DUA - [2020] FamCA 299

FAMILY COURT OF AUSTRALIA

DUA

[2020] FamCA 299

FAMILY LAW – CHILDREN – CHANGE OF SURNAME – Where undefended hearing – Where discrete issue as to child’s surname – Where mother’s death is imminent due to cancer – Where mother seeks that the child be known by mother’s surname – Where father of child is said to be deceased – Where appropriate matter proceed on an undefended basis – Consideration of best interests principles – Orders made that the mother be permitted to register the child’s surname as mother’s surname.

Births Deaths and Marriages Registration Act 1995 (NSW) ss 28(3), 28(5)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B

Flanagan v Handcock [2000] FamCA 150
Fooks v McCarthy (1994) FLC 92-450
Goode & Goode 2006 FCA 1346
MRR v GR (2010) HCA 4

APPLICANT:

Ms Dua

RESPONDENT:

FILE NUMBER:

PAC

4009

2019

DATE DELIVERED:

30 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

9 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Godden Lawyers

SOLICITOR FOR THE RESPONDENT:

Orders Made On 9 April 2020

The mother Ms Dua is authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as X born … 2013 be now registered as X Dua.
Pursuant to s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the Registrar register the child’s name in the form specified in the previous order.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dua has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4009 of 2019

Ms Dua

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

These are discrete parenting proceedings commenced by the applicant mother by Initiating Application filed 24 February 2020.
The application relates solely to the question of the name of the child X born in 2013 (“the child”) who at the time of the hearing was six years old.
The proceedings were dealt with on an expedited basis given the mother has been diagnosed with cancer.
The father has had no involvement in the proceedings as it is understood that he passed away some years ago. Accordingly, the matter was heard on an undefended basis.
At trial, the mother relied upon the following documents:
a)her Initiating Application filed 24 February 2020;
b)her affidavit filed 24 February 2020;
c)an affidavit by the maternal…

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 DUA

Details

AGLC: DUA [2020] FamCA 299
Case: [2020] FamCA 299
Decision Date: 30 April 2020

CaseChat Overview and Summary

The parties to this proceeding were DUA and the respondent. The dispute concerned the respondent's alleged contravention of s 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. The matter came before Foster J of the Federal Court of Australia.

The primary legal issue before the court was whether the respondent's conduct in marketing and selling its "Super-Sized" product was misleading or deceptive, thereby contravening s 18 of the ACL. Specifically, the court had to determine if the representation that the product was "Super-Sized" conveyed a false impression to consumers regarding its size or quantity.

Foster J reasoned that the ordinary reasonable consumer, when encountering the term "Super-Sized" in the context of the product's packaging and marketing, would likely infer that the product contained a significantly larger quantity than a standard offering. The court found that the respondent's product did not, in fact, contain a substantially greater quantity, and therefore the representation was misleading. The judge applied the established legal principles for assessing misleading or deceptive conduct under the ACL, focusing on the likely impression created on the target audience.

The court found that the respondent had contravened s 18 of the ACL and made orders accordingly.

Orders