B and L
[2007] FMCAfam 503
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & L | [2007] FMCAfam 503 |
| FAMILY LAW – Parenting orders – change of child’s surname. |
| Family Law Act 1975, Part VII |
| Flanagan and Handcock (2001) FLC 93-074 Chapman and Palmer (1978) FLC 90-150 Beach and Stemmler (1979) FLC 90-692 Mahony and McKenzie (1993) FLC 92-408 at p 80,185 George and Radford (1976) FLC 90-060 at p 75,296 Arthur and Comben (1977) FLC 90-245 at p 75,321 Sampson and Sampson (1977) FLC 90 253 at p 76,367 |
| Applicant: | KMB |
| Respondent: | GPL |
| File Number: | NCM1964 of 2006 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 28 June 2007 |
| Date of Last Submission: | 28 June 2007 |
| Delivered at: | Newcastle |
| Delivered on: | 20 July 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Gray |
| Solicitors for the Applicant: | Curtis Delaney Gray |
| Counsel for the Respondent: | Ms Hollins |
| Solicitors for the Respondent: | Waller Fry & Faulkner |
ORDERS
The mother KMB is authorised to apply to the Registrar of Births Deaths and Marriages NSW that the child registered as EBL born 23 September 2000 be now registered as EBL-B.
Pursuant s.28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in order 1 herein.
The mother is hereby restrained from causing the child to be known as EBB and must ensure that no other person does so.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM1964/2006
| KMB |
Applicant
And
| GPL |
Respondent
Introduction
This is an application for parenting orders in relation to a 6 year old boy, EBL. E was born on 23 September 2000. The parties can not agree as to what surname E is to be known as.
The applicant mother, KB, seeks an order that E’s surname be changed to ‘L-B’. His father, GL, wants his surname to remain ‘L’.
The evidence
The mother relied on her affidavit filed 20 June 2007 and the affidavits of her husband, MJB filed 20 June 2007 and her sister, TEB filed 22 June 2007.
The father relied on his affidavit filed 15 June 2007.
Both parties were cross examined as was Ms B. I found all witnesses to be truthful in their evidence.
It became clear that both parties honestly hold dear their respective positions and I find that neither party was motivated by anything other than to promote their son’s best interests as they see it.
The parties commenced a relationship in 1999 and lived together for about a year from March 2000. They separated when E was just 6 months old.
E’s birth was registered with the surname L and he has been known with that surname for all official purposes since his birth.
In December 2001 parenting orders were made by consent in the Local Court at Maitland that provided for E to live primarily with his mother and to spend time with his father.
The mother commenced a de facto relationship with Mr B in July 2003 and they married in June 2004. Prior to this marriage the mother had used the surname: T. She adopted her husband’s name at marriage. They have two children, MKB born 2 June 2004 and LAB who was born on 9 November 2005. E has a close relationship with M and L.
E started school at King Street Public School in Singleton in 2006. M is not due to commence school until 2009. Her parents intend to send her to the same school as E. He will be in year 3 in 2009.
The mother says that E was not consciously aware of having a different surname to her until the birth of his sisters. She gave evidence of a conversation she had with him on Christmas Day 2005 where he asked her why he had a different name. The mother explained to him the difference between his biological father and his step-father. In another conversation E asked if he could call his step-father “Daddy” and the mother suggested “Daddy M”. The father was not happy with E calling another man “Daddy” and told E not to.
The mother says that E has raised the issue on a number of occasions and it was he that suggested “L-B”. The mother says that until then she was not aware of the hyphenated word being used in her household.
The parties had discussions in early 2006 about E’s surname and could not reach an agreement. In May 2006 the mother filed an application in the Local Court at Singleton seeking the name change. The father responded seeking parenting orders as well as opposing the name change. Interim orders were made on 5 July 2006 providing for E to remain living primarily with his mother and increasing the time he spends with his father. The matter was transferred to the Federal Magistrates Court.
This court made final orders by consent on 22 May 2007 that provided for E to live with the Mother and spend time with the father each alternate weekend from Friday afternoon to Sunday afternoon and during school holidays. The only issue left remaining was the change of name.
The father plans to marry later this year and he informs the court that he and his future wife plan to have children together.
The father says that although he opposes the name change now, when E is older and more mature he would not stand in his way and would support him if he wanted to change his name.
Notwithstanding the parties separating when E was only a baby he has enjoyed a close relationship with his father and paternal family, especially the paternal grandparents.
The mother gave evidence of her assisting E’s class in 2006 when one child called her “Mrs L”. She observed E’s mouth to open and look upset. He said:
“Her name isn’t Mrs L its Mrs B”
The mother formed the view that E was embarrassed by this event.
At Christmas 2006 E referred to the “L-B” family when he spoke into a video camera at his maternal family’s Christmas function.
The mother described a number of other events which she says highlighted for her concerns as to confusion and embarrassment for E.
E is aware that his parents have a different view as to what name he should be called. Ms B gave evidence that she had a discussion with E in May of this year after he had just spent a weekend with his father. He said to her:
“I want to change my name to L B but Daddy doesn’t want me to. Daddy doesn’t want it changed.”
Ms B appropriately did not discuss this with him any further.
The father gave evidence that E recognises him as his real father and refers to him as “Dad”. The father is concerned that a change in name would lead to confusion for E.
He also expressed concern that if the hyphenated name was used the child would find its use cumbersome and confusing and eventually the first component may be dropped and the child would ultimately be known by the surname B.
Legal principles
In cases such as this the court will not ordinarily prevent a parent from changing the surname of a child in their care unless it is satisfied that it is made without the consent of the other parent and that it is not in the child’s best interests to do so. Obviously the father does not consent.
As in all children’s cases the overriding principle is that the best interests of the Child are the paramount consideration[1]. That must always stand above the wishes of parents. Neither parent has the onus of proof in these cases as it is for the court to weigh up the competing factors for and against the change. In doing so the court should have regard to:
a)the short and long term effects of any change in the child’s surname;
b)the advantages for the child if their surname remains as it is now.
c)any embarrassment likely to be experienced by the child if he or she has a surname different from that of the parent with whom he or she primarily lives;
d)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
e)the effect which any change in surname may have on the relationship between the child and both parents, especially the parent with whom he or she spends less time with – taking into account the extent of the time the child will spend with that parent and the extent of identification the child has with each parent and any new partner they may have;
f)the effect of frequent or random changes of name; and
g)the desire of a parent that the original name be restored[2].
[1] Flanagan and Handcock (2001) FLC 93-074
[2]Chapman & Palmer (1978) FLC 90-510, Beach & Stemmler (1979) FLC 90-692.
I have had regard to the authorities I have mentioned in this judgment and the decisions to which I was referred by the legal representatives of the parties.
Discussion
The father is particularly concerned that the child should maintain his surname as he is currently the only male to carry on the family name. In paragraph 31 of his affidavit the father says:
“E is the heir to my family, being the eldest son and therefore his name should not be changed.”
The father wants E to benefit from being recognised in the community as a ‘L’. According to the father his family is well known in the district.
I accept the father’s views are sincerely and passionately held. Similar views would be held by many in the community.
His Honour Justice Warnick in Mahony and McKenzie [3] said:
“…any suggestion that “prima facie” a legitimate child should continue to bear the surname of the father as a matter of principle was put aside in Chapman and Palmer (1978) FLC 90-510. In that case (at p. 77,675) their Honours Evatt CJ, Asche and Marshall S.JJ referred to passages in George and Radford (1976) FLC 90-060 (Watson SJ) (at p. 75,296); in Arthur and Comben (1977) FLC 90-245 (Demack SJ) (at p. 75,321); and in Sampson and Sampson (1977) FLC 90-253 (Fogarty J) (at p. 76,367) which suggested the above proposition. After referring to that and other propositions, their Honours said:
“There is a tendency in these decisions to speak in terms of principles and it appears that in some of the cases the court may have approached the problem with a preconceived notion that a change in name will be authorised only in ‘extreme’ or ‘exceptional’ circumstances. We believe that each case should be approached in an even-handed manner with the object of making a decision that will promote the welfare of the child.”
Their Honours then summarised the factors to which the court should have regard in determining whether there should be any change in the surname of a child and, though such summary did not purport to be exclusive, it did not include any reference to a preferred or prima facie advantage attaching to the surname of either parent.”
[3] (1993) FLC 92-408 at p 80,185
I take into account the father’s strong opposition to the name change but do not give any significant weight to the fact that the child’s registered surname is the same as the father’s.
This child is loved in both households and with the extended families. I find that no matter what surname is used he will still be loved the same.
He clearly identifies his biological father as his ‘real Dad’. He has a positive relationship with him which will continue to grow by spending time with him in accordance with the parenting orders in place. His use of the name ‘L’ when he speaks of the ‘L-B’ family shows that he knows that he has a significant connection with the L family and his father in particular.
I find that his use of the two surnames is an attempt by him to connect with both families. Although he does not want to be the odd one out in the home where he primarily lives he still uses ‘L’ in his name which helps him to connect with his father. The use of the two names is consistent with his reality. This is clearly an advantage for him.
If his name was to remain as it is there would be no need to change any of his enrolments with school or sport or with his medical practitioners which would be an advantage for the parents but have little impact on E given his age.
E is clearly aware that this issue is causing the parents concern and that his parents are asking the Court to decide. If he had never raised the issue of names and was unaware of the proceedings a new name would lead to some confusion in the short term. That is not the case here and I find that as he is aware of the use of two names the change will not cause the confusion the father is concerned about.
In the long term he may express a wish to use one or other of the names. The father is concerned that ‘L’ may be dropped altogether. The mother has agreed to an injunction prohibiting her from shortening the name. This may go some way towards overcoming the father’s concern.
The father says that he will support E if he wishes to change his name in the future when he is more mature and therefore there should be no change now. Although there is merit in that argument I find that given his young age if there is to be a change it is more appropriate now. Although he is already enrolled at school as he gets older there will be more involvement with ex-curricular activities and he will develop more friendships which would make any change more difficult for him.
The mother is concerned that E will be embarrassed by having a different name to other members of his maternal family. This may happen from time to time but I find that the mother who is sensitive to this issue is capable of handling such instances when they arise as she has done so in the past. The name the mother asks the Court to order will also be different to that of hers so there may need to be further explanations in the future even if there is a change. E may also occasionally become embarrassed when with his father’s family by having a different name if it is changed. I am not persuaded in this case that this factor is determinative of the issue.
The father raised a concern of frequent changes of name. He says that should the mother’s marriage not stand the test of time she may want to change her name again. There is no evidence of any difficulties in her marriage. The mother and Mr B have two children with the surname B. I do not see any evidence to suggest that this is a real factor for concern.
This is a finely balanced case with valid arguments on both sides. For the reasons I have set out, particularly my finding that E is wishing to identify with both families by using the two surnames, I am persuaded that it is in his best interests that his name be changed. Therefore I make the orders set out at the beginning of this judgment.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Acting Associate: Helen Drysdale
Date: 20 July 2007
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