Jepson & Fleming

[2018] FCCA 400

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEPSON & FLEMING [2018] FCCA 400

Catchwords:
FAMILY LAW – Parenting – change of name.

Legislation:

Births Deaths and Marriages Act NSW 1995, s.28(5)

Cases cited:

Chapman & Palmer (1978) FLC 90-150

Sander & Hearn [2012] FMCAfam 812
Meyes & Denning [2017] FCCA 1754

Applicant: MS JEPSON

Respondent: MR FLEMING

File Number: PAC 3877 of 2017

Judgment of: Judge Obradovic

Hearing date: 1 February 2018

Date of Last Submission: 1 February 2018

Delivered at: Parramatta

Delivered on: 28 February 2018

REPRESENTATION

Appearing for the Applicant: Ms Melham

Solicitors for the Applicant: Watts McCray

Appearing for the Respondent: No appearance

ORDERS

1. The child [X] (male) born (omitted) 2014 shall be henceforth known as [Y].

2. The mother Ms Jepson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as [X] (male) born (omitted) 2014 be now registered as [Y].

3. Pursuant s.28(5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 1 herein.

4. The Court directs that the Applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.

5. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Obradovic delivered this day will for all publication and reporting purposes be referred to as Jepson & Fleming.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3877 of 2017

MS JEPSON

Applicant

And

MR FLEMING

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 1 February 2018, the Court made final parenting orders in respect of the only child of the parties. As part of her application, the mother sought orders permitting her to change the child’s surname. These are the reasons in respect of that discrete application.

2. The principles regarding a change of name for children are articulated in the Full Court decision of Chapman & Palmer (1978) FLC 90-150.

3. In a helpful summary, which the Court respectfully adopts here[1], Judge Turner in Sander & Hearn [2012] FMCAfam 812 held that consideration must be given to:

   a)The welfare of the child being the paramount consideration;

   b)Any short or long term effect of any change in the child’s name;

   c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;

   d)Any embarrassment that the child may experience if their name is different to that of the primary carer;

   e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and

   f)The effect of frequent or random changes of name.

   [1] And which has previously been adopted; see Meyes & Denning [2017] FCCA 1754

4. [X] lives with his mother who has sole parental responsibility for him.

5. [X]’s father Mr Fleming is also known by the surname (omitted). (omitted) is the father’s mother’s surname, which is the surname [X] was registered under after his birth. [X] has met his paternal grandmother on one occasion. [X] has not spent any time with his father since early April 2015, when he was one year of age.

6. [X] has two half-siblings in the mother’s household. They are [C] and [D].

7. The mother has a close extended family. The maternal grandparents are involved in [X]’s life on a regular basis, and he has a close and loving relationship with them. The mother and the maternal grandparents have the surname Jepson.

8. The mother is currently engaged to Mr M, to whom she has the child [D]. The mother proposes for [X] to have a different surname to [D].

9. The mother’s oldest child also has a different surname to the one the mother proposes for [X]. The mother says, and the Court accepts her evidence, that [C]’s father and she have come to an agreement to change [C]’s surname to (omitted)-Jepson. Although [C] has started using that surname, the mother and [C]’s father are yet to attend to formally changing that child’s surname.

10. The mother will change her own surname to (omitted) once she is married to Mr M.

11. Her proposal is to change [X]’s surname to her family name, which will mean that if the Court accedes to the mother’s proposal [X] will have a different name to his mother, his step-father and to both of his siblings – a scenario which currently exists. The only difference is that [X] would have his mother’s family name instead of his paternal grandmother’s family name.

12. [X] is only three years old. He is not yet of an age where he understands his name or has any connection to his surname.

13. The mother urges to Court to permit her to change the child’s name as she says that it is distressing to her when people ask her questions as to why [X]’s name is (omitted). The mother is also concerned that when [X] develops recognition that he has a different surname to the other members of his family group, that this may prompt him to ask questions. The mother says “Whilst I would answer any questions [X] may have about Mr Fleming in an age appropriate manner I am concerned that this may still cause some distress to [X].”

14. There is no expert evidence about any effect on the child, now or in the future, in respect of the proposed orders. The mother’s distress is not of itself a particularly concerning matter to the Court except to the extent that the mother has the benefit of orders for [X] to live with her and for sole parental responsibility. Her capacity to parent [X] is important.

15. The fact is that the child is still very young. He has very little connection with the father or the paternal family. While the name which the mother proposes would ultimately mean that there would be no identifiable connection with his father, the alternative name in the mother’s case would mean that the child would carry both names as markers of his identity. 

Conclusion

1. In all of the circumstances, an order permitting the mother to change the child’s surname to a hyphenated name is on balance, an order that is in [X]’s best interest.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date:  28 February 2018