relation to the child’s surname was within a proper exercise of discretion and the mother’s appeal should not succeed.
Costs
At the conclusion of the appeal an application was made on behalf of the respondent that should the appeal fail an order for costs should be made. Reliance was placed on the provisions of section 117(2A) of the Act and in particular that the appeal had failed. It was said by the solicitor on behalf of the father that he is employed part time as a security guard.
In response the mother strongly resists an order for costs explaining her current poor financial circumstances including that she is on a single parents benefit and that as a result of the relationship she is bankrupt. In view of the particularly difficult financial circumstances of the mother, including that the father is in arrears of Child Support, no order should be made for costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May
Associate:
Date: 26.02.08
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