BOLINGER & IVY - [2012] FMCAfam 1491

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOLINGER & IVY

[2012] FMCAfam 1491

FAMILY LAW – Change of name – review of case law in respect of change of name.

Family Law Act 1975, s.60CC

Chapman & Palmer (1978) FLC 90-510
In the marriage of Beach & Stemmler (1979) 5 FamLN N13 (1979) FLC90-692
Mahony & McKenzie (1993) FLC 92-408
Kay & Jasper & Ors [2007] FamCA 1646
Raymond & Harold [2008] FamCA 553 [2009] FamCA 155
Flannigan & Hancock (2000) FLC93-074
Gaynor & Scaife [2012] FMCAfam 698
Ralph & Ralph (1977) FLC 90-292

Applicant:

MS BOLINGER

Respondent:

MR IVY

File Number:

NCC 1240 of 2007

Judgment of:

Myers FM

Hearing date:

14 December 2012

Date of Last Submission:

14 December 2012

Delivered at:

Newcastle

Delivered on:

14 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr M. Weightman

Solicitors for the Applicant:

Peter Hamilton & Associates

Counsel for the Respondent:

Mr Murray

Solicitors for the Respondent:

Mills Oakley Lawyers Pty Ltd

ORDERS

The mother’s application for a change of surname be refused.
A settled copy of this decision shall not be provided to [X] until she is 18 years of age.
The solicitor for the respondent makes an application for costs and the issue of costs is reserved.
Counsel for both parties file written submissions with respect to the issues of costs.
By 15 January 2013 Counsel for the respondent prepare and forward to the court written submissions in relation to costs.
By 15 February 2013 Counsel for the applicant prepare and forward submissions in reply.
By 22 February 2013 any further submissions by the respondent in response.

IT IS NOTED that publication of this judgment under the pseudonym Bolinger & Ivy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1240 of 2007

MS BOLINGER

Applicant

And

MR IVY

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

This is a matter between the applicant mother, Ms Bolinger, and the respondent father, Mr Ivy. The applicant mother seeks orders as contained within her amended initiating application filed in this court on 30 November 2012. The mother seeks to agitate orders before the court today:
(1)That the applicant mother be authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as [X] Ivy, born [in] 2005, now be registered as [X] Ivy-Bolinger.
(2)Pursuant to section 28(2) of the Births, Deaths and Marriages Registration Act Victoria 1996, the Registrar register the child's name in the form specified in order 1 above.
(3)That a sealed copy of these orders be served forthwith upon the Registrar of Births, Deaths and Marriages New South Wales.
In support of the orders sought by the mother, she has caused to be filed in the court, on 30 November 2012, an affidavit affirmed by her of the same date. The mother deposes that she is the applicant mother in the proceedings, she was born in 1976, is currently 36 years of…

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 BOLINGER & IVY

Details

AGLC: BOLINGER & IVY [2012] FMCAfam 1491
Case: [2012] FMCAfam 1491
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case of Bolinger & Ivy involved a dispute regarding the application by a mother to change the surname of her daughter. The matter was heard in the Family Court of Australia. The central issue was whether the court should permit the daughter's surname to be altered from that of her father to that of the mother's partner. The mother argued that the change would reflect the family's current reality and the child's best interests, while the father contended that the change would be detrimental to the child and against her best interests.

The court was required to weigh the competing interests of the child and the parents. It considered the factors outlined in the Family Law Act, including the child's need for stability, the impact of the change on her identity and relationship with both parents, and the potential for confusion and disruption. The court also evaluated the mother's motivations and the potential benefits or harms of the proposed change. Ultimately, the court determined that the change of surname was not in the child's best interests.

The court's reasoning was based on its assessment that the proposed change would not serve the child's best interests, given the potential for confusion and the disruption to her relationship with her father. The court found that the child's need for stability and the importance of maintaining a clear connection with both parents outweighed the mother's desire for the change. The court also noted the child's age and her potential views on the matter, which would be better considered when she is older. The court ordered that the mother's application be refused, and it imposed conditions on the disclosure of the decision until the child reaches adulthood. Additionally, it directed the parties' legal representatives to submit written arguments regarding the issue of costs.

Orders

Orders of the court

The mother’s application for a change of surname be refused.

A settled copy of this decision shall not be provided to [X] until she is 18 years of age.

The solicitor for the respondent makes an application for costs and the issue of costs is reserved.

Counsel for both parties file written submissions with respect to the issues of costs.

By 15 January 2013 Counsel for the respondent prepare and forward to the court written submissions in relation to costs.

By 15 February 2013 Counsel for the applicant prepare and forward submissions in reply.

By 22 February 2013 any further submissions by the respondent in response.

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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