Lt v AH - [2017] QMC 21

MAGISTRATES COURTS OF QUEENSLAND

CITATION: LT v AH [2017] QMC 21

PARTIES: LT

v
AH

FILE NO: M 3/17

DIVISION: Magistrates Courts

PROCEEDING: Change of Name Application

ORIGINATING COURT: Innisfail

DELIVERED ON: 13 November 2017

HEARING DATES: 7 March 2017, 9 May 2017, 11 July 2017, 1 August 2017

MAGISTRATE: C McLennan

ORDER: The application is refused

CATCHWORDS: Change of Name, Likely impact on the child

LEGISLATION:

Births, Deaths and Marriages Registration Act 2003 (Qld) Births, Deaths and Marriages Registration Regulation 2015 Family Law Act 1975

CASES: Arthur and Comben (1977) FLC 90-245

Beach and Stemmler (1979) FLC 90-692
Chapman v Palmer [1978] FLC 90-510
CS V SMR [2016] QMC 12
DKL v Van K [2017] QMC 19
Flanagan and Handcock [2000] FamCA 150
Mahoney v McKenzie [1993] Fam CA 905
Mahoub & Ferrante [2013] Fam CA 905
Soulos & Sorbo [2015] FamCA 196

In this application the applicant mother seeks an order from the court that the surname of the child ‘CLH’, who is three years of age, be changed from ‘H’ (the surname of the respondent father) to ‘T’ (the surname of the applicant mother).
The respondent father did not appear on the application. On 6 May 2017 the court received an email from the father. This was not in affidavit form and no weight has been placed on the material in the email except it is clear the father opposes the application.
The matter was initially listed for hearing on 7 March 2017. Following some difficulties with service of the material the matter was heard on 1 August 2017.

Background

The parties were in a defacto relationship for two and a half years when, on 5 December 2013, their child CLH was born in Redcliffe, Queensland. CLH’s name was registered soon after with the agreement of both parties with the Registry of Births, Deaths and Marriages (‘the Registry’).
In December 2014 the parties separated. The court was provided with a copy of a change of name application dated 3 December 2013 (which the mother deposes was signed at the time of separation in 2014), which appears to bear the signatures of both parties. However, the mother deposes that the application was not lodged with the Registry because the Respondent father’s[1]: “moods and interest in CLH fluctuated for approximately 18 months after an initial separation of 6 months when he claimed to have regretted his decision.”
[1] Affidavit of Applicant, filed 6 February 2017, paragraph 6.
After separation the mother and CLH relocated away from the father to the Cassowary Coast region, closer to her family. The relationship between the parties became acrimonious. The correspondence from the mother tendered through her affidavits clearly illustrates the deterioration of the quality of communication. Property settlement matters did not resolve via mediation but were stretched out over a long period and required a hearing in the Cairns Family Law Court in December 2016.
In her material, the mother states that[2]: “[CLH] has developed a close bond with her [maternal] family consisting of her Grandmother, Aunt, Uncle and three cousins, all with the same surname, [T], and all living in close vicinity to our residence.” Conversely, since she and CLH relocated the father has[3]: “…lacked consistency in contact with CLH since our separation, despite being provided with regular opportunities to form a bond with his child (see Exhibit E).” Exhibit E is an email from the mother dated 10 July 2016 which commences: “Just curious about a few things as I’m detecting a lot of arrogance seeping back in to your interactions with me…” The hostile tone of the email continues to the very last sentence: “We are not all on team Aaron!” At first sight, Exhibit E is a strange choice of correspondence for the mother to put before the court to prove the father has had regular opportunities to bond with CLH, but considering all the material it is symptomatic of the tone of her contact with him.
[2] IBID, paragraph 8.
[3] IBID, paragraph 10.
The material from the mother indicates that contact largely ceased between CLH and the father following an unpleasant email she sent on 9 September 2016, stating in part: “While I have consistently been an advocate of maintaining harmonious co-parenting and access to regularly communicate with CLH, it is evident that the situation has deteriorated to the point where you are unable to sustain a reasonable conversation… It is not reasonable for poor communication and organisational skills to negatively effect our daughter…I will not continue to permit your interactions when she is upset at the conclusion of the call… This is clearly detrimental to her emotional well being… This will undoubtedly deteriorate further to CLH showing apprehension to continue regular contact...”
On 15 September 2016, six days after sending the above email, and while the property law proceedings were still pending, the mother submitted the now very dated name change application (purportedly signed by the father nearly two years earlier) to the Registry[4]. She did not contact the father prior to lodging the application. In furtherance of her application (and in order to indicate to the Registry this was by consent), she attached copies of his old identification that had remained in her possession from the time of separation. The application listed an old and now defunct address for the father – but the mother included her own current address and contact details on the form.
[4] IBID, Exhibit B.
An undated letter to the Registry from the mother in support of her application provided what may be described as misinformation and states in part[5]: “Aaron has seen CLH only once since 2013.” This directly contradicts sworn evidence from the mother before this court that separation was in December 2014 – clearly the father was in contact with CLH after 2013. The mother further advised the Registry: “Her father and I are in agreement that it is in CLH’s best interest to have the surname T as it will give CLH the connectedness she needs with me (her mother), as well as the family she is surrounded with…” There had been no discussion between herself and the father about the name change for nearly two years, since December 2014, since which time the relationship had turned acrimonious and she states in her current affidavit[6]: “... he claimed to have regretted his decision.” She further stated in her letter to the Registry: “Due to the nature of our geographic separation…and communication issues, my request to get [H] to supply the necessary certified proof of ID documentation would prove arduous and time consuming.” As earlier stated, parties had been in email contact some six days earlier – it is difficult to accept that a request via email to the father would have proved ‘arduous and time consuming.’ She continues: “For this reason, I have supplied a certified copy of our Medicare card (which has both Applicants and Childs name) on his behalf as well as an uncertified copy of his Drivers License.” The mother clearly did not have permission to supply these documents: ‘on his behalf’.
[5] IBID.
[6] IBID 1.

HEARING

As has been discussed above, there were some difficulties with service and the court granted the mothers application for substituted service of the father and listed the matter for hearing on 11 July 2017. On this date, leave was granted to read and file an affidavit of substituted service from the mother. The email from the mother to the father purporting to effect service read as follows[7]:
“This is to notify you that the judge has awarded substituted service and for this reason you will be receiving relevant Court documentation via Post, Email and notification via SMS. Now that substituted service has been fulfilled the judgement will be finalised despite your clear avoidance and falsifying your address to the courts, perjury the judge is now aware of. I expect this will be the last communication I will make with you as your decisions have clearly dictated your role in co-parenting and involvement with your child. I can forgive your lack of judgement but I will never foget (sic) the choices you have made that have led to this, and likely neither will CLH.”
[7] Exhibit A to the Affidavit of Applicant mother, filed 11 July 2017.
There was no noteworthy evidence before the court to substantiate any of the allegations made by the mother in the above email.
The Court was not satisfied that service was effective as the applicant mother had not served the father all the material. The matter was adjourned and service was subsequently effected. The matter was heard in court on 1 August 2017.

CONSIDERATION

Section 17 of the Births, Deaths and Marriages Registration Act 2003 provides as follows:
17 Application to register change of child’s name
(1) This section applies if –
(a) a child’s birth or adoption was registered in Queensland; or
(b) a child was born outside Australia, but the child ordinarily resides in Queensland.
(2) The child’s parents may apply, in the approved form, to register a change of child’s name in the change of name register.
(3) However, 1 of the parents may apply to register a change of the child’s name if-
(a) the parent is the only parent of the child entered in the relevant child register or shown on the child’s birth certificate; or

(b) the other parent is dead; or

(c) a Magistrates Court approves the change of name.

Note –

Under section 56, a regulation may prescribe information that a court may consider when deciding or changing a child’s name”.

…
(6) A Magistrates Court may, on application by a child’s parent or guardian, approve a proposed change of name for the child if satisfied-

(a) the name is not a prohibited name; and

(b) the change is in the child’s best interests.

…

Section 56 of the legislation provides that the Governor in Council may make regulations under this Act.
56 Regulation-making power
(1) The Governor in Council may make regulations under this Act.
(2) For example, a regulation may-
…
(e) prescribe information that a court may consider when deciding or changing a child’s name; and …”
Section 9 of the Births, Deaths and Marriages Registration Regulation 2015 sets out various matters which the court is required to have regard to when considering a proposed change of name:
9. Information court may consider when approving change of child’s name-Act, s 17
In deciding under section 17(6)(b) of the Act whether a proposed change of name for a child is in the child’s best interest, the matters to which the Magistrates Court may have regard include the following—
…
(b) the views of the child’s parents on the change of name, to the extent the parents’ views are available;
…
(d) the child’s views on the change of name, to the extent the child’s views are available;
(e) the likely impact of the change of name on the child; …
The views of both parties have been ascertained, with the mother appearing on the application and the father opposing the application.
In relation to the child’s views, while the mother testifies that the child wishes to have the name change, CLH is only three years of age and as such is too young to provide independent views untainted by those of her primary caregiver.
The matter comes down to the likely impact of the change of name on the child. In considering the matter, the court had reference to relevant case law. There have been two recent decisions of this court in the matters of CS v SMR [2016] QMC 12 and DKL v Van K [2017] QMC 19 which provide some elucidation. Both of these cases note that applications of this type in this Court are unusual and the most common path is to have the matter determined under similar provisions of the Family Law Act, which requires a determination in part as to whether the change is in the child’s best interests.
The court has considered the decision of the Family Court in Chapman v Palmer [1978] FLC 90-510, which sets out a range of factors to be considered when deciding whether to allow a name change. This case was cited in the more recent decision of Mahoub & Ferrante [2013] Fam CA 905, which concerned an application for change of name of a two and a half year old child and states at paragraph [12]:
“Various matters to be considered and evaluated have emerged out of past decisions of the Court. The child should not be subjected unnecessarily to any confusion of identity. The short and long term effects of any change of name must be considered. The advantages, both in the short and long term which may accrue to the child if the name remains as it is now, must be considered. The present and ongoing involvement of both parents in the life of the child must be considered. Due consideration must also be given to the fact of the child’s current name registration and any earlier agreement that evidenced…”
In this case, there were some issues of credit affecting the reliability of evidence from the applicant mother, as well as the lack of evidence from the respondent father. However, there was no dispute that CLH’s name was registered with the agreement of both parties. The separation of parties was the clear trigger for the application for name change, with the mother first producing the documents immediately upon separation.
The mother deposes that the different surname impacts on CLH at day care and swimming lessons, and this makes her different from the other children. The court notes that it is common in these days of declining marriage rates for children to bear different surnames from their mothers and CLH is certainly not in a rare minority. In any case, she is only three years of age, an age at which it is unlikely to have any particular impact on her as regards her peers. The mother further deposes that a change of surname will assist CLH by providing a sense of belonging and bonding with her maternal extended family. However, that argument applies both ways – if, as the mother argues, having the same surname will assist CLH to have a better sense of identity and belonging to her extended family, then changing that surname could therefore be said to remove that sense of identity and belonging with her father and paternal extended family (discussed further below). In any case, the court does not accept that the change will have any real impact on CLH’s relationship with her maternal family. The material filed by the mother shows CLH to be a well-loved, confident child who is fully accepted by her maternal family and it is difficult to accept that a change of surname would give her any greater sense of belonging than she now has.
However, the court notes that this is clearly the wish of the applicant mother. This should not be discounted as a factor – the applicant mother is CLH’s sole caregiver. Her state of mind will directly impact the child.
Ultimately, the court is not satisfied that the change of surname would lead to any tangible, direct positive impact on CLH.
The court then considered the potential negative impacts on CLH as a result of the name change. Clearly the mother harbours a high level of animosity against the father stemming from separation in December 2014. This is obvious from the emails – even when effecting substituted service the mother could not restrain her chagrin. The father has seen very little of CLH since the mother moved town and sent the unpleasant emails of September 2016 and the proceedings in the Family Court were finalised. The effect of the material before the court filed by the mother combined with the nature of the application raises concerns that if the name change is effected, this will diminish the likelihood of a meaningful relationship between CLH and her father.
In Mahoub & Ferrante the Family Court addressed the issue of potential erosion of the paternal / child relationship and said[8]:
14.The child is only two and a half years old… I expect that any change made to the child’s name at this immediate point in his life would not cause him very much confusion in the short or long term. I am, however, concerned, having regard to all of the evidence that I considered in this case, that if the child is given a family name (or surname) that is a hyphenation of the Mother’s and the Father’s family names that the Mother’s current level of commitment to the value of the ongoing relationship between the child and the Father might just prompt her to use just her own family name in the future, dropping the Father’s family name. I consider that at the moment there is a risk of that happening in the future. If that happened, I consider that it could cause unnecessary confusion for the child.
15.The child is too young to express any preference about the matter. Of course, as he grows up he may do that and further consideration can always be given to the matter by the parents co-operatively or by this Court on application by one of the parents. When the child reaches adulthood what name he wishes to be known by will be a matter for him.
16.I acknowledge that understanding their identity is important for children as they grow. In circumstances where a child’s parents have separated at a point in the child’s life that the child will not even remember as it grows into maturity it is quite easy to understand a parent wishing to have her name included as part of the child’s name as a point of reference for the child in determining and understanding its identity as it grows. However, where the parents themselves agreed on the child’s name when it was born and caused the registration of that child’s family name to be the family name of one only of the parents and the child is going to continue to have a meaningful relationship with that parent into the future, without more, the simple desire of the other parent, after separation, to have the child’s family name changed to include his or her own family name is insufficient to persuade me that it is in the child’s best interests for such a change.
[8] Mahoub & Ferrante [2013] Fam CA 905 at paragraph 14-16
While there is currently very little contact between CLH and her father, studies show that a relationship with the father is important for the welfare and development of children[9]. It follows then that the loss of such relationship could negatively impact CLH. To make a definitive decision at this stage is not possible, given the lack of credible, reliable evidence before the court and the age of CLH. But it would seem that while there is no tangible positive impact foreseeable in the event of the name change, one significant negative impact is that there is clearly the potential for further alienation of the father, should his name be erased from hers.
[9] Fletcher R Warriewood, The dad factor : how the father-baby bond helps a child for life, Finch Publishing, 2011. National Longitudinal Study of Australian Children, Risk factors for childhood mental health symptoms. Huerta M, Adema W, Baxter J, Han W, Lausten M, Lee R and Waldfogel J, Fathers' leave, fathers' involvement and child development: are they related?: evidence from four countries, Paris, France : Directorate for Employment, Labour and Social Affairs, OECD, 2013 (see also: European Journal of Social Security v. 16 no. 4 2014: 308-346).Wood L and Lambin E, How fathers and father figures can shape child health and wellbeing, Perth, W.A. University of Western Australia, 2013. Wilcox W and Kline K, Gender and parenthood : biological and social scientific perspectives, New York : Columbia University Press, 2013. Fletcher R, StGeorge J and Freeman E, Rough and tumble play qualit : theoretical foundations for a new measure of father-child interaction. Early Child Development and Care v. 183 no. 6 2013.
I find I cannot be satisfied on the evidence of the factors required by the legislation that the name change should be allowed. The impact on the child has the potential for long-reaching negative impact. The court is not satisfied there will be any tangible positive impact on the child.

Thus the application is dismissed.

DECISION

The Application is refused.