DKL v Van K
[2017] QMC 19
•25 October 2017
MAGISTRATES COURT OF QUEENSLAND
CITATION:
DKL v Van K [2017] QMC 19
PARTIES:
DKL
(Applicant)v
P VanK
(Respondent)FILE NO/S:
Toowoomba Mag No 165/17
DIVISION:
Magistrates Court
PROCEEDING:
Civil
ORIGINATING COURT:
Toowoomba
DELIVERED ON:
25 October 2017
DELIVERED AT:
Toowoomba
HEARING DATE:
On the Papers
MAGISTRATE:
G Lee
ORDER:
The surname of the child is declared to be “van K-L” and that that surname be entered in the register of births for the child.
CATCHWORDS:
Family Law – Children – Child’s surname – Child a baby – Best interests of the child – father seeking hyphenated surname with mother’s and father’s surname – mother seeking her surname only
LEGISLATION CITED:
Births Deaths and Marriages Registration Act 2003 (Qld)
Births Deaths and Marriages Registration Regulation 2015
Family Law Act 1975
CASES CITED:
Beach and Stemmler (1979) FLC 90-692
Chapman v Palmer [1978] FLC 90-510
Flanagan and Handcock [2000] FamCA 150
Mahoney v McKenzie [1993] Fam CA 905
Mahoub v Ferrante [2013] Fam CA 905
Soulos & Sorbo [2015] FamCA 196
SOLICITORS:
MacDonald Law for the applicant
Best Wilson Buckley Family Law for the respondent
This is an application by the father under the Births Deaths and Marriages Act 2003 (the Act) seeking an order that the surname of the subject child be registered as van K-L representing the surnames of the mother and father respectively.
The mother opposes the application seeking that the child’s surname be registered in her surname only.
The matter was listed for hearing on 21 September 2017. However, by letter that day solicitors for the parties requested the matter be determined on the papers with written submissions to be filed within seven days. The Applicant’s submissions were filed 28 September 2017 and the Respondent’s submissions on 3 October 2017.
Background
In February 2016 the parties commenced a relationship which finally ended in November 2016. The mother was pregnant with the subject child at the time of separation. The child was born (x) February 2017[1].
[1] Paras [5] & [6] affidavit of the father sworn 28 July 2017; paras [11] & [12] affidavit of the mother sworn 24 August 2017.
On 28 March 2017 the mother’s solicitors sent a registration form to the father’s solicitors for the father’s signature nominating the child’s surname as hers only. Upon receipt, the form was returned to the mother’s solicitors on 18 April 2017 with an amendment to the child’s proposed surname to a hyphenated one to include his surname.[2] He had resigned from his original position of wanting the child to bear his surname only.[3]
[2] Paras [8] & [9] fathers affidavit; paras [9], [15], [16] & exhibit PAV5 mothers affidavit.
[3] Paras [22], [23] & exhibits DL7 & DL10 father’s affidavit.
As the Act required the form to be submitted within 60 days of birth[4], on or about
19 April 2017 the mother submitted a registration form without the father’s amendment as she disagreed with it.[5]. The father’s solicitors were warned of this course on 12 April 2017 by email[6] and then advised on 19 April 2017 that this course will be taken given an agreement could not be reached.[7]
[4] See section 9 Births Deaths and Marriages Act 2003 which provides that an application in the approved form must be given to the registrar within 60 days after birth.
[5] Para [12] mother’s affidavit
[6] Exhibit PAV6 mother’s affidavit.
[7] Exhibit PAV 7 mother’s affidavit.
The parties then received correspondence from Births Deaths and Marriages indicating that if the matter could not be resolved, the Registrar – General would make a decision under section 12(3)(b) of the Act. The parties maintained their relative positions.[8]
[8] Paras [17] & [18] mother’s affidavit; paras [11], [13] & [14] father’s affidavit.
Then on 13 June 2017 the parties were notified by Births Deaths and Marriages that unless an application was made to the Magistrates Court to resolve the dispute, the child’s surname would be registered with the mother’s and father’s surname hyphenated which reflects the father’s position.[9]
[9] Para [19] mother’s affidavit; para [15] & exhibit DL8 father’s affidavit.
In the meantime there were private cross applications in the Domestic Violence Court which ultimately resolved in undertakings given to the court on 10 May 2017.[10] The father’s undertakings to the Domestic Violence Court reflected the child’s surname as that of the mother’s only.
[10] Para [15] & exhibit PAV2 mother’s affidavit.
The mother said she then contacted Births Deaths and Marriages and was informed that as the father had signed those undertakings reflecting the child’s surname as that of the mother’s only, then this constituted an agreement between the parties and therefore was sufficient to register the child in that name.[11] Obviously the mother provided the father’s undertaking in domestic violence proceedings to the Registrar-General.
[11] Para [20] mother’s affidavit.
By letter from the Registrar – General dated 17 July 2017 received by the father on or about 21 July 2017, he was advised of this decision. The letter cast the onus on him to bring an application to this court by 28 July 2017 otherwise the Registrar –General would register the child’s surname in the mother’s surname only. The father filed this application on 28 July 2017.[12]
[12] Paras [17] – [19] & exhibit DL9 father’s affidavit.
I digress to say that I do not accept that those undertakings constituted an agreement between the parties as to the child’s surname particularly in light of the protracted dispute over the child’s surname since separation and after domestic violence proceedings ended with undertakings on 10 May 2017. The focus would most likely have been on resolving the applications before the court.
The Legislation
As the father complied with the 17 July 2017 letter from the Registrar-General, I take the view that the child’s surname has not been registered yet. That being the case, it appears this is an application under section 12 (6) of the Act and not section 17 as is submitted for the mother.[13] In my view, applications under section 17 relate to changing a child’s name that is already registered. Nevertheless, I agree with submissions for the father that similar considerations apply.
[13] Para 4 “Power to make orders sought” mother’s written submissions; see paras [2] – [4] father’s written submissions.
Section 12 provides:
“12 Child’s name
(1)A birth registration application, other than an application to register the birth of a stillborn child, must state the child’s name.
(2)If a birth registration application states only 1 name for the child, the name is taken, for this Act, to be the child’s surname.
(3)If—
(a)the name stated in the birth registration application is a prohibited name; or
(b)for a birth registration application that is made by both parents—the registrar is satisfied that the parents cannot agree on the child’s name; or
(c) …
the registrar may choose a name for the child and enter it in the register. …
(5A)Before entering a name in the register for a child under subsection (3), the registrar must give the applicant at least 14 days written notice of the registrar’s intention to do so.
(6)If a child’s parents cannot agree on a name for the child, either parent may apply to a Magistrates Court to decide the child’s name. (my emphasis)
(7)The Magistrates Court may—
(a)choose a name, other than a prohibited name, for the child; and
(b)order that the name be entered in the register of births for the child.
Note—
Under section 56 , a regulation may prescribe information that a court may consider when deciding or changing a child’s name.”
I digress to note that the 17 July 2017 letter from the Registrar-General to the applicant did not comply with section 12 (5A) of the Act which requires the giving of “at least 14 days written notice” to the applicant. The letter required the father to respond by 28 July 2017 which is only 11 days. In fact, the father had less notice than that as he only received it, he says, on 21 July 2017. The letter, which appears to have been sent from Brisbane, was addressed to him personally at a street address in Toowoomba.[14]
[14] See sections 39 & 39A Acts Interpretation Act 1954 (Qld). The giving of a document by post is taken to have been effected at the time at which [it] would have been delivered in the ordinary course of post …”.
It is submitted for the mother that the name proposed by the father is a “prohibited name” because it is too long. “Prohibited name” is defined in Schedule 2 of the Act set out in full to show the types of names the regulation is directed to:
“prohibited name means a name that—
(a)is obscene or offensive; or
(b)could not practically be established by repute or usage—
(i)because it is too long; or
(ii)because it consists of, or includes, symbols without phonetic significance; or
(iii)for another reason; or
(c)includes or resembles an official title or rank; or
(d)is, or includes, a statement; or
Examples—
‘Save Mother Earth’ or ‘Down with Capitalism’
(e)is contrary to the public interest for another reason; or
(f)a regulation states is a prohibited name. (my emphasis)”
Section 56 of the Act authorises the making of regulations.[15] It provides:
[15] Section 56(2) (e).
“56 Regulation-making power
(1)The Governor in Council may make regulations under this Act.
(2)For example, a regulation may—
(e)prescribe information that a court may consider when deciding or changing a child’s name; and …”
I note that section 56 includes “deciding or changing” a child’s name. While the information prescribed by section 9 of the Births Deaths and Marriages Registration Regulation 2015 only refers to change of name applications under section 17, I accept submissions for the father that that information is relevant to applications under section 12.[16]
[16] Para [4] father’s submissions.
Section 9 of the regulations provides:
“9 Information court may consider when approving change of child’s name—Act, s 17
In deciding under section 17 (6)(b) of the Act whether a proposed change of name for a child is in the child’s best interest, the matters to which the Magistrates Court may have regard include the following—
(a)the number of previous changes of the child’s name;
(b)the views of the child’s parents on the change of name, to the extent the parents’ views are available;
(c)the views of the child’s guardians on the change of name, to the extent the guardians’ views are available;
(d)the child’s views on the change of name, to the extent the child’s views are available;
(e)the likely impact of the change of name on the child;
(f)the child’s cultural, ethnic or indigenous background and whether the change of name is likely to adversely impact on the child’s cultural, ethnic or indigenous identity. (my emphasis)”
I accept submissions for the father that only 9(b) and 9(e) above potentially apply here. There have been no previous name changes; there are no other guardians; the child is only 7 months old so her views cannot be obtained and there is no evidence in these proceedings indicating an adverse impact on any cultural, ethnic or indigenous background thus rendering 9(a), (c), (d) and (f) inapplicable.
The list of matters in section 9 of the regulations is inclusive and does not preclude consideration of other matters.
There are decisions of Commonwealth courts exercising jurisdiction under Part VII of the Family Law Act 1975 (C’th) (FLA) which have set out factors relevant to changing a child’s name. The focus on these decisions in the FLA is in the best interests of the children consistent with regulation 9 cited above[17]. The FLA provides that parenting plans and parenting orders may deal with a range of matters including “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child”.[18] Clearly, applications seeking orders to change a child’s name in applications under the FLA are parenting orders: see for example Mahoub and Ferrante [2013] Fam CA 905 per Forrest J. Those family law decisions provide guidance in change of name applications to this court under the Act.
[17] See for example sections 60CA, 63B(e) [parenting plans],
[18] See sections 63C(2)(i) and 64B(2) (i) FLA respectively.
In this case there is no evidence of a parenting order or parenting plan under the FLA in place at present[19]. Therefore, pursuant to section 61C of the FLA[20], both parents have parental responsibility for the child and this continues even after the parents separate or re-marry. What flows from this is that both parents retain the right to have input into choosing the child’s name.
[19] Sections 64B(1) & 63C (1) FLA defines “parenting order” & “parenting plan” respectively.
[20] In Part VII “Children” of the Family Law Act 1975.
Submissions for the mother referred to Chapman and Palmer (1978) FLC 90-510[21] which, after reviewing many authorities[22], set out a range of factors to consider when making a decision to change a child’s name:
[21] Para [6.1] submissions; a decision of the Full Court (Evatt CJ, Asche & Marshall S.JJ) dismissing an appeal from Opas J.
[22] For example George and Radford (1976) FLC 90-060; Arthur and Comben (1977) FLC 90-245; Putrino and Jackson (1978) FLC 90-441.
(a) The welfare of the child is the paramount consideration.
(b) The short and long term effects of any change in the child’s surname.
(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d) Any confusion of identity which may arise for the child if his or her name is changed or not changed.
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
Chapman and Palmer has been followed many times in applying those factors: see for example Soulos & Sorbo [2015] FamCA 196 at [244]. The Full Court of the Family Court in Flanagan and Handcock [2000] FamCA 150 surveyed a useful collection of other authorities in addition to Chapman.
Chapman has been adopted in this court: see CS v SMR [2016] QMC 12.
Chapman was a case where both parents had separated and remarried sharing joint custody of their two children aged 6 and 12 with defined access to the father. Without the father’s consent the mother enrolled the children in school adopting their step father’s surname. Orders were made restraining the mother from doing so despite the fact that the 12 year old child wanted his step father’s surname.
Like Chapman, in Beach and Stemmler (1979) FLC 90-692 the mother attempted to change the surname of her children to that of her second husband. Connor J identified six additional factors:
· The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
· The contact that the husband has had and is likely to have in the future with the children
· The degree of identification that the children now have with the father.
· The degree of identification which the children have now with their mother and their stepfather.
· The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father’s name is restored.
· The desire of the father that the original name be restored.
However, this case is not a change of name case but concerned with choosing a baby’s surname to be registered in the first instance. Some of those factors may have some application in this case bearing in mind that the child is still a baby and that her name is not yet registered.
Interestingly, Mahoney v McKenzie [1993] FamCA 78 is not unlike this case. The parents separated when the child was 9 months old. The child was almost 5 years old at the time of court proceedings. The child’s surname was registered in the father’s surname “Mahoney” at birth. The mother proposed a hyphenated surname combining her maiden surname with the father’s surname i.e. “McKenzie-Mahoney”. The father proposed his surname only. Warnick J found that there was no identification of the child to either surname due partly at least to the child’s age[23] and that registration of the name at birth bore little significance[24]. After expressing a number of benefits in adopting the mother’s proposal[25], he concluded that it would be in the child’s best interests to have a hyphenated surname which would reflect an ongoing relationship with both parents[26].
[23] Paras [25] & [35] per Warnick J.
[24] Para [26] per Warnick J.
[25] Paras [37] to [42] per Warnick J. I note though that the first benefit at [38] would not apply in this case and the mother wants her surname only.
[26] Para [36] per Kay & Holden JJ in Flanagan v Handcock. Finn J agreed.
Consideration
Prior to separation the parties discussed, either orally or by text, the child’s surname. These discussions were vigorous or perhaps robust at times[27]. It appears at one stage the mother agreed to having the father’s surname only[28] although on another occasion she said if she re-partnered, the child would take the new partner’s surname.[29]
[27] See for example para [14] (page 2) and Exhibit PAV1 (text exchanges between the parties mostly undated except two on 4 September (presumably 2016) and 9 January (presumably 2017) mother’s affidavit.
[28] Para [23] and exhibit DL10 (copy of a text message from the mother) father’s affidavit.
[29] Para [24] and Exhibit DL11 (copy of a test message from the mother) father’s affidavit.
The mother has alleged domestic violence which resulted in private cross applications being initiated in the Domestic Violence Court. Those proceedings were finalised on 10 May 2017 with the parties giving mutual undertakings to the court.[30] There is no evidence of any further allegations of domestic violence since then. While I note that the parties have engaged lawyers to manage this dispute consistent with compliance of those undertakings, the mother asserts that due to this background parenting arrangements will not progress to shared care.[31]
[30] Paras [13] to [15] (pages 3 & 4) mother’s affidavit; para [13] father’s submissions.
[31] Para [25] mother’s affidavit.
The father submits that it is important for the child to have a relationship with both parents and the hyphenated surname will make her feel connected to both families. He intends to foster a relationship with the child as she grows older[32].
[32] Para [6] father’s submissions.
On the other hand, the mother deposes that she is committed to the child having a meaningful relationship with the father and his family and she has facilitated contact time with the father and his family[33]. She does not address how the child with her surname will develop a sense of connection with both families. The fact that the father does not share a surname with his own father is irrelevant to what is in the child’s best interests. In my view, her submission that it is not necessary for the child to share a surname in order to maintain a relationship with the father is contrary to authority in that it is the child who must feel connected not the parents.
[33] Para [6.2(g) & (h)] mother’s submissions.
Although the child was only born in February 2017 the mother submits that the child has been known by her surname “since birth” and that she has gone to a lot of time and expense in obtaining identification documents with agencies such as Medicare, Centrelink, the Child Support Agency and baptism documents[34]. As the custodial parent, it is likely that these actions by the mother were taken without input from the father. I accept submissions for the father that this is an irrelevant consideration given that the Act provides flexibility in the ability to change a name[35]. Further, comments by Connor J in Beach v Stemmler which in my view apply here are noted:
“In many cases it might be convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience by itself is a sufficient reason for changing a name.”
[34] Para [6.2(b)] mother’s submissions.
[35] Para [11] father’s submissions.
The mother seeks to cast doubt on the father’s assertion that he will be involved in the child’s life[36]. She says he was given opportunities which he has not taken up. The father submitted that the parents had discussed contact arrangements. Mediation has not taken place due to financial burden. However, he has been spending time with the child each week by arrangement with the mother[37]. I note that, despite the Registrar General not complying with section 12(5A) of the Act by giving the father 14 days’ notice to bring this application, he still complied with that letter by filing this application on 28 July 2017 through his solicitors which is consistent with a strong desire to be involved in the child’s life.
[36] Paras [6.2 (I) to (m)] mother’s submissions.
[37] Paras [22] & [23] father’s submissions.
It is clear that it is very early in the piece and that it is uncertain how parenting arrangements will pan out. However, the immediate physical needs of the child at such an age requiring the mother’s constant attention must to an extent inhibit the father’s ability to have more contact at this stage. As the child ages, her immediate physical needs requiring the mother’s constant attention will reduce so that contact for the father should increase over time.
The mother submitted that the hyphenated surname is “incredibly complicated” and that it is a “prohibited name” as defined in the regulations in that it is “triple barrelled” and is a name that could not be established by repute or usage as it is too long[38]. I do not agree. I note this point was not argued in Mahoney v McKenzie where a hyphenated name of “McKenzie-Mahoney” was endorsed by the court.
[38] Paras 5 &6.2(a) mother’s submissions.
I accept the father’s submissions that making an order with a hyphenated name when the child is still a baby will be of great benefit to the child:
·it will allow her to grow up with a name that she will always associate with;
·having this name at an early stage in her life will be of considerable assistance to her in knowing her family dynamic without disruption by changing her name later in life;
·without the hyphenated name, the child will grow up without a sense of acknowledgment of her paternal family;
·the nurturing of a meaningful relationship with both parents which is furthered by sharing both names is consistent with what is in the best interests of the child.[39]
[39] Paras [24] to [27] father’s submissions.
I declare that the child’s surname be “van K-L” and that that surname be entered in the register of births for the child.
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