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

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

2. 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.

3. 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

1. 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.

2. This matter concerns [X] Gannon who is two years and two months of age.

3. 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

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

2. The father relied on his affidavit filed on 9 February 2018.

Background

1. 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.

2. The mother discovered that she was pregnant shortly after the parties separated and [X] was born on … 2015.

3. The relationship between the parties post separation was sometimes amicable but often acrimonious.

4. The mother told the father that she was pregnant fairly shortly after she discovered it. He went to one pre-natal appointment and the parties had a discussion about the child’s surname. The father said that he thought the child should be called Hurley because it was traditional. The mother did not agree.

5. At some point before [X] was born the parties stopped communicating. The mother said in her affidavit that she felt that this was because the father was not interested but the flavour of the evidence of both the mother and the father suggests to me that the father did try and keep in contact with the mother but she was not willing to respond.

6. The parties had purchased a house together during their relationship and in … 2015 the mother filed an application for a property settlement. The first return date was … 2015 and during communication between the lawyers that day the father discovered that [X] had been born three days earlier.

7. In the response the father had filed the previous day he had as well as responding to the property settlement application also sought an order that a paternity test be carried out once the child was born. An order was made for this to occur and it was determined that [X] was the father’s child.

8. On 17 May 2016 following that result being obtained, the father filed an amended response seeking time with [X] and also seeking an order that the child’s surname be changed to Hurley-Gannon.

9. The mother had registered the child’s birth within the first week of his life and had given him the surname Gannon which is her surname. She did not include any information about the father on the birth certificate. She said that this was because he was seeking a paternity test.

10. There was no dispute that the mother did not consult the father before she registered the child’s birth and did not consult with him about the child’s surname.

11. The period around the time of the child’s birth was a fraught and difficult one for both parties. The mother was extremely upset by the father’s request for a paternity test. She said in her affidavit that she considered it inconsistent, offensive and controlling. I cannot see how it could be called controlling but I can understand why the mother found it offensive, although in circumstances where the mother did not discover she was pregnant until after separation I am also not inclined to be unduly critical of the father for seeking the test. I said yesterday that it might not have been his best decision, and that remains true because it ramped up acrimony between the parties, but on reflection I can understand why he sought the test.

12. In any event once paternity was established the father made it clear that he wanted a relationship with [X] and that he wanted the surname to be changed and wanted to be named on the birth certificate as the child’s father.

13. It took some little while for time between [X] and the father to commence. The father first met [X] in November 2016. To the mother’s credit she instigated that meeting without an order immediately after a mention of the matter in this Court.

14. In January 2017 supervised time commenced and on 19 June 2017 orders were made for the father to spend time with the child for two hours each alternate week. The parties live a considerable distance apart so more frequent time was not possible.

15. To the great credit of both parties in September 2017 they were able to agree on final orders about most matters in dispute. The orders provided for a fairly slow increase in time between the father and [X]. At present it is still only four hours each alternate Sunday. Overnight time is not due to commence until December 2019 when [X] is four.

16. However the parties have agreed to overnight commencing in due course and the time must be going well because I was told yesterday when the mother was in the witness box that when she recently had some work to do in Town A, she offered for the father to look after [X] for some additional time. From memory it was for two three hour periods and one eight-hour period.

17. The mother should carefully reflect on the fact that it is obvious from the father’s consent to those orders that he does not want to bustle in and take over in respect of [X]. He has agreed to a very slow introduction of time. He has demonstrated by his actions that he is very respectful of the mother’s role as [X]’s primary carer and primary attachment figure.

18. An order was also made in September 2017 for the father’s name to be added to the child’s birth certificate and that order has been carried into effect.

19. The two things the parties were unable to agree on in September 2017 were parental responsibility and the child’s surname and those matters were listed for hearing yesterday.

20. Before the hearing commenced the parties had some discussions and they agreed on an order for equal shared parental responsibility. That is entirely appropriate. The parties are both intelligent, responsible people. They will both be having a role in the child’s life long term. Mediation services are available to assist them if agreement cannot be reached but the father’s attitude as evinced by the September 2017 Court orders suggests that he is respectful of the mother and I do not see why an order for equal shared parental responsibility should readily lead to conflict.

21. The issue which remained in dispute was the surname and I will summarise the parties’ arguments about that issue.

The father’s arguments

1. The father said that the mother had not consulted him about giving the child a surname. He promptly filed an application for a change of the surname once paternity was established and he should not be deemed to have lost his chance to have a say about the surname because the birth was registered by the mother within the first week of the child’s life.

2. The father said that he was keen to have the surname changed because it would ensure that people immediately recognised that [X] was his son if they travelled or if he attended events in respect of [X]. It was his view that it might make a subtle difference to him being able to do things with the child or to people respecting his role with the child. It was his case that [X] was too young to have identified with a surname and that it would make no difference to him if the name was changed.

The mother’s arguments

1. The mother said that [X] had always lived primarily with her and always would and that it was important that she and [X] have the same surname, especially in circumstances where the father lived at a distance from them and would not be seeing the child as frequently as someone who lived closer.

2. The mother agreed that the child was young and could not read and write but maintained that nobody could be sure about how changing the surname would affect him.

3. The mother expressed some fear that the father might not remain committed to the child, the implication being that if that happened it would be very inconvenient if the child had the name Hurley as part of his surname.

4. The mother said – and I am not sure this was the high point of her argument but I will record it – that she had called the child [X] and if his name was changed he would be [X] Hurley-Gannon and she did not want people to think she had named him after …. I am not making light of that argument but it is not the most forceful argument for why the child should not be known as [X] Hurley-Gannon. Most people are not going to call him [X] Hurley-Gannon. The mother raised it in the witness box though so I will mention it.

5. The mother’s counsel argued that a change of surname would only benefit the father, it would not benefit the child and I will refer to that again in a little while.

The applicable law

1. In Gaynor & Scaife[1] I said as follows about the applicable law in this area:

   Pursuant to s.6OCA of the Family Law Act any parenting orders I make must be orders determined by treating the children’s best interests as the paramount consideration.

   Most of the orders sought in this case are clearly parenting orders, but there has been some controversy in the past about whether an application for an order concerning a child’s surname is an application for a parenting order.

   Boland J considered this in Ryan & Burnett. In that case there were two competing applications, one by the mother seeking to restrain the father from using any other surname for the child but Ryan, and one by the father seeking an order that the child’s surname be changed from Ryan to Burnett-Ryan.

   For reasons set out at length in her judgment Boland J said that she tended to view that the father’s application was an application for a parenting order, and that therefore the best interests of the child should be treated as the paramount consideration when determining whether the order should be made, although she expressed no concluded view because the matter was not argued before her. 

   Boland J observed that even if the child’s best interests were not the paramount consideration in a surname application they were a very relevant consideration.[2]

   [1] Gaynor & Scaife [2012] FMCAfam 698

   [2] Gaynor & Scaife [2012] FMCAfam 698 (supra) paragraphs 101 to 105

2. The later case of Reynolds & Sherman[3] to which the mother’s counsel referred me makes reference to Judge Boland’s decision in Ryan & Burnett.[4]

   [3] Reynolds & Sherman [2015] FamCAFC 128

   [4] Ryan & Burnett [2008] FamCAFC 72

3. From the mother’s counsel’s point of view, the significance of characterising the order being sought in these proceedings as either an application for an injunction or an application for a parenting order was that if it was characterised as an application for an injunction then the father bore the onus of proof and if it was characterised as an application for parenting orders that would not be the case. In parenting proceedings neither party bears an onus of proof, the Court must simply determine appropriate orders in the exercise of its discretion.

4. The mother’s counsel submitted that the father was applying for an injunction.

5. I do not accept that this is correct.

6. The father’s primary proposal in his amended response is for a change of the surname; in other words for a parenting order. He also sought an injunction but it was an injunction restraining the mother from using any other surname once the surname was changed, in other words, he sought an injunction that would only become necessary if after the name was changed the mother took the step of not using the new name.

7. In my view the father’s primary application is for a parenting order. Neither party bears an onus of proof. I must simply decide whether the order the father seeks should be made regarding the child’s best interests as the paramount consideration although as in all cases they are never the only consideration.

8. There are numerous decided cases concerning applications for change of surname. The mother’s counsel referred me to some of them yesterday and in particular he referred me to the old case of Flanagan & Handcock. However as I said in Gaynor & Scaife in my view the most significant passage in Flanagan & Handcock is the following:

   The matters which frequently need to be considered in deciding whether or not to permit or prohibit a change of surname have been considered in several decisions of this Court, both at first instance and on appeal. The most significant feature that appears from those cases is that they turn on their own individual facts.[5]

   [5] Flanagan & Handcock [2000] FLC 93-074

9. Before I go on to consider the s. 60CC (2) and (3) matters which are the matters I must consider in order to determine [X]’s best interests I also want to note this: the mother’s counsel said that he had not been able to find any similar cases to the one before me. However the facts in Ryan & Burnett are somewhat similar.

10. In Ryan & Burnett the parents had been in a relationship but had separated before the birth of the child. The mother registered the child at birth with her surname of Ryan. The father subsequently applied for parenting orders and for a change of surname to a hyphenated surname of Burnett-Ryan, so just as in the case before me the father was not proposing that his surname be given priority. Mr Burnett wanted the child called Burnett-Ryan and the child by the time the matter came to trial was three years and seven months old.

11. In that case the Federal Magistrate ordered that the surname be changed but that does not mean I am necessarily going to do the same thing. I reiterate that the facts in every surname case are different.

[X]’s best interests

1. To determine [X]’s best interests I must have regard to the matters in s.60CC (2) and (3) of the Family Law Act 1975.

2. Many of them are not particularly relevant in this case. The primary considerations in s. 60CC (2) do not assist me. S. 60CC(2)(a) talks about the benefit to the child of having a meaningful relationship with each of his parents but he can have that regardless of what his surname is and s. 60CC(2)(b) is not relevant.

3. Not all the s. 60CC (3) matters are relevant either. For instance the child is far too young to have a view about his surname. In some surname cases a child’s views are very important. One kind of surname case which frequently comes before the Court is where a child has been known by a name other than the name on their birth certificate for much of their life and then they have a view about what they want, but in this case the child is too young to have a view.

4. I must have regard to the nature of the relationship between the child and each of his parents.

5. The mother is the child’s primary carer and primary attachment figure. The child is developing a relationship with his father however.

6. I must consider the extent to which each party has taken or failed to take the opportunity to make decisions about the child, spend time with the child or communicate with the child.

7. The father has always sought a relationship with the child. The fact that he sought paternity testing does not negate that proposition. The mother said that she feared that he may not remain consistent in the future but he has unswervingly wanted time with the child since the paternity testing determined that he was the father and he has been reliable in spending time with the child. I do not consider that there is merit in the mother’s submission that he might not remain committed to the child.

8. The father did not decline to be part of the decision about naming the child; he wasn’t given the opportunity to be part of it.

9. The next relevant s. 60CC (3) consideration is the likely effect of a change in the child’s circumstances.

10. A change of the child’s surname would be a change in his circumstances but he has not identified with a surname. He cannot read and write. He would mainly identify with the name [X] at present and in my view he would readily adapt to a change.

11. The mother said that it was important for the child that he had the same name as her. My immediate response when the mother’s counsel raised this was, “But he will have,” because the proposed surname is Hurley-Gannon and the mother is Gannon. I remain of the view that if the surname is changed the child will readily be identified as a Gannon like the mother – a Hurley-Gannon but still a Gannon like the mother. The connection between the mother and child will be immediately apparent.

12. The father identified benefits of the child in having the father’s name as part of his surname. People would immediately realise that the little boy with him was his son as opposed to perhaps his nephew or someone not related at all.

13. It may be of benefit if they travelled, when people can get a bit suspicious about a male travelling with a young child. It may make people readily accept his role in the child’s life. These are only small things but I can understand the argument. I do not think it can be said that there is no benefit to the child in his surname being changed. Anything which ensures that the relationship between father and son proceeds smoothly and without incident is a benefit to the child.

14. Most of the remaining s. 60CC (2) and (3) matters are not relevant.

15. I can consider any other relevant matter and under that heading I would say this: I commented during the hearing that the name Hurley-Gannon was euphonic. It does not jar on the ear and it is not difficult to spell or pronounce. That is not determinative but it is of some relevance.  

16. I do not consider (and I am not making fun of the mother in any way) that the fact that the child will be [X] Hurley-Gannon and the mother is a health care worker and has had some association with Employer will suggest to anyone that she named the child after her employer.

17. In Gaynor & Scaife I had a case involving three year old twins. The parents had agreed on the children having the mother’s surname. The father in that case also sought a paternity test and after the result was received the parents sat at the kitchen table with the paternity test in one hand and the birth registration form in the other and filled out the birth registration form giving the children the mother’s surname. A couple of years later they came into dispute over parenting arrangements for the children and the father applied to have the surname changed but I declined to change it.

1. In the case before me now the parents never agreed on the child’s surname, in fact in the only conversation they had about it the father said that he wished the child to be called Hurley. The mother registered the child’s birth without consultation with him. It probably seemed to her a natural thing to do at the time but the father did not have any input into it and never consented to the child’s surname being Gannon.

Conclusion

1. People get extremely emotional about surnames. I do not blame either parent for arguing for the outcome they wanted but in my view all the factors stack up in favour of a change of the child’s surname to Hurley-Gannon.

2. The child is young. He has not identified with any surname. The name proposed by the father is euphonic and [X] will easily be able to adjust to it once he gets a little older and it will seem perfectly natural for him because he will be seeing both of his parents. He will be seeing his mother whose surname is Gannon and his father whose surname is Hurley. It will seem logical and ordinary for him to have a surname that has both of their names in it.

3. It will involve a little bit of administrative work for the mother to change things like the Medicare card but there is nothing major about that.

4. The father has shown commitment to the child. There is no foundation for the claim that he may not remain in the child’s life. He lives at a distance and unless something changes he will not see the child as frequently as the mother who lives close. The mother’s counsel put that forward as a reason for not changing the surname. In my view it is all the more reason why the child should have a surname which connects him with his father as well as his mother.

5. I am glad the mother consented to the order for equal shared parental responsibility but there is just a little bit of a flavour in this case of the mother being very possessive of the child. He needs both parents in his life and that also tips the balance in favour of his surname being Hurley-Gannon so that the fact that he has two parents in his life, not just one, is immediately recognised by all people who have any dealings with him.

6. I do not intend to be hurtful to the mother in making that comment. She is devoted to her only son but I suspect she is just a little possessive of him, and changing the surname may have a useful psychological benefit by ensuring that the child understands that he has two important parents in his life.

7. The order I am going to make is that the child [X] Gannon born on … 2015 shall henceforth be known as [X] Hurley-Gannon and I will then make the usual order which allows his name to be changed with Births, Deaths and Marriages.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:       11 April 2018