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

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”.
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

The applicant father and husband in this case is Mr Darley. The father was born on (omitted) 1973.
The respondent mother and wife in these proceedings is Ms Darley. The respondent was born on (omitted) 1972.
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.
The parties have two children, X born (omitted) 2006 and Y born (omitted) 2009.
The parties separated on a final basis in September 2012.
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

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”.
The younger child was born on (omitted) 2009. Her birth certificate…

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 Darley and Darley

Details

AGLC: Darley and Darley [2015] FCCA 317
Case: [2015] FCCA 317
Decision Date: 16 February 2015

CaseChat Overview and Summary

In the matter of *Darley and Darley*, heard before Judge Howard, the dispute concerned the surname of two children, X and Y. The mother sought to change the children's surname, while the father opposed this application.

The central legal issue before the court was whether it was in the best interests of the children for their surname to be changed from "Darley" to that of the mother. This required the court to consider various factors relevant to the welfare and upbringing of the children in determining the appropriate surname.

Judge Howard reasoned that the children had consistently been known by the surname "Darley" throughout their lives. The court found that a change of surname would likely cause confusion and distress to the children, particularly given their ages and the fact that they were well-established in their schooling and social circles under their current surname. The court applied the principle that the paramount consideration in such matters is the best interests of the child, and in this instance, maintaining the status quo was deemed to be in their best interests.

Consequently, the court ordered that both children shall retain the surname "Darley" and restrained the mother from referring to the children by any other surname.

Orders

Orders of the court

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”.

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

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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