KORUBA & FURST - [2017] FamCA 265

FAMILY COURT OF AUSTRALIA

KORUBA & FURST

[2017] FamCA 265

FAMILY LAW – CHILDREN – Best interests – Change of name – Where there is one child who is 18 months of age – Where during the final hearing consent orders were made to permit the mother to relocate overseas with the child – Where the remaining issue in dispute is the father’s application to change the child’s middle name to include an additional middle name – Where the relevant statutory considerations are s 60CC(2)(a), s 60CC(3)(g) and s 60CC(3)(m) of the Family Law Act 1975 (Cth) – Where it is in the best interests of the child for his name to be changed to include an additional middle name.

FAMILY LAW – COSTS – Application by the Independent Children’s Lawyer (“ICL”) that each parent pay half of the costs of the ICL – Where the Court is of the view each parent has the financial capacity to comply with an order for costs – Where neither party has been wholly successful in the proceedings – Where it is just that a costs order be made – Order made that the parents each pay one half of the costs of the ICL.

Family Law Act 1975 (Cth) – Part VII; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 64B(2)

Reynolds & Sherman [2016] FamCAFC 240

APPLICANT:

Mr Koruba

RESPONDENT:

Ms Furst

INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

FILE NUMBER:

SYC

3148

2016

DATE DELIVERED:

1 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

9, 10 & 11 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Frankham Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cumming

SOLICITOR FOR THE RESPONDENT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

Orders

That the parties sign all documents and take all steps required to change the name of the child “B E Furst” born on … 2015 to “B E Koruba Furst”.
That the father and the mother each pay to Legal Aid NSW one half of the costs of the Independent Children’s Lawyer in these proceedings as agreed or assessed on a party/party basis.
That all exhibits be released.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Koruba & Furst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3148 of 2016

Mr Koruba

Applicant

And

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: KORUBA & FURST [2017] FamCA 265
Case: [2017] FamCA 265
Decision Date: 1 May 2017

CaseChat Overview and Summary

In the Family Court of Australia, Johnston J considered an application by the father to change the child's middle name. The dispute arose in the context of final hearing consent orders that permitted the mother to relocate overseas with the child. The sole remaining issue was the father's application to add an additional middle name to the child's existing middle name.

The court was required to determine whether it was in the best interests of the child to change his name to include an additional middle name, having regard to the relevant statutory considerations under sections 60CC(2)(a), 60CC(3)(g), and 60CC(3)(m) of the *Family Law Act 1975* (Cth). Additionally, the court considered an application by the Independent Children's Lawyer (ICL) for costs.

Johnston J reasoned that it was in the child's best interests to permit the name change, applying the statutory considerations. The court also found that both parents had the financial capacity to contribute to the ICL's costs and that, as neither party had been wholly successful, it was just to make a costs order. Consequently, the court ordered that the parties sign all necessary documents to change the child's name to "B E Koruba Furst" and that each parent pay one half of the costs of the ICL.

Orders

Orders of the court

That the parties sign all documents and take all steps required to change the name of the child “B E Furst” born on … 2015 to “B E Koruba Furst”.

That the father and the mother each pay to Legal Aid NSW one half of the costs of the Independent Children’s Lawyer in these proceedings as agreed or assessed on a party/party basis.

That all exhibits be released.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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