C and C
[2007] FMCAfam 322
•9 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2007] FMCAfam 322 |
| FAMILY LAW – Dispute of child’s surname – change to hyphenated surname – order change of name on registry of Births, Deaths and Marriages – injunction restraining from the use of any other name. |
| Applicant: | G P C |
| Respondent: | M J C |
| File Number: | BRM7976 of 2006 |
| Judgment of: | Baumann FM |
| Hearing date: | 8 February 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 9 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Catt |
| Solicitors for the Applicant: | Jones Mitchell Lawyers |
| Counsel for the Respondent: | Ms Lyons |
| Solicitors for the Respondent: | McDonald Brown Solicitors |
ORDERS
That the parties do all acts and things and sign all necessary documents to cause the Registrar of Births, Deaths and Marriages in and for the State of Queensland to reflect the child’s name as ZP C-C.
That the parties be restrained, and an injunction is hereby granted restraining the parties, or either of them, from using or being complicit in the use of any name for the child other than ZP C-C.
That should either party fail or refuse to sign all documents and do all necessary things in order to give effect to the terms of these Orders then the Registrars of the Federal Magistrates Court of Australia at Brisbane are hereby appointed, pursuant to s.106A of the Family Law Act, to sign all necessary documents and do all necessary things in order to so give effect.
That there be no Order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 7976 of 2006
| G P C |
Applicant
And
| M J C |
Respondent
REASONS FOR JUDGMENT
Z, born 19 September 2004 (and now aged 2 years and four months) is the only child of a relationship between the applicant father, GC (31); and MC (34). The parents commenced cohabitation in 2001 and separated in November 2005 when Z was but 14 months old. Post separation the parties entered into consent orders in relation to the care arrangements for Z, which provided that the child predominantly reside with the mother with the father having regular and frequent time with the child, at least, each alternate weekend; each alternate Monday overnight; and each Wednesday overnight. In effect, the child spends four days and three nights with the father per fortnight.
The parties are unable to agree on the surname which Z should carry. His birth was registered with the surname of "C". I say more about that shortly. Because of the dispute about Z's surname, the father commenced proceedings in this Court by application, filed 9 October 2006. Subsequently, that application was amended such that his application now is primarily that the child's surname be "C" but that in the alternative, the child’s surname be "C-C".
In his affidavit in support of the application at paragraph 10 the father now says that:
“Whilst I prefer that Z had the surname 'C' I would be happy with a hyphenated surname, whether 'C-C' or 'C-C.”
The mother's position is that the child's birth name so registered was C and should remain C. This is the issue I am required to determine.
Principles
Arising from decisions such as Chapman v Palmer (1978) FLC 90-150; Beech v Stemmler (1979) FLC 90-962; and Frankie v Hancock (2001) FLC 93-074. The principles and factors to which a Court should have regard in determining whether to change this child's surname includes:-
(a)the welfare of the child being the paramount consideration;
(b)the long term effects of any change of name and any advantage which might accrue to the child if the name is changed or not;
(c)any embarrassment likely to be experienced by the child if the child's name is different from that of the parent with whom the child primarily resides;
(d)any confusion of identity which may arise to a child if his or her name is changed or not changed;
(e)the effect which any change of surname may have on the relationship between the child and parent whose name the child bears;
(f)the effect of frequent or random changes of name;
(g)the contact that the other parent has and/or is likely to have in the future;
(h)the degree of identification that the child now has with the father;
(i)the desire of the father that the original name be restored if applicable.
In respect of this matter both parties relied on affidavits and written submissions from their counsel. I have considered carefully those written submissions which were most helpful. The fact that that I do not repeat verbatim part of the submissions is not to suggest that they have not been read and fully considered.
Evidence
In essence, the father's case is that it is in the interests of the child that the name be changed for the following reasons:
(a) he says he reluctantly signed the application for registration of birth "to keep the peace". He said he did not think it would reach the stage of permanency and always had a view that the name should not be C.
(b) he says that his request to change the name is not "unreasonable". I reminded his counsel, Mr Catt, that, of course, that is not the test although the father's view of the matter is not irrelevant.
(c) he says that Z has strong ties with his family. He has extensive time with him as the order currently provides. He has a connection with the "C" ancestry through his almost daily contact with his paternal grandmother by electronic means supplemented by physical contact with the grandparents who reside interstate but travel to Queensland on a regular basis.
The father fears that if the child's name was to remain "C" that there is a real risk that the mother could re-partner and adopt another name which would cause a further change of name in the child. It must be said, there is no evidence to suggest that the mother is in a relationship and even if she was that she would contemplate changing her name.
The mother says, essentially:-
(a) Z has always used the surname "C" since birth. He is accustomed to it and is identifying with it.
(b) He shares the surname with his sibling, B (currently aged 8) who is a permanent member of the mother's household.
(c) The child will be confused and/or or embarrassed as he primarily resides in her "family unit" where all the participants in that unit share the "C" name.
(d) Keeping the name will have no effect on the child’s relationship with the father. He identifies strongly with his father and knows who he is.
(e) "Random change to the child's name will have an effect on the child."
Analysis
I have come to the conclusion in this matter that it is in the best interests of the child to have a hyphenated surname. I propose to order that the child's surname be "C-C". The reasons which follow explain why I have come to this view. I agree that if a change is to be made to the child's surname then this is the appropriate time. Although, no doubt, in the father and mother's home he is referred to as "Z" his wider environment and community connections are not yet fully developed at his age. That will become more apparent to him as he enters child care, school and other similar activities. That is the reason why now is at least the optimal time to consider this change.
As I say, although the mother, in her material, suggests that the child has recently returned from the father's home mentioning other names, that seems to me more likely than not to reflect the growing tensions which this issue is causing within the parenting relationship. Diffusing that tension is, in my view, also important for Z.
The mother says the hyphenated name would be effectively a mouthful. But to be frank in today's multicultural societies many single surnames might be regarded by some as a mouthful.
There is a dispute about the way in which the birth registration evolved. Neither counsel sought to cross-examine the other party in respect of their affidavits. Accordingly, it is not possible for me to make any definite finding about what occurred other than to observe that the father did sign the birth registration with the name of "C". He says he did not regarded it as permanent, the mother said that the issue never arose.
In any event, as the authorities made clear, the mere registration of the child's name does not act as some form of estoppel against considering what is in the child's best interests as I have done in this case. The evidence does not satisfy me the child would be confused or embarrassed by a hyphenated name. The mother, of course, fears this to be the case. She offered no evidence for establishing that fear.
It is interesting to note that his cousins with whom he has "frequent contact" also have a hyphenated surname – that of "C-B". It may have been possible, if the mother had so chosen, to adduce evidence from her sister about the effect on these children of having a hyphenated surname. Of course, I have no knowledge also of what their respective ages are, however, it would seem at least that the cousins having hyphenated surnames, although different, will be some common thread.
Not unusually, nor surprisingly, the mother says that the distinction that the child would have with a hyphenated or similar surname of "C" as distinct from that with his sister, B, would be confusing and embarrassing. I do not accept this submission. The children have different fathers. That would be patently obvious already to B, and becoming more obvious, no doubt, to Z. That simply explains the different surname. That is, in my view, one of the advantages in that "the name accords with the reality of life as the child has an ongoing relationship with both parents even though they do not life together” (see Mahoney v McKenzie (1993) FLC 92-408.
In this regard I was directed by counsel for the mother to the decision I made in the reported case of Y v H (2005) FMCA 229. That case involved a young child where the parties lived some hundreds of kilometres apart and where the father's time with the child was likely to be and had been spasmodic and not frequent. I think that case, as in all these cases, must be seen in terms of its own facts as found.
The mother talked about the importance for B and Z to share a "family identity". I agree totally with that view, however, it must be recalled and remembered that Z has two families with whom he identifies. He identifies with the extended families in respect of both his parents. Although the best interests of Z are, of course, the paramount consideration that does not mean that the father's strong desire to have his son carry his surname or part of his surname is irrelevant.
There is no superiority that attaches to either the mother or father's surname. In fact, both parents say the same thing about the importance to them of having Z carry, in the father's case, primarily his name; and in the mother's case retaining the name of "C".
The decision I have made, I believe, is in the child's best interests. This is not a "compromise" nor is it meant to prevent one parent from having "a win" over the other. It is a decision which, I believe, provided the parents supported if by their actions and deeds will have added advantages of defusing what has become a niggling, yet important ongoing dispute between the parents. That conflict between the parents is likely to pose a much greater risk to the child's emotional well being than the name which he adopts which is used in all the social, educational, and other sporting and creative pursuits that he will, no doubt, follow.
It seems to me, as is often the case in these matters, that children, as they get older and, perhaps, when they turn 18 may well choose one name or the other. That is, of course, a choice for them as an adult. At this stage, however, I am satisfied on the evidence that following the name into the future of C-C is appropriate and in the child's best interests and I propose to so order.
In a sense it might be said that neither party has been wholly successful, but the success or otherwise of my decision will very much depend on the parents' support of it, and that is what the injunction is meant to ensure.
There will be no order for costs. I make the order which appears at the commencement of these reasons.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Baumann FM
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