M and N
[2004] FMCAfam 288
•3 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & N | [2004] FMCAfam 288 |
| FAMILY LAW– Children – change of name – relevant principles. |
Family Law Act 1975, s.62
Chapman and Palmer (1978) FLC 90-510
Beach and Stemmler (1979) FLC 90-692
D v B (1978) 3 WLR 573 at 582
| Applicant Mother: | KAM |
| Respondent Father: | JWN |
| File No: | DGM 1721 of 2003 |
| Delivered on: | 3 June 2004 |
| Delivered at: | Dandenong |
| Hearing Date: | 3 June 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant Mother: | In person |
| Respondent Father: | In person |
ORDERS
It is declared that it is in the best interests of the children JAH born
7 March 1995 and RCH born 15 August 1998 to hereinafter be known respectively as JAN-M and RCN-M.Upon application the Registrar of Births Deaths and Marriages in and for the State of Victoria be requested to change the Register of Births Deaths and Marriages to reflect the children’s names respectively as JAN-M and RCN-M.
Pursuant to section 62F(2) of the Family Law Act 1975 the parties confer with a Counsellor nominated by the Director of Court Counselling of this Registry of the Court to assist the parties with the implementation of the orders made herein for the change of name of the children.
The parties are restrained from notifying and/or communicating the outcome of the Application to any other person and/or the said children until each party has attended and received counselling as ordered herein.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGM 1721 of 2003
| KAM |
Applicant Mother
and
| JWN |
Respondent Father
REASONS FOR JUDGMENT
(Revised from transcript)
(As corrected)
This is an Application filed on 8 August 2003 by KAM (the Applicant Mother) seeking an order of this Court that the names of the children JAH, born 7 March 1995, and RCH, born 15 August 1998, be changed respectively to JAM and RCM without the consent of the father.
The father of the children, JWN (the Respondent Father), by a response filed 1 September 2003 contests the orders sought by the Applicant Mother in her Application and seeks in the alternative orders that the names of the children JAH and RCH be changed to JAN-M and
RCN-M without the consent of the Applicant Mother.
Both parties are unrepresented. Both have relied upon affidavits in support of their respective claims for the orders in this matter. The Applicant Mother has sworn an affidavit on 8 August 2003. The Respondent Father has sworn an affidavit on 1 September 2003.
By way of background, the parties have known each other since teenage years. The Applicant Mother having been born on 7 May 1976 and the Respondent Father on 25 July 1976 are of a similar age. There is no dispute that the parties had commenced living together in or about November 1995. The parties formally separated at the end of 1999. It is clear from the birth date of the children that there are two children born of the relationship, one born prior to commencement of cohabitation and the other born during the period of cohabitation. The cohabitation period was for a period of approximately four years.
The background in relation to the surnames of the children is somewhat unusual in the sense that both apparently from the date of birth have had the name ‘H’ as a surname. It is necessary to explain the basis upon which that occurred. The name H was a name formerly adopted by way of deed poll by the Applicant Mother when she turned 18 years of age. It was the name of her then stepfather. In fact the Applicant Mother was born with the surnames ‘J’, but I accept for the present purposes that from a very young age that in terms of day to day use, though not official use, she used the surname ‘H’. Obviously from the time that name was officially adopted by her by way of deed poll upon turning 18 years of age she continued for all purposes to use the surname ‘H’.
Hence, despite the fact that at least one of the children was born during a period of cohabitation that both had on their birth certificate the name ‘H’, reflecting what I would describe as the effective maiden name of the Applicant Mother despite the fact that she herself was born with the surname ‘J’.
In the affidavit material both parties have raised arguments and referred to factual matters supporting the respective contentions. Before dealing with those matters, however, it is appropriate that I should in brief terms set out the appropriate principles that are applicable in the absence of consent in relation to the issue of a change of a child's surname. Those matters are set out in the authority of Chapman and Palmer (1978) FLC 90-510. In that case the Full Court of the Family Court of Australia made the following statement:
“The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care or control [called care or day to day care after 11 June 1996 amendments to Family Law Act] of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. 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.”
It is significant to note in that case the court went on to state the following:
“We believe that each case should be approached in an even-handed manner with the object of making a decision that will promote the welfare of the child.
To summarise, the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a) The welfare of the child is the paramount consideration.
(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 [now referred to as care or day-to-day care].
(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.
(f) The effect of frequent or random changes of name.”
It is important that in addition to that criteria in the matter of Beach and Stemmler (1979) FLC 90-692 Connor J suggested that the Full Court in Chapman and Palmer did not mean to restrict the considerations merely to those matters which I have previously recited. In addition, other matters were then suggested as being matters to be taken into account, namely:
“
· The advantages both in the short term and the long term which would accrue to the children if their name remains as it is now.
· The contact that the husband has had and is likely to have in the future with the children.
· The degree of identification which the children now have with their father.
· The degree of identification that the children now have with their mother and their stepfather.
…
· The desire of the father that the original name be restored. ”
Finally, it is perhaps appropriate to refer to the issue of the feelings of two parents on name-change issues as described in the decision of D v B (1978) 3 WLR 573 at 582 where in that case the Court states the following which I accept and adopt:
“I am sure everyone understands that the question of the surname of a child is a matter of great emotional significance, particularly to fathers. If the name is lost, in a sense, the child is lost. That strong patrilineal feeling we all to some extent share. But this has to be kept within the bounds of common sense, in my judgment. Fathers feel very sensitive about it…Mothers feel that it is a plague on a day to day basis: they have to explain to schools, people have to make special notes in records, and so on, about the name.”
I refer to that passage because it seems to me that on the facts and materials presented to the Court in this case, there are a number of issues that arise from that quotation which have perhaps equal Application to the present case.
It is clear from the Applicant Mother's Application and her affidavit in support together with evidence that she has found having formed a new relationship with a Mr M and there having been a child of that relationship that on a day to day basis it would be more convenient if the children, who are now in her care, were to share the name ‘M’. It is also clear that the children, however, despite their very young age have commenced to be known by the name ‘M’, at least in relation to school. The younger child, I am told, is currently in ‘prep’ grade, whereas the older child is now in grade 2. I understand since commencing ‘prep’, which is roughly about the time that the Applicant Mother commenced her relationship with Mr M, the child has used the name ‘M’.
It is common ground in this case that it would not be desirable for the children to continue to be known by the name ‘H’. In her Application, the Applicant Mother otherwise refers to usage, and convenience and has raised what is often raised in the matters of this kind namely an aversion to using a hyphenated name. It seems to me that the examples of correspondence from the school, examples of potential confusion, including perhaps the occasions when the Applicant Mother herself might be referred to, at least in part, by a name which represents the previous relationship rather than her current relationship, are certainly all relevant factors.
The Respondent Father, for his part, both in his evidence and affidavit material, has indicated that the children do not appear to have any confusion about his role. I should add that both children call him "dad", and I further add it is matter of common ground and a matter for which the parties should be commended that since their separation, they have managed to achieve what I can only describe as an entirely sensible and proper arrangement in the interests of the children in relation to the issue of contact. There is no doubt that there is regular and appropriate contact between the children and their natural father. There is equally no doubt that there is a good relationship the children enjoy with each respective parent. I further accept that apart from this issue, which has clearly caused some angst between the parties, the parties have otherwise adopted what I would describe as a mature and responsible attitude towards the issue of contact and the relationships that children have, not just with each other, but with the parties' respective partners, both past and present.
In relation to respective relationships, it is noted that the Applicant Mother in her current relationship has a child of that relationship. The Respondent Father had a relationship with a former partner, JN and has a child of that relationship. That relationship has ceased and those parties separated after these proceedings had been commenced. Nevertheless, the existence of those relationships adds to what might be described as a somewhat confused situation for all children who are either born into or exposed to those relationships.
In my view, the issue of paramount concern is the welfare of the children. I bear in mind the age of the children and that effectively the name recorded on official documentation of ‘H’ is a name which both parties agree is no longer appropriate. I bear in mind that it is desirable that there be some degree of certainty and predicability in relation to the names of the children.
In matters of this kind, it is appropriate to also note that the reality in modern society is that parents of children separate, they form new relationships, sometimes more than one relationship, and as a consequence there may be children born of a number of relationships under one roof. It is certainly not uncommon to find that parties marry, remarry, cohabit, form new relationships, cohabit with other parties, and as a result of those relationships, whether by marriage, or as in the present case by cohabiting together, children are born. It is equally clear that in those circumstances, particularly in the absence of marriage where the adoption of a surname is not automatic, some degree of confusion arises as a result of the various relationships which may have been in existence at the time when children are born.
I accept that the use of hyphenated names may from time to time cause some difficulty and confusion. There has been a suggestion that in relation to one of the children difficulties may be encountered as a result of a claimed speech impairment in relation to the pronunciation of the father's name. To the extent that issue has been raised, it is not in my view on the evidence before me an issue which would be one which would determine the outcome of this Application.
In general principles it is my view that it is appropriate that where a father has regular contact and on a frequent basis deals with children who refer to him as "dad" and who clearly have no difficulty in understanding that he is their natural father, the identity of the father's name is an important issue in relation to the welfare of the children. I regard that issue as one of the significant issues to be taken into account in this matter. I also have regard, however, to the issue of what might be described as day to day difficulties which by simply applying common sense one can well imagine what may occur in relation to children who are the product of this relationship, and who have now in a sense by accompanying their mother in her current relationship form what I accept to be a close and ongoing commitment within that family and ongoing relationship with their current stepfather who has the name M.
In the circumstances, however, it is my view that the appropriate compromise in a matter of this kind is one which achieves two objectives; the first, to recognise and acknowledge the surname of the current partner of the Applicant Mother. The second is to recognise and acknowledge the surname of the natural father. Given the young age of the children and the fact that they are in the very early stages of schooling, it is my view that this matter needs to be clarified and needs to be the subject of a degree of certainty, so that the children now at a very young age would at least have a degree of predicability and certainty for the rest of their lives.
Ironically, the Applicant Mother herself did not necessarily have that certainty and predicability until she quite properly decided upon becoming an adult to change her own name to accurately reflect what was the true nature of her own family circumstances at that stage. However, her circumstances are not the circumstances in the present case. In the present case, the Respondent Father is very much involved, albeit in relation to contact, in the lives of the children. He has given evidence, which I accept, that he is committed to an ongoing relationship with the children. I accept his commitment in that regard as being a commitment genuinely and sincerely expressed.
In the circumstances, having regard to the principles of law to which I have referred, it is my view that it is in the interests of both children that their name H should cease to be used. It is my view, having regard to the issues that I have referred to, and in particular the desirability of the children to not lose the identity of their biological father's name, the name change proposed by the Respondent Father in his response in all the circumstances, is the appropriate order I should make.
Accordingly, I will make an order that reflects the order sought in the response.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 3 June 2004
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