DKL v Van K

[2017] QMC 19

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

1. 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.  

1. The mother opposes the application seeking that the child’s surname be registered in her surname only.

1. 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

1. 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.

1. 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.

1. 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…