AUSTIN & BENNING - [2018] FamCA 1111

FAMILY COURT OF AUSTRALIA

AUSTIN & BENNING

[2018] FamCA 1111

FAMILY LAW – CHILDREN – where the mother seeks to change the children’s surname to represent a hyphenated surname of the mother and father’s surnames – undefended hearing – where the father has filed no material in response to the mother’s application – order made to change the children’s surname – injunction made restraining the parties from using any other surname of the children.

FAMILY LAW – STAY – where the father sought a stay of any order made changing the children’s surname – application dismissed.

FAMILY LAW – COSTS – costs order made against the father fixed in the amount of $5,000

Family Law Act 1975 (Cth) ss 4(1), 60CC, 64B 117.
Family Law Rules 2004 (Cth) r 19.18.

Chapman & Palmer (1978) FLC 90-510
Dunst & Dunst [2014] FamCA 964
In the Marriage of Mahony & McKenzie (1993) FLC 92-408
I and I (1995) FLC 92-625
Lenova & Lenova (Costs) [2011] FamCAFC 141

APPLICANT:

Ms Austin

RESPONDENT:

Mr Benning

FILE NUMBER:

MLC

11979

2017

DATE DELIVERED:

21 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

11 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Salamanca
SOLICITOR FOR THE APPLICANT:	Gold Stone Family Lawyers

THE RESPONDENT:

In Person

Orders

(1)That the child previously known as X BENNING, born on … 2013, now be known as X AUSTIN-BENNING.
(2)That the child previously known as Y BENNING, born on … 2014, now be known as Y AUSTIN-BENNING.
(3)That the child previously known as Z BENNING, born on … 2017, now be known as Z AUSTIN-BENNING.
(4)That the Applicant Mother apply to the Victorian Registry of Births Deaths and Marriages to register the change of the children’s name, in accordance with Order 1, 2 and 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
(5)That each party be restrained from using or being party to or complicit in the use of any surname for any of the said children other than Austin-Benning.
(6)That the Respondent Father pay the Mother’s costs fixed in the sum of $5,000.
(7)That all extant applications in relation to parenting orders be dismissed.
(8)That all extant applications for final property orders be placed in the list of cases awaiting allocation to a Judicial Docket.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Austin & Benning has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AUSTIN & BENNING

Details

AGLC: AUSTIN & BENNING [2018] FamCA 1111
Case: [2018] FamCA 1111
Decision Date: 21 December 2018

CaseChat Overview and Summary

The mother sought orders to change the surname of the parties' three children to a hyphenated surname combining the mother's and father's surnames. The father had not filed any material in response to the mother's application. The court, presided over by Johns J, made orders to change the children's surnames and issued an injunction restraining the parties from using any other surname for the children. The father subsequently sought a stay of any order changing the children's surname, which was dismissed.

The primary legal issues before the court were whether to grant the mother's application to change the children's surname to a hyphenated form and whether to grant the father's application for a stay of any such order. The court also considered the matter of costs.

Johns J reasoned that the father's failure to file any material in response to the mother's application indicated a lack of objection to the proposed name change. In the absence of any evidence suggesting the change would be detrimental to the children's welfare, the court proceeded to make the orders sought by the mother. The court also ordered the father to pay the mother's costs fixed at $5,000.

The court ordered that the children, previously known as X Benning, Y Benning, and Z Benning, be known as X Austin-Benning, Y Austin-Benning, and Z Austin-Benning respectively. The mother was directed to register these changes with the Victorian Registry of Births Deaths and Marriages. Furthermore, each party was restrained from using any surname for the children other than Austin-Benning. All extant applications relating to parenting orders were dismissed, and applications for final property orders were placed on a list awaiting allocation.

Orders

Orders of the court

(1) That the child previously known as X BENNING, born on … 2013, now be known as X AUSTIN-BENNING.

(2) That the child previously known as Y BENNING, born on … 2014, now be known as Y AUSTIN-BENNING.

(3) That the child previously known as Z BENNING, born on … 2017, now be known as Z AUSTIN-BENNING.

(4) That the Applicant Mother apply to the Victorian Registry of Births Deaths and Marriages to register the change of the children’s name, in accordance with Order 1, 2 and 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

(5) That each party be restrained from using or being party to or complicit in the use of any surname for any of the said children other than Austin-Benning.

(6) That the Respondent Father pay the Mother’s costs fixed in the sum of $5,000.

(7) That all extant applications in relation to parenting orders be dismissed.

(8) That all extant applications for final property orders be placed in the list of cases awaiting allocation to a Judicial Docket.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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