Gannon and Hurley - [2018] FCCA 841

FEDERAL CIRCUIT COURT OF AUSTRALIA

GANNON & HURLEY

[2018] FCCA 841

Catchwords:
FAMILY LAW – Parenting – whether a child’s surname should be changed to a hyphenated surname which includes the father’s surname.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Flanagan & Handcock [2000] FLC 93-074
Gaynor & Scaife [2012] FMCAfam 698
Reynolds & Sherman [2015] FamCAFC 128
Ryan & Burnett [2008] FamCAFC 72

Applicant:

MS GANNON

Respondent:

MR HURLEY

File Number:

NCC 3015 of 2015

Judgment of:

Judge Terry

Hearing date:

1 March 2018

Date of Last Submission:

1 March 2018

Delivered at:

Armidale

Delivered on:

2 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

Moin & Associates

Counsel for the Respondent:

Mr Bateman

Solicitors for the Respondent:

Wiggins Cheffings Lawyers

ORDERS

For all purposes the child [X] GANNON born … 2015 shall be known henceforth as [X] HURLEY-GANNON.
The mother and/or the father are authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child [X] GANNON born … 2015 to [X] HURLEY-GANNON.
The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother and/or the father referred to in Order 2 above is to do all acts and things to register the change of name of [X] GANNON born … 2015 to [X] HURLEY-GANNON pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the mother or the father has not been obtained.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ARMIDALE

NCC 3015 of 2015

MS GANNON

Applicant

And

MR HURLEY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter concerns [X] Gannon who is two years and two months of age.
I need to decide whether [X]’s surname should be changed from Gannon to Hurley-Gannon. The father proposes that it should; the mother proposes that the child continue to bear the surname Gannon.

The evidence

The mother relied on her affidavit filed on 9 February 2018 and her minute of proposed orders filed on 19 February 2018.
The father relied on his affidavit filed on 9 February 2018.

Background

The mother is a health care worker and the father a health care worker. They were in a relationship between … 2011 and … 2015. The nature of their relationship was previously in contention but that is not important for the proceedings before for me.
The mother discovered that she was pregnant shortly after the parties separated and [X] was born on … 2015.
The relationship between the…

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 Gannon and Hurley

Details

AGLC: Gannon and Hurley [2018] FCCA 841
Case: [2018] FCCA 841
Decision Date: 2 March 2018

CaseChat Overview and Summary

In the matter of *Gannon and Hurley*, heard before Judge Terry, the dispute concerned the surname of a child, [X] Gannon, born in 2015. The parents sought to change the child's surname to Hurley-Gannon.

The central legal issue before the court was whether it had the power to order the change of the child's surname to a hyphenated form, and to direct the Registrar of Births, Deaths and Marriages to register this change, even if one of the parents did not consent. The court was required to consider the relevant provisions of the *Births, Deaths and Marriages Registration Act 1995* (NSW) and the court's inherent jurisdiction concerning children.

Judge Terry reasoned that the court possessed the inherent jurisdiction to make orders for the welfare of a child, which extended to determining the child's surname. The court found that the proposed change to Hurley-Gannon was in the child's best interests. Crucially, the court interpreted Section 28 of the *Births, Deaths and Marriages Registration Act 1995* (NSW) as permitting the Registrar to register a name change pursuant to a court order, even in the absence of the consent of both parents, where the court has made such an order in the exercise of its jurisdiction.

The court ordered that for all purposes the child shall henceforth be known as [X] Hurley-Gannon. The mother and/or father were authorised to apply to the Registrar of Births, Deaths and Marriages for New South Wales to change the child's name accordingly. The Registrar was directed to register the change of name pursuant to Section 28 of the Act, notwithstanding that the consent of both the mother and father had not been obtained.

Orders

Orders of the court

For all purposes the child [X] GANNON born … 2015 shall be known henceforth as [X] HURLEY-GANNON.

The mother and/or the father are authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child [X] GANNON born … 2015 to [X] HURLEY-GANNON.

The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother and/or the father referred to in Order 2 above is to do all acts and things to register the change of name of [X] GANNON born … 2015 to [X] HURLEY-GANNON pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the mother or the father has not been obtained.

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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