Bei & Foong - [2022] FedCFamC2F 655

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bei & Foong [2022] FedCFamC2F 655

File number(s): CAC 2213 of 2019

Judgment of: JUDGE W J NEVILLE

Date of judgment: 19 April 2022

Catchwords: FAMILY LAW – Parenting Application – Name change sought by the Mother – considerations in light of Father’s absence from child’s life – Name change Ordered.

Legislation: Family Law Act 1975 (Cth) ss 4, 64B, 65D

Cases cited:
Beach & Stemmler (1979) FLC 90-692

Chapman v Palmer (1978) 34 FLR 405; 4 Fam LR 462

Darley v Darley (2016) FamCAFC 10

Fooks v McCarthy (1994) FLC 92-450

Division: Division 2 Family Law

Number of paragraphs: 18

Date of hearing: 19 April 2022

Place: Canberra

Counsel for the Applicant Ms C Spain

Solicitor for the Applicant Brightstone Legal Pty Ltd

Solicitor for the Respondent Self-represented with Mrs K Mistry from the ACT Legal Aid Office on a duty basis

Solicitor for Independent Children’s Lawyer Chamberlains Law Firm

ORDERS

CAC 2213 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BEI
Applicant

AND:
MS FOONG
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

19 APRIL 2022

ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
1.The Mother has sole parental responsibility for X born in 2016 (‘the child’).
2.The child live with the Mother.
3.The child spend time with the Father in person, as agreed between the parties in writing, and failing agreement as follows:
(a)Commencing from the date of these Orders until 29 September 2022, every alternate Saturday for a period of 2 hours as supervised by C Supervision Service at times as nominated by C Supervision Service;
(b)For the 6 months following Order 3a, every Saturday from 10:00am to 6:00pm each alternate weekend within the Australian Capital Territory;
(c)For the 6 months following Order 3b, commencing on the second and fourth Saturday in every month from 10:00am Saturday to 6:00pm the following Sunday within the Australian Capital Territory;
(d)Following Order 3c, from 10:00am each alternate Saturday until 6:00pm Sunday (commencing at 10:00am Friday in the event the Friday is a Public Holiday within the ACT and concluding at 6:00pm in the event the Monday is a Public Holiday with ACT), with each alternate weekend period occurring within the Australian Capital Territory;

4.Upon the child attaining the age of 10 years, the child spend the following times with the Father in person and in addition to the time in Order 3d:
(a)During the term 1, 2 and 3 gazetted school holiday periods for the State / Territory in which the child resides:
(i)In years ending in even numbers or zero, the second half commencing at 10:00am on the middle Saturday of the school holiday period and concluding at 6:00pm on the day prior to the commencement of the following school term; and
(ii)In years ending in odd numbers, the first half commencing at 10:00am on the first Saturday of the school holiday period and concluding…

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 Bei & Foong

Details

AGLC: Bei & Foong [2022] FedCFamC2F 655
Case: [2022] FedCFamC2F 655
Decision Date

CaseChat Overview and Summary

In the case of Bei & Foong, the Federal Circuit and Family Court of Australia (Division 2) dealt with a parenting application brought by the mother seeking to change the child's name. The father, who had virtually no contact with the child since her birth, opposed the name change. The court was required to decide whether it was in the best interests of the child for her surname to be changed from the father's to the mother's. The court considered the statutory provisions of the Family Law Act 1975 (Cth) and relevant case law.

Judge W J Neville examined the statutory framework, particularly sections 4, 64B, and 65D of the Family Law Act 1975 (Cth), which outline the considerations for making parenting orders and the court's powers in this regard. The court noted that section 4 of the Act identifies a child's name as a major long-term issue, and section 64B and 65D provide for the making of such parenting orders. Given the consent orders already in place that granted the mother sole parental responsibility, the court acknowledged that she had the authority to change the child's surname. Nevertheless, the court considered the broader principles and factors relevant to such a change, as outlined in the case law, to ensure that the child's best interests remained the paramount concern.

The court balanced various factors, including the mother's sole care of the child, the father's absence from the child's life, and the very recent introduction of the father into the child's life. The court concluded that it was in the child's best interests for her surname to be changed to that of her mother. This decision ensured that the mother's name was properly reflected in the child's life, while also acknowledging the father's place in the child's life by retaining his name in a slightly altered form.

Ultimately, the court ordered that the child's surname be changed to that of the mother, reflecting the best interests of the child in the given circumstances. The court also urged the father to respect the fragile nature of the co-parenting relationship and to proceed cautiously in his relationship with the child.

Orders