HAFNER & FURLOW
[2019] FCCA 2045
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAFNER & FURLOW | [2019] FCCA 2045 |
| Catchwords: FAMILY LAW – Parenting – whether the applicant father should be permitted to change the child’s name – change of name permitted. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: Beach & Stemmler (1979) FLC 90-692 Chapman & Palmer (1978) FLC 90-510 McEnearney & McEnearney (1980) FLC 90-866 |
| Applicant: | MR HAFNER |
| Respondent: | MS FURLOW |
| File Number: | DGC 2320 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 7 February 2019 |
| Date of Last Submission: | 7 February 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr Gates |
| Solicitors for the applicant: | Connley McInnes Lawyers |
| Counsel for the respondent: | Mr Trim |
| Solicitors for the respondent: | Dandenong Family Lawyers |
ORDERS
The child previously known as [X] born … 2015 now be known as [X] FURLOW-HAFNER.
The applicant apply to the Victorian Registry of Births, Deaths and Marriages to register the child’s name in accordance with the preceding order and do all such acts and things and sign all such documents as may be required to give effect to that registration.
IT IS DIRECTED THAT a sealed copy of these orders be served upon the Registrar of Births, Deaths and Marriages in order to give effect to the applicant’s application pursuant to order 2 herein.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Hafner & Furlow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2320 of 2017
| MR HAFNER |
Applicant
And
| MS FURLOW |
Respondent
REASONS FOR JUDGMENT
This is an application for orders seeking to change the name of the child of the relationship, [X] born … 2015 (“the child”).
Procedural history
The father filed an application in this court on 27 July 2017 seeking an order in the following terms:
That the child’s name be changed from [X] Furlow to [X] Hafner.
By her response filed on 30 October 2017, the mother sought an order in the following terms:
The respondent mother is authorised to apply to the Registrar of Births, Deaths and Marriages that the child previously registered as [X] Furlow be now registered as [X] Furlow-Hafner.
AND IT IS DIRECTED that a sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages who is requested to give effect to any such application.
Orders were made on 15 November 2017 listing the dispute between the parties for a final hearing of one day’s duration on a date to be fixed in 2019. Trial directions were also issued.
On 14 January 2019, the applicant father filed an amended application in which he sought parenting orders in addition to the change of name. The mother filed an amended response on 24 January 2019 seeking the dismissal of the father’s application insofar as it related to parenting orders and an order seeking costs for her amended response.
When the matter came on for hearing before me on 7 February 2019, it was conceded by both parties that key issue before the court was the change of name application.
No submissions were made in relation to the parenting orders sought by the father. Any such issue, if it is to proceed, will need to be programmed in the usual way.
To their credit, the parties agreed that the child’s surname ought to be changed from ‘Furlow’ to ‘Furlow-Hafner’. The father also indicated that he was no longer pursuing the inclusion of ‘Mr Hafner’ as a middle name for the child. However, the father did press his application for the removal of ‘…’ as the child’s middle name.
Issues
The only issue in these proceedings is whether or not the child’s name should be changed from [X] to:
a)[X] Furlow-Hafner as sought by the father; or
b)[X] Furlow-Hafner as sought by the mother.
Factual background
The background to this matter is summarised below.
a)The parties met in Queensland in … 2014 and separated in March 2015.
b)At no stage during the relationship did the parties live together.
c)The parties had discussed possible names prior to the child’s birth and had agreed on [X] if it was a boy although it appears that they had not discussed either a middle name or the child’s surname.
d)The parties discussed and agreed that if it was a girl, the child would have the maternal grandmother’s name as a middle name.
e)The child was born on … 2015.
f)Although the father was not present at the birth, the mother advised him of the birth shortly after and the father attended the hospital later that day.
g)It is common ground that the child’s name as noted on the child’s crib in hospital was ‘[X]’.
h)On … 2015, the father arranged to meet with the mother and child in Suburb A near the mother’s home at which time the mother provided the father with the completed application to register a birth form and asked him to sign it. The father noted that the mother had proposed the child be registered with the name ‘[X]’. The father did not sign the form as he did not agree to that name. There is some dispute between the parties as to how this issue was resolved between them which is discussed further below.
i)When the father next met with the mother to spend time with the child on … 2015, he provided her with a joint letter that he proposed they send to the Registry for Births, Deaths and Marriages (“RBDM”) in relation to the dispute between them as to what name the child should have. The father’s evidence is that this was required pursuant to procedures at the RBDM.
j)The father gave evidence that the mother raised for the first time the possibility that he might not be the child’s father during this meeting. The mother denies ever raising this issue with the father.
k)In any event, it is common ground that the father did not sign the registration form indicating that he was the child’s father. The mother then lodged the form without his signature. The father advised the RBDM that he disputed the name proposed by the mother.
l)The father’s lawyers wrote to the mother on … 2015 seeking a DNA test.
m)The father’s evidence, which is not challenged by the mother, is that he received a letter from the RBDM dated … 2015 stating that both parents were required to sign the application for the registration of the child’s birth and asking him to sign and return it. The father gave evidence that he contacted the RBDM and advised them that there was a dispute as to the child’s name and also that there was DNA testing which was pending. He says that the RBDM told him that the process would be ‘put on hold’ until the results of the DNA testing was determined.[1]
n)The father attached a letter from the RBDM advising that the RBDM noted the dispute between the parties as to the name to be given to the child. Importantly, that letter stated:
Section 22(2)(b) of the Births, Deaths and Marriages Registration Act 1996 … states that the Registrar may assign a name to the child if ‘the birth registration statement is lodged by both parents of the child and they satisfy the Registrar that they are unable to agree on the child’s name’.[2]
o)The parties were unable to agree and ultimately, on … 2015, the RBDM determined the question of the child’s name pursuant to the Births, Deaths and Marriages Registration Act 1996.
p)On … 2015, the parties received results from the DNA testing confirming that the father was the biological father of the child.
q)The father pursued his application to be named on the child’s birth certificate, which ultimately occurred on 3 February 2017. As the parties were unable to agree about changing the child’s name from that contained in his birth certificate, the RBDM was unable to process the father’s application any further and advised him that a court order was required in order to change the child’s name. In correspondence from the RBDM in July 2017, the father was encouraged to seek legal advice in relation to this matter.
r)The father then lodged his application in this court on 27 July 2017.
[1] Affidavit of the father sworn 26 and filed 27 July 2017 at paragraph 35.
[2] Affidavit of the father sworn 26 and filed 27 July 2017 at annexure HJ-6.
Evidence
The father relied upon the following documents in support of his application:
a)amended initiating application filed 14 January 2019;
b)affidavit of Mr Hafner sworn 6 July 2017 and filed 27 July 2017; and
c)affidavit of Mr Hafner sworn 13 and filed 14 January 2019.
The mother relied upon the following documents in support of her application:
a)amended response filed 24 January 2019; and
b)affidavits of Ms Furlow:
i)sworn and filed 30 October 2017;
ii)sworn 16 January 2019 and filed 16 January 2019; and
iii)sworn and filed 24 January 2019.
The parties’ evidence in relation to the nature of their relationship, the father’s involvement in the birth of the child and the steps the father has taken to be involved in the child’s life is largely consistent.
The parties met when they were both working in the same workplace in Queensland. The mother was working as a professional at the time. The father was working on a two week on two week off roster. The father has two adult children from a previous relationship who both live in the Town B area. The mother does not have any other children and has given evidence that she has experienced fertility issues and therefore may not have any other children. Indeed, the father’s evidence is that he was very surprised when the mother told him that she was pregnant as he had understood from her that she had a medical condition which made her effectively unable to have children. This evidence was not disputed by the mother.
During their relationship and at times when they were not working, the parties would return to Victoria and spend part of their time with the mother’s family in Suburb A and the other part in Town B where the father was building a home and where he lives (when he is not working in Queensland).
There is a dispute between the parties as to whether the pregnancy was welcomed by each of the parties. On the evidence before me, I am satisfied that irrespective of the parties’ initial response to finding out that they were going to have a child, they both now love and cherish the child. I am also satisfied that since the day that the child was born, the father has indicated both by his words and his actions, an intention to be an active part of the child’s life. To her credit, the mother conceded this in the course of cross examination, notwithstanding her view that the father had not taken an active interest during the pregnancy.
It is also not in dispute that the father has sought to have the child’s name changed on the birth certificate since shortly after he was born and that he has pursued that matter through the processes available with the RBDM. I do not make any criticism of the father’s failure to lodge proceedings in this court seeking orders that he now seeks until … 2017, some two years after the child’s birth.
As stated above, the parties have resolved the issue of the child’s surname and have agreed that the child’s name will be changed to ‘Furlow-Hafner’, thereby reflecting the connection that he has to both parents. The remaining issue is whether the child’s middle name of ‘ …’ should be retained. The father has abandoned his claim that the child be given ‘Mr Hafner’ as a middle name instead of ‘ …’.
DNA testing
The father gave evidence that his lawyers requested a DNA test on … 2015, shortly after the mother had first raised the question of whether he was in fact the child’s biological father.
The father said that he did all that he could to have the DNA testing conducted in a timely manner. Implicit in the father’s case is that the mother intentionally delayed the DNA test so that the RBDM would register the child’s name in accordance with her request without regard to the father’s views, given that at that stage, he had not been determined as the child’s father.
The mother denied this and said that in refusing to sign the registration application following the child’s birth, the father put in issue both the question of the child’s name and also the question of paternity. She said that she had no doubt that the applicant was the father and said that she told the father this.
As to the timing of the DNA testing, the mother’s evidence, which I accept, is that she received a request for DNA testing from the father’s lawyers on or about … 2015 and that she agreed to that testing on … 2015. She then deposes to having received the relevant forms on … 2015 from the father’s lawyers and the test taking place on … 2015. She states that prior to the test and ‘unbeknown to (her), in the interim and prior to the paternity test’[3], the RBDM made the decision to name the child ‘[X]’, as per her request. The birth certificate did not contain the father’s details. This was ultimately remedied on 3 February 2016 following the DNA test results.
[3] Affidavit of the mother sworn and filed 30 October 2017 at paragraph 19.
This is consistent with the following correspondence from the Ombudsman who investigated the matter:
The Birth Registration Statement, (BRS) for the [X] (sic) was lodged by the mother, Ms Furlow, on the … 2015.[4] The BRS did not contain the signature of the father, as the mother stated the father, yourself, was refusing to sign the BRS. Your details were provided by the mother and the Registry engaged you to confirm your postal address to invite you to sign the BRS and confirm the paternity of the child. Unfortunately, you did not sign this and instead submitted a letter. … Without your signature on the BRS, evidence of parentage via DNA testing, the paternity of the child was in dispute.
The Registry Integrity Manager, reviewed the outstanding registration without a father, pursuant to section 15 of the Births, Deaths and Marriages Registration Act 1996. I have reviewed the supporting correspondence on the registration and can confirm the BRS was not signed by yourself. In a letter to our office, received … 2015, you stated you were awaiting DNA testing and results. On the … 2015, no further confirmation of DNA was presented and it was for this reason that the registration was completed with a sole parent by the Delegated Authority, pursuant to section 15 of the Births, Deaths and Marriages Registration Act 1996 (emphasis added).[5]
[4] The mother denies that she lodged the form on this day. I accept her evidence on this point and conclude that the reference to … 2015 in this correspondence is a typographical error.
[5] Affidavit of the father sworn 26 and filed 27 July 2017 at annexure H-15.
The father chose not to complete the registration form accepting that he was the father of the child. He chose, on advice, to seek a paternity test. This inevitably led to delays in the determination of the question of paternity. It also left the RBDM in a position where a child who was born in … 2015 had not yet been registered in … 2015. The RBDM determined the issue as it was entitled to do on … 2015.
On the basis of the evidence before me, I do not accept that the mother intentionally delayed the DNA testing to allow the RBDM to register the child’s name as requested by her. There is no evidence before the court that the mother was aware of the timing of any decision by the RBDM regarding the registration of the child’s birth in the absence of evidence as to paternity.
Father’s concerns about the child’s name
The father maintains that he has an issue with the child’s middle name and that he has held this concern since the child’s birth.
The father’s case is that he and the maternal grandfather, after whom the child’s middle name is given, have a fractured relationship. He says that as a result, the child carrying the maternal grandfather’s name is a source of distress to him and is likely to adversely impact on his parental relationship with his son.
It was submitted on behalf of the mother that the father’s alleged concern about ‘…’ is a recent construction.
The mother concedes that when the father attended the hospital shortly after the child’s birth, the child’s name was recorded in his crib as ‘[X]’. She says that she had given the child this name on the basis that:
a)the parties had separated prior to the birth and there was no prospect of reconciliation;
b)the parties had agreed the child’s first name should be ‘[X]’;
c)the father had not taken an active interest in the pregnancy, particularly in the months leading up to the birth;
d)the parties lived three hours away from each other and the father was working in Queensland; and
e)although she had tried to engage with the father in discussions about his role in the child’s life, he had been reluctant to speak about this;
and for each of these reasons, the mother assumed the father would not have a significant role in the child’s life.
It is not disputed that when the father arrived at the hospital following the child’s birth, the maternal grandparents were present and the maternal grandfather said words to the effect of ‘what do you think of the name?’ However, the mother disputed that this was said in a derogatory tone but rather says that it was said with a sense of pride.[6]
[6] Transcript page 65 at lines 38 to 39.
The mother denied that the father and the maternal grandfather did not get along and says that they had ‘pleasant interactions’.[7] Her evidence is that the maternal grandfather was ‘friends with everyone. It’s his personality.’[8]
[7] Transcript page 65 at line 45.
[8] Transcript page 66 at line 16.
The mother’s evidence is that when she and the father met on … 015 and she gave the father the birth registration documents, he indicated that he was not happy with the proposed name. Her evidence is that he said that his problem was with the surname, not with the middle name and that this was in response to a direct question from her.[9]
[9] Affidavit of the father sworn and filed 30 October 2017 at paragraph 13.
It is clear from the father’s correspondence with the RBDM that he has maintained that the child’s name should be ‘[X] Hafner’ not ‘{X] Hafner’ at all times. However, nowhere in the correspondence which he has attached to his affidavit material does the father make reference to any dispute between himself and the maternal grandfather as the basis for his intention to change the child’s middle name.
The father provided the following reasons for wanting the child to be named ‘[X] Hafner’:
a)the child should bear the same surname as his biological brother and sister;
b)the child ‘would be following the original tradition of the western world of having the father’s surname’;
c)the child would have the same name and the ‘4 currently living generations of Proud Hafners he is apart of’ (sic);
d)the child would ‘be part of the Hafner family tree bearing the name Hafner, a name that dates back to the ancestors that immigrated legally to Australia originally from …”;
e)the father has taken an active interest and been a constant presence in the child’s life since his birth; and
f)the father’s older son may not have any children of his own, so the Hafner surname may not survive unless the child has that name and goes on to have children of his own.[10]
[10] Affidavit of the father sworn 26 and filed 27 July 2017 at annexures H-2 and H-5.
Moreover, in the email he sent on … 2015 shortly after being first provided with the registration form by the mother, the father said:
… I have had no say in his names …
I have left the birth certificate forms without any of my details on it with her & she was to be writing the letter for us to sign after I return from work.
Now I am at work in QLD for two weeks & was just notifying you I do want my name on my son’s birth certificate & also have my surname as his last name on his original birth certificate when issued.
I am just making contact in case she tries to submit the form without my name on it (emphasis added).[11]
[11] Affidavit of the father sworn 26 and filed 27 July 2017 at annexure H-2.
On … 2015, the father sent an email to RBDM in the following terms:
A birth cert was issued without me being aloud (sic) to be involved.
I would like my name put on the birth certificate as I have sent DNA proof through that I am the father.
Then I would like [X] (sic) name changed to my family name.
There was a dispute over the name original (sic) but they issued a birth certificate & its not the name I had chosen.
… I just want to make it 100% clear as this has dragged on long enough (emphasis added).[12]
[12] Affidavit of the father sworn 26 and filed 27 July 2017 at annexure H-14.
In another email also sent on … 2015, the father said:
As [X]’s father, I did not & never would agree to name my son “[X]” As he is a ‘HAFNER”, is proven to be a HAFNER & is entitled to be called Hafner. So his parents did not agree to the name you put on the birth certificate. As [X]’s father, I chose to call MY SON “[X]” that has yet to be done.[13]
[13] Affidavit of the father sworn 26 and filed 27 July 2017 at annexure H-14.
It is evident from this review, that although the father has consistently indicated that his preference is for the child to have been named, [X] Hafner rather than [X], the reasons for his preference have all been directed to the surname. At no stage in any of this correspondence did the father refer to any dispute that he had with the maternal grandfather and that this was a basis for the objection to the inclusion of the name ‘ …’ in the child’s name.
The mother says that:
a)the father did not, prior to filing his affidavit on 13 January 2019, raise any concerns about the use of ‘ …’ as the child’s middle name; and
b)although the parties had not discussed using ‘ …’ as a middle name prior to the birth of the child, they had discussed and agreed that if the child was a girl, that the child’s middle name would be after the maternal grandmother’s name, and on this basis, the mother did not consider that giving the child the maternal grandfather’s name as a middle name would be an issue.
Change of name application
Neither counsel referred to any case law which applies specifically to the consideration of a change of a middle name. To the extent that cases have considered whether an order ought to be made changing a child’s name, they have principally related to the change to a child’s surname.
In Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 (“Chapman”) and Beach & Stemmler (1979) FLC 90-629, any such order, being in the nature of a parenting order, would also need to satisfy the primary and additional considerations in section 60CC of the Act.
In Chapman, the issue before the court was whether the children of the marriage could change their surname to take the mother’s married name following the mother’s second marriage. The children lived with the mother and spent some time with the father. The issue in that case arose because the elder of the children did not wish to continue to be known by his father’s surname.
As noted in Chapman:
…the change or retention of a particular name may affect a child in a number of ways…The desires of the parents are, however, of secondary importance when put alongside the welfare and the wishes of the child in question. Because a change in a child’s surname may cause him or her confusion and because the issue usually arises between the parents the court will exercise a supervisory role in the matter when called upon to do so.[14]
[14] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77674].
Chapman also stands for the proposition that the key issue for a court where one or other parent seeks to change the child’s name, is “what should be done to promote the welfare of the child…”[15]
It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.[16]
[15] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77675].
[16] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77675].
After considering a range of cases in which the question of how a court should approach a change of name case, the court summarised the following factors as those to which a court should have regard in determining whether there should be a change to the child’s name:
a)the welfare of the child is paramount;
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; and
f)the effect of frequent or random changes of name.[17]
[17] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77676]-[77677].
As these factors are identified in the context of a proposed change to a surname, they do not necessarily apply to this case where the parties are arguing over a middle name.
The evidence of the parties is that the child is a much loved and well-adjusted boy. To their credit, neither party has made the child aware of the dispute between them about his name. I am satisfied that any change will be explained to the child in an age appropriate manner.
The father has not established to the requisite standard that the relationship he had with the maternal grandfather was such that he cannot, as an adult, put that to one side for the benefit of his child.
Moreover, I am not satisfied that the father has established, on the balance of probabilities that his relationship with the child is likely to be lessened or damaged in some way if he retains ‘ …’ as his middle name. Whilst I am satisfied that he will be disappointed, the father has demonstrated himself to be a man who is able to put the interests of his child ahead of his own.
The name change which has already been agreed between the parties, will see the child have a surname which is connected to both his parents. This will provide a link that the father seeks to the paternal family.
As this case relates to a proposed change to a middle name, there is no question of embarrassment or confusion of changes to surnames. However, the proposed change to the middle name must be considered in the context where the parties have agreed to a hyphenated surname including both the maternal and paternal surnames.
Part VII of the Act
In considering the welfare of the child, I have also had regard to the objects and underlying principles identified under Part VII and specifically, section 60B of the Act.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The father’s case is that because of the nature of his relationship with the maternal grandfather and the fact that he feels that the maternal grandfather has acted dismissively and disrespectfully towards him in the past, his own relationship with his child would be adversely affected knowing the child carries the maternal grandfather’s name as a middle name.
In essence, it is said that this will impact on the father’s ability to have a meaningful relationship with the child.
For her part, the mother says if the father has any difficulty with the use of the name ‘ …’ arising from his relationship with the paternal grandfather which she does not concede, the appropriate thing would be for the father to seek appropriate support to deal with that issue.
I am not convinced on the basis of the evidence before me that the father’s relationship with the maternal grandfather is as he now seeks to portray it. I find that he has sought to overstate the level of disputation between them to support his present application.
It is apparent from the correspondence between the father and the RBDM that the father is very upset about the manner in which the child’s name was determined. He feels as though he has been excluded from that process and, in effect, has been ‘playing catch up’ ever since. However, the father does not take any responsibility for his part to play in that process. For example, he was told on numerous occasions by the RBDM that unless he was identified as the father on the birth certificate, he could have no input into the naming process. Rather than acknowledge that he was the father, he, quite understandably in the circumstances, advised the RBDM that he had sought DNA testing.
Whilst he says that the mother intentionally delayed the DNA testing, there is no evidence to support this. Rather, the RBDM was in a position where it had received an application for the registration of a child’s birth with only one parent identified and some almost four months later, exercised its power to register the child’s birth and determine a name for that child.
In any event, the father has, on his own evidence, been able to establish and maintain a meaningful relationship with the child. The father spends regular time with the child and it is apparent from the material filed in these proceedings that the child has spent time with the father’s extended family and will continue to develop a meaningful relationship with the paternal family.
In light of the parties’ agreement as to the child’s surname, he will now also share his surname with the extended paternal family, further enhancing that bond.
There is no evidence before the court which establishes that the father’s relationship with the maternal grandfather is such that it impacts the father’s ability to maintain his relationship with the child. The highest the evidence goes is the following statement made by the father:
…I do not enjoy good relations with the maternal grandfather. I was so badly treated by him in the course of my relationship with the mother that the very mention his name (sic) causes me to become distressed.
…To this day, I cannot hear or see [X]’s middle name without feeling distress and pain or being reminded of the treatment I received at the hands of the maternal grandfather or of the disdain with which the mother treated my wish for my name to form part of [X]’s…[18]
[18] Affidavit of the father sworn 13 and filed 14 January 2019 at paragraphs 97 and 98.
Moreover, as stated above, it is clear from the father’s own evidence that he enjoys a positive, loving and meaningful relationship with the child.[19]
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[19] Affidavit of the father sworn 13 and filed 14 January 2019 at paragraphs 100; 108 to 110.
The father says that his love and commitment to the child:
…is blemished by the knowledge that his middle name, which is part of his identity, was selected contrary to my wishes and with the knowledge that it would cause me ongoing hurt.[20]
[20] Affidavit of the father sworn 13 and filed 14 January 2019 at paragraph 100.
This does not rise to the level of any risk of psychological harm required to justify the making of the father’s proposed orders. Having heard the evidence in this matter, I am satisfied that both parents dearly love and cherish this child. He has the benefit of two extended families who adore him and it is clear that his father, whilst disappointed that he was unable to give the child his preferred middle name, will work through any residual issues to ensure that the child has a supportive and positive childhood.
In coming to this view, I have also had regard to the fact that the father has conceded that the child’s surname should include the mother’s family name, Furlow, a name which she shares with the maternal grandfather.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child has only just turned four years of age. The mother’s evidence is that he recognises … as part of his name.
The father concedes that on at least one occasion, the child has used his full name, including …, in his presence.
This is a factor, however given the child’s age, any views he is said to have expressed in relation to his name, are to be given limited weight.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
I have discussed this above.
Notwithstanding that the parties were in a relationship for a very short period of time, the child has a warm and loving relationship with each of his parents as well as his extended maternal and paternal families.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Both parents have taken every opportunity to participate in decision-making for the child. To their credit, the parents have been able to negotiate parenting arrangements successfully, including arrangements for kindergarten. I note the father’s comments as follows:
Since [X] was born the mother and I have both made a real effort to try and communicate better and to share in his care as much as our circumstances allow. [X] has benefited enormously from this and I wish to see it continue.[21]
[21] Affidavit of the father sworn 13 and filed 14 January 2019 at paragraph 112.
The mother also gave evidence that the parties have participated in mediation and have been able to reach agreement on issues relating to the child, other than the issue of his name.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties have fulfilled their responsibilities and obligations to maintain the child.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This factor is not relevant.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This factor is not relevant.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The parents have clearly been able to meet the child’s needs. The father says that the retention of the child’s middle name would continue to cause him distress.
I do not doubt that the father’s preference, if he could determine the issue, would have been for the child to have been named [X] Hafner. He has compromised to the extent that he has agreed not to press his application to include ‘Mr Hafner’ as a middle name and ‘Furlow-Hafner’ as the surname.
In doing this and in observing the manner in which he has taken on board the responsibilities of parenthood, notwithstanding this may not have been part of his plan, I am satisfied that the father has the ability to put his child’s interests ahead of his own and work through any disappointment he may feel from the ultimate decision in this matter to ensure that the child’s emotional needs are met.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There are no particular issues arising under this subsection which are relevant to this matter.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I refer to my comments set out above.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This is not a relevant factor.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This is not a relevant factor.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Whichever application is granted will determine the issue of the child’s name.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant factors.
Conclusion
On balance, having regard to each of the above considerations, I am satisfied that the father has not established that it is in the child’s best interests for his middle name to be removed.
I accept that it is not a name the father would have chosen; however, it is a name the child has carried for the last four years. Perhaps more importantly, the child’s connection with the paternal family is provided for in that the parties have agreed to the child’s surname being changed to ‘Furlow-Hafner’. Whilst the child’s middle name originated from the maternal side of the family, that of itself is not sufficient to justify the father’s application.
For each of the reasons outlined above, I make the orders set out at the beginning of these reasons for judgment.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 26 July 2019
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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