B and D

[2004] FCWA 153

JURISDICTION :

FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY LAW ACT 1975

LOCATION	: PERTH
CITATION	:  B and D [2004] FCWA 153
CORAM	: PENNY J
HEARD	:  15 NOVEMBER 2004
DELIVERED	:  24 NOVEMBER 2004
FILE NO/S	:  PT 3603 of 1999
BETWEEN	: B

Applicant/mother

AND

D

Respondent/Father

Catchwords:
Children's issues - application to change surname of children
Legislation:
Family Law Act 1975

Category: Not Reportable

Representation:
Counsel:

Applicant	:	Ms A Gangemi
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Durand Gangemi
Respondent	:	Self Represented Litigant

Case(s) referred to in judgment(s):

Beach and Stemmler (1979) FLC 90-692 Chapman and Palmer (1978) FLC 90-510 Flanagan and Handcock (2001) FLC 93-074

1 The wife seeks to change the surname of the children of the marriage C, born 1991 and H, born 1994 from R to B. The application is opposed by the husband.

2 The parties separated in May 1995. The two children of the marriage, C and H, have resided with the wife since that time. The husband commenced proceedings seeking contact to the children in 1999. Contact has been problematic and the children have not seen the husband now for some years. The relationship between the husband and wife is extremely poor, and C and H expressed a strong desire not to have contact with the husband. In March 2003 orders were made by consent that the husband have contact with the children subject to their wishes.

3 While the children have had no contact with the husband, they have had frequent contact with the husband's family, particularly his sister and his mother. Mrs R has sworn an affidavit on behalf of the wife supporting her application.

4 On 17 February 1999 the husband, who up until that time was known as D P R, changed his name by Deed Poll to D J D. The wife is unaware of the reasons why the husband changed his name or chose the names he did.

5 In or about January 2003 the wife commenced living in a de facto relationship with Mr B. They were married on 5 September 2003, and from that date the wife adopted the surname of B.

6 The children now have a strong bond with the wife's present husband and have expressed a desire to have the same surname as the wife. This is particularly so in relation to C, who will be commencing year 8 in high school next year.

7 The wife says that for the children to have the same surname as herself would make the children happier and more comfortable. The husband opposes the application and says that the wife has brought this application to change the children's surname merely to further distance himself from them.

The law

8 In Flanagan and Handcock (2001) FLC 93-074 the Full Court considered in relation to an application to change a child's surname, whether the best interests of the child were the paramount consideration. Kay and Holden JJ stated at p 88,299:

"Thus the obligation to name a child and the power to change a child's name is clearly an aspect of parental responsibility as defined by s 61B. A dispute between persons appropriately interested, including between the parents of a child, is ultimately to be resolved by the making of a parenting order which, insofar as it is other than a residence, contact or maintenance order, is a "specific issues order", to be made under the provisions of s 65D which is certainly governed by the provisions of s 65E, namely the paramountcy provision."

Their Honours went on to say at p 88,303:

"if the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration………."

9 Her Honour Justice Finn when considering the same issue stated that given the changes to the Family Law Act in 1995 and lack of authority on the issue, it could not be said that the trial judge was wrong "in his ultimate resort to the best interests, nor in his resort to assistance from some earlier full Court authority."

10 In Chapman and Palmer (1978) FLC 90-510, a decision made prior to the amendments of the Family Law Act 1995, the Full Court set out a number of matters which should be taken into account when determining an application of this nature apart from the best interests of the child. They were:

• the short and long term effects of any change in the child's surname;

• any embarrassment likely to be experienced by the child if her name is different from that of the parent with custody or care and control;

• any confusion of identity which may arise for the child if his or her name is changed or not changed;

• the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;

• the effect of frequent or random changes of name.

11 In Beach and Stemmler (1979) FLC 90-692, Connor J identified a number of other factors which should be taken into account in addition to those set out in Chapman. Those relevant to these proceedings are as follows:

• The contact the husband has had and is likely to have in the future with the children;

• The degree of identification the children have with the husband;

• The degree of identification which the children have now with the wife and their step-father;

• The desire of the husband that the original name be restored.

12 Applying all factors relevant to this matter, I am satisfied:

• there will be no short term or long term negative effects of a change in their surname;

• the children have no relationship with the husband at the present time, have not had personal contact with him for a number of years and are unlikely to do so in the future;

• they bear a surname that not even the husband now bears;

• while this surname identifies them with their extended family and, in particular, their grandmother and aunts and uncles, these people support the wife's application that their surname should be changed to their step-father's surname;

• the grandmother is adamant that this will not affect her relationship with her grandchildren and, indeed, she believes it will be in their best interests to now be part of this new family unit;

• there will be no confusion of identity for the children, in fact, one would think that their continued use of a surname which relates to neither their mother nor their father, would be a source of confusion for them and will be an embarrassing factor for them to have to explain in the future.

13 I am satisfied that a change of the children's name from R to their step-father's name, B, is not only in the children's best interests, but will be advantageous to them both in the short term and long term, in that at least they will have a surname which relates to a parent and step-parent.

Proposed orders

1 The wife be given leave to change the surname of the children C M R born 6 December 1991, and H J R born 3 July 1994 from R to B.

2 The Registrar of Births Deaths and Marriages in the State of Western Australia be directed and is authorised to alter the Birth Certificates of the said children to reflect the change in the children's surnames from R to B.

3 The said application and response otherwise be and are hereby dismissed

I certify that the preceding [13] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate