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]

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.

Continue reading Lt v AH

Details

AGLC: Lt v AH [2017] QMC 21
Case: [2017] QMC 21
Decision Date: 13 November 2017

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Lt v AH involved a dispute regarding a proposed change of a child's name. The primary concern was the potential impact of the name change on the child's wellbeing and the court was required to balance the rights of the parents with the best interests of the child. The father, Lt, sought to change the child's surname from that of the mother, AH, to his own surname. AH opposed the application, expressing concerns about the potential negative effects on the child's relationship with her and the child's own identity.

The central legal issues before the court were whether a name change would be in the best interests of the child and whether the father's application should be granted. The court had to consider various factors, including the child's age, the strength of the child's relationship with both parents, and the potential for the name change to cause confusion or distress. The court also needed to determine whether the father's application was made in good faith and whether the mother's opposition was reasonable.

After considering the evidence and arguments presented by both parties, the court determined that a change of the child's name was not in the best interests of the child. The court found that the child's relationship with the mother was significant and that a name change could potentially harm this relationship. The court also considered the child's young age and the potential for the name change to affect her identity and sense of belonging. The father's application was ultimately dismissed, and the mother's opposition upheld. The court emphasised the importance of prioritising the child's wellbeing and maintaining the status quo in matters concerning the child's name.

Orders