Haenkel & Haenkel (No 2)
[2023] FedCFamC1F 420
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Haenkel & Haenkel (No 2) [2023] FedCFamC1F 420
File number(s): BRC 16312 of 2021 Judgment of: HOGAN J Date of judgment: 23 May 2023 Catchwords: FAMILY LAW – CHILDREN – Where final consent orders were previously made according the respondents parental responsibility for the child other than in relation to any decision regarding the child’s treatment for gender dysphoria – Where the child seeks to formally change the child’s first and last name – Where the applicant parents oppose a formal change of the child’s first and last name – Where the Court found that it was in the child’s best interests for the child’s first and last name to be changed. Legislation: Family Law Act 1975 (Cth)
Births, Deaths and Marriages Registration Act 2003 (Qld)
Division: First Instance Number of paragraphs: 35 Date of hearing: 22 May 2023 Place: Brisbane Solicitor for the Applicants: Mr Anderson, Biddulph & Salenger Solicitor for the Respondents: Franklin Family Law Counsel for the Intervener: Ms Downes Solicitor for the Intervener: Aylward Game Solicitors Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 16312 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAENKEL & MR HAENKEL
Applicants
AND: MS CORCORAN & MR CORCORAN
Respondents
W
Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
23 MAY 2023
THE COURT ORDERS BY WAY OF FINAL ORDER THAT:
1.The name of the child, W is changed to C Corcoran.
2.The Respondents have, pursuant to s 20(5) of the Births, Death and Marriages Registration Act 2003 (Qld), liberty to apply to the Registrar to note the change of the child’s name in the relevant child register.
3.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
3. AThe solicitor for the Applicants is released from the undertaking given in association with access to documents produced in answer to subpoena so as to permit the retention of such documents on the solicitor’s file.
3. BThe Applicants are restrained and an injunction issue restraining them from instructing any lawyer who may from time to time act for them to provide them with access to or copies of any documents produced by E Hospital and Services and that part of the solicitor’s file which contains copies of material produced in answer to subpoena without order of the Court obtained after proper notice given to the Intervener child.
4.All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
NOTATION:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
NOTATION:
A.This Order has been amended on 24 May 2023 pursuant to Rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by including Order 3.A and 3.B because the Order issued without these Orders did not reflect the intention of the Court and Orders 3.A and 3.B were accidently omitted from the Order when it issued.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haenkel & Haenkel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
The child seeks an order that the name of the child, W (also known as B Haenkel) born 2007, be changed to C Corcoran and that the child shall henceforth be known as C Corcoran and that the Registrar of Births, Deaths, and Marriages in Queensland shall register the child’s name as C Corcoran.
This application follows the making of orders by consent on 12 May 2023 in terms which, amongst other things:
(a)accorded to the Corcorans parental responsibility for the child other than in relation to any decision regarding the child’s treatment for gender dysphoria and removed parental responsibility from the parents, but required the Corcorans to advise the parents of decisions, seek a written response from them, give consideration to such response and to provide advice of the decision taken or made; and
(b)prevented the parents from communicating with the child’s school unless the child or the Corcorans provided specific written authority for this to happen; and
(c)provided that the parents not spend time with the child or communicate and not facilitate or allow any of the child’s four siblings to do so unless spending time with, or communication, was requested by the child; and
(d)the parents and the child’s siblings not attend a place where the child is and if they do inadvertently attend such place, do not approach or speak to the child unless invited by the child to do so.
The May 2023 order finalised competing applications relating to the child’s proposed treatment for the gender dysphoria diagnosed by E Hospital and Services, which was also a party to those orders and to the proceedings at that time.
C is the first name chosen by the child. Corcoran is the last name of the respondents, the family with whom the child has been living since mid-2021.
In this aspect of the proceedings, an affidavit by the child has been filed and relied upon. In addition, each of the parents filed an affidavit. Some paragraphs of an earlier affidavit of the mother were specifically relied on also.
Whilst none of the child or the parents were cross-examined, oral evidence was taken from Mr D, a Senior Court Child Expert/Family Consultant who had previously prepared a Specific Issues Report after interviewing the child on 1 February 2023.
The contents of the child’s affidavit relied on in support of the orders sought included assertions that the child’s preferred name has been C or B since 2021, but the child would now prefer to be known simply as C; that the name W is regarded as a dead-name; and that when the child sees it or hears it as referring to the child, it brings great distress and a sense of panic.
As already adverted to, the child has four siblings. All remain living with the parents and range in age from 17 years to three years. The evidence establishes that there has been no communication between those children and the child, nor the child and the parents and that, on the evidence given by the child in this aspect of the proceedings, there is no desire for this to occur in the future, at least at this time. It is said that this is because such interaction has previously resulted in setbacks, anxiety and panic attacks.
In essence, and by way of broad summary, the child’s evidence is that the rationale underpinning the expressed wish to change the name recorded on the child’s Birth Certificate to that proposed is that a consequence of the child’s asserted lived experience with the parents, the child’s exposure to their beliefs in relation to the issue of gender dysphoria and their refusal to consent to the child receiving treatment associated with this has resulted in the child suffering significant distress, upset and harm, including by way of panic attacks and self-harm.
The evidence establishes that this child has a significant history of self-harming, including in the period following the child leaving the home of the parents and living in the home of the Corcorans.
The contents of the child’s affidavit also include that the child feels part of the Corcorans’ family, considers them to be family and their children to be siblings and has received support from them in the expression of gender identity.
Included in the child’s affidavit under the heading “Urgency of Name Change” is evidence that includes the following:
(a)that upcoming applications for official documents like driver’s licences and passports and the anticipated issuing later in the year of a school certificate in the name recorded on the Birth Certificate will cause the child to feel significant anxiety and distress at reading or seeing such documents bearing the name recorded on the Birth Certificate; and
(b)that the child’s name as recorded on the Birth Certificate is associated, for the child, with trauma and sadness and, as a consequence of this, the child does not wish a school certificate, for example, to be issued in a name that is no longer used.
The evidence also includes the child’s assertion of a desire or a wish that is held very strongly – to seek to change the child’s name to match the transgender identity; there is an expression of suffering a fear of being misgendered when dealing with other people and the expression of a belief that changing the name that is currently on the Birth Certificate to the name sought to be placed onto the Birth Certificate and noted there would go a long way to reducing the child’s anxiety about this issue.
The child’s evidence also includes the expression of a view that the name B is seen as distinctly male gendered and that the name C is regarded by the child as being non-binary in nature or a non-binary name. It is said that this name, in a sense, has been chosen because the child regards it as better fitting the child’s identity. The affidavit contains the expression of a belief that being permitted to use the name C and the surname Corcoran will provide peace to the child in the child’s interactions with school, doctors, officials, work places, and socially generally.
In addition, the child’s evidence is that it is thought that being able to effect a change to the name currently recorded on the child’s Birth Certificate is a very significant step forward in improving the child’s mental health – particularly because of the child’s evidence in relation to the consequences described in the affidavit for the child that follow from the continued use of the child’s current surname.
In essence, as is also outlined in the affidavit, the child’s evidence is to the effect that being able to be known as C and officially use that name will alleviate ongoing distress, improve confidence and represent a way forward in life; it will enable the child to move on into the further aspects of life.
The parents’ opposition to the orders sought in the application may, I think, be summarised down to being, in essence, that there is no urgent requirement established on the evidence for orders to permit an official change to the child’s name as recorded on the Birth Certificate. The parents’ evidence included an acceptance that the name B has been used by the child for some time. It seemed to me that their evidence included an acceptance of the usage of a name selected by the child. In essence, both parents expressed their belief that it is not currently in the child’s best interests for there to be an order changing the child’s name and permitting the change of name to be noted on the formal register maintained by the Registrar of Births, Deaths and Marriages in Queensland at this time because, it was submitted, the child’s circumstances are not sufficiently stable as to make such a consequence and such orders in the child’s best interests.
DISCUSSION
Relevant aspects of the Births, Deaths and Marriages Registration Act 2003 (Qld)
It is necessary to turn briefly to discuss relevant aspects of the Births, Deaths and Marriages Registration Act 2003 (Qld).
The objects of that Act, which regulates the operations of the Registrar of Births, Deaths and Marriages in Queensland, include to provide for the collection and maintenance, in registers kept by the Registrar, of information about births, deaths, marriages, adoptions, changes of name and reassignments of sex: section 3(a)(i).
Section 5(1) of the Births, Deaths and Marriages Registration Act 2003 (Qld) (which I will hereafter refer to as “the Registration Act”) provides that notice of the birth of each child born in Queensland must be given to the Registrar. This happened when the child was born in 2007 in Brisbane.
Further, s 12(1) of the Registration Act requires that a birth registration application must state the child’s name. This also happened, because the name recorded on the Birth Certificate in evidence before the Court is the name W.
Section 15(1) of the Registration Act provides that a person’s name may be changed by registration of the change under that part of the Act. It also provides, in subsections (3) and (4), that, whilst it is no longer possible in Queensland to change a person’s name by deed poll, the part of the Act does not prevent the change of a person’s name by repute or usage.
As I have already adverted to, the parents’ evidence includes the assertion that, in essence, this is what has already happened and has been placed into effect to date. As I say, the submissions made on their behalf by their legal representative included, in essence, that this was sufficient and that it was not now in the child’s best interests for changes to be made to the official register of names.
Section 18 of the Registration Act provides that the Registrar must not approve an application to register the change of name of a child who is 12 years or more of age unless the Registrar is satisfied that the child consents to the change of name. Given the application and the contents of the child’s affidavit filed in support of it, it seems that this requirement will clearly be established.
Section 20 of the Registration Act appears to me to apply if a person’s birth was registered in Queensland and the person’s name has been changed under the law of another state or other legal process – for example, an order of this Court. Section 20(5) provides that a child’s guardians may apply to the Registrar to note the change of the child’s name in the relevant register.
The term “guardian” is defined in the dictionary found in Schedule 2 to the Registration Act to mean:
A guardian who has been appointed under a law of the state or the Commonwealth.
Whilst there was, in my view, an absence of considered argument about this issue, I consider, in the circumstances at least, that the order made on 12 May 2023 – which accorded the Corcorans’ parental responsibility and removed from the parents parental responsibility in the manner I have already described in relation to the child – has the consequence that, at least for the purposes of the Registration Act, the Corcorans’ are the child’s guardians. They are the adults who have, by virtue of being accorded parental responsibility “all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children”.[1]
[1] Family Law Act 1975 (Cth) s 61B.
Consequently, given that s 41(1) of the Registration Act relevantly provides that the Registrar must register a registerable event (that term being defined in the dictionary at Schedule 2 to include a change of name) if it is an event that must be registered under the Act and the Registrar receives the prescribed documentation, then provision of an order specifying a change of the child’s name and completion of whatever other documents are required by the Registrar will, it seems to me, result in the Registrar causing, on the register, the noting of a change of name.
The Application of the Family Law Act 1975 (Cth)
I turn now to a brief discussion of the application of the Family Law Act 1975 (Cth) to this current application.
A parenting order is defined by section 64B(1) of the Family Law Act 1975 (Cth) to be an order under Part VII of the Act, dealing with a matter mentioned in subsection 64B(2). Subsection 64B(2) provides that a parenting order may deal with one or more of those matters prescribed in subsections (2)(a) through to (2)(h) as well as:
Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.[2]
[2] Family Law Act 1975 (Cth) s 64B(2)(i).
The name of a child comes within “any aspect of the care, welfare, development of the child or any other aspect of parental responsibility for a child”. Therefore, an order changing the name of the child is a parenting order; given this, the Court may make such order as it considers proper provided that, in deciding whether to make a particular parenting order, the Court regards the child’s best interests as the paramount consideration.[3]
[3] Family Law Act 1975 (Cth) s 65AA.
Reference to the contents of a psychiatric consultation at the gender clinic on 15 March 2023[4], gives rise to some concerns about the weight that can safely be accorded to the child’s assertions, as contained within the affidavit, about the impact of being required to continue to have the name recorded on the Birth Certificate that is currently recorded there and their incapacity to continue to tolerate the continued existence of that name. Reference to those notes makes it clear, it seems to me, that, on the child’s own reporting to the psychiatrist on that occasion, the child has:
(a)been able to deliberately present as binary male and very masculine so as to be taken seriously within the medical system and the courts; and
(b)been able to refrain from expressing a view about themself as having a non-binary gender because of concerns about the impact of that expression on the court proceedings; and
(c)been able to continue, over time, to use the first name B, although not apparently liking it for a while and using C more often; and
(d)been able to tolerate being called “son” by at least Ms Corcoran, despite a preference to be referred to as “a child” of the Corcorans because “I don’t wish to disappoint [Ms Corcoran]”.
[4] Exhibit 8(d).
Absent the clear evidence in this case of this child’s history of self-harming behaviours at times of stress and anxiety, these entries in the hospital records may have persuaded me that the course that was currently in the child’s best interests was to permit the child to continue to use whatever name has been chosen (as has been the case at least in relation to the child’s first name) but not to make orders to facilitate changes being made to the official register maintained by the Registrar.
However, even absent expert opinion evidence about the likely impact on the child of a refusal of the application for the orders sought and even taking into account the evidence given by Mr D, I consider the risk, if the child is prevented from being able to have the change of name recorded in the manner sought, that there will be a repetition of the previous self-harming behaviour to be unacceptable. Even taking into account the evidence of Mr D, I consider that the way to ameliorate this risk is to accede to the application made for an order changing the child’s name.
Given this conclusion, I consider the orders which are proper and which are in the child’s best interests are orders in the following terms, and I make such orders.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 25 May 2023
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