H and M - [2005] FMCAfam 268

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & M

[2005] FMCAfam 268

FAMILY LAW – Children – change of child’s surname – child’s surname different to both parents and siblings – best interests of the child.

Chapman v Palmer (1978) FLC 90-510

Applicant:

Respondent:

File Number:

PAM 6134 of 2004

Judgment of:

Emmett FM

Hearing date:

18 April 2005

Date of Last Submission:

18 April 2005

Delivered at:

Parramatta

Delivered on:

18 April 2005

REPRESENTATION

Solicitors for the Applicant:

Mr Prasad, Legal Aid Commission

Solicitors for the Respondent:

Mr Gittoes-Caesar

ORDERS

The child’s surname be changed to “H” and the child’s name be “LTJH” and within 14 days both parties sign all documents and do all things necessary to record such change in name at the Registry of Births, Deaths and Marriages, and any application fee payable for the application to change the surname will be paid for by the Applicant Mother.
In the event the Respondent Father refuses or neglects to execute a deed and / or instrument in compliance with the provisions of Order 1, the Registrar of the Family Court of Australia at Parramatta is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deed and / or instruments in the name of the Respondent Father and do all acts and things to give validity and operation to the deeds and / or instruments.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 6134 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Applicant Mother seeks an order that the name of the child, LTJP (“the Child”), be changed to LTJH pursuant to an Amended Application filed 16 February 2005.
In his Response filed 14 April 2005, the Respondent Father seeks an order that the Child be known as LTJM.
Neither party particularly sought a hyphenated surname, although I note that the Respondent Father was prepared to agree to one if acceptable to the Applicant Mother.
I note that the name T comes from the Respondent Father’s middle name, and the name J comes from the maternal grandfather’s middle name.
In support of her Application, the Applicant Mother relies on her Affidavit, sworn 16 February 2005, in which she deposes that at the time LTJP was born he was named LTJP, in accordance with the maternal grandmother’s maiden name.
The maternal grandfather’s surname was H, and on 8 October 2001 the Applicant Mother changed her surname to H.
The Applicant Mother deposes that in January 2005, she gave birth to a baby girl, who is named EJH.
The Respondent Father relies in support of his Application on his Affidavit, sworn 11 April 2005, in which he states that he was aware that the child was named LTJP at the time he was born by the Applicant Mother. At that time the Applicant Mother’s surname was P, as was that of the maternal grandmother.
The Respondent Father also deposes that he was aware that the Respondent Mother changed her surname to H on 8 October 2001.
The Respondent Father has a child from another relationship, J, who carries the surname, M.
Both parties acknowledge that the Respondent Father has played a significant role in LTJP’s life to date, and that LTJP is well bonded with each parent.
The Full Court of the Family Court in Chapman v Palmer (1978) FLC 90-510, gave some guidance in the matters to be taken into account in considering a change in a child’s surname. The Full Court espoused the following general principle:
“The general principle appears to be that the Court will not intervene to prevent a parent from changing the name of a child in the custody or care and control of that parent… unless the Court is satisfied that the change was made without the consent of the other parent, and that it does not promote the welfare of the child.”
These principles was reinforced by the Full Court in Flannigan v Hancock where the Court considered the power to change a child’s name deriving from the Court’s power under s.65(d) of the Family Law Act 1975 to make a parenting order, and I refer to the paragraph as follows:
“The power to change a child’s name is clearly an aspect of parental responsibility as defined by s.61(d) of the Family Law Act 1975. The resolution of a dispute between the parties of a child about the child’s name is ultimately to be resolved by the making of a specific issues order under the provision of s.65(d), which is governed by the provisions of s.65(e), which requires the Court to consider that the welfare of the child is the paramount consideration.”
I further have regard to the indicia identified in Chapman v Palmer, as matters relevant to take into considering to such an application. They are set out as follows:
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 is 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.
LTJP, at the moment, bears a surname that is not relevant to any living member of his immediate family. However, he has worn that surname with the full knowledge of his parents and without either parent seeking to change his name throughout that period until recently.
There was no explanation offered to the Court as to why there was no application by the Applicant Mother to change LTJP’s surname to H at the time she chose to change her own name.
There was also no application by the Respondent Father at any time after LTJP’s birth, until 14 April 2005 to seek to change LTJP’s name.
I note that the Respondent Father’s child, JM, has 2 other step-siblings who carry their father’s surname, and the Respondent Father deposes that those differences have not caused any problem with JM’s schooling or sports.
Again the Respondent Father offers no evidence as to why he has taken no step in the past to seek to change LTJP’s name to M, and having regard to the lateness of the seeking such an order, I draw the inference that it has not been the Respondent Father’s view to date that a name change to M was necessarily in LTJP’s best interest.
Indeed I find that the Respondent Father’s Response seeking the change of surname to M, filed 4 days ago, and in breach of directions made by this Court on 24 January 2005 that required the filing and serving of a Response and Affidavit in support by 4 March 2005 was prompted largely by the Applicant Mother’s Application for a change of surname. In those circumstances I am not satisfied that it is a matter of great emotional significance to the Respondent Father if the surname of M was not used. Certainly there has been more than 5 years for the Respondent Father to address that issue if it was truly a matter of significance to him.
Accordingly, Order 10 sought by the Respondent Father in his Response is dismissed.
The Applicant Mother bases her Application to change LTJP’s name on the desirability of LTJP having the same surname as his 2 month old sister, EJH.
The Applicant Mother has had the primary care of LTJP to date, and that is unlikely to change in the future.
It is difficult to see in these circumstances how it is in LTJP’s best interest at this point in his life, indeed in the short or long term, to retain the surname P when such a surname has no bearing on LTJP’s identity with either his mother or his father.
There is however some benefit to LTJP in having a surname the same as his mother and his sister with whom he lives.
Whilst I am not satisfied that having different surnames would cause embarrassment to LTJP and EJH, I am satisfied on balance that in preference to the surname P, the surname H is more likely to promote LTJP’s welfare and be in his best interests.
Accordingly I make orders 15 and 16 sought in the Amended Application, filed 16 February 2005.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 2 May 2005