Darley and Darley

[2015] FCCA 317

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARLEY & DARLEY [2015] FCCA 317

Catchwords:
FAMILY LAW – Parenting – children’s surname.

Legislation:

Family Law Act 1975, s.60CC

Chapman & Palmer (1978) FLC 90-510
Fooks & Mccarthy (1994) FLC 92-450
Mahony & McKenzie (1993) FLC 92-408

Applicant: MR DARLEY

Respondent: MS DARLEY

File Number: BRC 2317 of 2013

Judgment of: Judge Howard

Hearing date: 15 December 2014

Date of Last Submission: 15 December 2014

Delivered at: Brisbane

Delivered on: 16 February 2015

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Counsel for the Independent Children's Lawyer: Mr Slade Jones

Solicitors for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

1. That in respect of the two children X born (omitted) 2006 and Y born (omitted) 2009 (“the children”), both of the children shall retain the surname “Darley”.

2. That the mother is restrained from referring to the children by any other surname other than “Darley”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2317 of 2013

MR DARLEY

Applicant

And

MS DARLEY

Respondent

REASONS FOR JUDGMENT

1. The applicant father and husband in this case is Mr Darley.  The father was born on (omitted) 1973.

2. The respondent mother and wife in these proceedings is Ms Darley.  The respondent was born on (omitted) 1972.

3. The parties met in (omitted), New South Wales in about 1990.  The parties commenced a relationship in about 1991 which continued through to approximately 1996.  On an infrequent basis the parties kept in touch after 1996 – by telephone, email and occasional visits.  They rekindled their relationship and commenced cohabitation in approximately 2003 and were married on the (country omitted) on (omitted) 2004.  The parties had lived together for approximately 12 months prior to the marriage.

4. The parties have two children, X born (omitted) 2006 and Y born (omitted) 2009. 

5. The parties separated on a final basis in September 2012. 

6. The parties had been unable to agree on parenting and property issues.  After three days of hearing and on the morning of the fourth day of the trial (11 December 2014), counsel for the Independent Children’s Lawyer informed the Court that there was some prospect that the parties might be able to settle the parenting dispute.  Throughout the day on Thursday 11 December 2014 the parties negotiated.  Fortunately, the parents were able to reach final agreement in relation to parenting orders.  Final parenting orders were made by consent on 12 December 2014.  The only outstanding parenting issue between the parties is the question of the surname for the children.  A hearing proceeded on 15 December 2014 in relation to the issue of the surname of the children.

Surname

1. The oldest child is X.  She was born on (omitted) 2006.  On her birth certificate it is noted that the child’s name is, “X”.

2. The younger child was born on (omitted) 2009.  Her birth certificate states, “Y”.

3. The parties both gave evidence in relation to the issue of the surname for the children.  The mother would like the children’s surname changed to, “(omitted)-Darley”.  The father wants the surname of the children to remain as, “Darley”.

4. Ms V, the family report writer, also gave evidence.  Ms V made it clear that she has no experience in relation to the (religion omitted) School system.  The mother had argued that it was in the children’s best interests for their surname to be changed because, as students at a (omitted) School, it could cause the children embarrassment if the mother’s surname is different to the children’s surname.  Given that Ms V has no experience in the (religion omitted) School system – any evidence given by her in relation to that particular issue cannot be given any weight.

5. Ms V listed some pros and cons for a change of name but she did not state any opinion in that regard which was in any way connected to her expertise as a social worker and family report writer. 

6. Ms V did make the point that the mother will be the primary carer.

7. The issue in respect of the children’s surname must, of course, be decided having regard to the best interests of the children.  I note in particular, the decision of Warnick J in Fooks & Mccarthy (1994) FLC 92-450.  In that case His Honour made reference to his earlier decision in the matter of Mahony & McKenzie (1993) FLC 92-408.  The best interests of the children are the paramount consideration.  Warnick J pointed out in Fooks & Mccarthy (supra) that the best interests of the children “stands above the wishes of the parents”.  His Honour referred to the earlier decision in Chapman & Palmer (1978) FLC 90-510.

8. Section 60CC sets out how it is a Court is to determine what is in a child’s best interests. I have had regard to s.60CC(2) and (3).

9. Many of the subsections in s.60CC(2) and s.60CC(3) are not relevant to proceedings of this kind – relating as it does merely to the question of the surname of the children. I have made various findings later in these Reasons for Judgment. Some of those findings are matters that, come within some of the considerations set out in s.60CC(3).

10. I make the following findings of fact in relation to this issue of the surname:

    1)The father is strongly attached to his surname, “Darley”.  The children identify with the surname, “Darley”.  Both the mother and the father confirmed in evidence on 15 December 2014 that the children identify with the name “Darley”.  As in the decision of Fooks & Mccarthy (supra) – the father in the present case is likely to react to any alteration to the surname of the children with both disappointment and resentment.  The father is not likely to be capable of keeping his resentment from the children’s perception.

    2)From the time of her birth until the age of 23 the mother was known by the surname, “(omitted)”.  That was her father’s surname and her mother’s married name.  The mother did not like her own father (the maternal grandfather).  She states that he was abusive.  At the age of 23 (in 1995) the mother therefore changed her surname by deed poll to, “(omitted)”.  The father confirmed that the mother’s name was, “(omitted)” when he first met her.  Because her father’s name was “(omitted)” the mother deleted the given name “(omitted)” and took on the name “Ms Darley”.  Further, as noted, the mother changed her surname from “(omitted)” to “(omitted)”.

    3)The maternal grandmother (the mother’s mother) had taken the married surname of “(omitted)”.  She is still known by that name.  The maternal grandmother’s maiden name was, “Ms P”.

    4)The mother was not sure if her own grandmother (the maternal great-grandmother) had the maiden name of “(omitted)”.  Certainly, as a married person, she was known as Ms P.

    5)When the mother was herself a teenager she became aware that her family history included the surname, “(omitted)”. 

    6)The mother was not able to explain to the Court how it was that she was related to or descended from anyone with the surname, “(omitted)”.

    7)The mother was not able to confirm that she had ever met any relative with the surname “(omitted)”.

    8)The mother was not able to name any relative of hers with the surname (omitted).

    9)The mother has three surviving siblings.  A sister whose married surname is “(omitted)”.  The mother also has two brothers surviving and both of those individuals have the surname of “(omitted)”.

    10)The birth certificates for the children both include the surname of “Darley” for each child.

    11)The children’s birth certificates also note the mother’s surname as “Darley”.

    12)The marriage certificate from the (country omitted) dated (omitted) 2004 – notes, “Name of Bride: Ms Darley”.  It is clear that the mother was known by the surname of “(omitted)” immediately prior to her marriage.  The “Bride’s declared surname” is stated on the marriage certificate as, “(omitted)-Darley”.

    13)I accept the evidence of the father that he only became aware in the Court room on Friday 12 December 2014 for the first time that the mother’s stated married name on the marriage certificate was hyphenated as, “(omitted)-Darley”.

    14)I find as a fact that the mother misled the father in relation to that issue.  I find as a fact that the mother did not tell the father that her married name was registered on the marriage certificate in the hyphenated format of, “(omitted)-Darley”.  I accept the father’s evidence that he only became aware of the mother’s desire to retain the surname “(omitted)” on the day before the marriage.  I accept the father’s evidence that he stated to the mother at that time that unless the mother agreed to take his surname – that he did not want to proceed with the wedding.  I accept the father’s evidence that the mother stated that she would take the surname “Darley” and not retain the surname (omitted).

    15)The mother has used the surname of “Darley” in relation to all official documentation including bank accounts, home loans, driver’s licenses, school registration for children etc. – since the date of the marriage.

    16)As recently as 2013 (post separation) the mother renewed her driver’s license with the surname “Darley”.

    17)I find as a fact that, the children’s given names (respectively they are X and Y) have been the subject of confusion on the part of the father.  I find that this is because (in the case of X) – of the fact that the registration of the name, “Y” was organised by the mother without the father’s knowledge or consent.  To the extent that the registration required the father to sign the necessary form – I consider that it is much more likely than not that the father signed a blank form or alternatively that the addition of the child’s third given name was not drawn to his attention by the mother.  The father understood that the child’s name was “X”.

    18)In relation to Y, a similar situation arises in relation to the child’s second given name, “X”.  The father understood that the child’s name was “Y”.  The father’s limited reading ability has not helped this situation.

    19)The children have not at any stage been known by the surname “(omitted)”.

    20)The mother has, at all times, been known as “Ms Darley” at the children’s school.

    21)The children do not identify with the surname “(omitted)”.  Their name is and always has been “Darley”.

    22)There is no evidence that the children have or will be likely to suffer discrimination at a (religion omitted) School because of the fact that their surname may be different to the surname of their mother.

    23)The mother confirmed that, if the Court decided that the children’s surname should remain as “Darley” – then the mother herself will leave her surname as “Darley”.

    24)In relation to the registration of the children’s given names and in relation to all health issues concerning the children the mother has made unilateral decisions in respect of the children – without involving the father in that decision making.

    25)There is no evidence that the children will suffer any embarrassment in the event that their surname is different to the surname of the mother.  In any event, I note the mother’s evidence that she will retain the surname “Darley” in the event that the Court decided that the children’s surname should remain as “Darley”.

    26)There has been a significant animosity between these two parties.  The animosity is ongoing.

Conclusion

1. As noted, the children in this case identify with the surname, “Darley”.  It is the only surname that has ever been used in respect of the children.  The children are presently aged eight years and five years old respectively.

2. As in the case of Fooks & Mccarthy (supra) – a change in the surname of the children is, in the present case, likely to lead to the children perceiving that the father resents a change to their surname.  This is highly likely to lead to an increase in the animosity between the parties.

3. Having regard to the findings that I have made – I have come to the conclusion that the children should retain the surname Darley.  Retention of that surname (Darley) is in the best interests of the children. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  16 February 2015